[Cite as State v. Smith, 2016-Ohio-8043.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 103586

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

REGINALD SMITH

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED IN PART, REVERSED IN PART, 

AND REMANDED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-594579-A 

BEFORE: Laster Mays, J., Blackmon, P.J., and Celebrezze, J. 

RELEASED AND JOURNALIZED: December 8, 2016

-i- 
ATTORNEY FOR APPELLANT 

John T. Castele 

Rockefeller Building, Suite 1310 

614 W. Superior Avenue 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Denise J. Salerno 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
ANITA LASTER MAYS, J.: 

{¶1} Defendant-appellant Reginald Smith (“Smith”) appeals his convictions for 

two counts of rape and one count of kidnapping with a sexual motivation specification. 

The rape counts merged, and Smith was sentenced to concurrent ten-year terms with sex 

offender registration under Megan’s Law upon release. After a thorough review of the 

record, we affirm the convictions, vacate the sentences, and remand for hearing and 

resentencing according to this opinion. 

I. BACKGROUND AND FACTS 

{¶2} Smith was indicted on April 1, 2015 for two counts of rape: 

R.C. 2907.02(A)(2), rape by force; and 2907.02.(A)(1), rape with knowledge of 

substantial impairment; and kidnapping with a sexual motivation, R.C. 2905.01(A)(4). 

Each charge is a first-degree felony. The charges arose from an assault that occurred on 

January 8, 2006, more than nine years earlier, when Smith was 21 years of age. Smith 

pleaded not guilty to the charges, and a bench trial ensued. 

{¶3} Prior to the beginning of the trial, Smith moved the court to dismiss the 

case, claiming prejudice due to preindictment delay. “Witnesses have disappeared, 

memories have faded, and people are no longer available that would have been available 

had this case been prosecuted diligently.” The trial court denied the motion, finding that 
Smith failed to demonstrate actual prejudice or introduce evidence substantiating his 

position. 

{¶4} The identified victim (“D.P.”) testified that her 14th birthday was on January 

8, 2006. The afternoon and evening before her birthday, D.P. was out celebrating with: 

(1) two female friends, Shontel and Roselyn, who were 17 or 18 at the time, (2) another 

male whose name D.P. could not recall, and (3) Smith, who she knew only as “GG,” who 

was driving the car. Smith was an acquaintance of Jonathan Jones (“Jones”), the father 

of D.P.’s child. D.P. did not know Smith’s age, but she knew that he was older than she. 

 The group was smoking marijuana, drinking and visiting various places. 

{¶5} At about 10:00 p.m., the group got into Smith’s car again. D.P. was not 

sure where they were going. The group was still smoking and drinking, and D.P. was 

intoxicated. They dropped Shontel off and proceeded to a house on Orinoco in East 

Cleveland where Smith was living. The group smoked more marijuana in the van. 

{¶6} D.P. entered the restroom when they arrived at Smith’s house. When D.P. 

exited the restroom, Smith summoned her to the bedroom where she sat on the bed and 

smoked more marijuana. The two were alone in the room. 

{¶7} When D.P. got up to leave, Smith pulled the door knob out of the door and 

closed it so that D.P. could not open it. Smith told her they were going to have sex and 

offered her $20. D.P. testified that she told him “no,” but Smith pulled down her pants 

and underwear and engaged in vaginal intercourse with 

her on the bed. D.P. did not attempt to open the door or to resist. She did not want to 
have sex with Smith, but “felt hopeless” because she could not physically stop him, and 

had no way of leaving the bedroom. 

{¶8} When Smith was finished, he “snatched” the $20 from her and replaced the 

door knob. D.P. was upset and exited the room. Roselyn was there and another girl she 

had not seen earlier. When D.P. exited the room, she got into the car with Smith. After 

driving a few streets from his house, Smith told her to get out of the car. D.P. called her 

sister and told her that “GG” or Smith had raped her. D.P.’s sister picked her up and 

took her to Huron Road Hospital. 

