State v. Brown , 2009 Ohio 5428 ( 2009 )

[Cite as State v. Brown, 2009-Ohio-5428.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-09-15
v.
JOHN E. BROWN, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 08-CR-359
Judgment Affirmed
Date of Decision: October 13, 2009
APPEARANCES:
Kevin P. Collins for Appellant
Brent W. Yager for Appellee
Case No. 9-09-15
SHAW, J.
{¶1} Defendant-appellant, John E. Brown, appeals the February 10, 2009
judgment of the Common Pleas Court of Marion County, Ohio, finding him guilty
of three counts of gross sexual imposition and one count of burglary and
sentencing him to an aggregate sentence of twelve years and six months of
imprisonment.
{¶2} The facts relevant to this appeal are as follows. In August of 2007,
Brown (who goes by the name “Bill”) met the victim, L.B., at an assisted living
complex in Marion, Ohio, called “The Sterling House,” where he worked as a
maintenance man. L.B.’s mother had recently begun living at the Sterling House
in the memory care area because she was suffering from Huntington’s Disease.
Over the next year, L.B., who is thirty-three-years-old but is mentally challenged,
would visit her mother nearly every day with her father, William. During these
visits, William would feed and care for his wife, while L.B. would mingle with the
staff and other residents in the facility in the living room area. L.B. also
volunteered at The Sterling House with the activities by doing simple tasks such as
passing out bingo cards to residents, setting up chairs, and placing craft materials
on the tables.
{¶3} On September 1, 2008, L.B. did not go with William to visit her
mother because she was tired and not feeling well. Instead, she remained at the
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home she shared with her father on Harding Highway in Marion County, Ohio.
When William arrived at the Sterling House, Brown was working. At some point,
Brown asked William where L.B. was, and William told him she did not feel well
and was at home. Brown left the Sterling House a few minutes after the noon
hour, while William was still caring for his wife.
{¶4} Shortly after leaving the Sterling House, Brown began traveling in
the direction of L.B.’s home. Brown stopped at the home, and L.B. allowed him
into the home. According to Brown’s testimony, he sat next to L.B. on the living
room couch, and the two began looking at a music CD and pictures in a
newspaper. At some point, L.B. reached over to Brown and touched his leg. She
then touched his penis over his clothing, began fondling it, and said, “Nice.” He
then asked her if she wanted to see it, and she said, “Yes.” Brown exposed his
penis, and L.B. touched it again and said, “Nice.” Brown further testified that
L.B. removed her pants and underwear. She also lifted her shirt. When she raised
her shirt, Brown ran his hand along her breast and said, “Nice.” Brown also
testified that he touched L.B.’s vagina with his penis but denied that any
penetration occurred.
{¶5} William, who normally visited with his wife for some time after
feeding her lunch, left the Sterling House early that day because his wife did not
feel well and wanted to rest. When he arrived home around 12:30 p.m., he noticed
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an unfamiliar Jeep Wrangler in his driveway. Upon entering the home through the
garage, he found Brown in the living room zipping up his pants and L.B. sitting on
the couch with her pants and underwear down. Brown immediately told William
that nothing happened and that it was not what William was thinking. He also
repeatedly asked William, who was quite upset, to not call the police. William
told Brown to stay where he was, and Brown remained in the home while William
called the Marion County Sheriff’s Office.
{¶6} Officers with the Sheriff’s Office arrived on scene shortly thereafter.
Deputy Thomas Miller arrived first and directed Brown to step into the garage to
speak with another officer. Dep. Miller then attempted to speak with L.B. but was
unsuccessful as she would not talk to him. He asked her several times if she was
okay, and L.B. finally answered, “Yes,” but gave him no further information. He
then briefly spoke with William about L.B.’s condition and instructed William to
remain with her while he went to the garage and made contact with Lieutenant Jeff
Cline, who was speaking with Brown about what had transpired.
