[Cite as State v. Merz,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-200152 TRIAL NO. B-1905571 Plaintiff-Appellee, :

: O P I N I O N. VS. :

HERBERT MERZ, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 23, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and H. Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} A day that began with anticipation—a 15th-birthday adventure to

search for arrowheads—ended in terror as a young girl’s stepfather secluded her in

the woods and sexually assaulted her. Fortunately, she fended off his advances and

called the police, and defendant-appellant Herbert Merz ultimately pleaded guilty to

gross sexual imposition and abduction arising out of this attack. On appeal, Mr.

Merz primarily argues that his two convictions should have merged as allied offenses

because any restraint was incidental to the sexual assault. After reviewing the law

and the record, we agree and remand this cause to the trial court for resentencing.

I.

{¶2} Mr. Merz offered to take his stepdaughter, on the evening of her 15th

birthday, to a “special place” to look for arrowheads. He then drove her to a

secluded, wooded area along the Ohio River, even venturing past a driveway marked

as “no trespassing.” Soon after the two arrived and exited his van, however, Mr.

Merz began kissing his stepdaughter on the neck. She demanded that he stop, but

Mr. Merz responded by pushing her onto the front passenger seat where he forced

himself on top of her and began to grope her.

{¶3} The stepdaughter continued to resist, prompting Mr. Merz to strike

her several times, inflicting bruises on her neck and arms. Amazingly, she managed

to fight him off, push him out of the van, and lock herself in the vehicle. She then

grabbed her phone and summoned the police, at which point Mr. Merz scampered

into the woods. But because the location was so isolated, it took police 40 minutes to

find her. Officers then used search dogs to track down Mr. Merz, finding him

2 OHIO FIRST DISTRICT COURT OF APPEALS

wandering about muddy and barefoot, insisting that he had blacked out and thus had

no recollection of what transpired—a claim he maintained throughout the case.

{¶4} The state charged Mr. Merz with attempted rape, gross sexual

imposition (GSI), and abduction. But in exchange for pleading guilty to the GSI and

abduction counts, the state dropped the attempted-rape charge. The trial court

accepted Mr. Merz’s guilty pleas and asked the stepdaughter to provide a victim-

impact statement detailing her trauma, which also highlighted the bruising on her

neck and arms from the assault.

{¶5} The trial court ultimately imposed maximum sentences for both

offenses—18 months for the GSI and 36 months for the abduction. The court also

ordered that Mr. Merz serve the sentences consecutively, for a total sentence of 54

months. On appeal, Mr. Merz presents three assignments of error, first arguing that

the trial court committed plain error by not merging his GSI and abduction offenses.

His second and third assignments of error challenge the trial court’s imposition of

maximum and consecutive sentences.

II.

{¶6} The United States and Ohio Constitutions contain Double Jeopardy

Clauses, which protect citizens from multiple prosecutions or punishments for the

same offense. State v. Pendleton,

,

,

. See Ohio Constitution, Article I, Section 10 (“No person shall be twice put

in jeopardy for the same offense.”); Fifth Amendment to the U.S. Constitution (“No

person shall * * * be subject for the same offence to be twice put in jeopardy of life or

limb * * * .”). As a result, “ ‘where two statutory provisions proscribe the “same

offense,” they are construed not to authorize cumulative punishments in the absence

3 OHIO FIRST DISTRICT COURT OF APPEALS

of a clear indication of contrary legislative intent.’ ” (Emphasis sic.) State v. Ruff,

,

,

, quoting Whalen v. United

States,

,

,

(1980). However, where

the statute creating the offense does not illuminate the General Assembly’s intent on

whether multiple punishments should be imposed, we look to R.C. 2941.25 for

guidance.

. And R.C. 2941.25 generally requires a trial court to

merge allied offenses when they are of similar import, were committed together, and

were motivated by the same animus. See State v. Bailey, 1st Dist. Hamilton No.

C-140129,

; see also Ruff at paragraph three of the syllabus.

{¶7} Mr. Merz invokes these double-jeopardy protections in his first

assignment of error, characterizing his GSI and abduction convictions as allied

offenses that should have triggered merger. However, Mr. Merz failed to object at

sentencing, leaving us to review the matter for plain error. See State v. Rogers,

,

,

(“An accused’s failure to raise

the issue of allied offenses of similar import in the trial court forfeits all but plain

error * * * .”). “For this court to reverse on plain error, we must find that (1) there

was an error, (2) the error was plain, i.e., an obvious defect in the trial court

proceedings, and (3) the error affected substantial rights, i.e., it affected the outcome

* * * .” State v. Burgett,

,

, ¶ 30 (1st Dist.), citing

State v. Barnes,

,

(2002). Because the

requirement to merge allied offenses is “mandatory, not discretionary,” see State v.

