[Cite as State v. Marcum, 2016-Ohio-263.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            PREBLE COUNTY




STATE OF OHIO,                                    :
                                                        CASE NO. CA2015-04-011
        Plaintiff-Appellee,                       :
                                                              OPINION
                                                  :            1/25/2016
   - vs -
                                                  :

RICKY L. MARCUM,                                  :

        Defendant-Appellant.                      :



      CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                           Case No. 14CR11487



Martin P. Votel, Preble County Prosecuting Attorney, Kathryn M. West, Preble County
Courthouse, 101 East Main Street, Eaton, Ohio 45320, for plaintiff-appellee

McNamee Law Office, LLC, Matthew J. Barbato, 2625 Commons Boulevard, Suite A,
Beavercreek, Ohio 45431, for defendant-appellant



        M. POWELL, P.J.

        {¶ 1} Defendant-appellant, Ricky L. Marcum, appeals his convictions in the Preble

County Court of Common Pleas upon multiple sex offenses. For the reasons discussed

below, the judgment is affirmed with the exception of Marcum's sentence, which is reversed,

and the matter remanded for resentencing.

        {¶ 2} The charges stem from allegations made by Marcum's stepson, R.C., and his
                                                                     Preble CA2015-04-011

son, J.M., that Marcum forced the boys to suck his penis, play with his penis, and play with

each other's penis while Marcum watched. Additionally, Marcum threatened to hurt the boys

or someone they knew if they did not comply. This occurred when the boys were less than

13 years of age.

       {¶ 3} Marcum was indicted by a grand jury on March 4, 2014, on 12 charges. Based

upon allegations that Marcum engaged in sexual conduct with R.C., Marcum was charged in

Counts 1 and 2 with rape in violation of R.C. 2907.02(A)(1)(b) and 2907.02(A)(2),

respectively, and in Count 3 with sexual battery in violation of R.C. 2907.03(A)(5). Based

upon allegations that Marcum had sexual contact with R.C., Marcum was charged in Counts

4 and 5 with gross sexual imposition in violation of R.C. 2907.05(A)(1) and 2907.05(A)(4),

respectively. Based upon allegations that Marcum solicited R.C. to engage in sexual activity

with him, Marcum was charged in Count 6 with importuning in violation of R.C. 2907.07(A).

Based upon allegations that Marcum engaged in sexual conduct with J.M., Marcum was

charged in Counts 7 and 8 with rape in violation of R.C. 2907.02(A)(1)(b) and 2907.02(A)(2),

respectively, and in Count 9 with sexual battery in violation of R.C. 2907.03(A)(5). Based

upon allegations that Marcum had sexual contact with J.M., Marcum was charged in Counts

10 and 11 with gross sexual imposition in violation of R.C. 2907.05(A)(1) and 2907.05(A)(4),

respectively. Based upon allegations that Marcum solicited J.M. to engage in sexual activity

with him, Marcum was charged in Count 12 with importuning in violation of R.C. 2907.07(A).

       {¶ 4} On March 30 and 31, 2015, a jury trial was held.            At the end of the

prosecution's case, Marcum's counsel made a Crim.R. 29 motion, asserting the prosecution

failed to present sufficient evidence that Marcum had engaged in sexual conduct with J.M. as

alleged in Counts 7 through 9 of the indictment. Neither J.M. nor the forensic interviewer who

interviewed J.M. testified as to any oral to genital contact between J.M. and Marcum. As

such, the trial court granted the Crim.R. 29 motion regarding the sexual conduct charges

                                             -2-
                                                                        Preble CA2015-04-011

relating to J.M. and dismissed Counts 7 through 9. The defense presented its case and the

remaining counts went to the jury. After deliberation, the jury found Marcum guilty of all

remaining counts.

       {¶ 5} At sentencing, the trial court merged the Count 4 gross sexual imposition, the

Count 5 gross sexual imposition, and the Count 6 importuning charges with the Count 3

sexual battery charge, relating to R.C. The trial court also merged the Count 11 gross sexual

imposition and the Count 12 importuning charges with the Count 10 gross sexual imposition

charge, relating to J.M. The trial court did not merge the rape and sexual battery charges

relating to R.C. contained in Counts 1, 2, and 3. The sentencing entry provides that Marcum

was sentenced upon the Counts 1 and 2 rape charges, the Count 3 sexual battery charge,

and the Count 10 gross sexual imposition charge. In addition, despite its order that the

Count 4 gross sexual imposition charge had merged into Count 3, the sentencing entry

imposed a separate sentence upon Count 4. Specifically, the trial court sentenced Marcum

to 15 years to life in prison on Count 1, 25 years to life in prison on Count 2, 8 years in prison

on Count 3, 5 years in prison on Count 4, and 5 years in prison on Count 10. All sentences

were ordered to be served concurrently with one another.

