The Akron Legal News

Sentence affirmed for man who kidnapped and raped church volunteer

ANNIE YAMSON
Special to the Legal News
Published: April 11, 2014

The judgment of the Summit County Court of Common Pleas was affirmed recently when the 9th District Court of Appeals ruled that it properly convicted and sentenced David Anderson on one count each of first-degree kidnapping and first-degree rape.

Anderson pleaded not guilty to the charges and the matter was tried before a jury, which found him guilty of the offenses.

The trial court categorized Anderson as a Tier III sex offender and sentenced him to consecutive prison terms: seven years for the kidnapping and 10 years for the rape.

Anderson was also ordered to have no contact with his victim.

In his appeal, he presented nine assignments of error, which were reviewed by a three-judge appellate panel and subsequently overruled.

Among his major arguments, Anderson contended that his offenses should have merged for sentencing and that the court erred by imposing a no contact order.

“The state concedes and this court agrees that it is possible to commit rape and kidnapping with the same conduct,” wrote Judge Donna Carr for the court of appeals. “In this case, Anderson does not challenge the jury’s finding that the state proved all elements of both rape and kidnapping at trial.”

The appellate panel’s review led to the conclusion that Anderson committed the offenses separately.

According to the case summary, the victim, a regular volunteer for her church’s community outreach program, was walking to church on the morning of May 15, 2012.

As she was walking, she noticed the same car pass her several times.

The victim approached a car wash where she saw the same car parked. Anderson was alone in the vehicle and offered her a ride to the church.

Though he initially began driving toward the church, he began to punch the victim in the face and head as they approached and then drove past the church and turned down a side street.

He threatened to shoot her, preventing her from rolling down the window and yelling for help.

Anderson proceeded to pull into the driveway of an abandoned house and then to the back of the house, where the vehicle was surrounded by trees and heavy foliage.

He forced the victim to get in the back seat of the car where he hit her again and choked her until she began to lose consciousness.

He then forced the victim to perform sexual acts and remove her pants.

The police arrived on the scene after a neighbor heard the victim’s screams and called 911.

“This court concludes that Anderson did not commit one single act of kidnapping merely incidental to his restraining the victim during sexual activity,” wrote Judge Carr. “Rather, his conduct indicated that he kidnapped the victim the moment she entered his car, deceiving her that he was driving her to church.”

The appellate panel noted that, were it not for the attentive neighbor, whose suspicions were aroused by an unfamiliar car quickly pulling into the driveway of an abandoned house, Anderson’s car would have gone completely unnoticed.

“In addition, Anderson did not begin his sexual assault of the victim immediately upon parking his car behind the vacant house,” wrote Judge Carr. “Instead, he forced the victim out of the car and again into the car’s back seat where he began to hit and strangle the victim to compel her to submit to sexual conduct.”

Based on that conduct, the court of appeals affirmed the trial court’s decision not to merge the offenses for sentencing and went on to address Anderson’s claim that the no contact order was made in error.

Though the state conceded the error, the appellate panel disagreed.

Anderson cited an 8th District decision where a reviewing panel held that a court has no authority to impose a no contact order upon a defendant who has been sentenced to prison because that order constitutes a community control sanction.

The court of appeals recognized this decision but Judge Carr wrote that it was “neither bound nor persuaded by the holding of our sister district.”

“Some appellate districts have recognized that no contact orders constitute community control sanctions,” wrote Judge Carr. “However, nowhere do R.C. 2929.16 and R.C. 2929.17 expressly identify no contact orders as community control sanctions.”

Judge Carr compared the no contact order to restitution, which may be ordered whether or not a defendant is sentenced to prison.

“A no contact order provides a means to attempt to restore the victim, even where that restoration manifests as peace of mind,” she wrote.

The panel admitted that there are no statutes expressly authorizing the imposition of a no contact order, but also noted that there is no provision prohibiting such a sanction.

Ultimately, Judge Beth Whitmore joined Judge Carr to form the majority and affirm the judgment of the Summit County court.

Presiding Judge Eve Belfance dissented in part, holding that a no contact order is an unnecessary sanction when a defendant is already being held in prison.

She also held that the trial court failed to make the necessary findings on the record before imposing consecutive sentences.

The case is cited State v. Anderson, 2014-Ohio-1206.

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