{¶7} Brown initially denied that he touched L.B. in any way. However,
he later admitted that the “did touch her around the groin area and her hair.” (Trial
Trans. p. 378.) He also told Lt. Cline that L.B.’s mental age was about seven or
eight-years-old and that she did not communicate very well but rather answered
things in one word answers or pointed to things. After this brief discussion,
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Brown agreed to accompany the officers to the Sheriff’s Office for a more formal
interview.
{¶8} L.B. was taken to Marion General Hospital, where she underwent a
sexual assault nurse examination (“SANE”). Prior to the examination, the SANE
nurse spoke with L.B. L.B. used her teddy bear to indicate where she was touched
and told the nurse, “He touched pee-pee.” When asked, “Who,” L.B. replied
“Bill.” She also stated that Bill touched her “pee-pee” and pointed to her vaginal
area. L.B. further revealed, “He put his pee-pee in pee-pee,” and again pointed to
her vaginal area.
{¶9} During the examination, the SANE nurse took numerous swabs from
L.B.’s vaginal and anal areas. She also noted a one-inch abrasion, which was
bleeding, on the inside of L.B.’s vagina, behind her hymen. The nurse collected
L.B.’s clothing and eventually gave the clothing, along with the swabs, to law
enforcement.
{¶10} While L.B. was being examined at the hospital, Brown was
interviewed at the Sheriff’s Office by Lt. Cline. In this recorded interview, Brown
repeated what he told Lt. Cline in the garage about what had transpired between
him and L.B. He also admitted to ejaculating on the floor in front of the couch
and to then touching L.B.’s vagina with his penis. After speaking with the
officers, Brown agreed to go to the hospital for an examination.
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{¶11} Brown went to Marion General Hospital. Dep. Miller followed him
there. The hospital was busy, and Brown was informed by hospital staff that it
was going to be hours before he could be seen. A call was placed to Lt. Cline, and
Brown asked if he could get something to eat and return later for the examination.
Lt. Cline told him that although he preferred that Brown wait, he could not force
him to stay. Brown left but later returned to the hospital, where the medical
records indicated his examination began at 6:30 p.m. As a part of the
examination, oral, penile, and anal swabs were taken from Brown. These swabs
were later delivered to law enforcement.
{¶12} The Bureau of Criminal Identification and Investigation (“BCI”)
later examined the swabs taken from both Brown and L.B. Seminal fluid was
found on L.B.’s anal and vaginal swabs and in her underwear. However, a DNA
profile was unable to be obtained from this fluid due to a lack of spermatozoa
within the seminal fluid. BCI was able to obtain a DNA profile from Brown’s
penile swab. Both Brown’s DNA and L.B.’s DNA were found on the penile swab.
{¶13} On September 17, 2008, Brown was indicted for three counts of
gross sexual imposition in violation of R.C. 2907.05(A)(5), each a felony of the
fourth degree; one count of rape in violation of R.C. 2907.02(A)(1)(c), a felony of
the first degree; and one count of aggravated burglary in violation of R.C.
2911.11(A)(1), also a felony of the first degree.
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{¶14} The case proceeded to a jury trial on December 15-17, 2008. After
the presentation of the State’s case-in-chief, the defense made a motion for
acquittal, pursuant to Crim.R. 29, on each count, which was overruled by the trial
court. The defense then presented its case, and closing arguments and jury
instructions were given. The jury was instructed on all five counts of the
indictment and on the lesser included offense of burglary, a second degree felony
in violation of R.C. 2911.12(A)(1). Thereafter, the jury found Brown guilty on all
three counts of gross sexual imposition, not guilty on the rape and aggravated
burglary charges, and guilty of the lesser included offense of burglary.
{¶15} On February 9, 2009, Brown was sentenced. The trial court
sentenced him to eighteen months in prison on each of the three gross sexual
imposition counts and to eight years in prison on the burglary count. These counts
were ordered to be served consecutively to one another for an aggregate total of
twelve years and six months imprisonment. This appeal followed, and Brown now
asserts three assignments of error.
ASSIGNMENT OF ERROR I
THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
SUPPORT DEFENDANT-APPELLANT’S CONVICTIONS
FOR GROSS SEXUAL IMPOSITION.
