State v. Frederick

[Cite as State v. Frederick, 2014-Ohio-5537.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26864
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RICHARD JAMES FREDERICK, JR. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 12 06 1774
DECISION AND JOURNAL ENTRY
Dated: December 17, 2014
MOORE, Judge.
{¶1} Appellant, Richard Frederick, appeals the judgment of the Summit County Court
of Common Pleas. This Court affirms.
I.
{¶2} A grand jury indicted Mr. Frederick on charges of gross sexual imposition and
rape related to incidents involving his young niece over a four-month period of time. While the
case was pending, Mr. Frederick moved the trial court in limine to exclude statements made by
the child victim during an examination at the Akron Children’s Hospital CARE Center. On
October 19, 2012, the trial court denied the motion, noting that “the court [would] revisit this
issue at the appropriate time.” Mr. Frederick pleaded guilty almost three months later on the day
scheduled for trial. The trial court sentenced him to concurrent prison terms of three years for
gross sexual imposition and 25 years to life for rape.
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{¶3} This Court granted Mr. Frederick leave to file a delayed appeal, and he has raised
three assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY NOT MERGING COUNT ONE, RAPE, AND
COUNT TWO, GROSS SEXUAL IMPOSITION, UNDER REVISED CODE
2941.25 AS ALLIED OFFENSES, AND AT THE LEAST, THE TRIAL COURT
ERRED BY FAILING TO CONDUCT A “SIMILAR IMPORT” ANALYSIS
BEFORE SENTENCING MR. MR. FREDERICK ON BOTH COUNTS.
{¶4} Mr. Frederick’s first assignment of error is that the trial court committed plain
error by failing to merge his convictions as allied offenses. We do not agree.
{¶5} Under R.C. 2941.25:
(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.
Before sentencing a defendant, a trial court must determine whether multiple offenses were
committed by the same conduct. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 47.
“If the multiple offenses can be committed by the same conduct, then the court must determine
whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a
single state of mind.’” (Emphasis added.) Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d
447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., concurring in judgment only). This analysis requires
a court to “consider the statutory elements of each offense in the context of the defendant's
conduct.” State v. Williams, 134 Ohio St.3d 482, 2013-Ohio-5699, ¶ 
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{¶6} R.C. 2907.02(A)(1)(b) prohibits rape and provides, in part, that “[n]o person shall
engage in sexual conduct with another * * * when * * * * [t]he other person is less than thirteen
years of age, whether or not the offender knows the age of the other person.” “Sexual conduct”
is defined as “vaginal intercourse between a male and female; anal intercourse, fellatio, and
cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion,
however slight, of any part of the body or any instrument, apparatus, or other object into the
vaginal or anal opening of another.” R.C. 2907.01(A). Gross sexual imposition, prohibited by
R.C. 2907.05(A)(4), occurs when a person has sexual contact with another when the other person
is less than thirteen years of age, whether or not the offender knows of the victim’s age. For
purposes of R.C. Chapter 2907, “sexual contact” is defined 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.”
R.C. 2907.01(B). Considering the elements of rape and gross sexual imposition, it is apparent
that under Johnson, both offenses can be committed by the same conduct.
{¶7} Nonetheless, courts have consistently recognized that distinct instances of sexual
activity constitute separate offenses that do not merge. State v. Daniels, 9th Dist. Summit No.
26406, 2013-Ohio-358, ¶ 8-10. See also State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, ¶
30 (concluding, before Johnson was decided, that when gross sexual imposition and rape are
committed independently or with a separate animus, they do not merge.). The record in this case
demonstrates that Mr. Frederick was not convicted of both offenses based on the same conduct,
but based upon multiple offenses constituting a course of conduct that occurred over several
months. Significantly, during earlier proceedings on a motion to suppress statements made in the
course of a voluntary polygraph examination, the trial court heard testimony that Mr. Frederick
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described 3-5 instances of sexual activity with the victim. Based on these descriptions alone, the
trial court could reasonably conclude that Mr. Frederick committed rape and gross sexual
imposition in distinct, separate incidents.
{¶8} Mr. Frederick’s conduct resulted in multiple offenses of the same or similar kind
committed separately, and the trial court did not err by sentencing him for both. Because “[t]he
existence of error * * * [is] the starting point for a plain-error inquiry,” Mr. Frederick’s first
assignment of error must be overruled. State v. Hill, 92 Ohio St.3d 191, 200 (2001). 
ASSIGNMENT OF ERROR II
THE COURT FAILED TO ADEQUATELY NOTIFY MR. FREDERICK
DURING THE SENTENCING PHASE OF THE COMBINED PLEA AND
SENTENCING HEARING OF THE CONSEQUENCES IN VIOLATING POST-
RELEASE CONTROL.
{¶9} Mr. Frederick’s second assignment of error is that the trial court erred by failing
to adequately inform him about his postrelease control obligations during sentencing. We
disagree.
{¶10} “[I]n order to comply with separation-of-powers concerns and to fulfill the
requirements of the postrelease-control-sentencing statutes, * * * a trial court must provide
statutorily compliant notification to a defendant regarding postrelease control at the time of
sentencing, including notifying the defendant of the details of the postrelease control and the
consequences of violating postrelease control.” State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-
1111, ¶ 18. Under R.C. 2967.28(B), the sentence for an offender who is committed to prison for
a felony sex offense must include five years of postrelease control. R.C. 2967.28(D)(1) also
explains that when an offender violates the terms of postrelease control, a prison term of up to
one-half of the term originally imposed may be required. At the sentencing hearing, a trial court
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must inform the offender if postrelease control is required and must explain the consequences for
violating the conditions of postrelease control. R.C. 2929.19(B)(2)(c); R.C. 2929.19(B)(2)(e).
{¶11} In this case, the trial court informed Mr. Frederick that he was required to
complete five years of mandatory postrelease control and the court also explained the potential
consequences if he violated the conditions of postrelease control. The trial court, therefore,
complied with the requirements of R.C. 2929.19(B)(2) at sentencing. Mr. Frederick has
suggested that a broader level of notification is required but, in this regard, we must observe that
his brief on appeal references notification language that is not contained within the applicable
statutes, and he has not provided any citation to the source from which the language in his brief
is taken.
{¶12} Mr. Frederick’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE COURT COMMITTED PLAIN ERROR IN OVERRULING
DEFENDANT’S MOTION IN LIMINE WITHOUT PLACING FINDINGS ON
THE RECORD AS TO WHAT ROLE THE INTERVIEWING PERSON OF
THE VICTIM SERVED PER STATE V. ROMO, NAMELY FORENSIC OR
MEDICAL, TO SO DETERMINE THE ADMISSIBILITY OF THE VICTIM[’]S
STATEMENTS TO THE MEDICAL PROVIDER.
{¶13} Mr. Frederick’s final assignment of error argues that the trial court committed
plain error by overruling his motion in limine regarding statements made during the victim’s
interview at the Akron Children’s Hospital CARE Center.
{¶14} A defendant who pleads guilty waives the right to challenge actions taken by the
trial court except to the extent that those actions affected the knowing and voluntary nature of the
plea. State v. Gegia, 157 Ohio App.3d 112, 2004-Ohio-2124, ¶ 18 (9th Dist.). Mr. Frederick has
not argued that, because of error in the trial court’s ruling, his plea was not knowingly and
voluntarily made. To the extent that his appellate brief suggests that denial of the motion in
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limine motivated his client to plead guilty, we must note that the record does not contain any
evidence supporting that inference. Most notably, the record of the plea and sentencing does not
set out any statements that make a connection in this regard. In fact, the face of the record
suggests otherwise inasmuch as almost three months passed between the ruling on the motion in
limine and Mr. Frederick’s guilty plea.
{¶15} Mr. Frederick’s third assignment of error is overruled.
III.
{¶16} Mr. Frederick’s assignments of error are overruled, and the judgment of the
Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
BELFANCE, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.