[Cite as State v. Owens, 2014-Ohio-1394.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                       C.A. No.       26837

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
DEVON OWENS                                         COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 10 06 1740

                                 DECISION AND JOURNAL ENTRY

Dated: March 31, 2014



MOORE, Presiding Judge.

        {¶1}    Defendant-Appellant, Devon D. Owens, appeals from the February 20, 2013

judgment entry of the Summit County Court of Common Pleas. We affirm.

                                               I.

        {¶2}    In State v. Owens, 9th Dist. Summit No. 25872, 2012-Ohio-3667, ¶ 2-4, this

Court summarized the facts and procedural history of this matter as follow:


        Seventy-three-year-old C.W. died as a result of manual strangulation in
        connection with a sexual assault. Her granddaughter and her granddaughter’s
        boyfriend discovered her body and found the perpetrator sitting on C.W.’s bed in
        a state of partial undress. The perpetrator fled through a bedroom window and
        disappeared. A citizen’s tip in response to a composite sketch led police to Mr.
        Owens, who was arrested when a DNA sample that he provided was consistent
        with samples obtained from the crime scene.

        Mr. Owens was charged with aggravated murder in violation of R.C. 2903.01(B),
        with a death penalty specification, two counts of rape in violation of R.C.
        2907.02(A)(2), and one count of aggravated burglary in violation of R.C.
        2911.11(A)(1). A jury found him guilty of all of the charges. When the jury
        informed the trial court that it had concluded its deliberations and reached a
        verdict, one juror told the bailiff that she had received several calls from an
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        inmate at the Summit County Jail. The bailiff noted her phone number, but did not
        inform the trial court until after the verdict had been announced in court. Without
        communicating with the attorneys, the trial court asked a deputy sheriff to
        investigate the matter. From the results of the investigation, the trial court
        concluded that the calls had no connection to the trial. The court informed the
        attorneys of the incident shortly before the beginning of the penalty phase. At that
        point, with input from counsel, the trial court individually questioned the jurors
        about their deliberations in light of the phone calls. The trial court concluded that
        the jury’s deliberations were not affected and denied Mr. Owens’ motion for a
        new trial.

        The case proceeded to the penalty phase, and the jury found that the aggravating
        factors supporting imposition of the death penalty did not outweigh the factors
        that mitigated against it. The trial court sentenced Mr. Owens to life in prison
        without the possibility of parole with respect to the aggravated murder conviction
        and to ten-year prison terms for each of the three other convictions. Mr. Owens
        appealed.

        {¶3}   In his direct appeal, Mr. Owens raised several issues, including whether his

offenses should merge pursuant to the Supreme Court of Ohio’s decision in State v. Johnson, 128

Ohio St.3d 153, 2010-Ohio-6314. We affirmed as to all other issues, but reversed and remanded

for the trial court to consider whether the offenses should merge pursuant to Johnson. Owens at

¶ 19.

        {¶4}   Upon remand, the trial court held a Johnson hearing and determined that: “the 1st

degree felony offenses [] do not merge with each other, nor do they merge with the Special

Felony offense. These offenses remain separate and distinct and the earlier sentence imposed by

this [c]ourt by journal entry on March 10, 2011, are correct and remain in full force and effect.”

        {¶5}   Mr. Owens appealed, and raises one assignment of error for our consideration.

                                                 II.

                                  ASSIGNMENT OF ERROR

        THE COURT BELOW ABUSED ITS DISCRETION BY RULING THE
        COUNTS DID NOT MERGE.
                                                3


       {¶6}    In his sole assignment of error, Mr. Owens specifically argues that, pursuant to

Johnson, (1) his convictions for rape should merge with his conviction for aggravated murder,

(2) his convictions for rape should merge with his conviction for aggravated burglary, and (3) his

conviction for aggravated murder should merge with his conviction for aggravated burglary.

       {¶7}    We review a trial court’s merger determination de novo. See State v. Williams,

134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1.

       {¶8}    Ohio’s allied offense statute 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.

R.C. 2941.25. “Thus, two or more offenses arising from the same conduct and similar import only

may result in one conviction.” State v. Linde, 9th Dist. Summit No. 26714, 2013-Ohio-3503, ¶ 12,

citing R.C. 2941.25(A). “Two or more offenses may result in multiple convictions, however, if:

(1) they are offenses of dissimilar import; (2) they are separately committed; or (3) the defendant

possesses a separate animus as to each.” Linde at ¶ 12, citing R.C. 2941.25(B).

      {¶9}     “When determining whether two offenses are allied offenses of similar import

subject to merge under R.C. 2941.25, the conduct of the accused must be considered.” Johnson,

2010-Ohio-6314, at syllabus. A plurality of the Ohio Supreme Court set forth a two-part test to

analyze whether two offenses are allied offenses of similar import. First, one must determine

whether the offenses at issue could be committed by the same conduct. Id. at ¶ 47. One does so

by asking “whether it is possible to commit one offense and commit the other with the same
                                                  4


conduct, not whether it is possible to commit one without committing the other.” (Emphasis sic.)

Id. at ¶ 48. See also id. at ¶ 66 (O’Connor, J., concurring.) (offenses are allied “when their

elements align to such a degree that commission of one offense would probably result in the

commission of the other offense”). Second, one must ask whether the offenses actually 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, ¶ 50 (Lanzinger,

J., concurring). If the answer to both inquiries is yes, the offenses will merge. Johnson at ¶ 50.

Using the Johnson analysis, we will consider each count discussed above.

Rape and Aggravated Murder

       {¶10} The elements of rape, as provided in R.C. 2907.02(A)(2), are “[n]o person shall

engage in sexual conduct with another when the offender purposely compels the other person to

submit by force or threat of force.” The elements of aggravated murder, as provided in R.C.

2903.01(B), are “[n]o person shall purposely cause the death of another * * * while committing *

* *, or while fleeing immediately after committing * * * rape[.]”

       {¶11} The first prong of Johnson, as explained above, requires us to determine whether

rape and aggravated murder could be committed by the same conduct. While the elements of

these two offenses do not align such that commission of one probably results in the commission

of the other, it is possible to commit the two offenses with the same conduct. For example, one

hypothetical scenario would be where rape was committed using a sharp object, which, in turn,

created internal injuries, causing the victim to bleed to death.

       {¶12} Assuming then, for purposes of this analysis, that it is possible to commit rape and

aggravated murder with the same conduct, we now look to the second prong of Johnson, i.e.
                                                  5


whether the evidence supports that Mr. Owens actually committed these crimes with the same

conduct or animus.

       {¶13} Dr. Lisa Kohler, chief medical examiner in Summit County, testified that C.W.

died as a result of asphyxia due to strangulation, and that, prior to death, she was vaginally and

anally raped. There is no evidence in the record suggesting that the acts of rape, as horrendous

as they were, contributed to the death of C.W. The acts of rape occurred in different anatomical

locations on C.W.’s body from where the act which caused her death (i.e. strangulation)

occurred. Also, on cross examination, Dr. Kohler could not specify the time interval between the

rapes and murder, whether five minutes or a half-hour. Nor could she say that the rapes and

murder happened at the same time. Further, Mr. Michael Carson, C.W.’s granddaughter’s

boyfriend, testified that when he entered C.W.’s apartment, he saw Mr. Owens sitting partially

undressed on her bed, and Mr. Owen’s stated that he was C.W.’s “boyfriend.”

       {¶14} The record reflects that the State presented evidence at trial that Mr. Owens

committed the crimes of rape first, and then the crime of aggravated murder. The crimes were

committed with separate conduct and with a separate animus. Mr. Owens committed the rapes

when he vaginally penetrated C.W. with his penis, and inserted a butter knife covered with a

towel into her anus. Mr. Owens committed aggravated murder when he manually strangled

C.W. Further, Mr. Owens’ statement that he was C.W.’s “boyfriend” could strengthen the

position that the rapes and murder occurred with a separate animus: he raped C.W. for sexual

gratification, and then strangled her to cover up the rapes.1


1
  In his argument on appeal, Mr. Owens primarily focuses upon the trial court’s alleged
misapplication of State v. Metcalf, 2d Dist. Montgomery No. 24338, 2012-Ohio-6045, which
contains numerous factual differences from this matter. We note that Metcalf is a Second District
case and is, therefore, not binding in this district.
                                                   6


       {¶15} Mr. Owens also argues that because the language in the indictment states that “the

Aggravated Murder was committed while [Mr. Owens] was committing, attempting to commit,

or fleeing immediately after committing or attempting to commit Rape, and/or Aggravated

Burglary,” his convictions for aggravated murder, aggravated burglary, and rape should

automatically merge. (Emphasis added.) However, the plain language of the indictment states

that the murder could have occurred when Mr. Owens was “fleeing immediately after

committing * * * Rape, and/or Aggravated Burglary.” This language clearly creates the option

that Mr. Owens strangled C.W. after raping her, which, in and of itself, constitutes separate

conduct.

       {¶16} Accordingly, pursuant to the second prong of Johnson, these crimes do not merge.

Rape and Aggravated Burglary

       {¶17} The elements of rape, as provided in R.C. 2907.02(A)(2), are “[n]o person shall

engage in sexual conduct with another when the offender purposely compels the other person to

submit by force or threat of force.” The elements of aggravated burglary, as provided in R.C.

2911.11(A)(1), are “[n]o person, by force, stealth, or deception, shall trespass in an occupied

structure or in a separately secured or separately occupied portion of an occupied structure, when

another person other than an accomplice of the offender is present, with purpose to commit in the

structure or in the separately secured or separately occupied portion of the structure any criminal

offense, if any of the following apply: (1) [t]he offender inflicts, or attempts or threatens to inflict

physical harm on another[.]” (Emphasis added.)

       {¶18} “[C]ourts have determined ‘it is possible to commit rape under R.C.

2907.02(A)(2) and aggravated burglary under R.C. 2911.11(A)(1) with the same conduct.’” State

v. Bryant, 10th Dist. Franklin No. 12AP-703, 2013-Ohio-5105, ¶ 17, quoting State v. Nguyen,
                                                7


4th Dist. No. 12CA14, 2013-Ohio-3170, 2013 WL 3816605, ¶ 108. “The force or threat of force

used to commit the rape could satisfy the requirement for aggravated burglary that the offender

‘inflicts, or attempts or threatens to inflict physical harm on another.” Nguyen at ¶ 108, quoting

R.C. 2911.11(A)(1). “However, even though the offenses are of similar import, a defendant ‘can

be sentenced for both if he committed the crimes separately or with a separate animus.’” Bryant

at ¶ 17, quoting Nguyen at ¶ 108.

       {¶19} Assuming then, for purposes of this analysis, that it is possible to commit rape and

aggravated burglary with the same conduct, we now look to the second prong of Johnson, i.e.

whether the evidence supports the contention that Mr. Owens actually committed these crimes

with the same conduct or animus.

       {¶20} The evidence in the record indicates that a struggle ensued between Mr. Owens

and C.W. when he entered her apartment on May 28, 2010. Anna Romito, a crime scene

detective, testified that (1) C.W.’s oxygen tank was found at the front door with its tubing

running down the hall to the bedroom where her body was found, (2) C.W.’s overturned slippers

were found next to a pair of sunglasses mid-way down the hall on the floor, and (3) C.W.’s body

was found in a bedroom at the end of the hall. As previously stated, the evidence also supports

that C.W. was vaginally and anally raped prior to her death.

       {¶21} Based upon the record before us, the State presented evidence at trial

demonstrating that Mr. Owens committed the crimes of rape and aggravated burglary with

separate conduct and with a separate animus. There was evidence that Mr. Owens committed

aggravated burglary when he entered C.W.’s apartment and attacked her, causing C.W. to leave

her oxygen tank at the front door and to lose her slippers mid-way down the hall. The rapes

occurred subsequent to this attack in the bedroom and prior to C.W.’s death.
                                                  8


         {¶22} Accordingly, pursuant to the second prong of Johnson, these crimes do not

merge.

Aggravated Burglary and Aggravated Murder

         {¶23} The elements of aggravated burglary, as provided in R.C. 2911.11(A)(1), are

“[n]o person, by force, stealth, or deception, shall trespass in an occupied structure or in a

separately secured or separately occupied portion of an occupied structure, when another person

other than an accomplice of the offender is present, with purpose to commit in the structure or in

the separately secured or separately occupied portion of the structure any criminal offense, if any

of the following apply: (1) [t]he offender inflicts, or attempts or threatens to inflict physical harm

on another[.]” The elements of aggravated murder, as provided in R.C. 2903.01(B), are “[n]o

person shall purposely cause the death of another * * * while committing * * *, or while fleeing

immediately after committing * * * rape[.]

         {¶24} Inasmuch as the conduct of committing aggravated murder can satisfy an element

of aggravated burglary, i.e. “[t]he offender inflicts, or attempts or threatens to inflict physical

harm on another,” we conclude that the two offenses could be committed with the same conduct.

R.C. 2911.11(A)(1). See State v. Walker, 8th Dist. No. 97648, 2012-Ohio-4274, ¶ 93-94, (“The

question we must answer under the first [] [prong] in Johnson is whether it is possible to commit

aggravated burglary, aggravated robbery, and felony murder with the same conduct. We find that

it is. If a defendant enters someone’s home, without privilege to do so and another person is

present, with the intent to steal property, and the defendant has a gun on his or her person, and

brandishes or uses it, that conduct could also result in the commission of a felony murder if a

person dies as a result of the defendant’s conduct.”). (Emphasis added.)
                                                 9


       {¶25} Assuming then, for purposes of this analysis, that the crimes of aggravated

burglary and aggravated murder could be committed with the same conduct to satisfy the first

prong of Johnson, the evidence in the record still dictates that Mr. Owens committed these

crimes with separate conduct and a separate animus. As stated above, Mr. Owens committed the

crime of aggravated burglary when he entered C.W.’s apartment, attacked her at the front door,

and continued struggling down the hallway. Mr. Owens committed the crime of aggravated

murder by manually strangling C.W. to death after he finished raping her.

       {¶26} Accordingly, pursuant to the second prong of Johnson, these crimes do not merge.

       {¶27} Therefore, based upon the record before us, we cannot say that the trial court

erred in finding that Mr. Owens’ convictions for aggravated murder, aggravated burglary, and

rape should not merge.

       {¶28} Mr. Owens’ assignment of error is overruled.

                                                III.

       {¶29} In overruling Mr. Owens’ sole assignment of error, the judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                10


period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT



HENSAL, J.
BELFANCE, J.
CONCUR.


APPEARANCES:

KIRK A. MIGDAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
