COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61279 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MURDOCK JONES : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 10, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-196,517 JUDGMENT : AFFIRMED IN PART, RE- VERSED : IN PART AND REMANDED FOR : RESENTENCING. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor GEORGE J. SADD, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: ROBERT M. INGERSOLL Attorney at Law 1276 West Third Street Room 307 Cleveland, Ohio 44113-1569 - 1 - FRANCIS E. SWEENEY, P.J.: Defendant-appellant, Murdock Jones, was indicted on February 4, 1985 in a four-count indictment. Counts one and three charged appellant with aggravated robbery (R.C. 2911.01) and included firearm specifications and prior aggravated felony specifica- tions. Counts two and four charged appellant with kidnapping (R.C. 2905.01) and also included firearm specifications and prior aggra-vated felony specifications. Appellant pleaded not guilty to all counts. After a jury trial, appellant was found guilty on the four indictments and firearm specifications. Appellant timely appeals. For the reasons set forth below, we affirm in part, reverse in part, and remand for re-sentencing. The facts giving rise to this appeal are as follows: On April 9, 1984, sometime before 11:00 a.m., Frankie and Georgia Underwood were at their home located at 7310 Kinsman, Apt. 261, Cleveland, Ohio when they heard a knock at their door. Mr. Underwood answered the door. A male and female were outside. The male told Mr. Underwood that he had a VCR for sale. Mr. Underwood testified he recognized the male from being around the neighborhood and he went by the name of "Doc." Mr. Underwood did not recognize the female. Mr. Underwood told "Doc" he was not interested in the VCR, but if he had papers on it, he would look at it. Mr. Underwood let "Doc" and the female into the apart- - 2 - ment. Mr. Underwood proceeded to examine the VCR when "Doc" pulled out a pistol, cocked the hammer back, and told the Underwoods to put their hands up or he would kill them. Both Underwoods described the firearm as a nickel-plated .38 or .357 caliber pistol. "Doc" then grabbed Mrs. Underwood and placed the pistol against her head, stating, "If you don't tell me where the money is, I'm killing her first." The Underwoods were then told to lie face down. "Doc" gave the pistol to the female and taped the Underwoods' hands and feet together. "Doc" instructed the female, "If they move, kill them." "Doc" then went through the Underwoods' apartment looking for Mr. Underwood's "stash." Not having any success, "Doc" again threatened Mrs. Underwood, stating, "She goes first." Mr. Under- wood then told "Doc" where the money could be found. "Doc" found the money, which Mr. Underwood testified totalled six thousand four hundred dollars. After having found the money, "Doc" told Mr. Underwood, "The only reason I'm not going to kill you is because I'm going to leave town and I got a case and I don't want to be looking over my shoulder. If you go to the police, I'm going to kill you and your family." During the course of the robbery, "Doc" and the female took six thousand four hundred dollars in cash, some food stamps, and three rings, a watch, and two bracelets from Mrs. Underwood. The robbery took approximately fifteen minutes. - 3 - After the robbery was over, the Underwoods managed to free themselves. At some point, Mrs. Underwood noticed that it was 11:00 a.m. according to a clock located in their kitchen. Although the Underwoods did not immediately go to the police about the robbery, Mr. Underwood testified that on three separate occasions, beginning approximately one or two months after the robbery, he saw "Doc" and the female. Mrs. Underwood testified that one week before or after Thanksgiving of that year, she was working at a Money Exchange store when a woman came in wearing the three rings taken from her during the robbery. The woman bought a money order and left. Mrs. Underwood testified she believed this was the woman who robbed her in April. This same woman came back to the Money Exchange in December of the same year to cash two checks. As part of the Money Exchange's store procedure for cashing checks, Mrs. Underwood took two photographs of the woman, which she took to the police along with the woman's name, Valerie Reed. Mr. and Mrs. Underwood took Valerie Reed's pictures to the Fourth District Police Department, where they spoke with Detec- tive Arsie Taylor. Thereafter, in December 1984 or January 1985, Det. Taylor contacted the Underwoods and had them come downtown to identify Valerie Reed