[Cite as State v. Hall, 2018-Ohio-619.]




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


State of Ohio                                    Court of Appeals No. L-17-1069

        Appellee                                 Trial Court No. CR0201601318

v.

Kenneth Hall                                     DECISION AND JUDGMENT

        Appellant                                Decided: February 16, 2018

                                          *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and Andrew J.
        Lastra, Assistant Prosecuting Attorney, for appellee.

        Brad F. Hubbell, for appellant.

                                          *****

        MAYLE, P.J.

        {¶ 1} Defendant-appellant, Kenneth Hall, appeals the July 28, 2016 judgment of

the Lucas County Court of Common Pleas, convicting him of two counts of rape and

sentencing him to consecutive prison terms of 15 years to life on each count. For the

reasons that follow, we affirm the trial court judgment.
                                       I. Background

       {¶ 2} Kenneth Hall was indicted on February 18, 2016, on two counts of rape of a

child less than ten years of age, violations of R.C. 2907.02(A)(1)(b) and (B); two counts

of pandering sexually-oriented matter involving a minor, violations of R.C.

2907.322(A)(5) and (C); and two counts of gross sexual imposition of a child less than 12

years of age, violations of R.C. 2907.05(B) and (C)(2). These charges stemmed from

Hall’s sexual abuse of his then-five-year-old daughter. Hall entered a plea of guilty to

both counts of rape, and the trial court sentenced him to 15 years to life in prison on each

count, to be served consecutively. The remaining counts of the indictment were

dismissed. Hall appealed and assigns the following error for our review:

       {¶ 3} The trial court acted contrary to law in not merging the two counts of rape.

                                   II. Law and Analysis

       {¶ 4} Hall argues that the two counts of rape to which he pled guilty should have

merged for purposes of sentencing because “[t]he two counts are identical.” He insists

that they relate to the same time period, did not involve a separate and distinct animus,

and relate to the same victim. He claims that where there has been a guilty plea to allied

offenses of similar import, the court must conduct a hearing to determine whether the

counts merge for purposes of conviction and sentence.

       {¶ 5} The state contends that Hall failed to raise this issue at trial, therefore, he has

forfeited all but plain error. It asserts that details emerged at the sentencing hearing

describing vaginal, anal, and digital rape, penetration with sex toys, forced performance



2.
of fellatio and cunnilingus, and other forms of sexual assault. It insists that while the

indictment identifies a one-year date range during which the offenses were committed—

instead of identifying specific dates for each offense—the record demonstrates that Hall

committed multiple offenses over a period of a year, therefore, justifying multiple

sentences.

       {¶ 6} The Double Jeopardy Clause of the Fifth Amendment to the U.S.

Constitution, applicable to the state through the Fourteenth Amendment, provides that no

person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10. The Double

Jeopardy Clause protects against a number of abuses. Id. Pertinent to this case is the

protection against multiple punishments for the same offense. Id. To that end, the

General Assembly enacted R.C. 2941.25, which directs when multiple punishments may

be imposed. Id. It prohibits multiple convictions for allied offenses of similar import

arising out of the same conduct:

              (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



3.
       as to each, the indictment or information may contain counts for all such

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

       {¶ 7} In Ruff, 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. It 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.

       {¶ 8} In State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶

3, the Ohio Supreme Court held that a defendant who fails to raise the issue of allied

offenses of similar import in the trial court forfeits all but plain error. The court

explained that “[f]orfeited error is not reversible error unless it affected the outcome of

the proceeding and reversal is necessary to correct a manifest miscarriage of justice.” Id.

It made clear that 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




4.
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.

       {¶ 9} At Hall’s sentencing hearing, the victim’s mother made a statement to the

court describing multiple acts committed by Hall against her daughter. She described

instances of vaginal, anal, digital, and oral rape, and penetration of her daughter’s vagina

with sex toys. She indicated that Hall admitted to her that the abuse occurred over a

period of a year. Hall did not dispute these facts at sentencing, and he does not challenge

them in his merit brief on appeal. Hall also admitted during his presentence investigation

(“PSI”) that he raped his daughter and inserted his penis and finger into her private areas

“twice over a period of a year.”

       {¶ 10} The law in Ohio is clear that multiple separate and distinct acts of

penetration will support multiple convictions and sentences, and oral, anal, and vaginal

rapes constitute separate and distinct acts. State v. Hernandez, 12th Dist. Warren No.

CA2010-10-098, 2011-Ohio-3765, ¶ 48; State v. Pippin, 1st Dist. Hamilton Nos. C-

160380, C-160381, 2017-Ohio-6970, ¶ 49. So whether Hall raped his daughter on only

two occasions over a one-year period, as he indicated in the PSI, or whether, for instance,

he penetrated her both anally and vaginally on one occasion, two separate and distinct

rapes were committed and two sentences were properly imposed.

       {¶ 11} It is also clear that no formal hearing is required, and the entire record—

including the PSI and arguments and information presented at the sentencing hearing—



5.
may be considered in determining whether to merge multiple offenses at sentencing. See

State v. Snyder, 9th Dist. Summit No. 28109, 2016-Ohio-7881, ¶ 8, 10; State v. Barnard,

11th Dist. Ashtabula Nos. 2016-A-0010, 2016-A-0011, 2016-Ohio-7842, ¶ 38. Thus, the

statement offered by the victim’s mother and the information provided in the PSI may be

considered in a merger analysis.

       {¶ 12} Here, while the trial court did not expressly consider whether Hall’s

convictions were for allied offenses of similar import, a review of the record makes clear

that they were not. Hall has failed to demonstrate a reasonable probability otherwise,

therefore, he has failed to show that the trial court committed plain error by failing to

inquire whether his convictions must merge for purposes of sentencing. Accordingly, we

find his sole assignment of error not well-taken.

                                      III. Conclusion

       {¶ 13} Because Hall has failed in his burden to demonstrate a reasonable

probability that his convictions were for allied offenses of similar import, we find his sole

assignment of error not well-taken. We affirm the July 28, 2016 judgment of the Lucas

County Court of Common Pleas. Hall is ordered to pay the costs of this appeal under

App.R. 24.

                                                                        Judgment affirmed.




6.
                                                                             L-17-1069
                                                                             State v. Hall




       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.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




7.