       {¶ 6} Marcum now appeals, asserting two assignments of error for review.

       {¶ 7} Assignment of Error No. 1:

       {¶ 8} A REASONABLE JURY COULD NOT REACH A VERDICT OF GUILTY

BEYOND A REASONABLE DOUBT.

       {¶ 9} In his first assignment of error, Marcum argues his convictions were against the

manifest weight of the evidence and the jury clearly lost its way because the child victims'

testimony lacked the specificity necessary to identify distinguishable incidents of sexual

conduct or sexual contact initiated by Marcum.

       {¶ 10} Considering whether a conviction is against the manifest weight of the evidence
                                               -3-
                                                                      Preble CA2015-04-011

a reviewing court must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of witnesses and determine "whether in resolving conflicts

in the evidence, the jury clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered." State v. Thompkins, 78

Ohio St.3d 380, 387 (1997). When reviewing a jury verdict, the verdict may be reversed as

against the manifest weight of the evidence only when there is unanimous disagreement with

the verdict. State v. Gibbs, 134 Ohio App.3d 247, 255 (12th Dist.1999). "In either a criminal

or civil case the weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts." State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

       {¶ 11} Child victims are not expected to remember the exact dates of when

psychologically traumatic abuse occurred, especially when abuse is spread over an extended

period of time. State v. Rogers, 12th Dist. Butler No. CA2006-03-055, 2007-Ohio-1890, ¶ 25.

Furthermore, charges involving sexual conduct or sexual contact may be proven solely

through witness testimony. In re D.T.W., 12th Dist. Butler No. CA2014-09-198, 2015-Ohio-

2317, fn. 1; State v. Flores, 11th Dist. Lake No. 2004-L-030, 2005-Ohio-5277, ¶ 43-44.

       {¶ 12} In asserting his convictions were against the manifest weight of the evidence,

Marcum relies on State v. Warren, 168 Ohio App.3d 288, 2006-Ohio-4104 (8th Dist.), where

the Eighth District found multiple convictions of rape were not supported by the evidence

because the victim did not present specific details of individual, multiple rapes and only

testified that she was raped eight or nine times. In line with Valentine v. Konteh, 395 F.3d

626 (6th Cir.2005), the Eighth District held that it could not "accept the numerical estimate

which is unconnected to individual, distinguishable incidents." Warren at ¶ 20. However,

while the victim's testimony did not support multiple counts of rape, the Eighth District found

the testimony of the victim was sufficient to support one count of rape. Id. at ¶ 19. Unlike in

Warren, Marcum was not charged with committing separate acts constituting multiple
                                              -4-
                                                                         Preble CA2015-04-011

offenses, but was rather charged with the offenses in the alternative.

       {¶ 13} Marcum was convicted of rape involving R.C. in violation of R.C.

2907.02(A)(1)(b) and 2907.02(A)(2) which provide:

              (A)(1) No person shall engage in sexual conduct with another
              who is not the spouse of the offender or who is the spouse of the
              offender but is living separate and apart from the offender, when
              any of the following applies:

              ***

              (b) The other person is less than thirteen years of age, whether
              or not the offender knows the age of the other person.

              ***

              (2) No person shall engage in sexual conduct with another when
              the offender purposely compels the other person to submit by
              force or threat of force.

       {¶ 14} Marcum was also convicted of sexual battery involving R.C. pursuant to R.C.

2907.03(A)(5) which provides:

              (A) No person shall engage in sexual conduct with another, not
              the spouse of the offender, when any of the following apply:

              ***

              (5) The offender is the other person's natural or adoptive parent,
              or a stepparent, or guardian, custodian, or person in loco
              parentis of the other person.

       {¶ 15} Rape and sexual battery each require that the offender engage in "sexual

conduct" with the victim. However, the above sections differ depending upon the means

used to commit the offense (i.e., force or threat of force), the age of the victim (i.e., less than

thirteen years of age), or the status of the offender (i.e., parent or stepparent of the victim).

       {¶ 16} Marcum was also convicted of two counts of gross sexual imposition involving

each victim pursuant to R.C. 2907.05(A)(1) and (4). Gross sexual imposition differs from

rape in that it involves "sexual contact" as opposed to "sexual conduct." These sections


                                                -5-
                                                                        Preble CA2015-04-011

otherwise mirror the "force or threat of force" and age of the victim elements of rape in R.C.

2907.02(A)(1)(b) and (2), respectively, and are differentiated in the same respect as set forth

in the discussion involving the rape convictions above.

        {¶ 17} Finally, Marcum was convicted of importuning in violation of R.C. 2907.07(A),

which provides:

               No person shall solicit a person who is less than thirteen years of
               age to engage in sexual activity with the offender, whether or not
               the offender knows the age of such person.

This section involves a solicitation to engage in "sexual activity" which may be "sexual

conduct or sexual contact, or both." R.C. 2907.01(C).

        {¶ 18} The rape charges relating to R.C. alleged a single offense. However, the rape

of R.C. was alternatively charged in separate counts based upon the fact that R.C. was less

than thirteen years of age at the time of the offense (Count 1), and because Marcum used

force or threat of force in the commission of the offense (Count 2). The sexual battery

charge relating to R.C. was also an alternative charge to the rape counts but was based upon

Marcum having the status of R.C.'s stepparent. Similarly, the gross sexual imposition

charges involved a single offense with each child, alternatively charged and differentiated by

the fact that R.C. and J.M. were less than thirteen years of age at the time of the offense

(Count 5 as to R.C. and Count 11 as to J.M.) and because Marcum used force or threat of

force in the commission of the offenses (Count 4 as to R.C. and Count 10 as to J.M.).

Finally, the importuning charges also involved the same conduct as the rapes and sexual

battery charges involving R.C. and the gross sexual imposition charges involving both

children, but were based upon Marcum's solicitation of the children to engage in the sexual

activity.

        {¶ 19} In this instance, the testimony of the victims supported the jury's guilty verdict.

R.C. testified that Marcum made him "suck [Marcum's] penis" on more than one occasion in

                                               -6-
                                                                       Preble CA2015-04-011

Marcum's bedroom during the time he lived with Marcum. R.C. also testified Marcum made

R.C. and J.M. watch movies about sex and play with their penises. R.C. testified Marcum

threatened to hurt them or someone they cared about if they ever told anyone. J.M. testified

Marcum made him lie down on the bed and play with Marcum's penis using his hands. J.M.

testified that it was "mushy," "like if you're touching slim or something." J.M. testified this

happened on more than one occasion. J.M. also testified Marcum would throw him across

the room and spank him.

       {¶ 20} The victims' testimony was supported by two different experts in forensic

interviewing who agreed the children gave a detailed history of inappropriate sexual behavior.

J.M.'s foster father and R.C.'s stepmother testified to the boys' demeanor when talking about

Marcum and confirmed the boys had been living separate and apart from each other for more

than a year when the allegations of abuse surfaced. Additionally, Marcum recalled telling his

brother that "it could have happened, it might have f'ing happened," and he did not think the

boys would lie about abuse. In light of the foregoing, we find the jury did not clearly lose its

way and Marcum's convictions were not against the manifest weight of the evidence.

       {¶ 21} While we find the lack of specificity regarding multiple instances of abuse did

not render Marcum's convictions against the manifest weight of the evidence, we find the trial

court erred when it did not merge the rape and sexual battery charges relating to R.C. When

a failure to merge allied offenses is obvious, it rises to the level of plain error. State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 14; State v. Underwood, 124 Ohio St.3d

365, 2010-Ohio-1, ¶ 31. This is true whether sentences are imposed consecutively or

concurrently. Underwood at ¶ 31.

       {¶ 22} 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 states:
                                              -7-
                                                                       Preble CA2015-04-011

              (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.

As R.C. 2941.25(A)'s mandate is a protection against multiple sentences, a defendant is not

convicted for purposes of this statute until a sentence is imposed. Rogers at ¶ 18.

       {¶ 23} In order to determine which offenses are of dissimilar import that cannot be

merged, the Ohio Supreme Court recently clarified the test to employ in State v. Ruff, 143

Ohio St.3d 114, 2015-Ohio-995. When conducting the analysis, if any of the following is true,

a defendant may be convicted and sentenced for multiple offenses as the offenses cannot

merge: (1) the offenses are of dissimilar import with separate, identifiable harm, (2) the

offenses were separately committed, or (3) a separate animus or motivation was used to

commit the offenses. Ruff 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 ¶ 23.

       {¶ 24} In this instance, it is obvious that the rape and sexual battery charges related to

R.C. are allied offenses.     As discussed above, these offenses were charged in the

alternative, and as argued by Marcum, there were not specific instances of multiple sexual

conduct testified to by R.C. The indictment and bill of particulars rely on the same conduct

for Counts 1 through 3. There was no distinguishing evidence presented at trial to establish

that the offenses were separately committed, resulted in separate identifiable harm, or were

committed with a separate motivation in order to be of dissimilar import. As the sexual

conduct offenses related to R.C. are clearly allied, Marcum's multiple sentences for the rape
                                              -8-
                                                                        Preble CA2015-04-011

and sexual battery offenses violate R.C. 2941.25(A).

         {¶ 25} We find the trial court committed plain error by failing to merge Counts 1

through 3.      As such, the sentence must be vacated and the matter remanded for

resentencing. Upon remand, the state can elect which allied offense to pursue, which the

trial court must accept and then merge for resentencing.

         {¶ 26} Furthermore, we note the trial court stated in the body of the sentencing entry

that "Counts 4, 5 and 6 merge with Count 3 for purposes of sentencing," yet imposed a

separate sentence for Count 4. As a trial court speaks through its entries, upon remand for

resentencing, the trial court must address this inconsistency. Marcum's first assignment of

error is sustained in part and overruled in part.

         {¶ 27} Assignment of Error No. 2:

         {¶ 28} THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

WHEN DEFENSE COUNSEL FAILED TO REQUEST A HEARING ON THE ADMISSIBILITY

OF A POLYGRAPH EXAM RESULTS.

         {¶ 29} In his second assignment of error, Marcum argues his trial counsel was

ineffective for failing to request the introduction of results of a computerized voice stress

analyzer (CVSA) given by a police officer to Marcum and by failing to question the officer at

trial.

         {¶ 30} To establish ineffective assistance of counsel, a defendant must show 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 his counsel's performance "fell below an

objective standard of reasonableness." Strickland at 688. There is a "strong presumption

that counsel's conduct falls within the wide range of reasonable professional assistance," and

as a result, "judicial scrutiny of counsel's performance must be highly deferential." Id. at 689.
                                               -9-
                                                                         Preble CA2015-04-011

"An error by counsel, even if professionally unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691.

       {¶ 31} Previously, we analogized the admissibility of the results of a CVSA with results

of a polygraph test. State v. Homer, 12th Dist. Warren No. CA2003-12-117, 2006-Ohio-

1432, ¶ 7. Regarding admissibility, the results of a polygraph test cannot be admitted simply

at an accused's request. State v. Bell, 12th Dist. Clermont No. CA2008-05-044, 2009-Ohio-

2335, ¶ 47. Rather, there must be a written stipulation between the prosecuting attorney, the

defendant's counsel, and the defendant providing that the polygraph results are admissible.

State v. Souel, 53 Ohio St.2d 123 (1978), paragraph two of the syllabus. Even if there is

such a stipulation, the admissibility of polygraph results rests within the discretion of the trial

court. Id. at paragraph three of the syllabus.

       {¶ 32} In this instance, there was no stipulation between the prosecution and the

defense allowing the admission of the CVSA's results. Additionally, it was unnecessary for

Marcum's attorney to separately seek the admission of the CVSA results because the issue

of its admissibility was before the court upon the prosecuting attorney's motion in limine to

exclude the CVSA's results, which Marcum's attorney opposed. Furthermore, Marcum's

counsel preserved the record for appeal by proffering the CVSA's results at trial. The

conduct of Marcum's attorney did not fall below a professional standard of reasonableness,

and was thus not ineffective. Marcum's second assignment of error is overruled.

       {¶ 33} Judgment affirmed in part and reversed only to the extent the sentence is

vacated, and the matter is remanded for resentencing.


       RINGLAND and HENDRICKSON, JJ., concur.




                                               - 10 -
