State v. Merz

[Cite as State v. Merz, 2021-Ohio-2093.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200152
TRIAL NO. B-1905571
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
HERBERT MERZ, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 23, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and H. Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} A day that began with anticipation—a 15th-birthday adventure to
search for arrowheads—ended in terror as a young girl’s stepfather secluded her in
the woods and sexually assaulted her. Fortunately, she fended off his advances and
called the police, and defendant-appellant Herbert Merz ultimately pleaded guilty to
gross sexual imposition and abduction arising out of this attack. On appeal, Mr.
Merz primarily argues that his two convictions should have merged as allied offenses
because any restraint was incidental to the sexual assault. After reviewing the law
and the record, we agree and remand this cause to the trial court for resentencing.
I.
{¶2} Mr. Merz offered to take his stepdaughter, on the evening of her 15th
birthday, to a “special place” to look for arrowheads. He then drove her to a
secluded, wooded area along the Ohio River, even venturing past a driveway marked
as “no trespassing.” Soon after the two arrived and exited his van, however, Mr.
Merz began kissing his stepdaughter on the neck. She demanded that he stop, but
Mr. Merz responded by pushing her onto the front passenger seat where he forced
himself on top of her and began to grope her.
{¶3} The stepdaughter continued to resist, prompting Mr. Merz to strike
her several times, inflicting bruises on her neck and arms. Amazingly, she managed
to fight him off, push him out of the van, and lock herself in the vehicle. She then
grabbed her phone and summoned the police, at which point Mr. Merz scampered
into the woods. But because the location was so isolated, it took police 40 minutes to
find her. Officers then used search dogs to track down Mr. Merz, finding him
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OHIO FIRST DISTRICT COURT OF APPEALS
wandering about muddy and barefoot, insisting that he had blacked out and thus had
no recollection of what transpired—a claim he maintained throughout the case.
{¶4} The state charged Mr. Merz with attempted rape, gross sexual
imposition (GSI), and abduction. But in exchange for pleading guilty to the GSI and
abduction counts, the state dropped the attempted-rape charge. The trial court
accepted Mr. Merz’s guilty pleas and asked the stepdaughter to provide a victim-
impact statement detailing her trauma, which also highlighted the bruising on her
neck and arms from the assault.
{¶5} The trial court ultimately imposed maximum sentences for both
offenses—18 months for the GSI and 36 months for the abduction. The court also
ordered that Mr. Merz serve the sentences consecutively, for a total sentence of 54
months. On appeal, Mr. Merz presents three assignments of error, first arguing that
the trial court committed plain error by not merging his GSI and abduction offenses.
His second and third assignments of error challenge the trial court’s imposition of
maximum and consecutive sentences.
II.
{¶6} The United States and Ohio Constitutions contain Double Jeopardy
Clauses, which protect citizens from multiple prosecutions or punishments for the
same offense. State v. Pendleton, 163 Ohio St.3d 114, 2020-Ohio-6833, 168 N.E.3d
458, ¶ 8. See Ohio Constitution, Article I, Section 10 (“No person shall be twice put
in jeopardy for the same offense.”); Fifth Amendment to the U.S. Constitution (“No
person shall * * * be subject for the same offence to be twice put in jeopardy of life or
limb * * * .”). As a result, “ ‘where two statutory provisions proscribe the “same
offense,” they are construed not to authorize cumulative punishments in the absence
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OHIO FIRST DISTRICT COURT OF APPEALS
of a clear indication of contrary legislative intent.’ ” (Emphasis sic.) State v. Ruff,
143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 11, quoting Whalen v. United
States, 445 U.S. 684, 692, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). However, where
the statute creating the offense does not illuminate the General Assembly’s intent on
whether multiple punishments should be imposed, we look to R.C. 2941.25 for
guidance. Pendleton at ¶ 11. And R.C. 2941.25 generally requires a trial court to
merge allied offenses when they are of similar import, were committed together, and
were motivated by the same animus. See State v. Bailey, 1st Dist. Hamilton No.
C-140129, 2015-Ohio-2997, ¶ 74; see also Ruff at paragraph three of the syllabus.
{¶7} Mr. Merz invokes these double-jeopardy protections in his first
assignment of error, characterizing his GSI and abduction convictions as allied
offenses that should have triggered merger. However, Mr. Merz failed to object at
sentencing, leaving us to review the matter for plain error. See State v. Rogers, 143
Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3 (“An accused’s failure to raise
the issue of allied offenses of similar import in the trial court forfeits all but plain
error * * * .”). “For this court to reverse on plain error, we must find that (1) there
was an error, (2) the error was plain, i.e., an obvious defect in the trial court
proceedings, and (3) the error affected substantial rights, i.e., it affected the outcome
* * * .” State v. Burgett, 2019-Ohio-5348, 139 N.E.3d 940, ¶ 30 (1st Dist.), citing
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Because the
requirement to merge allied offenses is “mandatory, not discretionary,” see State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 26, failure to do so
necessarily affects a substantial right. For this reason, “[t]he Ohio Supreme Court
has recognized that the failure of the trial court to account for allied offenses, when it
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OHIO FIRST DISTRICT COURT OF APPEALS
is clear from the record that multiple offenses are allied offenses of similar import
under R.C. 2941.25, is plain error.” State v. Peck, 7th Dist. Mahoning No. 12 MA
205, 2013-Ohio-5526, ¶ 14, citing Underwood at ¶ 31. Thus, to prevail on a claim of
plain error, Mr. Merz must show that it is obvious on the record that he has been
convicted of allied offenses. In other words, he must “demonstrate a reasonable
probability that the convictions are for allied offenses of similar import committed
with the same conduct and without a separate animus * * * .” Rogers at ¶ 3.
