[Cite as State v. Fair, 2019-Ohio-2508.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2018-P-0027
        - vs -                                  :

ROSS M. FAIR,                                   :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR
00533.

Judgment: Affirmed in part, reversed in part, and remanded.


Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Paul M. Grant, 209 South Main Street, 8th Floor, Akron, OH 44308 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Ross M. Fair, appeals his conviction in the Portage County

Court of Common Pleas, following a jury trial in which he was convicted of multiple

counts of Rape, Sexual Battery, and Importuning and sentenced to life in prison with

eligibility for parole after 38 years. For the reasons discussed herein, we affirm in part,

reverse in part, and remand for resentencing.
       {¶2}   Appellant was accused of sexually abusing a 5 or 6-year-old minor, C.M.,

for the period May 20, 2013 through May 21, 2016, while appellant babysat him. C.M.

testified at trial that appellant would ask to “borrow” him, take him into appellant’s room,

and ask him to put his mouth on appellant’s penis.          C.M. testified that on the first

occasion, the encounter ended when C.M. threw up on appellant’s underwear. On

another occasion, appellant pulled C.M. into his bedroom closet and asked C.M. to kiss

him. C.M. tried to run away but appellant kissed him on the cheek. C.M. testified that

after those first two instances, appellant would ask C.M. to engage in fellatio “most

days” that C.M. was being babysat at appellant’s apartment, and on numerous

occasions after the first instance, appellant’s 4-year-old son, E.F., was also present in

the room at the time the conduct occurred.         C.M. testified that on each occasion

appellant told him that if he “didn’t tell”, then appellant “wouldn’t tell.” C.M. denied that

appellant ever threatened to hurt him or promised him anything.

       {¶3}   Appellant took the stand in his defense. He admits to having babysat

C.M. until 2014 but denied the allegations of sexual abuse. Appellant posited that C.M.

had made up the allegations because he did not like how he punished him, by spanking

or time out, while he was being babysat. C.M. testified that appellant did spank him,

with his mother’s permission, and that he did not like it, though he said that happened

infrequently. He stated that after he spanked C.M., he looked to make sure he did not

leave a mark. He also testified that C.M. was having difficulties with “bathroom issues”

and appellant would help by wiping C.M.

       {¶4}   C.M. testified that he eventually told his mother about the abuse and she

stopped taking him to the appellant’s house, but she told him not to tell anyone else or




                                             2
else he would be taken away from her. For undisclosed reasons, C.M. was ultimately

removed from his mother’s custody on September 2, 2016. C.M. underwent counseling

in October 2016, at which time he disclosed the abuse to a social worker, Kalleigh

Wallace. A physical examination of C.M. revealed no evidence of sexual abuse.

       {¶5}   C.M. was referred to Melinda Andel, a pediatric sexual abuse nurse

examiner at the Children’s Advocacy Center (CAC) at University Hospitals.               An

interview between Nurse Andel and C.M. from October 27, 2016, was video recorded.

Ms. Wallace watched the live interview via a television in another room. During the

interview, C.M. disclosed that he was sexually abused at a specified apartment in Silver

Meadows in Kent, which prompted the CAC to call the Kent Police.

       {¶6}   Detective Norman Jacobs was assigned to the investigation.                He

determined the appellant and Amanda Misock lived at the apartment C.M. specified.

Det. Jacobs testified that he spoke with appellant over the phone and that appellant first

responded as if being accused of physical abuse. When Det. Jacobs clarified that

abuse was sexual in nature, appellant became defensive and stated C.M. was making

up the allegations because C.M. hated him.        Appellant refused to speak with Det.

Jacobs further and declined to come in for further questioning.

       {¶7}   Appellant was ultimately charged with two counts of Rape, felonies of the

first degree, in violation of R.C. 2907.02(A)(1)(b); two counts of Gross Sexual

Imposition, felonies of the third degree, in violation of R.C. 2907.05(A)(4); two counts of

Sexual Battery, felonies of the second degree, in violation of R.C. 2907.03(A)(5)(b); and

one count of Importuning, a felony of the third degree, in violation of R.C. 2907.07(A)

and (F)(2). The jury found him guilty on all counts.




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         {¶8}   The trial court found that the gross sexual imposition counts merged with

the rape counts for purposes of sentencing. Appellant was sentenced to life in prison

with eligibility for parole after 15 years is served for each of the two counts of rape, to

run consecutively to one another; even though the court merged the gross sexual

imposition counts with the rape counts, it imposed 5 years for each offense of gross

sexual imposition, to run concurrent to one another and with the rape sentences; 8

years for each of the two counts of sexual battery, to run concurrently to each other but

consecutively to the sentences for rape; and 3 years for importuning, to run concurrently

to the other sentences, for a total of a life sentence with the eligibility for parole after 38

years.

         {¶9}   Appellant now appeals, assigning for our review five errors. We do not

address them in the order presented.

         I. SECOND ASSIGNMENT OF ERROR

         {¶10} Appellant’s second assignment of error states:

         {¶11} The trial court erred as a matter of law in imposing separate
               sentences for the allied offenses in violation of the double jeopardy
               clause of the 5th Amendment to the U.S. Constitution and Article I,
               Section[] 10 of the Ohio Constitution.

         {¶12} The issue presented for review and argument states:

         {¶13} The trial court imposed separate, consecutive sentences for the
               rape counts and the sexual battery counts. Did the trial court err in
               imposing separate, consecutive sentences when the facts of the
               alleged criminal conduct supported merger of the offenses and the
               trial court failed to properly consider statutory factors?

         {¶14} Ohio’s allied offenses statute, R.C. 2941.25, states:

         {¶15} (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.


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       {¶16} (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.

       {¶17} The Supreme Court of Ohio in Jackson, infra, set forth three questions a

reviewing court must ask when determining whether offenses are allied offenses of

similar import within the meaning of R.C. 2941.25: “‘(1) Were the offenses dissimilar in

import or significance? (2) Were they committed separately? and (3) Were they

committed with separate animus or motivation? An affirmative answer to any of the

above will permit separate convictions. The conduct, the animus, and the import must

all be considered.’” State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 3d, ¶128,

quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶31. “[I]mposing separate

sentences for allied offenses of similar import is contrary to law and such sentences are

void.” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658 ¶2.

       {¶18} First, we note the state does not argue the merging rape counts and

sexual battery counts arose from separate instances or were committed with separate

motive. Thus, we focus our attention on whether the offenses were of dissimilar import.

Offenses are of dissimilar import or significance when “each offense caused separate,

identifiable harm.” Ruff, supra, at ¶25.

       {¶19} At sentencing, the trial court determined the sexual battery charges did not

merge with rape charges because sexual battery requires the offender to be acting in

loco parentis, and the violation of this additional element constituted additional harm,

namely “an additional violation of trust.” However, in this case, we do not find that

acting in loco parentis constitutes a separate harm sufficient to determine a rape charge



                                           5
and a sexual battery charge arising from the same occurrence are of dissimilar import.

The Bill of Particulars makes no distinction between the conduct alleged for rape, gross

sexual imposition, and sexual battery. It only broadly alleges the same actions for each

count: “one act that consisted of multiple instances of sexual conduct * * * as part of a

pattern of conduct,” that occurred “sometime between May 20th, 2013 and May 21st,

2016” while defendant was acting in loco parentis. Merely acting in loco parentis is not

enough, given these facts, to distinguish these charges.

       {¶20} Other appellate jurisdictions agree. See, e.g., State v. Marcum, 12th Dist.

Preble No. CA2015-04-011, 2016-Ohio-263 (trial court erred in failing to merge the rape

and sexual battery charges because they were charged in the alternative, no specific

instances of multiple sexual conduct, and no evidence was presented at trial to

establish that the offenses were separately committed, resulted in separate identifiable

harm, or were committed with separate motivation.); State v. Nickel, 6th Dist. Ottawa

No. OT-10-004, 2011-Ohio-1550 ¶7 (“appellant’s convictions for both offenses were

based on a single act, committed with a single state of mind” but this alone was not

enough to constitute dissimilar import).

       {¶21} We find that when the only difference between the facts supporting the

count of rape and the facts supporting the count of sexual battery is the existence of an

in loco parentis relationship, this alone does not constitute sufficient harm to find the

offenses are of dissimilar import.

       {¶22} Thus, appellant’s second assignment of error has merit.

       {¶23} We raise a related issue sua sponte. The trial court found that the two

rape counts (counts 1 and 2) merged, for purposes of sentencing, with the two gross




                                           6
sexual imposition counts (counts 3 and 4). However, the court sentenced appellant on

both the rape counts and the gross sexual imposition counts. The court found that:

      {¶24} those [gross sexual imposition] counts will merge with the rape
            counts. I will sentence you to five years on each of those counts.
            Those are mandatory sentences, but I will order that those run
            concurrently and merge with the counts of rape.

      {¶25} “[W]hen a sentencing court concludes that an offender has been found

guilty of two or more offenses that are allied offenses of similar import, * * * it should

permit the state to select the allied offense to proceed on for purposes of imposing

sentence and it should impose sentence for only that offense. Williams, supra, at ¶2.

      {¶26} In Williams, the court found the counts were allied offenses of similar

import and merged for purposes of sentencing. Nevertheless, the court sentenced him

to concurrent sentences on each of the three allied offenses instead of sentencing only

one offense. However, on review, the Supreme Court of Ohio found that “once the

sentencing court decides that the offender has been found guilty of allied offenses of

similar import that are subject to merger, R.C. 2941.25 prohibits the imposition of

multiple sentences. And “‘[t]he imposition of concurrent sentences is not the equivalent

of merging allied offenses.’” Williams, supra, at ¶19, quoting State v. Damron, 129 Ohio

St.3d 86, 2011-Ohio-2268 ¶17. “It therefore follows that when a trial court concludes

that an accused has in fact been found guilty of allied offenses of similar import, it

cannot impose a separate sentence for each offense. Rather, the court has a

mandatory duty to merge the allied offenses by imposing a single sentence, and the

imposition of separate sentences for those offenses, even if imposed concurrently, is

contrary to law because of the mandate of R.C. 2941.25(A). In the absence of a

statutory remedy, those sentences are void.” Williams, supra, at ¶28.



                                            7
       {¶27} Here, the court found counts 1 and 3, and 2 and 4 merged, but sentenced

him on both rape counts and both gross sexual imposition counts. As this constitutes

plain error pursuant to Crim.R. 52(B), we must remand this case for resentencing.

       II. FIFTH ASSIGNMENT OF ERROR

       {¶28} Appellant’s fifth assignment of error states:

       {¶29} The trial court erred as a matter of law in denying [appellant’s]
             Crim.R. 9 motion because the state failed to establish on the
             [record] sufficient evidence to support the charges levied against
             [appellant] in violation of the due process clause of the 14th
             Amendment to the U.S. Constitution and Article I, Sections 1, 10 &
             16 of the Ohio Constitution.

       {¶30} The issue presented for review and argument states:

       {¶31} Was the evidence presented insufficient to prove the essential
             elements of the crime charged?

       {¶32} An appellate court’s role in reviewing the sufficiency of the evidence is to

examine the evidence admitted at trial and determine whether it would “convince the

average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61

Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by constitutional

amendment on other grounds in State v. Smith, 80 Ohio St.3d 89 (1997). It is a test of

adequacy “as to whether the evidence is legally sufficient to support a verdict as a

matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). When reviewing

the sufficiency of the evidence, we are required to view the evidence in favor of the

prosecution. Jenks, supra, at paragraph two of the syllabus. “[T]he question is whether

* * * a reasonable mind might fairly find each element of the offense beyond a

reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261, 263 (1978).

       {¶33} Crim.R. 29(A) states in pertinent part, “[t]he court on motion of a defendant

or on its own motion, after the evidence on either side is closed, shall order the entry of


                                            8
a judgment of acquittal of one or more offenses charged in the indictment, information,

or complaint, if the evidence is insufficient to sustain a conviction of such offense or

offenses.” Id. “Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment

of acquittal if the evidence is such that reasonable minds can reach different

conclusions as to whether each material element of a crime has been proved beyond a

reasonable doubt.” Bridgeman, supra.

       {¶34} In challenging the sufficiency of the evidence presented, appellant asserts

“[t]he state failed to prove beyond a reasonable doubt all the elements of the crime

charged. The evidence in the case at bar existed primarily of the interview conducted

Andel of C.M. and C.M.’s testimony.” We disagree.

       {¶35} Appellant was convicted of two counts of rape in violation of R.C. 2907.02,

which states:

       {¶36} (A)(1) No person shall engage in sexual conduct with another who
             is not the spouse of the offender or who is the spouse of the
             offender but is living separate and apart from the offender, when
             any of the following applies: * * *(b) The other person is less than
             thirteen years of age, whether or not the offender knows the age of
             the other person.

       {¶37} As used in these sections, “sexual conduct” is defined, in relevant part as

“anal intercourse, fellatio, and cunnilingus between persons regardless of sex.” R.C.

2907.01(A).

