[Cite as State v. Davis, 2017-Ohio-245.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           CLERMONT COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2016-03-014

                                                  :             OPINION
    - vs -                                                       1/23/2017
                                                  :

BRETT DAVIS,                                      :

        Defendant-Appellant.                      :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2015-CR-00597



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

The Farrish Law Firm, Michaela Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio
45202, for defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Brett Davis, appeals his convictions in the Clermont

County Court of Common Pleas for multiple sex offenses. For the reasons detailed below,

we affirm.

        {¶ 2} On November 5, 2015, appellant was indicted on 13 counts of gross sexual

imposition in violation of R.C. 2907.05(A)(4), six counts of unlawful sexual contact with a
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minor in violation of R.C. 2907.04(A), and five counts of sexual battery in violation of R.C.

2907.03(A)(5).

        {¶ 3} Pursuant to a plea agreement, appellant pled guilty to four counts of gross

sexual imposition and five counts of sexual battery and agreed to a jointly recommended 25-

year prison sentence.

        {¶ 4} At the plea and sentencing hearing, the state placed the following facts on the

record. Count One, charging gross sexual imposition, occurred between October 31, 2008

and October 31, 2009. The state alleged that appellant touched the genitals of eight-year-old

N.S. Specifically, appellant "instructed N.S. to get up after playing a video game and took

him into [appellant's] bedroom making N.S. lay [sic] on the bed. He then fondled the penis

and testicle [sic] of N.S."

        {¶ 5} Counts Four, Five, and Six, also charging gross sexual imposition, occurred

between October 15, 2009 and October 15, 2012.1 The state alleged that T.S., a friend of

appellant's minor son, would stay the night at appellant's house and appellant would fondle

T.S.'s genitalia "one to two times a week starting when T.S. was 10 years old." The state

noted that "the acts would occur on the couch in the living room when T.S. would fall asleep.

He would awaken to [appellant] rubbing his penis and testicles."

        {¶ 6} As to Counts 20, 21, 22, 23, and 24, charging sexual battery, the state alleged

that appellant touched the genitalia of J.K., then 12 or 13, numerous times when the child

spent the night at appellant's home. Specifically, the state alleged that "[appellant] also

performed oral sex on J.K. on three separate occasions in [appellant's] son's bedroom, and

two times in the [appellant's] bedroom."

        {¶ 7} Appellant accepted the allegations as correct. Thereafter, the trial court


1. Specifically, Count Four occurred between October 15, 2009-October 15, 2010, Count Five occurred between
October 15, 2010-October 15, 2011, and Count Six occurred between October 15, 2011-October 15, 2012.
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accepted appellant's guilty plea and imposed the jointly recommended sentence. The trial

court imposed five years of prison for each count of gross sexual imposition and ordered

those terms to be served concurrently with one another. The trial court also ordered five

years on each count of sexual battery. The counts for sexual battery were to be served

consecutive to one another, but concurrent to the counts for gross sexual imposition.

Therefore, the trial court imposed a total prison term of 25 years. Appellant now appeals,

raising two assignments of error for review.

       {¶ 8} Assignment of Error No. 1:

       {¶ 9} THE TRIAL COURT ERRED AS A MATTER OF LAW BY ACCEPTING THE

JOINTLY RECOMMENDED SENTENCE AND IN SENTENCING APPELLANT IN

ACCORDANCE WITH THAT JOINT RECOMMENDATION.

       {¶ 10} In his first assignment of error, appellant argues the trial court erred by

accepting his jointly recommended sentence based on an allied offenses violation. We note

that an agreed-upon sentence may not be appealed if both the defendant and the state

agree to the sentence, the trial court imposes the agreed sentence, and the sentence is

authorized by law. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 16; R.C.

2953.08(D)(1). However, the Ohio Supreme Court in Underwood held that an appellant can

argue that an agreed sentence is invalid if the challenge raises an allied offense argument.

Having reviewed appellant's first assignment of error, we find it without merit.

       {¶ 11} Appellant failed to raise the issue of whether the offenses were allied at his

sentencing hearing. Nevertheless, we will review his argument for plain error. See State v.

Wells, 12th Dist. Brown No. CA2015-10-026, 2016-Ohio-4589, ¶ 11. Under Crim.R. 52(B),

plain error exists only where there is an obvious deviation from a legal rule that affected the

outcome of the proceeding. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). The imposition of

multiple sentences for allied offenses of similar import constitutes plain error. Underwood at
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¶ 31-33.

       {¶ 12} Pursuant to R.C. 2941.25, Ohio's multiple-count statute, the imposition of

multiple punishments for the same criminal conduct is prohibited. State v. Brown, 186 Ohio

App.3d 437, 2010-Ohio-324, ¶ 7 (12th Dist.). Specifically, R.C. 2941.25 provides:

              (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.

       {¶ 13} In determining whether offenses are allied, courts are instructed to consider

three separate factors: the conduct, the animus, and the import. State v. Ruff, 143 Ohio

St.3d 114, 2015-Ohio-995, paragraph one of the syllabus. Convictions do not merge and a

defendant may be sentenced for multiple offenses if any of the following are true: (1) the

conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses

were committed separately, or (3) the conduct shows that the offenses were committed with

separate animus. Id. at ¶ 25. Two or more offenses of dissimilar import exist "when the

defendant's conduct constitutes offenses involving separate victims or if the harm that results

from each offense is separate and identifiable." Id. at paragraph two of the syllabus.

       {¶ 14} In the present case, the record establishes that appellant's convictions were

not allied offenses. The indictment, bill of particulars, and agreed upon facts reflect that

appellant was convicted of nine separate offenses involving three different victims. Count

One involved the victim N.S. Counts Four, Five, and Six involved victim T.S and each

offense was committed separately and at a different time. Likewise, Counts 20, 21, 22, 23,

and 24, involving victim J.K., were based on five separate occasions in which appellant
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admitted that he performed oral sex on J.K., with three different occasions occurring in his

son's bedroom and two in his own bedroom. Accordingly, we find that appellant has failed to

demonstrate that his convictions were allied offenses of similar import. As such, the trial

court did not commit plain error by failing to merge the sentences.

        {¶ 15} Next, appellant argues the trial court erred by failing to notify him that he would

be required not to ingest or be injected with a drug of abuse and to submit to drug testing as

provided by R.C. 2929.19(B)(2)(f), and in failing to notify him that he would be subject to DNA

testing under R.C. 2901.07(B)(1) and (2). However, similar to our holding in State v. Moore,

12th Dist. Clermont No. CA2014-02-016, 2014-Ohio-5191, ¶ 16-18, any error resulting from

the trial court's omissions was, at worst, harmless. Pursuant to Crim.R. 52(A), this court shall

disregard any "error, defect, irregularity, or variance which does not affect substantial

rights[.]"

        {¶ 16} After reviewing the record, we find appellant's first assignment of error without

merit and is hereby overruled.

        {¶ 17} Assignment of Error No. 2:

        {¶ 18} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS THUS PREJUDICING HIS RIGHT TO A

FAIR HEARING.

        {¶ 19} In his second assignment of error, appellant argues that his trial counsel was

ineffective for failing to raise the allied offense issue and notification issue raised in his first

assignment of error. However, as determined in the first assignment of error, appellant's

convictions were not allied offenses and the notification issue does not amount to reversible

error. Moreover, appellant has filed to establish prejudice from the failure to raise these

issues. Failure of one prong of the Strickland test is fatal to any claim of ineffective



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assistance of counsel.2 State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-

7187, ¶ 49. Accordingly, appellant's second assignment of error is overruled.

        {¶ 20} Judgment affirmed.


        PIPER, P.J., and S. POWELL, J., concur.




2. To prevail on an ineffective assistance of counsel claim, an appellant must establish (1) that his trial counsel's
performance was deficient and (2) that such deficiency prejudiced the defense to the point of depriving appellant
of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984).
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