Appeals Court: Burglary and Kidnapping Convictions Should Be Merged, Resentenced
An Ohio man convicted of aggravated burglary and kidnapping won his appeal that his crimes should be merged for sentencing. The Twelfth District Court of Appeals ruled on April 8 that the Clermont County Court of Common Pleas erred when it separated Erdel Ozevin’s convictions.
In May 2012, Ozevin was sentenced to 7 years in prison for aggravated burglary and 5 years in prison for kidnapping for a total of 12 years. Ozevin had broken into a woman’s home, placed a plastic bag over her head, and tried to bind her legs with duct tape. The woman fought back and Ozevin ran away from her home.
Ohio’s multiple-count statute (R.C. 2941.25) “prohibits the imposition of multiple punishments for the same conduct,” and the appeals court said it “must first determine whether it is possible to commit one offense and commit the other with the same conduct.”
Using Ohio Supreme Court case State v. Johnson as reference, Judge Robert A. Hendrickson wrote the appeals court’s unanimous decision and said: “Harm or attempting harm to a victim to complete an aggravated burglary can be caused by the same conduct used to forcibly restrain another person. Accordingly, it is certainly possible to commit both aggravated burglary and kidnapping with the same conduct.”
“The victim was not subject to an additional substantial risk of harm due to the crime of kidnapping. The kidnapping posed no significant independent of the aggravated burglary. Consequently, in this particular instance, we find that the aggravated burglary and kidnapping were committed with the same animus … accordingly, they must be merged for sentencing,” Judge Hendrickson said.
Judges Robin N. Piper and Michael E. Powell concurred in the April 8 opinion that reversed only to the extent the sentence is vacated, and the matter remanded back to the Clermont County Court of Common Pleas for resentencing after the state elects which allied offense to pursue.
State v. Ozevin, 2013-Ohio-1386
Criminal Appeal From: Clermont County Court of Common Pleas
Judgment Appealed From Is: Remanded for Resentencing
Date of Judgment Entry on Appeal: April 8, 2013
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