{¶9} Though D.P. initially told the police that she was not sure which house 

belonged to Smith, she testified on cross-examination that, shortly after the assault, she 

asked someone to damage Smith’s vehicle that he parked in front of his house. The 

police never followed up with her or asked D.P. to take them to the location to see if she 

could identify the vehicle or the house. In fact, D.P. did not hear from the authorities 

from the time of the incident until early 2015. During the interim, D.P. occasionally saw 

Smith around the neighborhood and felt traumatized by the experience. 

{¶10} Shortly before the trial, D.P. talked with Tina Smith, Smith’s mother 

(“Mother”), but never demanded money from her in exchange for failing to testify. 

Jones also questioned D.P. about the case. 

{¶11} Mother testified next. A recording was played of a telephone call 

between Mother and Smith. Smith supplied Mother with a telephone number during the 

conversation. The telephone number belonged to D.P. Mother telephoned D.P. once, 
but only to see whether D.P. was alright. D.P. told Mother that she could “[p]ay her and 

she won’t come to court.” Mother did not know D.P.’s name, but Smith told her that the 

girl who asked her for money was the person who claimed that Smith raped her. Mother 

denied that Smith told her to contact D.P. to ask whether D.P. would accept money in 

exchange for failing to testify. 

{¶12} On January 8, 2006, Rhonda Gray (“Gray”) was working as a Sexual 

Assault Nurse Examiner (“SANE nurse”) at Huron Road Hospital. Gray also worked 

with the Cleveland Police Department for 27 years, 18 years as a detective, and was 

serving her second-year as a homicide detective. Gray has also worked in the medical 

field for 16 years, and continues to work in that capacity. 

{¶13} Gray examined D.P., took swabs, and administered a rape kit. D.P. told 

Gray that: (1) she was raped by GG (Smith); (2) she kept telling him “no”; (3) he had 

her get out of his car on Woodworth Avenue; and (4) she called her sister to pick her up. 

Gray described D.P. as upset and crying. D.P. had no visible injuries. 

{¶14} Officer John Bechtel (“Officer Bechtel”) of the East Cleveland Police 

Department testified that D.P. was upset and crying during his interview with D.P. at the 

hospital. D.P. told him that she was raped by GG who lived in a house on Orinoco in 

East Cleveland, and provided a vague description of the bedroom where the rape 

occurred. Officer Bechtel said that, since there were more than 100 two-family houses 

on Orinoco, and D.P. was unable to provide sufficient identifying information, he 

returned to the station. 
{¶15} Officer Bechtel prepared the January 8, 2006 police report, containing the 

identifying information of the assailant as “GG who resided on Orinoco.” GG was listed 

as a black male, 25 years of age, with a black shirt and jeans. Officer Bechtel did not 

follow up on the information or take D.P. to Orinoco for attempted identification. The 

protocol was to deliver the report to the East Cleveland Detective Bureau who would be 

responsible for following up. 

{¶16} Officer Michael DeLisle (“Officer DeLisle”) of the East Cleveland Police 

Department tagged D.P.’s rape kit in September 2013 to deliver to BCI. Officer Delisle 

agreed that it would have been a good investigative practice to attempt to identify the 

address of the assault for the preservation of evidence at the time of the initial 2006 

report. 

{¶17} Investigator Ferrel Ridgeway (“Investigator Ridgeway”) from the 

Cuyahoga County Prosecutor’s Office cold case DNA task force was notified on March 

10, 2015, that a CODIS hit for D.P.’s rape kit revealed DNA from two individuals: 

Jones, the father of D.P.’s child, and Smith. Investigator Ridgeway notified D.P. that 

Smith’s DNA had been identified in D.P.’s 2006 rape kit. This was the first time law 

enforcement contacted D.P. since the 2006 rape. 

{¶18} Investigator Ridgeway and Investigator Timothy Clark (“Investigator 

Clark”) met with D.P. on March 15, 2015. D.P. identified Smith as her rapist from two 

photographic arrays that also contained a photograph of Jones. D.P. admitted to 
Investigator Ridgeway that she was smoking marijuana and drinking the night of the rape, 

described the events of that night, and stated that she never gave consent. 

