[Cite as State v. Bryant, 2014-Ohio-5306.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                 No. 14AP-333
v.                                                  :          (C.P.C. No. 12CR-270)

Willis Bryant, Jr.,                                 :     (REGULAR CALENDAR)

                 Defendant-Appellant.               :



                                             D E C I S I O N

                                   Rendered on November 28, 2014


                 Ron O'Brien, Prosecuting Attorney, and Barbara A.
                 Farnbacher, for appellee.

                 Bellinger & Donahue, and Kerry M. Donahue, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

SADLER, P.J.
        {¶ 1} Defendant-appellant, Willis Bryant, Jr., appeals from a judgment entered by
the Franklin County Court of Common Pleas following a resentencing hearing held
pursuant to this court's November 19, 2013 decision reversing and remanding the
sentences imposed for his aggravated burglary and rape offenses. State v. Bryant, 10th
Dist. No. 12AP-703, 2013-Ohio-5105.
I. BACKGROUND
        {¶ 2} Appellant was indicted on one count of kidnapping, one count of aggravated
burglary, two counts of gross sexual imposition, one count of attempted rape, and one
count of rape. Appellant pleaded guilty to one count of aggravated burglary and one count
No. 14AP-333                                                                              2


of rape. Following a sentencing hearing, the trial court imposed prison sentences of 10
years for the aggravated burglary and 11 years for the rape, with the sentences to be served
consecutively. Appellant's subsequent motion to withdraw his guilty plea was denied by
the trial court.
       {¶ 3} Appellant appealed, arguing the trial court erred by failing to merge the
convictions for aggravated burglary and rape and by imposing consecutive sentences
without making the necessary findings under R.C. 2929.14(C)(4). Appellant also argued
that his guilty plea was not entered knowingly, voluntarily, and intelligently and that the
trial court erred by denying his motion to withdraw his guilty plea.
       {¶ 4} In our November 19, 2013 decision, we set forth the facts regarding the
incident at issue as summarized by the prosecutor at the guilty plea hearing:
               This incident occurred in Franklin County, * * * December 5th
               of 2011, at * * * 3685 Cleveland Avenue, Apartment A-9. [The
               victim] * * * is a resident there. [Appellant] also lives just
               down the street at 3734 Cleveland Avenue. The two had
               crossed paths before but didn't really know * * * one another
               very well.

               [Appellant] confronted her in the area of her apartment,
               producing a knife or a box-cutter-type weapon, forced her
               back into her apartment, where there he grabbed her nipples,
               he groped her on top of her jeans. He threatened her,
               threatened to kill her if she did not have sex with him. He
               attempted vaginal intercourse. She said that she was on her
               period so that she couldn't do that. [Appellant] became more
               angry, taking the knife, holding it to her throat and head area,
               forcing her to perform fellatio then on him. * * * She
               pretended to comply so that he would not harm her because
               he was threatening to kill her with this weapon.

               She then – there was a scuffle that ensued during this. He
               fled, she fled, she was able to get back into her apartment, lock
               the door, called 9-1-1.

Id. at ¶ 6, citing Aug. 14, 2012 Plea Hearing Tr. 24-25.
       {¶ 5} We affirmed appellant's convictions and the trial court's denial of his
motion to withdraw his guilty plea.       However, we vacated appellant's sentence and
remanded the matter to the trial court for proper sentencing, including application of
No. 14AP-333                                                                               3


