COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71775 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : WILLIAM J. MURPHY : OPINION : Defendant-Appellant : Date of Announcement of Decision: JULY 30, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-312196 Judgment: AFFIRMED Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DAVID ZIMMERMAN, Asst. Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: EDWARD A. HEFFERNAN, ESQ. 668 Euclid Avenue Suite 216A Cleveland, Ohio 44114 -2- JAMES M. PORTER, P.J.: Defendant-appellant William J. Murphy appeals from his convictions following a jury trial on forty-four counts of gross sexual imposition and forty-four counts of kidnapping of an eight- year-old girl occurring between 1984-85. Defendant contends he was unlawfully convicted because of the improper admission of other act evidence; that the trial court erred in not suppressing evidence improperly seized or not identified under an invalid search warrant; that there was insufficient evidence to sustain the convictions; that the charges were barred by the statute of limitations; that the trial court improperly determined that gross sexual imposition and kidnapping were not allied offenses of similar import; and it violated due process to prosecute him for crimes committed ten years earlier. For the reasons hereinafter stated, we find no reversible error and affirm. The victim, Nicole Heideman, was the daughter of Werner and Karen Heideman, longtime and close friends of defendant. In the early 1980s, defendant would visit their home three to five times a week, sharing holidays, birthdays and even vacations with the Heideman family. The Heidemans had three children who adored defendant. He developed a special relationship with Nicole from her earliest years and would bring little presents for her when he visited. Nicole described defendant as her second dad and called him Uncle Bill. -3- The Heidemans were trying to start up an incentive travel company which required them to be away from home. As a result, the children would be cared for by their grandmother, but defendant would stop in daily to check on the children. Defendant would frequently pick up Nicole after school or gymnastic classes and take her home. He also took the victim to the store, sledding, his stepfather's house or to his apartment to go swimming. He would be with the victim approximately three to four times a week. According to her mother, many times when defendant would return with the victim, she would be tired or melancholy. The victim testified that she believed that she was drugged by the defendant during the alleged sexual abuse. She testified that when she would be with defendant he would always ask her if she wanted something to drink. Later, when she would be riding in the car with him she would feel as if she was in a dazed state. While in this condition, she testified that defendant would unzip her pants and penetrate her vagina with his fingers. The victim stated the penetration was not painful, but she could feel it. This sexual abuse would occur almost every time the victim and defendant would be alone together. This conduct occurred over a period of several years, when Nicole was between the ages of four and eight years old (1980-1985). Nicole never reported the abuse at that time because of her love for defendant and her fear of being taken away from him. In August 1985, the Heidemans told defendant he was to have no further contact with Nicole or the rest of the family. This -4- breakup in the friendship was caused by the discovery of several photographs found by defendant's wife, Candice Murphy. The pictures, hidden in defendant's study, depicted a minor child, later identified as Roberta Krihwan, asleep or drugged, lying on a fold-out bed. The pictures revealed an arm and hand using objects and fingers to penetrate the vagina of the minor child. Candice identified the arm, hand and shirt as that of her husband, the defendant. She also recognized the furniture pictured as from defendant's apartment. After finding the pictures, Candice moved out of the apartment and filed for divorce in 1985. These photographs were not obtained by the police department until June of 1994. Candice Murphy contacted Mrs. Heideman approximately ten days after she moved out of the apartment while defendant was visiting the Heidemans. Mrs. Heideman immediately left her house and met with Candice at a local restaurant where she was shown the photographs. In the photographs, Mrs. Heideman recognized a lamp from defendant's apartment and a pink and white striped shirt belonging to defendant. When Mrs. Heideman returned home very upset, she ordered defendant out of the house. She told her husband about the pictures and the next day she contacted defendant. Defendant was told he was not allowed to have any further contact with the children or come to the house again. The children were told defendant would not be coming around anymore and that if they saw him they were not to go with him. -5- Even though the defendant was told to have no contact with Nicole, he sent her several birthday cards and love letters which he mailed or put inside the doorway. These cards and letters expressed defendant's obsessive love for the young girl. Several months after seeing these pictures of defendant sexually abusing a minor female child, Mrs. Heideman took Nicole to her pediatrician, Dr. Pelegrin. She asked him what she should look for to determine if Nicole had been abused. The doctor assured her that Nicole was a normal, healthy girl and the decision was made not to perform an internal examination of the child. Nicole testified she did not