Underwood,

,

,

, ¶ 26, failure to do so

necessarily affects a substantial right. For this reason, “[t]he Ohio Supreme Court

has recognized that the failure of the trial court to account for allied offenses, when it

4 OHIO FIRST DISTRICT COURT OF APPEALS

is clear from the record that multiple offenses are allied offenses of similar import

under R.C. 2941.25, is plain error.” State v. Peck, 7th Dist. Mahoning No. 12 MA

205,

, citing Underwood at ¶ 31. Thus, to prevail on a claim of

plain error, Mr. Merz must show that it is obvious on the record that he has been

convicted of allied offenses. In other words, he must “demonstrate a reasonable

probability that the convictions are for allied offenses of similar import committed

with the same conduct and without a separate animus * * * .” Rogers at ¶ 3.

{¶8} Furthermore, we note that the question of whether multiple offenses

should merge cannot be answered with “bright-line rule[s].” Ruff at ¶ 30. Merger

poses a fact-intensive inquiry, requiring the court to review the entire record,

including arguments and evidence presented at the plea or sentencing hearing. See

id. at ¶ 26 (“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. The evidence at trial

or during a plea or sentencing hearing will reveal whether the offenses have similar

import.”). And defendants ultimately bear the burden of demonstrating their

entitlement to having offenses merged. See State v. Washington,

,

,

, ¶ 18 (“We have consistently recognized that ‘the

defendant bears the burden of establishing his entitlement to the protection,

provided by R.C. 2941.25, against multiple punishments for a single criminal act.’ ”),

quoting State v. Mughni,

,

(1987).

{¶9} Returning to Mr. Merz’s challenge, we must affirm the trial court’s

decision not to merge his GSI and abduction offenses “if any one of the following is

true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows

that the offenses were committed separately, or (3) the conduct shows that the

5 OHIO FIRST DISTRICT COURT OF APPEALS

offenses were committed with separate animus.” Ruff,

, 2015-

Ohio-995,

, at paragraph three of the syllabus. And “[a] reviewing

court may end its analysis upon finding that any one of the three applies.” State v.

Lee, 1st Dist. Hamilton No. C-190149,

.

{¶10} Both parties focus their attention on the final—and most relevant—

Ruff consideration: whether Mr. Merz harbored a separate animus for the two

offenses. “Animus” means “ ‘purpose, or more properly, immediate motive’ and

‘requires us to examine the defendant’s mental state in determining whether two or

more offenses may be chiseled from the same criminal conduct.’ ” Bailey, 1st Dist.

Hamilton No. C-140129,

, quoting State v. Logan,

,

(1979). “We determine the animus, one’s immediate

motive or purpose, by dissecting the facts and circumstances in evidence, including

the means used to commit the offense.”

{¶11} In fashioning their respective arguments, the parties feature Logan,

which provided guidelines for “whether kidnapping and another offense of the same

or similar kind” share a separate animus. Logan at the syllabus. In simplistic terms,

the Logan guidelines examine the significance of the restraint or movement of the

victim: whether it was “merely incidental” to the other crime or whether it was

substantial enough (either in execution or in increased risk) that it attains

independent significance. See

at the syllabus.

{¶12} We recognize that Logan predates Ruff, which abrogated Logan’s (and

others) general approach to merger. See Ruff,

,

,

. However, “the Logan guidelines are still relevant to determining

whether rape and kidnapping convictions merge.” State v. Grate, Slip Opinion No.

6 OHIO FIRST DISTRICT COURT OF APPEALS

. Thus, despite not being convicted of rape or kidnapping,

Mr. Merz argues that the Logan criteria mandate reversal because the restraint

(abduction) of his stepdaughter was “merely incidental” to the sexual assault (GSI).

As he points out, the Ohio Supreme Court has analogously commented that

“ ‘implicit within every forcible rape * * * is a kidnapping.’ ” State v. Winn,

,

,

, quoting

. For its

part, the state effectively concedes that the abduction concurrent with the sexual

assault should merge with the GSI. However, the state hypothesizes that an

additional abduction occurred when Mr. Merz took his stepdaughter to the secluded

area under the pretense of looking for arrowheads, thus achieving independent

significance.

{¶13} To be sure, in the kidnapping context, using deceit to lure a victim into

danger may constitute a separate animus. See Grate at ¶ 110 (holding that

kidnapping by deception “was significantly independent from the asportation

incidental to the rapes” where the perpetrator lured the victim into the house under

the pretense of giving her clothes); State v. Ware,

,

(1980) (holding that the perpetrator’s offer to let the victim use his telephone

“was an act of asportation by deception which constituted kidnapping, and which

was significantly independent from the asportation incidental to the rape itself”).

But we find Grate and Ware inapplicable to this case because Mr. Merz was not

convicted of kidnapping; he was convicted of abduction. While kidnapping may be

accomplished “by force, threat, or deception,” (Emphasis added.) see R.C.

2905.01(A), abduction can be committed only “[b]y force or threat,” see R.C.

2905.02(A). See also State v. Fleming,

,

(2d

7 OHIO FIRST DISTRICT COURT OF APPEALS

Dist. 1996) (“[A]bduction, as statutorily defined, cannot be committed by means of

deception. It can only be committed by means of force or threat.”). Furthermore,

the state never alleged that any abduction occurred during the drive to the wooded

area. Nor did it tender evidence suggesting that Mr. Merz coerced his stepdaughter

into going on the excursion. Instead, the state alleged that Mr. Merz “knowingly by

force or threat of force, restrained the liberty of [his stepdaughter],” and Mr. Merz’s

use of force occurred only during the sexual assault.

{¶14} Thus, to the extent that the Logan guidelines apply to abduction, it

weighs heavily in favor of finding that the abduction here was “merely incidental” to

the GSI. Furthermore, considering Mr. Merz’s use of force, we conclude that he did

not have a separate animus for the abduction offense because his immediate motive

in restraining his stepdaughter was to sexually assault her. Not only does the state

concede this on appeal, but it indicated as much below by charging Mr. Merz with

abduction under R.C. 2905.02(B): “[n]o person, with a sexual motivation, shall” use

“force or threat” to “restrain the liberty of another person.” (Emphasis added.) R.C.

2905.02(B), referencing (A)(2). As a result, nothing in the record supports the

notion that Mr. Merz committed the abduction with a separate animus from the GSI.

See State v. Pore, 5th Dist. Stark No. 2011-CA-00190,

(finding plain error for failure to merge kidnapping and rape where the defendant

threatened the victim with knife, moved her to the bedroom to have her undress,

moved her back to the living room to lock the front door, and finally moved her to

the bedroom (again) to rape her); State v. Bolton, 8th Dist. Cuyahoga No. 96385,

(finding that GSI and kidnapping should merge “because the

movement of [the victim] from the hallway to her bedroom was incidental to the

8 OHIO FIRST DISTRICT COURT OF APPEALS

crime of gross sexual imposition.”); see also State v. Small, 5th Dist. Delaware No.

10CAA110088,

(finding plain error for failure to merge

kidnapping and aggravated burglary because “the restraint and movement had no

significance apart from facilitating the commission of the aggravated burglary.”).

{¶15} Having answered the final Ruff question in the negative, we must also

consider the first and second questions: whether the offenses were (1) of dissimilar

import; or (2) committed separately. Ruff,

,

,

, at paragraph three of the syllabus. Offenses are of “dissimilar import

* * * 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.”

at paragraph two of the syllabus. Here,

there was one victim, so the question is only whether the two offenses caused

separate and identifiable harm. However, the state does not allege that the

abduction and GSI offenses inflicted different harm, nor do we see any indicia of

separate harm after reviewing the record. None of the emotional and physical harm

can be traced to one offense over the other. Thus, we conclude that the GSI and

abduction offenses were not of dissimilar import based on a lack of separate and

identifiable harm. See, e.g., State v. Powih,

,

(12th

Dist.) (“[The victim] experienced the same type of physical and psychological harm

from the commission of the abduction offense as she did the sex offenses—she

suffered bruising and contusions and was ‘shocked,’ ‘scared,’ and ‘fearful.’ ”).

{¶16} We can easily dismiss the remaining inquiry—whether Mr. Merz

committed the offenses separately—because the offenses transpired simultaneously

in the same location. The restraint occurred only during—and as part of—the sexual

9 OHIO FIRST DISTRICT COURT OF APPEALS

assault, precluding any possibility that the two offenses were separately committed.

See State v. Louis, 2d Dist. Montgomery No. 27909,

(holding

that kidnapping and GSI were not committed separately where the perpetrator

grabbed the victim’s arm to prevent her from leaving the basement and then sexually

assaulted her);

(holding that abduction and rape offenses were not

committed separately where the perpetrator shut the door to the room and then

restrained and raped the victim).

{¶17} Applying the law to the record before us, we are constrained to find

that Mr. Merz’s abduction of his stepdaughter had no significance apart from

facilitating the GSI. The two offenses were not of dissimilar import, were not

committed separately, and were not motivated by a separate animus. Accordingly,

we find that it was plain error not to merge the GSI and abduction offenses and

affirm Mr. Merz’s first assignment of error.

* * *

{¶18} In his second and third assignments of errors, Mr. Merz challenges the

trial court’s imposition of maximum and consecutive sentences. Because we affirm

his allied-offenses challenge, we decline to resolve these assignments of error as

moot. We therefore vacate both sentences and remand this cause for resentencing so

that the state may choose which offense to pursue. See State v. Whitfield,

,

,

, paragraph two of the syllabus.

Judgment reversed and cause remanded.

MYERS, P. J., and BOCK, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion 10