       {¶38} The state presented C.M.’s testimony, in court and his recorded interview,

that appellant made him engage in sexual conduct, specifically fellatio. It is undisputed

that C.M. was under the age of thirteen. Thus, the state presented sufficient evidence

of all of the required elements for rape.




                                            9
       {¶39} Appellant was also convicted of two counts of sexual battery in violation of

R.C. 2907.03. However, as we discussed above, the sexual battery counts should have

merged with the rape counts for purposes of sentencing. Thus, we do not discuss the

sufficiency of the evidence for sexual battery.

       {¶40} Finally, appellant was also convicted of one count of importuning in

violation of R.C. 2907.07(A), which states:

       {¶41} (A) No person shall solicit a person who is less than thirteen years
             of age to engage in sexual activity with the offender, whether or not
             the offender knows the age of such person.

       {¶42} As used in this section, “sexual activity” is defined as either or both sexual

conduct, as defined above, or sexual contact, as defined above. R.C. 2907.01(C).

       {¶43} C.M. testified that appellant “asked” him to engage in fellatio. Again, it is

undisputed that C.M. was under the age of thirteen. Thus, the state presented evidence

of all of the required elements for Importuning.

       {¶44} Appellant specifically argues the evidence was insufficient to support the

second counts of each: rape, gross sexual imposition, sexual battery. Appellant asserts

that the only evidence to support a second count was the testimony of the request for

C.M. to kiss him.    However, C.M. distinctly testified as to two specific instances of

fellatio and stated it kept happening, but couldn’t say with certainty how many times,

estimating 14 or 15. The first time, C.M. and appellant were alone in the room and C.M.

threw up on appellant’s underwear. The second time appellant asked C.M. to engage in

fellatio, C.M. testified that E.F. was in the room. Moreover, C.M. testified that the abuse

occurred “most days” he was being babysat by appellant.           Contrary to appellant’s

assertion, the incident of appellant pulling C.M. into the closet was not asserted as

being a count of rape, gross sexual imposition, sexual battery, or importuning.


                                              10
       {¶45} We find the state presented sufficient evidence of each element of the

crime that supported the jury’s finding. Thus, appellant’s fifth assignment of error is

without merit.

       III. FOURTH ASSIGNMENT OF ERROR

       {¶46} Appellant’s fourth assignment of error states:

       {¶47} Appellant’s convictions are against the manifest weight of the
             evidence possession [sic] in violation of the due process clause of
             the 14th Amendment to the U.S. Constitution and Article I, Sections
             1, 10 & 16 of the Ohio Constitution.

       {¶48} The issue presented for review and argument states:

       {¶49} Did the Court find all the essential elements of the crimes to be
             proven beyond a reasonable doubt and were [appellant’s]
             convictions against the manifest weight of the evidence?

       {¶50} When determining whether a conviction is against the manifest weight of

the evidence, the appellate court “‘weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in

the evidence, the jury clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered.’” State v. Elmore,

111 Ohio St.3d 515, 2006-Ohio-6207, ¶44 quoting Thompkins, supra. A court reviewing

the manifest weight of the evidence observes the entire record, weighs the evidence

and all reasonable inferences, and considers the credibility of the witnesses.

Thompkins, supra, at 387. In evaluating the weight of the evidence, we do not view the

facts in favor of either side but view them objectively to determine if the jury clearly lost

its way and created such a manifest miscarriage of justice that the conviction must be

reversed. See Thompkins, supra. We must also consider that the jury was in the best

position here to judge the credibility of witnesses and the weight to be given to the



                                             11
evidence. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.

“‘The discretionary power to grant a new trial should only be exercised in the

exceptional case in which the evidence weighs heavily against the conviction.’”

Thompkins, supra, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1983).

      {¶51} As discussed under appellant’s fifth assignment of error, the state

presented evidence of each element of rape, gross sexual imposition, sexual battery,

and importuning. C.M. testified appellant sexually abused him. Appellant testified that

no sexual activity occurred.      As there was no physical evidence and no other

eyewitnesses, the jury was left to decide which party was telling the truth. Attendantly,

we note “there is no requirement that testimonial evidence of sexual abuse must be

corroborated by physical or other evidence.” State v. Kaufman, 187 Ohio App.3d 50,

2010-Ohio-1536 ¶71 (7th Dist.). Indeed, Nurse Andel testified that it would be highly

unlikely to find any physical evidence of abuse after a year had passed since the last

instance of fellatio. Nor does the lack of eyewitnesses cast doubt on the accusations

due to the secretive nature of such actions.

