[Cite as State v. Jackson, 2011-Ohio-6069.]

 

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 92531

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

MICHAEL JACKSON 

 DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED IN PART, REVERSED IN PART, 

AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-505342 

BEFORE: Boyle, P.J., Rocco, J., and Sweeney, J. 
RELEASED AND JOURNALIZED: November 23, 2011

ATTORNEY FOR APPELLANT

Paul Mancino, Jr. 

75 Public Square 

Suite 1016 

Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Katherine Mullin 

Assistant County Prosecutor 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

MARY J. BOYLE, P.J.: 

{¶ 1} This matter is before the court on remand from the Ohio Supreme Court. 

{¶ 2} Following a jury trial, defendant-Michael Jackson was convicted of a single 

count of rape, R.C. 2907.02(A)(2), and a single count of unlawful conduct with a minor, R.C. 

2907.04(A), which carried a furthermore clause alleging that Jackson is ten or more years 

older than the victim. 
{¶ 3} At sentencing, the trial court imposed four years for the rape count and four 

years for unlawful sexual conduct with a minor, both to be served concurrently. 

{¶ 4} On direct appeal, we affirmed in part and reversed in part the trial court’s 

judgment. State v. Jackson, 8th Dist. No. 92531, 2010-Ohio-3080. We affirmed Jackson’s 

convictions for both counts but sustained his fifth and seventh assignments of error, finding 

that there was insufficient evidence to support the furthermore clause attached to the unlawful 

sexual conduct with a minor count and that the trial court erred by failing to merge the rape 

and unlawful sexual conduct with a minor as allied offenses. Id. at ¶55 and 66. In 

sustaining the allied offenses assignment of error, we remanded the matter for the state to 

elect which allied offense to pursue in a new sentencing hearing. Id. at ¶66. 

{¶ 5} The state appealed to the Ohio Supreme Court our resolution of Jackson’s 

seventh assignment of error, which found that the two offenses should have merged at 

sentencing as allied offenses of similar import. Jackson filed a cross appeal, challenging his 

conviction and the length of his sentence. The Ohio Supreme Court accepted the state’s 

appeal but denied Jackson’s cross appeal. 

{¶ 6} On August 29, 2011, the Ohio Supreme Court issued a judgment entry, 

remanding the case to our court for application of its decision in State v. Johnson, 128 Ohio 

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Accordingly, we now turn to the issue of 
allied offenses raised in Jackson’s seventh assignment of error and apply Johnson as ordered 

by the Ohio Supreme Court. 

SEVENTH ASSIGNMENT OF ERROR: 

{¶ 7} “Defendant was denied due process of law when the court failed to merge the 

conviction of rape with the conviction for unlawful sexual conduct with a minor.”

{¶ 8} Jackson was convicted of rape under R.C. 2907.02(A)(2), which provides as 

follows: 

{¶ 9} “No person shall engage in sexual conduct with another when the offender 

purposely compels the other person to submit by force or threat of force.” 

{¶ 10} Jackson was also convicted of unlawful sexual conduct with a minor in 

violation of R.C. 2907.04(A), which provides as follows: 

{¶ 11} “No person who is eighteen years of age or older shall engage in sexual 

conduct with another, who is not the spouse of the offender, when the offender knows the 

other person is thirteen years of age or older but less than sixteen years of age, or the offender 

is reckless in that regard.”

{¶ 12} The state’s evidence at trial was as follows: in May 2007, the victim, S.C., who 

was 15 years old at the time and friends with Jackson’s younger sister, was approached by 

Jackson while watching television alone in the living room of Jackson’s apartment. Jackson 

came out of his bedroom and told S.C. that he was psychic and that he knew that S.C. was 
gay. Jackson then started touching S.C.’s legs and initiated the sexual conduct, taking off 

S.C.’s shorts and placing his penis inside him. Jackson continued and ultimately ejaculated 

inside of S.C. As a result of this conduct, the jury found Jackson guilty of rape and 

unlawful sexual conduct with a minor. 

{¶ 13} Ohio’s multiple counts statute, R.C. 2941.25, provides: 

{¶ 14} “(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. 

{¶ 15} “(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.”

{¶ 16} In Johnson, the Ohio Supreme announced a new two-part test to determine 

whether offenses are allied offenses of similar import under R.C. 2941.25; Id. Under this 

new test, the first inquiry focuses on “whether it is possible to commit one offense and

commit the other with the same conduct, not whether it is possible to commit one without

committing the other.” Id. at ¶48. In making such a determination, it is not necessary that 

the commission of one offense would always result in the commission of the other, but 

instead, the question is whether it is possible for both offenses to be committed with the same 
conduct. State v. Roy, 12th Dist. No. CA2009-11-290, 2011-Ohio-1992, ¶10, citing 

Johnson at ¶48. 

{¶ 17} If it is found that the offenses can be committed by the same conduct, the court 

must then determine “whether the offenses were committed by the same conduct, i.e., ‘a 

single act, committed with a single state of mind.’” Johnson at ¶49, quoting State v. Brown, 

119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶50. If the answer to both 

questions is yes, then the offenses are allied offenses of similar import and must be merged. 

Johnson at ¶50. However, if the commission of one offense will never result in the 

commission of the other, “or if the offenses are committed separately, or if the defendant has 

separate animus for each offense, then, according to R.C. 2941.25(B), the offenses will not 

merge.” Johnson at ¶51. 

{¶ 18} Applying the Johnson analysis to this case, we must first determine if it is 

possible for rape in violation of R.C. 2907.02(A)(2), and unlawful sexual conduct with a 

minor in violation of R.C. 2907.04(A), to be committed with the same conduct. And as we 

previously noted in Jackson I, “we find that the commission of rape wholly subsumes the 

commission of the unlawful sexual conduct with a minor.” Id. at ¶64; see, also, State v. 

Grant, 5th Dist. No. 07CA32, 2008-Ohio-3429. We therefore find that the first prong of the 

Johnson test is answered in the affirmative. 
{¶ 19} Having found that it is possible for rape and unlawful sexual conduct with a 

minor to be committed with the same conduct, the Johnson analysis now requires this court to 

determine whether Jackson committed the offenses by way of a single act and with a single 

state of mind. Id. at ¶49; R.C. 2941.25(B). 

{¶ 20} As this court recognized in Jackson I, Jackson’s conduct in May 2007 in the 

living room of his apartment gave rise to both convictions. Id. at ¶65. Indeed, “there was 

no evidence in this case to suggest that the unlawful sexual conduct with a minor was 

anything but incidental to the rape.” Id. There was no separate animus and both offenses 

arose from the same conduct. Therefore, under the facts and circumstances of this case, and 

in applying the Johnson analysis to the case at bar, we find these offenses to be allied 

offenses of similar import that must be merged. 

{¶ 21} As we previously noted, the state, however, retains the right to elect which 

offense to pursue on a remand to the trial court after appeal. Jackson I, 2010-Ohio-3080, ¶

66, citing State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraph 

one of the syllabus. We therefore sustain Jackson’s seventh assignment of error and remand 

to the trial court for a new sentencing hearing consistent with the holding in Whitfield. 

{¶ 22} The other aspects of our opinion in Jackson I (addressing Jackson’s six other 

assignments of error) are otherwise left intact by the Ohio Supreme Court’s remand and 
remain unchanged. The judgment of the trial court is reversed as to sentencing, and this 

matter is remanded to the lower court for further proceedings consistent with this opinion. 

Judgment affirmed in part, reversed in part, and case remanded. 

It is ordered that appellee and appellant share the costs of this proceeding. 

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. Case remanded to the trial court for 

resentencing. 

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

Rules of Appellate Procedure. 

 

 

MARY J. BOYLE, PRESIDING JUDGE 

KENNETH A. ROCCO, J., and 

JAMES J. SWEENEY, J., CONCUR