State v. Womack , 2019 Ohio 1964 ( 2019 )

[Cite as State v. Womack, 2019-Ohio-1964.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 18AP-353
v. : (C.P.C. No. 17CR-2332)
Cedric D. Womack, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on May 21, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and
Michael P. Walton, for appellee. Argued: Michael P.
Walton.
On brief: Yeura Venters, Public Defender, and Robert D.
Essex, for appellant. Argued: Robert D. Essex.
APPEAL from the Franklin County Court of Common Pleas
KLATT, P.J.
{¶ 1} Defendant-appellant, Cedric D. Womack, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas. Because
the state's recitation of facts at the plea hearing demonstrated that Counts 4 and 6 refer to
separate conduct, they are not allied offenses of similar import and they do not merge.
Therefore, we affirm.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On April 27, 2017, appellant was charged with four counts of sexual battery,
each a third-degree felony; and four counts of unlawful sexual conduct with a minor, each
No. 18AP-353 2
a third-degree felony. On February 27, 2018, appellant entered a plea of guilty to Counts 2,
4, and 6 of the indictment, each charging a count of unlawful sexual conduct with a minor.
Count 2 alleged that appellant engaged in sexual conduct with M.L. during the time period
from "on or about June 17, 2014 to June 16, 2015." Count 4 alleged appellant engaged in
sexual conduct with M.L. during the time period from "on or about June 17, 2015 to June 16,
2016." Count 6 alleged appellant engaged in sexual conduct with M.L. during the time
period from "on or about August 1, 2015 to August 31, 2015." In exchange for the guilty
pleas, the remaining counts were dismissed. Because appellant pled guilty to the three
charges, the recitation of the facts by the state was fairly brief. During the plea hearing, the
state advised the trial court of the following facts:
[O]n December 31, 2016, [M.L.] advised that Mr. Womack was
the father of her seven-month-old baby, baby girl. The victim
gave birth to her daughter on May 16, 2016, about one month
prior to the victim's 16th birthday. Mr. Womack was the
boyfriend of the victim's mother, [A.F.], from February 2014
until August 2016.
According to the victim, Mr. Womack had sexual intercourse
with her multiple times at multiple different residences from
the time she was 14 years old to the time she was 16. The
victim's mother, [A.F.], stated that during this time she and Mr.
Womack dated, he spent time with the victim primarily as a
supervisory role at her residence while [A.F.] worked nights.
Biological evidence was collected from the victim and her baby
girl. Mr. Womack was contacted and DNA evidence was
collected from him ultimately. The Columbus Division of
Police crime lab released a report after doing testing which
confirmed that Mr. Womack was the biological father of the
baby girl, with a probability of 99.99 percent. This all occurred
here in Franklin County, State of Ohio.
(Feb. 27, 2018 Tr. at 9-10.)
{¶ 3} Appellant did not object to these facts. The court accepted appellant's pleas,
scheduled the matter for sentencing, and ordered a presentence investigation ("PSI").
{¶ 4} The trial court conducted a sentencing hearing on April 17, 2018. During the
hearing, the trial court inquired whether appellant's counsel had had the opportunity to
review the PSI. Appellant's counsel advised that she had reviewed the report. No objections
to the report were noted by appellant or his counsel. The trial court imposed a 36-month
No. 18AP-353 3
sentence on each of the three counts and ordered that each count be served consecutively
to the others for a total of 9 years of incarceration. Although appellant's counsel objected
to the imposition of consecutive sentences, there was no objection relating to merger.
{¶ 5} The following day, appellant filed a motion seeking the merger of Counts 4
and 6 due to the overlapping dates in those counts. Although never expressly denying this
motion, the trial court filed its sentencing entry on April 20, 2018, reflecting its imposition
of the nine-year sentence. It did not merge Counts 4 and 6.
{¶ 6} Appellant appeals, assigning the following error:
The trial court erred in failing to merge Mr. Womack's
convictions in counts four and six at sentencing in violation of
R.C. 2941.25, the Fifth and Fourteenth Amendments to the
United States Constitution, and Article I, Sections 10 and 16 of
the Ohio Constitution.
LEGAL ANALYSIS
{¶ 7} R.C. 2941.25, Ohio's multiple counts/allied offenses of similar import statute
provides:
(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.
(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.
In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, the Supreme Court of Ohio set forth
the standard to apply to merger determinations under R.C. 2941.25:
1. In determining whether offenses are allied offenses of
similar import within the meaning of R.C. 2941.25, courts
must evaluate three separate factors–the conduct, the
animus, and the import.
2. Two of 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.
No. 18AP-353 4
3. Under R.C. 2941.25(B), a defendant whose conduct
supports multiple offenses may be convicted of all of the
offenses if any one of 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 paragraphs one through three of the syllabus; State v. Armengau, 10th Dist. 14AP-
679, 2017-Ohio-4452, ¶ 124.
{¶ 8} An appellate court reviews a trial court's R.C. 2941.25 merger determination
de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 28; State v. Gibson,
10th Dist. No. 17AP-734, 2018-Ohio-3261, ¶ 8.
{¶ 9} In his sole assignment of error, appellant alleges the trial court erred when it
failed to merge Counts 4 and 6. Appellant argues that because the time periods in these
counts overlap and allege the same conduct, these counts are allied offenses and should
merge. We disagree.
{¶ 10} The factual recitation by the state at the sentencing hearing demonstrated
that appellant engaged in multiple separate criminal acts in different time periods even
though the time periods in Counts 4 and 6 overlap. The victim gave birth to a baby girl on
May 16, 2016, approximately one month prior to the victim's 16th birthday. DNA evidence
established that appellant was the father of the victim's baby. Given a nine-month gestation
period, appellant would have engaged in sexual intercourse with the victim in
approximately August 2015. This is the time period alleged Count 6 (August 1, 2015 to
August 31, 2015).
{¶ 11} The recitation of facts also indicated that appellant had sexual intercourse
with the victim multiple times at multiple different residences from the time she was 14
years old to the time she was 16. The victim did not turn 16 until approximately June 2016.
Therefore, appellant would have engaged in sexual intercourse with the victim sometime in
2016–as the victim approached age 16. Count 4 covers this time period (i.e., June 17, 2015
to June 16, 2016).
{¶ 12} Because Counts 4 and 6 refer to separate conduct, they are not allied offenses
of similar import and they do not merge. Ruff at paragraph three of the syllabus (no merger
if conduct shows that the offenses were committed separately).
No. 18AP-353 5
{¶ 13} In support of his argument that Counts 4 and 6 should merge, appellant relies
on Gibson, 10th Dist. No. 17AP-734, 2018-Ohio-3261. However, appellant's reliance on
Gibson is misplaced. In Gibson, this court determined that the state's recitation of facts
demonstrated that the offenses of abduction and unlawful sexual conduct with a minor
were committed contemporaneously. As noted above, the state's recitation of facts in the
case at bar established separate acts in different time periods.
{¶ 14} The state also argues that facts contained in the PSI further undercut
appellant's merger argument. Because the recitation of facts by the state at the plea hearing
demonstrate that Counts 4 and 6 refer to separate conduct in different time periods, we do
not reach the question of whether a court may also rely on facts contained in a PSI in
determining merger. However, we note that some courts, including this court, have
concluded that facts contained in a PSI can be considered in the merger analysis. E.g., State
v. Cisco, 5th Dist. No. 13 CAA 04 0026, 2013-Ohio-5412, ¶ 30; State v. Broomfield, 10th
Dist. No. 12AP-469, 2013-Ohio-1676, ¶ 12 (court relied on facts contained in PSI in
determining merger); State v. Knight, 12th Dist. No. CA2016-02-028, 2016-Ohio-7991, ¶ 13
(in making allied offenses determination, trial court can look to the information contained
in the record, including the PSI); State v. Tannreuther, 12th Dist. No. CA2013-04-062,
2014-Ohio-74, ¶ 16 (same).
{¶ 15} For the foregoing reasons, we hold that the trial court did not err when it
convicted and sentenced appellant on both Counts 4 and 6. Therefore, we overrule
appellant's assignment of error, and affirm the judgment of the Franklin County Court of
Common Pleas.
Judgment affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.