[Cite as State v. Roberson, 2018-Ohio-1955.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                      Court of Appeals No. L-16-1131

        Appellee                                   Trial Court No. CR0201503139

v.

Ronald Roberson                                    DECISION AND JUDGMENT

        Appellant                                  Decided: May 18, 2018

                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Mollie B. Hojnicki-Mathieson, for appellant.

                                               *****

        MAYLE, P.J.

        {¶ 1} On June 16, 2016, defendant-appellant, Ronald Roberson, was convicted by

a jury of domestic violence, two counts of aggravated burglary, rape, and participating in

a criminal gang. The trial court sentenced Roberson to serve 11 months in prison on the

domestic violence count; 9 years in prison on each aggravated burglary count; 9 years in
prison on the rape count; and 6 years in prison on the participating in a criminal gang

count. The court ordered Roberson to serve his sentences for domestic violence, the two

aggravated burglaries, and rape consecutively, and his sentence for participating in a

criminal gang concurrently with the other counts, for an aggregate prison sentence of 27

years and 11 months in prison.

       {¶ 2} Roberson appealed his convictions, and we affirmed his rape, aggravated

burglary, and domestic violence convictions, but reversed and vacated his conviction for

participating in a criminal gang for insufficient evidence. State v. Roberson, 6th Dist.

Lucas No. L-16-1131, 2017-Ohio-4339 (“Roberson I”).

       {¶ 3} On August 17, 2017, Roberson moved to reopen his appeal pursuant to

App.R. 26(B), arguing that appellate counsel was ineffective for failing to raise the

following assignment of error:

              THE TRIAL COURT COMMITTED PLAIN ERROR BY

       FAILING TO MERGE THE AGGRAVATED BURGLARY

       CONVICTION WITH THE RAPE CONVICTION, THEREBY

       VIOLATING THE DOUBLE JEOPARDY CLAUSES OF THE FIFTH

       AMENDMENT TO THE UNITED STATES CONSTITUTION AND

       SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

       {¶ 4} We granted the motion to reopen, and we now consider the merits of this

new assignment of error under App.R. 26(B)(7).




2.
       {¶ 5} For the following reasons, we find that the trial court did not commit plain

error by failing to merge the aggravated burglary and rape convictions because they are

offenses of dissimilar import. We find that appellate counsel was not ineffective, and we

confirm our prior judgment under App.R. 26(B)(9).

                                         I. Facts

       {¶ 6} In our prior decision, we summarized the facts that supported Roberson’s

five criminal convictions. Roberson I, ¶ 4-34. The only facts that are relevant to the

assignment of error before us now are those relating to the August 27, 2015 incident,

which supported two of Roberson’s convictions: aggravated burglary and rape. The

relevant facts are these:

              Roberson met C.G. in August of 2015. He introduced himself as

       “Gotti” and asked for her phone number. The day after they met, Roberson

       called C.G. and asked to come to her house. She assented and the pair

       smoked marijuana until C.G. asked Roberson to leave. Later that week

       Roberson came to C.G.’s home with a friend. The three of them smoked

       marijuana and then Roberson and his friend left. This was the extent of

       C.G.’s interactions with Roberson prior to August 27, 2015.

              Roberson and C.G. both testified that late in the evening of August

       26 or early in the morning of August 27 Roberson went to C.G’s home and

       she voluntarily let him into her home. Beyond that, they presented different

       versions of the events that occurred.




3.
            C.G. testified that Roberson called her around midnight while she

     was sleeping. He told her that he was at a nearby gas station and asked to

     come over. She agreed. When Roberson knocked on the door, C.G.

     opened it and let him in. He immediately asked to use her bathroom, which

     was upstairs where her children were sleeping. She said he could, but he

     did not return after several minutes. She went up to check on her children

     and found Roberson in her bedroom, not the bathroom. He asked C.G. to

     sleep with him, but she told him they should take their time before making

     the relationship sexual. Roberson grabbed C.G.’s hand to pull her toward

     the bed, started kissing her, removed her underwear, and engaged in vaginal

     intercourse with her. Although C.G. was not interested in sleeping with

     Roberson, she did not tell him “no” when he initiated the sexual activity.

     She claimed that she was scared to fight him because she did not know him

     well and did not know what he would do if she refused. C.G. did, however,

     reply “no” when Roberson asked her if she liked what he was doing and she

     testified that she also said “no” two other times during the encounter. She

     also scratched Roberson on his side or his back during sex.

            C.G. further testified that after Roberson finished he asked to use

     C.G.’s phone charger, which he retrieved from the first floor. He charged

     his phone in her bedroom for a brief time and then went back downstairs.

     C.G. testified that she was scared so she laid in her bed after Roberson went




4.
     downstairs. C.G. heard voices downstairs, but could not identify how many

     people she heard or if one of them was Roberson. After the voices stopped,

     C.G. went downstairs and saw that her front door was open and her TVs,

     computer, and game system were missing. She later discovered that

     smaller items from upstairs, including her children’s tablets, were also

     missing. C.G. then texted Roberson, telling him that he had 15 minutes to

     return her property or she was going to call police. She sent him 14 text

     messages over the course of approximately 30 minutes. One of the

     messages said, “And you rapped [sic] me I told you no over and over

     again.” Roberson did not respond to any of the messages.

            C.G. testified that she called the police after texting Roberson.

     Officers responded and took C.G. to the Toledo Hospital to have a rape kit

     performed. At trial, C.G. read from a certified copy of her hospital records.

     Although C.G.’s testimony largely matched the information in the hospital

     records, the records contained some additional details. According to the

     medical records, C.G. told the SANE who examined her that she had asked

     Roberson to leave when she found him upstairs. The medical records also

     described her encounter with Roberson in the bedroom a bit differently.

     She claimed that Roberson said “come here,” grabbed her by both arms,

     and threw her on the bed. The defense did not object to the admission of

     the records or to C.G. reading from the records.




5.
            Roberson provided a different version of the evening’s events. He

     testified that C.G. contacted him and asked him to come to her house. He

     walked over from a nearby gas station. When he arrived, the two of them

     smoked marijuana and engaged in some foreplay. He claimed that he never

     asked to use the bathroom. He also claimed that C.G. suggested they go

     upstairs to her bedroom where the two engaged in consensual sex. He

     testified that C.G. became uncomfortable after they had sex and asked him

     to leave, which he did. He did not lock the door when he left. He claimed

     he did not take any of C.G.’s property and it would have been impossible

     for him to take a television, a computer, and a game system with him

     because he walked to C.G.’s house.

            The SANE who examined C.G. testified at trial. She said that C.G.’s

     demeanor when she arrived at the hospital was “very distraught.” She

     testified that C.G. did not have any physical injuries, which she said is not

     uncommon in rape victims. She also testified from the hospital records,

     which contained her notes of the evening’s events as told to her by C.G.

     According to the SANE, C.G. had met a man named Gotti approximately a

     year before. He called C.G. in the middle of the night and asked to come

     over. She agreed. When Gotti came to the house he asked to use the

     restroom. C.G. followed him upstairs and found him sitting on her bed.

     Gotti grabbed her by both arms, threw her on the bed, and raped her. C.G.




6.
       did not want to make any noise because she did not want to wake her

       children. When Gotti finished, he asked to use her phone charger, which

       she gave him. When his phone was charged he went downstairs, but C.G.

       did not know what he did while he was downstairs. C.G. stayed in her

       room, but could hear noises and voices coming from downstairs. When the

       noises stopped she went downstairs, locked the door, noticed that some of

       her property was missing, and called the police. Roberson I at ¶ 4-10.

       {¶ 7} Based on this evidence, a jury convicted Roberson of aggravated burglary

and rape, and the trial court ordered Roberson to serve the sentences consecutively. We

upheld both convictions in Roberson I. Roberson now argues that the two convictions

are allied offenses of similar import and the trial court committed plain error by failing to

merge them at sentencing.

                                   II. Law and Analysis

       {¶ 8} Roberson was convicted of aggravated burglary in violation of R.C.

2911.11(A)(1) and rape in violation of R.C. 2907.02(A)(2) and (B).

       {¶ 9} Under the relevant aggravated burglary statute, R.C. 2911.11(A)(1), it is

illegal for any person “by force, stealth, or deception” to trespass in an occupied structure

or in a separately secured or separately occupied portion of an occupied structure, when a

person other than the person’s accomplice is present, with purpose to commit any

criminal offense if “the offender inflicts, or attempts or threatens to inflict physical harm




7.
on another.” Under R.C. 2901.01(A)(3), “physical harm to persons” means “any injury,

illness, or other physiological impairment, regardless of its gravity or duration.”