tell anyone about the abuse she suffered until 1992 when she was a freshman in high school and told her first boyfriend, Chuck Brickman, age seventeen. Brickman told his mother of the abuse and she relayed the information to Nicole's mother. Mrs. Heideman confronted and questioned Nicole if defendant had ever done anything to her and she responded, No, and I don't want to talk about it. The victim's mother asked her several times over the years if anything had happened to her and she always said no. The victim testified that she never told her mother because she was afraid and did not want to deal with the emotions. In May of 1994, Nicole, then eighteen years old, was riding in a car with several friends when she saw a car that reminded her of defendant's car where the abuse occurred. Upon seeing the car, Nicole broke down and started crying. She told her friend, Nicole Johnson, who was with her, what had happened to her as a child. -6- Nicole Johnson told her father what had occurred and Mr. Johnson contacted Mrs. Heideman about it. At this time, Nicole finally told her mother that defendant had abused her. Mrs. Heideman took Nicole to the Euclid Police Department and met with Det. Joseph Bensi who took a full statement from Nicole. On June 4, 1994, Det. Bensi met with an assistant Cuyahoga County prosecutor who prepared an affidavit for a search warrant which was presented to Judge Frank D. Celebrezze, Jr. who reviewed and signed the search warrant. Officers of the Euclid Police Department executed the search warrant at 27730 Parkview Drive, Euclid, Ohio, defendant's apartment. During the course of the search, the officers found hundreds of photographs and xerox copies of photographs of the victim. Defendant had laminated specific pictures together in a type of collage, showing Nicole in bathing suits, shorts and underwear. The police also found a picture from an adult magazine showing a topless female wearing only a pair of shorts which were unzipped and pulled down to show her pubic hair. A picture of the victim's face was put over the face of the topless female and then xeroxed numerous times to create a picture of eight-year-old Nicole with a semi-nude adult body. The police also found numerous 8mm. tapes that were confiscated and reviewed. Defendant possessed several video tapes of adult movies which showed nude adults engaging in different sexual acts. In the middle of one tape was a clip showing the victim in a bathing suit. The camera slowly panned down her seven- -7- year-old body and then stopped and focused on her vaginal area for a period of time. The camera then appears to be filming through a cracked door as the victim takes her bathing suit off to change clothes. Defendant was indicted on September 14, 1994 on 125 counts of sexual crimes and kidnapping of victims/minors Nicole Heideman and Roberta Krihwan. On May 22, 1995 and November 21, 1995, evidentiary hearings were held on defendant's motion to dismiss the indictments on statute of limitations grounds. The trial court granted the motion in part as to the victim, Roberta Krihwan, but denied the motion for the counts of the indictment involving the victim, Nicole Heideman. On June 27, 1996, an evidentiary hearing was held on defendant's motion to suppress evidence which was overruled. A jury trial commenced on September 16, 1996, and continued until September 23, 1996. As noted, the jury found defendant guilty of forty-four counts of gross sexual imposition and forty- four counts of kidnapping. Defendant was sentenced on October 22, 1996 to one year for each count of gross sexual imposition, all counts to run consecutive to each other, and ten to twenty-five years on each count of kidnapping, with the first four counts consecutive to each other, but concurrent to the sentence imposed for the gross sexual imposition. The final forty counts of kidnapping were ordered to run concurrent with each other and concurrent with all other counts. -8- This timely appeal ensued. We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. -9- I. THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO PRESENT EVIDENCE OF WILLIAM MURPHY'S ALLEGED PAST SEXUAL ABUSE OF BOBBY KRIHWAN AND CANDICE MURPHY. Prior to trial, the State filed a notification of intent to use Evid.R 404(B) evidence ( other acts ) to establish the plan and scheme used by defendant to commit the charged offenses. Nicole Heideman testified that when she would be with defendant he would give her something to drink and then later she would be in the car with defendant feeling as if in a daze. While in this dazed state, defendant would unzip her pants and penetrate her vagina with his fingers. The State offered testimony through Candice Murphy, defendant's ex-wife, to the effect that, during the same time that the victim was being abused, Mrs. Murphy was being drugged and sexually abused by defendant. Mrs. Murphy testified that during the last several years of her marriage to defendant, she would wake up in the morning feeling dazed and drugged and her vaginal area would be red and sore. She did not recall having sexual relations with her husband the night before. On one occasion, she woke up and discovered a vibrator sticking out of her vagina. She had never seen that vibrator before. On another occasion, she discovered that defendant had put Bing Cherries inside of her vagina without her knowledge. She had no knowledge of the cherries inside of her until defendant informed her that he inserted the cherries and she should remove them before her scheduled physical. She once woke and found a flashlight lying next her on the bed with -10- the light turned on. In each case, she