ASSIGNMENT OF ERROR II
THE COURT ERRED TO THE PREJUDICE OF
DEFENDANT- APPELLANT BY SENTENCING HIM ON
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THREE CONVICTIONS FOR GROSS SEXUAL
IMPOSITION.
ASSIGNMENT OF ERROR III
THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
SUPPORT DEFENDANT-APPELLANT’S CONVICTION FOR
BURGLARY.
{¶16} For ease of discussion, we elect to address the first and third
assignments of error together.
First and Third Assignments of Error
{¶17} In his first assignment of error, Brown maintains that the evidence
was insufficient to support the three counts of gross sexual imposition. Brown
also asserts in his third assignment of error that the evidence was insufficient to
sustain his conviction for burglary. Reviewing a challenge to the sufficiency of
the evidence requires this Court to examine the evidence in the light most
favorable to the prosecution. The Ohio Supreme Court has set forth the
sufficiency of the evidence test as follows:
[A]n appellate court’s function when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the
evidence admitted at trial and determine whether such evidence,
if believed, would convince the average mind of the defendant's
guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable
doubt.
State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492.
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{¶18} Upon review of the record, we find that Brown made his Crim.R. 29
motion at the close of the state’s case, proceeded to present evidence on his behalf,
and then failed to renew his motion for acquittal at the conclusion of all of the
evidence. Thus, he has waived all but plain error as to the sufficiency of the
evidence. See State v. Jones, 91 Ohio St.3d 335, 346, 744 N.E.2d 1163, 2001-
Ohio-57. In order to find plain error, there must be a deviation from a legal rule,
the error must be an “obvious” defect in the trial proceedings, and the error must
affect a defendant’s “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27, 759
N.E.2d 1240, 2002-Ohio-68. Reversal on plain error is to be used “with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage” of justice. Id.{¶19} To prove the charges of gross sexual imposition, the State had to
show that Brown purposely had sexual contact with L.B., who was not his spouse,
when L.B.’s ability to resist or consent was substantially impaired because of a
mental condition, and Brown knew or had reasonable cause to believe that L.B.’s
ability to resist or consent was substantially impaired because of her mental
condition. See R.C. 2907.05(A)(5).
{¶20} Specifically, Brown asserts that the State failed to present sufficient
evidence regarding two of the required elements: (1) that L.B.’s ability to resist or
consent was substantially impaired; and (2) that Brown knew or had reasonable
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cause to believe that L.B.’s ability to resist or consent was substantially impaired.
In support of this position, Brown contends that the evidence established that L.B.
had the ability to express what she did and did not want and/or like and that the
evidence did not show that he knew or had reason to believe that her mental
condition was so substantially impaired that she could not resist or consent to their
sexual contact.
{¶21} The term “substantially impaired” is not statutorily defined.
However, the Ohio Supreme Court, in giving this term its plain and ordinary
meaning, has held that
substantial impairment must be established by demonstrating a
present reduction, diminution or decrease in the victim’s ability,
either to appraise the nature of his conduct or to control his
conduct. This is distinguishable from a general deficit in ability
to cope, which condition might be inferred from or evidenced by
a general intelligence or I.Q. report.
State v. Zeh (1987), 31 Ohio St.3d 99, 103-104, 509 N.E.2d 414. “‘Substantial
impairment’ need not be proven by expert medical testimony; it may be proven by
the testimony of persons who have had some interaction with the victim and by
permitting the trier of fact to obtain its own assessment of the victim’s ability to
either appraise or control her conduct.” State v. Hillock, 7th Dist. No. 02-538-CA,
2002-Ohio-6897, at ¶ 21, citing State v. Tate (Oct. 26, 2000), 8th Dist. No. 77462,
2000 WL 1594426; see also State v. Dorsey, 5th Dist. No. 2007-CA-091, 2008-
Ohio-2515, at ¶ 43; State v. Brady, 8th Dist. No. 87854, 2007-Ohio-1453, at ¶ 78.
