State v. Gamble ( 2014 )

[Cite as State v. Gamble, 2014-Ohio-2287.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 13 CAA 10 0072
CARLOS GAMBLE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 13 CRI 04 0170
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 27, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN WILLIAM T. CRAMER
Delaware County Prosecuting Attorney 470 Olde Worthington Road, Suite 200
Douglas N. Dumolt Westerville, Ohio 43082
Assistant Prosecuting Attorney
140 N. Sandusky St., 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 13 CAA 10 0072 2
Hoffman, P.J.
{¶1} Defendant-appellant Carlos Gamble appeals his sentence entered by the
Delaware County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant lived with his girlfriend, K.S. and her three children. At all times
relevant herein, K.S. was incarcerated due to a positive drug test and was not present in
the home. A.C., the fourteen year-old daughter of K.S., had several friends to the
home, including her boyfriend, S.S., who often stayed over.
{¶3} After A.C.'s friends left, she and S.S. returned to the home with Appellant.
During the evening, Appellant asked A.C. if he could talk to her alone in her mother's
room. During the conversation, he asked her to sell a few items.
{¶4} Appellant later had A.C. smoke marijuana, and asked her to put on "booty
shorts," or extremely short shorts. A.C. was uncomfortable with the conversation and
returned to her room where S.S. was waiting. She relayed to S.S. she felt uneasy about
Appellant's comments, and told him to fake sick if Appellant came into the room. S.S.
testified at trial he spent the night at the home due to A.C.'s fear to stay alone with
Appellant.
{¶5} In the early morning hours, S.S. was awakened by Appellant who told him
to get in a closet. He had a pocket knife, which he opened and held to S.S.'s neck.
Appellant told S.S. he would tie him up with a belt if he moved. S.S. sat in the closet
and did not move.
{¶6} Appellant returned to A.C.'s room naked. He got into bed with A.C.,
holding a knife to her neck and telling her to shut up. Appellant told A.C. to take off her
Delaware County, Case No. 13 CAA 10 0072 3
pants. He then engaged in cunnilingus and raped her. Appellant ejaculated onto a
towel.
{¶7} Following the sexual activity, Appellant made A.C. go downstairs and take
a shower. Appellant then called S.S. downstairs, ordering him to sit on the couch.
S.S. testified Appellant had a black handled kitchen knife in his hand while ordering him
to remain on the couch.
{¶8} Appellant then gathered up his clothes, and disappeared. A.C. and S.S.
eventually ran to A.C.'s aunt's house nearby and reported the incident.
{¶9} Appellant was indicted by the Delaware County Grand Jury. Count one
and two of the indictment involved two counts of rape involving the acts of cunnilingus
and vaginal penetration of A.C. Count three charged Appellant with the kidnapping of
S.S. during the rape of A.C. Count four charged Appellant with the kidnapping of A.C. to
engage in sexual activity. Count five charged appellant with tampering with evidence.
Count six involved the kidnapping of S.S. by being ordered onto the couch after the
commission of the rape offense. Count seven charged Appellant with kidnapping of
A.C. while he held her at knifepoint ordering her to shower to dispose of evidence.
Following a jury trial, Appellant was convicted on all counts. The trial court merged
count four with counts one and two for sentencing, but did not merge any other counts.
{¶10} The trial court imposed an aggregate prison term of forty-six years in
prison, ordering all time be served consecutively. The court imposed an additional
consecutive prison term of 588 days representing Appellant's remaining time on post-
release control on a prior conviction.
{¶11} Appellant appeals assigning as error:
Delaware County, Case No. 13 CAA 10 0072 4
{¶12} "I. THE TRIAL COURT VIOLATED PRINCIPLES OF DOUBLE
JEOPARDY AND R.C. 2941.25 BY IMPOSING SENTENCE ON TWO COUNTS OF
KIDNAPPING THE SAME VICTIM."