had no recollection of what had occurred during the night. Candice Murphy testified that she found two pills in a glass of orange juice given to her by defendant. She checked the pills in the Physician's Desk Reference and found that they were Valium. Shortly before she left defendant in 1985, Candice found a pill vial containing similar pills in defendant's shirt pocket. The State also offered testimony from Mrs. Murphy that in 1985 she found sixteen photographs showing a minor female child lying down on a roll-out bed, in partial states of undress. The child's eyes are closed and she appears to be asleep or unconscious. In several of the photographs Mrs. Murphy identified a hand, arm and shirt sleeve belonging to defendant. In the photos, the child is being vaginally penetrated by defendant's finger or other objects. Upon finding these photographs, Mrs. Murphy immediately moved out of the apartment she shared with defendant. Approximately one week later, Mrs. Murphy showed these pictures to Mrs. Heideman which resulted in defendant being banned from any further contact with Nicole and the other Heideman children. Admission or exclusion of evidence lies within the trial court's sound discretion. State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus. The term abuse of discretion connotes more than an error of law or judgment, it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Montgomery (1991), 61 Ohio St.3d 410, 413, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157. -11- The defendant contends that this prejudicial and improper other acts testimony was presented to the jury which portrayed the defendant as a bad person likely to commit the very kind of sex crimes with which he was charged. In State v. Gumm (1995), 73 Ohio St.3d 413, 426, the Supreme Court recently summarized the following general principles regarding other acts evidence: Evid.R. 404(B) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible 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, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." R.C. 2945.59 states: "In any criminal case in which the defendant's motive or intent *** or system in doing an act is material, any acts of the defendant which tend to show his motive or intent *** or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant." In State v. Flonnory (1972), 31 Ohio St.2d 124, 126, 60 O.O.2d 95, 96-97, 285 N.E.2d 726, 729, this court noted that R.C. 2945.59 permits the showing of "other acts" when such other acts "tend to show" certain things, e.g., motive and intent, as identified in the statute. "If such other acts do in fact 'tend to show' any of those things they are admissible notwithstanding they may not be 'like' or 'similar' to the crime charged." Id. In the present case, the evidence offered by the State was for the sole purpose of establishing defendant's scheme and plan in committing these offenses. The other act evidence demonstrated that defendant would drug his victims and then penetrate them -12- vaginally while they were unconscious or dazed. This evidence of defendant's scheme and plan assisted the jury in understanding the testimony of the victim in the present case. The victim testified that after drinking a beverage provided by defendant, she would feel, dazed and out of it. It was at this time that defendant would pull the victim's pants down and vaginally penetrate her with his fingers. The testimony of Mrs. Murphy was not offered to establish the character of the accused in order to show that he acted in conformity therewith, but rather to show defendant's method or plan for conditioning his victims. It was used for the purpose of establishing defendant's plan or scheme as it tended to show that defendant drugged and then sexually abused Mrs. Murphy, Nicole and the young girl pictured using the same modus operandi. The Supreme Court recently described when other acts are admissible to show modus operandi in State v. Lowe (1994), 69 Ohio St.3d 527, 531 as follows: Other acts may also prove identity by establishing a modus operandi applicable to the crime with which a defendant is charged. "Other acts forming a unique, identifiable plan of criminal activity are admissible to establish identity under Evid.R. 404(B)." State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180, syllabus. "'Other acts' may be introduced to establish the identity of a perpetrator by showing that he has committed similar crimes and that a distinct, identifiable scheme, plan, or system was used in the commission of the charged offense." State v. Smith (1990), 49 Ohio St.3d 137, 141, 551 N.E.2d 190, 194. While we held in Jamison that "the other acts need not be the same as or similar to the crime charged," Jamison, syllabus, the acts should show a modus -13- operandi identifiable with the defendant. State v. Hutton (1990), 53 Ohio St.3d 36, 40, 559 N.E.2d 432, 438. The State in its closing argument specifically told the jury they could use the evidence only to establish defendant's plan or scheme and to assist them in understanding the testimony of the victim. (Tr. 1147-48). The trial court also instructed the jury that they could not consider the evidence of other acts *** as any proof whatsoever that the defendant did any act alleged in the indictment in this case. (Tr. 1220). The trial court did not abuse its discretion in determining that the evidence of other acts tended to prove defendant's distinct, identifiable scheme, plan, or system of drugging his victims prior to sexually abusing them and assisted the jury in understanding the testimony of the victim. Defendant's Assignment of Error I is overruled. II. THE TRIAL COURT ERRED