State v. Smith

[Cite as State v. Smith, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                           No. 112115
                 v.                               :

ANTONIO K. SMITH,                                 :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED IN PART; VACATED IN PART;
                           AND REMANDED
                 RELEASED AND JOURNALIZED: December 21, 2023


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-20-653755-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Christine M. Vacha, Assistant Prosecuting
                 Attorney, for appellee.

                 Susan J. Moran, for appellant.


EILEEN T. GALLAGHER, J.:

                Defendant-appellant, Antonio Smith (“Smith”), appeals from his

convictions following a jury trial. He raises the following assignments of error for

review:
      1. The trial court erred in denying Smith’s motion for acquittal
      pursuant to Crim.R. 29 when the state failed to submit sufficient
      evidence for the crimes charged, denying the appellant due process.

      2. Smith’s convictions are against the manifest weight of the evidence
      depriving Mr. Smith of due process under the law.

      3. The trial court erred when it failed to dismiss the gross sexual
      imposition conviction contained in Count 5 as being allied to the gross
      sexual imposition charge in Count 6, and thus violated Mr. Smith’s
      rights under R.C. 2941.25 (allied offenses) and the double jeopardy
      clause of Art. I., Section 10, Ohio Constitution and the Fifth and
      Fourteenth Amendments to the United States Constitution.

             After careful review of the record and relevant case law, we affirm in

part, vacate in part, and remand for further proceedings consistent with this

opinion.

                      I. Procedural and Factual History

             On October 16, 2020, Smith was named in a 23-count indictment,

charging him with two counts of rape in violation of R.C. 2907.02(A)(1)(b) (Counts

1 and 2); five counts of rape in violation of R.C. 2907.02(A)(2) (Counts 3, 5, 7, 9, and

11); five counts of rape in violation of R.C. 2907.02(A)(1)(c) (Counts 4, 6, 8, 10, and

12); one count of gross sexual imposition in violation of R.C. 2907.05(A)(4) (Count

13); five counts of gross sexual imposition in violation of R.C. 2907.05(A)(1) (Counts

14, 16, 18, 20, and 22); and five counts of gross sexual imposition in violation of R.C.

2907.05(A)(5) (Counts 15, 17, 19, 21, and 23). Each offense carried a sexually violent

predator specification pursuant to R.C. 2941.148(A).

             Counts 1-13 corresponded to alleged incidents of sexual assault

involving Smith’s sister, Jane Doe 1 (d.o.b. 1998). Counts 14-17 corresponded to
alleged incidents of sexual assault involving Smith’s sister, Jane Doe 2 (d.o.b. 2006).

Counts 18-21 corresponded to alleged incidents of sexual assault involving Smith’s

cousin, Jane Doe 3 (d.o.b. 1994). Finally, Counts 22 and 23 corresponded to alleged

incidents of sexual assault involving Smith’s paternal aunt, Jane Doe 4 (d.o.b. 1978).

             The matter proceeded to a jury trial on August 24, 2022, where the

following relevant facts were adduced.

             Smith, now 27 years old, is the oldest of 12 siblings, including his

younger sisters, Jane Doe 1 and Jane Doe 2. As a child, Smith would often spend

the night at his paternal grandmother’s home with his siblings and cousins. During

these occasions, a group of ten children or more would sleep in the common area of

his grandmother’s home.

            Jane Doe 1 was 24-years old at the time of trial. She testified that when

she was growing up, she shared a “typical brother and sister relationship” with

Smith. (Tr. 413.) Their relationship changed, however, when Smith began to engage

in inappropriate behavior beginning when Jane Doe 1 was approximately nine or

ten years old. Jane Doe 1 explained the first inappropriate encounter as follows:

      The first thing that I remember is I remember I was asleep, we were on
      the floor in my grandma’s living room, I remember feeling [Smith] pull
      my pubic hairs. It was like a tug at it. When I woke up, I’m like
      confusion, what’s going on. He was like, oh, I just wanted to see if that
      hurts.

(Tr. 414-415.)

             Jane Doe 1 testified that her relationship with Smith “went downhill”

after this first encounter. During a subsequent sleepover at their grandmother’s
home, Jane Doe 1 recalled waking up and feeling Smith rubbing her “butt” and

“private area.” (Tr. 419.) When Jane Doe 1 was approximately 11 years old, Smith

put his fingers inside Jane Doe 1’s vagina while she was sleeping. Jane Doe 1 recalled

a similar incident during a sleepover when she was approximately 13 years old,

stating,

      [A]nd I remember waking up and again, he was touching me, touching
      my private areas, and like I could feel him like playing with himself as
      he was touching me.

(Tr. 425.) Jane Doe 1 testified that Smith rubbed her inappropriately again the

following night. On this occasion, Jane Doe 1 believed that Smith was “trying to put

himself inside of [her].” (Tr. 427.) Shortly thereafter, Jane Doe 1 felt Smith

ejaculate.

             According to Jane Doe 1, the abuse continued until she was

approximately 18 or 19 years old. Jane Doe 1 admitted that she did not tell anyone

about Smith’s conduct when it first began because she was scared and was worried

no one would believe her. She recalled disclosing Smith’s conduct to one of her

cousins. However, they did not tell an adult out of fear of getting in trouble.

              In 2020, Jane Doe 1 was having a conversation with her younger

sister, Jane Doe 2, and asked whether Jane Doe 2 had ever been touched

inappropriately before. At that time, Jane Doe 2 disclosed that Smith had engaged

in such conduct with her when she was younger. Jane Doe 1 later had a similar

conversation with her cousin, Jane Doe 3, who similarly stated that Smith had

touched her inappropriately during sleepovers at their grandmother’s home. Based
on this new information, Jane Doe 1 decided that it was necessary to tell her parents

about Smith’s past conduct. The police were contacted several days later.

             Jane Doe 2 was 15 years old at the time of trial. She testified that when

she was younger, she and her siblings would have sleepovers at their grandmother’s

home. When Jane Doe 2 was 13 years old, she was watching television on the floor

in her grandmother’s home when Smith touched her legs and ran his hand up to her

“butt and [her] private.” (Tr. 623-624.) Jane Doe 2 explained that Smith touched

her butt and the outside of her vagina while his hand was under her clothes. Jane

Doe 2 testified that she did not react or tell anyone about the incident because she

was scared of her older brother. On a separate occasion, Jane Doe 2 was sleeping

on the couch when she awoke to Smith touching her legs and private area. (Tr. 626-

627.) Again, Jane Doe 2 did not tell Smith to stop. Nor did she immediately tell

anyone about his conduct. Jane Doe 2 maintained, however, that she told her sister,

Jane Doe 1, about the inappropriate touching “a couple months” after the second

incident occurred. (Tr. 628.) Jane Doe 2 stated that no member of her family was

directing her testimony or otherwise telling her what to say about Smith.

             Smith’s cousin, Jane Doe 3, who was 28 years old at the time of trial,

testified that in 2020, she fell asleep with Smith on a couch located in their

grandmother’s home. At some point, Jane Doe 3 woke up and felt Smith “touching”

her. (Tr. 668.). Jane Doe 3 nudged Smith and told him to move over because he

was too close. Jane Doe 3 fell back asleep but later awoke with Smith “on top of

[her].” (Tr. at id.) Jane Doe 3 testified that she pushed Smith off of her and
immediately left her grandmother’s home. Jane Doe 3 stated that she did not

contact the police or disclose Smith’s conduct to anyone because she “didn’t think

nothing of it.” (Tr. 670.) Jane Doe 3 explained that she only shared the incident

with a detective once a formal investigation was initiated following the disclosures

of Jane Doe 1 and Jane Doe 2

             Smith’s paternal aunt, Jane Doe 4, confirmed that it was common for

Smith, his siblings, and his cousins to spend the night at their grandmother’s house

during weekends or summer breaks. In 2019 or 2020, Jane Doe 4 was sleeping next

to Smith on the living room couch when she felt Smith touching her in between her

legs. Jane Doe 4 testified that Smith continued to move his hands between her legs

each time she attempted to move away from him. Jane Doe 4 stated that Smith’s

conduct made her feel uncomfortable. However, she did not disclose the incident to

anyone until she learned that Smith had engaged in similar conduct with her nieces,

