[Cite as In re R.A.H.,

.]

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.

, 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 ___,

, ___ 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,

, 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,

,

,

. 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,

,

,

, ¶ 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