Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
Last updated 3/3/2015
Allied Offenses of Similar Import for cases on merger of kidnapping and
Lesser included offenses
R.C. 2905.01 -- Kidnapping.
R.C. 2905.02 -- Abduction.
R.C. 2905.03 -- Unlawful restraint.
R.C. 2905.04 -- Child stealing.
R.C. 2905.05 -- Criminal child enticement.
State v. Romage, 138
Ohio St.3d 390,
2014-Ohio-783, 7 N.E.3d 1156—Ohio’s child enticement
2905.05(A) is unconstitutionally overbroad.
State v. Brown, 183 Ohio App. 3d 643,
2009-Ohio-4314 – Criminal child enticement conviction allowed to stand where
the defendant merely approached an 11-year old and asked her to help him find
his ring. Court infers he meant her to accompany him elsewhere as he wasn’t on
his hands and knees searching at the time. Defendant failed to challenge sexual
motivation aspect of the prosecution.
State v. Skatzes, 104 Ohio St. 3d 195,
2004-Ohio-6391, ¶53-56 -- In a kidnapping prosecution it is not plain error that
the court failed to instruct the jury they must unanimously agree as to which
among alternative purposes the offense was committed, provided they are
unanimous as to guilt. The alternative purposes are equally blameworthy. Schad v. Arizona (1991), 501 U.S. 624, followed. From later in the
opinion it appears that a general unanimity instruction was given. Also see
State v. Johnson, 104 Ohio St. 3d 210,
State v. Young, Montgomery App. Nos. 19472
2003-Ohio-2205 -- In seeking joinder of indictments prosecutor
claimed the prosecuting witness had been a family or household member of the
defendant within the past five years. Court declines accepting this as a
judicial admission which would nullify charges the defendant abducted the PW's
children. Even if the statement was factually correct, it was not material to
the issue of privilege.
State v. Muniz, 162 Ohio App. 3d 198,
2005-Ohio-3580 -- Dissenting opinion at ¶47: "It is tempting in these times to
see kidnapping, rape and murder in every adult-stranger/child encounter. Parents
and schools responsibly educate children to the potential dangers of these
encounters and teach them means of protecting themselves. Both girls in
this case clearly responded responsibly and wisely, as no doubt they had been
instructed...they ran and told an adult. But a situation that might
involve danger is not attempted anything. I have a hunch that appellant
was up to no good. But this is a hunch based upon my personal fears and
not the objective facts of this case."
State v. Cornute (1979), 64 Ohio App. 2d
199 -- Headnote: "The provision in
R.C. 2905.01(C) reducing kidnapping to a
felony of the second degree '[i]f the offender releases the victim in a safe
place unharmed,' is a mitigating circumstance, rather than an element of the
crime of kidnapping. It is in the nature of an affirmative defense and is to be
treated as such." Also see State v. Leslie (1984), 14 Ohio App. 3d 343;
State v. Burton (February 14, 1980), Franklin Co. App. No. 79AP-248,
unreported (1980 Opinions 281, 286); State v. Key (June 19, 1986),
Franklin Co. App. No. 86AP-969, unreported (1986 Opinions 1546).
State v. Morales (1987), 32 Ohio St. 3d
252, 256 -- "...(W)hile a child under the age of thirteen may be kidnapped
through the use of force, threats or deception, such conduct is not
essential to a conviction. A violation of this section may be found even where
the child voluntarily accompanies the kidnapper or submits to restraint provided
one of the enumerated purposes is likewise found to have existed."
State v. Bryant (1988), 56 Ohio App. 3d 20
-- Headnote: "A husband charged with kidnapping his wife may not preclude his
wife from testifying against him by asserting the spousal privilege set forth in
R.C. 2945.42, even though 'kidnapping' is not specifically listed as an
exception in the statute. (Evid. R. 501 and 601[B], and
R.C. 2945.42, in pari
State v. Hill (1996), 75 Ohio St. 3d 195,
206 -- While parents may have equal right to custody absent a court order, this
does not provide putative father with a defense to kidnapping and related
aggravated murder of his infant daughter.
East Cleveland v. Odetellah (1993), 91
Ohio App. 3d 787 -- A merchant may not detain a person suspected of theft for
seven hours, handcuffed to a chair. Under
R.C. 2935.041 the detention was not
reasonable. Construed as a citizen's arrest, the delay was unnecessary. Unlawful
restraint conviction upheld.
State v. Johnson (1991), 58 Ohio St. 3d 40
-- Syllabus: "The acquiescence of a minor is no defense to an allegation of
child stealing in violation of
R.C. 2905.04(A) as it is the adult's intent to
purposefully withhold the child from his/her legal custodian, and not the
child's attitude toward the adult offender, that is determinative of liability."
State v. Wengantz (1984), 14 Ohio App. 3d
316 -- (1) The term "withhold" as used in the child stealing statute is to be
given its common dictionary definition. (2) Interference with custody is a
lesser included offense of child stealing. Compare State v. Townsend
(November 8, 1977) Franklin Co. App. No. 77AP-428, unreported (1977 Opinions)
where court upholds finding of NGRI of abduction as a lesser included offense of
State v. Hurd (1991), 74 Ohio App. 3d 94
-- Exception in the criminal child enticement statute for police, firefighters
and other emergency workers is in the nature of an affirmative defense.
State v. Kroner (1988), 49 Ohio App. 3d
133 -- The criminal child enticement statute is neither unconstitutionally vague
nor overbroad. Also see State v. Long (1989), 49 Ohio App. 3d 1.
State v. Williams (1991), 75 Ohio App. 3d
293, 299 -- For a defendant to be convicted of unlawful restraint: "(1) The
defendant's act must be willful. (2) Defendant's conduct must substantially
interfere with another person's liberty. (3) The victim knows of the restraint
or is harmed as a result of the restraint. (4) The restraint is total. (5)
Defendant exercised any force, or express or implied threat of force including a
reasonable apprehension of force. (6) Defendant acted without legal
justification." Court reverses conviction of worker at residential facility for
the handicapped who had followed establish practice of "toweling" doors to
control room access.
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Lesser included offenses
State v. Mullen, 191 Ohio App. 3d
2011-Ohio-37 – Defendant pleaded no contest and received consecutive
sentences. Subsequently he sought to withdraw his pleas. The motion was denied
but the court conducted a resentencing hearing because postrelease control had
not been addressed in court at the first sentencing hearing. The appeal comes
from the resentencing hearing. (1) Though a count within an indictment must be
sufficient may be sufficient to charge an offense, a court shall not enter a
guilty finding if the factual proffer in support of the plea negates the
existence of an essential element. With respect to the felonious assault count
at issue here, the prosecutor’s proffer omitted an essential element, but did
not negate it, so reversal is not necessary. (2) With respect to two counts of
abduction, the indictment failed to allege the defendant either created a risk
of physical harm to the victims, or placed them in fear. Having admitted the
facts alleged in the indictment, but not pleading guilty, the defendant may not
be found guilty of abduction, but may be found guilty of unlawful restraint. But
see State v. Fischer, 128 Ohio St. 3d 92,
2010-Ohio-6238, which now characterizes omission of postrelease control as
resulting in “limited voidness” and limits the scope of resentencing hearings.
State v. Kvasne,
168 Ohio App. 3d 167,
2006-Ohio-5235 -- Abduction is a lesser included offense to kidnapping. In
determining what constitutes a lesser included offense some attention must be
given to the facts of the case. Abstract comparison of the elements may allow
"criminal defendants to walk away from their crimes." ¶59: "What has been bound
together in law for centuries, therefore, should not be rent asunder by a too
literal application of Deem and conflated by
State v. Goble (1982), 5 Ohio App. 3d 197
-- Abduction is a lesser included offense of kidnapping. The court may instruct
on the lesser offense over the defendant's objection if the jury could
reasonably find against the state on the greater offense but still find the
elements of the lesser offense to have been proven.
State v. Fleming (1996), 114 Ohio App. 3d
294 -- Abduction is not a lesser included offense to kidnapping premised upon
facilitating the commission of a felony, since the kidnapping may be
accomplished by deception, while abduction requires force or threat of force.
Opinion cites other decisions reaching the contrary conclusion.
State v. Richetti (1991), 74 Ohio App. 3d
728 -- (1) Unlawful restraint is a lesser included offense of kidnapping. (2)
Failure to let passenger exit car on demand constitutes unlawful restraint.
State v. Minkner (1994), 93 Ohio App. 3d
127 -- An instruction on unlawful restraint, as a lesser included offense to
kidnapping, should have been given where the jury could reasonably have
concluded that the victim was restrained against her will following the
breakdown in negotiations between a prostitute and her customer, but that the
restraint was not for the purpose of forcing her to engage in sexual activity.
State v. Armstrong (1991), 74 Ohio App. 3d
732 -- Interference with custody is not a lesser included offense of child
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State v. Winn, 121
Ohio St. 3d 413,
2009-Ohio-1059 – Syllabus: "The crime of kidnapping, defined by
R.C. 2501.01 (A)(2),
and the crime of aggravated robbery, defined by
are allied offenses of similar import pursuant to
Strict textual comparison of elements is not required. Majority and dissenting
justices split on how narrowly "necessarily" is to be interpreted when comparing
Mosely, 178 Ohio App. 3d 631,
2008-Ohio-5483 – (1) Restraint during a scuffle leading to
domestic violence charges was sufficient to support a kidnapping
conviction. Defendant held the victim on the floor. (2) Allied
offense of similar import analysis begins with comparison of the
elements in accordance with Rance
and Cabrales. Since this two-part
test sometimes produces erroneous results, the court must then
assess whether the legislature intended to permit cumulative
sentencing by determining whether the legislature manifested an
intention to serve two different interests in enacting the two
statutes. State v. Brown, 119 Ohio
St. 3d 447,
2008-Ohio-4569, applied. As to the elements of domestic
violence and kidnapping, the commission of one offense doesn‘t
necessarily result in the commission of the other. Not are the
societal interests protected by the two statutes the same.
In re Rashid, 163 Ohio App. 3d 515,
2005-Ohio-4851 -- ¶11-28 discuss
Rance and other cases, concluding State v. Logan (1979), 60 Ohio St. 2d 126 again is the primary authority for
merger of kidnapping and complicity to rape. Defendant loses under either
standard. Under Rance it is impossible to kidnap without raping.
Under Logan the restraint and beating as a part of the game of "arrest"
were not merely incidental and subjected the victim to a substantial risk of
harm separate and apart form the rape. Game involved teenage boys treating
the arrestee like Abner Louima.
State v. Logan (1979), 60 Ohio St. 2d 126
-- Syllabus: "In establishing whether kidnapping and another offense of the same
or similar kind are committed with a separate animus as to each pursuant to
2941.25(B), this court adopts the following guidelines: (a) 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 restrain 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; (b) 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 convictions." Also see State
v. Price (1979), 60 Ohio St. 2d 136.
State v. Donald (1979), 57 Ohio St. 2d 73
-- Rape and kidnapping may be allied offenses of similar import.
State v. Moore (1983), 13 Ohio App. 3d 226
-- Rape and kidnapping do not merge if the movement of the victim is substantial
or the restraint of liberty is for a significant period of time so as to
demonstrate a significant independence of the rape offense. Also see State v.
Malone (1984), 15 Ohio App. 3d 123; State v. Peterman (September 25,
1979), Franklin Co. App. No. 79AP-218, unreported (1979 Opinions 2792; State
v. Booker (December 22, 1981), Franklin Co. App. No. 81AP-258, unreported
(1981 Opinions 4221); State v. Ridgeway
(1990), 66 Ohio App. 3d 270.
State v. DePina (1984), 21 Ohio App. 3d 91
-- Rape and kidnapping do not merge where victim was lured from bar by
deception, then forcibly removed to secluded area where rape occurred.
State v. Henry (1987), 37 Ohio App. 3d 3,
9 -- Rape and kidnapping are committed with a separate animus when restraint is
for two and a half hours, confinement in car was secretive, and movement was
substantial, all contributing to a substantial increase in the risk of harm to
the victim. Also see State v. Brown (1984), 12 Ohio St. 3d 147; State
v. Mitchell (1989), 60 Ohio App. 3d 106.
State v. Moralevitz (1980), 70 Ohio App.
2d 20 -- Gross sexual imposition and kidnapping are not allied offenses of
similar import when the victim is under thirteen and force or threat of force is
not an element. Different conclusion might follow where force is an element.
State v. Blankenship (1988), 38 Ohio St.
3d 116 -- Kidnapping and felonious assault are not committed with a separate
animus when separated in time. Also see State v. Preston (1986), 23 Ohio
St. 3d 64.
State v. Box (1993), 89 Ohio App. 3d 614,
618-619 -- Felonious assault and kidnapping are not allied offenses of similar
State v. Kimbler (1986), 31 Ohio App. 3d
147 -- Headnote: "The Double Jeopardy Clause does not bar a prosecution for
child stealing...after the defendant has been convicted of contempt for a
violation of a custody order. Although the indictment and the contempt charge
arise out of the same conduct, each is predicated upon different elements and
State v. Parker (1986), 31 Ohio App. 3d
128 -- Robbery and kidnapping may be allied offenses of similar import.
State v. Gore (1999), 131 Ohio App. 3d 197
-- Aggravated robbery and kidnapping did not merge where victim was transported
to a different location to facilitate escape.
State v. Parker (1991), 72 Ohio App. 3d
456, 461-463 -- Aggravated robbery premised on the use of a deadly weapon and
kidnapping are not allied offenses of similar import.
State v. Jenkins (1984), 15 Ohio St. 3d
239, 197-198 -- When separate death penalty specifications are based on
aggravated robbery and kidnapping, and those offenses would merge, the
specifications should be merged to be considered as a single aggravating factor
at the penalty phase of a capital trial. Compare State v. Rogers (1985),
17 Ohio St. 3d 174, 180-181 where the rape and kidnapping specifications did not
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