WHEN IT DENIED WILLIAM MURPHY'S MOTION TO SUPPRESS EVIDENCE SEIZED PURSUANT TO AN INVALID SEARCH WARRANT. Defendant contends that the search warrant obtained in the present case was invalid because the affidavit for the issuance of the search warrant was lacking in sufficient probable cause. However, we find that the judge had a substantial basis for the conclusion that probable cause existed for the issuance of the search warrant. Even if the search warrant is found not to contain sufficient probable cause, there was evidence that the officers acted in good faith in exercising the search warrant. -14- When determining the sufficiency of probable cause set forth in an affidavit in support of a search warrant, we are guided by the principles summarized in State v. Sheets (1996), 112 Ohio App.3d 1, 5-6: Appellant's first argument centers on the affidavit sworn to before the magistrate and whether it was based upon hearsay evidence. Crim.R. 41(C) provides: A warrant shall issue under this rule only on an affidavit or affidavits sworn to before a judge of a court of record and establishing the grounds for issuing the warrant. *** The finding of probable cause may be based upon hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. A magistrate's duty in reviewing a request for a search warrant is to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that the contraband or evidence of a crime will be found in a particular place.' State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640, paragraph one of the syllabus, quoting Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548. In reviewing the sufficiency of the probable cause in an affidavit submitted in support of a search warrant issued by a magistrate *** the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. State v. George, at paragraph two of the syllabus. Doubtful or marginal cases are to be resolved in favor of upholding the warrant. Id. As stated in George, supra, at paragraph one of the syllabus, under the totality of the circumstances test set forth in Gates, -15- the question is whether the affidavit provided a substantial basis for the judge's conclusion that there was a fair probability that evidence of a crime would be found in a particular place given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying the hearsay information. The George court also held that reviewing courts may not substitute their own judgment for that of the issuing magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which the reviewing court would issue the search warrant. Id. at 330. Instead, the court reasoned, a reviewing court is limited to simply ensuring the issuing judge had a substantial basis for concluding that probable cause existed. Id. Further, reviewing trial and appellate courts should accord great deference to the magistrate's determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant. Id., citing Gates, supra, at 237, fn. 10. Det. Bensi of the Euclid Police Department met with Nicole Heideman in May 1994 when she detailed the sexual abuse inflicted by defendant in the early to mid 1980s. Det. Bensi was aware that in 1985 defendant's wife had found photographs showing a young female child, around seven years old, in various sexual positions. In several of the pictures, the girl was being vaginally penetrated. An arm, hand and shirt could be seen in several pictures that were identified as defendant's arm and shirt. The -16- girl was not identified until later. Det. Bensi was also aware that in 1986 Rodney Hanson reported to the Euclid Police Department that he had seen a video movie depicting sodomy between Murphy and a girl around the age of seven. However, this tape was never seen or recovered by the police. With this information, Det. Bensi met with an assistant Cuyahoga County prosecutor who prepared a search warrant and affidavit. The detective then appeared before Judge Frank D. Celebrezze, Jr. who reviewed the search warrant and affidavit. After reviewing both documents, the judge found sufficient probable cause and signed the search warrant authorizing the search. A motion to suppress the evidence recovered was filed by defendant with the trial court and a full hearing was held. At the conclusion of the hearing, the trial court found that the issuing court had a substantial basis for concluding that probable cause existed for the issuance of the search warrant. In the present case, we find that the affidavit presented an ample, factual basis for a finding of probable cause to support the issuance of the search warrant. Given the deference we must show to the lower court's decision under the George case and its progeny, we agree that the trial court properly denied the motion to suppress. Even if we were to determine that the search warrant affidavit did not furnish the magistrate with a substantial basis for determining that there was probable cause to search defendant's apartment, we would be compelled nonetheless to uphold the search -17- based upon the good faith exception to the exclusionary rule set forth in United States v. Leon (1984), 468 U.S. 897. Leon stands for the proposition that the Fourth Amendment exclusionary rule should not be applied so as to bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. George, supra, at 330, citing Leon at 918-923, 926. The reason for such an exception was explained by the Leon court as follows: The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least, negligent conduct which has deprived the defendant of some right. *** Where the official action was pursued in complete good faith, however the deterrence rationale loses much of its force. This is particularly