{¶19} Investigator Ridgeway interviewed Smith who admitted to consensual sex 

with D.P. after being confronted with the DNA results. Smith also confirmed that he 

gave D.P. $20 and that his nickname is GG. Smith claimed surprise that D.P. was 14 

years of age at the time. Investigator Ridgeway secured a buccal swab from Smith for 

the Bureau of Criminal Investigation (“BCI”). 

{¶20} Investigator Ridgeway did not know why there was a delay in the 

investigation. According to East Cleveland police records, Detective Tiffany Cleveland 

was assigned to the case, but Investigator Ridgeway did not know what happened after 

that. 

{¶21} BCI Forensic Scientist Emily Feldenkris (“Feldenkris”) testified regarding 

two BCI analysis reports. The first report analyzed the rape kit that was submitted to 

BCI on September 13, 2013. The second report contained an analysis of the DNA 

standard obtained from Smith on March 27, 2015. 

{¶22} The tests results demonstrated that Smith was a major contributor to the 

vaginal, anal, and underwear DNA samples. Smith was also a major contributor to the 

DNA in the pubic hair combings. 

{¶23} Defense witness Jennifer Kirk Smith (“Kirk”), a registered nurse, rented 

the house on Orinoco from her mother. Smith was a close, long-time friend of Kirk’s 
brother. Smith rented a bedroom from Kirk for about a month at the time of the assault, 

while he waited for his new place to become available. 

{¶24} On January 8, 2006, Kirk was working at McDonald’s, and arrived home 

after work at about 1:00 a.m. She saw Smith and D.P. exiting the bedroom, and said that 

D.P. was “jovial” and seemed to be fine. D.P.’s clothes were not disheveled and her hair 

was in place. 

{¶25} D.P. told Kirk that she knew who she was, and the two exchanged 

pleasantries. Kirk did not know that D.P. was underage and thought that she was at least 

older than 15, “she looked like a young lady.” Kirk was with D.P. and Smith for about 

30 minutes and there was no evidence of any problems or discomfort. Kirk asked them 

to leave at that time. 

{¶26} Kirk stated there were no locks on the interior doors of the house, and 

there were times when the door knobs came “out of the doors, and we’ve had 

alternate ways of getting out. We took butter knives. We took coat hangers to get out 

of those doors. So we have came up [sic] with alternate ways.” Kirk was asked if she 

talked with the Smith family regarding this case. Kirk stated that she did not speak with 

any members of the Smith family about the case, and had not heard of money being 

offered to D.P. to refrain from testifying. 

{¶27} Smith renewed the motion to dismiss for preindictment delay at the close 

of the state’s case and after Smith presented his defense. The motion was denied by the 

trial court both times. 
{¶28} The trial court found Smith guilty of all charges. Smith was sentenced on 

September 3, 2015. The rape charges merged; however, the trial court determined that 

the rape and kidnapping were not allied offenses. The trial court stated that the removal 

of the door knob constituted the kidnapping, and the rape followed. The state elected to 

proceed under the forcible rape charge, R.C. 2907.02(A)(2). 

{¶29} During sentencing, the trial court addressed the factors demonstrating 

compliance with the principles, policy and purpose of R.C. 2929.11(A), and seriousness 

factors under R.C. 2929.12(B). The court also considered Smith’s criminal record, 

beginning with his juvenile records, and his felony record to the date of sentencing. 

Smith was sentenced to ten years on each count, to be served concurrently. Smith was 

also subject to five years postrelease control (“PRC”), accompanied by an explanation by 

the trial court of the ramifications of failure to comply with the PRC conditions. Smith 

was also classified as a sexually oriented offender under Megan’s Law. 

II. ASSIGNMENTS OF ERROR

{¶30} Smith proffers four assignments of error: 

1. The trial court erred in not granting the defendant’s motion to 

dismiss the indictment as a result of the prejudice he suffered from 

the preindictment delay without just cause violating his due process 

rights and his right to a fair trial. 

