[Cite as In re R.A.H., 2016-Ohio-8301.]



                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 101936



                                     IN RE: R.A.H., JR.
                                       A Minor Child



                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                     Case No. DL 14106318

             BEFORE:           Blackmon, J., Boyle, P.J., and Laster Mays, J.

             RELEASED AND JOURNALIZED:                       December 22, 2016
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender

By: Brooke M. Burns
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Kevin Bringman
Assistant Prosecuting Attorney
1200 Ontario Street, 9th Floor
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} This cause is before us on remand from the Ohio Supreme Court in In re

R.A.H., Jr., Slip Opinion No. 2016-Ohio-7592, for further review of our decision released

on August 20, 2015. The Ohio Supreme Court specifically ordered:

       The judgment of the court of appeals as to proposition of law No. I is
       reversed, and the cause remanded to the court of appeals to apply In re
       A.G., ___ Ohio St.3d ___, 2016-Ohio-3306, ___ N.E.3d ____.

       {¶2} Proposition of law No. I concerned whether the merger analysis applies to

juvenile court proceedings to protect a child’s right against double jeopardy.   The Ohio

Supreme Court concluded in the affirmative. In In re R.A.H., 8th Dist. Cuyahoga No.

10936, 2015-Ohio-3342 , we followed this court’s precedence that the merger analysis

did not apply to juveniles; thus the Supreme Court’s reversal and remand mandates that

we apply the merger analysis.

       {¶3} In his second assigned error, R.A.H. argued that the trial court erred by

concluding that he was delinquent for committing two acts of rape, because the rapes

occurred by a single act. R.A.H.’s defense counsel failed to object to the nonmerger and,

therefore, forfeited all but plain error review. See State v. Rodgers, 143 Ohio St.3d 385,

2015-Ohio-2458, 38 N.E.3d 860, ¶ 21. Pursuant to Crim.R. 52(B), appellate courts have

discretion to correct plain errors. Plain errors are defined as defects in the trial court

proceedings that affected the outcome of trial. Rodgers at ¶ 22. We conclude that plain

error occurred.
       {¶4} R.A.H. was indicted for two separate rape counts. One for raping a child

under the age of 13, and one for using force while committing the rape. The facts

established at trial regarding the rapes were that R.A.H. held the 12-year old victim’s

hands above her head while he digitally penetrated her.

       {¶5} Pursuant to State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d

892, ¶ 25:

       offenses cannot merge and the defendant may be convicted and sentenced
       for multiple offenses: (1) [if] the offenses are dissimilar in import or
       significance — in other words, each offense caused separate, identifiable
       harm [or was committed against separate victims], (2) [if] the offenses were
       committed separately, [or] (3) [if] the offenses were committed with
       separate animus or motivation.

       {¶6} In the instant case, there was no separate harm, the offenses were committed

at the same time, and there was no separate animus or motivation because the victim was

restrained in order to commit the rape.

       {¶7} We thus conclude that the rape offenses were allied offenses of similar import

and that the juvenile court’s failure to merge them prejudiced R.A.H. Accordingly,

R.A.H.’s second assigned error is sustained.

       {¶8} Accordingly, the judgment is reversed and remanded to the juvenile court

for further proceedings consistent with this opinion.

       It is ordered that appellant recover of appellee the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County Juvenile Court

Division to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, P.J., and
ANITA LASTER MAYS, J., CONCUR
