State v. Webb

[Cite as State v. Webb, 2013-Ohio-699.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98628
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHRISTOPHER D. WEBB
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-557717
BEFORE: Stewart, A.J., Boyle, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: February 28, 2013
ATTORNEY FOR APPELLANT
Ruth Fischbein-Cohen
3552 Severn Road, Suite 613
Cleveland Heights, OH 44118
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Jennifer A. Driscoll
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:
{¶1} Defendant-appellant Christopher D. Webb pleaded guilty to two counts of
rape in violation of R.C. 2907.02(A)(1)(a) and two counts of gross sexual imposition in
violation of R.C. 2907.05(A)(4) against his seven-year-old daughter. In this appeal, he
complains that the court failed to calculate his jail- time credit and that the gross sexual
imposition counts should have merged into the rape counts for sentencing.
I
{¶2} Webb’s first and second assignments of error claim that the court failed to
calculate his jail-time credit and that trial counsel was ineffective for failing to request the
calculation. These assignments are without merit because the court’s sentencing entry
states: “Defendant to receive jail time credit for 167 day(s) to date.”
II
{¶3} Webb’s third assignment of error is that the gross sexual imposition counts
should have merged into the rape counts for sentencing. He argues that the state did not
show that the gross sexual imposition counts occurred at different times so they were part
of one continuous act.
{¶4} When a defendant’s conduct results in the commission of two or more
“allied” offenses of similar import, that conduct can be charged separately, but the
defendant can be convicted and sentenced for only one offense. R.C. 2941.25(A).
Offenses are “allied” and must be merged for sentencing if the defendant’s conduct is
such that a single act could lead to the commission of separately defined offenses, but
those separate offenses were committed with a state of mind to commit only one act. See
State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48-50. Our
review of an allied offenses question is de novo. State v. Williams, ___ Ohio St.3d ___,
2012-Ohio-5699, ___ N.E.2d ___, ¶ 28.
{¶5} All of the counts were originally charged as occurring between July 2011 and
November 2011. During the plea hearing, the state amended the rape counts to list two
specific dates: July 2011 and November 2011. The gross sexual imposition counts
were not amended to list specific dates for those offenses.
{¶6} During the sentencing hearing, the state read summaries of interviews the
victim had with a police detective and social worker. The first interview was with the
detective and showed:
[The victim] refers to her vagina has [sic] her private part and she told me
that her dad puts his fingers inside of her. [The victim] showed me the
swirling motion her father makes when she [sic] touches her body[.] I
asked her how she felt when her father touched her. She said, “Awkward.”
{¶7} In that same summary of the interview, the detective referenced the
November 2011 date as the “last time [the victim] remembers it happening[.]” In this
interview, the victim said:
And when asked if her father touched her with any other part of his body
she pointed at her private parts to say he touched her with his tongue. She
pointed at her buttocks and said he puts his penis there.
I asked [the victim] if she was forced to touch her father anywhere. She
said he makes her touch his penis. And she showed me a pulling back and
forth motion[.] [S]he said that her dad made her put her mouth on his
penis. She said something clear and sticky would come out of his penis.
{¶8} In the interview with the social worker, the victim said that Webb told her
that she “could feel” his “boy thing” and that he wanted her to “start from the bottom to
the end.” When she did this, “slimy clear stuff came out.” When asked if Webb did
anything else to her with his “boy thing,” the victim pointed to her genital area and said
he touched her “bottom * * * [s]ometimes inside, sometimes outside.” She then said that
“it went into her mouth because he kind of told me to stick it in all the way as far as it
would go.”
{¶9} The interview of the July 2011 count gave facts showing one act of rape and
no acts of gross sexual imposition. With no other evidence showing that any other acts
were committed with the same conduct, the rape count stands alone and does not merge
into any other counts that were committed on a different date. State v. Walker, 8th Dist.
No. 95974, 2011-Ohio-4239, ¶ 56.
{¶10} The interview of the November 2011 count gave facts showing one count of
oral rape and two counts of gross sexual imposition (manipulating the penis and touching
the buttocks). The two acts of gross sexual imposition were committed with different
conduct and thus do not merge. State v. Williams, 8th Dist. No. 94616, 2011-Ohio-925,
¶ 60.
{¶11} In addition, the acts of gross sexual imposition were not committed at the
same time as the rape count, so they were not committed with a state of mind to commit
only one act. This was not a case where a gross sexual imposition count was charged as
having occurred simultaneously with an anal rape; for example, touching a victim’s
buttocks during the commission of an anal rape. Under that scenario, the counts would
merge because there was a state of mind to commit only one act — a rape — and any
other touching was the same conduct committed as part of a single transaction of rape.
{¶12} In this case, the charged acts of gross sexual imposition were neither
committed with the same conduct nor were they part of a single act. The charges were
distinct and thus constituted separate conduct from the rape. They, therefore, do not
merge for sentencing.
{¶13} Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga
County Court of Common Pleas to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case remanded
to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR