[Cite as State v. Jackson, 2011-Ohio-6069.]




         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                   No. 92531



                                    STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                              vs.

                               MICHAEL JACKSON
                                                    DEFENDANT-APPELLANT




                       JUDGMENT:
           AFFIRMED IN PART, REVERSED IN PART,
                     AND REMANDED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-505342

        BEFORE:             Boyle, P.J., Rocco, J., and Sweeney, J.
       RELEASED AND JOURNALIZED: November 23, 2011


ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, P.J.:

       {¶ 1} This matter is before the court on remand from the Ohio Supreme Court.

       {¶ 2} Following a jury trial, defendant-Michael Jackson was convicted of a single

count of rape, R.C. 2907.02(A)(2), and a single count of unlawful conduct with a minor, R.C.

2907.04(A), which carried a furthermore clause alleging that Jackson is ten or more years

older than the victim.
       {¶ 3} At sentencing, the trial court imposed four years for the rape count and four

years for unlawful sexual conduct with a minor, both to be served concurrently.

       {¶ 4} On direct appeal, we affirmed in part and reversed in part the trial court’s

judgment. State v. Jackson, 8th Dist. No. 92531, 2010-Ohio-3080.        We affirmed Jackson’s

convictions for both counts but sustained his fifth and seventh assignments of error, finding

that there was insufficient evidence to support the furthermore clause attached to the unlawful

sexual conduct with a minor count and that the trial court erred by failing to merge the rape

and unlawful sexual conduct with a minor as allied offenses.         Id. at ¶55 and 66.      In

sustaining the allied offenses assignment of error, we remanded the matter for the state to

elect which allied offense to pursue in a new sentencing hearing.   Id. at ¶66.

       {¶ 5} The state appealed to the Ohio Supreme Court our resolution of Jackson’s

seventh assignment of error, which found that the two offenses should have merged at

sentencing as allied offenses of similar import.   Jackson filed a cross appeal, challenging his

conviction and the length of his sentence.     The Ohio Supreme Court accepted the state’s

appeal but denied Jackson’s cross appeal.

       {¶ 6} On August 29, 2011, the Ohio Supreme Court issued a judgment entry,

remanding the case to our court for application of its decision in State v. Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.         Accordingly, we now turn to the issue of
allied offenses raised in Jackson’s seventh assignment of error and apply Johnson as ordered

by the Ohio Supreme Court.

       SEVENTH ASSIGNMENT OF ERROR:

       {¶ 7} “Defendant was denied due process of law when the court failed to merge the

conviction of rape with the conviction for unlawful sexual conduct with a minor.”

       {¶ 8} Jackson was convicted of rape under R.C. 2907.02(A)(2), which provides as

follows:

       {¶ 9} “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.”

       {¶ 10} Jackson was also convicted of unlawful sexual conduct with a minor in

violation of R.C. 2907.04(A), which provides as follows:

       {¶ 11} “No person who is eighteen years of age or older shall engage in sexual

conduct with another, who is not the spouse of the offender, when the offender knows the

other person is thirteen years of age or older but less than sixteen years of age, or the offender

is reckless in that regard.”

       {¶ 12} The state’s evidence at trial was as follows: in May 2007, the victim, S.C., who

was 15 years old at the time and friends with Jackson’s younger sister, was approached by

Jackson while watching television alone in the living room of Jackson’s apartment.       Jackson

came out of his bedroom and told S.C. that he was psychic and that he knew that S.C. was
gay.   Jackson then started touching S.C.’s legs and initiated the sexual conduct, taking off

S.C.’s shorts and placing his penis inside him.   Jackson continued and ultimately ejaculated

inside of S.C.   As a result of this conduct, the jury found Jackson guilty of rape and

unlawful sexual conduct with a minor.

       {¶ 13} Ohio’s multiple counts statute, R.C. 2941.25, provides:

       {¶ 14} “(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.

       {¶ 15} “(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.”

       {¶ 16} In Johnson, the Ohio Supreme announced a new two-part test to determine

whether offenses are allied offenses of similar import under R.C. 2941.25;     Id.   Under this

new test, the first inquiry focuses on “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.”   Id. at ¶48.    In making such a determination, it is not necessary that

the commission of one offense would always result in the commission of the other, but

instead, the question is whether it is possible for both offenses to be committed with the same
conduct.   State v. Roy, 12th Dist. No. CA2009-11-290, 2011-Ohio-1992, ¶10, citing

Johnson at ¶48.

       {¶ 17} If it is found that the offenses can be committed by the same conduct, the court

must then determine “whether the offenses were committed by the same conduct, i.e., ‘a

single act, committed with a single state of mind.’” Johnson at ¶49, quoting State v. Brown,

119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶50.              If the answer to both

questions is yes, then the offenses are allied offenses of similar import and must be merged.

Johnson at ¶50.     However, if 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.”    Johnson at ¶51.

       {¶ 18} Applying the Johnson analysis to this case, we must first determine if it is

possible for rape in violation of R.C. 2907.02(A)(2), and unlawful sexual conduct with a

minor in violation of R.C. 2907.04(A), to be committed with the same conduct.      And as we

previously noted in Jackson I, “we find that the commission of rape wholly subsumes the

commission of the unlawful sexual conduct with a minor.”       Id. at ¶64; see, also, State v.

Grant, 5th Dist. No. 07CA32, 2008-Ohio-3429.      We therefore find that the first prong of the

Johnson test is answered in the affirmative.
       {¶ 19} Having found that it is possible for rape and unlawful sexual conduct with     a

minor to be committed with the same conduct, the Johnson analysis now requires this court to

determine whether Jackson committed the offenses by way of a single act and with a single

state of mind.   Id. at ¶49; R.C. 2941.25(B).

       {¶ 20} As this court recognized in Jackson I, Jackson’s conduct in May 2007 in the

living room of his apartment gave rise to both convictions.    Id. at ¶65.   Indeed, “there was

no evidence in this case to suggest that the unlawful sexual        conduct with a minor was

anything but incidental to the rape.”   Id.   There was no separate animus and both offenses

arose from the same conduct.     Therefore, under the facts and circumstances of this case, and

in applying the Johnson analysis to the case at bar, we find these offenses to be allied

offenses of similar import that must be merged.

       {¶ 21} As we previously noted, the state, however, retains the right to elect which

offense to pursue on a remand to the trial court after appeal. Jackson I, 2010-Ohio-3080, ¶

66, citing State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraph

one of the syllabus.   We therefore sustain Jackson’s seventh assignment of error and remand

to the trial court for a new sentencing hearing consistent with the holding in Whitfield.

       {¶ 22} The other aspects of our opinion in Jackson I (addressing Jackson’s six other

assignments of error) are otherwise left intact by the Ohio Supreme Court’s remand and
remain unchanged.     The judgment of the trial court is reversed as to sentencing, and this

matter is remanded to the lower court for further proceedings consistent with this opinion.

       Judgment affirmed in part, reversed in part, and case remanded.

       It is ordered that appellee and appellant share the costs of this proceeding.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.          Case remanded to the trial court for

resentencing.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
JAMES J. SWEENEY, J., CONCUR
