         [Cite as State v. Drummonds, 2011-Ohio-5915.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                   :       APPEAL NO. C-110011
                                                         TRIAL NO. B-1002197
        Plaintiff-Appellee,                      :
                                                         O P I N I O N.
  vs.                                            :

ANDRE DRUMMONDS,                                 :

    Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 18, 2011


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

J. Thomas Hodges, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




D INKELACKER , Presiding Judge.

       {¶1}     Defendant-appellant      Andre     Drummonds        appeals    from     two

convictions for rape under R.C. 2907.02(A)(1)(b). We find no merit in his sole

assignment of error, and we affirm the trial court’s judgment.

       {¶2}     The record shows that Drummonds was originally indicted on two

counts of rape and two counts of gross sexual imposition. All four counts involved the

same victim and occurred on the same day. Drummonds eventually pleaded guilty to

the two rape counts, and the state dismissed the two counts of gross sexual imposition.

The trial court sentenced him to eight years’ imprisonment on each count, to be served

consecutively. This appeal followed.

       {¶3}     In his sole assignment of error, Drummonds contends that the trial court

improperly convicted him of both counts of rape. He argues that they were allied

offenses of similar import that were not committed separately or with a separate animus

as to each. This assignment of error is not well taken.

       {¶4}     First, the state argues that Drummonds waived the issue by failing to

raise it in the trial court. This argument is incorrect. The Ohio Supreme Court has held

that the imposition of multiple sentences for allied offenses of similar import is plain

error. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31;

State v. Evans, 1st Dist. No. C-100028, 2011-Ohio-2356, ¶5.

       {¶5}     Under R.C. 2941.25, a trial court, in a single proceeding, may convict and

sentence a defendant for two or more offenses if the offenses (1) are not allied offenses of

similar import, (2) were committed separately or (3) were committed with a separate

animus as to each offense. Evans, supra, at ¶6. “Thus, for a court to merge multiple

findings of guilt into one conviction, the defendant must have committed allied offenses




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                     OHIO FIRST DISTRICT COURT OF APPEALS



of similar import both together and with the same animus.” State v. Shields, 1st Dist.

No. C-100362, 2011-Ohio-1912, ¶15.

       {¶6}    In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d

1061, the Ohio Supreme Court changed the analysis that courts are to apply in allied-

offense cases. State v. Lanier, 192 Ohio App.3d 762, 2011-Ohio-898, 950 N.E.2d 600,

¶9. It specifically overruled State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710

N.E.2d 699. Johnson, supra, syllabus; Lanier, supra, ¶9. After Johnson, we look to the

evidence and, “if that evidence reveals that the state relied upon the ‘same conduct’ to

prove the two offenses, and that the offenses were committed neither separately nor

with a separate animus to each, then the defendant is afforded the protections of R.C.

2941.25, and the trial court errs by imposing separate sentences for the offenses.” State

v. Strong, 1st Dist. Nos. C-100484 and C-100486, 2011-Ohio-4947, ¶67, quoting State v.

Mackey, 1st Dist. Nos. C-100311, C-100312, C-100313, and C-100314, 2011-Ohio-2529,

¶16.

       {¶7}    Drummonds argues that the record does not demonstrate that the two

counts of rape were committed separately or with a separate animus as to each. One

count involved digital penetration of the victim’s vagina and the other involved

cunnilingus.

       {¶8}    This court has held, post Johnson, that two counts of rape involving

different types of sexual activity, vaginal intercourse and digital penetration, were

committed separately.     We stated, “The evidence demonstrated that the vaginal

intercourse and the digital penetration involved distinct, different kinds of sexual

activity. Thus, they were separate offenses for merger purposes, even though they were

committed in the course of the same sexual encounter. Because these offenses involved

different, distinct types of sexual activity, they each constituted a separate crime, and



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their merger is not required by R.C. 2941.25(B).” Strong, supra, at ¶71. Accord State v.

Gonzalez, 193 Ohio App.3d 385, 2011-Ohio-1542, 952 N.E.2d 502, ¶52; State v.

Williams, 8th Dist. No. 94616, 2011-Ohio-925, ¶60. Courts, including this one, had

reached the same result in pre-Rance cases, as well. See State v. Nicholas (1993), 66

Ohio St.3d 431, 434-435, 613 N.E.2d 225; State v. Gowdy (June 26, 1998), 1st Dist. No.

C-970359, reversed on other grounds, 88 Ohio St.3d 387, 2000-Ohio-355, 727 N.E.2d

579.

       {¶9}     In this case, even though no trial had occurred and Drummonds had

pleaded guilty to the two counts of rape, the record shows that the counts involved two

distinct types of sexual activity. Therefore, the two offenses were separate, and the trial

court did not err in failing to merge them for sentencing. We overrule Drummonds’s

assignment of error and affirm his convictions.

                                                                      Judgment affirmed.


H ILDEBRANDT and H ENDON , JJ., concur.


Please Note:
       The court has recorded its own entry this date.




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