true, we believe, when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope. In most such cases, there is no police illegality and nothing to deter. *** In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determinationor his judgment that the form of the warrant is technically sufficient. *** Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations. Leon, supra, at 919-921. The Court stressed that the officer's reliance on the magistrate's probable cause determination must be objectively reasonable. Id. at 922. -18- Based on the information available to Det. Bensi and accepted by the issuing judge as above noted, the trial court did not err in admitting the evidence in the present case based on the police officer's good faith actions in obtaining and executing the search warrant. In this case, the officers acted in objectively reasonable reliance on the search warrant issued by the judge. Defendant's Assignment of Error II is overruled. III. THE TRIAL COURT ERRED WHEN IT DENIED WILLIAM MURPHY'S REQUEST TO SUPPRESS ALL EVIDENCE SEIZED WHICH WERE NOT IDENTIFIED IN THE SEARCH WARRANT. Defendant contends that the trial court erred in failing to suppress items seized at the time of the execution of the search warrant which were not specifically identified in the search warrant. Defendant identifies five separate items in this category: nude photographs of defendant's ex-wife; handwritten notes; store purchased movies; female underpants; and photographs of singer Whitney Houston. The trial court did suppress the photographs of Whitney Houston that were found in defendant's car. The suppression issue as to three of the remaining items is moot since the State never offered or used the items (movies, underpants, ex-wife's photos) as evidence at trial. Defendant, in fact, did use some of the items during the cross-examination of the witnesses. Any error in not suppressing these items was harmless and non-prejudicial. The trial court acted properly in not suppressing the defendant's handwritten notes since they were identified at Specification (d) of the search warrant and properly seized. The -19- writings seized by the police were paper napkins on which defendant wrote his thoughts and letters. Several of the writings contained descriptions of his love for the victim, an eight to ten-year-old girl, and his loss at being separated from her. Only those napkins that specifically identified Nicole Heideman were used at trial. Defendant's Assignment of Error III is overruled. IV. THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUSTAIN THE CONVICTION AGAINST WILLIAM MURPHY FOR GROSS SEXUAL IMPOSITION. V. THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUSTAIN A CONVICTION ON THE CHARGES OF KIDNAPPING. The standard of review with regard to the sufficiency of evidence was recently summarized by the Supreme Court in State v. Smith (1997), 80 Ohio St.3d 89, 113, as follows: Sufficiency of the evidence is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the jury verdict, State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541, 546, whereas the [w]eight of the evidence concerns `the inclination of the greater amount of credible evidence, offered in a trial to support one side of the issue rather than the other.' (Emphasis sic.) Id. at 387, 678 N.E.2d at 546. In reviewing the record for sufficiency, [t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. We find that the record contains sufficient evidence to support the jury's finding that defendant intended to kill both Lewis and Ruth Ray. -20- In the present case, we find the State presented sufficient evidence to prove each and every element of the offenses of gross sexual imposition and kidnapping. Gross sexual imposition under R.C. 2907.05(A) provides: No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies: * * * (4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person. Sexual contact is defined in R.C. 2907.01(B) as: Sexual Contact means any touching of an erogenous zone of another, including without limitation, the thigh, genitals, buttock, pubic region, or if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person. The State presented evidence through the testimony of Nicole Heideman that defendant penetrated the victim's vagina with his fingers several times a week when she was between the ages of four and eight years old. Defendant argues that there was no evidence submitted that this vaginal penetration was for his own sexual arousal or gratification. The trier of fact may infer from the evidence admitted at trial whether the contact was for sexual arousal or gratification. In making that decision, the trier of fact may consider the type, nature and circumstances of the contact along with the personality of the defendant. State v. Cobb (1991), 81 Ohio App.3d 179. -21- In the present case, defendant was penetrating the victim's vagina with his fingers while she was in a dazed, semi-sleep condition. There was evidence of defendant's sexual obsession with the child based on all of the photographs of the victim in bathing suits, shorts and underwear. He made collages with some of the pictures showing only the clothed vaginal area of the victim. He also made collages from adult magazines and movies depicting sexual acts and superimposing the victim's likeness. This kind of material reinforced the image of defendant's perverse attraction to the child for sexual arousal or gratification. R.C. 2905.01 defines kidnapping: (A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes: * * * (4) To engage in sexual activity, as defined in section 2907.01 of the Revise Code, with the victim against his will ***. Defendant