[Cite as State v. Cole,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

State of Ohio Court of Appeals No. E-18-061

Appellee Trial Court No. 2018CR001

v.

Dameun Cole DECISION AND JUDGMENT

Appellant Decided: December 31, 2019

*****

Kevin J. Baxter, Erie County Prosecuting Attorney, and Anthony A. Battista III, Assistant Prosecuting Attorney, for appellee.

Loretta Riddle, for appellant.

*****

MAYLE, P.J.

{¶ 1} Defendant-appellant, Dameun Cole, appeals the November 9, 2018

judgment of the Erie County Court of Common Pleas, convicting him of four counts of gross sexual imposition and sentencing him to a total prison term of nine-and-a-half

years. For the reasons that follow, we affirm.

I. Background

{¶ 2} Dameun Cole was indicted on January 18, 2018, on four counts of rape

under R.C. 2907.02(A)(2) and (B) (Counts 1-3, and 7); three counts of sexual battery

under R.C. 2907.03(A)(5) and (B) (Counts 4, 8, and 9); one count of gross sexual

imposition under R.C. 2907.05(A)(4) and (C)(2) (Count 5); and one count of rape of a

person under the age of 13 under R.C. 2907.02(A)(1)(b) and (B) (Count 6). These

charges stemmed from Cole’s sexual abuse of his stepdaughters, C.W. and T.W., then

ages 14 and 16.

{¶ 3} According to the information contained in the record, the girls approached a

guidance counselor at school to report that Cole was sexually abusing them. The

guidance counselor alerted the school’s resource officer and Erie County Children’s

Services (ECCS), and the resource officer notified a detective with the Sandusky Police

Department. The girls were interviewed by ECCS representatives and Detective Kenneth

Nixon.

{¶ 4} T.W. reported that Cole began abusing her in October or November of 2012.

It began by Cole suggesting to T.W. that they make a deal: if T.W. would do “favors” for

Cole, he would give her whatever she wanted. T.W. believed that she would be

performing chores in exchange for “get[ting] things,” but soon learned that Cole intended

for her to perform sexually-related favors. Initially, Cole masturbated in front of T.W. It

later progressed to Cole demanding that T.W. perform oral sex on him, and eventually,

2. Cole attempted to have vaginal sex with T.W., but was unsuccessful. T.W. reported that

Cole performed oral sex on her and penetrated her vagina with his fingers.

{¶ 5} T.W. explained that Cole would usually text her to initiate sexual contact

with her. The texts usually began with him asking her “what’s up?”, to which T.W.

would respond “I’m in” or “I’m out.” T.W. showed the ECCS workers and Detective

Nixon some of the text messages between them for various dates in 2017. Those

messages corroborated what T.W. had reported.

{¶ 6} C.W. also spoke with ECCS and Detective Nixon. C.W. said that several

years earlier, Cole began asking her to send him photos of her “privates.” C.W. sent him

pictures of her vagina. Starting in mid-2015, he began masturbating in front of her. In

early 2017, he attempted to have sex with her, but she was a virgin and it hurt. He tried a

second time and successfully penetrated her vagina. C.W. said that when she had

intercourse with Cole, she would cry, but he did not notice. She said that the last time

she had intercourse with Cole was on his birthday, December 12, 2017. She also

performed oral sex on him on that date. C.W. showed ECCS and Detective Nixon a text

message from December 12, 2017, consistent with what she had reported.

{¶ 7} C.W. also told ECCS and Detective Nixon that Cole gave her a sexually

transmitted disease—Trichomoniasis—three times. Medical records obtained by ECCS

corroborated that in February, April, and November of 2017, C.W. was treated for the

STD at Firelands Hospital’s emergency room. C.W. told ECCS and Detective Nixon that

she asked her sister to report what was happening to them or it would never stop.

3. {¶ 8} Detective Nixon interviewed Cole. Cole denied raping the girls. He was

asked about the text messages that the girls showed Detective Nixon. Cole claimed that

another individual had the ability to access the messaging applications on his phone, but

he acknowledged that some of the text messages “happened.” As to one text message in

particular where Cole requested oral sex from C.W., he stated that “wanting and getting

are two different things.” He also said that he “never got as far as to be able to penetrate

them.” He explained that whenever it was about to happen, there was an excuse on both

sides.

{¶ 9} Cole ultimately entered a plea of guilty to Counts 1-3, amended to gross

sexual imposition under R.C. 2907.05(A)(1), and Count 5. The state entered a nolle

prosequi as to Counts 4 and 6-9. The trial court found Cole guilty. It ordered a pre-

sentence investigation report and continued the matter for sentencing.

{¶ 10} The day before he was scheduled to be sentenced, Cole submitted a

sentencing memorandum arguing that his convictions of the first three counts should be

merged for purposes of sentencing because “the possibility exists that the convictions

resulting from Counts 1, 2, and 3 resulted from the same instance of conduct.” He

claimed that while the indictment indicated that Counts 1-3 occurred sometime between

January 1, 2017, and December 15, 2017, the judgment entry for his guilty plea listed no

particular dates that the crimes were committed. He argued that even though the

indictment listed a range of dates, the first three counts of the indictment did not list

“separate, mutually exclusive dates” or “separate, mutually exclusive ranges of dates” to

suggest that there had been multiple incidents. He insisted that there was nothing before

4. the court “definitively suggesting” that Counts 1-3 resulted from three separate incidents,

and there exists a “distinct possibility” that they resulted from the same act.

Alternatively, Cole asked that concurrent sentences be imposed.

{¶ 11} The state’s attorney received Cole’s motion at the hearing. Although the

state did not file a written response, it argued that Cole was indicted on multiple counts

for multiple occurrences that took place over a one-year time period. The state’s attorney

explained that when multiple instances of abuse occur, it is sometimes difficult for young

children “to nail down exactly what dates those happen[ed] on, which is why [they] give

a range of dates,” and, in fact, her understanding was that there were more than just three

instances of abuse in this case.1 She emphasized that it was understood and written into

the plea agreement that Cole could potentially be imprisoned for nine-and-a-half years—

not that the counts were subject to merger.

{¶ 12} The trial court rejected Cole’s merger argument. It informed the parties

that it was well aware of the facts of the case from its review of the PSI, police reports,

and the records submitted in support of an earlier motion to suppress evidence of Cole’s

interview with Detective Nixon. The court disagreed that the first three counts arose

from only one event. It specifically referenced dates that text messages were sent and

how those messages corresponded with allegations of sexual conduct. It also noted that

in his statement, Cole conceded that multiple acts had occurred when he denied

penetrating the girls because “every time” he had the chance, the girls’ mother would

1 The state’s attorney who appeared at sentencing was not the same attorney who had been handling the case. 5. come home or would wake up. And it observed that C.W. had contracted an STD from

Cole three separate times and sought medical treatment on each occasion.

{¶ 13} The court sentenced Cole to 18 months’ imprisonment on Counts 1-3, and

60 months on Count 5, all to be served consecutively, for a total term of imprisonment of

nine years, six months. The court imposed a mandatory period of post-release control as

to each count.

{¶ 14} Cole appealed and assigns the following errors for our review:

ASSIGNMENT OF ERROR NO. I

The trial court erred when it failed to merge counts 1-3.

ASSIGNMENT OF ERROR NO. II

The trial court erred when it sentenced Appellant to maximum

sentences on each count.

II. Law and Analysis

{¶ 15} Cole claims in his first assignment of error that Counts 1-3 should have

merged for sentencing purposes. In his second assignment of error, he argues that the

court’s findings do not support the imposition of maximum sentences. We consider each

of Cole’s assignments in turn.