Jane Doe 1 and Jane Doe 2

              Detective Kevin Smith (“Det. Smith”), of the Cleveland Police

Department sex-crimes unit, testified that he was assigned to investigate the

allegations of sexual abuse levied against Smith. In the course of his investigation,

Det. Smith separately interviewed Smith as well as the alleged victims, Jane Doe 1,

Jane Doe 2, Jane Doe 3, and Jane Doe 4. Det. Smith testified that Smith denied the

allegations of sexual abuse “which is obviously very common in interviewing a

suspect.” (Tr. 723.)
              At the close of the state’s case-in-chief, the state agreed to dismiss

Counts 5-12, 15, and 18-19 of the indictment. (Tr. 740, 749 and 768.) The state

further sought to amend the dates alleged in Counts 14-17, and 22-23 to reflect the

testimony of the state’s witnesses, which the court granted with respect to Counts

14-17. Smith then moved the trial court for a Crim.R. 29 judgment of acquittal on

the remaining counts. Following extensive arguments on the record, the trial court

granted the motion to dismiss as to Counts 2, 3, and 23. (Tr. 772-773.) The counts

were subsequently renumbered by the court to reflect the current offenses before

the jury.1

              Smith testified on his own behalf. He confirmed that he frequently

stayed at his grandmother’s home and often had sleepovers with his siblings and

cousins. Smith, however, adamantly denied engaging in any type of sexual contact

with any of his family members, “whether it was at his grandmother’s home or not.”

(Tr. 894.) Smith testified that he first learned about the allegations when his father

confronted him, and subsequently held him at gunpoint, in October 2020. Smith

stated that prior to October 2020, “nobody had made any suggestion that [he] had

done anything inappropriate.” (Tr. 903.) Smith testified that he was surprised to

learn of the allegations, particularly when he, Jane Doe 1, and Jane Doe 3 went on

vacation together in August 2019, and “carried on as usual” when they returned from

their trip. (Tr. 905.)



       1 For the purposes of this appeal, we refer to the counts as originally charged in
the indictment.
              At the conclusion of trial, Smith was found guilty of one count of gross

sexual imposition in violation of R.C. 2907.05(A)(4) (formerly Count 13), two counts

of gross sexual imposition in violation of R.C. 2907.05(A)(1) (formerly Counts 14,

16), and gross sexual imposition in violation of R.C. 2907.05(A)(5) (formerly Count

17). Smith was found not guilty of all remaining counts. In addition, the trial court

later found Smith not guilty of the sexually violent predator specifications previously

attached to former Counts 13, 14, 16, and 17. (Tr. 1057, 1079.)2

              On October 13, 2022, Smith was sentenced to a three-year period of

community-control sanctions. He was classified as a Tier II sex offender.

              Smith now appeals from his convictions.

                               II. Law and Analysis

                          A. Sufficiency of the Evidence

               In the first assignment of error, Smith argues the trial court erred

when it denied his motion for acquittal under Crim.R. 29 because the state failed to

present sufficient evidence to support his convictions.

