[Cite as State v. Marlow, 2013-Ohio-778.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLERMONT COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2012-07-051

                                                   :           OPINION
   - vs -                                                       3/4/2013
                                                   :

MICHAEL C. MARLOW,                                 :

        Defendant-Appellant.                       :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                        Case No. 2012 CR 000196



D. Vincent Faris, Clermont County Prosecuting Attorney, David Hoffmann, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

The Law Office of Steven R. Adams, Marguerite Slagle, 8 West Ninth Street, Cincinnati, Ohio
45202, for defendant-appellant



        M. POWELL, J.

        {¶ 1} Defendant-appellant, Michael Marlow, appeals his sentence in the Clermont

County Court of Common Pleas for voyeurism and illegal use of a minor in nudity-oriented

material.

        {¶ 2} In the spring of 2012, appellant was charged with and entered a guilty plea to

one count of voyeurism (Count One) and one count of illegal use of a minor in nudity-oriented
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material (Count Two), both felonies of the fifth degree. The record of the plea hearing

indicates that on October 23, 2011, appellant concealed a pen camera in the bathroom of his

residence to capture his minor sister-in-law in a state of nudity for purposes of sexual

gratification, and that he possessed the recorded images "on his laptop computer or SD

card." When appellant entered his guilty plea, he was advised by the trial court of the

potential penalties and that he would be classified as a Tier I sex offender and be subject to

sex offender registration duties for a period of 15 years. The trial court accepted appellant's

plea and found him guilty as charged.

        {¶ 3} At the sentencing hearing, the trial court (1) classified appellant a Tier I sex

offender, (2) explained to appellant his registration and notification duties as a Tier I sex

offender, (3) had appellant sign a document explaining those duties, and (4) sentenced

appellant to three years of community control. The trial court warned appellant that any

violation of the community control would result in a 12-month prison term on Count One to be

served consecutively to a 12-month prison term on Count Two. The trial court did not

engage in any type of allied offenses of similar import analysis, and trial counsel did not

object. At the state's demand, the trial court also ordered the destruction of the "flash drive"

and the pen camera used by appellant.1 The parties agreed appellant's computer did not

need to be destroyed; the record indicates that nothing was found on it.

        {¶ 4} Appellant appeals, raising two assignments of error which will be addressed in

reverse order.

        {¶ 5} Assignment of Error No. 2:

        {¶ 6} THE TRIAL COURT COMMITTED PLAIN ERROR BY IMPOSING MULTIPLE


1. The record shows the parties used different terminology when discussing the tools used by appellant. At the
plea hearing, the state alleged that the captured image was on appellant's "laptop computer or SD card."
However, during the sentencing hearing, the parties and the trial court used the term "flash drive" when
discussing what should be destroyed. The term "flash drive" was first used by trial counsel. The state did not
correct trial counsel. The trial court used the term "flash drive" in its sentencing entry.
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SENTENCES ON ALLIED OFFENSES.

        {¶ 7} Appellant argues the trial court erred in sentencing him on both voyeurism and

illegal use of a minor in nudity-oriented material because the offenses are allied offenses of

similar import under R.C. 2941.25 and State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-

6314.

        {¶ 8} We note at the outset that appellant waived all but plain error by failing to raise

any allied offense objection with the trial court. However, the Ohio Supreme Court has held

that the imposition of multiple sentences for allied offenses of similar import is plain error.

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31; State v. Luong, 12th Dist. No.

CA2011-06-101, 2012-Ohio-4519, ¶ 48.

        {¶ 9} R.C. 2941.25, Ohio's multiple-count statute, prohibits the imposition of multiple

punishments for the same criminal conduct and provides that:

               (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.

        {¶ 10} In Johnson, the Ohio Supreme Court established a new two-part test for

determining whether offenses are allied offenses of similar import under R.C. 2941.25

(thereby overruling State v. Rance, 85 Ohio St.3d 632 [1999]). Courts must first determine

"whether it is possible to commit one offense and commit the other with the same conduct."

(Emphasis sic.) Johnson, 2010-Ohio-6314 at ¶ 48. It is not necessary that the commission

of one offense will always result in the commission of the other. Id. Rather, the question is

simply whether it is possible for both offenses to be committed by the same conduct. Id.
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       {¶ 11} If it is possible to commit both offenses with the same conduct, courts must

next determine whether the offenses were in fact committed by the same conduct, that is, by

a single act, performed with a single state of mind. Id. at ¶ 49. If so, the offenses are allied

offenses of similar import and must be merged. Id. at ¶ 50. On the other hand, if the

offenses are committed separately or with a separate animus, the offenses will not merge.

