         [Cite as State v. Ruff, 2015-Ohio-3367.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :   APPEAL NOS. C-120533
                                                                    C-120534
        Plaintiff-Appellee,                         :   TRIAL NOS. B-0907091
                                                                   B-1000868
  vs.                                               :
                                                                O P I N I O N.
KENNETH RUFF,                                       :

    Defendant-Appellant.                            :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part,
                           and Cause Remanded.

Date of Judgment Entry on Appeal: August 21, 2015


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curren, Assistant Prosecuting Attorney, for Plaintiff-Appellee,


The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.
                  OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

       {¶1}    Kenneth Ruff broke into the homes of three women and raped

them. For this, he was convicted of three counts of aggravated burglary and

three counts of rape.    On appeal, we found that the aggravated-burglary and

rape offenses were allied offenses for which Ruff could not be separately

convicted, so we vacated those sentences and remanded the cause to the trial

court. The Ohio Supreme Court, however, determined that in applying the

merger statute, we had failed to consider whether the offenses were of similar

import. It remanded the case so that we could consider the similar-import

question.

       {¶2}    Having reviewed the record, we conclude that the offenses were

offenses of similar import. Thus, we vacate the sentences for the aggravated

burglaries and rapes and remand the case to the trial court. In all other respects,

the judgment of the court is affirmed.

                             I. The Issue Before Us

       {¶3}    The facts were set forth in our prior opinion and there is no need

to repeat them in detail here. See State v. Ruff, 1st Dist. Hamilton Nos. C-120533

and C-120534, 2013-Ohio-3234 (“Ruff I”). Important for our purposes is that

Ruff’s aggravated-burglary convictions came under R.C. 2911.11(A)(1).            That

subsection requires that in addition to breaking into an occupied structure with

the intent to commit a criminal offense, “the offender inflict[] or attempt to inflict

physical harm on another.” It is this physical-harm element that elevates the

offense to aggravated burglary.        Absent the physical-harm element—or a




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violation of (A)(2) involving a firearm or dangerous ordnance—the offense would

be simple burglary.

       {¶4}   In the trial court, the state relied solely on the rapes to meet the

physical-harm requirement of the statute. Thus, this case requires us to apply

Ohio’s merger statute, R.C. 2941.25, in a situation where the conduct constituting

one offense also serves as the aggravating element of another offense.

                            II. Our Prior Decision

       {¶5}   In Ruff I, we applied the Supreme Court’s decision in State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The Johnson

case represented a marked break in the manner in which the Supreme Court had

determined whether offenses were of a “similar import.” Prior to Johnson, the

inquiry had focused on an analysis of the statutory elements—an inquiry quite

similar to the one engaged in by federal courts under the Blockburger test. See

State v. Ruff, __ Ohio St.3d __, 2015-Ohio-995, __ N.E.3d __ (French, J.,

dissenting). But in Johnson, the court required that we examine the defendant’s

conduct. Johnson at syllabus.

       {¶6}   We explained in Ruff I that pre-Johnson, it was widely understood

that aggravated burglary was not allied with an offense of violence that occurs

after the defendant has entered the premises. Ruff I at ¶ 30. We observed,

however, that Johnson had changed the analysis:

       [t]his court has understood Johnson to mean that if the evidence

       adduced at trial reveals that the state relied upon the same

       conduct to support the two offenses, and that the offenses had

       been committed neither separately nor with a separate animus as

       to each, then the defendant is afforded the protection of R.C.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



           2941.25, and the trial court errs in imposing separate sentences

           for the offenses.

Id. at ¶ 31. Based on this understanding of Johnson, we concluded that the trial

court should have merged the offenses because the conduct relied upon by the

state to establish rape was the same conduct it relied upon to establish the

“physical harm” component of aggravated burglary.              We thus vacated the

sentences for the aggravated-burglary and rape counts and remanded the case so

that the state could elect which offenses it wanted to pursue for sentence and

conviction. Id. ¶ 33.

                          III. The Supreme Court Decision

           {¶7}   The Supreme Court reversed our decision, concluding that in

determining whether the aggravated-burglary and rape counts as to each victim

should have been merged, we had neglected to consider whether the import of

the offenses was similar. Ruff, __ Ohio St.3d __, 2015-Ohio-995, __ N.E.3d __,

at ¶ 29.

           {¶8}   The court took the opportunity to clarify its ruling in Johnson. In

Johnson, it had held that “[w]hen 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.” Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,

942 N.E.2d 1061, at syllabus.         In Ruff, it explained that that analysis was

incomplete because it did not address the question of whether the offenses were

of dissimilar import. Ruff, __ Ohio St.3d __, 2015-Ohio-995, __ N.E.3d __, at ¶

16. See R.C. 2941.25(B). Thus, the court held that

           [u]nder R.C. 2941.25(B), a defendant whose conduct supports

           multiple offenses may be convicted of all the offenses if any one of



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                  OHIO FIRST DISTRICT COURT OF APPEALS



       the following is true:     (1) the conduct constitutes offenses of

       dissimilar import, (2) the conduct shows that the offenses were

       committed separately, or (3) the conduct shows that the offenses

       were committed with separate animus.

Id. at paragraph three of the syllabus.      Based on its determination that our

analysis of Ruff’s offenses had not taken into account the import of the offenses,

it remanded the case.

                  IV. Are the Offenses of Similar Import?

       {¶9}    The sole issue on remand, then, is whether the offenses of

aggravated-burglary and rape were of similar or dissimilar import. If they were

of dissimilar import, Mr. Ruff could be separately convicted of each offense.

Conversely, if the offenses are of similar import, our earlier conclusion stands,

and the court must merge the offenses.

                      A. The Supreme Court on Import

       {¶10} While not deciding whether the offenses in this case were of

similar import, the Ohio Supreme Court in Ruff did provide some guidance on

how to make the determination.

       {¶11} The state had urged the court to hold that aggravated burglary and

rape must always have dissimilar import. But the court declined to announce “a

bright-line rule” to “govern every situation”:

       Rather than compare the elements of two offenses to determine

       whether they are allied offenses of similar import, the analysis

       must focus on the defendant’s conduct to determine whether one

       or more convictions may result because an offense may be




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                  OHIO FIRST DISTRICT COURT OF APPEALS



        committed in a variety of ways and the offenses committed may

        have different import.

Ruff, __ Ohio St.3d __, 2015-Ohio-995, __ N.E.3d __, at ¶ 30.

        {¶12} Looking to its past decisions to pin down a definition of import,

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. Here, the aggravated-

burglary/rape offenses had one victim each, so we consider whether the harm

that resulted from each offense was separate and identifiable.

                   B. Separate and Identifiable Harms?

        {¶13} We turn now to the harms that resulted from the offenses in the

case. The aggravated-burglary offenses at issue here are somewhat unusual in

that they involve two distinct harms: the intrusion into the sanctity of the home

and the subsequent physical harm (here, the rapes). One harm—the intrusion in

the dwelling—is separate and identifiable from the harm caused by the rape

offenses here, but the other harm—the physical harm—is not separate and

identifiable.

        {¶14} Unfortunately, the court in Ruff did not explicitly say what we

should do in a situation such as this one where one offense involves multiple

harms, and one offense constitutes an aggravating element of the other.

Fortunately, though, it did drop a few breadcrumbs.

        {¶15} The most obvious clue is the court’s rejection of a “categorical

rule” that aggravated burglary and rape are of dissimilar import.        The state

argued in the Supreme Court—as it does here—that rape and aggravated burglary

are of dissimilar import because rape is a sexually oriented offense while burglary



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                    OHIO FIRST DISTRICT COURT OF APPEALS



is about trespass into structures.1 Under this logic, aggravated burglary would

always have a dissimilar import from rape or any other act of violence

constituting the “aggravating factor,” because aggravated burglary always

involves a separately identifiable harm in the intrusion into a dwelling. The court

in Ruff, however, specifically rejected this analysis: it “decline[d] to create an

absolute rule based upon the definition of the offenses.” Ruff, __ Ohio St.3d __,

2015-Ohio-995, __N.E.3d __, at ¶ 26.

        {¶16} If there only needed to be one harm that was separate and

identifiable, then rape and aggravated burglary could never merge because

aggravated burglary will always involve the “separate and identifiable” harm

caused by the intrusion into the dwelling. The same would be true of assault or

any other crime constituting the aggravating element of physical harm for

aggravated burglary. Thus, implicit in its rejection of a categorical rule and

remand to this court is the idea that the offenses are of similar import when the

harm caused by one crime is the same harm that is the aggravating circumstance

of another crime.

