Opinion
No. 85AP-830
April 8, 1986
MR. MICHAEL MILLER, Prosecuting Attorney, and MS. BONNIE L. MAXTON, for appellee.
MESSRS. MATAN & SMITH and MR. ROBERT M. MORROW, for appellant.
OPINION
TURPIN, J.
In January 1985, appellant, Robert G. Henderson, was indicted by the Franklin County Grand Jury on one count of kidnapping along with a specification involving use of a firearm.
Appellant entered pleas of not guilty and not guilty by reason of insanity. He waived trial by jury and elected to be tried to the court. At the close of trial, the court proceeded to enter its findings of guilty as to the charges alleged in the indictment and further found the defendant in violation of the specification involving the firearm.
Thereafter, counsel for the appellant filed a motion for new trial which was overruled by the trial court. Appellant now appeals and makes six claims of error as follows:
"I. The trial court erred in proceeding with trial over objection of counsel by refusing to grant the continuance requested by defense counsel by reason of: (a) state's refusal to comply with the order compelling discovery until the morning of trial; (b) defense counsel's ill health, and (c) the failure of defendant's subpoenaed witness to appear.
"II. The trial court erred in that the verdict of kidnapping is against the manifest weight of the evidence.
"III. The trial court erred in finding that the defendant did not release the victim in a safe place and unharmed.
"IV. The trial court erred in finding that a firearm was used in the commission of an offense.
"V. The trial court erred in denying defendant's motion for new trial.
"VI. The appellant was denied his right to effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution as well as Article I, Section 10 of the Ohio Constitution."
We have considered each assignment of error and make the following disposition.
The first assignment of error is overruled. We have checked the record of proceedings and find no abuse by the trial court in not granting the continuance requested by defense counsel. The record does not support any refusal to comply with the order compelling discovery as claimed. Nor does the record support defense counsel's claim of ill health. The record fails to show any prejudice to the appellant based on failure of the claimed subpoenaed witness not appearing.
The second assignment of error is overruled. This assignment of error turns on the weight to be given the evidence and the credibility of the witnesses. Those matters are primarily for the trier of the facts not for the court of appeals. Our review is limited to a determination of whether there was sufficient evidence to support the trial court's finding in this case. We find the evidence was substantial.
R.C. 2905.01 reads as pertinent to this case:
"(A) No person, by force, threat, or deception, or, * * * by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes:
"* * *
"(3) To terrorize, or to inflict serious physical harm on the victim or another;
"* * *
"(C) Whoever violates this section is guilty of kidnapping, an aggravated felony of the first degree. If the offender releases the victim in a safe place unharmed, kidnapping is an aggravated felony of the second degree." (Emphasis added.)
The statute does not say that the accused must successfully terrorize the victim. It simply says that he must have committed the act for that purpose. Purpose is a decision of the mind to do an act with a conscious objective of producing a specific result or engaging in specific conduct. To do and act purposely is to do it intentionally. The purpose with which any person does any act is known only to himself, unless he expresses it to others or indicates it by his conduct. The court could very well, based on the evidence in this case, find that the accused had a specific purpose to terrorize his wife.
The third assignment of error is sustained. The prosecution claims that the record does not indicate that appellant ever released his wife from the time he met her with a gun outside her work place until she was safe in the state trooper's patrol car in Ashland, Ohio. We disagree. We believe the fact that his wife testified that, on several occasions, she was permitted to leave the car without him being present with her. In particular, on the last occasion when they were stopped by the state highway patrolman, appellant removed himself from the vehicle; his wife had the gun under her seat in the car, and, when he returned to the vehicle and told her that he would have to go with the police officer, she instructed him to remain in the car and that she would go talk with the police officer. Appellant did not attempt to prevent her from leaving the car and going to the police officer; and getting into the trooper's automobile was a release.
The prosecution states, furthermore, that the trial judge specifically found that appellant did not release the victim unharmed, based on appellant's use of the gun to create terror and anxiety in his wife during the three and one-half hour ordeal, and directs us to read pages 218-223 of the transcript. We find nothing in reading those suggested pages to indicate that the victim was harmed. Those pages present a conversation between counsel, the defendant and the court, mainly going to terrorism or terror. The fact that a victim may be terrorized does not necessarily mean that the victim was harmed, nor does it necessarily follow that, when an accused has a purpose to terrorize, he will, in attempting to do so, be successful. We find the record in this case does not support the court's finding that the victim was harmed. We therefore find that the evidence in this case would support a finding that the victim was released in a safe place unharmed, thereby making this crime of kidnapping an aggravated felony of the second degree.
The fourth assignment of error is overruled. The evidence was overwhelming in support of a firearm having been used in the commission of this offense.
The fifth assignment of error is overruled. We find no reason for the granting of a new trial.
The sixth assignment of error is overruled. We find nothing in the conduct of counsel that was prejudicial to the defendant in the presentation of this case.
The third assignment of error having been sustained, and all other assignments of error having been overruled, the judgment of the trial court is affirmed in part and reversed in part, and this matter is remanded to the court of common pleas for resentencing under R.C. 2905.01, kidnapping as an aggravated felony of the second degree.