State v. Sims , 2024 Ohio 250 ( 2024 )


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  • [Cite as State v. Sims, 
    2024-Ohio-250
    .]
    COURT OF APPEALS OF OHIO
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    STATE OF OHIO,                                  :
    Plaintiff-Appellee,            :
    No. 112671
    v.                             :
    DEVIN SIMS,                                     :
    Defendant-Appellant.           :
    JOURNAL ENTRY AND OPINION
    JUDGMENT: AFFIRMED IN PART; VACATED IN PART;
    AND REMANDED
    RELEASED AND JOURNALIZED: January 25, 2024
    Criminal Appeal from the Cuyahoga County Court of Common Pleas
    Case No. CR-21-661303-A
    Appearances:
    Michael C. O’Malley, Cuyahoga County Prosecuting
    Attorney, and Christine Vacha, Assistant Prosecuting
    Attorney, for appellee.
    Scott J. Friedman, for appellant.
    EILEEN T. GALLAGHER, J.:
    Defendant-appellant,       Devin    Sims   (“Sims”),   appeals   from   his
    convictions and sentence following a jury trial.              Sims raises the following
    assignments of error for review:
    1. The appellant’s conviction for three counts of gross sexual
    imposition was not supported by sufficient evidence.
    2. The appellant’s conviction for three counts of gross sexual
    imposition was against the manifest weight of the evidence.
    3. The trial court erred when it failed to merge the gross sexual
    imposition charges.
    After careful review of the record and relevant case law, we affirm in
    part, vacate in part, and remand the matter for the trial court to implement the
    judgment of this court.
    I. Procedural and Factual History
    On July 15, 2021, Sims was named in a seven-count indictment,
    charging him with three counts of gross sexual imposition in violation of R.C.
    2907.05(A)(4) (Counts 1, 2, and 4); and single counts of attempted gross sexual
    imposition in violation of R.C. 2923.02 and 2907.05(A)(4) (Count 3); importuning
    in violation of R.C. 2907.07(A) (Count 5); public indecency in violation of R.C.
    2907.09(A)(1) (Count 6); and endangering children in violation of R.C.
    2919.22(B)(1) (Count 7). The indictment stemmed from allegations that Sims
    engaged in inappropriate sexual contact with the alleged victim, Child Victim (d.o.b.
    10/26/2009).
    On March 23, 2023, the matter proceeded to a jury trial, where the
    following relevant facts were adduced.
    The Child Victim was 13 years old at the time of trial. In 2020, when
    she was 10 years old, the Child Victim was living with her grandfather on a full-time
    basis and rarely spent time with her biological mother (“Mother”). In September
    2020, however, the Child Victim and her siblings were required to stay at Mother’s
    apartment to attend a family member’s funeral the following day. Sims, who was
    dating Mother at the time, was present in the apartment during the sleepover.
    The Child Victim testified that on the night of the incident, she stayed
    up late to watch videos on the living room couch while her brothers were asleep on
    a nearby mattress. At approximately 3:00 a.m., Sims came into the living room
    wearing nothing but a coat and asked the Child Victim if she would try on the coat
    to “see if it would fit.” (Tr. 244-245.) Sims then took the coat off and handed it to
    the Child Victim.     Confused, the Child Victim complied with Sim’s request.
    Following this interaction, Sims left the living room and the Child Victim continued
    watching videos on her electronic tablet.
    Shortly thereafter, Sims returned to the living room a second time. This
    time, Sims was completely nude. The Child Victim testified that Sims briefly asked
    her about the videos she was watching before leaving the living room.
    Sims later returned to the living room a third time. On this occasion,
    Sims laid next to the Child Victim on the couch and placed his penis on her arm. (Tr.
    247-248.) Sims asked the Child Victim whether she could “keep a secret,” and she
    responded “no.” (Tr. 247.) Undeterred, Sims stated “don’t tell nobody.” (Tr. 247.)
    He then took the Child Victim’s hand and attempted to place it on his penis, but the
    Child Victim resisted. “Hoping [Sims] would leave,” the Child Victim turned her
    tablet off and fell asleep. (Tr. 248.)
    A short time later, Sims awoke the Child Victim by lifting the blanket
    she was sleeping with on the couch. The Child Victim testified that she then felt
    Sims’s “private part” touch her “butt.” (Tr. 249.) In response to this conduct, the
    Child Victim moved her body away from Sims. Sims then left the room, and the
    Child Victim “finally [went] to sleep.” (Tr. 250.) The Child Victim estimated that
    Sims was in the room for approximately one or two minutes before the inappropriate
    touching occurred. The Child Victim testified that she did not immediately run to
    her mother’s bedroom because she was “scared” and “didn’t know what to do.” (Tr.
    249.)
    Approximately two days after the sleepover, the Child Victim reported
    Sims’s conduct to her aunt and grandfather. The police were contacted, and the
    Child Victim provided a statement to two responding officers. The Child Victim was
    then taken to the hospital for a medical evaluation.
    Tina Funfgeld (“Funfgeld”), a sex-abuse intake social worker employed
    by the Cuyahoga County Division of Children and Family Services (“CCDCFS”),
    testified that she conducted a forensic interview of the Child Victim in September
    2020.      Funfgeld summarized the information gathered from the interview as
