State v. Zeigler , 97 N.E.3d 994 ( 2017 )

[Cite as State v. Zeigler, 2017-Ohio-7673.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160428
TRIAL NO. B-1500506
Plaintiff-Appellee, :
vs. :
O P I N I O N.
SEAN ZEIGLER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 20, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Law Offices of John D. Hill, LLC, and John D. Hill, and Rubenstein & Thurman
LPA and Scott A. Rubenstein, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
D ETERS , Judge.
{¶1} In this appeal, defendant-appellant Sean Zeigler argues the trial court
committed plain error by failing to merge his convictions for aggravated burglary, two
counts of rape, and felonious assault because they were allied offenses of similar
import. Because the offenses were committed separately, the trial court did not commit
plain error by failing to merge them. We, therefore, affirm its judgment.
The Charges
{¶2} In March 2015, Zeigler was charged in a six-count indictment. Zeigler
was charged in counts one and two with aggravated burglary in violation of R.C.
2911.11(A)(1) and (2), in counts three and four with vaginal rape and rape by fellatio
in violation of R.C. 2907.02(A)(2), in count five with felonious assault in violation of
R.C. 2903.11(A)(1), and in count six with tampering with evidence in violation of R.C.
2921.12(A)(1). The aggravated-burglary, rape, and felonious-assault counts were
accompanied by one-year and three-year firearm specifications pursuant to R.C.
2941.141 and 2941.145.
Evidence Adduced at the Jury Trial
{¶3} Zeigler pleaded not guilty to the charges and his case proceeded to a
jury trial where the state presented the following evidence. On December 17, 2014,
J.R. was living at her sister’s apartment with her three young daughters. She was
asleep in the master bedroom with the three girls when something woke her around
3:40 a.m. She checked social media on her cell phone while she continued to lie in
bed. Just as she was dozing off, a man kicked open the bedroom door and burst
inside. J.R. recognized the man as Zeigler. He was wearing all black, had gloves on,
and had a small pistol in his hand. J.R. sat up screaming, which woke her one-year-
old daughter, who was sleeping in the bed beside her.
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{¶4} Zeigler ordered J.R. to “Shut up, get up, bitch.” J.R. complied. She
stood up and pleaded with Zeigler not to do anything to her in front of her kids.
Zeigler ordered her to take off the t-shirt she was wearing as a nightgown. J.R.
complied, but she continued to plead with him. She testified, “I’m screaming, crying,
just asking him. Zig—I’m saying his name—I’m saying Zig, please don’t do this.” At
this point, J.R.’s other two daughters awakened. Zeigler grabbed J.R. and hit her in
the head with his pistol.
{¶5} At gunpoint, Zeigler forced J.R. down the hallway to another bedroom
that contained a partially deflated air mattress. Zeigler swept the items off of the
mattress, placed a green towel on top of the mattress, and pushed J.R. down on top
of it. As J.R. lay on her stomach, she tried to turn so she could see what Zeigler was
doing, but Zeigler shoved the gun in her face and ordered her to turn around. J.R.
thought Zeigler was putting on a condom, but she could not say for sure. Zeigler
then got on top of J.R., put his penis in her vagina, and “pumped maybe a good four
times or so” before J.R.’s one-year-old daughter walked into the room. Zeigler told
J.R. to stay still while he took the little girl back to the master bedroom with her
sisters.
{¶6} Zeigler was gone for some time. J.R. could hear him walking around
on the wooden floors in the apartment. She heard him walk into the bathroom and
turn on the water. He returned to where she was, put the gun in her mouth, and
walked her into the bathroom. Once there, he ordered her into the bathtub. When
she asked why, he put the gun back in her mouth and repeated the order. J.R.
complied. The water was still running as she stood there in the tub. Zeigler shut the
water off and ordered J.R. to sit down in the tub. Panicked, thinking that Zeigler was
going to kill her, J.R. pleaded with him for her life.
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{¶7} At that point, J.R.’s one-year-old daughter walked into the bathroom.
J.R. pleaded with Zeigler not to shoot her in front of her daughter. Zeigler took the
child back to the master bedroom. While there, he grabbed a CVS pharmacy bag
filled with prescription medication and returned to the bathroom. He grabbed other
items from a shelf in the bathroom closet. J.R. was still sitting in the bathtub when
he pulled out his penis and put it into her mouth. She again pleaded with Zeigler to
stop and he left the bathroom.
{¶8} Zeigler paced back and forth in the hallway as he talked to someone on
the phone asking what he should do. When J.R. heard this, she pleaded for her life,
promising she would say nothing if Zeigler would leave her alone. Zeigler finished
the phone call by stating that he would call back when he was done. He then sat
down on the toilet in the bathroom. He called his girlfriend and put the phone on
speaker. J.R. pleaded with Zeigler’s girlfriend to stop Zeigler. Zeigler then took the
phone back into the hallway and told his girlfriend that he would call her when he
was heading back to her.
