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Man who wielded machete while kidnapping, raping his neighbor wins appeal
JESSICA SHAMBAUGH
Special to the Legal News
Published: September 23, 2015
A man convicted of kidnapping and raping another man while wielding a machete recently won an appeal challenging his sentence from the Delaware County Court of Common Pleas.
The 5th District Court of Appeals sustained Larry Fox’s argument that he could not be sentenced for kidnapping because it was an offense of similar import to the charge of rape.
The three-judge appellate panel therefore remanded the case for new sentencing.
Fox’s case stemmed from the kidnapping and rape of Cory Tyo.
Case summary states that Fox and Tyo both lived in a trailer park community in Lewis Center and often smoked marijuana and drank together, along with Franklin Pyle and Fox’s brother Harry.
In October 2012, Fox reportedly gave Pyle money to purchase marijuana.
Pyle and Tyo then went to Columbus and gave the money to Tyo’s friend. They waited for the friend to return, but he never did.
Tyo then called Fox to pick them up and explained that the money had been stolen. Fox told Tyo he had a certain amount of time to pay him back, but Tyo did not return the money.
On Oct. 16, 2012, Pyle told Tyo that Fox wanted to speak with them. They both then went to Fox’s trailer where several other people were also present.
Tyo said that when he entered the trailer, he saw a Nazi flag on the counter and heard “death metal” music playing.
He eventually asked if he could go home, but said Fox locked the door and said no one was leaving.
At that point, Harry stated, “Court is now in session” and put a knife against Tyo’s throat. Fox then ordered Tyo to remove his shirt and bound his hands behind his back. Once Tyo was in handcuffs, Fox removed Tyo’s pants.
Tyo said he was ordered to sit cross legged on the floor while naked and handcuffed.
He then watched as Fox used a blow torch to heat a machete and run the blade through his hair.
He said he could smell his hair burning and felt helpless.
Tyo testified that Fox continued to reheat the machete and placed it on his back and near his genitals, threatening to cut them off.
The behavior continued while Fox questioned Tyo about the money and the drug deal.
After a couple hours of questioning, Fox stood Tyo up, faced him toward a camera, put a knife to him and told him that he would perform “oral favors” or Fox would kill him.
Tyo said he was not a willing participant, but had no choice because Fox continued to hold the machete.
Fox ultimately pushed Tyo to his knees, rubbed his genitals in Tyo’s face and threatened to kill Tyo if he hurt him or vomited. He then orally raped Tyo until Tyo began to vomit.
Fox then took Tyo to a back bedroom and orally raped him again, stating that he would have to perform sexual favors to repay Fox for the stolen money.
Tyo said Fox orally raped him in the bedroom for about 30 to 40 minutes.
Fox then told everyone to leave and threatened to kill them if they talked about what had happened.
Based on those actions, Fox was charged with three counts of kidnapping, one count of abduction and two counts of rape.
The kidnapping counts were all second-degree felonies because he released Tyo in a safe place, unharmed.
The jury found Fox guilty as charged and the common pleas court proceeded to sentencing.
It sentenced Fox to serve eight years on one count of kidnapping, eight years on a second count of kidnapping and 11 years for each count of rape.
It ordered the terms to run consecutive for a total of 38 years in prison.
On appeal, Fox asserted that the trial court erred by imposing a sentence on one of the kidnapping counts because it should have merged with the rape convictions.
The appellate court agreed. The judges noted that the kidnapping charge in question was kidnapping to commit rape.
“This kidnapping to commit rape charge did not cause a separate identifiable harm to the victim from that of the actual rape itself,” Presiding Judge William Hoffman wrote for the court.
The judges held that the kidnapping was incidental to committing the rape and was committed with the same animus.
Accordingly, they ruled that the charges were allied offenses of similar import and that Fox could not be sentenced on both counts.
Judges John Wise and Patricia Delaney joined Hoffman in remanding the case for new sentencing.
The case is cited State v. Fox, 2015-Ohio-3515.
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