    follows:
    [The Child Victim] disclosed to me that during a visit at her mother’s
    home that her mother’s — I don’t remember if it was mother’s cousin
    or boyfriend at the time, had entered the room on a couple different
    occasions and at one point in time placed his penis on her arm and
    another time he had gotten on top of her and placed his penis on top of
    her clothes into her rectum, moved up and down. He had left at that
    point, came back and did it, and then left again.
    (Tr. 298-299.) The written summary of the interview, marked state’s exhibit No. 11,
    reflects that the Child Victim identified Sims as the perpetrator by name and
    provided a brief description of his appearance on the night of the incident. Based
    on the nature of the allegations, CCDCFS made referrals for the Child Victim to
    engage in further counseling services.
    Kathleen Hackett (“Nurse Hackett”) testified that she is employed as
    a Sexual Assault Nurse Examiner at UH Rainbow Babies and Children’s Hospital.
    In September 2020, Nurse Hackett examined the Child Victim and completed a
    sexual-assault kit. During the examination, the Child Victim reported that “Devin,”
    her mother’s “cousin or boyfriend,” touched her arm with his private part, attempted
    to make her touch his private part with her hand, and touched her butt with his
    private part. (Tr. 324.) The Child Victim did not report any instances of penetration
    and stated that she was wearing her pajamas during the entirety of the incident. The
    pajamas were later recovered for forensic analysis.
    Hristina Lekova (“Lekova”), a DNA expert from the Cuyahoga County
    Regional Scientific Laboratory, testified that she performed forensic testing on
    several items contained in the sexual-assault kit, including a vaginal swab, an anal
    swab, a swab of a dried stain discovered on the Child Victim’s “left-front upper arm,”
    and the pajama pants worn by the Child Victim on the night of the incident.
    (Tr. 370-371.) In relevant part, Lekova testified that the DNA profile recovered from
    the pajama pants was a mixture, meaning “that [the] profile contains DNA from
    more than one individual.” (Tr. 372.) Lekova stated that there was a match between
    the DNA recovered from the pajamas and a buccal swab taken from Sims during the
    police investigation. Lekova explained that “this matches 320 septillion more
    probable in African-American person, 2.21 nonillion times more probable in
    unrelated Caucasian person, and 1.73 nonillion times more probable than Hispanic
    person.” (Tr. 374.) Thus, Lekova concluded, to a degree of scientific certainty, that
    “one of the contributors in this mixture is DNA from Devin Sims.” (Tr. 374.) Lekova
    further testified that the amount of DNA obtained from the exterior of the pajama
    pants was consistent with a “primary transfer.” (Tr. 375.)
    Detective Joseph Edwards (“Det. Edwards”) of the Cleveland Police
    Department, testified that he was assigned to investigate the allegations of sexual
    abuse in this matter. In the course of his investigation, Det. Edwards familiarized
    himself with the police report, coordinated the forensic interview with CCDCFS,
    reviewed the narrative report completed by Nurse Hackett, and gathered physical
    evidence for forensic evaluation.     Subsequently, Det. Edwards completed an
    interview with Sims and obtained his consent to retrieve a buccal swab for DNA
    analysis. Det. Edwards confirmed that Sims was living with Child Victim’s mother
    in her apartment at the time of the incident. Once the DNA analysis was completed,
    Det. Edwards presented the matter to the prosecutor’s office and grand jury
    proceedings were initiated.
    At the close of the state’s case-in-chief, defense counsel made an oral
    motion for acquittal pursuant to Crim.R. 29. Following a brief discussion on the
    record, the state agreed to dismiss the offense of attempted gross sexual imposition
    as charged in Count 3 of the indictment. The motion for acquittal was denied as to
    all remaining counts. The defense rested without presenting any evidence, and its
    renewed motion for acquittal was denied.
    Following deliberations, the jury found Sims guilty of gross sexual
    imposition, importuning, public indecency, and child endangering as charged in
    Counts 1, 2, 4, 5, 6, and 7. Sims was sentenced to an aggregate prison term of 30
    months in prison. He was classified as a Tier II sex offender as to Counts 1, 2, and
    4; and a Tier I sex offender as to Count 5.
    Sims now appeals from his convictions and sentence.
    II. Law and Analysis
    A. Sufficiency and Manifest Weight of the Evidence
    In the first and second assignments of error, Sims argues his
    convictions for gross sexual imposition are not supported by sufficient evidence and
    are against the manifest weight of the evidence. Collectively, Sims contends that he
    was erroneously convicted of three counts of gross sexual imposition where the
    victim only described two acts of sexual contact. We address the first and second
    assignments of error together for ease of discussion.
    1. Standards of Review
    A sufficiency challenge requires a court to determine whether the state
    has met its burden of production at trial and to consider not the credibility of the
    evidence but whether, if credible, the evidence presented would sustain a conviction.
    State v. Thompkins, 
    78 Ohio St.3d 380
    , 387, 
    678 N.E.2d 541
     (1997). 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, 
    61 Ohio St.3d 259
    , 273,
    
