Background

• Gary L. May was indicted on multiple counts arising from sexual abuse of two children; charges included rape and sexual battery. Two rape counts were amended to gross sexual imposition and two sexual-battery counts were dismissed before trial.
• A jury convicted May of ten counts of rape, two counts of gross sexual imposition, and ten counts of sexual battery.
• The trial court imposed an aggregate life sentence with parole eligibility after 15 years and designated May a sexually-oriented offender.
• On appeal, May argued the trial court erred by failing to merge Counts 11 and 12 (rape) as allied offenses of similar import under R.C. 2941.25.
• The State had prepared a written merger-of-counts analysis; defense counsel expressly agreed to it at sentencing, and the trial court attached it to the sentencing entry. That analysis did not list Counts 11 and 12 as merged.
• May did not seek merger of those counts at sentencing or advance a plain-error argument on appeal.

Issues

Key Cases Cited

• State v. Ruff, 143 Ohio St.3d 114 (2015) (courts evaluate conduct, animus, and import when determining allied offenses under R.C. 2941.25)
• State v. Underwood, 124 Ohio St.3d 365 (2010) (R.C. 2941.25 embodies double jeopardy protections against multiple punishments for same conduct)
• State v. Rogers, 143 Ohio St.3d 385 (2015) (defendant may expressly waive R.C. 2941.25 protections; forfeiture differs from waiver and plain-error review applies)
• State v. Quarterman, 140 Ohio St.3d 464 (2014) (failure to timely assert allied-offenses claim at sentencing forfeits appellate review except for plain error)
• State v. Williams, 134 Ohio St.3d 482 (2012) (de novo review applies to allied-offense merger determinations)