contends that the State failed to present evidence that the victim was removed from the place where she was found for the purpose of engaging in sexual activity. Specifically, he argues that since he was picking the victim up at school or driving her shopping or swimming his purpose was not to have sexual activity with her. Nicole Heideman testified she would be alone with defendant three to four times a week. He would pick her up after school and gymnastic lessons, take her shopping, swimming and sledding. -22- Nicole testified that the sexual abuse would occur nearly every time they were alone together in the car. This evidence demonstrated that defendant took advantage of his close relationship with the Heideman family to drive Nicole to as many places as he could thereby giving him access to his minor victim. It is fair to infer from this pattern of activity that defendant's purpose of driving the victim on different errands was to be alone with her and to sexually abuse her. Certainly, the record was sufficient to demonstrate from defendant's conduct that the State proved each element of the offense of gross sexual imposition as well as kidnapping. Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could easily have found the essential elements of these crimes proven beyond a reasonable doubt. Defendant's Assignments of Error IV and V are overruled. VI. THE TRIAL COURT ERRED WHEN IT DETERMINED THAT GROSS SEXUAL IMPOSITION AND KIDNAPPING WERE NOT ALLIED OFFENSES OF SIMILAR IMPORT. Defendant contends that the trial court erred in convicting him of both kidnapping and gross sexual imposition because the offenses are allied offenses of similar import. Defendant argues that the elements of the offenses correspond to such a degree that the commission of the kidnapping is implicit in the gross sexual imposition offense and no separate animus for each offense was shown. R.C. 2941.25 dealing with the indictment states: Multiple counts. -23- (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 a 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. In State v. Nicholas (1993), 66 Ohio St.3d 431, 434, the Court reviewed the analysis for determining if offenses are allied offenses of similar import: In State v. Blankenship (1988), 38 Ohio St.3d 116, 526 N.E.2d 816, this court set forth a two-step analysis in determining whether multiple crimes for which a defendant is charged constitute allied offenses of similar import. The test proceeds as follows: In the first step, the elements of the two crimes are compared. 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 both offenses. (Emphasis sic and citations omitted.) 38 Ohio St.3d at 117, 526 N.E.2d at 817. We find that the elements of the two offenses charged herein do not correspond to such a degree that the commission of one crime will result in the commission of the other. Gross sexual -24- imposition prohibits sexual contact with a child under thirteen years of age as was charged and found here. R.C. 2907.05(A)(4). No restraint, deception, force or threats are required for the commission of this offense. The commission of this offense will not automatically result in the commission of the offense of kidnapping because no restraint or removal is involved. Under the circumstancesof this case, gross sexual imposition and kidnapping are not allied offenses of similar import and R.C. 2941.25 does not apply. The case on which defendant relies, State v. Jude (Feb. 18, 1994), Wood App. No. 92WD101, unreported, is distinguishable from the present case since it involved a charge of gross sexual imposition under R.C. 2907.05(A)(1) which involves the elements of *** purposely compel[ing] the other person to submit by force or threat of force. However, the commission of gross sexual imposition under subsection (A)(4) involves sexual contact with a child under thirteen, without any requirement of compelling the victim to submit. The offenses of which defendant was convicted are not offenses of similar import. Defendant's Assignment of Error VI is overruled. VII. THE INDICTMENTS AGAINST WILLIAM MURPHY SHOULD HAVE BEEN DISMISSED SINCE THE PROSECUTION BEGAN AFTER THE STATUTE OF LIMITATIONS HAD RUN. VIII. THE PROSECUTION OF WILLIAM MURPHY IN 1994 FOR CRIMES HE ALLEGEDLY COMMITTED PRIOR TO THE AUTUMN OF 1985 IS FUNDAMENTALLY UNFAIR AND VIOLATIVE OF HIS RIGHT TO DUE PROCESS. -25- Defendant argues that the Euclid Police Department's failure to fully investigate this case in 1986 prevented the tolling of the statute of limitations and violated defendant's right of due process. The facts in this case demonstrate that the victim, a minor child during the commission of the sexual abuse, did not report to any responsible adult as defined in R.C. 2151.421, the nature of the crimes committed against her until 1994. In fact, she repeatedly denied any such conduct at the time. The statute of limitations in the present case did not begin to run until the victim reported the sexual abuse to her mother and the Euclid Police Department in 1994. It was at that time that the corpus delicti was discovered. The relevant portions of R.C. 2901.13, styled Limitation of criminal prosecutions: (A) Except as otherwise provided in this section, a prosecution shall be barred unless it is commenced within the following periods after an offense is committed. (1) For a felony other than aggravated murder or murder, six years; * * * (E) A prosecution is commenced on the date an indictment is returned ***. (F) The period of limitation shall not run during any time when the corpus delicti remains undiscovered. Thus, the concern we address is when did the corpus delicti of these crimes become discovered thereby commencing the statute of limitations on these felony offenses. In State v. Black (1978), 54 Ohio St.2d 304, 307, the court stated that the corpus delicti of a -26- crime is the body or the substance of the crime, included in which are usually two elements: the act, and the criminal agency of the act. In State v. Hensley (1991), 59 Ohio St.3d 136, the court stated at 139: *** we cannot agree with the state's argument that the statute of limitations begins to run under R.C. 2901.13(F) only when the prosecutor or other law enforcement agencies discover the corpus delicti of the crime. Such a rule of law could subject a person to criminal liability indefinitely with virtually no time limit, and thus frustrate the legislative intent of a statute of limitations on criminal prosecutions. We point once again to the Committee Comment, supra, which provides that [t]he rationale for limiting criminal prosecutions is that they should be based on reasonably fresh, and therefore more trustworthy evidence. Hence we will not authorize such an expansive reading of R.C. 2901.13(F). The court there held that the statute of limitations for crimes involving child abuse commences when a responsible adult has knowledge of the corpus delicti of the crime. Id. at 140. An evidentiary hearing was held on defendant's motion to dismiss on May 22 1995, and concluded on November 21, 1995. At the hearing, Nicole Heideman testified that she was eighteen years old and had a date of birth of November 26, 1976. The first person Nicole ever told about the sexual abuse at issue was her boyfriend, Chuck Brickman. She told Brickman in early fall of 1992 when he was seventeen years old and she was fifteen. Nicole had been questioned on several occasions by her mother concerning sexual abuse by defendant but she never told her mother what defendant had -27- done to her. Nicole did not tell anyone else about the abuse until May 1994 when she told several friends, her mother, and then went to the Euclid Police Department. The victim's mother, Karen Heideman, testified that in August 1985 she was contacted by defendant's wife, Candice Murphy. Mrs. Murphy showed Mrs. Heideman photographs she had found in her and defendant's apartment depicting a minor child with her underwear down and a pen inserted in her vagina. The photo also showed a man's arm and shirt that both Mrs. Murphy and Mrs. Heideman recognized as defendant's. After the warning from Mrs. Murphy, Mrs. Heideman contacted defendant, told him about the photographs she had seen and informed him he was to have no further contact with the Heideman family. Mrs. Heideman questioned Nicole about being abused, but she denied that anything had happened. An exam by Nicole's pediatrician at that time revealed no evidence of sexual abuse. Mrs. Heideman testified she did not make any report to the Euclid Police Department until early 1986 when she told the police about the photographs shown to her by defendant's wife. She also reported defendant had been putting cards and letters in their door for ten-year-old Nicole. Mrs. Heideman again went to the Euclid Police in 1991 because Nicole thought she had seen defendant at a basketball game and she had become physically upset. Mrs. Heideman talked to Nicole again about the possibility of being abused by defendant, but Nicole again denied any abuse had occurred. -28- In 1992, Mrs. Heideman learned from Nicole that she had told her boyfriend about the abuse, but Nicole never told anyone else until May 1994. It was in May 1994 that Nicole went to the Euclid Police Department with her mother and made a full report of the sexual abuse she had suffered at the hands of the defendant. This disclosure was triggered by Nicole's breakdown in a car after she saw another car pass by which looked very similar to defendant's in which she was molested. Capt. Patrick Newkirk testified at the hearing that his first contact with defendant was in February 1986 when Karen Heideman notified him of the photographs that had been found by defendant's wife. The Euclid Police were also contacted when defendant was seen in the area of Nicole's school. Around February 1987, Mrs. Heideman reported a card mailed to Nicole by defendant. During this period of time, Mrs. Heideman never made any allegations to the Euclid Police that any sexual abuse had occurred between defendant and Nicole. The first allegations that defendant had ever had sexual contact with Nicole came in May 1994, when Nicole came with her mother to file a complaint with the Euclid Police Department. During the prior investigations and interviews there was never any allegations or evidence involving sexual abuse of Nicole Heideman. In December of 1986, Capt. Newkirk received a complaint from a Cindy Friedman who believed that her eight-year-old daughter, Jennifer Friedman, may have been abused by defendant, who was also a close family friend of the Friedmans. Capt. Newkirk -29- made arrangements to have the child interviewed by Human Services, but there were no revelations of sexual abuse by defendant. In Hensley, supra, the defendant was indicted on October 11, 1988 for gross sexual imposition and rape involving children under the age of thirteen. The charges in the indictment alleged various acts of sexual abuse perpetrated against six children, occurring between January 1, 1974 and November 30, 1987. In holding that the indictment came within the statute of limitations, the Court stated at 139: Our objective is to strike a proper balance between the need to place some restriction on the time period within which a criminal case may be brought, and the need to ensure that those who abuse