In State v. Alexander (Feb. 25, 1993), Cuyahoga App. No. 61674, unreported, 1993 WL 51259, we considered a very similar fact pattern. Alexander grabbed his victim, threatened to kill her, and dragged her until she was confined in the corner of a courtyard before raping her. Citing State v. Moore (1983), 13 Ohio App.3d 226, 13 OBR 278, 468 N.E.2d 920, we found that Alexander's act of dragging the victim from an open place to a concealed place for cover during the rape constituted a separate animus for kidnapping and rape. See, also, State v. Thomas (Aug. 5, 1986), Franklin App. No. 85AP-414, unreported, 1986 WL 8670 (kidnapping victim from hallway and forcing her to walk to a locked restroom and performing rape in restroom stall constituted greater asportation than that required for rape).
The former is committed separately if the asportation is of a significant distance prior to the arrival at the place of the intended rape; whereas, the latter has relevance only if the restraint of liberty is for a significant period of time prior to the commission of the intended rape." State v. Moore (1983), 13 Ohio App.3d 226, 228, 13 OBR 278, 279, 468 N.E.2d 920, 922. In the case sub judice, Patrick was forcibly taken against her will while she was walking on a sidewalk and forced into an automobile.
However, Ohio courts conclude that "[a] conviction of kidnapping under R.C. 2905.01(A)(4) can stand alone without a conviction on the underlying rape charge." State v. Cook, No. 11-225, 1987 WL 15446, *2 (Ohio App. Aug. 7, 1987) (citing State v. Logan, 60 Ohio St. 2d 126 (Ohio 1979); State v. Moore, 13 Ohio App. 3d 226 (Ohio App. 1983)); see also State v. Stefanski, No. 9-99-63, 1999 WL 253151, *3 (Ohio App. Mar. 29, 1999) (finding it "reasonable that the jury could have found that Appellant restrained [the victim's] liberty with the intent to have sexual intercourse with her against her will" while also finding that "the actual sexual conduct was not the product of force, threat or coercion due to the" surrounding circumstances). The Cook court rejected the notation that a "not guilty verdict by the jury and [an] acquittal by the judge on counts of rape mean that the triers of fact rejected the [victim's] testimony of nonconsensual sexual activity."
Id. at syllabus. {¶ 13} In State v. Moore, 13 Ohio App.3d 226 (10th Dist.1983), this court affirmed a trial court's decision to convict the defendant of both kidnapping and rape under similar facts to those presented herein. In Moore, the offender forcibly removed the victim, at knifepoint, from the bus stop and forced her to walk approximately one block to a shed.
S.K. was driven around the city for 30 to 40 minutes to locations such as an abandoned building and an apartment complex in a wooded area and back to the general area where she was first kidnapped. This movement was more substantial than that found in State v. Moore, 13 Ohio App.3d 226 (10th Dist.1983), a case in which this court found there was sufficient asportation to constitute separate conduct from the actual commission of the rape itself. In Moore, the offender forcibly removed the victim, at knifepoint, from the bus stop and forced her to walk approximately one block to a shed.
S.K. was driven around the city for 30 to 40 minutes to locations such as an abandoned building and an apartment complex in a wooded area and back to the general area where she was first kidnapped. This movement was more substantial than that found in State v. Moore, 13 Ohio App.3d 226 (10th Dist.1983), a case in which our court found there was sufficient asportation to constitute separate conduct from the actual commission of the rape itself. In Moore, the offender forcibly removed the victim, at knifepoint, from the bus stop and forced her to walk approximately one block to a shed.
{¶ 36} In State v. Moore (1983), 13 Ohio App.3d 226, 468 N.E.2d 920, a case somewhat similar to the within case, the victim was taken from a bus stop and forced to walk one block to a shed, where she was raped. The Moore court held that the five-minute walk was sufficient asportation to constitute separate conduct of the perpetrator, apart from the actual commission of the rape.
Id. at 536. {¶ 20} In State v. Moore (1983), 13 Ohio App.3d 226, 468 N.E.2d 920, the victim was taken from a bus stop and forced to walk one block to a shed, where she was raped. The Moore court held that the five-minute walk was sufficient asportation to constitute separate conduct of the perpetrator, apart from the actual commission of the rape.
In State v. Johnson, this court held a fifteen-to-twenty minute restraint was sufficient and a movement of the victim several blocks to a secluded area was substantial to constitute separate conduct from the rape. (1983), 13 Ohio App.3d 226. (Aug. 20, 1992), Cuyahoga App. No. 61015.
These acts are independent of and more than merely incidental to the restraint involved in the rape. See State v. De Pina (1984), 21 Ohio App.3d 91, 92-93; State v. Moore (1983), 13 Ohio App.3d 226, 228. {¶ 14} Because the offenses of rape and kidnapping were committed separately and with separate animus, defendant's convictions for both rape and kidnapping do not violate R.C. 2941.25.