    574 N.E.2d 492
     (1991), citing Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S.Ct. 2781
    ,
    
    61 L.Ed.2d 560
     (1979).
    “‘Proof of guilt may be made by circumstantial evidence, real
    evidence, and direct evidence, or any combination of the three, and all three have
    equal probative value.’” State v. Rodano, 
    2017-Ohio-1034
    , 
    86 N.E.3d 1032
    , ¶ 35
    (8th Dist.), quoting State v. Zadar, 8th Dist. Cuyahoga No. 94698, 
    2011-Ohio-1060
    ,
    ¶ 18.    Although circumstantial evidence and direct evidence have obvious
    differences, those differences are irrelevant to the probative value of the evidence,
    and circumstantial evidence carries the same weight as direct evidence. 
    Id.,
     citing
    State v. Cassano, 8th Dist. Cuyahoga No. 97228, 
    2012-Ohio-4047
    , ¶ 13. Further,
    circumstantial evidence is not only sufficient, “‘“but may also be more certain,
    satisfying, and persuasive than direct evidence.’”” Id. at ¶ 36, quoting State v.
    Hawthorne, 8th Dist. Cuyahoga No. 96496, 
    2011-Ohio-6078
    , quoting Michalic v.
    Cleveland Tankers, Inc., 
    364 U.S. 325
    , 330, 
    81 S.Ct. 6
    , 
    5 L.Ed.2d 20
     (1960).
    In contrast to a sufficiency argument, a manifest weight challenge
    questions whether the state met its burden of persuasion. State v. Armstrong, 8th
    Dist. Cuyahoga No. 109709, 
    2021-Ohio-1087
    , ¶ 24.              When considering an
    appellant’s claim that a conviction is against the manifest weight of the evidence, the
    appellate court functions as a “thirteenth juror” and may disagree “with the
    factfinder’s resolution of * * * conflicting testimony.” Thompkins at 387, citing Tibbs
    v. Florida, 
    457 U.S. 31
    , 42, 
    102 S.Ct. 2211
    , 
    72 L.Ed.2d 652
     (1982). The appellate
    court examines the entire record, weighs the evidence and all reasonable inferences
    that may be drawn therefrom, considers the witnesses’ credibility and determines
    whether, in resolving conflicts in the evidence, the trier of fact “‘clearly lost its way
    and created such a manifest miscarriage of justice that the conviction must be
    reversed and a new trial ordered.’” 
    Id.,
     quoting State v. Martin, 
    20 Ohio App.3d 172
    , 175, 
    485 N.E.2d 717
     (1st Dist.1983). Reversal on manifest weight grounds is
    reserved for the “‘exceptional case in which the evidence weighs heavily against the
    conviction.’” 
    Id.,
     quoting Martin at 175.
    A trier of fact is free to believe all, some, or none of the testimony of
    each witness testifying at trial. State v. Jones, 8th Dist. Cuyahoga No. 108371, 2020-
    Ohio-3367, ¶ 85; State v. Sheline, 8th Dist. Cuyahoga No. 106649, 
    2019-Ohio-528
    ,
    ¶ 100. Thus, “[a] conviction is not against the manifest weight of the evidence simply
    because the jury believed the testimony of the state’s witnesses and disbelieved the
    defendant.” Id.
    2. Gross Sexual Imposition
    In this case, Sims was convicted on three counts of gross-sexual
    imposition in violation of R.C. 2907.05(A)(4).1 The statute provides, in relevant
    part:
    1 Sims does not challenge his convictions for importuning, public indecency, or
    endangering children. Accordingly, we limit our review to the gross sexual imposition
    offenses charged in Counts 1, 2, and 4 of the indictment.
    No person shall have sexual contact with another, not the spouse of the
    offender; cause another, not the spouse of the offender, to have sexual
    contact with the offender; or cause two or more other persons to have
    sexual contact when any of the following applies:
    ***
    (4) The other person, or one of the other persons, is less than thirteen
    years of age, whether or not the offender knows the age of that person.
    As applicable to each conviction, R.C. 2907.01(B) defines “sexual
    contact” as “any touching of an erogenous zone of another, including without
    limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a
    breast, for the purpose of sexually arousing or gratifying either person.” The Ohio
    Revised Code does not define “sexual arousal” or “sexual gratification.” However,
    R.C. 2907.01(B) “‘contemplate[s] any touching of the described areas which a
    reasonable person would perceive as sexually stimulating or gratifying.’” State v.
    Tate, 8th Dist. Cuyahoga No. 98221, 
    2013-Ohio-370
    , ¶ 18, quoting State v. Astley,
    
    36 Ohio App.3d 247
    , 250, 
    523 N.E.2d 322
     (10th Dist.1987); see also In re Anderson,
    
    116 Ohio App.3d 441
    , 443, 
    688 N.E.2d 545
     (12th Dist.1996). This court has
    recognized that
    [i]n determining whether sexual contact occurred, the trier of fact may
    infer from the evidence presented at trial whether the defendant’s
    contact with the areas of the body outlined in R.C. 2907.01 was for the
    purpose of sexual arousal or gratification. Tate at ¶ 19; State v. Cobb,
    
    81 Ohio App.3d 179
    , 185, 
    610 N.E.2d 1009
     (9th Dist.1991). The purpose
    of the contact may be inferred from the type, nature, and circumstances
    of the contact. Tate at ¶ 20, citing [State v. Meredith, 12th Dist. Warren
    No. CA2004-06-062, 
    2005-Ohio-2664
    ]; see also Ohio v. Coleman, 8th
    Dist. Cuyahoga No. 102291, 
    2015-Ohio-4491
    , ¶ 7 (finding that purpose
    may also be inferred from the defendant’s conduct as well as his or her
    personality). Accordingly, “[i]f the trier of fact determines that the
    defendant was motivated by desires of sexual arousal or gratification,
    and that the contact occurred, then the trier of fact may conclude that
    the object of the defendant’s motivation was achieved.” Cobb at 185.
    State v. Fears, 8th Dist. Cuyahoga No. 104868, 
    2017-Ohio-6978
    , ¶ 65.
    Relevant to this appeal, each count of gross sexual imposition
    corresponded to three separate and distinct allegations of sexual contact in the
    criminal indictment. Count 1, for instance, alleged that Sims caused the minor
    victim to have sexual contact by “rubbing his penis on her butt.” Count 2 alleged
    that Sims caused the minor victim to have sexual contact by “rubbing her butt on his
    penis.” Finally, Count 4 alleged that Sims caused the minor victim to have sexual
    contact by “putting his penis on her [arm].”
    Viewing the evidence in a light most favorable to the prosecution, we
    find the state presented sufficient evidence to support the gross sexual imposition
    offenses charged in Counts 1 and 4 of the indictment. In this case, there is no dispute
    that the Child Victim was under the age of 13 in September 2020. With respect to
    the allegations of sexual contact, the prosecution presented ample evidence
    establishing (1) Sims’s presence in the home on the night of the incident, and (2) his
    primary transfer of DNA to the “outside back buttocks area” of the victim’s pajamas.
    (Tr. 371.) In addition, the Child Victim, who was just 13 years old at the time of trial,
    provided a detailed accounting of Sims’s actions on the night in question. During
    one interaction, Sims touched the Child Victim’s arm with his penis, unsuccessfully
    attempted to have her touch his penis, and asked her not to tell anyone about his
    conduct. Later that evening, Sims returned to the living room and positioned
    himself under the blanket the Child Victim was using on the couch. Sims then “came
    up from behind [the Child Victim] and his private part touched [her] butt.” (Tr.
    249.) The Child Victim testified that she dissuaded further contact by “scoot[ing]”
    away from Sims, but that she did not attempt to run out of the room because she
    was “scared,” “creeped out,” and “didn’t know what to do.” (Tr. 249.)
    Given the type, nature, and circumstances of Sims’s contact with the
    Child Victim, we find a reasonable juror could infer that Sims did touch the Child
    Victim, then less than 13 years of age, with his penis for the purpose of sexual arousal
    or gratification. Accordingly, as it relates to Counts 1 and 4 of the indictment, we
    find the essential elements of R.C. 2907.05(A)(4) were proven beyond a reasonable
    doubt.
    Moreover, we are unable to conclude that this is the exceptional case
    in which the evidence weighs heavily against a conviction on Counts 1 and 4 of the
    indictment. Here, the Child Victim’s description of Sims touching her arm and
    buttocks with his penis was entirely consistent with the statements she provided to
    her family, the investigating officers, and the medical examiners. The trier of fact
    was provided with all relevant evidence and defense counsel had the opportunity to
    explore any perceived inconsistencies in the victim’s testimony on cross-
    examination.     Accordingly, we find the gross sexual imposition convictions
    corresponding to Counts 1 and 4 are not against the manifest weight of the evidence.
    Regarding the allegations levied in Count 2 of the indictment,
    however, we agree with Sims’s contention that the record is devoid of testimony
    demonstrating that he engaged in a third instance of gross sexual imposition. On
    appeal, the state suggests that the evidence establishes beyond a reasonable doubt
    that “Sims had both rubbed his penis on [the Child Victim’s] butt and rubbed [her]
    butt on his penis in two separate instances, constituting two counts of gross sexual
    imposition.” Interpreting the testimony presented at page 249 of the transcript, the
    state contends that after the Child Victim “scooted up” in response to the conduct
    constituting Count 1 of the indictment, “Sims then began ‘rubbing [the Child
    Victim’s] butt on his penis,’ rendering [her] unable to run away or get help because
    she feared Sims.” The state summarizes its position as follows:
    The second instance, also reflected in Count 2 of Sims’s indictment,
    involved Sims “rubbing [the Child Victim’s] butt on his penis.” This
    instance occurred around the same time [as Count 1], when Sims was
    laying behind [the Child Victim]. [The Child Victim] scooted up to
    discontinue the contact between herself and Sims’s penis. Sims
    continued his behavior for one or two minutes before he finally left.
    This constituted Sims’s second instance of gross sexual imposition, as
    [the Child Victim] tried to evade Sims’s advances, but Sims continued
    his conduct.
    Having reviewed the relevant portions of the Child Victim’s
    testimony, we find no merit to the state’s characterization of the evidence. As
    discussed above, the Child Victim was diligently questioned on direct examination
    about Sims’s conduct when he laid next to her on the living room couch. During this
    encounter, the Child Victim testified that Sims lifted her blanket and touched her
    buttocks with his penis. Contrary to the state’s assertion on appeal, the Child Victim
    did not provide any additional testimony to suggest that Sims continued or
    otherwise reengaged in sexual contact with the Child Victim after she moved her
    body away from him on the couch. The record is simply silent on this issue. Here,
    the Child Victim only testified that she and Sims did not speak after she “scooted up”
    on the couch and that Sims left the room shortly thereafter. (Tr. 249.) In the
    absence of direct testimony on the allegation posed in Count 2 of the indictment, we
    are required to find the evidence was insufficient to support a conviction on this
    count of gross sexual imposition. See State v. Schwirzinski, 6th Dist. Wood No. WD-
    09-056, 
    2010-Ohio-5512
    , ¶ 36 (finding that the evidence must conform to the
    allegations contained in the indictment and the bill of particulars).
    The first and second assignments of error are overruled in part and
    sustained in part. The conviction for gross sexual imposition (Count 2) is vacated.
    B. Allied Offenses of Similar Import
    In the third assignment of error, Sims argues his gross sexual
    imposition convictions are allied offenses of similar import. He contends that his
    convictions should have merged for the purposes of sentencing because “there were
    no intervening acts and it was part of a single court of conduct; there was a single
    harm; the acts were not committed separately, and there was a single animus and
    motivation.”
    Pursuant to R.C. 2941.25(A), “[w]here 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.” However,
    [w]here 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(B).
    In determining whether offenses are subject to merger for sentencing
    under R.C. 2941.25, courts evaluate three separate factors — the import, the
    conduct, and the animus. State v. Ruff, 
    143 Ohio St.3d 114
    , 
    2015-Ohio-995
    , 
    34 N.E.3d 892
    , paragraphs one and three of the syllabus. Offenses do not merge, and
    a defendant may be convicted of and sentenced for multiple offenses, if any one of
    the following is true: (1) the offenses are dissimilar in import or significance, (2) the
    offenses were committed separately, or (3) the offenses were committed with
    separate animus or motivation. 
    Id.
     at paragraph three of the syllabus, ¶ 25, 31.
    Offenses are dissimilar in import or significance within the meaning
    of R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses involving
    separate victims or if the harm that results from each offense is separate and
    identifiable.” Id. at ¶ 23. Thus, “a defendant’s conduct that constitutes two or more
    offenses against a single victim can support multiple convictions if the harm that
    results from each offense is separate and identifiable from the harm of the other
    offense.” Id. at ¶ 26. “The evidence at trial or during a plea or sentencing hearing
    will reveal whether the offenses have similar import.” Id.
    Offenses are committed separately within the meaning of R.C.
    2941.25(B) if ‘“one offense was complete before the other offense occurred, * * *
    notwithstanding their proximity in time and that one [offense] was committed in
    order to commit the other.’” State v. Woodard, 2d Dist. Montgomery No. 29110,
    
