[This opinion has been published in Ohio Official Reports at
78 Ohio St.3d 12.]
THE STATE OF OHIO, APPELLANT, V. JONES, APPELLEE.
[Cite as State v. Jones, 1997-Ohio-38.]
Criminal procedure—Indictment--R.C. 2941.25—Multiple counts—Merger of
attempted vaginal rape conviction with vaginal rape conviction by court
of appeals not proper, when.
(No. 95-1884—Submitted January 7, 1997—Decided March 19, 1997.)
APPEAL from the Court of Appeals for Montgomery County, No. 14649.
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{¶ 1} In the early morning hours of February 3, 1994, Teressa Robinson
found herself abandoned by friends in an unfamiliar neighborhood of Dayton.
While searching for a telephone, she encountered Andre Jones, defendant-appellee,
who offered to help. Instead, he led her to a nearby park, struck her in the face, and
commanded her to perform oral sex. Robinson complied out of fear.
{¶ 2} After he obtained an erection, Jones penetrated Robinson vaginally.
Unable to ejaculate, at least in part because Robinson had a tampon in her vagina,
Jones withdrew. He forcibly removed the tampon and, having lost his erection,
again forced Robinson to perform oral sex. He again attempted and perhaps
achieved vaginal penetration. Jones contended at trial that all the sexual contact
was consensual.
{¶ 3} The jury found Jones guilty of two counts of oral rape, one count of
vaginal rape, one count of attempted vaginal rape, and one count of gross sexual
imposition. The court of appeals affirmed the convictions and, pursuant to R.C.
2941.25, merged the two oral rape convictions, finding them to be allied offenses
of similar import, and merged the attempted vaginal rape conviction with the
vaginal rape conviction, finding them to be allied offenses of similar import.
SUPREME COURT OF OHIO
{¶ 4} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
George A. Katchmer, Assistant Prosecuting Attorney, for appellant.
Joe Cloud, for appellee.
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PFEIFER, J.
{¶ 5} This appeal calls upon us to examine R.C. 2941.25 and determine
whether the two acts of oral rape at issue were properly merged by the court of
appeals. We must also determine whether attempted vaginal rape and vaginal rape
were properly merged by the court of appeals. For the reasons that follow, we find
that the mergers were not proper and reverse the portion of the judgment of the
court of appeals that pertains to merger.
{¶ 6} R.C. 2941.25 states:
“(A) Where the same conduct by defendant can be contrued 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 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} To determine whether merger was appropriate pursuant to R.C.
2941.25 requires us to engage in a two-step analysis. State v. Blankenship (1988),
38 Ohio St.3d 116,
526 N.E.2d 816. “In the first step, the elements of the two
crimes are compared. If the elements of the offenses correspond to such a degree
that the commission of one crime will result in the commission of the other, the
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January Term, 1997
crimes are allied offenses of similar import and the court must then proceed to the
second step.” 38 Ohio St.3d at 117,
526 N.E.2d at 817. In one instance, we must
compare one crime of oral rape with a second crime of oral rape. It is clear that the
elements of one crime correspond to the elements of the other. In the other instance,
we must compare the crime of attempted vaginal rape with the crime of vaginal
rape. It is equally clear that the elements of rape and attempted rape “correspond
to such a degree that the commission of one crime [rape] will result in the
commission of the other [attempted rape].” In both instances, the offenses are of
similar import. Thus, we must proceed to the second step in the analytical
framework.
{¶ 8} “In the second step, the defendant’s conduct is reviewed to determine
whether the defendant can be convicted of both offenses. If the court finds either
that the crimes were committed separately or that there was a separate animus for
each crime, the defendant may be convicted of both offenses.” (Emphasis sic.) 38
Ohio St.3d at 117,
526 N.E.2d at 817. This court has generally not found the
presence or absence of any specific factors to be dispositive on the issue of whether
crimes were committed separately or with a separate animus. But, see, State v.
Barnes (1981),
68 Ohio St.2d 13, 17,
22 O.O.3d 126, 129,
427 N.E.2d 517, 520-
521 (Celebrezze, C.J., concurring). Instead, our approach has been to analyze the
particular facts of each case before us to determine whether the acts or animus were
separate. See State v. Nicholas (1993),
66 Ohio St.3d 431, 435,
613 N.E.2d 225,
229; State v. Hill (1992),
64 Ohio St.3d 313, 332,
595 N.E.2d 884, 899-900; State
v. Jells (1990),
53 Ohio St.3d 22, 33,
559 N.E.2d 464, 475; Newark v. Vazirani
(1990),
48 Ohio St.3d 81, 83-84,
549 N.E.2d 520, 522; State v. Powell (1990),
49
Ohio St.3d 255, 262,
552 N.E.2d 191, 199. Thus, we must examine the record to
determine whether the two acts of oral rape were committed separately or with a
separate animus, and we must examine the record to determine whether the acts of
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SUPREME COURT OF OHIO
attempted vaginal rape and vaginal rape were committed separately or with a
separate animus.
{¶ 9} The second act of oral rape increased the risk of physical injury to the
victim, as well as the chances that the victim would contract a venereal disease.
Further, while the two acts of oral rape were committed within a short period of
time of each other, there were significant intervening acts, namely vaginal
penetration, loss of an erection, withdrawal from the vagina, and removal of the
tampon. We find these factors sufficient to justify a jury verdict that the first act of
oral rape was separate from the second act of oral rape.
{¶ 10} The act of attempted vaginal rape increased the risk of physical
injury to the victim, as well as the chances that the victim would contract a venereal
disease or become pregnant. Further, while the act of vaginal rape and the act of
attempted vaginal rape were committed within a short period of time of each other,
there were significant intervening acts, namely, loss of an erection, withdrawal
from the vagina, removal of a tampon, and oral rape. We find these factors
sufficient to justify a jury verdict that the act of vaginal rape was separate from the
act of attempted vaginal rape.
{¶ 11} The jury was charged to “consider each count and the evidence
applicable to each count separately.” It did so, and returned a verdict of guilty on
all four counts at issue. See State v. Loza (1994), 71 Ohio St.3d 61, 75,
641 N.E.2d
1082, 1100, citing State v. Henderson (1988),
39 Ohio St.3d 24, 33,
528 N.E.2d
1237, 1246, citing Parker v. Randolph (1970),
442 U.S. 62,
99 S.Ct. 2132,
60
L.Ed.2d 713 (“A jury is presumed to follow the instructions given to it by the trial
judge.”). Having found that the jury had sufficient evidence to justify a finding that
the four acts of rape were committed separately, we conclude that mergers effected
by the court of appeals were improper.
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January Term, 1997
{¶ 12} Accordingly, we affirm in part, reverse the portion of the judgment
of the court of appeals that pertains to the mergers, and reinstate the original
convictions.
Judgment affirmed in part,
reversed in part
and convictions reinstated.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, COOK and
LUNDBERG STRATTON, JJ., concur.
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