{¶8} Furthermore, we note that the question of whether multiple offenses
should merge cannot be answered with “bright-line rule[s].” Ruff at ¶ 30. Merger
poses a fact-intensive inquiry, requiring the court to review the entire record,
including arguments and evidence presented at the plea or sentencing hearing. See
id. at ¶ 26 (“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. The evidence at trial
or during a plea or sentencing hearing will reveal whether the offenses have similar
import.”). And defendants ultimately bear the burden of demonstrating their
entitlement to having offenses merged. See State v. Washington, 137 Ohio St.3d 427,
2013-Ohio-4982, 999 N.E.2d 661, ¶ 18 (“We have consistently recognized that ‘the
defendant bears the burden of establishing his entitlement to the protection,
provided by R.C. 2941.25, against multiple punishments for a single criminal act.’ ”),
quoting State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987).
{¶9} Returning to Mr. Merz’s challenge, we must affirm the trial court’s
decision not to merge his GSI and abduction offenses “if any one of the following is
true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows
that the offenses were committed separately, or (3) the conduct shows that the
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OHIO FIRST DISTRICT COURT OF APPEALS
offenses were committed with separate animus.” Ruff, 143 Ohio St.3d 114, 2015-
Ohio-995, 34 N.E.3d 892, at paragraph three of the syllabus. And “[a] reviewing
court may end its analysis upon finding that any one of the three applies.” State v.
Lee, 1st Dist. Hamilton No. C-190149, 2020-Ohio-944, ¶ 6.
{¶10} Both parties focus their attention on the final—and most relevant—
Ruff consideration: whether Mr. Merz harbored a separate animus for the two
offenses. “Animus” means “ ‘purpose, or more properly, immediate motive’ and
‘requires us to examine the defendant’s mental state in determining whether two or
more offenses may be chiseled from the same criminal conduct.’ ” Bailey, 1st Dist.
Hamilton No. C-140129, 2015-Ohio-2997, at ¶ 86, quoting State v. Logan, 60 Ohio
St.2d 126, 131, 397 N.E.2d 1345 (1979). “We determine the animus, one’s immediate
motive or purpose, by dissecting the facts and circumstances in evidence, including
the means used to commit the offense.” Id.{¶11} In fashioning their respective arguments, the parties feature Logan,
which provided guidelines for “whether kidnapping and another offense of the same
or similar kind” share a separate animus. Logan at the syllabus. In simplistic terms,
the Logan guidelines examine the significance of the restraint or movement of the
victim: whether it was “merely incidental” to the other crime or whether it was
substantial enough (either in execution or in increased risk) that it attains
independent significance. See id. at the syllabus.
{¶12} We recognize that Logan predates Ruff, which abrogated Logan’s (and
others) general approach to merger. See Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34
N.E.3d 892, at ¶ 15. However, “the Logan guidelines are still relevant to determining
whether rape and kidnapping convictions merge.” State v. Grate, Slip Opinion No.
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OHIO FIRST DISTRICT COURT OF APPEALS
2020-Ohio-5584, ¶ 108. Thus, despite not being convicted of rape or kidnapping,
Mr. Merz argues that the Logan criteria mandate reversal because the restraint
(abduction) of his stepdaughter was “merely incidental” to the sexual assault (GSI).
As he points out, the Ohio Supreme Court has analogously commented that
“ ‘implicit within every forcible rape * * * is a kidnapping.’ ” State v. Winn, 121 Ohio
St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, ¶ 23, quoting Logan at 130. For its
part, the state effectively concedes that the abduction concurrent with the sexual
assault should merge with the GSI. However, the state hypothesizes that an
additional abduction occurred when Mr. Merz took his stepdaughter to the secluded
area under the pretense of looking for arrowheads, thus achieving independent
significance.
{¶13} To be sure, in the kidnapping context, using deceit to lure a victim into
danger may constitute a separate animus. See Grate at ¶ 110 (holding that
kidnapping by deception “was significantly independent from the asportation
incidental to the rapes” where the perpetrator lured the victim into the house under
the pretense of giving her clothes); State v. Ware, 63 Ohio St.2d 84, 87, 406 N.E.2d
1112 (1980) (holding that the perpetrator’s offer to let the victim use his telephone
“was an act of asportation by deception which constituted kidnapping, and which
was significantly independent from the asportation incidental to the rape itself”).
But we find Grate and Ware inapplicable to this case because Mr. Merz was not
convicted of kidnapping; he was convicted of abduction. While kidnapping may be
accomplished “by force, threat, or deception,” (Emphasis added.) see R.C.
2905.01(A), abduction can be committed only “[b]y force or threat,” see R.C.
2905.02(A). See also State v. Fleming, 114 Ohio App.3d 294, 297, 683 N.E.2d 79 (2d
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OHIO FIRST DISTRICT COURT OF APPEALS
Dist.1996) (“[A]bduction, as statutorily defined, cannot be committed by means of
deception. It can only be committed by means of force or threat.”). Furthermore,
the state never alleged that any abduction occurred during the drive to the wooded
area. Nor did it tender evidence suggesting that Mr. Merz coerced his stepdaughter
into going on the excursion. Instead, the state alleged that Mr. Merz “knowingly by
force or threat of force, restrained the liberty of [his stepdaughter],” and Mr. Merz’s
use of force occurred only during the sexual assault.
{¶14} Thus, to the extent that the Logan guidelines apply to abduction, it
weighs heavily in favor of finding that the abduction here was “merely incidental” to
the GSI. Furthermore, considering Mr. Merz’s use of force, we conclude that he did
not have a separate animus for the abduction offense because his immediate motive
in restraining his stepdaughter was to sexually assault her. Not only does the state
concede this on appeal, but it indicated as much below by charging Mr. Merz with
abduction under R.C. 2905.02(B): “[n]o person, with a sexual motivation, shall” use
“force or threat” to “restrain the liberty of another person.” (Emphasis added.) R.C.
2905.02(B), referencing (A)(2). As a result, nothing in the record supports the
notion that Mr. Merz committed the abduction with a separate animus from the GSI.
See State v. Pore, 5th Dist. Stark No. 2011-CA-00190, 2012-Ohio-3660, ¶ 30, 35
(finding plain error for failure to merge kidnapping and rape where the defendant
threatened the victim with knife, moved her to the bedroom to have her undress,
moved her back to the living room to lock the front door, and finally moved her to
the bedroom (again) to rape her); State v. Bolton, 8th Dist. Cuyahoga No. 96385,
2012-Ohio-169, ¶ 94 (finding that GSI and kidnapping should merge “because the
movement of [the victim] from the hallway to her bedroom was incidental to the
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OHIO FIRST DISTRICT COURT OF APPEALS
crime of gross sexual imposition.”); see also State v. Small, 5th Dist. Delaware No.
10CAA110088, 2011-Ohio-4086, ¶ 95 (finding plain error for failure to merge
kidnapping and aggravated burglary because “the restraint and movement had no
significance apart from facilitating the commission of the aggravated burglary.”).
{¶15} Having answered the final Ruff question in the negative, we must also
consider the first and second questions: whether the offenses were (1) of dissimilar
import; or (2) committed separately. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34
N.E.3d 892, at paragraph three of the syllabus. Offenses are of “dissimilar import
* * * 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 paragraph two of the syllabus. Here,
there was one victim, so the question is only whether the two offenses caused
separate and identifiable harm. However, the state does not allege that the
abduction and GSI offenses inflicted different harm, nor do we see any indicia of
separate harm after reviewing the record. None of the emotional and physical harm
can be traced to one offense over the other. Thus, we conclude that the GSI and
abduction offenses were not of dissimilar import based on a lack of separate and
identifiable harm. See, e.g., State v. Powih, 2017-Ohio-7208, 97 N.E.3d 1, ¶ 42 (12th
Dist.) (“[The victim] experienced the same type of physical and psychological harm
from the commission of the abduction offense as she did the sex offenses—she
suffered bruising and contusions and was ‘shocked,’ ‘scared,’ and ‘fearful.’ ”).
{¶16} We can easily dismiss the remaining inquiry—whether Mr. Merz
committed the offenses separately—because the offenses transpired simultaneously
in the same location. The restraint occurred only during—and as part of—the sexual
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OHIO FIRST DISTRICT COURT OF APPEALS
assault, precluding any possibility that the two offenses were separately committed.
See State v. Louis, 2d Dist. Montgomery No. 27909, 2020-Ohio-951, ¶ 62 (holding
that kidnapping and GSI were not committed separately where the perpetrator
grabbed the victim’s arm to prevent her from leaving the basement and then sexually
assaulted her); Powih at ¶ 7, 43 (holding that abduction and rape offenses were not
committed separately where the perpetrator shut the door to the room and then
restrained and raped the victim).
{¶17} Applying the law to the record before us, we are constrained to find
that Mr. Merz’s abduction of his stepdaughter had no significance apart from
facilitating the GSI. The two offenses were not of dissimilar import, were not
committed separately, and were not motivated by a separate animus. Accordingly,
we find that it was plain error not to merge the GSI and abduction offenses and
affirm Mr. Merz’s first assignment of error.
* * *
{¶18} In his second and third assignments of errors, Mr. Merz challenges the
trial court’s imposition of maximum and consecutive sentences. Because we affirm
his allied-offenses challenge, we decline to resolve these assignments of error as
moot. We therefore vacate both sentences and remand this cause for resentencing so
that the state may choose which offense to pursue. See State v. Whitfield, 124 Ohio
St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraph two of the syllabus.
Judgment reversed and cause remanded.
MYERS, P. J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion
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