State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, and all applicable statutory
sentencing provisions. Bryant at ¶ 35.
       {¶ 6} In our discussion of Johnson, we acknowledged the two-part test employed
therein for conducting allied-offense analysis. Id. at ¶ 11. "Under the two-part Johnson
analysis, 'we first examine whether the offenses are able to be committed with the same
conduct.' " Id. at ¶ 12, quoting State v. Damron, 10th Dist. No. 12AP-209, 2012-Ohio-
5977, ¶ 11. "If it is possible to commit both offenses with the same conduct, the test then
requires the court to determine whether the offenses were, in fact, committed by the same
conduct, 'i.e., "a single act, committed with a single state of mind." ' " Id., quoting
Johnson at ¶ 49. "If the answer to both of these inquir[i]es is yes, merger is required;
however, '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.' "
Id., quoting Johnson at ¶ 51.
       {¶ 7} We also considered the particular offenses at issue, i.e., rape and aggravated
burglary. We first noted that rape is defined under R.C. 2907.02(A)(2) as "sexual conduct
with another when the offender purposely compels the other person to submit by force or
threat of force." Id. at ¶ 13. We further noted that aggravated burglary under R.C.
2911.11(A)(1) is trespassing by force, stealth or deception in an occupied structure with the
purpose to commit within the structure a criminal offense, if the offender inflicts, or
attempts or threatens to inflict physical harm on another. Id. We stated that "[w]hile
courts applying Johnson have determined it is possible to commit rape and aggravated
burglary with the same conduct, the further inquiry under Johnson is whether the
offenses were in fact committed by the same conduct." Bryant at ¶ 18.
       {¶ 8} We recognized that the issue of merger was not discussed during the
sentencing hearing and that the record did not indicate the trial court considered or
applied Johnson, including an examination of appellant's conduct. Bryant at ¶ 18. We
determined that, while the limited facts recited by the prosecutor at the plea hearing
raised an issue as to whether appellant's offenses were subject to merger, "the record on
appeal is not developed sufficiently to determine whether the offenses were committed by
the same conduct, i.e., 'a single act, committed with a single state of mind.' " Id. at ¶ 19,
quoting Johnson at ¶ 49. Accordingly, we concluded that the matter must be remanded to
No. 14AP-333                                                                             4


the trial court to " 'apply Johnson [and] to consider appellant's conduct' and determine
whether appellant's offenses should merge." Id., quoting State v. Rivera, 10th Dist. No.
10AP-945, 2012-Ohio-1915, ¶ 66. We reiterated that "even though the offenses may be of
similar import, appellant 'can be sentenced for both if he committed the crimes separately
or with a separate animus.' " Id., quoting State v. Nguyen, 4th Dist. No. 12CA14, 2013-
Ohio-3170, ¶ 108.
       {¶ 9} In addition, we determined the trial court did not make the requisite
findings under R.C. 2929.14(C)(4) before imposing consecutive sentences for appellant's
multiple offenses. However, we stated that "in light of our determination that this matter
be remanded to the trial court for re-sentencing in order for the trial court to apply
Johnson and determine whether the offenses are subject to merger, the issue as to error
by the court in failing to make the requisite statutory findings before imposing
consecutive sentences is rendered moot." Id. at ¶ 22. We further averred that "[u]pon
remand, if the trial court determines the offenses do not merge, the court must then
determine    whether   consecutive   sentences    are   appropriate,   pursuant   to   R.C.
2929.14(C)(4), and make necessary findings for the imposition of consecutive sentences."
Id. We subsequently denied appellee's motion for reconsideration. State v. Bryant, 10th
Dist. No. 12AP-703 (Apr. 10, 2014) (memorandum decision).
       {¶ 10} At the April 15, 2014 resentencing hearing, the prosecutor, noting this
court's language in Bryant regarding the limited factual recitation set forth at the guilty
plea hearing, requested the trial court's permission to enter additional facts into the
record. Appellant objected on grounds that such recitation of additional facts violated his
constitutional right to confront the witnesses against him. The trial court implicitly
overruled the objection, stating "[t]he Appeals Court was very clear on that issue. We are
here for two things. My understanding of this decision is that there are two things that
need to be done at this resentencing hearing. There needs to be a discussion whether
these two merge, and there needs to be the recitation from the Johnson case. So at this
time I am going to give the prosecution a chance to do exactly what the appellate court has
asked." (Apr. 15, 2014 Tr. 5-6.)
No. 14AP-333                                                                      5


       {¶ 11} Thereafter, the prosecutor set forth the following facts:
              [T]hese offenses occurred on December 5, 2011. The victim
              * * * knew the Defendant as a person from the neighborhood,
              they had no prior relationship.

              [S]he lived inside an apartment inside of a secured building.
              And she says in her interview that at some point [appellant is]
              outside yelling at her that he wanted to talk to her. She said,
              no, I'm getting ready to leave, I don't want to talk to you.

              As she leaves her secured door from her apartment into the
              secured hallway, [appellant is] standing there already inside
              the apartment building. He had a knife in his hand. He held
              this knife up to her neck. He told her to perform oral sex on
              him or he was going to kill her. He then forced her into her
              apartment, at which point he demanded sex from her, vaginal
              sex. She said no, she was not going to do that, she was on her
              period. He kept telling her, you're going to do this or I'm
              going to kill you. She then, because fearing for her life,
              performed oral sex on him. He ejaculated, the rape is over.

              She says to the officer in her interview, her words was: When I
              got to the bathroom, he put the knife to my neck and told me
              to suck his thing. I told him no. And he said, well, he was
              going to kill me, so I did it. And I thought that was going to
              make him leave if I did it. Be he didn't leave. So he kept me
              trapped in my room so I couldn't get out of my room, the
              door, and he said he was going to kill me because if he didn't, I
              was going to call the police. So he was going to kill me. So I
              tried playing like I wasn't going to told [sic] on him and I
              wasn't going to call the police. But he didn't go for it. So he
              called his friend, the person that stays with him, and he called
              him and told him that he was about to kill me because he
              knew if he leaves then, I'm going to call the police. So I guess
              the dude that was staying with him said, he's about to come
              down. So I snatched the phone from him and told him to
              come and get him. And he said - - he said, well, the door is
              going to have to already be open because, you know, I'm not
              allowed into the apartment building. So I said, okay, well, he
              called before.

              And then what happened is that the Defendant stepped
              outside, she was able to lock the door and call the police.

(Apr. 15, 2014 Tr. 6-8.)
No. 14AP-333                                                                                             6


        {¶ 12} Following argument by the parties as to the merger issue, the trial court
again imposed prison sentences of 10 years for the aggravated burglary and 11 years for
the rape, with the sentences to be served consecutively. Regarding merger, the court
stated "[t]he Court does find that this rape could have happened without the burglary.
The Court does not find that these merge together. The Court does find that after the rape
was completed, based upon the facts that are on record now, [appellant] could have left
and he chose not to and he chose to threaten this victim with her life if she called the
police." (Apr. 15, 2014 Tr. 11-12.)
        {¶ 13} As to its imposition of consecutive sentences, the court found that "it is
necessary to protect the public from future crime or to punish the offender, and that
consecutive sentences are not disproportionate to the seriousness of the offender's
conduct and to the danger the offender poses to the public. * * * The offender's history of
criminal conduct demonstrates that consecutive sentences are necessary to protect the
public from future crime by the offender." (Apr. 15, 2014 Tr. 12.)1
        {¶ 14} The court journalized its sentence in a "Resentencing Entry" filed April 15,
2014.
II. ASSIGNMENTS OF ERROR
        {¶ 15} In a timely appeal, appellant sets forth two assignments of error for our
review:
                 I. THE LOWER COURT VIOLATED THE APPELLANT'S
                 CONSTITUTIONAL RIGHT TO CONFRONTATION OF THE
                 WITNESSES AGAINST HIM.

                 II. THE TRIAL COURT ERRED BY CONVICTING AND
                 SENTENCING     APPELLANT   TO    CONSECUTIVE
                 SENTENCES FOR TWO ALLEGED FELONIES OF THE
                 FIRST DEGREE WHEN ONE ALLEGED FELONY, IF
                 COMMITTED AT ALL, WAS MERELY INCIDENTAL TO
                 THE COMMITTING OF THE OTHER ALLEGED FELONY AS
                 SET FORTH IN JOHNSON.




1On appeal, appellant does not argue that the trial court failed to make the findings required by R.C.
2929.14(C)(4) before imposing consecutive sentences.
No. 14AP-333                                                                               7


III. DISCUSSION
       A. First Assignment of Error
       {¶ 16} In his first assignment of error, appellant contends the trial court, in
permitting the prosecutor to assert additional facts about the incident at the resentencing
hearing, violated his right to confront the witnesses against him guaranteed by the Sixth
Amendment to the United States Constitution, as well as Article I, Section 10 of the Ohio
Constitution.
       {¶ 17} Initially, we sua sponte note the procedural posture of this case. The law of
the case doctrine provides "the decision of a reviewing court in a case remains the law of
that case on the legal questions involved for all subsequent proceedings in the case at both
the trial and reviewing levels." Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984), citing Gohman
v. St. Bernard, 111 Ohio St. 726, 730 (1924). The doctrine is "a rule of practice rather than
a binding rule of substantive law and will not be applied so as to achieve unjust results."
Id., citing Gohman at 730-31. "However, the rule is necessary to ensure consistency of
results in a case, to avoid endless litigation by settling the issues, and to preserve the
structure of superior and inferior courts as designed by the Ohio Constitution." Id., citing
State ex rel. Potain v. Mathews, 59 Ohio St.2d 29, 32 (1979). The law of the case doctrine
"functions to compel trial courts to follow the mandates of reviewing courts." Id. Thus,
"[a]bsent extraordinary circumstances, such as an intervening decision by the Supreme
Court, an inferior court has no discretion to disregard the mandate of a superior court in a
prior appeal in the same case." Id. at syllabus, following Potain at 32.
       {¶ 18} In Bryant, this court determined the record was not developed sufficiently
to determine whether the aggravated burglary and rape offenses were committed by the
same conduct, and we remanded the matter to the trial court to apply Johnson and
consider appellant's conduct. Implicit in this court's statement was a directive to the trial
court to permit the prosecution to further develop the factual record. In accordance with
Bryant, the case proceeded to a resentencing hearing where the trial court properly
permitted further factual development by the prosecution.
       {¶ 19} Turning to appellant's substantive argument, he relies on Crawford v.
Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court of the United States
held that the Sixth Amendment Confrontation Clause bars "testimonial statements of a
No. 14AP-333                                                                                 8


witness who did not appear at trial unless he was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination." Id. at 53-54. The court distinguished
between testimonial and nontestimonial hearsay and held that only testimonial
statements implicate the Confrontation Clause. Id. at 68. Although the court did not
provide a definitive definition of "testimonial," it averred that the term "applies at a
minimum" to prior testimony at a preliminary hearing, before a grand jury or at a former
trial, and to police interrogations. Id. As to police interrogations, the court observed that
"[a]n accuser who makes a formal statement to government officers bears testimony in a
sense that a person who makes a casual remark to an acquaintance does not." Id. at 51.
Appellant maintains that the averments made by the prosecutor at the resentencing
hearing regarding the victim's statement to the police were made in violation of
Crawford.
       {¶ 20} Appellant fails to cite any authority applying Crawford to sentencing cases.
As noted, Crawford held that only testimonial statements implicate the Sixth Amendment
Confrontation Clause.     Here, appellant protests the trial court's use of the victim's
purported statement to the police in its sentencing determination; however, appellant
does not definitively assert that the statement is testimonial in nature. Rather, appellant
equivocally states that "it is unclear if [the statement] is testimonial evidence or not….it is
unclear and appears to be a blend of both, as purportedly reported by the police officer."
(Appellant's Brief, 9.)
       {¶ 21} Moreover, this court has held that the admission of hearsay evidence at a
sentencing hearing does not deprive a defendant of his federal constitutional right to
confrontation. State v. Randlett, 10th Dist. No. 06AP-1073, 2007-Ohio-3546, ¶ 25, citing
State v. Bene, 12th Dist. No. CA2005-09-090, 2006-Ohio-3628, ¶ 21.                 Appellant's
"knowing and voluntary plea of guilty was a complete admission of guilt and waived [his]
rights under the Confrontation Clause of the Sixth Amendment to the United States
Constitution." Id., quoting Bene at ¶ 21. This court further stated that "Evid.R. 101(C)
clearly identifies sentencing hearings as among those certain criminal proceedings in
which the rules of evidence, including the hearsay rule, do not apply. Accordingly, we
have continued to hold that a trial court is free to rely on reliable hearsay in its sentencing
decision." Id., quoting Bene at ¶ 21.
No. 14AP-333                                                                              9


       {¶ 22} Other Ohio courts addressing Confrontation Clause challenges to
sentencing hearings have held similarly. For example, in State v. Wright, 4th Dist. No.
93CA2110 (July 29, 1994), the defendant argued the trial court failed to inform him of his
constitutional right to face his accuser during the plea bargain and sentencing hearing.
The court dismissed this argument as "patently meritless," stating, "[t]he Confrontation
Clause[s] of the Sixth Amendment to the United States Constitution and Section 10,
Article I, Ohio Constitution, guarantee only the right to meet or be confronted by
'witnesses' at trial." Id. There was, obviously, no trial in this case and no witnesses for
appellant to face. Id.
       {¶ 23} In the present case, this court has already determined that appellant
entered a knowing, voluntary, and intelligent guilty plea. Bryant at ¶ 24-34. In entering
his plea, appellant waived his right to confrontation. Randlett. As the only issue before
the trial court was a sentencing issue, appellant's unsupported claim that he was deprived
of his right to confrontation at the resentencing proceeding lacks merit. Accordingly, the
first assignment of error is overruled.
       B. Second Assignment of Error
       {¶ 24} In his second assignment of error, appellant contends the trial court erred
in failing to merge his convictions for rape and aggravated burglary. Appellant contends
that, assuming the facts are sufficient to justify a conviction for aggravated burglary, the
crimes of rape and aggravated burglary do not qualify as separate crimes justifying a
maximum plus consecutive sentence.        Appellant maintains that Johnson requires a
factual inquiry into his criminal conduct to determine whether rape and aggravated
burglary are allied offenses of similar import and whether he acted with a separate animus
or a separate purpose in committing the rape and aggravated burglary.
       {¶ 25} In State v. Vargas, 10th Dist. No. 12AP-692, 2014-Ohio-843, ¶ 13, this court
set forth the standard of review applicable to a trial court's determination regarding
merger under R.C. 2941.25:
              In reviewing a trial court's determination of whether a
              defendant's offenses should merge pursuant to the multiple
              counts statute, the Supreme Court of Ohio has determined a
              reviewing court should review the trial court's R.C. 2941.25
              determination de novo. State v. Williams, 134 Ohio St.3d
No. 14AP-333                                                                              10


              482, 2012-Ohio-5699, ¶ 1. "Appellate courts apply the law to
              the facts of individual cases to make a legal determination as
              to whether R.C. 2941.25 allows multiple convictions. That
              facts are involved in the analysis does not make the issue a
              question of fact deserving of deference to a trial court[.]" Id.
              at ¶ 25.

       {¶ 26} R.C. 2941.25 provides as follows:
              (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.