in a line-up. Both Underwoods identi- fied Valerie Reed as the woman who robbed them back on April 9, 1984. While downtown for the line-up, the Underwoods noticed a - 4 - wanted poster with "Doc's" picture and true name, Murdock Jones ("appellant"), on it. They so informed Det. Taylor. However, in January 1985, at Valerie Reed's preliminary hearing, both Mr. and Mrs. Underwood began having doubts as to Valerie Reed being the female who, along with appellant, robbed them. They informed Det. Taylor of their doubts. Valerie Reed testified that sometime in April 1984, she was at a girlfriend's house with a few other people when a man, accom-panied by a female, came to the door and started talking with her boyfriend, Eugene Ellington. She identified the man as 1 appellant and the female as Arlene Daniels. Eugene Ellington, a professional fighter who was training nearby, testified he knew appellant and that appellant wanted to sell him a beta max. Ellington was not interested, so appellant asked Ellington to pawn some rings for him. Ellington was not interested, but after appellant stated that his "wife [was] getting kicked out of her apartment and he had no food [for] his kids," Ellington gave appellant two hundred dollars for the rings. Ellington then gave the rings to his girlfriend, whom he also referred to as his common-law wife, who wore them. Valerie Reed testified that she wore the three rings to the Money Exchange sometime in October and again sometime in Decem- 1 Arlene Daniels was also indicted on a four-count indictment with appellant. She was tried jointly with appellant and found guilty as charged. This court affirmed and modified her convic- tion in State v. Daniels (Apr. 16, 1987), Cuyahoga App. No. 51995, unreported. - 5 - ber of that year. Later, Det. Taylor arrested Ms. Reed at her home in Parma. Upon learning of his common-law wife's arrest, Mr. Ellington was furious. He showed the police appellant's picture on a crime stopper poster and told them that that was the man who sold his wife the rings. Mr. Ellington also went looking for appellant. Ellington found appellant and apparently believed appellant's assurances that he would "straighten things out." The Monday following Ms. Daniel's preliminary hearing, Ellington went back to appellant's home, only to run into a friend of appellant who informed Ellington that appellant was gone. Months after, Ellington continued his search for appellant, only to run into Arlene Daniels, whom Ellington identified as the woman who was with appellant when appellant pawned him the rings. Ellington testified that Daniels stated she was no longer with appellant and that she was scared of appellant. Ellington also testified that he ran into appellant twice and intended to "kick his ass," but did not because appellant was with Daniels and their little girl. Finally, Ellington testified he learned appellant's name through some of appellant's friends who told Ellington "they were going to cut [appellant] loose for doing foolish things." Finally, Ellington admitted he never gave Det. Taylor appellant's real name. After Ms. Reed's preliminary hearing, Det. Taylor showed her the crime stopper poster which contained appellant's picture. - 6 - She did not recognize anyone on it until she showed the poster to Eugene Ellington. She testified that Mr. Ellington recognized appellant's picture and, apparently, Det. Taylor was so informed. Eventually, the aggravated burglary and kidnapping charges agai- nst Ms. Reed were dropped, and Ms. Reed pleaded guilty to receiv- ing stolen property. In June of 1985, Mr. and Mrs. Underwood were called downtown by Det. Taylor to identify appellant in a police line-up. Both Mr. and Mrs. Underwood identified appellant as the male who robbed them back in April of 1984. After finishing the line-up, the Underwoods were leaving the Justice Center when they saw Arlene Daniels entering it. Mrs. Underwood went back upstairs to get Det. Taylor, while Mr. Underwood waited downstairs. Det. Taylor came downstairs, and the three went up to the sixth floor where inmates are allowed to receive visitors. Det. Taylor arrested Arlene Daniels. At trial, both Mr. and Mrs. Underwood positively identified appellant and Ms. Daniels as the perpetrators in the April 9, 1984 robbery. Further, both Mr. and Mrs. Underwood testified that Ms. Daniels and Ms. Reed bear striking resemblances. Dr. Matt Likavec, a neurosurgeon at Cleveland Metro General Hospital, testified as an alibi witness for appellant. Dr. Likavec testified that at 11:20 a.m. on April 9, 1984, he dis- cussed with appellant an operation which he later performed on appellant's mother. On cross-examination, Dr. Likavec admitted - 7 - having previously told the prosecution he spoke with appellant at 11:30 to 11:45 a.m. Finally, Det. Taylor testified on rebuttal that it took him approximately fourteen minutes to walk from the Underwoods' front door, drive to Metro General Hospital, and walk from the parking lot to the lower entrance of the hospital. Det. Taylor stated he did this on two separate occasions, on a weekend and a weekday, and each time, it took fourteen minutes. On cross-examination, Det. Taylor admitted he did not time himself going into the hos- pital, obtaining a visitor's pass and proceeding to the patients' ward. Based on the above evidence, the jury found appellant guilty as indicted. Appellant timely appeals, raising five assignments of error for our review. Appellant's first assignment of error is as follows: MURDOCK JONES WAS DEPRIVED OF HIS CONSTITU- TIONAL RIGHT TO A FAIR TRIAL BEFORE AN IMPAR- TIAL JURY BY THE REPEATED ADMISSION OF TESTI- MONY ABOUT OTHER ALLEGED BAD ACTS FOR WHICH HE WAS NOT ON TRIAL. Appellant contends he was prejudiced by the repeated intro- duction of evidence and testimony of other bad acts. This argu- ment lacks merit. Evid. R. 403(B) states: Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissi- ble to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, - 8 - opportunity, intent, preparation, plan, know- ledge, identity, or absence of mistake or accident. Appellant first contends the trial court erred by allowing various state witnesses, over defense objections, to refer to a crime stopper poster which contained appellant's picture and name. Appellant argues the references to the crime stopper post- er created an impermissible inference that appellant is a violent criminal or serious repeat offender, or both. The leading case on this issue is State v. Breedlove (1971), 26 Ohio St.2d 178, wherein the Ohio Supreme Court held, at para- graph two of the syllabus: On direct examination, evidence of the iden- tification of the defendant from a selection of photographs, using photographs from police files with police identification numerals thereon which provide the finder of facts with the reasonable inference that defendant has had prior criminal involvement, may not be used for the purpose of proving defen- dant's identity. In Breedlove, various prosecution witnesses referred to police mug shots as "photographs of guys who have committed crimes" and "possible suspects in armed robberies and burglaries." These mug shots were admitted into evidence. The supreme court reversed Breedlove's conviction finding that "a reasonable inference can be drawn that the defendant, at some indefinite time in the past, had had trouble with the law. Evidence of prior criminal in- - 9 - 2 volvement must satisfy the requirements of R.C. 2945.59, which these photographs did not." Id. at 184. In the present case, the crime stopper poster was not admit- ted into evidence and, although it was shown to the jury, any references to appellant's prior convictions were blackened out. Moreover, there was no testimony at trial concerning appellant's prior conviction, nor was the jury presented any direct evidence of other crimes, wrongs or acts committed by appellant. Finally, any inference which the jury might have gained from references to the crime stopper poster is harmless in light of the overwhelming evidence against appellant. Frankie Underwood testified that he had seen appellant around the neighborhood prior to the robbery and that he knew him as "Doc." Mr. Underwood's reference to the poster was primarily centered around learning appellant's true name. Additionally, Eugene Ellington had seen appellant prior to appellant pawning the three rings in question. Again, any refer- ence in this regard was based solely on learning appellant's true name. Therefore, we conclude that any prejudicial inference which the jury could draw from the references to the crime stop- per pos-ter is harmless in light of the identification of appel- lant as the perpetrator of the robbery or the person who pawned 2 R.C. 2945.59 is a codification of the common law rules of evidence, State v. Pack (1968), 18 Ohio App.2d 76. However, evidence of other bad acts is now governed by Evid. R. 403(B) and, to the extent that R.C. 2945.59 conflicts with Evid. R. 403(B), the rule prevails. See Modern Courts Amendment, Ohio Const., Art. IV, 5(B). - 10 - the rings in question by witnesses who had seen appellant previ- ous thereto. Appellant also argues that it was prejudicial error for the court to admit testimony from Frankie Underwood that he saw Arl- ene Daniels at a drug house run by appellant. However, the trial