      [Cite as State v. Gates, 2018-Ohio-1875.]




                          IN THE COURT OF APPEALS OF OHIO
                              SIXTH APPELLATE DISTRICT
                                 SANDUSKY COUNTY


State of Ohio                                           Court of Appeals No. S-17-045

      Appellee                                          Trial Court No. 16 CR 1253

v.

Michael J. Gates                                        DECISION AND JUDGMENT

      Appellant                                         Decided: May 11, 2018

                                                  *****

      Timothy F. Braun, Sandusky County Prosecuting Attorney, and
      Mark E. Mulligan, Assistant Prosecuting Attorney, for appellee.

      Russell V. Leffler, for appellant.

                                                  *****

      JENSEN, J.

                                      I.          Introduction

      {¶ 1} Appellant, Michael Gates, appeals the judgment of the Sandusky County

Court of Common Pleas, sentencing him to 16 years in prison after he pleaded guilty to

one count of rape and one count of gross sexual imposition. Finding no error, we affirm.
                        A.     Facts and Procedural Background

       {¶ 2} On December 29, 2016, appellant was indicted on one count of rape in

violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. The indictment stemmed

from an incident that occurred in September 2016, in which appellant engaged in fellatio

and masturbation with a juvenile who was two years old at the time. Appellant had

previously confessed to committing these acts during an interview and subsequent

polygraph test with law enforcement officers from the Ottawa County Sheriff’s office and

the FBI.

       {¶ 3} Appellant entered a plea of not guilty, and the matter proceeded through

discovery. On March 28, 2017, appellant, through appointed counsel, filed a motion to

suppress “any and all statements made by [appellant] to law enforcement that the State

may intend to use at trial.” The basis for the motion to suppress was the assertion that

appellant was not properly advised of his Miranda rights prior to police questioning. On

June 21, 2017, the trial court denied appellant’s motion to suppress, finding that

appellant’s confessions were voluntarily given while appellant was not under arrest.

       {¶ 4} Two months later, appellant appeared before the trial court and entered a

consent to be tried on a bill of information. The bill of information contained one count

of rape in violation of R.C. 2907.02(A)(2), a felony of the first degree, and one count of

gross sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree.

According to the bill of information, the rape count pertained to appellant’s act of fellatio,




       2.
while the gross sexual imposition count related to appellant’s touching of the juvenile’s

penis in an act of masturbation that was “separate from the fellatio in Count 1.” After a

thorough Crim.R. 11 coloquy at which appellant acknowledged satisfaction with his

counsel’s representation, the trial court accepted appellant’s plea on the bill of particulars

and found him guilty of the offenses specified therein. Notably, the court did not ask the

state to present a factual basis for the charges contained in the bill of particulars.

       {¶ 5} At the conclusion of the hearing on the bill of particulars, the court referred

appellant to the adult probation department for the preparation of a presentence

investigation report and set the matter for sentencing. The sentencing hearing was held

on September 26, 2017. At sentencing, the trial court ordered appellant to serve prison

terms of 11 years for rape and 5 years for gross sexual imposition, to be served

consecutively, for a total prison sentence of 16 years.

       {¶ 6} On October 11, 2017, appellant filed his timely notice of appeal.

                                B.     Assignments of Error

       {¶ 7} On appeal, appellant presents the following assignments of the error for our

review:

              I. The trial court erred by sentencing the defendant on both the rape

       and GSI offenses without examining the underlying facts to determine

       whether they were allied offenses of similar import pursuant to O.R.C.

       2941.25.




       3.
              II. Trial counsel was incompetent by not attempting to exclude the

       defendant’s statements as evidence since there was no other proof of corpus

       delecti of the crimes or to assert that the crimes were allied offenses of

       similar import.

                                       II.    Analysis

                         A.     Allied Offenses of Similar Import

       {¶ 8} In his first assignment of error, appellant argues that the trial court erred in

separately sentencing appellant for rape and gross sexual imposition without first

determining whether those offenses were allied offenses of similar import.

       {¶ 9} Relevant to appellant’s allied offenses argument, 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.




       4.
       {¶ 10} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the

Ohio Supreme Court examined in detail the analysis that must be performed in

determining whether offenses are allied offenses of similar import under R.C. 2941.25.

In so doing, the court identified three questions that must be asked: “(1) Were the

offenses dissimilar in import or significance? (2) Were they committed separately? and

(3) Were they committed with separate animus or motivation?” Id. at ¶ 31. If the answer

to any of these questions is “yes,” the defendant may be convicted and sentenced for

multiple offenses. Id. at ¶ 25, 30. The court explained that offenses are of dissimilar

import “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. It

emphasized that the analysis must focus on the defendant’s conduct, rather than simply

compare the elements of two offenses. Id. at ¶ 30.

       {¶ 11} Appellant failed to raise his allied offenses argument in the trial court

below. Therefore, we review appellant’s argument under a plain error standard of

review. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. The

court in Rogers stated that, under the plain error standard, it is the accused’s burden “to

demonstrate a reasonable probability that the convictions are for allied offenses of similar

import committed with the same conduct and without a separate animus,” and, “absent

that showing, the accused cannot demonstrate that the trial court committed plain error by

failing to inquire whether the convictions merge for purposes of sentencing.” Id.




       5.
       {¶ 12} We have previously held that a defendant may be convicted on both rape

and gross sexual imposition where those charges are based upon separate conduct. State

v. Millhoan, 6th Dist. Lucas Nos. L-10-1328 and L-10-1329, 2011-Ohio-4741, ¶ 49. “In

deciding whether the two offenses are based upon the same conduct, the focus is upon

whether both crimes were accomplished by a single act.” State v. St. John, 11th Dist.

Lake No. 2015-L-133, 2017-Ohio-4043, ¶ 20.

       {¶ 13} Here, the record of the factual underpinnings that gave rise to appellant’s

convictions for rape and gross sexual imposition is not well developed. Indeed, the

record at the plea hearing reveals that the trial court did not seek a statement from the

state as to the factual basis that would support appellant’s plea. However, the bill of

particulars to which appellant consented specifies with regard to the rape count that

appellant “forced fellatio on another person separate from the criminal act in Count 2.”

Moreover, the bill of particulars states that appellant “touched the penis of the other

person in an act of masturbation separate from the fellatio in Count 1.” Thus, the bill of

particulars clearly indicates that the charges stem from two acts that were committed

separately.

       {¶ 14} Because these offenses were committed separately, they are not allied

offenses of similar import. See State v. Hay, 3d Dist. Union No. 14-2000-24, 2000 Ohio

App. LEXIS 5951, *7-8 (Dec. 19, 2000) (“The charge of gross sexual imposition was

premised upon the alleged masturbation of [the child’s] penis. This is separate and




       6.
distinct from the action, specifically the act of fellatio, which constituted the sexual

conduct which lead to the appellant’s criminal charge for rape. Therefore, the appellant

committed two separate offenses and he may be convicted of both.”). Accordingly, the

trial court did not commit plain error in failing to merge the offenses of rape and gross

sexual imposition in this case, and appellant’s first assignment of error is not well-taken.

                                     B.   Corpus Delecti

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

ineffective for failing to file a motion in limine, seeking to have his confessions excluded

pursuant to the corpus delecti rule.

       {¶ 16} In order to demonstrate ineffective assistance of counsel, appellant must

satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must show that counsel’s

performance fell below an objective standard of reasonableness, and a reasonable

probability exists that, but for counsel’s error, the result of the proceedings would have

been different. Id. at 687-688, 694.

       {¶ 17} The corpus delecti rule was explained by the Ohio Supreme Court in State

v. Maranda, 94 Ohio St. 364, 114 N.E. 1038 (1916). In Maranda, the court stated:

              By the ‘corpus delicti’ of a crime is meant the body or substance of

       the crime, included in which are usually two elements: (1) the act; (2) the

       criminal agency of the act.




       7.
              It has long been established as a general rule in Ohio that there must

       be some evidence of a confession, tending to establish the corpus delicti,

       before such confession is admissible. The quantum or weight of such

       outside or extraneous evidence is not of itself to be equal to proof beyond a

       reasonable doubt, nor even enough to make it a prima facie case. Id. at

       paragraphs one and two of the syllabus.

       {¶ 18} In order to satisfy the corpus delecti rule, the prosecution must introduce

evidence tending to prove the fact that a crime was committed, but that evidence need not

be direct; instead, circumstantial evidence may be relied upon to show corpus delicti. Id.

at 371. Indeed, the burden upon the state to provide evidence of the corpus delecti is

minimal. State v. Edwards, 49 Ohio St.2d 31, 36, 358 N.E.2d 1051 (1976).

       {¶ 19} Here, the record contains evidence to satisfy the corpus delecti rule.

Specifically, there is evidence that appellant communicated with a woman in Texas

concerning the procurement of child pornography. During these chat room

communications, appellant revealed that he had previously committed sexual offenses

against children, and threatened to do so again if he was not provided with additional

child pornography. While this evidence is circumstantial, it is sufficient to satisfy the

prosecution’s minimal burden relative to the corpus delecti rule. Consequently, a motion

in limine challenging the admissibility of the confession under the corpus delecti rule




       8.
would have been denied. Trial counsel was not ineffective for failing to file such a

motion.

       {¶ 20} Accordingly, appellant’s second assignment of error is not well-taken.

                                    III.   Conclusion

       {¶ 21} In light of the foregoing, the judgment of the Sandusky County Court of

Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to

App.R. 24.



                                                                       Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                       ____________________________
                                                       JUDGE
Thomas J. Osowik, J.
                                               ____________________________
James D. Jensen, J.                                    JUDGE
CONCUR.
                                               ____________________________
                                                       JUDGE


       This decision is subject to further editing by the Supreme Court of
  Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
       version are advised to visit the Ohio Supreme Court’s web site at:
                http://www.supremecourt.ohio.gov/ROD/docs/.




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