[Cite as State v. Jackson, 2013-Ohio-5371.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

STATE OF OHIO, : 

 CASE NO. CA2013-04-037 

 Plaintiff-Appellee, : 

 O P I N I O N 

 : 12/9/2013 

 - vs - 

 : 

CHARLES R. JACKSON II, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

Case No. 2013CR00002 

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

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

The Farrish Law Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati, 

Ohio 45202, for defendant-appellant 

 

 M. POWELL, J.

{¶ 1} Defendant-appellant, Charles R. Jackson II, appeals his sentence in the 

Clermont County Court of Common Pleas for kidnapping and aggravated burglary. 

{¶ 2} Appellant was indicted in January 2013 on one count each of aggravated 

burglary, aggravated robbery, kidnapping, and tampering with evidence. The state alleged 

that around noon on December 27, 2012, appellant went to the residence of a New 
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Richmond, Ohio woman, demanding money and "drugs." While in the house, appellant 

ordered the victim to lie on the floor, threatened to shoot her if she did not comply with his 

orders, tied her arms together behind her back, and tied her feet together with electrical tape. 

While appellant was rummaging around in the victim's bedroom for valuables, the victim was 

able to free one of her arms. Upon discovering that the victim had partially freed herself, 

appellant tied her hands and feet in a hogtied position with a strand of Christmas lights. After 

appellant left, and while still in the hogtied position, the victim used her feet to turn off the 

stove which had been heating up her lunch. The victim remained in the hogtied position until 

her son discovered her two hours later. The victim was 71 years old; appellant was 26 years 

old and dating the victim's granddaughter. Appellant stole $200 from the victim. 

{¶ 3} On February 26, 2013, appellant pled guilty to one count of aggravated burglary 

in violation of R.C. 2911.11(A)(1), and one count of kidnapping in violation of R.C. 

2905.01(B)(2) (both first-degree felonies). During the plea hearing, the parties orally 

stipulated that both offenses were "considered for purposes of the plea at least to be 

separate offenses which could result in a separate sentence on each case." 

{¶ 4} A sentencing hearing was held in March 2013. During the hearing, the state 

argued that the aggravated burglary and kidnapping offenses should not be merged because 

the aggravated burglary was committed and completed before the kidnapping. Defense 

counsel remained silent on the issue. Based upon the facts presented regarding appellant's 

conduct at the victim's residence, the trial court found that the offenses were not allied 

offenses of similar import as "each offense was committed with a separate animus." The trial 

court sentenced appellant to 11 years in prison for the aggravated burglary and 11 years in 

prison for the kidnapping, and ordered that the sentences be served consecutively. 

{¶ 5} Appellant appeals, raising one assignment of error: 

{¶ 6} THE TRIAL COURT ERRED AS A MATTER OF LAW IN SENTENCING 
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APPELLANT. 

{¶ 7} Appellant first argues the trial court erred in sentencing him for both aggravated 

burglary and kidnapping because the offenses are allied offenses of similar import. 

{¶ 8} At the outset, we note that appellant has waived all but plain error by failing to 

raise any allied offense objection with the trial court. State v. Seymore, 12th Dist. Butler Nos. 

CA2011-07-131 and CA2011-07-143, 2012-Ohio-3125, ¶ 18. However, the imposition of 

multiple sentences for allied offenses of similar import amounts to plain error, whether 

ordered to be served consecutively or concurrently. State v. Underwood, 124 Ohio St.3d 

365, 2010-Ohio-1, ¶ 31. We will therefore review appellant's allied offense argument for 

plain error. State v. Pearce, 12th Dist. Clermont No. CA2013-01-001, 2013-Ohio-3484, ¶ 14. 

{¶ 9} R.C. 2941.25 prohibits the imposition of multiple punishments for the same 

criminal conduct and provides that: 

(A) Where the same conduct by defendant can be construed to 

constitute two or more allied offenses of similar import, the 

indictment or information may contain counts for all such 

offenses, but the defendant may be convicted of only one. 

(B) Where the defendant's conduct constitutes two or more 

offenses of dissimilar import, or where his conduct results in two 

or more offenses of the same or similar kind committed 

separately or with 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 clarified the test used to determine whether offenses are allied offenses of similar 

import under R.C. 2941.25. State v. Davis, 12th Dist. Butler No. CA2012-09-194, 2013-Ohio2637, ¶ 9. Under this test, courts must first determine "whether it is possible to commit one 

offense and commit the other with the same conduct." (Emphasis sic.) Johnson at ¶ 48. It 

is not necessary that the commission of one offense will always result in the commission of 

the other. Id. Rather, the question is simply whether it is possible for both offenses to be 
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committed by the same conduct. Id.

{¶ 11} If it is possible to commit both offenses with the same conduct, courts must 

next determine whether the offenses were in fact committed by the same conduct, that is, by 

a single act, performed with a single state of mind. Id. at ¶ 49. If so, the offenses are allied 

offenses of similar import and must be merged. Id. at ¶ 50. On the other hand, if the 

offenses are committed separately or with a separate animus, the offenses will not merge. 

Id. at ¶ 51. 

{¶ 12} Appellant was charged with aggravated burglary in violation of R.C. 

2911.11(A)(1). The statute prohibits a person from 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. 

{¶ 13} Appellant was also charged with kidnapping in violation of R.C. 2905.01(B)(2). 

The statute prohibits a person from 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. The state concedes, and we have held, that it is possible to commit both 

of these offenses with the same conduct. State v. Ozevin, 12th Dist. Clermont No. CA2012-

06-044, 2013-Ohio-1386, ¶ 12 (Ozevin was convicted of violating the same statutory 

provisions as appellant). 

{¶ 14} We next determine whether appellant committed the offenses by way of a 

single act with a single state of mind. 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 

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 
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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. 

State v. Logan, 60 Ohio St.2d 126 (1979), paragraph one of the syllabus. These guidelines 

appear to remain valid in the wake of Johnson. Ozevin at ¶ 13. 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. Seymore, 2012-Ohio-3125 at ¶ 24. 

{¶ 15} Here, the aggravated burglary and kidnapping offenses were committed by 

separate acts. With regard to the aggravated burglary, the bill of particulars stated that 

"[a]fter gaining access to her home, the defendant threatened to shoot [the victim] if she did 

not comply with his commands." During the sentencing hearing, the state explained that 

after appellant walked into the residence through the back door wearing a ski mask, and after 

the victim refused to lie on the floor as ordered, appellant "told her, 'If you fight I can make it 

worse. I can shoot you.'" As he said this, appellant "motioned his right hand toward his hip." 

The victim "felt as if he had a gun so she complied with his commands." Accordingly, 

appellant committed and completed the aggravated burglary when he gained access to the 

victim's home and threatened her life. See Seymore. 

{¶ 16} The kidnapping, on the other hand, was committed after the completion of the 

aggravated burglary when appellant first restrained the victim by separately tying her hands 

and feet with electrical tape, when he continued to restrain her by tying her hands and feet 

together in a hogtied position, and when he prolonged the restraint by not freeing her when 

he left her house. As noted earlier, the victim remained in the hogtied position for two hours 

until her son discovered her. 
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{¶ 17} The aggravated burglary and kidnapping offenses were also committed with 

separate animus. As the trial court found, the restraint, which lasted for over two hours, was 

prolonged and serious, "subjected the victim to a substantial increase of physical harm" (the 

victim remained restrained in her house after appellant fled the scene and was hospitalized 

as a result of her injuries), and "clearly increased her sense of terror, irrespective of [the] 

initial invasion into the home." In addition, as we recently stated: 

[A]ppellant's immediate motive for prolonging his restraint of the 

victim's liberty could not have been the same as his motive for 

the commission of the aggravated burglary, which was 

completed when he threatened the victim * * *. Instead, the 

extent to which appellant prolonged his restraint of the victim's 

liberty * * * suggest[s] the separate animus of facilitating flight 

following appellant's other felonies or concealing his criminal 

wrongdoing. 

State v. Schleehauf, 12th Dist. Clermont No. CA2012-11-079, 2013-Ohio-3204, ¶ 16. See 

also State v. Ramirez, 12th Dist. Butler No. CA2010-11-305, 2011-Ohio-6531 (the prolonged 

restraint was evidence of a separate animus for kidnapping where the overall ordeal suffered 

by the victim at the hands of the defendant lasted one hour and 20 minutes). 

{¶ 18} We find that under the facts and circumstances of this case, the aggravated 

burglary and kidnapping offenses are not allied offenses of similar import because the 

offenses were committed separately and with a separate animus. Schleehauf. The trial 

court, therefore, properly sentenced appellant for both offenses under Johnson, 2010-Ohio6314, and R.C. 2941.25. 

{¶ 19} As noted earlier, the parties also stipulated that the offenses were separate 

offenses for which separate sentences could be imposed. There is authority that such a 

stipulation may be considered by a sentencing court in resolving whether offenses are allied 

offenses of similar import. State v. Rogers, 8th Dist. Cuyahoga Nos. 98292 and 98584 

through 98590, 2013-Ohio-3235, ¶ 44 (indicating that prosecutors may "enter into a 
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stipulation on what offenses are committed with separate conduct or a distinct animus"). In 

view of our analysis above, we need not determine whether the parties' stipulation here is 

dispositive of this issue. 