{¶13} Appellant maintains the trial court erred in failing to merge count three and
count six for purposes of sentencing. Count three charged Appellant with the
kidnapping of S.S. during which Appellant held S.S. at knifepoint, ordering him into the
closet in order to commit the rape of A.C. Count six involved the commission of the
kidnapping offense against S.S. during which Appellant ordered S.S. at knifepoint to
remain on the couch while Appellant disposed of the evidence from the rape.
{¶14} R.C. 2941.25 reads,
{¶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} In State v. Johnson, 128 Ohio St. 3d 153, 2010–Ohio–6314, 942 N.E.2d
1061, the Ohio Supreme Court revised its allied-offense jurisprudence. The Johnson
court overruled State v. Rance, 85 Ohio St. 3d 632, 710 N.E.2d 699(1999), “to the extent
that it calls for a comparison of statutory elements solely in the abstract under R.C.
2941.25.” The Court was unanimous in its judgment and the syllabus, “When
Delaware County, Case No. 13 CAA 10 0072 5
determining whether two offenses are allied offenses of similar import subject to merger
under R.C. 2941.25, the conduct of the accused must be considered. ( State v. Rance
(1999), 85 Ohio St. 3d 632, 710 N.E.2d 699, overruled.)” However, the Court could not
agree on how the courts should apply that syllabus holding. The Johnson case lacks a
majority opinion, containing instead two plurality opinions, and a separate concurrence
in the judgment and syllabus only. State v. Helms, 7th Dist. No. 08 MA 199, 2012–
Ohio1147, ¶ 71 (DeGenaro, J., concurring in part and dissenting in part).
{¶18} Justice Brown's plurality opinion sets forth a new two-part test for
determining whether offenses are allied offenses of similar import under R.C. 2941.25.
The first inquiry focuses on whether it is possible to commit both offenses with the same
conduct. Id. at ¶ 48, 710 N.E.2d 699. It is not necessary that the commission of one
offense will always result in the commission of the other. Id. Rather, the question is
whether it is possible for both offenses to be committed by the same conduct. Id.,
quoting State v. Blankenship, 38 Ohio St. 3d 116, 119, 526 N.E.2d 816(1988).
Conversely, if the commission of one offense will never result in the commission of the
other, the offenses will not merge. Johnson at ¶ 51.
{¶19} If it is possible to commit both offenses with the same conduct, the court
must next determine whether the offenses were in fact committed by a single act,
performed with a single state of mind. Id. at ¶ 49, quoting State v. Brown, 119 Ohio
St.3d 447, 895 N.E.2d 149, 2008–Ohio–4569, ¶ 50 (Lanzinger, J., concurring in
judgment only). If so, the offenses are allied offenses of similar import and must be
merged. Johnson at ¶ 50. On the other hand, if the offenses are committed separately
or with a separate animus, the offenses will not merge. Id. at ¶ 51.
Delaware County, Case No. 13 CAA 10 0072 6
{¶20} Under Justice Brown's plurality opinion in Johnson, “the court need not
perform any hypothetical or abstract comparison of the offenses at issue in order to
conclude that the offenses are subject to merger.” Id. at ¶ 47, 128 Ohio St. 3d 153, 942
N.E.2d 1061. Rather, the court simply must ask whether the defendant committed the
offenses by the same conduct. Id.
{¶21} Upon review of the trial testimony and the record evidence, we find the
trial court did not err in not merging counts three and six herein. Count three involved
the commission of a separate act of kidnapping committed with a separate animus.
Appellant kidnapped S.S. at knifepoint in the upstairs closet for the purpose of
committing the rape of A.C. Following the completion of the rape offense, Appellant told
S.S. to come out of the closet. He later ordered him, with the use of a knife to sit on the
couch while he disposed of the evidence of the rape offense, a separate offense. We
find Appellant did so with a separate animus; i.e., to facilitate the disposal of the
evidence regarding the rape of A.C. (tampering with evidence). We find the two
charges involve separate conduct and were committed with separate animus. The trial
court did not err in denying Appellant's request to merge the subject convictions for
purposes of sentencing.
{¶22} Appellant's sole assignment of error is overruled.
Delaware County, Case No. 13 CAA 10 0072 7
{¶23} The judgment of the Delaware County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur