[Cite as State v. Adams, 2014-Ohio-1809.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :

v.                                                 :                    No. 13AP-783
                                                                    (C.P.C. No. 12CR-03-1113)
Joseph M. Adams,                                   :
                                                                   (REGULAR CALENDAR)
                 Defendant-Appellant.              :



                                            D E C I S I O N

                                      Rendered on April 29, 2014


                 Ron O'Brien, Prosecuting Attorney, and Valerie B. Swanson,
                 for appellee.

                 Thomas Charlesworth, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

CONNOR, J.
        {¶ 1} Defendant-appellant, Joseph M. Adams, appeals from a judgment of the
Franklin County Court of Common Pleas, convicting him of two counts of rape and
sentencing him to 18 years in prison. For the reasons that follow, we affirm.
I. Facts and Procedural History
        {¶ 2} On July 15, 2013, appellant pleaded guilty to two counts of rape in violation
of R.C. 2907.02. The prosecutor set forth the basic facts of this case at appellant's plea
hearing. According to the prosecutor, appellant briefly dated the victim's mother, A.B., in
November 2011. While A.B. was out of town, appellant entered A.B.'s premises when her
12-year-old daughter, M.T., was home alone. Appellant proceeded to sexually assault M.T.
No. 13AP-783                                                                               2


by use of force. During the assault, appellant penetrated M.T. digitally and then subjected
her to vaginal intercourse.
       {¶ 3} On March 1, 2012, a Franklin County Grand Jury issued a three-count
indictment against appellant. Count 1 and 2 of the indictment charged appellant with rape
of a victim less than 13 years of age in violation of R.C. 2907.02; Count 3 of the indictment
charged appellant with gross sexual imposition in violation of R.C. 2907.05, also upon a
victim of less than 13 years of age. Appellant initially entered a plea of not guilty.
However, as a result of a plea hearing held on July 15, 2013, appellant pleaded guilty to
two counts of rape and, in return, plaintiff-appellee, State of Ohio ("State"), dropped the
charge of gross sexual imposition and the specifications that the victim was less than 13
years of age.
       {¶ 4} At a sentencing hearing held on August 15, 2013, appellant's counsel argued
that the two rape convictions merged for sentencing purposes inasmuch as both crimes
arose from a single incident. Counsel also argued that appellant was entitled to leniency
given the fact that appellant had been the victim of rape as a child. The trial court found
that the two rape convictions did not merge for purposes of sentencing and imposed a
nine-year prison term for each rape conviction. The trial court ordered appellant to serve
the two sentences consecutively, for a total prison term of eighteen years. Appellant's
counsel objected to the consecutive sentence.
II. Assignments of Error
       {¶ 5} Appellant timely appealed to this court asserting the following assignments
of error:
                I. The lower court erred in failing to merge Appellant's
                conviction for two counts of Rape at sentencing in violation of
                R.C. § 2941.25(A) because the counts arose out of the same
                acts and incident and were not separate acts.

                II. The Trial court's sentence was contrary to law in violation
                of R.C. § 2953.08(A)(4) when it imposed consecutive
                sentences relative to two counts of Rape without making the
                findings required by R.C. 2929.14(C)(4).
No. 13AP-783                                                                                3


III. Standard of Review
        {¶ 6} With respect to the trial court's failure to merge appellant's rape
convictions, appellant has waived all but plain error by failing to object at the sentencing
hearing. State v. Taylor, 10th Dist. No. 10AP-939, 2011-Ohio-3162, ¶ 34. Nevertheless,
the Supreme Court of Ohio has held that a trial court commits plain error when it imposes
multiple sentences for allied offenses of similar import. State v. Underwood, 124 Ohio
St.3d 365, 2010-Ohio-1, ¶ 31. Accordingly, we will employ a de novo standard in reviewing
the trial court's determination that R.C. 2941.25 does not require merger of appellant's
multiple convictions. State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 47,
citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1.
        {¶ 7} With respect to the imposition of consecutive sentences, we have
consistently determined " 'that when the record demonstrates that the trial court failed to
make the findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences
on multiple offenses, "appellant's sentence is contrary to law and constitutes plain error." '
" State v. F.R., 10th Dist. No. 13AP-525, 2014-Ohio-799, quoting State v. Wilson, 10th
Dist. No. 12AP-551, 2013-Ohio-1520, ¶ 18. When the trial court makes the required
findings, an appellate court may overturn the imposition of consecutive sentences only if
it finds, clearly and convincingly, that the record does not support the sentencing court's
findings, or that the sentence is otherwise contrary to law. State v. Young, 8th Dist. No.
99752, 2014-Ohio-1055, ¶ 19, citing State v. Venes, 8th Dist. No. 98682, 2013-Ohio-1891,
¶ 10.
IV. Legal Analysis
        1. Merger
{¶ 8} Pursuant to R.C. 2941.25(A), where defendant's conduct " '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.' " Roush at ¶ 66, quoting R.C. 2941.25(A). Where, however, " 'the defendant's
conduct constitutes two or more offenses of dissimilar import' or 'results in two or more
offenses of the same or similar kind committed separately or with a separate animus as to
No. 13AP-783                                                                                          4


each, the indictment or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.' " Id., quoting R.C. 2941.25(B).
{¶ 9} The analysis adopted by the Supreme Court of Ohio in State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, requires a court to ask whether "multiple offenses can be
committed by the same conduct" and "whether the offenses were committed by the same
conduct, i.e., 'a single act, committed with a single state of mind.' " Id. at ¶ 49, quoting
State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50. If the answer to both
questions is yes, the court must merge the allied offenses prior to sentencing. Id.
"Conversely, if the court determines that the commission of one offense will never result
in the commission of the other, or 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." (Emphasis sic.) Johnson at ¶ 51.
        {¶ 10} In State v. Accorinti, 12th Dist. No. CA2012-10-205, 2013-Ohio-4429,
defendant forced a 12-year-old girl to engage in a variety of sex acts with him against her
will, including digital penetration and vaginal intercourse. Defendant pleaded guilty to
two counts of rape and one count of kidnapping. The trial court merged the kidnapping
offense with the rape convictions but convicted defendant of both counts of rape. The trial
court sentenced defendant to a consecutive term of 20 years to life.
        {¶ 11} In affirming the convictions, the court of appeals noted that, "[s]ince the
issuance of Johnson, several courts, including this one, have continued to follow the well-
established principle that 'different forms of forcible penetration constitute separate acts
of rape for which a defendant may be separately punished.' " Id. at ¶ 13, quoting State v.
Daniels, 9th Dist. No. 26406, 2013-Ohio-358, ¶ 9.1 The court held that, "[b]ecause the two
rape offenses were committed through separate sexual activity, something which
[defendant] readily admits, the trial court did not err in failing to merge these charges for
sentencing purposes." Id. at ¶ 16. See also State v. Strong, 1st Dist. No. C-100484, 2011-
Ohio-4947, ¶ 71 (Two counts of rape were committed separately and should not be
merged for sentencing purposes where each rape involved a different type of sexual

1 See also State v. Cuthbert, 5th Dist. No. 11 CAA070065, 2012-Ohio-4472, ¶ 50-51; State v. Trotter, 8th

Dist. No. 97064, 2012-Ohio-2760, ¶ 45; State v. Davic, 10th Dist. No. 11AP-555, 2012-Ohio-952, ¶ 16.
No. 13AP-783                                                                               5


activity with the victim, vaginal intercourse and digital penetration.); State v.
Drummonds, 1st Dist. No. C-110011, 2011-Ohio-5915, ¶ 7-9 (Trial court did not err by
refusing to merge a conviction for rape involving digital penetration and a conviction for
rape involving cunnilingus).
       {¶ 12} The logic of the Accorinti decision applies with equal weight to the facts of
this case. While appellant committed both digital penetration and vaginal intercourse
during a single assault upon his victim, the two convictions do not merge for sentencing
purposes because the rapes involved different types of sexual activity. The two sexual acts
are separate and they were committed with a separate animus for each. Accordingly, we
hold that the trial court did not err in failing to merge the two convictions for purposes of
sentencing. Appellant's first assignment of error is overruled.
       2. Consecutive Sentences
       {¶ 13} Appellant acknowledged at his plea hearing that he was facing a maximum
consecutive sentence of 22 years in prison and a $40,000 fine. The trial court imposed a
consecutive sentence of 18 years without "any additional fine or court costs." (Tr. 29.) In
his second assignment of error, appellant contends that the trial court erred in imposing a
consecutive sentence.
       {¶ 14} Under R.C. 2929.14(C)(4), as amended in 2011 H.B. No. 86, a court
imposing a consecutive sentence must make certain findings. State v. Bailey, 10th Dist.
No. 12AP-699, 2013-Ohio-3596, ¶ 43. However, R.C. 2929.19(B)(2) was not reenacted in
H.B. No. 86, which means that a trial court is no longer required to provide reasons for
imposing a consecutive sentence. See State v. Frasca, 11th Dist. No. 2011-T-0108, 2012-
Ohio-3746, ¶ 57; State v. Power, 7th Dist. No. 12 CO 14, 2013-Ohio-4254.
       {¶ 15} Pursuant to amended R.C. 2929.14(C)(4), in order to impose a consecutive
sentence, the trial court is required to make at least three distinct findings: (1) that
consecutive sentences are necessary to protect the public from future crime or to punish
the offender; (2) 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 (3) that one
of the subsections (a), (b) or (c) applies. Bailey at ¶ 43. The relevant subsection in this
case is R.C. 2929.14(C)(4)(c), which states: "The offender's history of criminal conduct
No. 13AP-783                                                                               6


demonstrates that consecutive sentences are necessary to protect the public from future
crime by the offender."
       {¶ 16} The trial court made the following findings when it imposed a consecutive
sentence:
               Mr. Adams, the Court has considered the principals and
               purposes of sentencing in this matter as well as the relevant
               seriousness and recidivism factors. I don't think, you know,
               it's lost on anybody the seriousness of this offense and the
               impact that it's had on the victim in this case. And I imagine
               it's not lost on you given your own family history.

               I am going to sentence you in this matter to a term of nine
               years for each count. I am finding that these are separate acts,
               and I am going to order that you serve those terms
               consecutively. So it's going to be a total term of 18 years in
               prison. I also find that the consecutive sentences are
               necessary to punish the defendant and protect the public from
               future crime and does not discredit the conduct or danger
               imposed by the defendant, and that the defendant's history
               demonstrates consecutive sentences are necessary to protect
               the public in this case.

(Tr. 28-29.)

       {¶ 17} The State contends that the record clearly shows that the trial court made
the required findings before imposing a consecutive sentence. Appellant concedes that the
trial court made the first of the three required findings, but he claims that the trial court
failed to make the second and third required finding.
       {¶ 18} "In order to satisfy the statutory requirement of making the specific
findings, the record must reflect that the trial court engaged in the analysis called for by
the statute and selected the appropriate statutory criteria." State v. Wilkerson, 3d Dist.
No. 8-13-06, 2014-Ohio-980, ¶ 14, citing State v. Spencer, 8th Dist. No. 99729, 2014-
Ohio-204. Accordingly, the real question in this appeal is whether it is clear from the
record that the trial court engaged in the appropriate analysis. Power at ¶ 40. See also
State v. Murrin, 8th Dist. No. 83714, 2004-Ohio-3962, ¶ 12; State v. Bratton, 6th Dist.
No. L-12-1219, 2013-Ohio-3293, ¶ 17; Wilkerson at ¶ 14; State v. Baker, 5th Dist. No.
No. 13AP-783                                                                                 7


