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State v. Fair

Court of Appeals of Ohio, Eleventh District, Portage

June 24, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ROSS M. FAIR, Defendant-Appellant.

          Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR 00533.

          Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, (For Plaintiff-Appellee).

          Paul M. Grant, (For Defendant-Appellant).

          OPINION

          CYNTHIA WESTCOTT RICE, J.

         {¶1} Appellant, Ross M. Fair, appeals his conviction in the Portage County Court of Common Pleas, following a jury trial in which he was convicted of multiple counts of Rape, Sexual Battery, and Importuning and sentenced to life in prison with eligibility for parole after 38 years. For the reasons discussed herein, we affirm in part, reverse in part, and remand for resentencing.

         {¶2} Appellant was accused of sexually abusing a 5 or 6-year-old minor, CM., for the period May 20, 2013 through May 21, 2016, while appellant babysat him. CM. testified at trial that appellant would ask to "borrow" him, take him into appellant's room, and ask him to put his mouth on appellant's penis. CM. testified that on the first occasion, the encounter ended when CM. threw up on appellant's underwear. On another occasion, appellant pulled CM. into his bedroom closet and asked CM. to kiss him. CM. tried to run away but appellant kissed him on the cheek. CM. testified that after those first two instances, appellant would ask CM. to engage in fellatio "most days" that CM. was being babysat at appellant's apartment, and on numerous occasions after the first instance, appellant's 4-year-old son, E.F., was also present in the room at the time the conduct occurred. CM. testified that on each occasion appellant told him that if he "didn't tell", then appellant "wouldn't tell." CM. denied that appellant ever threatened to hurt him or promised him anything.

         {¶3} Appellant took the stand in his defense. He admits to having babysat CM. until 2014 but denied the allegations of sexual abuse. Appellant posited that CM. had made up the allegations because he did not like how he punished him, by spanking or time out, while he was being babysat. CM. testified that appellant did spank him, with his mother's permission, and that he did not like it, though he said that happened infrequently. He stated that after he spanked CM., he looked to make sure he did not leave a mark. He also testified that CM. was having difficulties with "bathroom issues" and appellant would help by wiping CM.

         {¶4} CM. testified that he eventually told his mother about the abuse and she stopped taking him to the appellant's house, but she told him not to tell anyone else or else he would be taken away from her. For undisclosed reasons, CM. was ultimately removed from his mother's custody on September 2, 2016. CM. underwent counseling in October 2016, at which time he disclosed the abuse to a social worker, Kalleigh Wallace. A physical examination of CM. revealed no evidence of sexual abuse.

         {¶5} CM. was referred to Melinda Andel, a pediatric sexual abuse nurse examiner at the Children's Advocacy Center (CAC) at University Hospitals. An interview between Nurse Andel and CM. from October 27, 2016, was video recorded. Ms. Wallace watched the live interview via a television in another room. During the interview, CM. disclosed that he was sexually abused at a specified apartment in Silver Meadows in Kent, which prompted the CAC to call the Kent Police.

         {¶6} Detective Norman Jacobs was assigned to the investigation. He determined the appellant and Amanda Misock lived at the apartment CM. specified. Det. Jacobs testified that he spoke with appellant over the phone and that appellant first responded as if being accused of physical abuse. When Det. Jacobs clarified that abuse was sexual in nature, appellant became defensive and stated CM. was making up the allegations because CM. hated him. Appellant refused to speak with Det. Jacobs further and declined to come in for further questioning.

         {¶7} Appellant was ultimately charged with two counts of Rape, felonies of the first degree, in violation of R.C. 2907.02(A)(1)(b); two counts of Gross Sexual Imposition, felonies of the third degree, in violation of R.C. 2907.05(A)(4); two counts of Sexual Battery, felonies of the second degree, in violation of R.C. 2907.03(A)(5)(b); and one count of Importuning, a felony of the third degree, in violation of R.C. 2907.07(A) and (F)(2). The jury found him guilty on all counts.

         {¶8} The trial court found that the gross sexual imposition counts merged with the rape counts for purposes of sentencing. Appellant was sentenced to life in prison with eligibility for parole after 15 years is served for each of the two counts of rape, to run consecutively to one another; even though the court merged the gross sexual imposition counts with the rape counts, it imposed 5 years for each offense of gross sexual imposition, to run concurrent to one another and with the rape sentences; 8 years for each of the two counts of sexual battery, to run concurrently to each other but consecutively to the sentences for rape; and 3 years for importuning, to run concurrently to the other sentences, for a total of a life sentence with the eligibility for parole after 38 years.

         {¶9} Appellant now appeals, assigning for our review five errors. We do not address them in the order presented.

         I. SECOND ASSIGNMENT OF ERROR

         {¶10} Appellant's second assignment of error states:

         {¶11} The trial court erred as a matter of law in imposing separate sentences for the allied offenses in violation of the double jeopardy clause of the 5th Amendment to the U.S. Constitution and Article I, Section[] 10 of the Ohio Constitution.

         {¶12} The issue presented for review and argument states:

         {¶13} The trial court imposed separate, consecutive sentences for the rape counts and the sexual battery counts. Did the trial court err in imposing separate, consecutive sentences when the facts of the alleged criminal conduct supported merger of the offenses and the trial court failed to properly consider statutory factors?

         {¶14} Ohio's allied offenses statute, R.C. 2941.25, states:

         {¶15} (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

         {¶16} (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

         {¶17} The Supreme Court of Ohio in Jackson, infra, set forth three questions a reviewing court must ask when determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25: "'(1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.'" State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 3d, ¶128, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶31. "[I]mposing separate sentences for allied offenses of similar import is contrary to law and such sentences are void." State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658 ¶2.

         {¶18} First, we note the state does not argue the merging rape counts and sexual battery counts arose from separate instances or were committed with separate motive. Thus, we focus our attention on whether the offenses were of dissimilar import. Offenses are of dissimilar import or significance when "each offense caused separate, identifiable harm." Ruff, supra, at ¶25.

         {¶19} At sentencing, the trial court determined the sexual battery charges did not merge with rape charges because sexual battery requires the offender to be acting in loco parentis, and the violation of this additional element constituted additional harm, namely "an additional violation of trust." However, in this case, we do not find that acting in loco parentis constitutes a separate harm sufficient to determine a rape charge and a sexual battery charge arising from the same occurrence are of dissimilar import. The Bill of Particulars makes no distinction between the conduct alleged for rape, gross sexual imposition, and sexual battery. It only broadly alleges the same actions for each count: "one act that consisted of multiple instances of sexual conduct * * * as part of a pattern of conduct," that occurred "sometime between May 20th, 2013 and May 21st, 2016" while defendant was acting in loco parentis. Merely acting in loco parentis is not enough, given these facts, to distinguish these charges.

         {¶20} Other appellate jurisdictions agree. See, e.g., State v. Marcum, 12th Dist. Preble No. CA2015-04-011, 2016-Ohio-263 (trial court erred in failing to merge the rape and sexual battery charges because they were charged in the alternative, no specific instances of multiple sexual conduct, and no evidence was presented at trial to establish that the offenses were separately committed, resulted in separate identifiable harm, or were committed with separate motivation.); State v. Nickel, 6th Dist. Ottawa No. OT-10-004, 2011-Ohio-1550 ΒΆ7 ("appellant's ...


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