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State v. Schellentrager

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 28, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MARTIN J. SCHELLENTRAGER DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-607959-A.

          ATTORNEY FOR APPELLANT Robert C. Aldridge Law Offices of Richard W. Landoll.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: John Kirkland Assistant County Prosecutor The Justice Center.

          BEFORE: Keough, A.J., E.A. Gallagher, J., and Kilbane, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE.

         {¶1} Defendant-appellant, Martin Schellentrager, appeals his abduction conviction. For the reasons that follow, we affirm.

         {¶2} In July 2016, Schellentrager was charged with one count of kidnapping, a first-degree felony violation of R.C. 2905.01(B)(1). The matter was tried to the bench. Schellentrager was found not guilty of kidnapping, but was found guilty of the lesser-included offense of abduction, a third-degree felony violation of R.C. 2905.02(A)(1). The court sentenced Schellentrager to five years of community control sanctions. This timely appeal follows.

         I. Facts

         {¶3} On July 10, 2016, the victim, a ten-year old boy, and his family attended his brother's ice hockey practice at Iceland Arena in Strongsville, Ohio. By the end of the practice, the victim was bored and decided to leave his parents and siblings to check out the game room that was in the general lobby area, but outside of the ice rink. As he approached the doors exiting the East ice rink, a stranger, later identified as Schellentrager, approached him and placed his arm around the victim's shoulder. At this moment, the victim's father noticed the man with his son. Thinking that his son may have struck the man with the door, father was not immediately alarmed, but thought he would start walking toward them to see what occurred. However, when he saw the man whispering in his son's ear and walking toward the main exit, father became increasingly concerned and approached the man. Father told Schellentrager to "get your hands off my son." Startled and nervous, Schellentrager complied by putting his hands in the air and exiting the arena. Two of the arena employees followed him outside and learned that he was staying next door at the Motel 6.

         {¶4} The victim testified that Schellentrager put his arm around his shoulder and whispered to him that he could go up to the front desk and put food on Marty's tab, but that the victim had to tell his dad first. The victim testified that he would have asked his dad, but was unable to because Schellentrager had his arm around him, walking him toward the main exit of the facility. The victim admitted that Schellentrager did not grab, hurt, or physically threaten him, but stated that he did not want to go to the front door, was scared, and worried by Schellentrager's conduct.

         {¶5} Teresa Silva was standing in the elevated gallery area between the two ice rinks when she noticed an older man walking through the front door of the facility. She stated she notice him immediately because he was not wearing any shoes and was wearing either short shorts or no pants under his shirt. According to Silva, the man was walking erratically while looking for something, and walked over to the concession area. Although the concession stand was closed, Schellentrager leaned over the counter. At that moment, Silva noticed that Schellentrager was only wearing underwear. When Schellentrager went around the counter, Silva became worried and phoned her husband, who was also at the ice arena. However, when she looked up, she saw the man come up behind a little boy, wrapping his arms around him, and saying something in his ear. She described Schellentrager's actions as "a bear hug with both arms." According to Silva, Schellentrager was pushing the boy toward the front door. As she started to approach them, she notice other adults near the entrance who stopped Schellentrager and the boy.

         {¶6} Police officers Philip Siwik and Bradley Busch responded to a call about a suspicious male attempting to take a child from Iceland Arena. When they located Schellentrager at the Motel 6, he admitted that he went to Iceland Arena to get food for a friend. When the officers questioned him about his interactions with the young boy, he admitted that he "bear hugged" a boy because he was a former teacher and always like kids. According to the officers, Schellentrager admitted that he whispered to the child about putting food on his tab. When questioned why, he responded, "I wanted the kid to come to my room and play with me." According to Officer Siwik, Schellentrager was very forthcoming. However, when they attempted to arrest him, he started yelling, acting erratically by hopping on one foot, and jumping into a shrub. The officers admitted they did not discover anything in his hotel room that caused them alarm.

         {¶7} At the close of the state's case, Schellentrager moved for a Crim.R. 29 judgment of acquittal, contending that the state failed to prove the elements of kidnapping, specifically, that Schellentrager "created a substantial risk of serious physical harm." The state acknowledged that proving this element might be an issue, which was the justification for requesting lesser-included offenses to be submitted for deliberation. The trial court took the arguments under advisement and the following day, denied Schellentrager's motion, finding that under the Crim.R. 29 standard, reasonable minds could reach different conclusions that Schellentrager knowingly under the circumstances created a substantial risk of serious physical harm to the victim.

         {¶8} Joseph Schellentrager, a school psychologist, testified on behalf of his brother stating that he was shocked when he found out why his brother was arrested because his brother loved, valued, and cared for children. Joseph testified that since his brother's retirement from teaching and a fall in 2007 that caused him to be in a coma for two weeks, Schellentrager suffered from brain trauma and various mood disorders. He told the court that his brother did not like the effect of the medications, so he stopped ...


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