Court No. 2018CR001
J. Baxter, Erie County Prosecuting Attorney, and Anthony A.
Battista III, Assistant Prosecuting Attorney, for appellee.
Loretta Riddle, for appellant.
DECISION AND JUDGMENT
1} Defendant-appellant, Dameun Cole, appeals the
November 9, 2018 judgment of the Erie County Court of Common
Pleas, convicting him of four counts of gross sexual
imposition and sentencing him to a total prison term of
nine-and-a-half years. For the reasons that follow, we
2} Dameun Cole was indicted on January 18, 2018, on
four counts of rape under R.C. 2907.02(A)(2) and (B) (Counts
1-3, and 7); three counts of sexual battery under R.C.
2907.03(A)(5) and (B) (Counts 4, 8, and 9); one count of
gross sexual imposition under R.C. 2907.05(A)(4) and (C)(2)
(Count 5); and one count of rape of a person under the age of
13 under R.C. 2907.02(A)(1)(b) and (B) (Count 6). These
charges stemmed from Cole's sexual abuse of his
stepdaughters, C.W. and T.W., then ages 14 and 16.
3} According to the information contained in the
record, the girls approached a guidance counselor at school
to report that Cole was sexually abusing them. The guidance
counselor alerted the school's resource officer and Erie
County Children's Services (ECCS), and the resource
officer notified a detective with the Sandusky Police
Department. The girls were interviewed by ECCS
representatives and Detective Kenneth Nixon.
4} T.W. reported that Cole began abusing her in
October or November of 2012. It began by Cole suggesting to
T.W. that they make a deal: if T.W. would do
"favors" for Cole, he would give her whatever she
wanted. T.W. believed that she would be performing chores in
exchange for "get[ting] things," but soon learned
that Cole intended for her to perform sexually-related
favors. Initially, Cole masturbated in front of T.W. It later
progressed to Cole demanding that T.W. perform oral sex on
him, and eventually, Cole attempted to have vaginal sex with
T.W., but was unsuccessful. T.W. reported that Cole performed
oral sex on her and penetrated her vagina with his fingers.
5} T.W. explained that Cole would usually text her
to initiate sexual contact with her. The texts usually began
with him asking her "what's up?", to which T.W.
would respond "I'm in" or "I'm
out." T.W. showed the ECCS workers and Detective Nixon
some of the text messages between them for various dates in
2017. Those messages corroborated what T.W. had reported.
6} C.W. also spoke with ECCS and Detective Nixon.
C.W. said that several years earlier, Cole began asking her
to send him photos of her "privates." C.W. sent him
pictures of her vagina. Starting in mid-2015, he began
masturbating in front of her. In early 2017, he attempted to
have sex with her, but she was a virgin and it hurt. He tried
a second time and successfully penetrated her vagina. C.W.
said that when she had intercourse with Cole, she would cry,
but he did not notice. She said that the last time she had
intercourse with Cole was on his birthday, December 12, 2017.
She also performed oral sex on him on that date. C.W. showed
ECCS and Detective Nixon a text message from December 12,
2017, consistent with what she had reported.
7} C.W. also told ECCS and Detective Nixon that Cole
gave her a sexually transmitted disease-Trichomoniasis-three
times. Medical records obtained by ECCS corroborated that in
February, April, and November of 2017, C.W. was treated for
the STD at Firelands Hospital's emergency room. C.W. told
ECCS and Detective Nixon that she asked her sister to report
what was happening to them or it would never stop.
8} Detective Nixon interviewed Cole. Cole denied
raping the girls. He was asked about the text messages that
the girls showed Detective Nixon. Cole claimed that another
individual had the ability to access the messaging
applications on his phone, but he acknowledged that some of
the text messages "happened." As to one text
message in particular where Cole requested oral sex from
C.W., he stated that "wanting and getting are two
different things." He also said that he "never got
as far as to be able to penetrate them." He explained
that whenever it was about to happen, there was an excuse on
9} Cole ultimately entered a plea of guilty to
Counts 1-3, amended to gross sexual imposition under R.C.
2907.05(A)(1), and Count 5. The state entered a nolle
prosequi as to Counts 4 and 6-9. The trial court found Cole
guilty. It ordered a presentence investigation report and
continued the matter for sentencing.
10} The day before he was scheduled to be sentenced,
Cole submitted a sentencing memorandum arguing that his
convictions of the first three counts should be merged for
purposes of sentencing because "the possibility exists
that the convictions resulting from Counts 1, 2, and 3
resulted from the same instance of conduct." He claimed
that while the indictment indicated that Counts 1-3 occurred
sometime between January 1, 2017, and December 15, 2017, the
judgment entry for his guilty plea listed no particular dates
that the crimes were committed. He argued that even though
the indictment listed a range of dates, the first three
counts of the indictment did not list "separate,
mutually exclusive dates" or "separate, mutually
exclusive ranges of dates" to suggest that there had
been multiple incidents. He insisted that there was nothing
before the court "definitively suggesting" that
Counts 1-3 resulted from three separate incidents, and there
exists a "distinct possibility" that they resulted
from the same act. Alternatively, Cole asked that concurrent
sentences be imposed.
11} The state's attorney received Cole's
motion at the hearing. Although the state did not file a
written response, it argued that Cole was indicted on
multiple counts for multiple occurrences that took place over
a one-year time period. The state's attorney explained
that when multiple instances of abuse occur, it is sometimes
difficult for young children "to nail down exactly what
dates those happen[ed] on, which is why [they] give a range
of dates," and, in fact, her understanding was that
there were more than just three instances of abuse in this
case.  She emphasized that it was understood and
written into the plea agreement that Cole could potentially
be imprisoned for nine-and-a-half years-not that the counts
were subject to merger.
12} The trial court rejected Cole's merger
argument. It informed the parties that it was well aware of
the facts of the case from its review of the PSI, police
reports, and the records submitted in support of an earlier
motion to suppress evidence of Cole's interview with
Detective Nixon. The court disagreed that the first three
counts arose from only one event. It specifically referenced
dates that text messages were sent and how those messages
corresponded with allegations of sexual conduct. It also
noted that in his statement, Cole conceded that multiple acts
had occurred when he denied penetrating the girls because
"every time" he had the chance, the girls'
mother would come home or would wake up. And it observed that
C.W. had contracted an STD from Cole three separate times and
sought medical treatment on each occasion.
13} The court sentenced Cole to 18 months'
imprisonment on Counts 1-3, and 60 months on Count 5, all to
be served consecutively, for a total term of imprisonment of
nine years, six months. The court imposed a mandatory period
of post-release control as to each count.
14} Cole appealed and assigns the following ...