A. Merger

{¶ 16} In his first assignment of error, Cole argues that the trial court erred by

failing to merge Counts 1-3 at sentencing. He argues that “[b]ased on the wording in the

indictment for Count 1, 2, and 3, it appears they resulted from the same instance of

conduct in that each is identical and there is no language distinguishing them as separate

6. instances.” Additionally, although not argued in the trial court, Cole argues that while

the indictment contained a range of dates during which he allegedly abused his

stepdaughters, the state provided a bill of particulars identifying only one date: January

1, 2017. He insists that in doing so, the state put him on notice that it was no longer

alleging a date range, but rather was identifying one specific date. This, he claims,

supports his position that Counts 1-3 encompass “the same act, which occurred at the

same time and involved the same victim” with no separate animus.

{¶ 17} The state responds, first, that Cole relies on outdated case law in support of

his merger argument. It maintains that the record reflects separate and distinct acts,

committed separately, with separate animus, dissimilar import, and separate and

identifiable harm. The state also claims that Cole waived any defects in the dates of the

offenses to which he entered a plea of guilty. It insists that Cole understood that by

entering a plea of guilty, he was admitting to the evidentiary or factual basis of the

charges.

{¶ 18} The Double Jeopardy Clause of the Fifth Amendment to the U.S.

Constitution, applicable to the state through the Fourteenth Amendment, provides that no

person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”

State v. Ruff,

,

,

. The Double

Jeopardy Clause protects against a number of abuses.

Pertinent to this case is the

protection against multiple punishments for the same offense.

To that end, the

General Assembly enacted R.C. 2941.25, which directs when multiple punishments may

7. be imposed.

It prohibits multiple convictions for allied offenses of similar import

arising out of the same conduct:

(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.

{¶ 19} In Ruff, the Ohio Supreme Court examined in detail the analysis that must

be performed in determining whether offenses are allied offenses of similar import under

R.C. 2941.25. It identified three questions that must be asked: “(1) Were the offenses

dissimilar in import or significance? (2) Were they committed separately? and (3) Were

they committed with separate animus or motivation?” Id. at ¶ 31. If the answer to any of

these questions is “yes,” the defendant may be convicted and sentenced for multiple

offenses. Id. at ¶ 25, 30. The court explained that offenses are of dissimilar import

“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. It

emphasized that the analysis must focus on the defendant’s conduct, rather than simply

compare the elements of two offenses. Id. at ¶ 30.

8. {¶ 20} “Intimate sexual contacts with a victim that constitute the offense of gross

sexual imposition may be treated as separate offenses for the purposes of R.C. §

2941.25(B) in at least two instances: (1) where the evidence demonstrates either the

passage of time or intervening conduct by the defendant between each incident; and (2)

where the evidence demonstrates the defendant’s touching of two different areas of the

victim’s body occurred in an interrupted sequence.” State v. DeGarmo, 5th Dist.

Muskingum No. CT2018-0061,

. See also State v. Hall, 6th Dist.

Lucas No. L-17-1069,

(“The law in Ohio is clear that multiple

separate and distinct acts of penetration will support multiple convictions and sentences,

and oral, anal, and vaginal rapes constitute separate and distinct acts.”). Accordingly, if

Cole committed acts separated by the passage of time or engaged in sexual contact

involving more than one erogenous zone, even if in one brief episode, each instance may

form the basis for separate counts and are not allied offenses. See State v. Morgan, 9th

Dist. Medina No. 07CA0124-M,

.

{¶ 21} Even interpreting the notes from C.W.’s interview very narrowly, those

notes describe at least three distinct acts supporting three separate counts of gross sexual

imposition: (1) an incident that occurred at the beginning of 2017, where Cole tried to

have intercourse with C.W. (who was then a virgin), Cole gave up, C.W. went upstairs,

Cole told her to come back downstairs, and Cole succeeded in penetrating C.W. after

trying to have intercourse with her a second time; and (2) an incident that occurred on

December 12, 2017 (Cole’s birthday), where Cole forced C.W. to engage in oral sex with

him, followed by vaginal intercourse. Even without additional details, these two

9. incidents describe three—or more likely four—separate and distinct acts of gross sexual

imposition (the amended charge).

{¶ 22} Although Cole argued in the trial court “that it was possible” that all three

counts resulted from the same act, his argument on appeal is different. On appeal, he

argues that his sentences for the three counts must merge because unlike the indictment,

where a range of dates was specified, the bill of particulars identified only one date on

which the incident occurred—January 1, 2017. Moreover, he claims, “the record is

devoid of any mentioning [sic] of any criminal activity occurring on that date.” The

issue, therefore, is whether, by identifying only one date, the bill of particulars is “proof”

that Counts 1-3 arose “from the same act, which occurred at the same time and involved

the same victim.”

{¶ 23} Counts 1-3 of the indictment, which all relate to Cole’s abuse of C.W., are

worded identically. They state:

That Dameun L. Cole, on or about 1/1/2017 through 12/15/2017, at

Erie County, Ohio did engage in sexual conduct with C.W. (DOB * * *)

when Dameun L. Cole purposely compelled her to submit by force or threat

of force.

In violation of the Ohio Revised Code Section 2907.02(A)(2),

2907.02(B) and against the peace and dignity of the State of Ohio.

{¶ 24} The bill of particulars for these counts is also worded identically. It states:

That on or about 1/1/2017, and at the location of Erie Co., Sandusky,

OH 44870, Erie County, the Defendant, Dameun L. Cole, did engage in

10. sexual conduct with C.W. (DOB * * *) when Dameun L. Cole purposely

compelled her to submit by force or threat of force contrary to the form of

the statute in such case made and provided, and against the peace and

dignity of the State of Ohio.

{¶ 25} “The purpose of the bill of particulars is to inform a defendant of the nature

of the charge against him with sufficient precision to enable him to prepare for trial, to

prevent surprise, or to plead his acquittal or conviction in bar of another prosecution for

the same offense.” State v. Rivers, 8th Dist. Cuyahoga No. 83321,

. The bill of particulars is not a mechanism for discovering the state’s evidence and is

not to be used as a substitute for discovery. State v. Stepp,

,

(4th Dist. 1997). Once an accused, represented by counsel, enters

a plea of guilty, “the need for a bill of particulars no longer exists.” Foutty v. Maxwell,

, 38,

, 626 (1962).

{¶ 26} In In re C.C., 8th Dist. Cuyahoga No. 88320,

, the

court found no error where the trial court allowed trial to proceed as to an offense that

took place on November 1, 2004, even though the bill of particulars identified the date of

the incident as November 30, 2004. In affirming the trial-court judgment, the court

reasoned that “although the Bill of Particulars indicated the incorrect date of November

30, 2004, police reports provided to appellant’s trial counsel and admitted into evidence

by the defense contained the correct date of November 1, 2004,” therefore, the defendant

had been provided adequate notice to prepare a defense. Id. at ¶ 23. Additionally, Ohio

courts recognize that “[a] defendant who enters a plea of guilty waives the right to appeal

11. all nonjurisdictional issues arising at prior stages of the proceedings,” including “any

error related to a defect in the Bill of Particulars * * *.” State v. Bogan, 8th Dist.

Cuyahoga No. 84468,

.

{¶ 27} Here, the record makes clear that the police reports were provided to Cole

in discovery on February 2, 2018, and those reports reference sexual abuse that took

place repeatedly during 2017, from the beginning of the year through Cole’s December

birthday. Moreover, Cole entered a plea to Counts 1-3, therefore, he admitted guilt as to

every material fact in the indictment and waived any defect in the bill of particulars.

State v. Davis, 2d Dist. Clark No. 2018-CA-49,

.

{¶ 28} Finally, although not pointed out by the state, we also note that the plea

hearing began by the state advising the court that Cole would be entering pleas to Count

1, 2, 3, and 5. The state then specifically stated: “Counts 1, 2 ,and 3 are all the same

charge, but different incidents, Gross Sexual Imposition, Ohio Revised Code Section

2907.05(A)(1), all felonies of the fourth degree.” (Emphasis added.) Cole was aware,

therefore, that Counts 1-3 were premised on multiple incidents of sexual abuse, despite

the date listed in the bill of particulars.

{¶ 29} Accordingly, we conclude that Counts 1-3 were not allied offenses subject

to merger. We find Cole’s first assignment of error not well-taken.

B. Sentence

{¶ 30} In his second assignment of error, Cole argues that the trial court erred

when it sentenced him to the maximum sentence on each count. He argues that while the

12. trial court stated on the record its findings and reasons for imposing the maximum

sentence, those findings and reasons do not support the sentence and they demonstrate

that the court failed to consider all factors required under R.C. 2929.12. He insists that he

“did not commit the worst form of the offense as Counts 1-3 as indicted were rape and he

plead [sic] to gross sexual imposition.” He also maintains that he “did not have any

convictions of a sexual nature prior to the charges he pled to” and “had things happen in

his childhood which * * * helps [sic] to explain his actions.”

{¶ 31} The state responds that (1) Cole’s sentence was within the permissible

statutory range, and, therefore, not contrary to law; (2) the court was not required to state

its findings under R.C. 2929.12; and (3) while not required to state its reasons for

imposing a sentence within the statutorily-permissible range, the trial court did so

anyway and its reasons support Cole’s sentence.

{¶ 32} We review a challenge to a felony sentence under R.C. 2953.08(G)(2).

R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, or otherwise

modify a sentence or may vacate the sentence and remand the matter to the sentencing

court for resentencing if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court’s findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

section 2929.14, or division (I) of section 2929.20 of the Revised Code,

whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

13. {¶ 33} In State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio- 425, ¶

15, we recognized that State v. Kalish,

,

,

, provides guidance in determining whether a sentence is clearly and convincingly

contrary to law for purposes of R.C. 2953.08(G)(2)(b). In Kalish, the Ohio Supreme

Court held that where the trial court expressly states that it considered the purposes and

principles of sentencing in R.C. 2929.11 and the seriousness and recidivism factors listed

in R.C. 2929.12, properly applies post-release control, and sentences the defendant within

the statutorily-permissible range, the sentence is not clearly and convincingly contrary to

law. Kalish at ¶ 18.

{¶ 34} Cole concedes that “the trial court stated on the record the findings and

reasons required by statute for its maximum sentencing,” but maintains that those

findings and reasons do not support a maximum sentence. As we recognized in State v.

Johnston, 6th Dist. Wood No. WD-18-069,

, R.C. 2929.14(C)

previously provided that a maximum sentence could be imposed only upon offenders

who committed the worst form of the offense, offenders who pose the greatest likelihood

of committing future crimes, and certain repeat violent offenders. This language was

deleted from the statute in 2011. Sentencing courts are no longer required to explain its

reasons for imposing a maximum sentence. State v. Pippin, 6th Dist. Lucas No. L-18-

1023,

.

{¶ 35} A sentencing court is also not required “to use language or make specific

findings to demonstrate that it considered the applicable sentencing criteria under” R.C.

14. 2929.12. State v. Green, 6th Dist. Lucas No. L-18-1065,

. A trial

court’s statement that it considered R.C. 2929.12 is sufficient. State v. Harris, 6th Dist.

Wood No. WD-18-077,

. In fact, even where the court fails to

specifically state that it considered R.C. 2929.12, we will presume that it did.

{¶ 36} Under R.C. 2929.12, the court must consider factors relating to the

seriousness of the conduct, factors relating to the likelihood of recidivism, and factors

pertaining to the offender’s service in the armed forces of the United States, if applicable,

along with any other factors relevant to achieving the purposes and principles of

sentencing. R.C. 2929.12(A).

{¶ 37} Relating to the seriousness of the offense, the court must consider factors

indicating that the offender’s conduct is more serious than conduct normally constituting

the offense, such as the physical or mental injury suffered by the victim because of the

physical or mental condition or age of the victim; whether the victim suffered serious

physical, psychological, or economic harm as a result of the offense; and whether the

offender’s relationship with the victim facilitated the offense. It must also consider

factors indicating that the offender’s conduct is less serious than conduct normally

constituting the offense, including whether the victim induced or facilitated the offense;

whether in committing the offense, the offender acted under strong provocation; whether

in committing the offense, the offender did not cause or expect to cause physical harm to

any person or property; and whether there are substantial grounds to mitigate the

offender’s conduct. R.C. 2929.12(B) and (C).

15. {¶ 38} Relating to the likelihood of recidivism, the court must consider factors

indicating that the offender is likely to commit future crimes, such as whether the

offender has a history of criminal convictions; whether the offender has not responded

favorably to sanctions previously imposed for criminal convictions; and whether the

offender shows no genuine remorse for the offense. It also must consider factors

indicating that the offender is not likely to commit future crimes, including whether, prior

to committing the offense, the offender had not been convicted of or pleaded guilty to a

criminal offense; whether prior to committing the offense, the offender had led a law-

abiding life for a significant number of years; whether the offense was committed under

circumstances not likely to recur; and whether the offender shows genuine remorse for

the offense. R.C. 2929.12(D) and (E).

{¶ 39} Here, the trial court specifically stated in its sentencing entry that it

considered R.C. 2929.12, and the record supports the court’s findings. Specifically, the

court went over Cole’s lengthy criminal record and the sanctions imposed for those

offenses. The court observed that Cole had been dishonest with investigators and

attempted to blame the victims for his misconduct. It emphasized that Cole gave one of

his young victims a sexually-transmitted disease, resulting in physical harm; the victims

suffered mental injury from the sustained abuse they experienced; and Cole manipulated

his victims and exerted control over them. While the court acknowledged that Cole had

been abused as a child, it expressed dismay that Cole had chosen to hurt others instead of

seeking help for himself. The court’s statements make clear that it considered the factors

enumerated in R.C. 2929.12. And although Cole may disagree with the court’s balancing

16. of those factors, “it is the role of the trial court to determine the weight afforded to any

particular statutory factors, mitigating grounds, or other relevant circumstances.” State v.

Day, 4th Dist. Adams No. 19CA1085,

.

{¶ 40} Accordingly, we conclude that the trial court did, in fact, consider R.C.

2929.12, and the record supports its findings. The court’s findings and the sentences it

imposed are neither unsupported nor contrary to law. We find Cole’s second assignment

of error not well-taken.

III. Conclusion

{¶ 41} Counts 1-3 do not constitute allied offenses subject to merger, despite the

fact that the bill of particulars incorrectly listed only one date of offense. The police

reports, provided to counsel during discovery, made clear that the charges against Cole

arose out of ongoing conduct spanning a year. And when Cole entered a plea of guilty,

he admitted all the material allegations of the indictment. We find Cole’s first

assignment of error not well-taken.

{¶ 42} The trial court did not err in imposing maximum sentences as to each

count. As required by R.C. 2929.12, the court considered factors relating to the

seriousness of Cole’s conduct and factors relating to his likelihood of recidivism.

Although Cole may disagree with the court’s balancing of those factors, this is not a basis

to reverse. We find Cole’s second assignment of error not well-taken.

{¶ 43} We affirm the November 9, 2018 judgment of the Erie County Court of

Common Pleas. Cole is responsible for the costs of this appeal under App.R. 24.

Judgment affirmed.

17. E-18-061 State v. Cole

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Christine E. Mayle, P.J. _______________________________ Gene A. Zmuda, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

18.