{¶9} When Zeigler came back into the bathroom, he started making J.R.
take the medications he had collected. He began with a Percocet prescription. He
removed the Percocet one-by-one from their wrappers, threw them at J.R., and told
her to swallow them. She complied, but she pleaded with Zeigler to stop, saying the
pills were making her sick.
{¶10} Zeigler then threw a bottle of rubbing alcohol at J.R. and ordered her
to drink it. When J.R. told Zeigler that she couldn’t drink the rubbing alcohol, he hit
her, and then put the gun to her forehead. She complied and tried to drink the
rubbing alcohol, but it burned her mouth. Zeigler gave her a cup of water and
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ordered her to finish drinking the rubbing alcohol. She continued drinking the
rubbing alcohol until it started to make her vomit repeatedly.
{¶11} J.R. was sitting in the bathtub in a mixture of water and vomit when
Zeigler forced her to open her mouth. He squeezed out an entire tube of toothpaste
into it. The toothpaste made J.R. vomit again. This time she started vomiting blood.
J.R.’s three-year-old daughter came to the bathroom door and asked why J.R. was
throwing up and bleeding. J.R. replied, “Mommy’s sick;” and she told her daughter
to go back to her bedroom and watch television. J.R. testified that at this point
approximately two hours had passed since Zeigler had kicked in her bedroom door.
{¶12} J.R. was feeling lightheaded. She was drifting in and out of
consciousness when she saw Zeigler pick up a bottle of Motrin. J.R. told Zeigler she
was allergic to the Motrin and that taking it would shut down her kidneys and kill
her. Zeigler made J.R. take the Motrin. Zeigler then left the room and started
talking on his phone. J.R. could hear him say, “I don’t know. She[’s] in here
throwing up. Her kids in here, I don’t know if I want to shoot her. I don’t know if I
want to keep making her [take] this shit.”
{¶13} When he returned to the bathroom, J.R.’s one-year-old daughter was
screaming, trying to get to her mother. Zeigler yelled at the girl to shut up and go
back into the bedroom. He then told J.R., “You better shut up before I kill you.”
Zeigler then began to collect the foil wrappers for the Percocets. The little girl was
still crying. Zeigler asked J.R. where her bottle was and he retrieved it. He started to
put tap water in the bottle, but J.R. explained that only milk would quiet the girl.
Zeigler told J.R. that he wasn’t going to get her milk and that she had better shut up
or he was going to kill her. J.R. pleaded for her daughter’s life as she drifted in and
out of consciousness. Eventually, J.R. heard Zeigler leave the bathroom and go down
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OHIO FIRST DISTRICT COURT OF APPEALS
the steps toward the kitchen. When she heard Zeigler coming back up the steps, she
slid down in the tub, held her breath, and pretended to be dead. She lay there very
still as her one-year-old daughter screamed her name.
{¶14} When Zeigler came back into the bathroom, he called J.R.’s name and
hit her. J.R. didn’t move and continued to hold her breath. She could hear Zeigler
cursing, slamming around, and collecting things. Then she heard him run out.
When she heard the door close, she got out of the tub, gathered her daughters
together, and texted a neighbor for help. By this time, the sun was up and it was
approximately three and a half hours since Zeigler had kicked in her bedroom door.
{¶15} Unable to wait for her neighbor’s arrival, J.R. wrapped a towel around
herself and, still dry heaving, she ran to her neighbor’s apartment with her
daughters. The neighbor called for emergency assistance. J.R. was transported by
ambulance to the hospital. Shortly after her arrival, a police detective interviewed her
briefly because she was in considerable stomach pain and was still dry heaving. The
detective obtained enough information to proceed with an investigation. While J.R.
was being prepped for surgery to empty the contents of her stomach, the detective
visited her apartment. He then interviewed Zeigler, who had been taken into custody
near J.R.’s residence.
{¶16} Zeigler denied any involvement in the offenses, but he consented to a
buccal swab and a genital swab for DNA testing. Subsequent analysis of the genital
swab revealed the presence of J.R.’s DNA. Zeigler’s phone records showed that he
had made and received a number of phone calls during the time of the offenses,
including several calls with his girlfriend. From the bathtub at J.R.’s apartment, the
police recovered multiple towels and washcloths as well as an empty bottle of
rubbing alcohol.
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Jury Verdict and Sentence
{¶17} A jury acquitted Zeigler of the aggravated burglary in violation of R.C.
2911.11(A)(2) and all of the firearm specifications, but it found him guilty of the remaining
offenses. The trial court sentenced Zeigler to eight years in prison for the aggravated
burglary, ten years for each rape, seven years for the felonious assault, and 24
months for tampering with evidence. It ordered that all the terms be served
consecutively, for a total aggregate sentence of 37 years in prison.
Allied Offenses of Similar Import
{¶18} In a single assignment of error, Zeigler argues that the trial court erred
by failing to merge the aggravated burglary, the two counts of rape, and the felonious
assault of J.R. under R.C. 2941.25.
{¶19} R.C. 2941.25 codifies the General Assembly’s intent to prohibit or
allow multiple punishments for two or more offenses resulting from the same
conduct. R.C. 2941.25(A) provides that when the same conduct by the defendant
involves two or more allied offenses of similar import, the defendant may be
convicted of only one offense. R.C. 2941.25(B) provides that when the defendant’s
conduct constitutes two or more dissimilar offenses, or when the conduct is similar
but is committed separately or with a separate animus, the defendant may be
convicted of all the offenses.
{¶20} The Ohio Supreme Court has “consistently recognized that merger is a
sentencing question, not an additional burden of proof shouldered by the state at
trial.” State v. Washington, 137 Ohio St.3d 4212, 2013-Ohio-4982, 999 N.E.2d 661,
¶ 18. Rather, “[t]he defendant bears the burden of establishing his entitlement to the
protection provided by R.C. 2941.25 against multiple punishments for a single
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criminal act.” Id.; see State v. Pippin, 1st Dist. Hamilton Nos. C-160380 and C-
160381, 2017-Ohio-6970, ¶ 48.
{¶21} Zeigler concedes that he has forfeited all but plain error by failing to
raise the issue of allied offenses at sentencing. See State v. Rogers, 143 Ohio St.3d
385, 2015-Ohio-2459, 38 N.E.3d 86, ¶ 3 and 21; State v. Daniels, 1st Dist. Hamilton
No. C-160203, 2017-Ohio-548, ¶ 12. “[T]o prevail on a claim of plain error under
these circumstances, [Zeigler] must demonstrate a prejudicial effect—a ‘reasonable
probability’ that ‘he has, in fact been convicted of allied offenses of similar import
committed with the same conduct and the same animus.’ ” Daniels at ¶ 14, quoting
Rogers at ¶ 3 and 25.
{¶22} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶
31, the Ohio Supreme Court held that when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts must ask three
questions: “(1) Were the offenses dissimilar in import or significance? (2) Were they
committed separately? and (3) Were they committed with separate animus or
motivation?” Separate convictions are permitted if the court affirmatively answers
any of the three questions. Id.{¶23} Neither the Ruff decision, nor the language in R.C. 2941.25 mandates
the order of the inquiry. Thus, courts may begin their analysis with any of the three
questions; and they may end their analysis upon an affirmative answer to any of the
three questions. State v. Williams, 1st Dist. Hamilton No. C-140199, 2015-Ohio-
3968, ¶ 53, quoting State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-
2997, ¶ 86.
{¶24} Zeigler was convicted of aggravated burglary in violation of R.C.
2911.11(A)(1), which provides that “no person, by force, stealth, or deception shall
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trespass in an occupied structure * * * when another person other than an
accomplice of the offender is present, with purpose to commit in the structure * * *
any criminal offense if * * * (1) the offender inflicts, or attempts, or threatens to
inflict physical harm on another.” Zeigler was also convicted of felonious assault, in
violation of R.C. 2903.11(A)(1), which provides that “no person shall knowingly * * *
[c]ause serious physical harm to another or to another’s unborn,” and two counts of
rape, in violation of R.C. 2907.02(A)(2), which provides, “[n]o person shall engage in
sexual conduct with another when the offender purposely compels the other person
to submit by force or threat of force.”
{¶25} Zeigler argues the felonious-assault and two rape offenses must merge
with the aggravated burglary because they provided the “physical harm” necessary
for the aggravated-burglary offense. Zeigler maintains that the state relied on the
same physical harm either from the two counts of rape—his forceful and injurious
vaginal and oral penetration of J.R. at gunpoint—or, alternatively, from his conduct
that constituted felonious assault—his forcing J.R. to ingest various medications and
other chemicals, which caused her serious injury—to elevate the burglary offense to
aggravated burglary, and thus, the offenses were committed with the same conduct.
We disagree.
{¶26} Here, Zeigler’s actions in forcing J.R. to ingest multiple chemical
substances were temporally distinct. Zeigler’s conduct in forcing J.R. to ingest
Percocet and/or rubbing alcohol and her vomiting blood in response to her ingestion
of those substances is physical harm that would support the physical-harm element
of the felonious assault. Zeigler’s separate conduct in forcing J.R. to take Motrin,
despite her protests that she was allergic to it and consuming the medicine could kill
her, supports the physical-harm element necessary for the aggravated-burglary
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conviction. Thus, the aggravated burglary, two counts of rape, and felonious assault
are not allied offenses of similar import because they were committed by separate
conduct. Accordingly, the trial court did not commit plain error by failing to merge
them. We, therefore, overrule Zeigler’s sole assignment of error and affirm the
judgment of the trial court.
Judgment affirmed.
MOCK, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry this date.
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