2. The defendant’s convictions were against the manifest weight of the 

evidence. 

3. The trial court erred in finding that rape and kidnapping were not 

allied offenses of similar import. 

4. The sentence imposed upon the defendant was contrary to law. 
III. LAW AND ANALYSIS

A. Motion for Preindictment Delay

{¶31} We begin with Smith’s first assigned error claiming prejudice due to 

preindictment delay. We find this error to be without merit. 

{¶32} “Decisions to grant or deny a motion to dismiss on grounds of 

preindictment delay are reviewed for an abuse of discretion.” State v. Darmond, 135 

Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 33, citing State v. Parson, 6 Ohio 

St.3d 442, 445, 453 N.E.2d 689 (1983); State v. Jackson, 8th Dist. Cuyahoga No. 102394, 

2015-Ohio-4274, ¶ 3. 

{¶33} Great deference is afforded to the trial court’s findings of fact in 

determining whether to grant or deny a motion to dismiss for preindictment delay. 

However, an appellate court applies a de novo standard of review to the legal issues. 

State v. Smith, 8th Dist. Cuyahoga No. 100501, 2014-Ohio-3034, ¶ 23, citing State v. 

Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 45. 

{¶34} Where a delay in initiating an indictment is unjustifiable, and the delay 

causes actual prejudice to the defendant’s right to a fair trial, the Due Process Clause 

affords the defendant additional protection. See State v. Luck, 15 Ohio St.3d 150, 472 

N.E.2d 1097 (1984), paragraph two of the syllabus. This is true even though the 

applicable statute of limitations has not expired. State v. Jones, Slip Opinion No. 

2016-Ohio-5105. 
{¶35} Smith relies on this court’s en banc decision in State v. Jones, 

2015-Ohio-2853, 35 N.E.3d 606 (8th Dist.), where we considered the reasons for the 

preindictment delay prior to determining actual prejudice. However, the Ohio Supreme 

Court recently reversed that decision in Jones, Slip Opinion No. 2016-Ohio-5105. The 

court determined that actual prejudice is the first step in establishing unjustifiable 

preindictment delay: 

[W]e have firmly established a burden-shifting framework for analyzing a 

due-process claim based on preindictment delay. Once a defendant 

presents evidence of actual prejudice, the burden shifts to the state to 

produce evidence of a justifiable reason for the delay. State v. Whiting, 84 

Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998); State v. Adams, 144 Ohio 

St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 99. 

Jones at ¶ 13. 

{¶36} The analysis requires scrutiny of: 

[T]he claim of prejudice vis-à-vis the particular evidence that was lost or 

unavailable as a result of the delay and, in particular, considered the 

relevance of the lost evidence and its purported effect on the defense. See, 

e.g., State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 

52. 

Jones at ¶ 23. Thus, in determining whether Smith has demonstrated actual prejudice, 

we look at the evidence that was lost or unavailable to Smith as the result of the delay. 

Id. 

1. Actual Prejudice 

{¶37} The DNA results confirmed that Smith engaged in intercourse with D.P. 

D.P.’s statements to the hospital, police, and investigators were consistent. Smith 

admitted to the act, though he claimed he did not know D.P.’s age, and that the 
intercourse was consensual. Smith also mentioned that he should not have taken the $20 

back. 

{¶38} Smith argues that, if the action had been initiated in 2006, there were 

“possibly” unidentified witnesses that were never contacted by police or refused to show 

at trial. “Perhaps” Smith could have been interviewed and evidence collected that 

corroborated Smith’s claim of consensual sex with D.P. But substantial, actual prejudice 

is not about possibilities. There is nothing in the record to support that exculpatory 

evidence was lost, or that attempts were made to contact witnesses who could not be 

located or were unable to remember. 

{¶39} There were no witnesses in the bedroom during the act. Smith presented 

the testimony of Kirk, who testified that D.P. seemed fine and was not upset or 

disheveled. Kirk was in their presence for 30 minutes and observed no signs of stress or 

conflict. Kirk confirmed that the door knobs in the older residence could be pulled out, 

and that another means of opening the door, such as a table knife blade, would be 

inserted to open the door. Kirk was not at home at the time of the assault and could not 

say what happened prior to her arrival. Kirk testified that Smith and D.P. were walking 

out of the bedroom when she arrived. Though D.P. testified that she arrived at the house 

with Roselyn, Kirk did not testify that anyone else was present. 

{¶40} We do not find that “witnesses have disappeared, memories have faded, 

and people are no longer available that would have been available had this case been 

prosecuted diligently,” as Smith argued before the trial court in 
support of his motion. We agree with the trial court’s finding that Smith failed to 

demonstrate actual prejudice or introduce evidence substantiating his position. 

{¶41} Smith has failed to satisfy the first prong of the test; therefore, the burden 

does not shift and our analysis is complete. Smith’s first assigned error is without merit. 

B. Manifest Weight 

{¶42} The second assigned error asserts that the verdict is against the manifest 

weight of the evidence. A manifest weight inquiry considers whether the evidence was 

substantial enough for a jury to reasonably conclude that all of the elements of the alleged 

crime have been proved beyond a reasonable doubt. We sit “as a ‘thirteenth juror.’” 

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Tibbs v. 

Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). We review the entire 

record, consider the credibility of the witnesses, weigh the evidence and all reasonable 

inferences, and determine whether the jury clearly lost its way and created such a manifest 

miscarriage of justice that the conviction must be reversed and a new trial ordered. State 

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 

{¶43} The weight 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. During a bench trial, unless it affirmatively appears to the contrary, there is a 

presumption that the court considered only reliable, relevant and competent evidence. 

State v. White, 15 Ohio St.2d 146, 151, 239 N.E.2d 65 (1968); State v. Andre, 8th Dist. 

Cuyahoga No. 101023, 2015-Ohio-17, ¶ 27. While reversal from a bench trial requires 
only a majority concurrence, it is reserved for the ““‘exceptional case in which the 

evidence weights heavily against the conviction.’”” Id. at ¶ 40, quoting Thompkins at 387, 

quoting Martin, supra. 

{¶44} Smith posits that the sole fact in dispute was whether the sex was 

consensual. To this end, Smith argues that, since he was 21 years old, and D.P. was 14 

years old at the time of the offense, Smith should have been convicted of unlawful sexual 

conduct with a minor under R.C. 2907.04, and not rape. 

{¶45} Smith was convicted of: (1) R.C. 2907.02(A)(2), vaginal intercourse 

with D.P. by purposely compelling her to submit by force or threat of force; (2) 

R.C. 2907.02(A)(1)(c), vaginal intercourse where Smith knew that D.P.’s ability to resist 

or consent was substantially impaired because of a mental or physical condition; and (3) 

R.C. 2905.01(A)(4), restraint of D.P.’s liberty for the purpose of engaging in sexual 

activity against her will, with a sexual motivation specification. Unlawful sex with a 

minor under R.C. 2907.04 does not require proof of force or threat, but requires proof of 

sexual conduct where offender knew, or was reckless in knowing, that the victim’s age 

was 13 to 16 years of age. 

{¶46} While D.P. testified that she was raped and upset when leaving the 

bedroom, Kirk testified that D.P. was fine and socialized with her for 30 minutes. The 

trial court, as factfinder, was in the best position to observe the witnesses and weigh the 

evidence in resolving conflicting testimony. State v. DeHaas, 10 Ohio St.2d 230, 227 

N.E.2d 212 (1967). 
{¶47} The trial court described the evidence considered in reaching a finding: 

Now, this court, after a careful and deliberate review of all the evidence 

finds that the State of Ohio has presented evidence that rises to the 

acceptable legal standard of guilty beyond a reasonable doubt as to Count 

One, rape, as to Count Two, rape, and as to Count Three, kidnapping. 

I reviewed the evidence here, and I evaluated the credibility of the victim 

[D.P.], along with the testimony of Tina Smith, Ferrel Ridgeway, and 

Jennifer Kirk Smith as fact witnesses in this matter. And reviewing that 

evidence along with the DNA evidence that was presented through Emily 

Feldenkris, John Bechtel, Detective Rhonda Gray, and Sergeant Mike 

DeLisle, I believe that this verdict is consistent with the evidence that I 

heard and the exhibits that I reviewed, specifically exhibit Nos. 1-8, 10, and 

10-13. 

(Tr. 284 and 285.) 

{¶48} We do not find that this is the exceptional case that weighs heavily against 

conviction, Andre, 8th Dist. Cuyahoga No. 101023, 2015-Ohio-17, at ¶ 40, or that the 

presumption that the court considered only reliable, relevant and competent evidence has 

been overcome. White, 15 Ohio St.2d at 151, 239 N.E.2d 65. The second assignment of 

error is overruled. 

C. Allied Offenses

{¶49} Smith argues in the third assignment of error that the convictions for rape 

and kidnapping are allied offenses. We agree. 

{¶50} R.C. 2941.25, known as the merger statute, codifies the constitutional 

protections afforded under the Double Jeopardy Clause of the Fifth Amendment to the 

United States Constitution. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 

892, ¶ 12. “This court reviews the trial court’s decision de novo, but must give deference 
to the factual findings made by the trial court.” State v. Echols, 8th Dist. Cuyahoga No. 

102504, 2015-Ohio-5138, ¶ 37, citing State v. Williams, 134 Ohio St.3d 482, 

2012-Ohio-5699, 983 N.E.2d 1245, ¶ 25-28. 

{¶51} The Ruff court expanded on the analysis set forth in prior case law in 

determining whether the offenses are allied: 

Rather than compare the elements of two offenses to determine whether 

they are allied offenses of similar import, the analysis must focus on the 

defendant’s conduct to determine whether one or more convictions may 

result because an offense may be committed in a variety of ways and the 

offenses committed may have different import. No bright-line rule can 

govern every situation. 

As a practical matter, when determining whether offenses are allied 

offenses of similar import within the meaning of R.C. 2941.25, courts 

must ask three questions when defendant’s conduct supports multiple 

offenses: (1) Were the offenses dissimilar in import or significance? (2) 

Were they committed separately? and (3) Were they committed with 

separate animus or motivation? An affirmative answer to any of the above 

will permit separate convictions. The conduct, the animus, and the import 

must all be considered. 

(Emphasis added.) Ruff at ¶ 30-31. 

{¶52} We recently conducted a Ruff inquiry involving a similar fact situation in 

Echols, supra. 

{¶53} Echols involved two counts of rape and two counts of kidnapping, 

occurring on two different dates with different victims. Id. at ¶ 2. The first incident was 

on June 7, 1994. Victim K.C. was walking home when: (1) Echols jumped out from a 

tree, (2) held a knife to the victim’s throat, (3) threatened her, (4) moved her from the 

sidewalk to behind a tree, and (4) raped her. Id. at ¶ 3. 
{¶54} M.M., the second victim, was accosted on May 8, 1999, but was unable to 

testify by the time of trial as she was murdered in 2007. According to medical records 

the night of the offense, M.M. was waiting at a bus stop when a car pulled up, and a man 

threatened to hurt her if she did not get into the car. Upon entering, she was hit in the 

head with a brick, and raped. Id. at ¶ 4. 

{¶55} The DNA kits were tested, incidents investigated and charges filed on 

December 6, 2013. A jury found Echols guilty of two counts of rape 

(R.C. 2907.02(A)(2)), and two counts of kidnapping (R.C. 2905.01(A)(4)). The court 

determined that the counts did not merge. Echols was sentenced to 11 years for rape and 

ten years for kidnapping for the 1994 offense, and ten years each for rape and kidnapping 

on the second. 

