[Cite as State v. Smith,
2023-Ohio-866.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-22-1141
Appellee Trial Court No. CR0202002229
v.
Robert Witcher Smith DECISION AND JUDGMENT
Appellant Decided: March 17, 2023
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lorrie J. Rendle, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
…
MAYLE, J.
{¶ 1} Defendant-appellant, Robert Witcher Smith, appeals the May 18, 2022
judgment of the Lucas County Court of Common Pleas, convicting him of gross sexual
imposition and abduction, and sentencing him to consecutive prison terms of 18 months
and 36 months, respectively. For the following reasons, we affirm the trial court
judgment.
I. Background
{¶ 2} On October 7, 2020, Robert Witcher Smith was indicted on one count of
rape, a violation of R.C. 2907.02(A)(2) and (B), and kidnapping, a violation of R.C.
2905.01(A)(4) and (C)—both first degree felonies. On April 4, 2022, Witcher Smith
entered a plea of guilty to the lesser-included offenses of gross sexual imposition, a
violation of R.C. 2907.05(A)(1), a fourth-degree felony; and abduction, a violation of
R.C. 2905.02(A)(1), a third-degree felony. The trial court sentenced him to a prison term
of 18 months on the gross sexual imposition charge and 36 months on the abduction
charge, to be served consecutively. His conviction and judgment are memorialized in a
judgment entered on May 18, 2022.
{¶ 3} At the sentencing hearing, the trial court recited the facts of this case as
articulated in a police report. As summarized by the court, Witcher Smith lured a 14-
year-old into his vehicle; the report suggests that he may have even grabbed her by the
sleeve and pulled her into the vehicle. He drove her “some distance,” and “[p]ulled into
an alley.” “[O]ne or more sex acts occurred between the Defendant and the victim,” then
Witcher Smith phoned a second man and told him where he was. The second man
arrived and entered the vehicle, and Witcher Smith left the vehicle for a short time,
during which time the second man also sexually assaulted the victim. After the second
assault was completed, Witcher Smith returned to the vehicle and got back in. The two
men then drove the victim to a store “some distance away” and released her.
2.
{¶ 4} Before sentencing, Witcher Smith filed a sentencing memorandum, urging
the trial court to find that his convictions should merge for purposes of sentencing—
importantly, this memorandum did not contain a synopsis of the facts supporting merger,
other than to tersely state that the abduction was sexually motivated and the abduction
and sexual assault occurred “in relatively quick succession.” He raised this argument at
sentencing as well, again, offering no specific facts. The state did not respond in writing
or contest Witcher Smith’s contention that the convictions must merge, however, the trial
court had conducted its own research and determined that under certain circumstances,
gross sexual imposition and abduction are not subject to merger. It concluded that
merger was not appropriate in this case.
{¶ 5} Witcher Smith appealed. He assigns the following error for our review:
THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT IN FINDING THAT GROSS SEXUAL IMPOSITION AND
ABDUCTION ARE NOT ALLIED OFENSES FOR PURPOSES OF
SENTENCING[.]
II. Law and Analysis
{¶ 6} In his sole assignment of error, Witcher Smith argues that the trial court
erred when it refused to merge his convictions for gross sexual imposition and abduction.
He claims that these offenses are allied offenses that must merge for purposes of
sentencing because his conduct constituted a single course of conduct, the acts involved a
3.
single victim and a single animus, and the acts did not cause separate harms. Witcher
Smith contends that the abduction of the victim was “merely incidental to” the
commission of the sexual offense.
{¶ 7} The state responds that the harms experienced by the victim were separate
and identifiable. It emphasizes that the victim was abducted, driven to an alley, sexually
assaulted by Witcher Smith, sexually assaulted by a second individual, driven to another
location, and finally released.S The state insists that there were actually two abductions,
and the victim suffered physical and emotional harm from both the sexual assaults and
the abductions.
{¶ 8} The Double Jeopardy Clause of the Fifth Amendment to the U.S.
Constitution, applicable to the state through the Fourteenth Amendment, provides that no
person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
State v. Ruff, 143 Ohio St.3d 114,
2015-Ohio-995,
34 N.E.3d 892, ¶ 10. The Double
Jeopardy Clause protects against a number of abuses.
Id. Pertinent to this case is the
protection against multiple punishments for the same offense.
Id. To that end, the
General Assembly enacted R.C. 2941.25, which directs when multiple punishments may
be imposed.
Id. It prohibits multiple convictions for allied offenses of similar import
arising out of the same conduct:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
4.
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.