Id. at ¶ 51.

       {¶ 12} Appellant was charged with voyeurism in violation of R.C. 2907.08(C). The

statute provides that "[n]o person, for the purpose of sexually arousing or gratifying the

person's self, shall * * * surreptitiously invade the privacy of another to videotape, film,

photograph, [or] otherwise record, * * * the other person in a state of nudity if the other

person is a minor."

       {¶ 13} Appellant was also charged with illegal use of a minor in nudity-oriented

material in violation of R.C. 2907.323(A)(3). The statute prohibits a person from possessing

or viewing any material that shows a minor who is not the person's child in a state of nudity,

unless one of two exceptions applies (the exceptions are not applicable here). We find, and

the state concedes on appeal, that it is possible to commit both offenses with the same

conduct.

       {¶ 14} We next determine whether appellant in fact committed both offenses by way of

a single act, performed with a single state of mind, or whether he had separate animus for

each offense. Johnson, 2010-Ohio-6314 at ¶ 49.

       {¶ 15} We find that the two offenses were committed by way of a single act, performed

with a single state of mind. The bill of information charging appellant with the two offenses

and the record shows that the offenses occurred on the same day with the same victim. At

the plea hearing, the state indicated that appellant recorded his sister-in-law with a concealed

pen camera and "later possessed that same captured image * * * on his laptop computer or
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SD card." However, during the sentencing hearing, it became clear that the image was only

stored on the SD card, and that no image was found on appellant's computer. The state did

not allege, and there is no evidence, that appellant viewed the captured image at a later time.

There is also no evidence appellant transferred the image after it was recorded.

       {¶ 16} The state asserts, however, that the offenses were committed with a separate

animus because (1) appellant committed voyeurism by recording his sister-in-law; (2)

appellant committed the other offense when he later possessed the image on his computer

or SD card; and (3) "by maintaining or storing the image, [appellant] separately committed

the illegal use offense after the commission of the voyeurism[.]"

       {¶ 17} In Johnson, the supreme court noted the absurd results obtained from

comparing crimes in the abstract under a former approach:

              Under such an analysis, we would have been compelled to hold
              that possession of and trafficking in the same controlled
              substance were not allied offenses, because the elements do not
              align exactly, "even though common sense and logic tell us that
              in order to prepare a controlled substance for shipping, ship it,
              transport it, deliver it, prepare it for distribution, or distribute it,
              one must necessarily also possess it."

Johnson, 2010-Ohio-6314 at ¶ 30, quoting State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-

1625, ¶ 24. The same logic applies here. In order for appellant to obtain sexual gratification

from surreptitiously recording his sister-in-law, appellant must possess the recording.

       {¶ 18} We therefore find that the offenses of voyeurism and illegal use of a minor in

nudity-oriented material were allied offenses of similar import. Further, the trial court's failure

to merge the offenses at sentencing and its imposition of individual sentences for both

offenses constitutes plain error. Underwood, 2010-Ohio-1 at ¶ 26, 31.

       {¶ 19} Appellant's second assignment of error is well-taken and sustained.

       {¶ 20} Assignment of Error No. 1:

       {¶ 21} MR. MARLOW WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL
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COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE 1 OF THE OHIO

CONSTITUTION.

       {¶ 22} Appellant first argues his trial counsel was ineffective for failing to (1) request

merger of the allied offenses of similar import, and (2) object to the trial court's imposition of

separate sentences for his convictions. However, in light of our holding that the trial court

committed plain error by failing to merge the offenses of voyeurism and illegal use of a minor

in nudity-oriented material, we find this argument is moot. See State v. Seymore, 12th Dist.

Nos. CA2011-07-131, CA2011-07-143, 2012-Ohio-3125.

       {¶ 23} Appellant also argues his trial counsel was ineffective for failing to argue that

the imposition of sex offender registration subjected him to multiple punishments in violation

of the Double Jeopardy Clauses of the Ohio and United States Constitutions.

       {¶ 24} To demonstrate ineffective assistance of counsel, appellant must show that his

trial counsel's performance was both deficient and prejudicial. Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989).

With respect to deficiency, appellant must show that his counsel's performance "fell below an

objective standard of reasonableness." Strickland at 688. With respect to prejudice,

appellant must show that there is a reasonable probability that, but for his counsel's

unprofessional errors, the outcome of the proceeding would have been different. Id. at 694.

"A defendant's failure to satisfy one prong of the Strickland test negates a court's need to

consider the other." State v. Madrigal, 87 Ohio St.3d 378, 389 (2000); State v. Gilbert, 12th

Dist. No. CA2010-09-240, 2011-Ohio-4340, ¶ 73.

       {¶ 25} The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution states that no person shall "be subject for the same offence to be twice put in

jeopardy of life or limb." See also Ohio Constitution, Article I, Section 10. "Although the
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Double Jeopardy Clause was commonly understood to prevent a second prosecution for the

same offense, the United States Supreme Court has applied the clause to prevent a state

from punishing twice, or from attempting a second time to criminally punish for the same

offense." State v. Williams, 88 Ohio St.3d 513, 528 (2000).

       {¶ 26} The threshold question in a double jeopardy analysis is whether the

government's conduct involves criminal punishment. Id. In 2011, the Ohio Supreme Court

held that the current version of R.C. Chapter 2950, 2007 Am.Sub.S.B. No. 10 ("S.B. 10") "is

punitive."   State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, ¶ 16.             The court

subsequently held that "S.B. 10 imposes additional criminal punishment on those convicted

of sexually oriented offenses." State v. Raber, Slip Opinion No. 2012-Ohio-5636, ¶ 23.

       {¶ 27} The Double Jeopardy Clause of the federal constitution "protects only against

the imposition of multiple criminal punishments for the same offense, * * * and then only

when such occurs in successive proceedings." (Citations omitted.) Hudson v. United States,

522 U.S. 93, 99, 118 S.Ct. 488 (1997); Raber at ¶ 24; State v. Martello, 97 Ohio St.3d 398,

2002-Ohio-6661, ¶ 8. "If pursued in a single proceeding, * * * multiple punishment may

constitutionally be imposed[.]" State v. Gustafson, 76 Ohio St.3d 425, 437 (1996).

       {¶ 28} In Raber, the supreme court held that "the protections against double jeopardy

barred [the trial court] from classifying Raber as a Tier I sex offender more than a year after it

imposed sentence." Raber, 2012-Ohio-5636 at ¶ 27. Specifically, the court found that:

              Raber had a legitimate expectation of finality in his sentence
              when the trial court entered its judgment of conviction on
              December 2008 and the protections of the Double Jeopardy
              Clause prohibited the trial court from reopening this case,
              conducting a separate trial to determine whether the sexual
              activity at issue was consensual, and classifying Raber as a sex
              offender subject to Tier I registration.

Id. at ¶ 26. See also Pollis v. State, 11th Dist. No. 2008-T-0055, 2009-Ohio-5058 (offender's

reclassification as Tier I sex offender under S.B. 10 imposed additional punitive measures on
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offender in violation of the Double Jeopardy Clauses of state and federal constitutions;

following his guilty plea and his original classification as a sexually oriented offender, offender

had expectation of finality in classification requiring him to register for ten years, but was

required under amended statute (S.B. 10) to register once a year for 15 years); State v.

Strickland, 11th Dist. No. 2008-L-034, 2009-Ohio-5424 (similar reclassification).

       {¶ 29} In Raber, Pollis, and Strickland, the offenders were all classified or reclassified

as sex offenders under S.B. 10 more than a year after their judgment of conviction, that is, in

a separate and successive proceeding. Such is not the case here. The record clearly shows

that appellant was adjudicated as a Tier I sex offender and sentenced during the sentencing

hearing. The sex offender classification was not a separate proceeding but rather occurred

as part of the sentencing proceedings. The Ohio Supreme Court did not hold in Raber that

every sex offender classification or reclassification under S.B. 10 inevitably violates the

Double Jeopardy Clauses of the state and federal constitutions.

       {¶ 30} We therefore find that trial counsel was not deficient, and thus was not

ineffective, for failing to raise the double jeopardy issue before the trial court. Appellant's first

assignment of error is overruled.

       {¶ 31} The judgment of the trial court failing to merge the offenses of voyeurism and

illegal use of a minor in nudity-oriented material and imposing individual sentences for these

offenses is reversed and the matter is remanded for resentencing. Upon remand, the state

can elect which allied offense of similar import to pursue, and the trial court is bound by the

state's election. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 20, 24; State v. Clay,

12th Dist. No. CA2011-02-004, 2011-Ohio-5086, ¶ 27.


       HENDRICKSON, P.J., and PIPER, J., concur.




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