State v. EdwardsState v. Edwards
Decided: February 15, 2013
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Paul A. Dobson, Wood County Prosecuting Attorney, Heather Baker and Jacqueline M. Kirian, Assistant Prosecuting Attorneys, for appellee.
Lorin J. Zaner and Jill M. Varnes-Richardson, for appellant.
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YARBROUGH, J.
I. Introduction
{¶ 1} This is an appeal from the judgment of the Wood County Court of Common Pleas, finding appellant, Richard Edwards, guilty of two counts of gross sexual imposition, and sentencing him to two consecutive 54-month prison terms.
{¶ 2} On March 17, 2011, Edwards was indicted by the Wood County Grand Jury on one count of attempted rape, a felony of the first degree, in violation of
{¶ 3} Edwards initially entered a plea of not guilty to all counts. However, on October 17, 2011, he withdrew his original plea and entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.E.2d 162 (1970), as to the two counts of gross sexual imposition. At the state‘s request, the attempted rape charge was dismissed. Prior to accepting his Alford plea, the trial court asked the state to recite the facts supporting the charges.
{¶ 4} In its recitation of the facts, the state indicated that, had the case gone to trial, the nine-year-old victim would have testified. The victim would have allegedly stated that, on February 16, 2011, Edwards babysat her while her mother was at a doctor‘s appointment. While babysitting the victim, Edwards approached her, pulled a fake penis out of a bag he was carrying, and began to “put that fake penis near her private parts over her clothes.” Feeling uncomfortable, the victim got up and went to the bathroom. When she returned to the couch, Edwards pulled out another fake penis, “moved her underwear, and * * * put the fake penis on her bare genitalia.” Edwards
{¶ 5} At the conclusion of the Alford plea hearing, the trial court found that the state had recited sufficient facts from which to find Edwards guilty of the charged offenses. Accordingly, the trial court accepted Edwards’ Alford plea, found him guilty, and ordered the preparation of a presentence investigation report. At sentencing, the court imposed a 54-month prison term on each count of gross sexual imposition, ordering them to be served consecutively. This appeal followed.
B. Assignments of Error
{¶ 6} Edwards assigns the following errors for our review:
- The Appellant states that the trial court sentenced the Defendant consecutively as to two offenses in violation of
R.C. 2941.25 , as both offenses were allied offenses of similar import and the Defendant should have been only convicted of one. - The Appellant further states that the trial court sentenced the Defendant to a term of months instead of a term of years and impermissibly applied
R.C. 2929.14(A) retroactively.
II. Analysis
A. Allied Offenses
{¶ 7} In his first assignment of error, Edwards argues that the trial court erroneously sentenced him to consecutive sentences for allied offenses of similar import.
{¶ 8}
(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.
{¶ 9} As set forth in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the test for whether offenses are allied offenses of similar import under
{¶ 10} Here, Edwards was consecutively sentenced on two counts of gross sexual imposition. These offenses are, by definition, able to be committed by the same conduct, as they are multiple counts of the same statutory offense containing identical elements. State v. Stoffer, 7th Dist. No. 09-CO-1, 2011-Ohio-5133, ¶ 182. Since the offenses satisfy the first prong, Edwards may be convicted of all of them only if they were committed separately or with a separate animus as to each. Johnson at ¶ 51;
{¶ 11} First, Edwards pulled out a fake penis and began to rub the victim‘s “private parts” over her clothes. Then, after the victim returned from the bathroom, Edwards moved the victim‘s underwear, placing the fake penis on her bare genitalia, and pulled his pants down in order to expose himself. The use of the fake penis over the clothes was a different, distinct sexual activity from the activity that took place after the victim returned from the bathroom. Thus, merger does not apply. Stoffer at ¶ 182.
{¶ 12} The facts of this case are similar to those in State v. Grant, 2d Dist. No. 19824, 2003-Ohio-7240, ¶ 58. Edwards and the defendant in Grant each engaged in multiple offenses near the same time, involving the same victim. In Grant, the defendant
Sometime during March or April 2001, while T.M. was taking a swimming lesson from Defendant, he approached her from behind in the deep end of the pool and pulled her bathing suit to one side. T.M. felt Defendant‘s penis touch her buttocks, and his penis then move in and out between the cheeks of her buttocks. Defendant then went underwater and, with T.M.‘s bathing suit still pulled aside, he blew air bubbles on T.M.‘s vagina. T.M. felt Defendant‘s beard touch her skin during this incident.
Defendant next attempted vaginal intercourse with T.M. but could penetrate only the lips of T.M.‘s vagina, moving his penis in and out. Defendant then placed T.M.‘s hand on his penis and forced her to move her hand back and forth while he touched T.M.‘s vagina with his hand. Id. at ¶ 3-4.
{¶ 13} In its analysis of the merger doctrine, the court noted that “[o]ffenses involving distinct, different sexual activity each constitute a separate crime with a separate animus, and are not allied offenses of similar import, even when they are committed in the course of the same encounter.” (Emphasis added.) Id. at ¶ 59, citing State v. Nicholas, 66 Ohio St.3d 431, 613 N.E.2d 225 (1993). The court summarized the defendant‘s actions by breaking them into the following three parts: “(1) Defendant put
{¶ 14} Although Grant was decided prior to the Supreme Court‘s decision in Johnson, its analysis rested on the proposition that allied offenses do not merge when they are committed with a separate animus. That proposition was reaffirmed by the court in Johnson.
{¶ 15} Further, subsequent decisions applying Johnson have arrived at the same result as the court in Grant. For example, in Stoffer, the defendant was convicted on two counts of gross sexual imposition. The evidence showed that the defendant had engaged in two acts relevant to the gross sexual imposition counts: (1) touching the breasts of a minor child; and (2) touching the child‘s pubic region. Stoffer, 2011-Ohio-5133 at ¶ 183. Applying Johnson, the Seventh District Court of Appeals determined that those actions constituted “two distinct acts of sexual misconduct.” Id. Thus, the court held that “each offense charged constitutes a separate offense of gross sexual imposition, and the crimes do not constitute allied offenses of similar import which must be merged for conviction.” Id.
B. Retroactive Application of R.C. 2929.14(A)
{¶ 17} In his second assignment of error, Edwards argues that the trial court erroneously sentenced him to a term of months instead of a term of years, as a result of its impermissible retroactive application of
{¶ 18} In 2011,
{¶ 19} Here, there is no dispute that the offense was committed prior to the effective date of amended
{¶ 21} We agree that the court erred when it applied the amended version of
{¶ 22} The prior version of
{¶ 24} Additionally, we note that this case is distinguishable from those cases in which a statute is amended after the commission of the offense but before sentencing, where the amendment fundamentally changes the nature of the offense. See e.g., State v. Collier, 22 Ohio App.3d 25, 488 N.E.2d 887 (3d Dist.1984) (applying
{¶ 25} Accordingly, Edwards’ second assignment of error is well-taken.
III. Conclusion
{¶ 26} Based on the foregoing, the judgment of the Wood County Court of Common Pleas is hereby reversed. This case is remanded to the trial court for resentencing in accordance with the prior version of
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, P.J. _______________________________
JUDGE
Thomas J. Osowik, J. _______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.