[Cite as State v. Ozevin, 2013-Ohio-1386.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : CASE NO. CA2012-06-044 

 

 : O P I N I O N

 - vs - 4/8/2013 

 : 

ERDEL OZEVIN, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

Case No. 2011CR01073 

D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside 

Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee 

William J. Rapp, Joshua R. Crousey, One East Main Street, Amelia, Ohio 45102, for 

defendant-appellant 

 HENDRICKSON, P.J. 

{¶ 1} Defendant-appellant, Erdel Ozevin, was convicted of aggravated burglary and 

kidnapping in the Clermont County Court of Common Pleas. Appellant argues on appeal that 

these offenses should have been merged for sentencing. We agree. Under the facts and 

circumstances of this case, aggravated burglary and kidnapping are allied offenses of similar 

import that should have been merged under R.C. 2941.25. Consequently, we remand this 
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case for a new sentencing hearing after the state selects which allied offense to pursue. 

{¶ 2} On December 21, 2011, appellant was indicted by a grand jury on five counts, 

including aggravated burglary, attempted murder, kidnapping, felonious assault, and 

possessing criminal tools. The counts regarding attempted murder and felonious assault 

were dismissed and appellant pled guilty to the remaining charges. The counts for 

aggravated burglary and possessing criminal tools merged. Consequently, appellant was 

only convicted of aggravated burglary in violation of R.C. 2911.11(A)(1) and kidnapping in 

violation of R.C. 2905.01(B)(2). 

{¶ 3} Prior to sentencing, the trial court gave the state the opportunity to provide 

additional evidence though testimony of the victim. The state declined to do so. At the plea 

hearing, specific facts were read into the record. A summary of these specific facts follow, 

with any facts disputed by appellant omitted. Appellant stealthily entered the victim's home 

while she was away. As the victim entered the dark laundry room from her garage, appellant 

attacked the victim by placing a plastic bag over her head. A struggle ensued whereby 

appellant struck the victim in the face and body, and attempted to bind her legs with duct 

tape. In retaliation, the victim clawed at appellant's face, tried to fight him off, and bit him in 

the hand. Meeting such resistance, appellant fled the scene. Appellant left behind multiple 

zip ties, a large black canvas bag, a large black shroud, and other miscellaneous items. 

{¶ 4} Appellant was sentenced to seven years in prison on the aggravated burglary 

charge. Additionally, appellant was sentenced to five years in prison for kidnapping. Both 

were to run consecutively for an aggregate 12-year prison term. 

{¶ 5} Appellant now appeals and asserts one assignment of error for review. 

{¶ 6} Assignment of Error No. 1: 

{¶ 7} THE TRIAL COURT ERRED BY IMPOSING MULTIPLE, CONSECUTIVE 

SENTENCES FOR ALLIED OFFENSES OF SIMILAR IMPORT. 
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{¶ 8} Appellant argues that he should not have been convicted of both aggravated 

burglary and kidnapping because they were committed with the same act and the same 

animus. Appellant asserts that with the actions of entering the victim's home, attempting to 

restrain her, scaring her, and fleeing, he committed both aggravated burglary and kidnapping. 

We agree. 

{¶ 9} R.C. 2941.25, Ohio's multiple-count statute, prohibits the imposition of multiple 

punishments for the same criminal conduct. State v. Brown, 12th Dist. No. CA2009-05-142, 

2010-Ohio-324, ¶ 7. The statute 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 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. 

{¶ 10} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme 

Court established a two-part test to determine whether offenses are allied offenses of similar 

import under R.C. 2941.25. State v. Craycraft, 12th Dist. Nos. CA2009-02-013 and CA2009-

02-014, 2011-Ohio-413, ¶ 11. Courts must first determine whether it is possible to commit 

one offense and commit the other with the same conduct. Johnson at ¶ 48; State v. 

McCullough, 12th Dist. Nos. CA2010-04-006 and CA2010-04-008, 2011-Ohio-992, ¶ 14. In 

making this determination, it is not necessary that the commission of one offense would 

always result in the commission of the other, but instead, the question is simply whether it is 

possible for both offenses to be committed by the same conduct. Johnson at ¶ 48; Craycraft

at ¶ 11. 

