Court of Appeals of Ohio, Eleventh District, Portage
Criminal Appeal from the Portage County Court of Common
Pleas, Case No. 2017 CR 00533.
V. Vigluicci, Portage County Prosecutor, and Theresa M.
Scahill, Assistant Prosecutor, (For Plaintiff-Appellee).
M. Grant, (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
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.
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
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.
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.
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.
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
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.
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.
Appellant now appeals, assigning for our review five errors.
We do not address them in the order presented.
SECOND ASSIGNMENT OF ERROR
Appellant's second assignment of error states:
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.
The issue presented for review and argument states:
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
Ohio's allied offenses statute, R.C. 2941.25, states:
(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.
(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.
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,
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.
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.
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 ¶7 ("appellant's