{¶ 20} Appellant also argues the trial court erred in imposing consecutive sentences 

because the court failed to make the required statutory findings under R.C. 2929.14(C). 

Appellant further asserts that given his substance abuse and mental health history and his 

genuine remorse, it is clear the trial court "did not truly consider R.C. 2929.11 and R.C. 

2929.12 before imposing a prison sentence." 

{¶ 21} We review appellant's consecutive sentences to determine whether the 

imposition of those sentences is clearly and convincingly contrary to law. State v. Crawford, 

12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6-7. A sentence is not clearly 

and convincingly contrary to law where the record supports the trial court's findings under 

R.C. 2929.14(C)(4) and where the trial court considers the purposes and principles of R.C. 

2929.11, as well as the factors listed in R.C. 2929.12, properly applies postrelease control, 

and sentences appellant within the permissible statutory range. See id. at ¶ 7, 9; R.C. 

2953.08(G)(2).1 

{¶ 22} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step 

analysis and make certain findings before imposing consecutive sentences. State v. Dillon, 

12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 9. Specifically, the trial court must 

find that (1) the consecutive sentence is necessary to protect the public from future crime or 

to punish the offender; (2) consecutive sentences are not disproportionate to the seriousness 

of the offender's conduct and to the danger the offender poses to the public; and (3) one of 

the following applies: 

 

1. Appellant does not dispute that the trial court sentenced him within the statutory range, nor does he dispute 

that the trial court properly applied postrelease control in this case. 
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(a) The offender committed one or more of the multiple offenses 

while the offender was awaiting trial or sentencing, was under a 

sanction imposed pursuant to section 2929.16, 2929.17, or 

2929.18 of the Revised Code, or was under post-release control 

for a prior offense. 

(b) At least two of the multiple offenses were committed as part 

of one or more courses of conduct, and the harm caused by two 

or more of the multiple offenses so committed was so great or 

unusual that no single prison term for any of the offenses 

committed as part of any of the courses of conduct adequately 

reflects the seriousness of the offender's conduct. 

(c) The offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from 

future crime by the offender. 

R.C. 2929.14(C)(4); Crawford at ¶ 13. 

{¶ 23} The trial court is not required to give reasons explaining these findings, nor is 

the court required to recite any "magic" or "talismanic" words when imposing consecutive 

sentences. Crawford, 2013-Ohio-3315 at ¶ 14. However, it must be clear from the record 

that the trial court actually made the required statutory findings. Id. 

{¶ 24} In imposing consecutive sentences, the trial court explicitly stated, "I do believe 

that the consecutive structure is necessary to protect the public from future crime, but also to 

punish." Continuing, the trial court further stated: 

I do not believe that the consecutive sentences are 

disproportionate to the seriousness of your conduct and the 

danger that you pose to the public. These were again part of 

separate acts, separate intents, and I do not believe that a single 

prison term for any of these offenses would adequately reflect 

the seriousness of the conduct in this particular case. 

The trial court later memorialized these findings within its sentencing entry. 

{¶ 25} The trial court also noted the "great and unusual" harm resulting from the 

offenses, based upon the fact that appellant "had been stalking" the victim because he knew 

she was "incredibly vulnerable," the terror to which he subjected her both during his crimes 
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and thereafter (the victim remained hogtied for over two hours until her son discovered her), 

and the significant psychological harm the victim suffered and continues to suffer as a result 

of appellant's crimes. The court stated, "it's beyond the pale what was done in this particular 

case," and found "this case to be as serious as any case that I've seen short of someone 

actually being killed." 

{¶ 26} Contrary to appellant's assertion, we find that the trial court properly complied 

with the dictates of the newly amended R.C. 2929.14(C)(4) and made all the required 

findings to support the imposition of consecutive sentences. See State v. Smith, 12th Dist. 

Clermont No. CA2012-01-004, 2012-Ohio-4523. The trial court, therefore, did not err by 

imposing consecutive sentences. 

{¶ 27} With regard to R.C. 2929.11 and 2929.12, contrary to appellant's claim, the 

sentencing entry specifically states that the trial court "reviewed and considered the purposes 

and principles of sentencing under R.C. 2929.11 and 2929.12" before reaching its decision. 

The trial court also considered appellant's presentence investigation report and a sentencing 

memorandum submitted by defense counsel, and allowed appellant to present mitigating 

evidence during the sentencing hearing. As discussed above, the trial court considered the 

serious nature of the offenses. It also rejected appellant's explanation that his crimes were 

fueled by drugs. 

{¶ 28} In light of the foregoing, we find that the trial court did not err in sentencing 

appellant to 22 years in prison for aggravated burglary and kidnapping. Appellant's 

assignment of error is overruled. 

{¶ 29} Judgment affirmed. 

 HENDRICKSON, P.J., and S. POWELL, J., concur.