2013CA0001, 2013-Ohio-2891, ¶ 14. In answering that question, we note that the trial
court is not required to recite any "magic" or "talismanic" words when imposing
consecutive sentences. State v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735,
citing State v. Farnsworth, 7th Dist. No. 12 CO 10, 2013-Ohio-1275. While "[r]ote
recitation is preferred to avoid * * * linguistic arguments on appeal, * * * it is not required
of a trial court; synonymous words and phrasing can fulfill a court's obligation with
regards to sentencing findings." Power at ¶ 44. Indeed, courts of appeals have upheld the
imposition of consecutive sentences where the sentencing court employed "conceptually
equivalent phraseology" in making the required findings. Id. at ¶ 45, citing State v.
Lenigar, 10th Dist. No. 03AP-53, 2003-Ohio-5493, ¶ 15.
       {¶ 19} Appellant first contends that the trial court failed to find that consecutive
sentences are "not disproportionate to the seriousness of the conduct and the danger to
the public." Id. at ¶ 45. Instead, the trial court found that the imposition of consecutive
sentences "does not discredit the conduct or danger imposed by the defendant." (Tr. 29.)
Appellant argues that the language used by the trial court does not satisfy the statutory
requirement. We disagree.
       {¶ 20} In Power, the issue on appeal was whether the trial court had made the
required finding that consecutive sentences are "not disproportionate to the seriousness
of the conduct and the danger to the public." Id. at ¶ 45. The trial court had not adhered to
the statutory language in imposing a consecutive sentence. The court of appeals made the
following observations when it upheld the consecutive sentence:
              The court characterized appellant's conduct as despicable and
              beyond understanding, stated that concurrent service was
              insufficient to protect the public and that concurrent service
              would fail to reflect the seriousness of the defendant's
              conduct. If concurrent service would not reflect the
              seriousness of the defendant's conduct, then consecutive
              service would not be disproportionate to the conduct. This is
              conceptually equivalent phraseology. * * * The absence of the
              word disproportionate is not per se reversible.

Id. at ¶ 45. (Emphasis added.)
No. 13AP-783                                                                                 8


       {¶ 21} Here, as was the case in Power, the trial court did not employ the precise
statutory language in making its finding. In our opinion, however, the trial court's use of
the phrase "does not discredit the conduct or danger imposed by the defendant" shows
that the trial court employed the required proportionality analysis in imposing a
consecutive sentence. The trial court's remarks reveal that it weighed the severity of a
consecutive sentence against the seriousness of the offenses, the irreparable harm
inflicted on appellant's young victim, and the future risk to the public posed by appellant's
particular criminal conduct. The trial court's phraseology in this case is conceptually
equivalent to the statutory language, even though the trial court eschewed the phrase "not
disproportionate." Id. Contrary to appellant's assertion, the record shows that the trial
court engaged in the appropriate statutory analysis and made the required finding.
       {¶ 22} Appellant next contends that the trial court failed to find that appellant's
history of criminal conduct demonstrates that consecutive sentences are necessary to
protect the public from future crime by the offender. Appellant focuses on trial court's
comment that "defendant's history demonstrates consecutive sentences are necessary to
protect the public in this case." (Tr. 29.) Appellant claims that it is unclear whether the
"history" referred to by the trial court is his "history of criminal conduct," which arguably
supports the imposition of a consecutive sentence; or his family history, which arguably
supports leniency. Our review of the entirety of the court's comments convinces us that
the trial court applied the appropriate analysis and made the required finding, even
though it did not use the precise statutory language.
       {¶ 23} The trial court cited appellant's "family history" in referring to appellant's
consciousness of the harm he caused his young victim and the seriousness of his offense.
However, the trial court made its later reference to appellant's "history" in the context of
its need to impose a consecutive sentence in order to adequately protect the public from
appellant. When read in the proper context, it is clear that the "history" to which the trial
court is referring in the last sentence of its commentary is appellant's "history of criminal
conduct." Indeed, it makes little sense for the trial court to rely on appellant's history as a
victim in support of its decision to impose a lengthier sentence. We prefer to read the trial
No. 13AP-783                                                                               9


court's comments in the proper context.        Accordingly, we find that the trial court
identified the relevant provision of the statute and made the necessary finding.
       {¶ 24} An appellate court will overturn the imposition of a consecutive sentence
only if it finds, clearly and convincingly, that the record does not support the sentencing
court's findings, or the sentence is otherwise contrary to law. Young; Venes. In this case,
the record supports the trial court's findings and the sentence imposed by the trial court is
in accordance with the law. Appellant's second assignment of error is overruled.
V. Conclusion
       {¶ 25} Having overruled each of appellant's assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.
                     O'GRADY and LUPER-SCHUSTER, JJ., concur.
                                 _________________