        {¶17} The court suggested as much in its discussion of similar import. It

explained that offenses are “not allied offenses of similar import if neither is

incident to the other.” Id. at ¶ 23. It supported this proposition by citing to State

v. Moss, 69 Ohio St.2d 515, 433 N.E.2d 181 (1982), a case the court summarized

with this parenthetical:      “aggravated burglary was not an allied offense of

aggravated murder, because it was not incident to and an element of aggravated




1 The state also repeats arguments it raised in Ruff I about Ruff’s animus and whether the
offenses were separately committed. The issue appealed to the Supreme Court and
remanded to us, however, was limited to the import of the offenses. We therefore do not
address the other issues now raised by the state.


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                  OHIO FIRST DISTRICT COURT OF APPEALS



murder.” Ruff at ¶ 23. In this case, the conduct constituting the rape was an

element of the aggravated burglary. The rape was “incident to and an element

of” aggravated burglary in that but for the conduct constituting the rape, the

offense of aggravated burglary would not have established. Only simple burglary

could have been found.

       {¶18} Thus, we conclude that the most reasonable reading of the

Supreme Court’s decision in Ruff is that where the conduct that constitutes one

offense causes a harm that is not separate and identifiable from the harm caused

by the aggravating element of another offense, then the offenses are of a similar

import.

       {¶19} The element of physical harm for each aggravated burglary was

established by Ruff’s rape of the victim. The harm that resulted from the rape of

each victim was same harm that resulted when each burglary escalated to

aggravated burglary. Thus, the harms were not “separate and identifiable.”

       {¶20} Perhaps anticipating our conclusion, the state argues that for each

aggravated burglary, Ruff caused or threatened injury to the victims beyond the

rapes. The Ohio Supreme Court faced a similar argument in Johnson, when it

considered whether a sequence of blows to a victim could be seen to support

multiple convictions.    The court declined the opportunity to “parse [the

defendant’s] conduct into a blow-by-blow” and concluded that the sequence of

blows was one discrete act. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942

N.E.2d 1061, at ¶ 56.

       {¶21} Here, there was testimony that Ruff had threatened, choked and

hit his victims. But the state used evidence of those acts to establish the force

element for each rape. It relied solely on the rape offenses—and not other



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                  OHIO FIRST DISTRICT COURT OF APPEALS



actions done by Ruff—to establish the injury element of the aggravated

burglaries. During the hearing on the issue of merger, the state did not argue

that other actions by Ruff established the physical-harm element. And it did not

dispute defense counsel’s assertion that the physical harm for the aggravated

burglary was the rape. Rather, the state argued the offenses were committed

separately because the “[b]urglaries would have been committed and completed

upon his entrance into the house.”

       {¶22} The state also has suggested that a decision to merge the

aggravated-burglary and rape offenses under this fact pattern means that a

defendant like Ruff cannot be punished for both the rape and the invasion of the

home. But that is not true at all. There is no reason Ruff could not have been

charged and convicted of both simple burglary and rape. In such a situation, the

convictions would not have merged. See Ruff I, 1st Dist. Hamilton Nos. C-

120533 and C-120534, 2013-Ohio-3234, at ¶ 34. The problem only arises when a

defendant is convicted of both rape and aggravated burglary and the rape is the

aggravating element that transforms burglary to aggravated burglary.

                                 V. Conclusion

       {¶23} Because the harm that resulted from each aggravated burglary

was not separate and identifiable from the harm caused by each rape, we

conclude that the offenses as to each victim were of similar import. And because

the offenses were not committed separately or with separate animus, Mr. Ruff

could not be convicted of both offenses for each victim. We therefore vacate the

sentences for the aggravated-burglary and rape counts relating to P.F., K.B., and

S.W., and remand the case to the trial court so that the state may elect which

allied offense it will pursue for purposes of sentence and conviction. See State v.



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                 OHIO FIRST DISTRICT COURT OF APPEALS



Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraphs one

and two of the syllabus. We affirm the judgment of the trial court in all other

respects.

                                                         Judgment accordingly.
CUNNINGHAM, P.J., concurs
STAUTBERG, J., dissents.

STAUTBERG, J., dissenting.

       {¶24} I respectfully dissent because I do not believe that the rapes and

aggravated burglaries in these cases are offenses of similar import subject to

merger under R.C. 2941.25.

       {¶25} I agree with the majority that the Ohio Supreme Court in Ruff

rejected an “absolute rule based on the definition of the offense” in

determining whether offenses should merge. Ruff, __ Ohio St.3d ___, 2015-

Ohio-995, ___ N.E.3d ___, at ¶ 28. A similar approach was set forth in State

v. Rance 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), and disposed of in State

v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus.

However, the court also rejected the bright-line rule argued by Ruff that

“aggravated burglary, by requiring an element related to physical harm, must

always merge with a violent offense such as rape.” Ruff at ¶ 18.

       {¶26} I believe that the Ohio Supreme Court provided plenty of

guidance concerning the appropriate test for the “import” of offenses in its

syllabus: “Two or more offenses of dissimilar import exist within the meaning

of R.C. 2941.25(B) 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.




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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶27} The syllabus echoes now Chief Justice O’Conner’s concurring

opinion in Johnson that offenses “are of ‘similar import’ when the underlying

conduct involves similar criminal wrongs and similar resulting harm.”

Johnson 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 64.

       {¶28} The Ruff court further explained, “even if Ruff committed the

aggravated burglary and the corresponding rape of each victim with the same

conduct, he could still be convicted of both offenses if the offenses are of

dissimilar significance and have separate and identifiable harm.” Ruff at ¶ 28.

(Emphasis added.)
     {¶29} Here, the “significance” of the two crimes is clearly different.

At the core of an aggravated-burglary offense is burglary. At the end of the

day, this is an offense against the security of an occupied structure. That the

harm caused by a burglary offense is different from an offense against a

person is made evident by the fact that a person can be convicted of only one

count of burglary regardless of the number of occupants at the time of the

offense. See State v. Marriott, 189 Ohio App.3d 98, 2010-Ohio-3115, 937

N.E.2d 614 (2d Dist.).

       {¶30} In regard to aggravated burglary,

        the purpose of R.C. 2911.11(A) is to elevate burglary to an

        aggravated offense when the defendant’s conduct raises the

        risk of harm to persons by having a deadly weapon or by

        threatening or inflicting physical harm. The aggravated-

        burglary   statute   thus   criminalizes   and   enhances   the

        seriousness of the trespass under those circumstances.

        However, R.C. 2911.11(A) is not meant to criminalize an




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                 OHIO FIRST DISTRICT COURT OF APPEALS


         offender’s conduct toward the occupants of the structure;

         rather, the prosecutor may charge the defendant with an

         assault offense to satisfy that interest.

Id. at ¶ 46.

       {¶31} Likewise, the Eighth Appellate District has observed that

“burglary” is primarily defined in terms of the offender’s conduct, rather than

his conduct toward another person. See State v. Lynott, 8th Dist. Cuyahoga

No. 89079, 2007-Ohio-5849, ¶ 28.             “At common law, the offense was

intended to punish the ‘breaking of the close.’ ” Id., citing State v. Powers, 8th

Dist. Cuyahoga No. 86365, 2006-Ohio-2458, ¶ 12. The Lynott court further

found that while the aggravated burglary statute “raises the degree of the

criminal conduct if certain factors attend the offender’s entry,” it “does not

contain an additional penalty for each person affected by the conduct.”

(Citations omitted.) Lynott at ¶ 29.

       {¶32} Rape, by contrast, is a personal crime. It involves physical and

potentially long-lasting mental harm. See, e.g., State v. Smith, 7th Dist.

Mahoning No. 12 MA 168, 2014-Ohio-1398, ¶ 4; State v. Fontenet, 6th Dist.

Lucas No. L-10-1366, 2013-Ohio-1355 ¶ 26-27; State v. Presley, 10th Dist.

Franklin No. 02AP-1354, 2003-Ohio-6069, ¶ 85.           Indeed, the sentencing

scheme set forth in Title 29 of the Revised Code recognizes this distinction.

In certain cases, rape carries a life sentence. R.C. 2907.02(B). A defendant

convicted of aggravated burglary is subject to the general sentencing

provisions of R.C. 2929.12 et seq.

       {¶33} Understanding that an analysis cannot stop here because the

facts of each case must be considered, I would hold that the facts of this case




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                 OHIO FIRST DISTRICT COURT OF APPEALS



establish that the victim of each rape suffered harm that is separate and

identifiable from the harm resulting from each corresponding aggravated

burglary.

       {¶34} I see no impediment to parsing out Ruff’s conduct to determine

if his actions could have been the source of a separate and identifiable harm

corresponding to each crime.       Further, I find that the state’s purported

reliance on the rape of each victim to establish the “physical harm” element of

each aggravated burglary to be immaterial. Our import-analysis must turn on

an examination of the evidence adduced at trial and during the sentencing

hearing, not on the state’s argument concerning its theory of the case. See

Ruff at ¶ 26. Further, even if Ruff committed the aggravated burglary and the

corresponding rape of each victim with the same conduct, he could still be

convicted of both offenses if the offenses are of dissimilar significance and

have separate and identifiable harm. Ruff at ¶ 28.

       {¶35} The Supreme Court went into greater detail concerning the

facts in each aggravated burglary and rape than this court did in Ruff I:

         K.B. * * * was living in a group home so that her meals and

         medication could be monitored. She stated that on the night

         of the attack, she went to bed at 10:00 p.m. and took her

         medicine to help her sleep. The next thing she remembered

         was waking up in the middle of the night with a man raping

         her. K.B. testified that she started to cry and scream but the

         man told her, “Shut up or I will kill you.”

                                            ***




                                       13
        OHIO FIRST DISTRICT COURT OF APPEALS


S.W. * * * was living in a basement apartment on the

afternoon of May 27, 2009, when a man came over and asked

for her ex-husband. She told the man that she was no longer

with her ex-husband, and the man left. Later that night, a

noise awakened her, and she saw somebody coming toward

her. When she realized it was not her boyfriend, she told the

person to leave and yelled for help. During the rape, S.W.

grabbed her phone, but the assailant jerked it out of her

hands, placed his thumb on her throat, and pushed down,

saying, “If you don't stop fighting me, I'm gonna hurt you.”

Later, S.W. realized that the man who raped her was the same

one who had come by earlier that day looking for her ex-

husband. S.W. said that after that night she made sure all

windows were locked and slept with all the lights on with a

baseball bat and a pipe in her bed.

                               * * *

During opening statements, the state represented that the

third woman, P.F., had died before trial. Details of the events

of September 9, 2009, were testified to by a sexual-assault

nurse examiner from the medical history that P.F. gave her

during her examination. The examiner testified that she

writes down word for word what a victim says. According to

the statement, P.F. was sitting on her couch when a black

man entered her apartment and demanded money. When she

said that she did not have any, he pushed her down on the




                             14
                 OHIO FIRST DISTRICT COURT OF APPEALS


         couch and raped her. When P.F. yelled for help, the man put

         his arm across her neck and said, “I killed once already, and I

         won't hesitate to do it again.” He also hit her on the head with

         his cell phone and choked her several times. The examiner

         stated that P.F. had an abrasion and swelling on the right side

         of her forehead and that there were petechiae in front of her

         right ear lobe, on the right side of her neck, and on her chest,

         which was consistent with being choked.

Ruff at ¶ 3-5.

       {¶36} Only one of these three victims, K.B., was interviewed by the

court clinic as part of the court-ordered presentence investigation (“PSI”). In

her interview, K.B. stated that she had been to a hospital’s psychiatric unit

twice since the rape. Each time she had stayed for a two-week period.

       {¶37} In the cases before us, Ruff’s rape victims were penetrated,

suffered bruising, were choked, were threatened with death, and also ingested

prescribed prophylactic drugs to prevent any potential sexually-transmitted

diseases. At least one of the victims suffered psychiatric harm from the rape

requiring four weeks of hospitalization. I believe these harms are identifiable

and separate from the harms of the aggravated burglaries, regardless of the

fact that the same conduct was used as the aggravating factor for the burglary

in each case.

       {¶38} As Judge Dinkelacker succinctly stated in his dissent in Ruff I:

         Perhaps the best illustration of the separation of these two

         offenses is the separate harms they caused the victims. The

         women in this case no longer feel safe in their homes, and




                                      15
                  OHIO FIRST DISTRICT COURT OF APPEALS


           have been physically violated in the most intimate, personal

           way possible. To characterize what occurred to them as

           merely the “physical harm” of an aggravated burglary is

           unthinkable.

Ruff I, 1st Dist. Hamilton Nos. C-120533 and C-120534, 2013-Ohio-3234, ¶ 43
(Dinkelacker, J., dissenting).

       {¶39} For these reasons, I would hold that Ruff’s aggravated-burglary

convictions and corresponding rape convictions should not merge.


Please note:

       The court has recorded its own entry on the date of the release of this

opinion.




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