       {¶ 10} A rape conviction under R.C. 2907.02(A)(2) requires the state to prove that

the defendant engaged in sexual conduct with another by compelling the other person to

submit by force or threat of force. “Force” is defined as “any violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing.” R.C.

2901.01(A)(1).

       {¶ 11} In Roberson I, 6th Dist. Lucas No. L-16-1131, 2017-Ohio-4339, at ¶ 44-59,

64-69, we found that Roberson’s separate convictions for aggravated burglary and rape,

which both related to the August 27, 2015 incident at C.G.’s home, were supported by

sufficient evidence and were not against the manifest weight of the evidence. We

specifically found that the rape was the “physical harm” that supported the aggravating

circumstance of the burglary conviction. Id. at ¶ 56. We now consider whether the

aggravated burglary and rape convictions should have merged at sentencing.

       {¶ 12} We review de novo a trial court’s ruling as to whether convictions merge

under the allied-offenses doctrine. State v. Corker, 10th Dist. Franklin Nos. 13AP-264,

13AP-265, and 13AP-266, 2013-Ohio-5446, ¶ 28, citing State v. Roush, 10th Dist.

Franklin No. 12AP-201, 2013-Ohio-3162, ¶ 67. Roberson, however, did not raise the

issue of allied offenses of similar import in the trial court. Our review of this issue on

appeal is therefore limited to plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-

Ohio-2459, 38 N.E.3d 860, ¶ 3. Roberson must “demonstrate a reasonable probability




8.
that the convictions are for allied offenses of similar import committed with the same

conduct and without a separate animus,” and “absent that showing, the accused cannot

demonstrate that the trial court’s failure to inquire whether the convictions merge for

purposes of sentencing was plain error.” Id.

       {¶ 13} The Double Jeopardy Clause of the Fifth Amendment to the U.S.

Constitution provides that no person shall “be subject for the same offence to be twice

put in jeopardy of life or limb.” This protection applies to Ohio citizens through the

Fourteenth Amendment to the U.S. Constitution. Benton v. Maryland, 395 U.S. 784, 794,

89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The right against double jeopardy is also

guaranteed by the Ohio Constitution, Article I, Section 10 (“No person shall be twice put

in jeopardy for the same offense.”). “The protection provided by the Ohio Constitution’s

Double Jeopardy Clause is coextensive with that provided by the Double Jeopardy Clause

of the United States Constitution.” Clark v. Adult Parole Auth., 151 Ohio St.3d 522,

2017-Ohio-8391, 90 N.E.3d 909, ¶ 13.

       {¶ 14} The Double Jeopardy Clause “protects against three abuses: (1) ‘a second

prosecution for the same offense after acquittal,’ (2) ‘a second prosecution for the same

offense after conviction,’ and (3) ‘multiple punishments for the same offense.’” State v.

Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10, quoting North Carolina

v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other

grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).




9.
       {¶ 15} R.C. 2941.25 codifies the Double Jeopardy Clause’s third protection, which

prohibits multiple punishments for the same offense. The statute prohibits multiple

convictions for “allied offenses of similar import” arising out of the same conduct. R.C.

2941.25 states:

              (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.

       {¶ 16} “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.” Ruff at ¶ 26. This

means that the “‘analysis may be sometimes difficult to perform and may result in

varying results for the same set of offenses in different cases. But different results are

permissible, given that the statute instructs courts to examine a defendant’s conduct―an

inherently subjective determination.’” Id. at ¶ 32, quoting State v. Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 52.




10.
       {¶ 17} In Ruff, the Supreme Court of Ohio announced that whenever a court

considers whether there are allied offenses that merge into a single conviction, the court

“must first take into account the conduct of the defendant. In other words, how were the

offenses committed?” Id. at ¶ 25. When considering this overarching question, the court

must address three sub-questions: (1) Were the offenses “dissimilar in import,” meaning

did the offenses involve either separate victims or “separate and identifiable” harm?

(2) Were the offenses committed separately? and (3) Were the offenses committed with

separate animus? Id. at ¶ 23-25. “‘An affirmative answer to any of the above will permit

separate convictions. The conduct, the animus, and the import must all be considered.’”

(Emphasis added.) State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266,

¶ 12, quoting Ruff at ¶ 31. The defendant bears the burden to establish that R.C. 2941.25

prohibits multiple punishments. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-

4982, 999 N.E.2d 661, ¶ 18, citing State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d

870 (1987).

       {¶ 18} Under the Ruff test, we first address whether the aggravated burglary and

rape offenses were “dissimilar in import”―i.e., whether the offenses involved separate

victims or “separate and identifiable” harm.

       {¶ 19} Whether the aggravated burglary and rape offenses involved separate

victims is not a simple issue given that three of C.G.’s children, her 9-year-old daughter

and 1-year-old twin boys, were asleep in their beds when Roberson trespassed in C.G.’s

home. The issue is therefore whether C.G.’s children were separate “victims” of the




11.
aggravated burglary simply because they were home at the time, albeit asleep and

completely unaware of Roberson’s presence.

         {¶ 20} We first note that the indictment does not identify the victims of the

aggravated burglary. See State v. Welninski, 6th Dist. Wood Nos. WD-16-039 and

WD-16-040, 2018-Ohio-778, ¶ 89, fn. 3 (finding that felonious assault and attempted

murder offenses did not involve separate victims because the indictment identified only

one victim). A “victim,” as defined by Black’s Law Dictionary, means “‘[a] person

harmed by a crime, tort, or other wrong.’” State v. Williams, 6th Dist. Sandusky No.

S-13-007, 2013-Ohio-4838, ¶ 8, quoting Black’s Law Dictionary (9th Ed.2009). Here,

there was no evidence presented that C.G.’s children suffered any personal “harm” as a

result of the aggravated burglary. See State v. Bankston, 6th Dist. Ottawa No. OT-17-

016, 2017-Ohio-9305, ¶ 23 (finding that felonious assault and attempted aggravated

burglary involved separate victims because the defendant physically injured one victim

and was ordered to pay restitution to another victim, the homeowner, who was not

involved in the physical altercation). Moreover, the relevant police report identifies C.G.

as the only “victim” of both the aggravated burglary and rape. We therefore find that the

aggravated burglary and rape did not involve separate victims.

         {¶ 21} Next, we address whether the aggravated burglary and rape involved

“separate and identifiable” harm. If so, the offenses are dissimilar in import and do not

merge.




12.
       {¶ 22} The state argues that the victim, C.G., suffered two distinct harms as a

result of the aggravated burglary: “the very personal and physical harm involved in the

rape and the property crime involved in the theft of personal belongings.” The state

further argues that it is immaterial that Roberson was not charged with theft because

“uncharged criminal conduct” can constitute separate harm as recognized in one of our

prior cases, State v. Greely, 6th Dist. Lucas No. L-16-1161, 2017-Ohio-4469.

       {¶ 23} In Greely, the defendant trespassed into the victim’s home and raped her

orally, anally, and vaginally in her bed, and then raped the victim again in the shower as

he attempted to remove his DNA from her anal and vaginal areas. Like Roberson, the

defendant was convicted of aggravated burglary in violation of R.C. 2911.11(A)(1) and

one count of rape in violation of R.C. 2907.02(A). On appeal, we found that the

aggravated burglary and rape offenses were not allied offenses of similar import because

one rape supported the rape conviction, and the other rapes―although not charged as

separate crimes―were separate and identifiable harm that resulted from the aggravated

burglary. Or, in other words, in Greely there was separate and identifiable physical harm

that supported the aggravating element of the burglary charge.

       {¶ 24} In contrast, while the uncharged theft of C.G.’s TVs, computer, and game

system was separate and identifiable harm that resulted from the aggravated burglary

offense, it was not separate and identifiable physical harm that could support the

aggravating element of the burglary charge on its own. Thus, unlike Greely, this case

involves a situation “where one offense [i.e., aggravated burglary] involves multiple




13.
harms, and one offense [i.e., rape] constitutes an aggravating element [i.e., physical

harm] of the other.” State v. Ruff, 1st Dist. Hamilton Nos. C-120533 and C-120534,

2015-Ohio-3367, ¶ 14 (“Ruff II”).

       {¶ 25} In the seminal merger case from the Supreme Court of Ohio, State v. Ruff,

143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the defendant was convicted of

three counts of aggravated burglary and three counts of rape based on three separate

burglaries, and corresponding rapes, of three different victims. After the Supreme Court

of Ohio fashioned a new three-part test for determining whether convictions are subject

to merger under R.C. 2941.25, it remanded the case back to the First District Court of

Appeals to consider the import of the defendant’s aggravated burglary and rape

convictions―that is, whether the offenses resulted in “separate and identifiable” harm to

each victim. On remand, the First District observed that the aggravated burglary offenses

“involve[d] two distinct harms: the intrusion into the sanctity of the home and [sic] the

subsequent physical harm (here, the rapes). One harm―the intrusion in the dwelling―is

separate and identifiable * * *, but the other harm―the physical harm―is not separate

and identifiable.” Ruff II at ¶ 13. The court then stated:

       If there only needed to be one harm that was separate and identifiable, then

       rape and aggravated burglary could never merge because aggravated

       burglary will always involve the “separate and identifiable” harm caused by

       the intrusion into the dwelling. The same would be true of assault or any

       other crime constituting the aggravating element of physical harm for




14.
       aggravated burglary. Thus, implicit in its rejection of a categorical rule and

       remand to this court is the idea that the offenses are of similar import when

       the harm caused by one crime is the same harm that is the aggravating

       circumstance of another crime. Id. at ¶ 16.

       {¶ 26} Roberson argues that this case is indistinguishable from Ruff II because the

harm caused by his rape conviction is the same harm that is the aggravating circumstance

of the aggravated burglary conviction and, therefore, the two offenses are of similar

import and should have merged. We, however, disagree with Ruff II’s recognition of an

“implicit” rule from the Supreme Court of Ohio that requires merger whenever one crime

results in multiple “separate and identifiable” harms but one of those harms is the

aggravating circumstance of the other crime. Indeed, this rule runs contrary to the

Supreme Court of Ohio’s explicit pronouncement that the defendant’s conduct in each

individual case should be the paramount consideration, and merger is not warranted “if

the harm that results from each offense is separate and identifiable from the harm of the

other offense.” Ruff at ¶ 26.

       {¶ 27} We do, however, recognize that under the Supreme Court of Ohio’s

decision in Ruff, the mere “intrusion into the sanctity of the home” that results from

aggravated burglary is not a separate harm that is sufficient to support a finding of

dissimilar import on its own―otherwise, aggravated burglary would always be a crime of

dissimilar import to another offense, and the Supreme Court of Ohio rejected the notion

of such a categorical rule. But here, there was an additional harm that resulted from the




15.
aggravated burglary―theft of C.G.’s TVs, computer, and game system―and this harm is

separate and identifiable from the physical harm that resulted from the rape. Under Ruff,

separate convictions are permissible if “the harm that results from each offense is

separate and identifiable.” (Emphasis added.) Id. at paragraph two of the syllabus.

Contrary to the First District’s holding in Ruff II, separate convictions do not require

separate and identifiable physical harm whenever physical harm is the aggravating

element of one crime, nor is there an exception to the general rule, expressly pronounced

by the Supreme Court of Ohio in Ruff, that requires merger when separate and

identifiable harm exists but some of that harm overlaps with the aggravating element of

another crime. We therefore find that the two offenses were dissimilar in import because

the aggravated burglary resulted in harm to C.G. that was “separate and identifiable”

from the harm that resulted from the rape.

       {¶ 28} Given that we have answered the first prong of the Ruff test in the

affirmative and determined that the aggravated burglary and rape convictions were

offenses of dissimilar import, we need not address the remaining two elements of Ruff.

Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, at ¶ 12 (“An affirmative

answer to any of the [required questions under Ruff ] will permit separate convictions.”

(Emphasis added.)). We therefore find that the trial court did not commit plain error by

failing to merge the aggravated burglary and rape offenses.




16.
                                     III. Conclusion

       {¶ 29} Based on the foregoing, we find that the trial court did not commit plain

error by failing to merge the aggravated burglary and rape convictions because they are

offenses of dissimilar import. Roberson’s sole assignment of error is found not well-

taken. We find that appellate counsel was not ineffective, and we confirm our prior

judgment under App.R. 26(B)(9).

       {¶ 30} Roberson is ordered to pay the costs of this application to reopen pursuant

to App.R. 24(A).


                                                                     Judgment confirmed.



       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, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, P.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.supremecourt.ohio.gov/ROD/docs/.




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