court gave the following curative instruction: He [Underwood] made references to a dope hou- se or a place where they sold marijuana. I am going to ask you to disregard that. There is no proof of that whatsoever and it is not in the evidence. Accordingly, we find any error in the admission of such testimony is harmless in light of the above curative instruction and the identification of appellant as the perpetrator by witnesses who had seen appellant prior thereto. Finally, appellant argues he was prejudiced by Eugene Elli- ngton's testimony that Arlene Daniels was afraid of appellant and that appellant's friends had cut him loose due to his foolish- ness. However, any inference that the appellant has committed other crimes, wrongs or acts, which a jury might draw from such testimony, is rendered harmless by the overwhelming weight of the evidence against appellant. Accordingly, appellant's first assignment of error is over- ruled. Appellant's second assignment of error is as follows: MURDOCK JONES WAS DEPRIVED OF HIS CONSTITU- TIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUN- SEL BY TRIAL COUNSEL'S FAILURE TO OBJECT TO THE JURY INSTRUCTIONS. - 11 - Appellant contends he was denied effective assistance of counsel by trial counsel's failure to request a jury instruction on the limited use that the jury could make of evidence tending to show that he had committed other crimes and by trial counsel's failure to object to jury instructions which did not include such a limiting instruction. This argument lacks merit. In determining whether appellant was denied effective assis- tance of counsel, the test to be applied is whether the accused, under all the circumstances, had a fair trial and whether sub- stantial justice was done. State v. Hester (1976), 45 Ohio St.2d 71. A two-step process, substantially similar to the two-pronged analysis developed by the U. S. Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, has developed as follows: First, there must be a determination as to whether there has been a substantial viola- tion of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were vio- lated, there must be a determination as to whether the defense was prejudiced by coun- sel's ineffectiveness. State v. Lytle (1976), 48 Ohio St.2d 391; see, also, State v. Smith (1985), 17 Ohio St.3d 98. On the issue of counsel's effectiveness, the appellant has the burden of proof since, in Ohio, a properly licensed attorney is presumed competent. Lytle, supra, at 397. In the present case, we conclude appellant had a fair trial and substantial justice was done to him. We have already - 12 - concluded that any inference which the jury might draw from tes- timony concerning other crimes, wrongs or acts committed by ap- pellant is harmless. Accordingly, we find that appellant was not prejudiced by the alleged ineffective assistance of counsel pro- vided him. Appellant's second assignment of error is overruled. Appellant's third assignment of error follows: MURDOCK JONES WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTIONS FOR TWO FIREARM SPECIFICATIONS, WHICH WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE HIS (sic) GUILTY BEYOND A REASONABLE DOUBT. Appellant contends the evidence is insufficient to support the two firearm specifications contained in the indictment. Pointing to this court's decision of his co-defendant in State v. Daniels (Apr. 16, 1987), Cuyahoga App. No. 51995, unreported, appellant argues there is no evidence which would support a find- ing that the firearm was operable. This argument lacks merit. At the time of the offense in question, R.C. 2929.71 pro- vided, in pertinent part: (A) The court shall impose a term of actual incarceration of three years in addition to imposing a life sentence pursuant to section 2907.02, 2907.12, or 2929.02 of the Revised Code or an indefinite term of imprisonment pursuant to section 2929.11 of the Revised Code, if both of the following apply: (1) The offender is convicted of, or pleads guilty to, any felony other than a violation of section 2923.12 of the Revised Code; - 13 - (2) The offender is also convicted of, or pleads guilty to, a specification charging him with having a firearm on or about his person or under his control while committing the felony. The three- year term of actual incarceration imposed pursuant to this section shall be served consecutively with, and prior to, the life sentence or the indefinite term of imprisonment. * * * (C) (1) "Firearm" has the same meaning as in section 2923.11 of the Revised Code; *** R.C. 2923.11(R)(1) provides: "Firearm" means any deadly weapon capable of expelling or propelling one or more projec- tiles