{¶56} It is axiomatic that the Ohio kidnapping statute (R.C. 2905.01), does not 

require movement of the victim. The act of restraint by “force, threat, or deception” is 

sufficient. R.C. 2905.01; Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, ¶ 

38, citing State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979). “[I]mplicit within 

every forcible rape is a kidnapping.” Logan at 130. Pursuant to Ruff, our inquiry does 

not stop there. We look at the three factors cited in considering whether each offense: (1) 

caused separate identifiable harm (2) was committed separately, and (3) was committed 

with separate animus or motivation. An affirmative answer to one question results in 

denial of the merger. Id. at ¶ 25. 
{¶57} We determined, in applying Ruff to the offenses involving K.C., that the 

offenses were, in fact, allied. 

When analyzing similar import, the [Ruff] court focused on separate and 

identifiable harm similar to its prior holding in Logan. [Ruff] at ¶ 26. Here, 

the evidence presented was that the asportation of K.C. was slight. K.C. 

was moved from the sidewalk to behind a tree next to the sidewalk. There 

was no increased risk of harm associated with this movement apart from 

that associated with the sexual assault. This movement was done for the 

purpose of raping K.C. with no separate, identifiable harm. The movement 

was done in conjunction with the rape, and was not separated by any 

significant length of time or distance. 

Echols at ¶ 38. 

{¶58} We contrasted our findings as to K.C. with Echols’s conduct regarding 

M.M. Echols forced M.M. into his vehicle, hit her in the head with a brick, drove away 

from the area, and raped her. “The trial court’s finding that this movement was 

significant and encompassed an increased risk of harm is supported. The asportation of 

M.M. constituted a separate crime for which appellant may be separately punished.” Id. 

at ¶ 40. Compare State v. Keeler, 8th Dist. Cuyahoga No. 101748, 2015-Ohio-1831, ¶ 50 

(the kidnapping was a long chain of events that were not merely incidental to the rape so 

counts did not merge). 

{¶59} We therefore look at the facts surrounding Smith’s conviction. D.P. 

testified that Smith called her to enter the bedroom as she exited the restroom. D.P. 

entered the bedroom voluntarily, sat on the bed, and smoked marijuana with Smith, as she 

had been doing throughout the day. According to Smith’s witness Kirk, there were no 

locks on the bedroom doors. 
{¶60} D.P. said that, when she stood up to leave, Smith removed the door knob, 

turned to D.P., told her that they were going to have sex, and began removing her clothes. 

 D.P. said she told Smith “no,” maybe twice. After the intercourse, Smith replaced the 

door knob, and the two exited the bedroom. 

{¶61} The facts demonstrate that the removal of the door knob (kidnapping) was 

for the purpose of perpetrating the sexual act that immediately followed. “The 

movement was done with the purpose of raping [the victim] with no separate, identifiable 

harm.” Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, at ¶ 38. In addition, 

“the movement was done in conjunction with the rape and was not separated by any 

significant length of time or distance.” Id. The kidnapping and rape were committed 

simultaneously and with the same animus. 

{¶62} Thus, the kidnapping and rapes were allied offenses, and Smith may only 

be sentenced for one offense. The third assignment of error is sustained. 

D. Sentence is Contrary to Law 

{¶63} The appellate court’s standard for review pursuant to R.C. 2953.08(G)(2) 

for felony sentencing is whether the court: 

“[C]learly and convincingly” finds that (1) “the record does not support the 

sentencing court’s findings under R.C. 2929.14(C)(4),” or that (2) “the 

sentence is otherwise contrary to law,” then we “may increase, reduce, or 

otherwise modify a sentence * * * or [a reviewing court] may vacate the 

sentence and remand the matter to the sentencing court for resentencing.” 

State v. Ziska, 8th Dist. Cuyahoga No. 102798, 2016-Ohio-390, ¶ 6, quoting 

R.C. 2953.08. 
{¶64} Smith argues here that the trial court erred by sentencing him 

under H.B. 86 instead of the law in effect in 2006. As a result, Smith argues that his 

sentence is contrary to law. We disagree. 

{¶65} The Ohio Supreme Court recently addressed this issue in State v. Thomas, 

Slip Opinion No. 2016-Ohio-5567 (“Thomas II”), affirming this court’s decision in State 

v. Thomas, 8th Dist. Cuyahoga No. 101202, 2015-Ohio-415 (“Thomas I”). Thomas 

committed rape and kidnapping offenses in 1993. He was convicted in 2011 and 

argued that he should receive the benefit of the shorter sentencing available under H.B. 

