Kidnapping and Related Offenses


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

Last updated 3/3/2015
See Allied Offenses of Similar Import for cases on merger of kidnapping and other 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 statute, R.C. 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, 2006-Ohio-6404. ¶61-65.
State v. Young, Montgomery App. Nos. 19472 and 19473, 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 materia.)"
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 child stealing.
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.
State v. Mullen, 191 Ohio App. 3d 788, 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 Rance."
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 stealing.
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 R.C. 2911.01(A)(1), are allied offenses of similar import pursuant to R.C. 2941.25." Strict textual comparison of elements is not required. Majority and dissenting justices split on how narrowly "necessarily" is to be interpreted when comparing elements.
State v. 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 R.C. 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 import.
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 facts."
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 merge.

Publishing Information

Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.