by the action of an explosive or com- bustible propellant. "Firearm" includes an unloaded firearm, and any firearm which is inoperable but which can readily be rendered operable. The Ohio Supreme Court has recently noted in State v. Murphy (1990), 49 Ohio St.3d 206, syllabus: The state must present evidence beyond a rea- sonable doubt that a firearm was operable at the time of the offense before a defendant can receive an enhanced penalty pursuant to R.C. 2929.71(A). However, such proof can be established beyond a reasonable doubt by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime. (State v. Gaines [1989], 46 Ohio St. 3d 65, 545 N.E. 2d 68, modified.) In Murphy, the court went on to hold: From the totality of the circumstances, (i.e- ., the gun being wrapped in a shirt, a de- scription of the instrument from eyewit- nesses, and the statement by appellant that he would kill the clerk if he did not give - 14 - him the money), the evidence is sufficient to establish proof beyond a reasonable doubt that the appellant in this case possessed a "firearm" as defined in R.C. 2923.11(B). In the present case, from the totality of the circumstances, the evidence is sufficient to establish proof beyond a reasonable doubt that the appellant possessed a "firearm" as defined in R.C. 2923.11(B). Both Frankie and Georgia Underwood testified that appellant pulled out a firearm, which was described as a nickel- plated .38 or .357 caliber pistol, cocked the hammer backward and told them to put their hands up or he would kill them. The Un- derwoods further testified that if Frankie did not tell appellant where the money was, appellant stated, "I'm killing her first." Finally, we note that State v. Daniels, supra, was decided prior to Murphy, supra. Daniels relied on State v. Cunningham (Jan. 31, 1985), Cuyahoga App. No. 48558, unreported, which was implicitly rejected by the supreme court in Murphy as being in conflict therewith. Accordingly, Murphy is controlling on this court. Appellant's third assignment of error is overruled. Appellant's fourth assignment of error is as follows: MURDOCK JONES HAS BEEN DEPRIVED OF HIS LIBER- TY TWO TIMES FOR THE SAME OFFENSE, WHEN THE TRIAL COURT FAILED TO MERGE HIS CONVICTIONS FOR THE ALLIED OFFENSES OF SIMILAR IMPORT OF AGGRAVATED ROBBERY AND KIDNAPPING. Appellant argues the trial court erred in failing to merge the kidnapping counts with the aggravated robbery counts. Conse- quently, appellant contends his convictions on both offenses - 15 - violate his constitutional rights against double jeopardy and R.C. 2941.25 because the offenses are, under the facts of the present case, allied offenses of similar import. This argument lacks merit. R.C. 2941.25 provides: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct consti- tutes two or more offenses of dissimilar im- port, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate ani- mus as to each, the indictment or informa- tion may contain counts for all such offenses, and the defendant may be convicted of all of them. In State v. Logan (1979), 60 Ohio St.2d 126, syllabus, the Ohio Supreme Court stated: In establishing whether kidnapping and an- other offense of the same or similar kind are committed with a separate animus as to each pursuant to R.C. 2941.25(B), this court adop- ts the following guidelines: (a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is sub- stantial so as to demonstrate a signifi- cance independent of the other offense, there exists a separate animus as to each offense sufficient to support sepa- rate convictions; - 16 - (b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense suf- ficient to support separate convictions. Kidnapping and robbery are allied offenses of similar import where the restraint of the victim is merely incidental to the crime of robbery. State v. Burks (Aug. 21, 1991), Cuyahoga App. No. 58975, unreported at 4. The crime of kidnapping is separate and distinct from the crime of aggravated robbery where the kid- napping protrudes from the facts of the case and, in such case, a separate animus is thus established. State v. Golphin (Jan. 24, 1991), Cuyahoga App. No. 57870, unreported at 19-20. In the present case, we find the crimes of kidnapping and aggravated robbery were separate and distinct, leaving no doubt the crime of kidnapping "readily protrudes from the facts of this case" and a separate and distinct animus existed for each crime. Id. The restraint of the victims was more than merely incidental to the crime of robbery. Both Frankie and Georgia Underwood tes- tified they were forced to lie face down with a gun pointed at their heads. Appellant then taped their arms and