State v. Bailey

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Bailey, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
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      South Front Street, Columbus, Ohio 43215, of any typographical or other
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      the opinion is published.




                          SLIP OPINION NO. 

             THE STATE OF OHIO, APPELLANT, v. BAILEY, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Bailey, Slip Opinion No. 

.]
Criminal law—R.C. 2941.25—Plain-error doctrine—A defendant who fails to
        preserve the issue of merger of allied offenses under R.C. 2941.25 by raising
        an objection in the trial court forfeits all but plain error—Defendant failed
        to establish that trial court’s decision not to merge kidnapping and rape
        counts for purposes of sentencing constituted plain error—Judgment
        reversed and sentence imposed by trial court reinstated.
    (No. 2021-1432—Submitted July 13, 2022—Decided December 14, 2022.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-200386,
                                      

.
                                   __________________
        DONNELLY, J.
        {¶ 1} This case turns on the proper application of the plain-error doctrine.
We conclude that the plain-error doctrine was not properly applied by the First
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District Court of Appeals in this matter. We, therefore, reverse the court of appeals’
judgment.
                     FACTS AND PROCEDURAL HISTORY
          {¶ 2} Appellee, Tytus Bailey, approached a group of three—one woman
and two men—in downtown Cincinnati with the intent to rob them. When he
learned they did not have much of value to take, Bailey knocked the two men
unconscious and threatened to do the same to the woman. He then forced the
woman to walk the distance of about one city block to a parking garage where he
raped her. Bailey was arrested and indicted in the Hamilton County Court of
Common Pleas for one count each of robbery, kidnapping, and abduction and two
counts of rape. A jury found Bailey guilty on all counts.
          {¶ 3} For purposes of sentencing, the trial court merged the abduction and
kidnapping counts. The court concluded that the kidnapping and rape counts did
not merge, because kidnapping the victim and forcing her walk to the parking
garage was an offense independent of the subsequent rapes. The court sentenced
Bailey to prison terms of 11 years for each rape count, 11 years for the kidnapping
count, and 8 years for the robbery count—the maximum sentences available—and
ordered that the sentences be served consecutively. Bailey did not object at
sentencing to the trial court’s failure to merge the kidnapping and rape counts.
          {¶ 4} Bailey appealed to the First District. The court of appeals denied three
of Bailey’s assignments of error, which are no longer at issue in this case, and
reversed on the fourth, concluding that the kidnapping and rape counts were allied
offenses of similar import that should have been merged and that the trial court
committed plain error by failing to merge them.
          {¶ 5} We accepted appellant the state’s appeal on the following proposition
of law:




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               A trial court’s judgment to sentence two offenses separately
       is due deference by a reviewing court where: the record strongly
       supports the determination that the movement of the rape victim was
       substantial enough to attain independent significance; the reviewing
       court was not present at trial to view the demeanor of the defendant
       or the victim; the defendant waived the issue and caselaw supports
       separate sentences in similar cases.        When a reviewing court
       reverses, not for any apparent “manifest injustice”—but because it
       subjectively disagrees with the trial court’s determination—it is
       simply substituting its judgment for that of the trial judge. Under
       such circumstances, the reviewing court’s reversal is itself properly
       reversed.


See 

, 

, 

.
                                     ANALYSIS
                                 Standard of Review
       {¶ 6} We review de novo whether certain offenses should be merged as
allied offenses under R.C. 2941.25. State v. Williams, 

, 2012-
Ohio-5699, 

.
                                Plain-Error Doctrine
       {¶ 7} The question before this court is whether the First District properly
determined that the trial court erred by not merging the kidnapping and rape counts
as allied offenses. Because it is undisputed that Bailey failed to preserve the issue
of merger at trial, we review the issue for plain error. See State v. Rogers, 

, 

, 

 (“the failure to raise the allied
offense issue at the time of sentencing forfeits all but plain error”).
       {¶ 8} Under the plain-error doctrine, intervention by a reviewing court is
warranted only under exceptional circumstances to prevent injustice. State v. Long,




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, 

 (1978), paragraph three of the syllabus (“Notice
of plain error * * * is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a miscarriage of justice”). To prevail under the
plain-error doctrine, Bailey must establish that “an error occurred, that the error
was obvious, and that there is ‘a reasonable probability that the error resulted in
prejudice,’ meaning that the error affected the outcome of the trial.” (Emphasis
added in Rogers.) State v. McAlpin, ___ Ohio St.3d ___, 

, ___
N.E.3d ___, ¶ 66, quoting Rogers at ¶ 22; see also State v. Wilks, 

, 

, 

.
        {¶ 9} The elements of the plain-error doctrine are conjunctive: all three
must apply to justify an appellate court’s intervention. State v. Barnes, 

, 

 (2002) (“By its very terms, the rule places three
limitations on a reviewing court’s decision to correct an error despite the absence
of a timely objection at trial”).
        {¶ 10} First, there must be error—i.e., “ ‘a deviation from a legal rule’ that
constitutes ‘an “obvious” defect in the trial proceedings.’ ” Rogers, 

, 

, 

, quoting 

. In this case,
Bailey challenged the trial court’s determination to not merge the kidnapping and
rape counts as error. And the First District agreed, concluding that the trial court’s
failure to merge those counts constituted an obvious error. The test to determine
whether allied offenses should be merged is well known:


                We have applied a three-part test under R.C. 2941.25 to
        determine whether a defendant can be convicted of multiple
        offenses: “As a practical matter, when determining whether offenses
        are allied offenses of similar import within the meaning of R.C.
        2941.25, courts must ask three questions when defendant’s conduct
        supports multiple offenses: (1) Were the offenses dissimilar in




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       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. Earley, 

, 

, 

, ¶ 12, quoting
State v. Ruff, 

, 

, 

.
       {¶ 11} Although determining whether R.C. 2941.25 has been properly
applied is a legal question, it necessarily turns on an analysis of the facts, which
can lead to exceedingly fine distinctions. See State v. Johnson, 

,

, 

, ¶ 52 (“this analysis may be sometimes difficult
to perform and may result in varying results for the same set of offenses in different
cases”), abrogated in part by Ruff at ¶ 1 (holding that “offenses resulting in harm
that is separate and identifiable are offenses of dissimilar import” for purposes of
merger under R.C. 2941.25(B)).
       {¶ 12} In this case, Bailey forced the victim to walk about a city block to a
parking garage where he raped her. He had informed the victim that his intention
was to rape her. The trial court determined that Bailey’s kidnapping of the victim
by forcing her to walk to a different location was a separate offense from the rape
that he committed once they reached the parking garage—in other words, the
kidnapping was not merely incidental to the rape. This issue has arisen previously,
see, e.g., State v. Logan, 

, 

 (1979), and
culminated in the three-part test elucidated in Ruff and Earley.
       {¶ 13} Because the trial court’s ruling here involved a legal determination
premised on the specific facts of this case, the court of appeals properly reviewed
the issue de novo. See Williams, 

, 

, 

. Indeed, there is no dispute about the facts in this case; the dispute




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is over the import of those facts. Finding that the facts of this case are most similar
to those in Logan—based in large part on the distance that Bailey forced the victim
to walk before reaching the location where he raped her—the First District
concluded that the kidnapping here “was merely incidental to the rape.” 2021-
Ohio-3664, ¶ 12. But the three-part test is not a factual test centered on distance or
any other fact. Nor should it be. See Johnson at ¶ 52.
       {¶ 14} The second element of the plain-error test requires the error to be
obvious. The trial court concluded that Bailey’s motivation for making the victim
walk to the parking garage was not incidental to the rape; the First District
concluded that it was. Even if we were to assume that the trial court erred by not
merging the kidnapping and rape counts, the facts of the case indicate that such an
error was not obvious.
       {¶ 15} The second element of the three-part test gives teeth to our belief
that the plain-error doctrine is warranted only under exceptional circumstances to
prevent injustice. See Long, 

, 

, at paragraph three
of the syllabus; see also United States v. Atkinson, 

, 

,

 (1936) (“In exceptional circumstances, especially in criminal cases,
appellate courts, in the public interest, may, of their own motion, notice errors to
which no exception has been taken, if the errors are obvious, or if they otherwise
seriously affect the fairness, integrity, or public reputation of judicial
proceedings”).
                                  CONCLUSION
       {¶ 16} Application of the law governing the merger of allied offenses is
dependent on the specific facts of each case. Here, it is clear to us that in an area
of law so driven by factual distinctions, any asserted error was not obvious.
Because Bailey failed to preserve the issue of merger of allied offenses by raising
an objection in the trial court, he forfeited all but plain error, which he has not




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established. Accordingly, we reverse the judgment of the First District Court of
Appeals and reinstate the sentence imposed by the trial court.
                                                                  Judgment reversed.
       DEWINE and BRUNNER, JJ., concur.
       FISCHER, J., concurs, with an opinion joined by O’CONNOR, C.J.
       KENNEDY and STEWART, JJ., concur in judgment only.
                                _________________
       FISCHER, J., concurring.
       {¶ 17} I agree with the majority opinion that the First District Court of
Appeals erred when it found that the trial court committed plain error by refusing
to merge the offenses of kidnapping and rape. I write separately to address the First
District’s reliance on this court’s decision in State v. Underwood, 

, 

, 

.
       {¶ 18} The First District noted that it was required to apply plain-error
analysis because appellee, Tytus Bailey, had failed to object at sentencing to the
trial court’s decision not to merge the kidnapping and rape counts. 2021-Ohio-
3664, ¶ 7. Then, relying on its own decision in State v. Merz, 1st Dist. Hamilton
No. C-200152, 

, and this court’s decision in Underwood, the First
District held: “A trial court’s failure to merge allied offenses ‘necessarily affects a
substantial right’ that constitutes plain error.” 

 quoting Merz at ¶ 7. I write to
point out that this court’s holding in Underwood is not as broad as the First District
suggests and does not support the First District’s conclusion that a failure to merge
allied offenses of similar import always constitutes plain error, even if the error is
not obvious.
       {¶ 19} In Underwood, Richard Underwood committed two acts of theft and
was indicted on four counts: two counts of theft and two counts of aggravated theft.
Id. at ¶ 2. Underwood entered into a plea deal with the state and pled no contest to
each of the four counts. Id. at ¶ 4. The state filed a sentencing recommendation as




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part of the deal; in that sentencing recommendation, the state noted, “ ‘The two
counts in each of the different categories of thefts would be considered allied
offenses of similar import and would require the Court to sentence the defendant to
only one of the thefts.’ ” Id. at ¶ 5. Despite the state’s sentencing recommendation,
the trial court sentenced Underwood to separate prison terms on each count and
made no mention of allied offenses. Id. at ¶ 6.
       {¶ 20} On appeal, Underwood argued that the trial court had improperly
imposed separate sentences for allied offenses of similar import. Underwood, 

, 

, 

, at ¶ 7. The state argued that
Underwood’s sentence was not reviewable on appeal because it was imposed
pursuant to a plea agreement. 

 Therefore, the issue before this court was whether
an agreed-upon sentence is reviewable when it includes separate sentences for
allied offenses of similar import. Id. at ¶ 9. This court held that a defendant’s plea
to multiple counts does not affect the sentencing court’s mandatory duty to merge
allied offenses of similar import. Id. at ¶ 30. Therefore, we held that a court of
appeals may review a defendant’s claim that the court imposed separate sentences
for allied offenses of similar import, even when the defendant had agreed to the
sentence. Id. at ¶ 33. It was within that context that this court held that a trial
court’s failure to merge allied offenses of similar import may be considered plain
error, even if the parties jointly agreed upon the sentence.
       {¶ 21} In Underwood, the trial court’s failure to merge the allied offenses
was clearly plain error because the state had conceded that the offenses were allied
offenses of similar import in its sentencing report. But nowhere in Underwood did
this court hold that a reviewing court may forego a plain-error analysis when allied
offenses are involved. To the contrary, this court made clear that plain-error
analysis still applies, id. at ¶ 31-32, and that the party arguing plain error must show
that there was “ ‘a deviation from a legal rule’ that constitutes an ‘obvious’ defect
in the trial proceedings,” State v. Rogers, 

, 

, 38




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                                  January Term, 

, ¶ 22, quoting State v. Barnes, 

, 

(2002).
          {¶ 22} As the majority opinion points out, even if we were to assume that
the trial court erred by not merging the kidnapping and rape counts, the facts of the
case indicate that such an error was not obvious. Therefore, the facts in this case
do not support a finding of an obvious defect in the trial proceedings that would
constitute plain error.
          O’CONNOR, C.J., concurs in the foregoing opinion.
                                 _________________
          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, for appellant.
          The Law Office of John D. Hill, L.L.C., and John D. Hill Jr., for appellee.
          Timothy Young, Ohio Public Defender, and Kimberly E. Burroughs,
Assistant Public Defender, urging affirmance for amicus curiae, Ohio Public
Defender.
                                 _________________




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