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{¶22} While the Supreme Court discussed the term “substantial
impairment” in Zeh, the issue in that case concerned whether the defense could
move to bar the State from using evidence of a “mental condition that was
obtained in a clinical interview of the witness prior to trial[,]” not what evidence
was necessary to find the victim was substantially impaired. Zeh, 31 Ohio St.3d at
105. Thus, courts have made this determination on a case-by-case basis, providing
great deference to the fact-finder. See e.g. Dorsey, supra (finding sufficient
evidence of substantial impairment of 80-year-old victim who suffered from
dementia, lived independently, but was unable to care for herself without some
assistance); State v. Thomas, 1st Dist. No. C-060318, 2007-Ohio-1723 (finding
sufficient evidence of substantial impairment where victim was mentally
handicapped, worked for a company that employed people who were unable to
maintain employment in the regular workforce, was unable to live independently,
and was unable to find her way home from any point at a significant distance from
her residence due to her mental disability); State v. Shepherd, 8th Dist. No. 81926,
2003-Ohio-3356 (finding sufficient evidence of substantial impairment where 33-
year-old victim, who lived alone, had a mental age of five, an IQ of 33 or 34, and
had child-like interests such as playing hide and seek, coloring, and watching
cartoons).
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{¶23} In the case sub judice, L.B.’s father testified that L.B. was thirty-
three-years-old at the time of the offense, mentally impaired, and had the mental
capabilities of a five to seven-year-old. He further testified that L.B. has never
lived on her own, has never gone shopping without assistance, was not capable of
doing most things by herself, has no concept of money, and that she has to be
reminded to change her clothes or she will wear the same thing for days. He also
testified that he had to help her wash her hair, remind her to take a bath, and
prepare her meals for her.
{¶24} William further testified that for entertainment, L.B. watches ball
games and music shows on television and plays with stuffed animals. She also
sleeps with dolls. L.B. never attended regular school but did attend an educational
program for children who are mentally disabled. She has never driven a car or had
a job. L.B. speaks in one to three word sentences, points if she wants something,
and cannot answer the telephone because she cannot carry on a conversation. L.B.
had never dated anyone or been married. Additionally, she was given a certain
type of birth control to prevent her from menstruating because she was not able to
properly care for herself during her menstrual cycle. William never discussed sex
with L.B. because he believed she would not understand the subject-matter.
Further, William rarely left L.B. home alone, and when he did so, he never left her
for more than a couple of hours.
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{¶25} Ruth Weinbrom, a psychologist with North Central Ohio
Educational Service Center who works with special needs students, also testified
on behalf of the State. Weinbrom testified that mental retardation is a sub-average
intellectual functioning combined with adaptive behavior deficits in at least two
areas. Adaptive behavior, according to Weinbrom, refers to the skills and abilities
that an individual must have to meet the social and cultural expectations for
independent living. In short, mental retardation describes an individual’s ability to
process information and includes one’s cognitive ability to make choices. IQ tests
are used to measure a person’s cognitive ability, i.e. intellectual skills. These tests
are structured for a majority of the population, scores are usually reported in a
range, and the tests are designed so that the results remain relatively the same
throughout a person’s life span whether the person is ten or fifty-years-old.
{¶26} She also testified that the range of a normal IQ is 85 to 115. An IQ
range of 70-75 or below is defined as mental retardation. There are also levels of
mental retardation, with a range of 50 or 55 to 75 being mild mental retardation,
35 or 40 to 50 being moderate mental retardation, 24 to 35 being severe mental
retardation, and below 20 being profound mental retardation. Of all mentally
retarded individuals, approximately 85% have mild mental retardation,
approximately 10% have moderate mental retardation, approximately 3-4% have
severe mental retardation, and 1-2% have profound mental retardation.
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{¶27} Weinbrom further testified that someone who is moderately mentally
retarded has difficulty learning, has difficulty with reasoning skills and problem
solving, his/her communication skills develop much later, academic skills
typically reach a second grade level, and he/she would need supervision for daily
living but may be able to have a job under supervision. In addition, a moderately
retarded adult would have a mental age range of five to eight-years old. A
severely mentally retarded individual has less language development and less of
an ability to take in information, to reason, and to problem solve. Such a person
would need repetitive teaching to learn basic life skills, would achieve a
kindergarten or first-grade level academically, and would need much more
intensive support for daily living and a sheltered workshop setting for
employment. Weinbrom also testified that a severely retarded adult would have a
mental age range of three to five-years-old.
{¶28} When L.B. was sixteen-years-old, Weinbrom conducted a psycho-
educational evaluation on her. This evaluation contained two IQ tests performed
on L.B. when she was nine-years-old and when she was twelve-years-old. At age
nine, L.B.’s cognitive, social, visual-fine motor, receptive language and social-
emotional development age was approximately that of a four-year-old. At twelve-
years-old, her IQ test results indicated that she was within the moderate to severe
range of mental retardation, with an IQ score in the range of 35. Weinbrom’s
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evaluation of L.B.’s IQ at age sixteen also placed L.B. in the moderate to severe
range of mental retardation, with an overall IQ score of 36. In addition, L.B.’s
adaptive behavior evaluation yielded an overall score of 25, placing her in the
severe or profound range of mental retardation. Based on Weinbrom’s assessment
of L.B., she fell in the lower 15% of all mentally retarded individuals.
{¶29} John Holsinger, the activities director at Sterling House, also
testified. He met L.B. when her mother moved into the facility. He testified that
L.B. helped him with simple jobs, such as placing bingo cards on the tables for
residents, but that L.B. was not able to help residents find numbers on their cards.
He also stated that she looks like she is mentally challenged. Holsinger interacted
with L.B. frequently but she was unable to have an adult conversation with him.
Instead, she would provide two to four word responses to questions and comments
made by him to her. Further, he testified that L.B. is friendly, giving hugs to
everyone, and that he never observed her treat Brown differently from anyone
else.
{¶30} Deputy Miller, the first one to respond to L.B.’s home, testified that
he attempted to speak with L.B., however, she would not talk with him. Although
she eventually told him that she was “o.k.,” he testified that it was apparent to him
upon looking at her that she was mentally challenged.
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{¶31} In addition, Lt. Cline testified that Brown, himself, made a statement
in the garage that L.B. spoke in one word answers and pointed and that her mental
age was around that of a seven or eight-year-old. Furthermore, in his recorded
statement to the officers, Brown stated that L.B. did not speak that much and that
he would tease her by looking at pictures of animals in a book and misidentifying
them so that she would correct him. For instance, Brown would point to a picture
of a horse and say, “Horse,” and would point to it again and say, “Cow,” and L.B.
would correct him by saying, “No, horse.” He would also tease her by asking,
“Where’s my candy,” whenever she would be looking through her purse and
showing him what she had in her purse. When he was working at the Sterling
House, Brown would allow L.B. to turn the lights off in various rooms because
“she got a kick out of it.”
{¶32} Throughout this interview, Brown repeatedly stated that the incident
was his fault and that he should not have been out there, he should not have let her
do what she did, he should have known better, and he did not “even know if she
really even knew what she was doing.” He also stated that he was sixty-five-years
old, recently divorced after thirty-eight years of marriage, had six children of his
own, and that he did not blame William for being upset because he would be upset
if she was his daughter.
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{¶33} Moreover, Laura Kaiser, the SANE nurse who examined L.B.,
testified that it was apparent that L.B. was not a normally functioning individual.
Because of L.B.’s obvious limitations, Nurse Kaiser, who had performed 97 adult
SANE exams and 47 pediatric SANE exams at the time of trial, decided to try to
determine L.B.’s level of functioning in order to best communicate with her and
make her feel comfortable with the examination. In so doing, she noted that L.B.
spoke “baby talk,” i.e. broken sentences such as, “I want bear.” She asked L.B. to
identify numbers and to recite the alphabet, but L.B. was incapable of doing either.
Nurse Kaiser then decided to try a more rudimentary task and have L.B. color in
order to determine whether L.B. could accurately identify colors. L.B. was able to
do so. She was also able to properly identify various body parts, but did so
through the use of a purple teddy bear she had brought to the hospital with her.