legs together. Appellant ransacked the apartment and threatened to kill Georgia if Frankie refused to reveal the whereabouts of the cash. Final- ly, after appellant found Frankie's "stash," he and Arlene Danie- ls left the Underwoods with their arms and legs taped to-gether. Thus, the act of taping the victims' arms and legs produced re- - 17 - straint which was greater than that necessary to effectuate the aggravated robbery, see State v. Wright (Aug. 22, 1991), Cuyahoga App. No. 58953, unreported, at 13, and the act of leaving the victims tied together produced extended restraint and detention after the aggravated robbery had been completed. See Burks, sup- ra at 4; Wright, supra, at 14; Golphin, supra, at 20; and State v. Ramey (Oct. 13, 1988), Cuyahoga App. No. 54402, unreported, at 11. Accordingly, appellant's fourth assignment of error is over- ruled. Appellant's fifth assignment of error follows: MURDOCK JONES WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS SENTENCES ON HIS KIDNAPPING CONVICTIONS WHICH EXCEED THE STATUTORY LIMITS ALLOWABLE FOR THE CRIME. Appellant contends that his sentence of six to twenty-five years for the kidnapping convictions exceeds the statutory limits of R.C. 2929.11 and must be vacated. This argument has merit. Appellant was convicted on two counts of kidnapping. The jury specifically found that the victims were released in a safe place unharmed. Thus, appellant was convicted of two second- degree felonies. R.C. 2905.01(C). However, appellant's sen- tence of six to twenty-five years is appropriate for a first- degree felony. R.C. 2929.11(B)(1). - 18 - Accordingly, appellant's final assignment of error has mer- it. Judgment is affirmed in part, reversed in part, and remanded for re-sentencing. - 19 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN McMANAMON, J. CONCURS HARPER, J. DISSENTS (See attached opinion) PRESIDING JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61279 : STATE OF OHIO : : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION MURDOCK JONES : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1992 HARPER, J., DISSENTING: I respectfully dissent from the majority's resolution of appellant's fourth assignment of error. Specifically, I disagree with the finding that "the crimes of kidnapping and aggravated robbery were separate and distinct, leaving no doubt the crime of kidnapping 'readily protrudes from the facts of this case' and a separate and distinct animus existed for each crime. Id. The restraint of the victims was more than merely incidental to the crime of robbery." In support of this finding, the majority relies on our previous decisions in State v. Burks (Aug. 29, 1991), Cuyahoga App. No. 58975, unreported; State v. Wright (Aug. 22, 1991), Cuyahoga App. No. 38953, unreported; State v. Golphin - 2 - (Jan. 4, 1991), Cuyahoga App. No. 57870, unreported; and State v. Ramey (Oct. 13, 1988), Cuyahoga App. No. 54402, unreported. A review of these cases, however, firmly establishes that the ma- jority errs in concluding that the offenses of aggravated robbery and kidnapping are not allied offenses of similar import. In Burks, the victim was walking down the street when he was grabbed by the defendant and several other males and transported to another location. Once there, the defendant asked the victim why he signed a statement against him for a theft offense. The defendant then removed several items from the victim's possession and left after mentioning something about retrieving a gun. The victim somehow subsequently freed himself from the other males. We found the evidence suggested that restraint was applied to the victim which created a risk of harm separate from that in- volved in the underlying robbery. This occurred when the defen- dant threatened the victim by saying he was getting a gun and leaving the area after the defendant removed items from the vic- tim's possession. Since the victim was still held by the defen- dant's "cohorts", the victim "was faced with a risk of harm to his well-being separate from that he faced in the underlying robbery." In Wright, the victim returned to an office at a motel and noticed the defendant crouched on the floor and holding a knife as she turned to lock the door behind her. The defendant grabbed her, pushed her to the floor and jabbed her lightly with the knife. After the victim was coerced into telling the defen- - 3 - dant where money was located, the defendant picked her up and made her show him where to find the register. The victim then opened the register for the defendant, who removed bundles of currency from the drawer. It was then that the defendant pulled the victim into a back office, pushed her to the ground, tied her up with an elec-trical cord and fled the office. The victim was able to telephone the police thereafter. In finding that the offenses of kidnapping and aggravated robbery were not allied offenses in Wright, we noted that the defendant completed the robbery and then restrained the victim by tying her hands behind her back. The defendant did so in order to facilitate his escape after the commission of a felony. In Golphin, the victim arrived at the defendant's apartment and was called inside by the defendant. Another male named Gray was inside the apartment at the time and pointed a gun at the victim, ordering him to the floor. Gray mistakenly believed that the victim owed money to the defendant. Even though the defen- dant stated that the victim was not the individual who owed him money, Gray told the defendant to rummage through the victim's pockets. The defendant recovered several items from the victim's possession. The defendant then bound the victim's hands and feet with coat hangers; the victim was dragged from the apartment and placed into the victim's borrowed vehicle. Gray and the defen- dant then drove the victim around and eventually the defendant fired two shots, striking the victim in the jaw and head. After - 4 - a series of events, Gray and the defendant ultimately abandoned the vehicle with the victim remaining inside. The defendant in Golphin completed the offense of aggravated robbery prior to the prolonged asportation of the victim in the victim's vehicle. The victim was then terrorized and shot before he was left for dead, still bound by wire coat hangers. We thus concluded that a separate animus for each crime was demonstrated by the evidence. Finally, in Ramey, the victim answered her door to the de- fendant, a stranger. The defendant asked to use the victim's telephone after inquiring if "Frank" was there. The victim plac- ed the telephone outside her apartment in the hallway. The de- fendant pushed the door open, placed his hand over her mouth and demanded money. The victim was then pushed across the living room to a chair where the defendant ordered her to sit. The defendant next removed a gun from a briefcase and once again demanded money. The victim handed over her change purse which contained approximately $180. An intercom sounded in the vic- tim's kitchen. The defendant turned off the intercom and pointed the gun at the victim. The victim responded by giving the defen- dant a handbag which she had in a closet and returning to the chair. The defendant then grabbed the victim by the arm and pushed her into the bedroom. The victim was forced to lie on her bed and was then covered with a blanket. The defendant further- more threatened to kill her if she told anyone. After pressing a - 5 - pillow against the victim's face a couple of times, the defendant moved the victim to her bathroom and instructed her not to move or leave the bathroom. The defendant exited the bathroom, the victim locked the door and then left the bathroom herself about five minutes later. We determined that the kidnapping was subsequent to the aggravated robbery in Ramey and, therefore, the offenses were not allied. The defendant first held the victim at gunpoint and demanded money. He then dragged and pushed the victim throughout her apartment after she handed the money over to him. Eventually he left her in the bathroom and ordered her not to leave the room. In the instant case, the appellant and Arlene Daniels restrained the Underwoods in order to facilitate the aggravated robbery. The Underwoods were instructed to lay on the floor and tied with duct tape only when the defendant was unable to find cash. They were neither tied up to merely allow the appellant and Daniels to flee the apartment nor were they tied up to merely terrorize them. They were tied up prior to the appellant's de- mand for money as a means to learn the whereabouts of the money. It is true that the Underwoods were left bound in their apartment after the appellant and Daniels left it. However, unlike in any of the cases cited by the majority, the restraint was applied before the robbery and the appellant and Daniels did not do any- thing further to the Underwoods after they were in possession of the Underwoods' money and jewelry. - 6 - I, therefore, find that the offenses of kidnapping and ag- gravated robbery are allied offenses of similar import pursuant to R.C. 2941.25 under the circumstances of this case. According- ly, I dissent from the majority's ruling in appellant's fourth 3/ assignment of error. 3/ This finding would render appellant's fifth assignment of error moot. App. R. 12(A). .