[Cite as State v. Gamble, 2014-Ohio-2287.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. Sheila G. Farmer, J.
                                                 Hon. Patricia A. Delaney, J.
-vs-
                                                 Case No. 13 CAA 10 0072
CARLOS GAMBLE

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Delaware County Court of
                                              Common Pleas, Case No. 13 CRI 04 0170


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        May 27, 2014


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


CAROL HAMILTON O'BRIEN                        WILLIAM T. CRAMER
Delaware County Prosecuting Attorney          470 Olde Worthington Road, Suite 200
Douglas N. Dumolt                             Westerville, Ohio 43082
Assistant Prosecuting Attorney
140 N. Sandusky St., 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 13 CAA 10 0072                                                 2

Hoffman, P.J.


      {¶1}   Defendant-appellant Carlos Gamble appeals his sentence entered by the

Delaware County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}   Appellant lived with his girlfriend, K.S. and her three children. At all times

relevant herein, K.S. was incarcerated due to a positive drug test and was not present in

the home. A.C., the fourteen year-old daughter of K.S., had several friends to the

home, including her boyfriend, S.S., who often stayed over.

      {¶3}   After A.C.'s friends left, she and S.S. returned to the home with Appellant.

During the evening, Appellant asked A.C. if he could talk to her alone in her mother's

room. During the conversation, he asked her to sell a few items.

      {¶4}   Appellant later had A.C. smoke marijuana, and asked her to put on "booty

shorts," or extremely short shorts. A.C. was uncomfortable with the conversation and

returned to her room where S.S. was waiting. She relayed to S.S. she felt uneasy about

Appellant's comments, and told him to fake sick if Appellant came into the room. S.S.

testified at trial he spent the night at the home due to A.C.'s fear to stay alone with

Appellant.

      {¶5}   In the early morning hours, S.S. was awakened by Appellant who told him

to get in a closet. He had a pocket knife, which he opened and held to S.S.'s neck.

Appellant told S.S. he would tie him up with a belt if he moved. S.S. sat in the closet

and did not move.

      {¶6}   Appellant returned to A.C.'s room naked.         He got into bed with A.C.,

holding a knife to her neck and telling her to shut up. Appellant told A.C. to take off her
Delaware County, Case No. 13 CAA 10 0072                                                 3


pants. He then engaged in cunnilingus and raped her. Appellant ejaculated onto a

towel.

         {¶7}   Following the sexual activity, Appellant made A.C. go downstairs and take

a shower.       Appellant then called S.S. downstairs, ordering him to sit on the couch.

S.S. testified Appellant had a black handled kitchen knife in his hand while ordering him

to remain on the couch.

         {¶8}   Appellant then gathered up his clothes, and disappeared. A.C. and S.S.

eventually ran to A.C.'s aunt's house nearby and reported the incident.

         {¶9}   Appellant was indicted by the Delaware County Grand Jury. Count one

and two of the indictment involved two counts of rape involving the acts of cunnilingus

and vaginal penetration of A.C. Count three charged Appellant with the kidnapping of

S.S. during the rape of A.C. Count four charged Appellant with the kidnapping of A.C. to

engage in sexual activity. Count five charged appellant with tampering with evidence.

Count six involved the kidnapping of S.S. by being ordered onto the couch after the

commission of the rape offense. Count seven charged Appellant with kidnapping of

A.C. while he held her at knifepoint ordering her to shower to dispose of evidence.

Following a jury trial, Appellant was convicted on all counts. The trial court merged

count four with counts one and two for sentencing, but did not merge any other counts.

         {¶10} The trial court imposed an aggregate prison term of forty-six years in

prison, ordering all time be served consecutively. The court imposed an additional

consecutive prison term of 588 days representing Appellant's remaining time on post-

release control on a prior conviction.

         {¶11} Appellant appeals assigning as error:
Delaware County, Case No. 13 CAA 10 0072                                                4


       {¶12} "I.   THE       TRIAL   COURT   VIOLATED     PRINCIPLES      OF    DOUBLE

JEOPARDY AND R.C. 2941.25 BY IMPOSING SENTENCE ON TWO COUNTS OF

KIDNAPPING THE SAME VICTIM."

       {¶13} Appellant maintains the trial court erred in failing to merge count three and

count six for purposes of sentencing.        Count three charged Appellant with the

kidnapping of S.S. during which Appellant held S.S. at knifepoint, ordering him into the

closet in order to commit the rape of A.C. Count six involved the commission of the

kidnapping offense against S.S. during which Appellant ordered S.S. at knifepoint to

remain on the couch while Appellant disposed of the evidence from the rape.

       {¶14} R.C. 2941.25 reads,

       {¶15} “(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.

       {¶16} “(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.”

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

1061, the Ohio Supreme Court revised its allied-offense jurisprudence. The Johnson

court overruled State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699(1999), “to the extent

that it calls for a comparison of statutory elements solely in the abstract under R.C.

2941.25.” The Court was unanimous in its judgment and the syllabus, “When
Delaware County, Case No. 13 CAA 10 0072                                               5


determining whether two offenses are allied offenses of similar import subject to merger

under R.C. 2941.25, the conduct of the accused must be considered. ( State v. Rance

(1999), 85 Ohio St.3d 632, 710 N.E.2d 699, overruled.)” However, the Court could not

agree on how the courts should apply that syllabus holding. The Johnson case lacks a

majority opinion, containing instead two plurality opinions, and a separate concurrence

in the judgment and syllabus only. State v. Helms, 7th Dist. No. 08 MA 199, 2012–

Ohio1147, ¶ 71 (DeGenaro, J., concurring in part and dissenting in part).

      {¶18} Justice Brown's plurality opinion sets forth a new two-part test for

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

The first inquiry focuses on whether it is possible to commit both offenses with the same

conduct. Id. at ¶ 48, 710 N.E.2d 699. It is not necessary that the commission of one

offense will always result in the commission of the other. Id. Rather, the question is

whether it is possible for both offenses to be committed by the same conduct. Id.,

quoting State v. Blankenship, 38 Ohio St.3d 116, 119, 526 N.E.2d 816(1988).

Conversely, if the commission of one offense will never result in the commission of the

other, the offenses will not merge. Johnson at ¶ 51.

      {¶19} If it is possible to commit both offenses with the same conduct, the court

must next determine whether the offenses were in fact committed by a single act,

performed with a single state of mind. Id. at ¶ 49, quoting State v. Brown, 119 Ohio

St.3d 447, 895 N.E.2d 149, 2008–Ohio–4569, ¶ 50 (Lanzinger, J., concurring in

judgment only). If so, the offenses are allied offenses of similar import and must be

merged. Johnson at ¶ 50. On the other hand, if the offenses are committed separately

or with a separate animus, the offenses will not merge. Id. at ¶ 51.
Delaware County, Case No. 13 CAA 10 0072                                                 6


      {¶20} Under Justice Brown's plurality opinion in Johnson, “the court need not

perform any hypothetical or abstract comparison of the offenses at issue in order to

conclude that the offenses are subject to merger.” Id. at ¶ 47, 128 Ohio St.3d 153, 942

N.E.2d 1061. Rather, the court simply must ask whether the defendant committed the

offenses by the same conduct. Id.

      {¶21} Upon review of the trial testimony and the record evidence, we find the

trial court did not err in not merging counts three and six herein. Count three involved

the commission of a separate act of kidnapping committed with a separate animus.

Appellant kidnapped S.S. at knifepoint in the upstairs closet for the purpose of

committing the rape of A.C. Following the completion of the rape offense, Appellant told

S.S. to come out of the closet. He later ordered him, with the use of a knife to sit on the

couch while he disposed of the evidence of the rape offense, a separate offense. We

find Appellant did so with a separate animus; i.e., to facilitate the disposal of the

evidence regarding the rape of A.C. (tampering with evidence).          We find the two

charges involve separate conduct and were committed with separate animus. The trial

court did not err in denying Appellant's request to merge the subject convictions for

purposes of sentencing.

      {¶22} Appellant's sole assignment of error is overruled.
Delaware County, Case No. 13 CAA 10 0072                                        7


      {¶23} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur
