[Cite as State v. Triplett, 2018-Ohio-5200.]




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


State of Ohio                                      Court of Appeals No. OT-18-003

        Appellee                                   Trial Court No. 17 CR 100

v.

Reuben Triplett                                    DECISION AND JUDGMENT

        Appellant                                  Decided: December 21, 2018

                                               *****

        James J. VanEerten, Ottawa County Prosecuting Attorney, and
        Barbara Gallé Rivas, Assistant Prosecuting Attorney, for appellee.

        Giovanna V. Bremke, for appellant.

                                               *****

        JENSEN, J.

        {¶ 1} Appellant, Reuben T. Triplett, appeals from the judgment of the Ottawa

County Court of Common Pleas. For the reasons that follow, we affirm.

        {¶ 2} On July 13, 2017, the Ottawa County Grand Jury issued indictments for one

count of aggravated burglary, a violation of R.C. 2911.11(A)(1(B) and a felony of the
first degree, two counts of rape, violations of R.C. 2907.02(A)(1)(c)(B) and felonies of

the first degree, one count of kidnapping, a violation of R.C. 2905.01(A)(4)(C)(1) and a

felony of the first degree, two counts of sexual imposition, violations of R.C.

2907.06(A)(1)(C) and misdemeanors of the third degree, one count of criminal trespass, a

violation of R.C. 2911.21(A)(1)(D)(1) and a misdemeanor of the fourth degree, and

various specifications.

       {¶ 3} On November 30, 2017, pursuant to a plea agreement, appellant entered a

plea of guilty to one count of aggravated burglary and one count of rape. In exchange,

the state dismissed the remaining counts and all specifications. At sentencing, the trial

court imposed an eight-year term of incarceration for aggravated burglary and a ten-year

term of incarceration for rape. The terms were ordered to run consecutively for a total of

18 years of incarceration.

       {¶ 4} Appellant timely appealed and raises two assignments of error for review.

              I. THE COURT ABUSED ITS DISCRETION BY SENTENCING

       APPELLANT TO TWO CONSECUTIVE SENTENCES IN VIOLATION

       OF R.C. 2929.41.

       {¶ 5} In his first assignment of error, appellant alleges that the trial court erred by

sentencing him to consecutive prison sentences.

       {¶ 6} We have previously held that “[o]ur standard of review of a felony sentence

is limited to whether there is clear and convincing evidence in the record to support the

sentencing court’s findings under R.C. 2929.14(C)(4) that consecutive sentences should




2.
be imposed and whether the sentence is contrary to law.” State v. Dorsey, 6th Dist. Lucas

No. L-16-118, 2017-Ohio-138, ¶ 3, citing R.C. 2953.8(G)(2).

       {¶ 7} Prior to imposing consecutive sentences pursuant to R.C. 2929.14(C)(4), a

trial court must find consecutive sentences are “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,” and that one of the circumstances listed in R.C.

2929.14(C)(4)(a), (b), or (c) existed:

              (a) The offender committed one or more of the multiple offenses

       while the offender was awaiting trial or sentencing, was under a sanction

       imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

       Code, or was under post-release control for a prior offense.

              (b) At least two of the multiple offenses were committed as part of

       one or more courses of conduct, and the harm caused by two or more of the

       multiple offenses so committed was so great or unusual that no single

       prison term for any of the offenses committed as part of any of the courses

       of conduct adequately reflects the seriousness of the offender’s conduct.

              (c) The offender’s history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future crime

       by the offender.




3.
      {¶ 8} At the plea hearing, the state indicated that if the matter had gone to trial it

would have proven the elements of rape and aggravated burglary beyond a reasonable

doubt. The state described the evidence against appellant as follows:

              The incident was July 8th, 2017 in Ottawa County, and the law

      enforcement got involved with a call to an incident at the Island Club

      Resort on Put-in-Bay in Ottawa County, that there had been a report of an

      incident.

              And there was a number of police officers responded, and during the

      course of the investigation they were able to determine was that Mr.

      Triplett had recently been employed as a security employee with a security

      company for the Erie Islands Resort, and that was actually his first day of

      work.

              Sometime during the night, he started drinking with some of the

      people in the cabins and some of the people who were there as, on the

      island, not employees of the business. And he had gone into some of the

      cabins or people had complained that he was trying to go into some of the

      cabins.

              His supervisor with the security agency told him to stay at the house

      where the security officers stayed on the island. He left there and went

      about a hundred yards to Unit Number 1 of the Erie Islands Resort. He




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     entered that cabin without permission, going in, went into a room where the

     victim of the assault and her boyfriend were both sleeping in bed.

            And the victim of the assault reports that she was asleep with her

     boyfriend in bed. And the first thing she realized was someone was

     performing oral sex on her. She thought it was her boyfriend. And then

     there was regular vaginal sex. She realized her boyfriend was next to her;

     this was not the person who was having sex with her. She said, “what’s

     going on?” The assailant jumped up and ran out. Her boyfriend ran out

     after him; caught him in just about a hundred yards, and tackled him. And

     then the police were called.

            Mr. Triplett was the person who was caught. He was taken by police

     to the police department that night, early morning, and interviewed. He

     was Mirandized. He said that he didn’t know the woman who he had

     assaulted, did not recognize her.

            She was taken for a sexual assault exam at the hospital; and that kit

     then was analyzed and there was presumptive semen on both the vaginal

     samples, the anal samples, and on the underwear that she wore to the SANE

     exam. And when the DNA was determined from those semen identified,

     Reuben Triplett was identified on the vaginal swab, his DNA rarer than one

     in one trillion. Also on the anal swab, and on the swab from the clothing

     that she wore, Reuben Triplett’s DNA, Your Honor.




5.
       {¶ 9} At the sentencing hearing, the state asserted that pursuant to the presentence

investigation report (“PSI”), “[t]he Defendant is a relatively young man at 24. He does

have a criminal history, although not any convictions for felonies as an adult, he has

misdemeanor convictions as an adult, and has prior juvenile adjudications for serious

offenses that if had been committed as an adult would have been felonies.” A copy of the

PSI is included in the record. It supports the state’s assertions. The appellant reflects no

remorse for his actions in the PSI. Rather, he cites a long history of drug and alcohol

abuse. He explains that he committed this offense because “we were both drunk.” The

Ohio Risk Assessment Score indicates that appellant is a “high” risk for recidivism.

       {¶ 10} Before announcing its sentence, the trial court specifically held that “the

offender’s history of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by the offender.” The trial court further

held that “consecutive sentences are necessary to protect the public from future crime or

punish the offender and consecutive sentences are not disproportionate to the seriousness

of the offender’s conduct and the danger he poses to the public.” The trial court stated:

“at least two of the multiple offenses were committed as part of one or more courses of

conduct and the harm caused by two or more of the multiple offenses so committed was

so great or unusual that no single prison term for any of the offenses committed as part of

any of the courses of conduct adequately reflects the seriousness of the offender’s

conduct.”




6.
       {¶ 11} Upon review, we conclude that the record supports the trial court’s

imposition of consecutive sentences. The offenses were both great and unusual.

Appellant, while working as a security guard, raped a women while she was lying in a

bed next to her boyfriend in a home that she and her friends and family rented for a

vacation. Appellant has a history of criminal conduct dating back to 2010. Accordingly,

we find appellant’s first assignment of error not well-taken.

              II. THE TRIAL COURT ERRED IN FAILING TO MERGE MR.

       TRIPLETT’S SENTENCES FOR BURGLARY AND RAPE AS THEY

       ARE ALLIED OFFENSES OF SIMILAR IMPORT WITHIN THE

       MEANING OF R.C. 2941.25.

       {¶ 12} In his second assignment of error, appellant alleges that the trial court erred

by failing to merge his convictions for aggravated burglary and rape as allied offenses of

similar import under R.C. 2941.25. Appellant failed to object to non-merger at

sentencing, therefore, he forfeited all but plain error review. See State v. Rogers, 143

Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21. Under Crim.R. 52(B), appellate

courts have discretion to correct plain errors.

       {¶ 13} R.C. 2941.25, Ohio’s allied offense statute, 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.




7.
               (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

       to each, the indictment or information may contain counts for all such

       offenses, and the defendant may be convicted of all of them.

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

Supreme Court of Ohio explained that “the same conduct can be separately punished if

that conduct constitutes offenses of dissimilar import.” Id. at ¶ 20, citing R.C.

2941.25(B). Offenses are dissimilar in import “when the defendant’s conduct constitutes

offenses involving separate victims or if the harm that results from each offense is

separate and identifiable.” Ruff at paragraph two of the syllabus. In other words, “When

a defendant’s conduct victimizes more than one person, the harm for each person is

separate and distinct, and therefore, the defendant can be convicted of multiple counts.”

Id. at ¶ 26.

       {¶ 15} Here, the appellant entered a plea of guilty to two of the seven counts set

forth in the indictment. No trial was held. The rape victim gave an impact statement at

sentencing. She explained in her own words what happened to her and her boyfriend on

the night of the attack. She also explained what happened as she began to awake:

               My mind came out of the sleep-lie state, and I realized that

       something was horribly wrong. This monster on top of me immediately




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      exited the room when my boyfriend and I both started coming to our

      senses.

               I sat up and I looked beside me and I exclaimed, “Who the hell was

      that?”

               My boyfriend exited the bedroom and went into the living room. He

      saw a male figure standing in our front yard. And upon eye contact, this

      figure ran into the darkness. My boyfriend caught up to him. The police

      were called and he was taken into custody.

      {¶ 16} In its reply brief, the state argues that appellant victimized two individuals

when he let himself into a cabin full of people, and had nonconsensual sex with a woman

whilst the woman’s boyfriend slept in the same bed. In support of its argument, the state

cites State v. Potts, 3d Dist. Hancock No. 5-16-03, 2016-Ohio-5555. In Potts, the

reviewing court held that an armed intruder victimized a husband and his wife when the

intruder “trespassed by force” into a structure with the purpose of committing felonious

assault on the husband. Id. The wife in Potts was awoken by barking dogs moments

before appellant forced his way into the home. The wife was not a victim of the

attempted felonious assault, but she was victimized by the aggravated burglary because

she was present when the armed intruder forced his way into their home and she

witnessed the intruder’s attempted felonious assault on her husband.

      {¶ 17} Here, appellant pled to one count of rape and one count of aggravated

burglary. There is no dispute the woman is the victim of the rape. Applying Potts, the




9.
woman’s boyfriend is also a victim: he awoke next to a stranger who had entered the

bedroom without permission and with the purpose of having nonconsensual sex with his

girlfriend. As appellant fled, the woman’s boyfriend chased after appellant and tackled

him to the ground outside the cabin.

       {¶ 18} Upon review of the record, we find that the trial court did not commit plain

error in imposing separate sentences for rape and aggravated burglary. The rape victim’s

boyfriend was asleep in the same bed as the victim at the time of the rape. As the rape

victim realized something was “horribly wrong,” her boyfriend awoke and chased

appellant out of the house. In Ruff, the Supreme Court of Ohio reiterated that when a

“defendant’s conduct put more than one individual at risk, that conduct could support

multiple convictions because the offenses were of dissimilar import.” Ruff, 2015-Ohio-

995 at ¶ 23, citing State v. Jones, 18 Ohio St.3d 116, 118, 480 N.E.2d 408.

       {¶ 19} We conclude that even though the conduct constituting one offense—

rape—also serves as the aggravating element of another offense—aggravated

burglary—the rape victim was not the sole individual placed “at risk” or “victimized” by

the appellant’s actions. Under Potts and Ruff, the appellant’s actions victimized the rape

victim’s boyfriend by putting him at risk of harm in the moments after he awoke and

while chasing the appellant out into the night. Appellant has not demonstrated that the

trial court’s failure to inquire as to whether the convictions merged for purposes of

sentencing affected appellant’s substantial rights. See State v. Black, 8th Dist. Cuyahoga




10.
No. 12586, 2016-Ohio-383, ¶22. The offenses to which he entered a plea were of

dissimilar import. Thus, the trial court committed no plain error.

       {¶ 20} While this court does not disagree with the conclusion of the concurring

decision, it believes affirmation is appropriate on the argument submitted by the state as

opposed to an argument not offered—or debated—by either party. Appellant’s second

assignment of error is not well-taken.

       {¶ 21} The judgment of the Ottawa County Court of Common Pleas is affirmed.

Appellant is ordered to pay the costs of this appeal 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.




James D. Jensen, J.                            _______________________________
                                                           JUDGE


Arlene Singer, J.                              _______________________________
CONCURS IN JUDGMENT                                        JUDGE
ONLY AND WRITES SEPARATELY.


Christine E. Mayle, P.J.                       _______________________________
CONCURS IN JUDGMENT ONLY                                   JUDGE
AND CONCURS IN JUDGE
SINGER’S CONCURRENCE.




11.
       SINGER, J.

       {¶ 22} I respectfully concur in judgment only and write separately regarding

appellant’s second assignment of error. The state argues the sentences for the aggravated

burglary and rape convictions should not merge because there were multiple victims.

       {¶ 23} I find it unnecessary to reach this issue as the convictions should not merge

for the reason that there were two separate harms in this case and two separate rapes, oral

and vaginal. The aggravated burglary was completed when the first rape was committed.

The second rape was a separate and identifiable harm. Accord State v. Greely, 6th Dist.

Lucas No. L-16-1161, 2017-Ohio-4469, ¶ 15-16; R.C. 2941.25(B).




           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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