¶1concurring in part and dissenting in part.
¶2{¶ 406} I dissent only from the portion of the majority opinion regarding the sufficiency of the evidence of kidnapping in this case. In proposition of law IX, Davis challenges the sufficiency of the evidence to support the kidnapping specification, R.C. 2929.04(A)(7), and the underlying kidnapping charge, R.C. 2905.01(A)(4).
¶3{¶ 407} I would hold that the state failed to present sufficient evidence of the “significant restraint or movement, not just that incident to the killing itself’ required to prove kidnapping. State v. Cook (1992), 65 Ohio St.3d 516, 524, 605 N.E.2d 70. First, there is insufficient evidence of movement to support kidnapping. The evidence suggests that Davis gained entry into Sheeler’s apartment because she knew him. Sheeler’s body was found inside her bedroom. However, there is no evidence that Davis moved Sheeler to her bedroom before killing her.
¶4{¶ 408} Second, there appears to be insufficient evidence of restraint beyond that necessary to kill Sheeler. There is no evidence that Sheeler was tied up before she was killed. Admittedly, the victim’s torn panties above her breasts and the presence of semen on the oral swabs suggest that Sheeler was orally raped or sexually assaulted. However, no evidence shows whether Sheeler was orally raped or sexually assaulted before she died.
¶5{¶ 409} Based on the .foregoing, proposition IX has merit. Thus, I would reverse Davis’s convictions on the kidnapping charge and the separate kidnapping specification because of insufficient evidence. Reversal of Davis’s kidnapping specification does not require that his death sentence be vacated.