{¶34} When Nurse Kaiser began asking L.B. why she was there, L.B.
stated, “I want my daddy.” The nurse then asked if there was any part on her body
that hurt, and L.B. again stated, “I want my daddy.” Nurse Kaiser then decided to
rely on the teddy bear because L.B. seemed more comfortable communicating
through the bear. She asked the teddy bear if it hurt anywhere, and L.B. stated,
“He touched pee-pee” and pointed to the bear. L.B. then stated, “He touched my
pee-pee,” and pointed to her vagina. When asked, “Who,” L.B. responded, “Bill,”
and further stated, “He put pee-pee in pee-pee,” and pointed to her vagina again.
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Through this conversation, Nurse Kaiser determined that L.B. appeared to be
functioning similarly to a three or four-year-old and chose to examine L.B. as if
she were performing a pediatric examination.
{¶35} The State also introduced three photographs of L.B. from the neck
up, which were taken by Nurse Kaiser on the day of her examination. In one of
the photographs, L.B. is holding the purple teddy bear she brought with her to the
hospital.
{¶36} After the State presented its case, Brown testified on his own behalf.
In his testimony, Brown stated that he did not consider L.B. to be a child but
“considered her as a slow person.” Brown denied ever believing her mental
abilities were that of a seven or eight-year-old. He also testified that he thought
everyone treated her as a child but he felt that “they should give her that chance to
be her own self.” Brown further stated that when he and L.B. were touching one
another that he believed she knew what she was doing.
{¶37} During cross-examination, Brown testified that the only reason he
told Lt. Cline in his recorded interview that L.B. did not know what she was doing
was to protect her reputation. He also acknowledged that if a seven or eight-year-
old child would have touched his penis, he would not have engaged in sexual
activity with the child and would have explained to the child that such actions
were improper.
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{¶38} Despite Brown’s testimony, when construing the evidence in a light
most favorable to the prosecution, the record amply demonstrates L.B.’s mental
deficiency. Her interests and abilities, such as coloring and placing bingo cards,
were those of a young child. Although her physical age and anatomy were that of
an adult, nothing about her lifestyle indicated that she had the mental maturity of
an adult. Everyone who knew L.B. and testified on behalf of the State, testified
that L.B.’s mental deficiency was obvious. Even those who had only met her for
the first time on the day of incident quickly realized, either from her appearance or
within a few moments of speaking with her, that she was mentally impaired. In
fact, Nurse Kaiser found her abilities so impaired, that she decided that a pediatric
SANE examination was necessary for her thirty-three-year-old patient.
{¶39} Moreover, Brown’s own statements evidenced his knowledge of her
significant limitations. Brown was sixty-five and had raised six children of his
own. Nothing in his recorded interview evidenced that he had any mental
limitations of his own or was otherwise incapable of discerning L.B.’s mental
capabilities. Further, the jury was able to personally witness Brown testify and
determine his ability to understand and comprehend matters. Although disputed
by Brown in his testimony, he stated to Lt. Cline that he believed that her mental
functioning was that of a seven or eight-year-old. In addition, Brown’s depictions
of the types of conversations in which L.B. engaged with him illustrated that these
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conversations were rudimentary and typical of communications one might have
with a very young child. The others who testified about her communication level
had these same types of basic communications with her.
{¶40} Thus, after viewing all the evidence in a light most favorable to the
prosecution, a rational trier of fact could have found beyond a reasonable doubt
that L.B.’s ability to consent or resist was substantially impaired due to her mental
condition and that Brown knew or had reasonable cause to believe that L.B.’s
ability to resist or consent was substantially impaired. Accordingly, the first
assignment of error is overruled.
{¶41} As for the burglary conviction at issue in the third assignment of
error, the State had to show that Brown, by force, stealth, or deception trespassed
in an occupied structure when another person other than an accomplice of Brown’s
was present with purpose to commit in the structure any criminal offense. See
R.C. 2911.12(A)(1). Here, Brown contends that the State failed to show two of
the required elements: (1) the underlying criminal offense, i.e. gross sexual
imposition; and (2) that he trespassed.
