STATE OF OHIO v. TYTUS BAILEY
APPEAL NO. C-200386; TRIAL NO. B-1906395
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
October 13, 2021
[Cite as State v. Bailey, 2021-Ohio-3664.]
BERGERON, Presiding Judge.
Criminаl Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Rubenstein & Thurman, LPA, Scott A. Rubenstein, The Law Office of John D. Hill, LLC, and John D. Hill, for Defendant-Appellant.
{1} A jury convicted defendant-appellant Tytus Bailey of abduction, robbery, kidnapping, and two counts of rape stemming from a sexual assault at a downtown parking garage. The trial court sentenced him to 33 years for the rape and kidnapping counts and 8 years for the robbery count, to be served consecutively. On appeal, Mr. Bailey challenges the effectiveness of his trial counsel along with the imposition of maximum, consecutive sentences as unsupported by the record. We disagree and affirm the trial court‘s judgmеnt as it pertains to his first three assignments of error. Mr. Bailey also maintains that the rape and kidnapping convictions should have merged as allied offenses for sentencing purposes. In light of the case law and the record, we agree and sustain his fourth assignment of error.
I.
{2} On the night in question, Mr. Bailey approached the victim sitting with two homeless men on a concrete bench near the corner of Second and Walnut strеets. Mr. Bailey assaulted the two men, knocking them out in the process, and threatened to deal a similar fate to the victim unless she performed oral sex on him. He led her away from the homeless encampment where she was living to the Olympic Auto Park garage at the corner of Third and Vine streets (about a block away). Once there, Mr. Bailey forced her to perform oral sex on him. Following that assault, Mr. Bailey rаped her, struck her in the face repeatedly, and threatened to kill her if she left the garage or infected him with a sexually transmitted disease. Security cameras captured the two of them entering the garage together just before midnight and leaving separately around 20 minutes later.
{4} On appeal, Mr. Bailey presents four assignments of error, asserting: (1) his trial counsel‘s ineffectiveness, (2) error in imposing consecutive sentences, (3) a lack of record support for imposing maximum sentences on eаch count, and (4) error in failing to merge the kidnapping and rape convictions during sentencing. For ease of discussion, we address the last assignment of error first.
II.
{5} The Double Jeopardy Clauses of both the United States and Ohio Constitutions protect individuals from being punished twice for the same offense. State v. Merz, 1st Dist. Hamilton No. C-200152, 2021-Ohio-2093, ¶ 6, citing the Fifth Amendment to the
{6} Before considering the Ruff approach to merger in general, we note that earlier case law is “still relеvant to determining whether rape and kidnapping convictions merge” under the third Ruff prong addressing animus. State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 108. In State v. Logan, the Supreme Court established guidelines for evaluating whether kidnapping and rape are committed with a separate animus. State v. Logan, 60 Ohio St.2d 126, 134-135, 397 N.E.2d 1345 (1979). If the restraint or movement of the victim is merely incidental to the underlying rape, then no separate animus exists; however, if
{7} In his fourth assignment of error, Mr. Bailey insists that the trial court should have merged the kidnapping and rape charges as allied offenses because the state relied on the rape offense to prove an essential element of the kidnapping offense. Mr. Bailey failed to preserve this issue for appeal at the trial level, so we review it for plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3 (“An accused‘s failure to raise the issuе 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.). A trial court‘s failure to merge allied offenses “necessarily affects a substantial right” that constitutes plain error. Merz at ¶ 17 (“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.“). Mr. Bailey bears the burden of showing “a reasonable probability that the convictions are for allied offenses of
{8} Applying the Ruff and Logan framework to Mr. Bailey‘s appeal, we first explore whether the allied offenses here are of dissimilar import—and more specifically, whether offenses are of dissimilar import when the harm caused by one serves as an element of the other. Offenses are of dissimilar import when (1) the offenses involve separate victims, or (2) the harm from each offense is separate and identifiable. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892 at ¶ 26 (“We therefore hold that two or more offenses of dissimilar import exist within the meaning of
{9} The state convicted Mr. Bailey under
{10} Having answered the first Ruff question in the negative, we turn to the second and third: whether the offenses were committed separately or with a separate animus. Neither side makes an argument that the offenses proceeded separately. Mr. Bailey indicated from the outset that he intended to sexually assault the victim, and the kidnapping occurred as part of that assault. As a result, we are left to consider whether a separate animus or motivation existed between the rape and the kidnapping. In other words, was the kidnapping incidental to the rape or was it substantial enough to attain independent significance? No bright-line answer governs this question in all circumstances. The Supreme Court has acknowledged that “implicit within every forcible rape * * * is a kidnapping.” Logan, 60 Ohio St.2d at 130, 397 N.E.2d 1345. The merger statute directs us to take into account the defendant‘s conduct when deciding whether to merge allied offenses, which yields an often fact-driven inquiry. Ruff at ¶ 26 (“At its heart, the allied-offense analysis is dependent upon the facts of a case because
{12} Likewise, Mr. Bailey‘s behavior confirms that his movement was merely incidental to the rape. Mr. Bailey told the victim he wanted to use her for sexual gratification, and he moved her to expedite that assault. Logan at 132 (“[W]here an individual‘s immediate motive is to engage in sexual intercourse * * * the perpetrator may be convicted of either rape or kidnapping, but not both.“). Based on the victim‘s testimony, after Mr. Bailey attacked her friends, he then walked her to a garage “not too far across the street.” While the exact distance is not known, it was roughly a city block and likely comparable to the movement in Logan. Once there, Mr. Bailey assaulted her “just into the entrance [of the parking garage] and to the left.” In urging us to characterize this action as a secret confinement
{13} Because the kidnapping was an allied offense of similar import and was not committed separately or with a separate animus, the trial court erred in not merging the convictions for sentencing purposes. Accordingly, we sustain Mr. Bailey‘s fourth assignment of error.
III.
{14} Returning to his first assignment of error, Mr. Bailey claims a denial of his constitutionally-protected right to effective counsel both during trial and sentencing. As to the sentencing phase, Mr. Bailey points to counsel‘s failure to address whether the kidnapping and rape charges should have merged at sentencing. Our discussion above sustaining his fourth assignment of error renders that issue moot. To prevail on his claim of ineffective assistance of counsel during trial, Mr. Bailey must show that “counsel‘s performance was deficient and that counsel‘s
{15} Regarding trial deficiencies, Mr. Bailey first complains that his counsel allowed the casе to be heard by a jury. But he then concedes—and the trial transcript confirms—that it was his decision to exercise his constitutional right to a jury. In any case, Mr. Bailey acknowledges that he is not raising this issue for consideration by our court, but rather he intends to pursue it in a postconviction petition. Without any legal or factual substantiation of this charge, we have no occasion to ponder it further.
{16} Next, Mr. Bailey asserts that poor advice from trial counsel prevented him from testifying in his own defense. This strategy decision allegedly prejudiced him because only he could explain what happened on the night in question and why he spun a series of lies as the walls closed in on him. According to Mr. Bailey, he and the victim engaged in a consensual sex-for-drugs transaction. Through cross-examination, Mr. Bailey‘s counsel explored that theory by insinuating that the victim
{17} In his second assignment of error, Mr. Bailey faults the statutory findings made by the trial court before imposing consecutive sentences as not supported by clear and convincing evidence. Specifically, he challenges the trial court‘s findings pursuant to
{18} Finally, Mr. Bailey challenges his maximum sentences as unsupported by the record and violative of the Eighth Amendment‘s prohibition against cruel and unusual punishment. Trial courts have discretion to impose prison sentences within the statutory range for the crime committed and any sentence imposed under a valid statue generally does not trigger cruel and unusual concerns. State v. Dieterle, 1st Dist. Hamilton No. C-070796, 2009-Ohio-1888, ¶ 42-43. The Eighth Amendment only prohibits sentences that are “grossly disproportionate” to the crime, meaning the penalty in relation to the cirсumstances of the offense “would be considered shocking to any reasonable person” or the penalty “shock[s] the sense of justice of the community.” State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 13-14. That is not the situation here and the individual sentences fall within their respective statutory ranges. To the extent Mr. Bailey believes the consecutive nature of the sentences transforms them into cruel and unusual punishment, Supreme Court precedent forecloses that path. See id. at ¶ 20 (“Where
{19} Mr. Bailey‘s final position—that the maximum sentences are unsupported by the record—is similarly misguided. He asserts that
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{20} In light of the foregoing analysis, we overrule Mr. Bailey‘s first three assignments of error. We sustain his fourth assignment of error and remand the cause for a new sentencing hearing so the state may choose which allied offense to pursue.
Judgment affirmed in part, reversed in part, and cause remanded.
WINKLER and Bock, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion