[Cite as State v. Lemmons, 2011-Ohio-3322.]


                                      COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :      JUDGES:
                                              :
                                              :      Hon. John W. Wise, P.J.
                       Plaintiff-Appellee     :      Hon. Julie A. Edwards, J.
                                              :      Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :      Case No. 10-CA-48
MARK D. LEMMONS                               :
                                              :
                                              :
                      Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                          Appeal from the Delaware County Court of
                                                  Common Pleas Case No. 10-CR-I-04-220


JUDGMENT:                                         AFFIRMED

DATE OF JUDGMENT ENTRY:                           June 29, 2011


APPEARANCES:

For Plaintiff-Appellee:                              For Defendant-Appellant:

CAROL O’BRIEN 0056290                                WILLIAM T. CRAMER 0068611
Delaware County Prosecutor                           470 Olde Worthington Road, Ste. 200
140 N. Sandusky St.                                  Westerville, Ohio 43082
Delaware, Ohio 43015
[Cite as State v. Lemmons, 2011-Ohio-3322.]


Delaney, J.

        {¶1}    Defendant-Appellant, Mark Lemmons, appeals from the judgment of the

Delaware County Court of Common Pleas, convicting him of one count of rape by force

or threat in violation of R.C. 2907.02(A)(2), two counts of aggravated burglary for

attempting physical harm and using a deadly weapon in violation of R.C.

2911.11(A)(1)&(2), two counts of kidnapping with sexual motivation specifications in

violation of R.C. 2905.01(A)(3)&(4), and one count of misdemeanor menacing by

stalking in violation of R.C. 2903.211(A)(1). The State of Ohio is Plaintiff-Appellee.

        {¶2}    The facts underlying this appeal are as follow:

        {¶3}    Appellant is the estranged boyfriend of the victim, A.M.      In the early

morning hours of Thanksgiving Day, November 26, 2009, Appellant broke into the

victim’s home.        Appellant claimed to have only been in the victim’s home for

approximately ten minutes before she arrived.          When the victim arrived home at

approximately 5:30 a.m., she did not observe Appellant’s car in her driveway, where he

would typically park it if he was at her house.

        {¶4}    When A.M. entered her house, she found Appellant hiding in the kitchen

brandishing two knives. He threatened the victim with both knives and told her to drop

her phone. He then made A.M. move into the living room, where he again threatened

her with knives.

        {¶5}    He then moved A.M. from the living room into the bedroom, at knifepoint,

where he made her model underwear. He then made her perform oral sex before he

raped her.
Delaware County, Case No. 10-CA-48                                                       3


       {¶6}   Appellant left A.M.’s home at approximately 9:00 a.m.            The victim

immediately called her mother, who came over and called the police. The police arrived

approximately two minutes later.

       {¶7}   Appellant was arrested and initially refused to talk to the police but then

changed his mind and asked to speak with an officer. He told the officer that he was not

trying to harm anyone and stated that A.M.’s back door was unlocked due to previous

damage to the door. He claimed that he had consensual sex with the victim.

       {¶8}   Phone calls from Appellant to his father while Appellant was in jail

disclosed that Appellant told his father, “I f***ed up all of it. It’s mine. I provoked it.

Some of it’s true.” Appellant admitted to his dad that he was drunk, he had an argument

with A.M., and that he kicked in both her front and back door. He also admitted that he

had sex with her on November 26, however, he did not admit to raping the victim.

       {¶9}   Appellant was subsequently indicted on one count of rape, two counts of

aggravated burglary, two counts of kidnapping, and one count of menacing by stalking.

       {¶10} Appellant proceeded to trial and was convicted of all counts. He was

convicted of rape by force or threat in violation of R.C. 2907.02(A)(2), two counts of

aggravated burglary for attempting physical harm and using a deadly weapon in

violation of R.C. 2911.11(A)(1)&(2), two counts of kidnapping with sexual motivation

specifications in violation of R.C. 2905.01(A)(3)&(4) and one count of menacing by

stalking in violation of R.C. 2903.211(A)(1). The court merged the aggravated burglary

counts and merged the kidnapping counts together, but did not merge the rape and the

kidnapping convictions for purposes of sentencing. He was sentenced to an aggregate

term of twelve years in prison.
Delaware County, Case No. 10-CA-48                                                         4


       {¶11} Appellant raises two Assignments of Error:

       {¶12} “I. THE TRIAL COURT VIOLATED DUE PROCESS BY RULING IN

CONTRAVENTION OF EVID.R. 609(A)(2) THAT APPELLANT’S PRIOR SIMILAR

CONVICTIONS WERE ADMISSIBLE TO IMPEACH HIM IF HE TESTIFIED.

       {¶13} “II. THE TRIAL COURT VIOLATED DOUBLE JEOPARDY BY FAILING

TO MERGE THE KIDNAPPING AND RAPE CONVICTIONS PURSUANT TO R.C.

2941.25.”

                                             I.

       {¶14} In his first assignment of error, Appellant argues that the trial court erred in

failing to exclude mention of Appellant’s prior convictions for attempted aggravated

burglary in 1989 and failure to provide notice of change of address in 2005 and 2006.

       {¶15} Appellant was placed on community control for an attempted aggravated

burglary charge in 1989, he absconded from the jurisdiction of the court, and his

probation was tolled and he was sentenced to prison for the crime in 1997. He was

released from prison on this charge in 2001 and was subject to postrelease control after

his release from prison.      All three of these convictions, therefore, fall within the

parameters of admissibility under Evid. R. 609(A)(2).

       {¶16} Evid. R. 609, as amended in 1991, permits trial court judges, in their

discretion, to exclude mention of prior convictions should the court determine that the

prejudicial nature of the convictions outweighs the probative nature of the convictions.

Specifically, Evid. R. 609(A)(2) provides:

       {¶17} “(A) General rule

       {¶18} “For the purpose of attacking the credibility of a witness:
Delaware County, Case No. 10-CA-48                                                     5


       {¶19} “(2) notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B),

evidence that the accused has been convicted of a crime is admissible if the crime was

punishable by death or imprisonment in excess of one year pursuant to the law under

which the accused was convicted and if the court determines that the probative value of

the evidence outweighs the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury.”

       {¶20} Evid. R. 609(B) provides:

       {¶21} “(B) Time limit

       {¶22} “Evidence of a conviction under this rule is not admissible if a period of

more than ten years has elapsed since the date of the conviction or of the release of the

witness from the confinement, or the termination of community control sanctions, post-

release control, or probation, shock probation, parole, or shock parole imposed for that

conviction, whichever is the later date, unless the court determines, in the interests of

justice, that the probative value of the conviction supported by specific facts and

circumstances substantially outweighs its prejudicial effect. However, evidence of a

conviction more than ten years old as calculated herein, is not admissible unless the

proponent gives to the adverse party sufficient advance written notice of intent to use

such evidence to provide the adverse party with a fair opportunity to contest the use of

such evidence.”

       {¶23} Trial courts have broad discretion in determining whether prior convictions

will be admitted into testimony, pursuant to Evid.R. 609, and the extent to which such

testimony will be used. State v. Wright (1990), 48 Ohio St.3d 5, 548 N.E.2d 923,

syllabus. Based upon the consideration of all relevant factors herein and a review of the
Delaware County, Case No. 10-CA-48                                                     6


record, we find that the trial court did not abuse its discretion in determining that

Appellant’s prior convictions were admissible at trial for the purposes of impeaching the

Appellant. The convictions were within the time limit set forth in Evid. R. 609(B), and

Appellant has presented no evidence that the admission of such prior convictions would

have been more prejudicial than probative. Moreover, Appellant did not take the stand

in his own defense, so any alleged error would be harmless. Crim. R. 52(A).

       {¶24} Appellant’s first assignment of error is overruled.

                                              II.

       {¶25} In his second assignment of error, Appellant argues that the trial court

erred in failing to merge the kidnapping conviction with the rape conviction.

       {¶26} Recently, in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061, the Ohio Supreme Court ruled that when determining whether two

offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the

conduct of the accused must be considered. (State v. Rance (1999), 85 Ohio St.3d 632,

710 N.E.2d 699, overruled.)

       {¶27} In 1972, the General Assembly enacted R.C. 2941.25 in order to guide

courts in the determination of offenses subject to merger. State v. Logan (1979), 60

Ohio St.2d 126, 131, 14 O.O.3d 373, 397 N.E.2d 1345 (“the statute has attempted to

codify the judicial doctrine * * * sometimes referred to as the doctrine of merger, and

other times as the doctrine of divisibility of offenses.”

       {¶28} R.C. 2941.25 provides:
Delaware County, Case No. 10-CA-48                                                       7


       {¶29} “(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.

       {¶30} “(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.”

       {¶31} In Johnson, supra, the Supreme Court stated that they have “consistently

recognized that the purpose of R.C. 2941.25 is to prevent shotgun convictions, that is,

multiple findings of guilt and corresponding punishments heaped on a defendant for

closely related offenses arising from the same occurrence. Geiger, 45 Ohio St.2d at

242, 74 O.O.2d 380, 344 N.E.2d 133. This is a broad purpose and ought not to be

watered down with artificial and academic equivocation regarding the similarities of the

crimes. When “in substance and effect but one offense has been committed,” the

defendant may be convicted of only one offense. Botta, 27 Ohio St.2d at 203, 56

O.O.2d 119, 271 N.E.2d 776.” Johnson, supra, at ¶43.

       {¶32} The court continued to state that “[g]iven the purpose and language of

R.C. 2941.25, and based on the ongoing problems created by Rance, we hereby

overrule Rance to the extent that it calls for a comparison of statutory elements solely in

the abstract under R.C. 2941.25. When determining whether two offenses are allied

offenses of similar import subject to merger under R.C. 2941.25, the conduct of the

accused must be considered.
Delaware County, Case No. 10-CA-48                                                      8

       {¶33} “In overruling Rance, we need not apply the test of Westfield v. Galatis,

100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, because R.C. 2941.25 is a

prophylactic statute that protects a criminal defendant's rights under the Double

Jeopardy Clauses of the United States and Ohio Constitutions. Because there is a

constitutional protection underlying the proper application of R.C. 2941.25, stare decisis

does not compel us with the same force as it does in other areas of the law. See, e.g.,

State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 35–37.” Id at

¶¶ 44-45.

       {¶34} Accordingly, the new standard, as set forth in Johnson, appears to be the

following:

       {¶35} “In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), the question is whether it is possible to commit one offense and

commit the other with the same conduct, not whether it is possible to commit one

without committing the other. Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816

(Whiteside, J., concurring) (“It is not necessary that both crimes are always committed

by the same conduct but, rather, it is sufficient if both offenses can be committed by the

same conduct. It is a matter of possibility, rather than certainty, that the same conduct

will constitute commission of both offenses.” [Emphasis sic]). If the offenses correspond

to such a degree that the conduct of the defendant constituting commission of one

offense constitutes commission of the other, then the offenses are of similar import.

       {¶36} “If the multiple offenses can be committed by the same conduct, then the

court must determine whether the offenses were committed by the same conduct, i.e.,
Delaware County, Case No. 10-CA-48                                                     9

“a single act, committed with a single state of mind.” Brown, 119 Ohio St.3d 447, 2008-

Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).

       {¶37} “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.” Id. at ¶¶48-50.

       {¶38} “Conversely, if the court determines that the commission of one offense

will never result in the commission of the other, or if the offenses are committed

separately, or if the defendant has separate animus for each offense, then, according to

R.C. 2941.25(B), the offenses will not merge.” Id. at ¶51.

       {¶39} We find that Appellant waived the right to argue merger, specifically since

trial counsel stated at sentencing, “I think the two kidnappings merged with each other,

but I don’t believe either would merge with the rape.”

       {¶40} Because appellant did not object to the lack of merger at the time of the

sentencing hearing, our review of this matter would be subject to a plain error standard.

Based upon the circumstances here, we find no plain error. State v. Wade, 10th Dist.

No. 10AP-159, 2010-Ohio-6395.

       {¶41} In the present case, Appellant entered the victim’s home, subdued her at

knife point and forced her to move from the living room of her house to the bedroom,

where he proceeded to terrorize her by forcing her to model underwear for him. He

then forced her to perform oral sex on him before he raped her. He had a separate

animus in terrorizing the victim with the knives in the living room and in making her

model underwear for him than he did for the rape. No error occurred in sentencing.

       {¶42} Appellant’s second assignment of error is overruled.
Delaware County, Case No. 10-CA-48                                              10


      {¶43} For the foregoing reasons, the judgment of the Delaware County Court of

Common Pleas is affirmed.

By: Delaney, J.

Wise, P.J. and

Edwards, J. concur.



                                     HON. PATRICIA A. DELANEY



                                     HON. JOHN W. WISE



                                     HON. JULIE A. EDWARDS
[Cite as State v. Lemmons, 2011-Ohio-3322.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT

STATE OF OHIO                                 :
                                              :
                       Plaintiff-Appellee     :
                                              :
                                              :
-vs-                                          :    JUDGMENT ENTRY
                                              :
MARK D. LEMMONS                               :
                                              :
                      Defendant-Appellant     :    Case No. 10-CA-48
                                              :




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed

to Appellant.



                                                  _________________________________
                                                  HON. PATRICIA A. DELANEY


                                                  _________________________________
                                                  HON. JOHN W. WISE


                                                  _________________________________
                                                  HON. JULIE A. EDWARDS