{¶ 11} If it is found that the offenses can be committed by the same conduct, the court 
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must then determine "whether the offenses were committed by the same conduct, i.e., 'a 

single act, committed with a single state of mind.'" Johnson at ¶ 49, quoting State v. Brown, 

119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50. If both questions are answered in the 

affirmative, the offenses are allied offenses of similar import and must be merged. Johnson

at ¶ 50; State v. Roy, 12th Dist. No. CA2009-11-290, 2011-Ohio-1992, ¶ 11. However, if the 

commission of one offense will never result in the commission of the other, "or if the offenses 

are committed separately, or if the defendant has separate animus for each offense, then, 

according to R.C. 2941.25(B), the offenses will not merge." Johnson at ¶ 51; Craycraft at ¶ 

11-12; Roy at ¶ 11. 

{¶ 12} First, the state concedes, and we agree, that is possible to commit the offenses 

of aggravated burglary and kidnapping with the same conduct. In this case, aggravated 

burglary is trespassing by force, stealth, or deception in an occupied structure with the 

purpose to commit within the structure a criminal offense and inflicting, attempting to inflict, or 

threatening to inflict physical harm on another. See R.C. 2911.11(A)(1). Kidnapping is 

knowingly restraining another person's liberty by force, threat, or deception under 

circumstances that create a substantial risk of serious physical harm to the victim. See R.C. 

2905.01(B)(2). Harm or attempting harm to a victim to complete an aggravated burglary can 

be caused by same conduct used to forcibly restrain another person. Accordingly, it is 

certainly possible to commit both aggravated burglary and kidnapping with the same conduct. 

{¶ 13} Now we must determine whether appellant committed the offenses with the 

same conduct, i.e., a single act and a single state of mind. In State v. Logan, 60 Ohio St.2d 

126 (1979), paragraph one of the syllabus, in establishing whether kidnapping and another 

offense of the same or similar kind are committed with a separate animus, the Ohio Supreme 

Court adopted the following guidelines: 

Where the restraint or movement of the victim is merely 
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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 substantial so as to demonstrate a 

significance independent of the other offense, there exists a 

separate animus as to each offense sufficient to support 

separate convictions; 

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 sufficient to support 

separate convictions. 

These guidelines appear to remain valid in the wake of Johnson. State v. McCullough, 2011-

Ohio-992 at ¶ 20. Additionally, the act of aggravated burglary in violation of R.C. 

2911.11(A)(1) is not complete until the offender inflicts, attempts, or threatens physical harm 

to another. State v. Seymore, 12th Dist. Nos. CA2011-07-131 and CA2011-07-143, 2012-

Ohio-3125, ¶ 24. 

{¶ 14} In this case, the acts of placing a plastic bag over the victim's head, striking her, 

and attempting to bind her legs with duct tape completed the aggravated burglary and were 

also elements of the kidnapping. Any actual restraint of the victim must have occurred over a 

relatively short period of time because appellant's attempts to bind the victim's legs failed 

when she clawed at his face, tried to fight him off, and bit him in the hand, which caused him 

to flee. Accordingly, the victim was not subject to an additional substantial risk of harm due 

to the crime of kidnapping. The kidnapping posed no significance independent of the 

aggravated burglary. Consequently, in this particular instance, we find that the aggravated 

burglary and kidnapping were committed with the same animus. 

{¶ 15} Under the facts and circumstances of this case, aggravated burglary and 

kidnapping are allied offenses of similar import as they can be committed with the same 

conduct and they were committed with the same animus. Accordingly, they must be merged 
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for sentencing.1 Appellant's assignment of error is sustained. 

{¶ 16} Insofar as the trial court failed to merge the offenses of aggravated burglary and 

kidnapping at sentencing, the judgment of the trial court is reversed and this matter 

remanded for further proceedings according to law and consistent with this opinion. Upon 

remand, the state can elect which allied offense to pursue, which the trial court must accept 

and merge the crimes for sentencing. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 

20, 24; State v. Weathers, 12th Dist. No. CA2011-01-013, 2011-Ohio-6793, ¶ 25. 

{¶ 17} Reversed only to the extent the sentence is vacated, and the matter remanded 

for resentencing. 

PIPER and M. POWELL, JJ., concur. 

 

1. Also under his first assignment of error appellant argues that the trial court abused its discretion by ordering 

him to serve an aggregate 12-year prison term. However, because we find the offenses of aggravated burglary 

and kidnapping allied offenses of similar import, appellant will only be sentenced as to one offense. Accordingly, 

we need not address this argument.