{¶ 9} In Ruff, the Ohio Supreme Court examined in detail the analysis that must be
performed in determining whether offenses are allied offenses of similar import under
R.C. 2941.25. It identified three questions that must be asked: “(1) Were the offenses
dissimilar in import or significance? (2) Were they committed separately? and (3) Were
they committed with separate animus or motivation?” Id. at ¶ 31. If the answer to any of
these questions is “yes,” the defendant may be convicted and sentenced for multiple
offenses. Id. at ¶ 25, 30. The court explained that offenses are of dissimilar import
“when the defendant’s conduct constitutes offenses involving separate victims or if the
harm that results from each offense is separate and identifiable.” Id. at ¶ 23. It
emphasized that the analysis must focus on the defendant’s conduct, rather than simply
compare the elements of two offenses. Id. at ¶ 30.
{¶ 10} The defendant bears the burden of establishing that R.C. 2941.25 prohibits
multiple punishments. State v. Washington, 137 Ohio St.3d 427,
2013-Ohio-4982, 999
5.
N.E.2d 661, ¶ 18, citing State v. Mughni,
33 Ohio St.3d 65, 67,
514 N.E.2d 870 (1987).
An appellate court reviews de novo whether offenses should be merged as allied
offenses under R.C. 2941.25. State v. Bailey, Slip Opinion No.
2022-Ohio-4407, ¶ 5,
citing State v. Williams,
134 Ohio St.3d 482,
2012-Ohio-5699,
983 N.E.2d 1245, ¶ 1.
“Although determining whether R.C. 2941.25 has been properly applied is a legal
question, it necessarily turns on an analysis of the facts ….” Id. at ¶ 11. This “can lead
to exceedingly fine distinctions.” Id. As such, an allied offenses analysis “may be
sometimes difficult to perform and may result in varying results for the same set of
offenses in different cases.” Ruff at ¶ 32. Different results are permissible because “the
statute instructs courts to examine a defendant’s conduct—an inherently subjective
determination.” Id., quoting State v. Johnson,
128 Ohio St.3d 153,
2010-Ohio-6314,
942
N.E.2d 1061, ¶ 52 (plurality opinion per Brown, C.J.).
{¶ 11} Initially, we observe that while Witcher Smith filed a sentencing
memorandum and argued at sentencing that the convictions should merge for purposes of
sentencing, he failed to present the facts of the case—either at the plea hearing, in his
memorandum, or at the sentencing hearing—other than to briefly state that the abduction
was sexually motivated and that the abduction and sexual assault occurred “in relatively
quick succession.” See Ruff at ¶ 26 (“The evidence at trial or during a plea or sentencing
hearing will reveal whether the offenses have similar import.”). Instead, the trial court
summarized the facts from the police report and gave Witcher Smith’s attorney an
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opportunity to challenge any inaccuracies. For the most part, defense counsel agreed
with the court’s recitation, other than to suggest that there may have been some
unspecified inconsistencies between the police report and the victim’s statement to the
investigating detective. Given the fact-intensive nature of a merger analysis, it was
incumbent on Witcher Smith to offer specific facts supporting merger. He failed to do
this.
{¶ 12} The trial court, on the other hand, fully articulated its rationale for not
merging the convictions. See Washington, 137 Ohio St.3d 427,
2013-Ohio-4982,
999
N.E.2d 661, at ¶ 24 (“[W]hen deciding whether to merge multiple offenses at sentencing
pursuant to R.C. 2941.25, a court must review the entire record, including arguments and
information presented at the sentencing hearing, to determine whether the offenses were
committed separately or with a separate animus.”). It explained:
I’d indicate that this Court’s view is that the Abduction occurred
both before the sexual assault, during the sexual assault, and most
importantly, after the sexual assault because after Mr. Witcher Smith does
sexually assault the victim, he leaves the vehicle, goes into either a house or
a store for “X” period of time. Thereafter, returns with the victim still in
the vehicle with her second assailant where they relocate her yet again,
some distance away before they let her loose.
7.
{¶ 13} In finding that the offenses here were not allied offenses subject to merger,
the trial court relied on State v. DeGarmo, 5th Dist. Muskingum No. CT2018-0061,
2019-Ohio-4050, ¶ 38. In DeGarmo, the defendant entered pleas to gross sexual
imposition and abduction. The Fifth District concluded that the trial court did not
commit plain error in failing to merge the offenses at sentencing because the victim
suffered dissimilar emotional and physical harm when (1) the offender forcefully pulled
her into the garage and prevented her from leaving, and (2) the offender touched her
vagina with his penis.
{¶ 14} Witcher Smith relies on State v. Merz, 1st Dist. Hamilton No. C-200152,
2021-Ohio-2093, in support of his claim that the offenses should have merged for
purposes of sentencing. In Merz, Merz told his 15-year-old stepdaughter that he was
taking her to a special place to look for arrowheads, but instead drove her to a secluded,
wooded area along the Ohio River. After they exited his van, he began kissing his
stepdaughter’s neck. She told him to stop, but he pushed her onto the front passenger
seat, forced himself on top of her, and began to grope her. Merz struck the victim several
times as she resisted him, but she was ultimately able to fight him off, push him out of the
van, and lock herself in the vehicle.
{¶ 15} Like Witcher Smith (and DeGarmo), Merz entered a plea of guilty to gross
sexual imposition and abduction. The trial court refused to merge the offenses, and Merz
appealed.
8.
{¶ 16} The First District Court of Appeals reversed. On appeal, the state conceded
that the abduction that occurred concurrent with the sexual assault should merge with the
gross sexual imposition, but it maintained that an additional abduction occurred when
Merz took his stepdaughter to the secluded area under the pretense of looking for
arrowheads, providing an independent offense. But the appellate court noted that Merz
entered a plea to abduction—not kidnapping—and unlike kidnapping, abduction cannot
be committed by deceiving the victim into accompanying the offender, as happened in
that situation; abduction requires threat or force. The court concluded that Merz did not
have a separate animus for abduction because his immediate motive in restraining his
stepdaughter was to sexually assault her. It also observed that there was only one victim,
there was no indicia of separate harm that could be traced to one offense over the other,
the offenses transpired simultaneously in the same location, and “[t]he restraint occurred
only during—and as part of—the sexual assault ….” Id. at ¶ 16.
{¶ 17} The facts of the present case are different than Merz. Here, Witcher Smith,
by force or threat, removed the victim from the place she was found (i.e., abducted her),
and took her to a location where she was subjected to two assaults—one by Witcher
Smith, and a second by an acquaintance that Witcher Smith invited to the scene. Witcher
Smith did not simply let the victim go after he assaulted her. He prolonged her restraint
and facilitated a second sexual assault. Moreover, he did not release her immediately
9.
after the second assault. He took the victim to yet another location before allowing her
out of the vehicle.
{¶ 18} In State v. Logan, 60 Ohio St.2d 126,
397 N.E.2d 1345 (1979), involving
convictions for rape and kidnapping, the Ohio Supreme Court examined the factors to be
considered in determining whether a separate animus existed for both offenses, such that
the defendant could be sentenced for both offenses. It explained that “[w]here 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 significance independent of the other offense, there exists a separate
animus as to each offense sufficient to support separate convictions.”
Id. at syllabus.
Additionally, “[w]ere 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.”
Id.
{¶ 19} In Logan, the court concluded that “the restraint and movement of the
victim had no significance apart from facilitating the rape” because “[t]he detention was
brief, the movement was slight, and the victim was released immediately following the
commission of the rape.” Id. at 135. See State v. Kuntz, 4th Dist. Ross No. 20CA3731,
10.
2022-Ohio-3376, ¶ 27 (explaining that Logan test is still applied even though it predates
Ruff,
143 Ohio St.3d 114,
2015-Ohio-995,
34 N.E.3d 892).
{¶ 20} Here, after transporting the victim to the alley, Witcher Smith prolonged
her restraint to facilitate a second sexual assault of the victim by a second perpetrator; the
asportation of the victim allowed for this second assault and caused an increase in harm
separate and apart from the underlying gross sexual imposition committed by Witcher
Smith; and the victim was not immediately released—she was transported by both of her
attackers to another location. Under these circumstances, we agree with the trial court
that the offenses were not allied and were not subject to merger. See also State v. Crider,
8th Dist. Cuyahoga No. 99396, 2013-Ohio-4594, ¶ 13-14 (finding that abduction and
attempted gross sexual imposition did not merge where defendant grabbed victim by the
arm and removed her from the public road to a hidden area behind bushes).
{¶ 21} We find Witcher Smith’s sole assignment of error not well-taken.
III. Conclusion
{¶ 22} At sentencing and in his sentencing memorandum, Witcher Smith failed to
assert facts in support of his claim that his convictions should have merged.
Nevertheless, the facts, as summarized by the trial court, demonstrate that Witcher
Smith’s convictions of gross sexual imposition and abduction were not subject to merger
because the restraint was prolonged in order to allow for a second sexual assault of the
victim by a second perpetrator; the asportation of the victim allowed for this second
11.
assault and caused an increase in harm separate and apart from the underlying gross
sexual imposition committed by Witcher Smith; and the victim was not immediately
released, but was instead transported by both of her attackers to another location. We
find Witcher Smith’s assignment of error not well-taken.
{¶ 23} We affirm the May 18, 2022 judgment of the Lucas County Court of
Common Pleas. Witcher Smith is ordered to pay the costs of this appeal under App.R.
24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Charles E. Sulek, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
12.