       {¶ 27} "Thus, R.C. 2941.25 prohibits merger and allows cumulative punishment if
the offenses: (1) lack a similar import/are of dissimilar import, (2) were committed
separately, or (3) were committed with a separate animus as to each. These three bars to
merger are disjunctive." Vargas at ¶ 16, citing State v. Bickerstaff, 10 Ohio St.3d 62
(1984).
       {¶ 28} A defendant bears the burden of proving at the sentencing hearing that he is
entitled to merger pursuant to R.C. 2941.25. Id. at ¶ 17, citing State v. Cochran, 10th Dist.
No. 11AP-408, 2012-Ohio-5899, ¶ 60, citing State v. Mughni, 33 Ohio St.3d 65, 67 (1987).
"A defendant cannot show he is entitled to merger without demonstrating that the
offenses result from the 'same conduct' and share a 'similar import.' " Id., citing Cochran
at ¶ 60.
       {¶ 29} As noted above, in Bryant, we reviewed the applicable merger test set forth
in Johnson as well as the statutory elements of the offenses at issue. Accordingly, we need
not reiterate them here.
       {¶ 30} Applying the first prong of the Johnson test, we determined that it is
possible to commit the offenses of rape and aggravated burglary with the same conduct;
thus, the offenses are of similar import. Bryant at ¶ 17. While appellee cites case law
No. 14AP-333                                                                             11


from other districts holding to the contrary, this court's determination in Bryant is the
law of the case. See Nolan. However, as we noted in Bryant, "even though the offenses
may be of similar import, appellant 'can be sentenced for both if he committed the crimes
separately or with a separate animus.' " Id. at ¶ 19, quoting Nguyen at ¶ 108. Accordingly,
we must review appellant's conduct to determine whether he committed the offenses
separately or with a separate animus.
      {¶ 31} Appellant contends the aggravated burglary and rape were committed by a
single act with a single state of mind.     Appellant contends no evidence exists that
appellant intended to trespass in the victim's apartment. Appellant maintains that any
breach of the victim's doorway was merely incidental to the alleged rape being committed
simultaneously and not a purposeful action committed with a separate animus.           We
disagree.
       {¶ 32} The facts of the case as recited by the prosecutor at the guilty plea hearing
and the resentencing hearing establish that the aggravated burglary and rape offenses
were committed by separate acts. Appellant confronted the victim in the hallway of her
apartment building with a knife or box cutter in his hand and threatened to kill her if she
did not perform fellatio on him. He then forced his way into the victim's apartment while
threatening her life, thereby committing aggravated burglary. Once inside the apartment,
appellant forced the victim to perform fellatio on him, thereby committing rape.
Following the rape, appellant did not leave the apartment. Rather, he trapped the victim
inside her apartment while threatening to kill her to keep her from calling the police,
thereby once again committing aggravated burglary. Thus, appellant's separate conduct
supported his separate convictions.
       {¶ 33} Furthermore, appellant committed the aggravated burglary and rape
offenses with a separate animus. "The Ohio Supreme Court interprets the term 'animus'
to mean 'purpose or, more properly, immediate motive,' and infers animus from
surrounding circumstances." State v. Shields, 1st Dist. No. C-100362, 2011-Ohio-1912,
¶ 16, quoting State v. Logan, 60 Ohio St.2d 126, 131 (1979). "[W]hen 'an individual's
immediate motive involves the commission of one offense, but in the course of
committing that crime he must, a priori, commit another, then he may well possess but a
single animus, and in that event may be convicted of only one crime.' " Id., quoting Logan
No. 14AP-333                                                                          12


at 131. In this case, even if appellant's only animus was forced sexual conduct, he could
have committed the sexual assault in the hallway outside the victim's apartment. Instead,
he forced the victim inside her apartment. Further, after raping the victim, he did not
immediately leave the apartment. Rather, he remained in the victim's apartment and
continued to threaten to kill her while keeping her trapped inside.    Thus, appellant's
separate animus supported his separate convictions.
      {¶ 34} Under the facts and circumstances of this case, aggravated burglary and
rape are not allied offenses because they do not satisfy the second prong of the Johnson
test. The offenses were committed by separate conduct and with a separate animus.
Accordingly, the trial court properly declined to merge the offenses for sentencing.
Appellant's second assignment of error is overruled.
IV. CONCLUSION
      {¶ 35} Having overruled appellant's first and second assignments of error, we
affirm the judgment of the Franklin County Court of Common Pleas.
                                                                    Judgment affirmed.

                           TYACK and CONNOR, JJ., concur.
                       _____________________________