    2022-Ohio-3081
    , ¶ 38, quoting State v. Turner, 2d Dist. Montgomery No. 24421,
    
    2011-Ohio-6714
    , ¶ 24.      Thus, “‘when one offense is completed prior to the
    completion of another offense during the defendant’s course of conduct, those
    offenses are separate acts.’” 
    Id.,
     quoting State v. Mooty, 
    2014-Ohio-733
    , 
    9 N.E.3d 443
    , ¶ 49 (2d Dist.).
    For purposes of R.C. 2941.25(B), animus has been defined as
    “‘“purpose or more properly, immediate motive.’””         State v. Priest, 8th Dist.
    Cuyahoga No. 106947, 
    2018-Ohio-5355
    , ¶ 12, quoting State v. Bailey, 8th Dist.
    Cuyahoga No. 100993, 
    2014-Ohio-4684
    , ¶ 34, quoting State v. Logan, 
    60 Ohio St.2d 126
    , 131, 
    397 N.E.2d 1345
     (1979). “‘If the defendant acted with the same purpose,
    intent, or motive in both instances, the animus is identical for both offenses.’” State
    v. Lane, 12th Dist. Butler No. CA2013-05-074, 
    2014-Ohio-562
    , ¶ 12, quoting State
    v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 
    2012-Ohio-885
    , ¶ 13. “Animus is
    often difficult to prove directly but must be inferred from the surrounding
    circumstances.” 
    Id.,
     citing State v. Lung, 12th Dist. Brown No. CA2012-03-004,
    
    2012-Ohio-5352
    , ¶ 12.
    “At its heart, the allied-offense analysis is dependent upon the facts of
    a case because R.C. 2941.25 focuses on the defendant’s conduct” and “an offense
    may be committed in a variety of ways.” Ruff, 
    143 Ohio St.3d 114
    , 
    2015-Ohio-995
    ,
    
    34 N.E.3d 892
    , at ¶ 26, 30. “‘[T]his analysis may be sometimes difficult to perform
    and may result in varying results for the same set of offenses in different cases. But
    different results are permissible, given that the statute instructs courts to examine a
    defendant’s conduct — an inherently subjective determination.’” Id. at ¶ 32, quoting
    State v. Johnson, 
    128 Ohio St.3d 153
    , 
    2010-Ohio-6314
    , 
    942 N.E.2d 1061
    , ¶ 52
    (plurality opinion per Brown, C.J.).
    Our review of whether two offenses are allied offenses of similar
    import is generally de novo. State v. Williams, 
    134 Ohio St.3d 482
    , 
    2012-Ohio-5699
    ,
    
    983 N.E.2d 1245
    , ¶ 28. However, in this case, Sims did not object to the imposition
    of multiple sentences on the gross sexual imposition offenses and, therefore, he has
    waived all but plain error. (Tr. 536-537); State v. Tate, 8th Dist. Cuyahoga No.
    97804, 
    2014-Ohio-5269
    , ¶ 35. Pursuant to Crim.R. 52(B), “plain errors or defects
    affecting substantial rights may be noticed although they were not brought to the
    attention of the court.” State v. Robinson, 8th Dist. Cuyahoga No. 110467, 2022-
    Ohio-1311, ¶ 48. Notice of plain error, however, is to be taken in exceptional cases
    and only when necessary to prevent a manifest miscarriage of justice. 
    Id.
    Relevant to his appeal, Ohio courts have recognized that
    [i]ntimate sexual contacts with a victim that constitute the offense of
    gross sexual imposition may be treated as separate offenses for the
    purposes of R.C. 2941.25(B) in at least two instances: (1) where the
    evidence demonstrates either the passage of time or intervening
    conduct by the defendant between each incident; and (2) where the
    evidence demonstrates the defendant’s touching of two different areas
    of the victim’s body occurred in an interrupted sequence.
    State v. Cole, 6th Dist. Erie No. E-18-061, 
    2019-Ohio-5425
    , ¶ 20, quoting State v.
    DeGarmo, 5th Dist. Muskingum No. CT2018-0061, 
    2019-Ohio-4050
    , ¶ 26; see also
    State v. Tate, 8th Dist. Cuyahoga. No. 77462, 
    2000 Ohio App. LEXIS 4960
     (Oct. 26,
    2000). Accordingly, if Sims “committed acts separated by the passage of time or
    engaged in sexual contact involving more than one erogenous zone, even if in one
    brief episode, each instance may form the basis for separate counts and are not allied
    offenses.” 
    Id.
    With respect to Counts 1 and 4 of the indictment,2 we find the evidence
    at trial established that Sims committed distinct acts of gross sexual imposition
    against the Child Victim by touching her arm and buttocks with his penis. Contrary
    to Sims’s characterization of the evidence on appeal, the Child Victim testified that
    these acts occurred during separate encounters with Sims during the night in
    question. As discussed, the Child Victim testified that the first instance occurred
    when Sims positioned himself next to the Child Victim on the living room couch and
    placed his penis on her arm. After Sims left the room and the Child Victim fell
    asleep, Sims later returned to the living room and touched the Child Victim’s
    buttocks with his penis. Given the passage of time between each incident and the
    evidence establishing Sims’s touching of more than one area of the victim’s body in
    an interrupted sequence, we find the convictions correlated to separate acts of gross
    sexual imposition that were dissimilar in import and significance. Thus, the trial
    court did not commit plain error by failing to merge the two counts of gross sexual
    imposition charged in Counts 1 and 4 of the indictment.
    The third assignment of error is overruled in part and moot in part.
    2 Having determined that Sims’s conviction for gross sexual imposition in Count 2
    of the indictment was not supported by sufficient evidence, any merger argument
    pertaining to this offense is now moot.
    Judgment affirmed in part and vacated in part.          The cause is
    remanded for the trial court to vacate the conviction on Count 2 of the indictment.
    It is ordered that appellant and appellee share the costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the
    common pleas court to carry this judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27
    of the Rules of Appellate Procedure.
    EILEEN T. GALLAGHER, JUDGE
    MICHELLE J. SHEEHAN, P.J., and
    MARY EILEEN KILBANE, J., CONCUR
    

Document Info

Docket Number: 112671

Citation Numbers: 2024 Ohio 250

Judges: E.T. Gallagher

Filed Date: 1/25/2024

Precedential Status: Precedential

Modified Date: 1/25/2024