              Crim.R. 29(A) provides that a court “shall order the entry of the

judgment of acquittal of one or more offenses * * * if the evidence is insufficient to

sustain a conviction of such offense or offenses.” “Because a Crim.R. 29 motion


      2  On July 21, 2023, the trial court issued a nunc pro tunc journal entry to correct
various aspects of the original sentencing journal entry. However, the nunc pro tunc entry
inaccurately reflects that Smith was found guilty of the sexually violent predator
specifications attached to former Counts 14, 16, and 17. Furthermore, the nunc pro tunc
entry inaccurately reflects that Smith was convicted under R.C. 2907.05(A)(L), as
opposed to R.C. 2907.05(A)(1), for former Counts 14 and 16. The journal entry must be
corrected nunc pro tunc to reflect what transpired on the record.
questions the sufficiency of the evidence, ‘[w]e apply the same standard of review to

Crim.R. 29 motions as we use in reviewing the sufficiency of the evidence.’”

Fairview Park v. Peah, 8th Dist. Cuyahoga No. 110128, 

, ¶ 37,

quoting State v. Tenace, 

, 

, 

, ¶ 37.

              A sufficiency challenge requires a court to determine whether the state

has met its burden of production at trial and to consider not the credibility of the

evidence but whether, if credible, the evidence presented would sustain a conviction.

State v. Thompkins, 

, 

 (1997). The relevant

inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. State v. Jenks, 

,

 (1991), citing Jackson v. Virginia, 

, 

,

 (1979).

              “‘Proof of guilt may be made by circumstantial evidence, real evidence,

and direct evidence, or any combination of the three, and all three have equal

probative value.’” State v. Rodano, 

, 

, ¶ 35 (8th

Dist.), quoting State v. Zadar, 8th Dist. Cuyahoga No. 94698, 

, ¶ 18.

Although circumstantial evidence and direct evidence have obvious differences,

those differences are irrelevant to the probative value of the evidence, and

circumstantial evidence carries the same weight as direct evidence. 

 citing State

v. Cassano, 8th Dist. Cuyahoga No. 97228, 

.              Further,

circumstantial evidence is not only sufficient, “‘“but may also be more certain,
satisfying, and persuasive than direct evidence.”’” Id. at ¶ 36, quoting State v.

Hawthorne, 8th Dist. Cuyahoga No. 96496, 

, quoting Michalic v.

Cleveland Tankers, Inc., 

, 

, 

 (1960).

                 In this case, Smith was convicted of four counts of gross sexual

imposition in violation of R.C. 2907.05(A)(1), (4), and (5). The statute provides, in

relevant part:

      No person shall have sexual contact with another, not the spouse of the
      offender; cause another, not the spouse of the offender, to have sexual
      contact with the offender; or cause two or more other persons to have
      sexual contact when any of the following applies:

      (1) The offender purposely compels the other person, or one of the
      other persons, to submit by force or threat of force.

      ***

      (4) The other person, or one of the other persons, is less than thirteen
      years of age, whether or not the offender knows the age of that person.

      (5) The ability of the other person to resist or consent or the ability of
      one of the other persons to resist or consent is substantially impaired
      because of a mental or physical condition or because of advanced age,
      and the offender knows or has reasonable cause to believe that the
      ability to resist or consent of the other person or of one of the other
      persons is substantially impaired because of a mental or physical
      condition or because of advanced age.

R.C. 2907.05(A).

                 As previously stated, former Count 13 related to conduct committed

against Jane Doe 1, and alleged, pursuant to R.C. 2907.05(A)(4), that between

August 12, 2007, to August 11, 2008, Smith “did have sexual contact, to wit: touched

butt/vagina, with [Jane Doe 1], not his spouse, whose age at the time of the said

sexual contact was under 13 years, to wit: [d.o.b. 1998].” (Formerly Count 13.) The
remaining convictions related to conduct committed against Jane Doe 2. Pursuant

to R.C. 2907.05(A)(1) and (5), the state alleged that (1) Smith “did have sexual

contact, to wit: touched butt/vagina, with [Jane Doe 2], not his spouse, by purposely

compelling such person to submit by force or threat of force” (formerly Counts 14

and 16), and (2) Smith “did have sexual contact, to wit: touched butt/vagina, with

[Jane Doe 2], not his spouse, and the ability of [Jane Doe 2] to resist or consent was

substantially impaired because of a physical condition, and [Smith] knew or had a

reasonable cause to believe that [Jane Doe 2]’s ability to resist or consent was

substantially impaired because of a physical condition.” (Formerly Count 17.)

              As applicable to each conviction, R.C. 2907.01(B) defines “sexual

contact” as “any touching of an erogenous zone of another, including without

limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a

breast, for the purpose of sexually arousing or gratifying either person.” The Ohio

Revised Code does not define “sexual arousal” or “sexual gratification.” However,

R.C. 2907.01(B) “‘contemplate[s] any touching of the described areas which a

reasonable person would perceive as sexually stimulating or gratifying.’” State v.

Tate, 8th Dist. Cuyahoga No. 98221, 

, quoting State v. Astley,

, 

 (10th Dist.1987); see also In re Anderson,

, 

 (12th Dist.1996). This court has

recognized that

      [i]n determining whether sexual contact occurred, the trier of fact may
      infer from the evidence presented at trial whether the defendant’s
      contact with the areas of the body outlined in R.C. 2907.01 was for the
      purpose of sexual arousal or gratification. Tate at ¶ 19; State v. Cobb,
      

, 

 (9th Dist.1991). The purpose
      of the contact may be inferred from the type, nature, and circumstances
      of the contact. Tate at ¶ 20, citing Meredith; see also Ohio v. Coleman,
      8th Dist. Cuyahoga No. 102291, 

 (finding that
      purpose may also be inferred from the defendant’s conduct as well as
      his or her personality). Accordingly, “[i]f the trier of fact determines
      that the defendant was motivated by desires of sexual arousal or
      gratification, and that the contact occurred, then the trier of fact may
      conclude that the object of the defendant’s motivation was achieved.”
      

.

State v. Fears, 8th Dist. Cuyahoga No. 104868, 

.

              R.C. 2901.22(A) states that “[a]person acts purposely when it is the

person’s specific intention to cause a certain result, or, when the gist of the offense

is a prohibition against conduct of a certain nature, regardless of what the offender

intends to accomplish thereby, it is the offender’s specific intention to engage in

conduct of that nature.” 

 In turn, R.C. 2901.01(A)(1) defines “[f]orce” as “any

violence, compulsion, or constraint physically exerted by any means upon or against

a person or thing.” The force element needed to prove the offense of gross sexual

imposition is the same as it is for rape. State v. Riggs, 10th Dist. Franklin Nos.

04AP-1279 and 04AP-1280, 

. The Supreme Court of Ohio

has stated that “[f]orce need not be overt and physically brutal, but can be subtle

and psychological.” State v. Eskridge, 

, 

 (1988).

“A threat of force can be inferred from the circumstances surrounding sexual

conduct * * *.” State v. Schaim, 

, 

 (1992).

              On appeal, Smith argues the “state failed to establish the essential

element of force for all four counts” of gross sexual imposition. Smith further
contends that his conviction pertaining to Jane Doe 1 was improper because her

“testimony failed to establish the essential element that the touching was done to

sexually gratify himself or her.” Lastly, Smith argues “the state failed to establish

that Jane Doe 2 was asleep during the GSI that was alleged in [former Count 17],

and that her sleeping was the substantial impairment under R.C. 2907.05(A)(5).”

              Preliminarily, we note that, contrary to Smith’s assertion on appeal,

the state was not required to prove the element of force for each gross-sexual-

imposition conviction. The element of force only pertained to the allegations levied

in former Counts 14 and 16. As previously discussed, R.C. 2907.05 contains various

prohibitions against sexual contact, depending on the nature of the offender’s

conduct or the age and ability of the victim.

              After careful review of the record, we find the state presented

sufficient evidence to support each of Smith’s convictions. In this case, Jane Doe 1

extensively outlined the pattern of abuse Smith engaged in during sleepovers at their

grandmother’s home. As it pertains to the allegations contained in former Count 13

of the indictment, Jane Doe 1 testified that when she was between the ages of nine

to eleven years old, she remembered waking up in the middle of the night to Smith

“feeling on [her] butt and kind of rubbing [her] private area.” (Tr. 419.) Jane Doe 1

explained that Smith “caress[ed] [her] butt” and then started “touching [her] down

there.” (Tr. 419.) Jane Doe 1 testified that this incident only involved inappropriate

touching, although she maintained that Smith’s conduct subsequently “changed

from touching to something different.” (Tr. 420.) Given the type, nature, and
circumstances of Smith’s conduct, we find a reasonable juror could infer that Smith

did touch the erogenous zone of Jane Doe 1, then less than 13 years of age, for the

purpose of sexual arousal or gratification.

              Jane Doe 2 similarly testified that Smith touched her inappropriately

over a span of several weeks during sleepovers at their grandmother’s home. As it

relates to the allegations of force or threat of force contained in former Counts 14

and 16, Jane Doe 2 testified that on separate occasions in 2020, Smith touched her

buttocks and the outside of her vagina. On each occasion, Smith manipulated Jane

Doe 2’s clothing to touch her private area. (Tr. 624, 627.) Jane Doe 2 stated that

she did not tell Smith to stop because she was “scared” of him because “he’s older

than [her].” (Tr. 624.) Jane Doe 2, who was 13 years old at the time of the incidents,

explained that she looked up to her then 25-year old brother and viewed him as a

“father figure.” (Tr. 634.) Given the nature of Smith’s relationship with Jane Doe 2

and the disparity in their ages and sizes, we find a reasonable juror could have

concluded that Smith manipulated his position of trust to overcome Jane Doe 2’s

will by fear or duress. See Eskridge, 

, 

 (the force

need not be overt or physically brutal and that subtle or psychological pressure can

cause a child victim to be overcome by fear or duress.); State v. Scott, 8th Dist.

Cuyahoga No. 110744, 

, citing State v. Milam, 8th Dist.

Cuyahoga No. 86268, 

 (13-year-old victim); State v. Dye, 

, 

 (1998).
              Finally, regarding former Count 17, Jane Doe 2 testified that the

second incident of inappropriate touching occurred while she was sleeping on her

grandmother’s couch. It has been held that “sleep is considered a ‘mental or physical

condition’ sufficient to substantially impair a victim’s ability to resist unwelcomed

sexual contact within the meaning of R.C. 2907.05(A)(5).” State v. Quinn, 9th Dist.

Medina No. 18CA0022-M, 

, citing State v. Porter, 9th Dist.

Medina No. 12CA0061-M, 

. Under these circumstances, we

find a reasonable juror could have concluded that Smith engaged in sexual contact

with Jane Doe 2 for the purpose of sexual arousal or gratification when he had

reasonable cause to believe that Jane Doe 2’s ability to resist or consent was

substantially impaired.

              Viewing the foregoing evidence in a light most favorable to the state,

we find the essential elements of R.C. 2907.05(A)(1), (4), and (5) were proven

beyond a reasonable doubt.

              The first assignment of error is overruled.

                     B. Manifest Weight of the Evidence

              In the second assignment of error, Smith argues his convictions are

against the manifest weight of the evidence. Smith contends that Jane Doe 1’s

testimony lacked credibility given her reputation for untruthfulness and her

willingness to socialize with him after the alleged instances of sexual abuse occurred.

Smith similarly argues that Jane Doe 2’s testimony lacked credibility where she
testified that the two incidents of sexual contact occurred a week apart while the

indictment alleged that the incidents occurred a month apart.

              When considering an appellant’s claim that a conviction is against the

manifest weight of the evidence, the appellate court functions as a “thirteenth juror”

and may disagree “with the factfinder’s resolution of * * * conflicting testimony.”

Thompkins, 

, 

, citing Tibbs v. Florida, 

, 

, 

 (1982). The appellate court examines the

entire record, weighs the evidence and all reasonable inferences that may be drawn

therefrom, considers the witnesses’ credibility and determines whether, in resolving

conflicts in the evidence, the trier of fact “‘clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.’” 

 quoting State v. Martin, 

, 

(1st Dist.1983). Reversal on manifest weight grounds is reserved for the

“‘exceptional case in which the evidence weighs heavily against the conviction.’” 

quoting 

.

              A trier of fact is free to believe all, some, or none of the testimony of

each witness testifying at trial. State v. Jones, 8th Dist. Cuyahoga No. 108371, 2020-

Ohio-3367, ¶ 85; State v. Sheline, 8th Dist. Cuyahoga No. 106649, 

. Thus, “[a] conviction is not against the manifest weight of the evidence simply

because the jury believed the testimony of the state’s witnesses and disbelieved the

defendant.” 

              Upon reviewing the evidence presented at trial, we are unable to

conclude that Smith’s convictions are against the manifest weight of the evidence.

In this case, the credibility of each alleged victim was widely explored on cross-

examination and the jury was provided all relevant information to assess the

veracity of their allegations against Smith. As evidenced by the findings of not guilty

on several charged offenses, it is clear the jury carefully considered the evidence and

the credibility of each witness when rendering its verdict. Furthermore, to the extent

Smith challenges the disparity between the dates listed in the indictment and Jane

Doe 2’s testimony, the record demonstrates that the trial court granted the state’s

motion to amend the dates alleged in former Counts 14, 16, and 17 to “May of 2020.”

(Tr. 740, 743-744.) See State v. Buchanan, 

, 

, ¶ 22

(8th Dist.) (“The date and time of a rape is not an essential element of the offense.”).

See also State v. Gus, 8th Dist. Cuyahoga No. 85591, 

 (“[T]he

state is given a certain amount of latitude in child sexual abuse cases and is not

strictly held to proving that a crime occurred during a period set forth in the

indictment. This is so partly because the specific time and date of the offense are

not elements of the offense.”); Ohio Jury Instructions, CR Section 413.07 (Rev. May

21, 2022) (When time is not essential to an offense, “[i]t is not necessary that the

state prove that the offense was committed on the exact day as charged in the

(indictment)(information)(complaint). It is sufficient to prove that the offense took

place on a date reasonably near the date claimed.”).
              Under the foregoing circumstances, we cannot say that “the [trier of

fact] clearly lost its way and created such a manifest miscarriage of justice that the

judgment must be reversed and a new trial ordered.” State v. Bell, 8th Dist.

Cuyahoga No. 106842, 

.

              The second assignment of error is overruled.

                     C. Allied Offenses of Similar Import

              In the third assignment of error, Smith argues the trial court erred by

failing to merge his two convictions for gross sexual imposition as charged in former

Counts 16 and 17 of the indictment. Smith contends that the two offenses arose from

the same incident and, therefore, were allied offenses of similar import.

              Pursuant to R.C. 2941.25(A), “[w]here 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.” However,

      [w]here 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.

R.C. 2941.25(B).

              In determining whether offenses are subject to merger for sentencing

under R.C. 2941.25, courts evaluate three separate factors — the import, the

conduct, and the animus. State v. Ruff, 

, 

, 

, paragraphs one and three of the syllabus. Offenses do not merge, and
a defendant may be convicted of and sentenced for multiple offenses if any one of

the following is true: (1) the offenses are dissimilar in import or significance, (2) the

offenses were committed separately, or (3) the offenses were committed with

separate animus or motivation. 

 at paragraph three of the syllabus, ¶ 25, 31.

               Offenses are dissimilar in import or significance 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.” Id. at ¶ 23. Thus, “a defendant’s conduct that constitutes two or more

offenses against a single victim can support multiple convictions if the harm that

results from each offense is separate and identifiable from the harm of the other

offense.” Id. at ¶ 26. “The evidence at trial or during a plea or sentencing hearing

will reveal whether the offenses have similar import.” Id.

              Offenses are committed separately within the meaning of R.C.

2941.25(B) if “‘one offense was complete before the other offense occurred, * * *

notwithstanding their proximity in time and that one [offense] was committed in

order to commit the other.’” State v. Woodard, 2d Dist. Montgomery No. 29110,

, quoting State v. Turner, 2d Dist. Montgomery No. 24421,

.       Thus, “‘when one offense is completed prior to the

completion of another offense during the defendant’s course of conduct, those

offenses are separate acts.’” 

 quoting State v. Mooty, 

, 

, ¶ 49 (2d Dist.).
              For purposes of R.C. 2941.25(B), animus has been defined as

“‘“purpose or more properly, immediate motive.”’”         State v. Priest, 8th Dist.

Cuyahoga No. 106947, 

, ¶ 12, quoting State v. Bailey, 8th Dist.

Cuyahoga No. 100993, 

, quoting State v. Logan, 

, 

 (1979). “‘If the defendant acted with the same purpose,

intent, or motive in both instances, the animus is identical for both offenses.’” State

v. Lane, 12th Dist. Butler No. CA2013-05-074, 

, quoting State

v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 

, ¶ 13. “Animus is

often difficult to prove directly but must be inferred from the surrounding

circumstances.” 

 citing State v. Lung, 12th Dist. Brown No. CA2012-03-004,

, ¶ 12.

              “At its heart, the allied-offense analysis is dependent upon the facts of

a case because R.C. 2941.25 focuses on the defendant’s conduct” and “an offense

may be committed in a variety of ways.” Ruff, 

, 

,

. “‘[T]his analysis may be sometimes difficult to perform

and may result in varying results for the same set of offenses in different cases. But

different results are permissible, given that the statute instructs courts to examine a

defendant’s conduct — an inherently subjective determination.’” Id. at ¶ 32, quoting

State v. Johnson, 

, 

, 

, ¶ 52

(plurality opinion per Brown, C.J.).

              We review de novo whether certain offenses should be merged as

allied offenses under R.C. 2941.25. State v. Bailey, Slip Opinion No. 2022-Ohio-
4407, ¶ 6, citing State v. Williams, 

, 

, 

.

              In this case, Smith’s allied offense arguments are limited to his

convictions for gross sexual imposition pursuant to R.C. 2907.05(A)(1) and (5) as

charged in former Counts 16 and 17 of the indictment. After careful consideration,

we agree with Smith’s assertion that these offenses are allied offenses of similar

conduct. Former Counts 16 and 17 were committed simultaneously with the same

purpose (sexual gratification) and stemmed from a singular incident of sexual

contact, namely Smith’s act of touching Jane Doe 2’s erogenous zone while she was

sleeping on her grandmother’s couch. The offenses resulted in a single, identifiable

harm to Jane Doe 2, but relied on alternative theories of liability for the same course

of conduct. Although Smith did not raise the allied offense issue below, we find the

trial court committed plain error by separately sentencing Smith on former Counts

16 and 17. See Crim.R. 52.

              Accordingly, we sustain Smith’s third assignment of error as to former

Counts 16 and 17. The sentences imposed on these counts are vacated, and the case

is remanded for resentencing. On remand, the state has the right to elect which

offense to pursue at sentencing. State v. Whitfield, 

, 2010-Ohio-

2, 

, ¶ 21.

              Judgment affirmed in part, sentence vacated in part. The matter is

remanded to the trial court for the court to merge the allied offenses of similar

import before resentencing Smith on the count elected by the state, and to issue a
nunc pro tunc journal entry to reflect Smith’s convictions under R.C. 2907.05(A)(1)

and the court’s finding of not guilty on the sexually violent predator specifications

attached to former Counts 14, 16, and 17.

      It is ordered that appellee and appellant share the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.          The defendant’s

conviction having been affirmed, in part, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence, resentencing, and the

issuance of a nunc pro tunc entry..

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
LISA B. FORBES, J., CONCUR