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State v. Cole

Court of Appeals of Ohio, Sixth District, Erie

December 31, 2019

State of Ohio Appellee
v.
Dameun Cole Appellant

          Trial Court No. 2018CR001

          Kevin J. Baxter, Erie County Prosecuting Attorney, and Anthony A. Battista III, Assistant Prosecuting Attorney, for appellee.

          Loretta Riddle, for appellant.

          DECISION AND JUDGMENT

          MAYLE, P.J.

         {¶ 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 affirm.

         I. Background

         {¶ 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 both sides.

         {¶ 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. [1] 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 ...


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