{¶42} The Ohio Supreme Court has held that a person who lawfully enters
another’s premises becomes a trespasser subject to conviction for burglary by
virtue of the commission of a felony on the premises. See State v. Steffen (1987),
31 Ohio St.3d 111, 115, 509 N.E.2d 383. Accordingly, although Brown may have
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been invited into the home by L.B., the privilege to lawfully be in the home was
revoked by virtue of the commission of any one of the gross sexual imposition
offenses. Having previously found that the State presented sufficient evidence on
the gross sexual imposition charges, we find Brown’s third assignment of error
challenging the sufficiency of the evidence on the burglary count to be without
merit. Therefore, the third assignment of error is overruled.
Second Assignment of Error
{¶43} In Brown’s second assignment of error, he maintains that the trial
court erred in failing to merge all three counts of gross sexual imposition. More
specifically, he asserts that these three offenses were part of one course of conduct
without any break in the temporal continuum between them.
{¶44} Ohio’s multiple-count statute 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.
R.C. 2941.25. In order to determine whether the trial court should have merged
these offenses, we must apply the two-step analysis established by the Ohio
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Supreme Court. See State v. Jones, 78 Ohio St.3d 12, 13, 676 N.E.2d 80, 1997-
Ohio-38, citing State v. Blankenship (1988), 38 Ohio St.3d 116, 526 N.E.2d 816.
First, a comparison of the elements of the crimes is necessary. “If the elements of
the offenses correspond to such a degree that the commission of one crime will
result in the commission of the other, the crimes are allied offenses of similar
import and the court must then proceed to the second step.” Blankenship, 38 Ohio
St.3d at 117. In the second step, the defendant’s conduct is reviewed to determine
whether the defendant can be convicted of both offenses. “If the court finds either
that the crimes were committed separately or that there was a separate animus for
each crime, the defendant may be convicted of both offenses.” Id.
{¶45} The Ohio Supreme Court has held that crimes involving distinct
sexual activity, i.e., vaginal intercourse, cunnilingus, and digital penetration, each
constituted a separate crime with a separate animus, and they do not constitute
allied offenses of similar import. State v. Nicholas (1993), 66 Ohio St.3d 431,
435, 613 N.E.2d 225. This Court has previously followed the rationale of
Nicholas, and applied it to the offense of gross sexual imposition. See State v.
Austin, 138 Ohio App.3d 547, 549-550, 741 N.E.2d 927, 2000-Ohio-1728.
{¶46} In Austin, the defendant was found guilty of two counts of gross
sexual imposition, one in which the defendant touched the victim’s breast with his
hand and one in which he kissed the victim’s breast with his mouth. Id. at 550.
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This Court found that the record did not demonstrate that these acts occurred “in a
single, simultaneous instance; rather [these] acts occurred separately but in close
proximity of time during the same extended assault of the victim.” Id. Thus, we
concluded that “these acts were of sufficiently separate character * * * so as to
constitute separate crimes that do not constitute allied offenses of similar import.
Therefore, the trial court acted properly in not treating these offenses as allied
offenses of similar import and sentencing defendant for both.” Id.
{¶47} This case is similar to Austin. Here, Brown’s act of unzipping his
pants and exposing his penis to have L.B. touch it, his act of touching L.B.’s
breast, and his subsequent act of touching her vagina with his penis after he
ejaculated did not occur in a single, simultaneous instance. Rather, these acts
occurred separately but in close proximity of time during the same assault. As
such, they were of sufficiently separate character so as to constitute separate
crimes that do not constitute allied offenses of similar import. Therefore, as was
the case in Austin, the trial court did not err in refusing to merge these three
offenses, and the third assignment of error is overruled.
{¶48} For these reasons, the judgment of the Common Pleas Court of
Marion County, Ohio, is affirmed.
Judgment Affirmed
PRESTON, P.J., and ROGERS, J., concur.
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