86. The state argued that H.B. 86 was merely an extension of S.B. 2, so that Thomas did 

not receive that benefit, and the trial court sentenced accordingly. 

{¶66} On appeal, we agreed with Thomas that H.B. 86 applied. The Ohio 

Supreme Court affirmed our findings. We observed in Thomas I that: 

[I]n S.B. 2 the General Assembly specifically declared that all defendants 

who committed crimes on or before July 1, 1996 had to be sentenced under 

the law in existence at the time of the offense, “notwithstanding division 

(B) of section 1.58 of the Revised Code.” Section 3, Am.Sub.S.B. No. 269, 

146 Ohio Laws, Part IV, 11099, amending Section 5 of S.B. 2. See State v. 

Rush, 83 Ohio St.3d 53, 697 N.E.2d 634 (1998). 

However, H.B. 86 does not incorporate this exclusionary language. On the 

contrary, Sections 3 and 4 of the act expressly provide that certain specified 

offenses and certain sentencing provisions are subject to H.B. 86 sentencing 

amendments even though the subject offenses were committed prior to its 

effective date. As relevant here, Section 4 states, in relevant part: 

SECTION 4. The amendments to * * * division (A) of section 2929.14 of 

the Revised Code that are made in this act apply to a person penalized * * * 

under th[at] section[ ] on or after the effective date of this section and to a 

person to whom division (B) of section 1.58 of the Revised Code makes the 

amendments applicable. 
Thomas I at ¶ 42-43. “In other words, if the provisions of H.B. 86 reduced the potential 

sentence for an offense, then R.C. 1.58(B) gives offenders not yet sentenced the benefit of 

the reduced sentence.” Thomas II at ¶ 14. 

{¶67} Smith’s offense was committed January 8, 2006, when S.B. 2 was in 

effect. His conviction and sentencing occurred post H.B. 86. The range for his offense 

under S.B. 2 was three to ten years. The range under H.B. 86 is three to 11 years. Smith 

was sentenced to ten years imprisonment which is within the S.B. 2 range. Sentencing 

under H.B. 86 would not reduce the potential sentence for Smith’s offense. In essence, 

H.B. 86 does not apply. 

{¶68} After reviewing the record, however, it is evident that the trial court did, in 

fact, apply the H.B. 86 sentencing provisions in imposing Smith’s sentence. During the 

sentencing hearing, the trial court explained that it found Smith “guilty of rape on Count 

1, guilty of Count 2, rape, and guilty of kidnapping with [a] sexual motivation 

[specification]. All are felonies of the first degree with the potential sentence of 3 to 11 

years[.]” (Emphasis added.) (Tr. 288.) 

{¶69} In imposing Smith’s sentence, the trial court should have applied the three to 

ten year statutory range under S.B. 2, rather than the three to 11 

year range under H.B. 86. Nevertheless, Smith’s ten-year prison sentence is within the 

S.B. 2 statutory range for felonies of the first degree. Had the trial court imposed an 

11-year sentence, however, the sentence would be contrary to law. 
{¶70} Based on the foregoing analysis, we hereby instruct the trial court to apply 

the three- to ten-year statutory range under S.B. 2, rather than the three- to 11-year 

statutory range under H.B. 86, at resentencing. 

IV. CONCLUSION 

{¶71} The trial court erred in failing to merge the rape and kidnapping counts. 

 A new hearing must be conducted where the state shall select the charge for which the 

court will impose sentence. 

{¶72} The convictions are affirmed, the sentences vacated, and the matter is 

remanded to the trial court for the limited purpose of resentencing pursuant to S.B. 2 

consistent with this opinion. 

It is ordered that appellant and appellee share the 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 common 

pleas court 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. 

__________________________________________ 

ANITA LASTER MAYS, JUDGE 

PATRICIA ANN BLACKMON, P.J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR