COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70427 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ARTHUR DUNLAP : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 16, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-329,977 JUDGMENT : AFFIRMED IN PART; : VACATED IN PART AND : REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DAVID ZIMMERMAN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: LAURENCE R. SNYDER Attorney at Law Snyder Associates L.P.A. One Erieview Plaza, #450 Cleveland, Ohio 44114 TIMOTHY E. McMONAGLE, J.: Defendant-appellant Arthur Dunlap was convicted by a jury on January 19, 1996, of two counts of rape, R.C. 2907.02, and one count of kidnapping, R.C. 2905.01. He was sentenced to a term of fifteen to twenty-five years in prison on each count, with each term to run consecutively. It is from these convictions that Dunlap timely appeals. For the reasons stated below, we affirm in part, vacate in part, and remand this matter to the lower court for further action consistent with this opinion. At trial, the following facts were adduced. The victim testified as to the events of October 12, 1995, the day the rape occurred. She and appellant Dunlap both worked as caregivers in the apartment home of a quadriplegic woman, Miss Benjamin. The victim was a home health aide who had worked for Miss Benjamin in her apartment for two or three weeks prior to the incident. Appellant was employed as the "p.m. caregiver" and lived with Miss Benjamin in the apartment. On the afternoon of the rape, the appellant and the victim were in the back bedroom of Miss Benjamin's apartment while the victim was studying for her nursing board exams. The appellant was sitting beside her, assisting her with her studies. While they were studying, the appellant put his hand on the victim's leg. She removed his hand and told him not to - 3 - do that. He again put his hand on her leg and slid his hand up her skirt; she slapped his hand away. When she attempted to leave, the appellant pushed her back into the chair, grabbed her legs, pulled them apart and put his head between her legs. He pulled her underpants to the side and placed his mouth on her vagina. The victim hit and kicked the appellant, trying to push him away. As she attempted to get away, he grabbed her and wrestled her to the floor. They wrestled on the floor of the bedroom for about fifteen minutes. Finally, the appellant got on top of the victim, straddling her. He held her down by the neck and threatened to slit her throat if she did not "shut up" and be still. She stopped struggling but begged him to use a condom if he were going to rape her. Appellant told her to "shut up" and penetrated her vagina with his penis. When he was done, appellant wiped himself off with a towel, threw the towel at her and told her to clean herself off. The victim gathered her things and left the apartment, telling Miss Benjamin that she would not be coming back. She did not tell Miss Benjamin what had happened because she was afraid of the appellant, who was still there. When she left the apartment, the victim went to St. Lukes Hospital to pick up her mother, who was being discharged that day. At the hospital, she told her mother that she had just been raped by the appellant. She went down to the emergency room, where a rape exam was performed and evidence was collected. While in the - 4 - emergency room, she gave a written statement to the police indi- cating that appellant had raped her. The victim's mother testified that when her daughter came to the hospital on October 12, 1995, she acted as if something were wrong and told her mother she had been raped by the appellant. Her mother encouraged her daughter to go to the emergency room. The emergency room nurse testified that she was present during the victim's rape exam, which included the swabbing of the internal and external genital area, combing of pubic hair, pulling of head hair, and taking of saliva, blood and nasal mucus samples. Testimony was presented from the Cleveland Police Scientific Investigation Unit by Tina Wolf, who examined the evidence col- lected in the rape kit. She was able to conclude that semen was present on the vaginal swabs of the rape kit. No comparison testing between the samples taken from the appellant was per- formed. Lucinda Turner, the medical social worker employed by the victim's employer, April Care, testified that because of the victim's rape report, she went to the apartment to check on Miss Benjamin. Officer Brown took the statement from the victim at the hospital and, based upon that statement, went to Miss Benjamin's apartment to locate the appellant but was not able to do so. Detective Gilbert of the Cleveland Police Department went to the apartment on October 13, 1996, to locate the appellant. While Det. Gilbert was there, the appellant telephoned Miss Benjamin. - 5 - Detective Gilbert told the appellant that the police wanted to question him about outstanding traffic violations. Theodore Crawford, who lives in the same apartment building as Miss Benjamin, testified that on October 12, 1995, the appellant came to his apartment about 1:30 p.m. and told Crawford that he had to stay there because of a "problem" with the nurse. He stayed until after 4:30 p.m. The following day, the appellant again came to his apartment and stayed from 2:00 p.m. until after 6:00 p.m. The state rested, and the defense called no witnesses. The jury found the appellant guilty of both charges of rape and the charge of kidnapping. The appellant presents three assignments of error for our review. ASSIGNMENT OF ERROR NO. I THE LOWER COURT ERRED WHEN IT CONVICTED APPELLANT OF BOTH RAPE AND KIDNAPPING WHERE THE FACTS ESTABLISH THAT THEY WERE ALLIED OFFENSES OF SIMILAR IMPORT WITHIN THE MEANING OF ORC 2941.25. Appellant contends that it is error for the court to convict him of both the offenses of rape and kidnapping where the offenses are allied offenses of similar import because the elements of the offenses correspond to such a degree that the commission of the kidnapping is implicit within the rape and no separate animus for each offense was shown. Specifically, appellant argues that the evidence did not demonstrate that a kidnapping occurred - 6 - independently of the rape. We find this argument of the appellant well taken. A conviction for rape and kidnapping will be upheld when the restraint or movement of the victim is significantly independent of the rape, thus demonstrating a separate animus or purpose for each 1 act. However, a defendant may be convicted of only one offense where the same conduct by the defendant can be construed to con- 2 stitute two or more allied offenses of similar import. The relevant statute, R.C. 2941.25, provides that: (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 constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. 3 4 In State v. Logan and State v. Ware , the supreme court analyzed the "merger doctrine" and statute. In Logan, the 1 R.C. 2941.25, construed. State v. Mitchell (1989), 60 Ohio App.3d 106, 108. 2 State v. Price (1979), 60 Ohio St.2d 136, paragraph five of the syllabus. 3 State v. Logan (1979), 60 Ohio St.2d 126. 4 State v. Ware (1980), 63 Ohio St.2d 84. - 7 - defendant was convicted inter alia of kidnapping and rape. The court of appeals affirmed the conviction. The defendant urged the supreme court to set aside the conviction for kidnapping as an allied offense of similar import with the rape, for which he possessed a single animus. The supreme court agreed and reversed, determining that the judicial "merger" doctrine was codified in R.C. 2941.25. The Logan court stated that "[w]here an individu- al's immediate motive involves the commission of one offense, but in the course of committing that crime he must, a priori, commit another, then he may well possess but a single animus, and in that 5 event may be convicted of only one crime." The decision in Logan was based upon the determination of whether the restraint or movement of the victim (the kidnapping) was incidental to a sepa- rate underlying crime (the rape) or whether the kidnapping had significance independent of the other offense. Under the facts of Logan, the court found the kidnap merely incidental to the rape and reversed the kidnap conviction; hence, the kidnap had been merged into the rape. In Ware, the supreme court analyzed the same question as to kidnap and rape convictions. The court reviewed the statute not as to whether the crimes were committed with separate animus but whether, under the facts of the case, the two crimes were com- mitted separately. The Ware court determined that under the facts of that case (the victim was forcibly moved from the lower level of 5 Id. at 131. - 8 - the appellant's residence into the upstairs bedroom), there was an act of asportation by deception, which constituted kidnapping and which was significantly independent from the asportation incidental to the rape itself, finding, therefore, the two crimes, kidnap and rape, to be committed separately. 6 In the syllabus of Newark v. Vazirani, the supreme court set forth a two-tiered test for determining whether two crimes are allied offenses of similar import. A two-step analysis is used to 7 apply R.C. 2941.25. In the first step, the elements of the two crimes are com- pared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import, and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of 8 both offenses. In analyzing the elements of the crimes at issue here, the force or threat of force of rape is sufficient to meet the element 6 Newark v. Vazirani (1990), 48 Ohio St.3d 81. 7 State v. Mitchell (1983), 6 Ohio St.3d 416, at 418. 8 State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816, 817, approved and followed. See, also, State v. Nicholas (1993), 66 Ohio St.3d 431. - 9 - of restraint required for kidnapping, thereby satisfying the first step of the test. We next go to the second step to determine whether the crimes were committed separately or with separate animus. A review of the record indicates that the appellant and victim were at all times in the same room. The victim was not moved from one area to another; they struggled on the floor while the appellant restrained her from leaving. The evidence indicates that the struggle of fifteen minutes stopped when he finally sub- dued the victim with a threat. He then raped her. After the appellant raped the victim, he left the room, and she was free to leave. No evidence was presented to show that the movement of the victim was substantial or that the restraint of liberty was sig- nificantly independent of the rape or was for a significant period of time. The restraint of her liberty certainly appears to us to have been for the purpose of the rape. Upon reviewing the appel- lant's conduct here, we do not find evidence demonstrating either that the crimes were committed separately or that there was a separate animus for each crime. Accordingly, we find that the trial court erred when it convicted appellant of both a kidnap and a rape where no evidence exists that the crimes were committed separately and no evidence of separate animus is shown by asporta- tion of a significant distance or restraint of liberty for a significant period of time prior to the commission of the intended rape. - 10 - Appellant's first assignment of error is sustained. The conviction for kidnapping shall be vacated and the matter remanded for resentencing consistent with this determination. ASSIGNMENT OF ERROR NO. II THE LOWER COURT ERRED WHEN IT SENTENCED APPELLANT TO TERMS OF INCARCERATION OF FROM FIFTEEN TO TWENTY-FIVE YEARS ON EACH COUNT OF THE INDICTMENT WHERE THERE WAS NO DETERMINA- TION MADE AS TO A PRIOR CONVICTION. Appellant argues that the trial court erred when it sentenced him to a term of fifteen to twenty-five years on each count of the indictment. Specifically, appellant contends that the trial court "enhanced" his sentence due to a prior conviction but that there is insufficient evidence of the existence of the prior conviction in the record; therefore, the enhanced sentences imposed by the trial judge must be vacated. Appellant's argument is well taken. R.C. 2941.142 states: Actual incarceration upon second conviction for certain felonies; specification of prior offense. Imposition of a term of actual incarceration upon an offender pursuant to division (B)(1)(b), (2)(b), or (3)(b) of section 2929.11 of the Revised Code because the offender has previously been convicted of or pleaded guilty to any aggravated felony of the first, second or third degree, aggravated murder or murder, or any offense set forth in any existing or former law of this state, any other state, or the United States that is substantially equivalent to any aggravated felony of the first, second or third degree or to aggravated murder or murder is precluded unless the indictment, count in the indictment, or - 11 - information charging the offense specifies that the offender has previously been convicted of or pleaded guilty to such an offense. Such a specification shall be stated at the end of the body of the indictment, count, or information and shall be in substantially the following form: "Specification (or, Specification to the First Count). The grand jurors (or in- sert the person's or the prosecuting attorney's name when appropriate) further find and specify that (set forth that the offender has previously been convicted and name the offense)." A certified copy of the entry of judgment in such prior conviction together with evidence sufficient to identify the defendant named in the entry as the offender in the case at bar is sufficient to prove the prior conviction. If an indictment, count in an indictment or information that charges a defendant with an aggravated felony contains such a specifica- tion, the defendant may request that the trial judge, in a case tried by a jury, determine the existence of the specification at the sentencing hearing. The trial court did not determine the existence of the speci- fication on the record. The record reflects that there is no stipulation by appellant or counsel or "certified copy of the entry of judgment in such prior conviction" as required by the statute. Accordingly, it was error for the trial court to impose "enhanced" sentences upon the appellant. This assignment of error is well taken. The "enhanced" sentences are vacated and this matter is re- manded to the trial court for hearing to determine the existence of the specifications indicated in the indictment and for resentencing - 12 - consistent with the trial court's determination as to the existence of the specifications. ASSIGNMENT OF ERROR NO. III THE LOWER COURT ERRED WHEN IT CONVICTED APPELLANT OF RAPE WHERE THERE WAS INSUFFICIENT EVIDENCE OF SEXUAL CONDUCT AS DEFINED BY O.R.C. 2907.01A. Appellant contends that the testimony presented on the count of rape based upon his act of cunnilingus with the victim was insufficient to establish sexual conduct, a necessary element of the crime of rape. Specifically, the appellant contends that the evidence presented, even if believed, established only that he had sexual contact with the victim but does not meet the definition of sexual conduct. Appellant concedes that while the R.C. 2907.01 definition of sexual conduct does not state that proof of penetra- tion is required to complete cunnilingus, he argues that the code clearly contemplates that cunnilingus (sexual conduct) is some- thing more than a touching of genitals (sexual contact). Appel- lant's arguments have no merit. Appellant here makes the same argument as the appellant in 9 State v. Bailey , contending that "some additional element is necessary to complete the act of cunnilingus." As the Bailey court determined, such is not the case. Cunnilingus is defined as "a 9 State v. Bailey (1992), 78 Ohio App.3d 394. - 13 - 10 sexual act committed with the mouth and the female sexual organ." The Bailey court held that "the law requires no further activity to constitute cunnilingus beyond the placing of one's mouth on the 11 female's vagina." Accordingly, the evidence presented at trial was sufficient to meet the definition of cunnilingus. Cunnilingus is, by statute, 12 "sexual conduct" ; therefore, the state presented sufficient evidence that, if believed, establishes each of the elements of rape under 2907.02(B). Appellant's third assignment of error has no merit, and appellant's conviction of rape by the act of cunnilingus is affirmed. 10 4 Ohio Jury Instructions 1993, 165 Section 507.02(9). 11 Id. at 395. 12 R.C. 2907.01. - 14 - It is ordered that appellant and appellee share the costs herein taxed equally. The Court finds there were reasonable grounds for this appeal. 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. LEO M. SPELLACY, C.J. and DAVID T. MATIA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .