In re R.A.H. , 2016 Ohio 8301 ( 2016 )

[Cite as In re R.A.H., 2016-Ohio-8301.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101936
IN RE: R.A.H., JR.
A Minor Child
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL 14106318
BEFORE: Blackmon, J., Boyle, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: December 22, 2016
ATTORNEYS FOR APPELLANT
Timothy Young
Ohio Public Defender
By: Brooke M. Burns
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kevin Bringman
Assistant Prosecuting Attorney
1200 Ontario Street, 9th Floor
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} This cause is before us on remand from the Ohio Supreme Court in In re
R.A.H., Jr., Slip Opinion No. 2016-Ohio-7592, for further review of our decision released
on August 20, 2015. The Ohio Supreme Court specifically ordered:
The judgment of the court of appeals as to proposition of law No. I is
reversed, and the cause remanded to the court of appeals to apply In re
A.G., ___ Ohio St.3d ___, 2016-Ohio-3306, ___ N.E.3d ____.
{¶2} Proposition of law No. I concerned whether the merger analysis applies to
juvenile court proceedings to protect a child’s right against double jeopardy. The Ohio
Supreme Court concluded in the affirmative. In In re R.A.H., 8th Dist. Cuyahoga No.
10936, 2015-Ohio-3342 , we followed this court’s precedence that the merger analysis
did not apply to juveniles; thus the Supreme Court’s reversal and remand mandates that
we apply the merger analysis.
{¶3} In his second assigned error, R.A.H. argued that the trial court erred by
concluding that he was delinquent for committing two acts of rape, because the rapes
occurred by a single act. R.A.H.’s defense counsel failed to object to the nonmerger and,
therefore, forfeited all but plain error review. See State v. Rodgers, 143 Ohio St.3d 385,
2015-Ohio-2458, 38 N.E.3d 860, ¶ 21. Pursuant to Crim.R. 52(B), appellate courts have
discretion to correct plain errors. Plain errors are defined as defects in the trial court
proceedings that affected the outcome of trial. Rodgers at ¶ 22. We conclude that plain
error occurred.
{¶4} R.A.H. was indicted for two separate rape counts. One for raping a child
under the age of 13, and one for using force while committing the rape. The facts
established at trial regarding the rapes were that R.A.H. held the 12-year old victim’s
hands above her head while he digitally penetrated her.
{¶5} Pursuant to State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d
892, ¶ 25:
offenses cannot merge and the defendant may be convicted and sentenced
for multiple offenses: (1) [if] the offenses are dissimilar in import or
significance — in other words, each offense caused separate, identifiable
harm [or was committed against separate victims], (2) [if] the offenses were
committed separately, [or] (3) [if] the offenses were committed with
separate animus or motivation.
{¶6} In the instant case, there was no separate harm, the offenses were committed
at the same time, and there was no separate animus or motivation because the victim was
restrained in order to commit the rape.
{¶7} We thus conclude that the rape offenses were allied offenses of similar import
and that the juvenile court’s failure to merge them prejudiced R.A.H. Accordingly,
R.A.H.’s second assigned error is sustained.
{¶8} Accordingly, the judgment is reversed and remanded to the juvenile court
for further proceedings consistent with this opinion.
It is ordered that appellant recover of appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Juvenile Court
Division to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., and
ANITA LASTER MAYS, J., CONCUR