children do not escape criminal responsibility for their actions. Toward this goal, we find that R.C. S2151.421 contains a list of responsible adults who are under a duty to immediately report any known or suspected child abuse or neglect to certain governmental agencies. These agencies, typically a county children services board, are responsible for investigating, in cooperation with law enforcement officials, any allegations of abuse of neglect. R.C. 2151.421 provides in pertinent part: (A)(1) No attorney, physician, *** registered nurse, licensed practical nurse, visiting nurse, or other health care professional, licensed psychologist, licensed school psychologist, speech pathologist or audiologist, coroner, administrator or employee of a child day-care center, administratoror employee of a certified child care agency or other public or private children services agency, school teacher, school employee, school authority, social worker, licensed professional counselor, or person rendering spiritual treatment through prayer in accordance with the tenets of a well recognized religion, who is acting in his official or professional capacity and knows or -30- suspects that a child *** has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of a child, shall fail to immediately report or cause reports to be made of that knowledge or suspicion to the children services board, the county department of human services exercising the children services function, or a municipal or county peace officer ***. (Emphasis added.) The Court found that R.C. 2151.421 provides an appropriate list of responsible adults who, upon obtaining knowledge of possible child abuse, are charged by operation of law with reporting said abuse to the proper authorities. Id. at 139-140. The Court thereafter went on to hold at page 140: Thus, we hold that for purposes of R.C. S2901.13(F), the corpus delicti of crimes involving child abuse or neglect is discovered when a responsible adult, as listed in R.C. S2151.421, has knowledge of both the act and the criminal nature of the act. The Court specifically rejected the argument that notification to a parent was sufficient to start the statute of limitations running, stating at page 141: Under the rule of law set forth above, we stated that for purposes of R.C. S2901.13(F), the corpus delicti of crimes involving child abuse or neglect is discovered when a responsible adult, as listed in R.C. S2151.421, has knowledge of both the act and the criminal nature of the act. We do not include parents; rather, we strictly adhere to those persons listed in R.C. S2151.421. A parent, for sundry reasons, may not always report the alleged sexual abuse or neglect in a timely manner. Applying the principles of Hensley, supra, it is clear that the corpus delicti of the indictment concerning Nicole Heideman -31- were not discovered until May 1994. Prior to that time, there was no evidence that any sexual abuse had occurred between the defendant and Nicole. Nicole Heideman's testimony was clear, she did not tell anyone of the sexual abuse by defendant until she told her boyfriend in 1992. Her boyfriend, however, is not a responsible adult contemplated by the Hensley case. Further, even if he were a responsible adult, 1992 is well within the statute of limitations, The fact that Mrs. Heideman had suspicions in 1985 that the defendant possibly could have sexually abused her daughter is not sufficient to start the statute of limitations running. The fact of the matter is that at that time, the Euclid Police Department had no evidence concerning any allegations of sexual abuse. As the Ohio Supreme Court stated in Hensley, supra, the responsible adult has to have knowledge of both the act and the criminal nature of the act. Mrs. Heideman never had knowledge of any act, in that she had questioned Nicole on several occasions, but Nicole denied ever having any sexual contact with the defendant. The Euclid Police Department was not in possession of any evidence which would have indicated any sexual abuse between the defendant and Nicole Heideman. That evidence could only come from Nicole herself. The fact that Nicole, a minor, may have known of the criminal nature of the defendant's acts toward her is not dispositive of this issue. As was stated in Hensley, supra, at 138-139: It is common knowledge in child sex abuse cases that the victims often internalize the abuse, and in some instance blame themselves, or feel somehow that they have done something -32- wrong. Moreover, the mental and emotional anguish that the victims suffer frequently inhibits their ability to speak freely of the episodes of abuse. It is not unnatural in child abuse sex cases for the minor victim to refrain from telling anyone in authority about the abuse. When Nicole finally did come forward with this information in 1994, it was at that time that the corpus delicti of this crime was discovered by a responsible adult, and it was at that time that the statute of limitations began to run. As such, the indictments which followed in September 1994 were well within the statute of limitations. Based on the foregoing, the evidence demonstrated that neither the Euclid Police Department nor any responsible adult as defined in R.C. 2151.421 had knowledge of both the act and the criminal nature of the act until 1994. Defendant's Assignments of Error VII and VIII are overruled. Judgment affirmed. -33- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the 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. ROCCO, J., and JAMES D. SWEENEY, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE 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 .