      {¶52} There was no dispute as to appellant’s identity or opportunity. C.M.’s

testimony at trial was consistent with the recorded interview at the Children’s Advocacy

Center. Furthermore, the social worker working with C.M. stated his account of the

abuse has been consistent. Appellant testified C.M.’s accusations were not true and

that he was lying because C.M. did not like that appellant would sometimes punish him.

C.M. said that while he did not like being spanked, it did not happen very often. Officer

Cox testified that in his conversation with appellant, he asserted C.M. was out to ruin his

life because he did not like that appellant punished him.




                                            12
       {¶53} We find the jury did not clearly lose its way in determining it believed

appellant committed the offenses beyond a reasonable doubt. Thus, appellant’s fourth

assignment of error is without merit.

       IV. FIRST ASSIGNMENT OF ERROR

       {¶54} Appellant’s first assignment of error states:

       {¶55} The trial court erred when it allowed testimony of other bad acts in
             violation of the due process clause of the 14th Amendment to the
             U.S. Constitution and Article I, Sections 1, 10 & 16 of the Ohio
             Constitution.

       {¶56} The issue presented for review and argument states:

       {¶57} Did the trial court, by allowing the unredacted DVD recording of
             C.M.’s interview to be admitted over Appellant’s objection violation
             Appellant’s due process of rights?

       {¶58} Appellate review of admissions of evidence are reviewed under an abuse

of discretion standard. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407 ¶14. “’The

admission of such [other-acts] evidence lies within the broad discretion of the trial court,

and a reviewing court should not disturb evidentiary decisions in the absence of an

abuse of discretion that created material prejudice.’” Id., quoting State v. Diar, 120 Ohio

St.3d 460, 2008-Ohio-6266 ¶66. An abuse of discretion reflects the trial court’s “‘“failure

to exercise sound, reasonable, and legal decision-making.”’” (citations omitted) State v.

Howard, 11th Dist. Lake No. 2017-L-083, 2018-Ohio-1575, ¶37. “A review under the

abuse-of-discretion standard is a deferential review. It is not sufficient for an appellate

court to determine that a trial court abused its discretion simply because the appellate

court might not have reached the same conclusion or is, itself, less persuaded by the

trial court’s reasoning process than by the countervailing arguments.” Morris, supra.




                                            13
      {¶59} The state played and entered into evidence State’s Exhibit 1, a DVD of the

recorded interview that occurred between C.M. and Nurse Andel. On the day of the

trial, before the video was played, appellant stipulated to the admission of the recorded

interview as a whole into evidence, but objected to playing the portion of the video

where C.M. says he assumed appellant was doing the same to E.F. and says he

overheard Haley’s mom asking why Haley’s private parts were red. The state said it

could not redact the video with such short notice. The court noted it had reviewed the

DVD and did not believe the mention of the presence of other children necessarily

implied other bad actions of appellant. The court admonished both sides to keep the

witnesses from testifying as to any other allegations. After the recorded interview had

been played at trial, appellant moved for a mistrial, arguing these portions of the video

were not admissible. In denying the motion, the court noted that appellant had the

opportunity to cross-examine C.M., and that C.M. admits he did not see appellant abuse

any other child. No other children testified and no other evidence of the abuse of other

children was presented.

      {¶60} Further, contrary to appellant’s assertion, the record does not show

“numerous questions about other children” were asked.        In the recorded interview,

Nurse Andel questioned C.M. about the other children to determine if he has firsthand

knowledge. At trial, the state asked C.M. one question about other children: whether he

ever saw appellant try to touch E.F. inappropriately. This question in and of itself was

not improper. C.M. responded that he hadn’t seen any other inappropriate touching, but

saw appellant ask E.F. to touch him inappropriately. The court immediately instructed

the state to move on from that line of questioning.




                                            14
      {¶61} We do not find the trial court abused its discretion in admitting the

recorded interview. Moreover, even assuming arguendo the admission of that evidence

was in error, “[n]ot every error requires that a conviction be vacated or a new trial

granted.” Morris, supra, at ¶24. R.C. 2945.83 states:

      {¶62} No motion for a new trial shall be granted or verdict set aside, nor
            shall any judgment of conviction be reversed in any court because
            of: * * * (C) The admission or rejection of any evidence offered
            against or for the accused unless it affirmatively appears on the
            record that the accused was or may have been prejudiced thereby.

      {¶63} “In determining whether to grant a new trial as a result of the erroneous

admission of evidence under Evid.R. 404(B), an appellate court must consider both the

impact of the offending evidence on the verdict and the strength of the remaining

evidence after the tainted evidence is removed from the record.” State v. Morris, 141

Ohio St.3d 399, 2014-Ohio-5052, syllabus.       “[T]he real issue when Evid.R. 404(B)

evidence is improperly admitted at trial is whether a defendant has suffered any

prejudice as a result. If not, the error may be disregarded as harmless error. * * * Both

the error’s impact on the verdict and the weight of the remaining evidence must be

considered on appellate review.” Morris, supra, at ¶25.

      {¶64} As we previously established, the jury’s finding was not contrary to the

manifest weight of the evidence. Here, the state’s focus and evidence, aside from the

comments of C.M. as recorded and the one sentence at trial, was about appellant’s

actions in regard to C.M. In the video, when C.M. is first asked about the abuse he

became quiet and is hesitant to discuss it. Det. Cox testified that appellant became

defensive when accused of sexual abuse and refused to speak with officers further.

Appellant does not make a compelling argument for why C.M. would make up these

allegations, while admitting that he would have motive to not admit to such abuse. And,


                                           15
significantly, no other explanation was presented as to how C.M. at his age would have

knowledge of such details.

       {¶65} Any error in admitting the few statements of C.M. regarding his

assumption of the abuse of other children was harmless in light of the other evidence

presented at trial. Thus, appellant’s first assignment of error is without merit.

       V. THIRD ASSIGNMENT OF ERROR

       {¶66} Appellant’s third assignment of error states:

       {¶67} The trial court erred as a matter of law in imposing consecutive
             sentences upon Appellant in violation of the 5th Amendment to the
             U.S. Constitution and Article I, Section[] 10 of the Ohio Constitution.

       {¶68} The issue presented for review and argument states:

       {¶69} Did the trial court err when it imposed consecutive sentences
             without making the required findings pursuant to R.C. 2929.14 and
             referred to allege conduct that is not in the record.

       {¶70} “An appellate court may vacate or modify a felony sentence on appeal

only if it determines by clear and convincing evidence that the record does not support

the trial court’s finding under relevant statutes or that the sentence is otherwise contrary

to law.”   State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶1, citing R.C.

2953.08(G)(2). “[A]bsent the accused’s showing that there was a reasonable probability

that the convictions are in fact for allied offenses of similar import committed with the

same conduct and without a separate animus, ‘the accused cannot demonstrate that

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

sentencing was plain error.’” Williams, supra, at ¶25, quoting State v. Rogers, 143 Ohio

St.3d 385, 2015-Ohio-2459, ¶14.        This is true even if the sentences are imposed

concurrently. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶31.




                                             16
       {¶71} Appellant argues on appeal the imposition of consecutive sentences the

court improperly relied on alleged conduct outside the record. He points to the fact that

he had no substantial prior criminal record and asserts the trial court relied on

“unsubstantiated beliefs that Appellant engaged in similar conduct for which he has not

yet been caught.” In particular, he points to the comment of the court: “However, based

upon this type of crime, I don’t know that he’s been crime free. I don’t know that and

that’s something that is due to the nature of these particular crimes. They are done

secretly. They are done in private and many time children do not reveal, as we all

know, ever.”

       {¶72} Reading that comment in light of the sentencing hearing as a whole,

however, we do not find the court relied on other alleged conduct in sentencing

appellant. This particular comment was in response to appellant when he requested the

court not sentence him to life without parole, which the court did not impose. The court

cited the secret nature of this type of crime to counter appellant’s lack of significant

criminal history. The court stated its reasons for consecutive sentences as,

       {¶73} necessary to protect the public from future crimes and to punish
             you. Consecutive sentences are not disproportionate to the
             seriousness of the Defendant’s conduct and danger to the
             community. These offenses are part of a course of conduct. And
             the harm I believe is so great or unusual that a single prison term
             would not adequately reflect the seriousness of the conduct. * * * I
             am sentencing you to consecutive sentences on the rape counts for
             that reason, but I’m not giving you life without parole.

This is directly in line with the requirements of R.C. 2929.14(C)(4)(b).

       {¶74} Thus, we do not find the court committed plain error in the imposition of

consecutive sentences. Appellant’s third assignment of error is without merit.




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      {¶75} For the reasons discussed herein, the judgment of the Portage County

Court of Common Pleas is affirmed in part, reversed in part, and remanded for

resentencing.


THOMAS R. WRIGHT, P.J.,

MATT LYNCH, J.,

concur.




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