[Cite as State v. Ward, 2021-Ohio-1930.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

STATE OF OHIO, 

 CASE NO. 1-20-08 

 PLAINTIFF-APPELLEE, 

 v. 

AVERY E. WARD, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CR2018 0522 

Judgment Affirmed 

Date of Decision: June 7, 2021 

 

APPEARANCES: 

William T. Cramer for Appellant 

Jana E. Emerick for Appellee 

 
Case No. 1-20-08 

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WILLAMOWSKI, P.J. 

{¶1} Defendant-appellant Avery E. Ward (“Ward”) brings this appeal from 

the judgment of the Court of Common Pleas of Allen County accepting the jury 

verdict of guilty to one count of rape and one count of felonious assault and 

sentencing him to prison. On appeal, Ward challenges the sentences imposed and 

claims he was denied the effective assistance of counsel. For the reasons set forth 

below, the judgment is affirmed. 

{¶2} On January 17, 2019, the Allen County Grand Jury indicted Ward on 

one count of Rape in violation of R.C. 2907.02(A)(1)(b), 2907.02(B), a felony of 

the first degree, and one count of felonious assault in violation of R.C. 

2903.11(B)(3), 2903.11(D)(1)(a), a felony of the second degree. Doc. 4. These 

charges were based on allegations that Ward engaged in sexual conduct with a nineyear-old victim by force and that he knew he was HIV positive at that time. Id. 

Ward entered pleas of not guilty to both counts. Doc. 11. A jury trial was held on 

December 2 and 3, 2019. Doc. 163. At the conclusion of the trial, the jury returned 

verdicts of guilty as to both counts and found that Ward had compelled the victim 

to submit through the use of force. Doc. 160-161. The trial court entered a judgment 

entry of conviction on December 4, 2019, and ordered a pre-sentence investigation 

(“PSI”) be completed prior to sentencing. Doc. 163. 

{¶3} On January 15, 2020, the trial court held a sentencing hearing. Doc. 

171. At the hearing the trial court determined that the offenses did not merge. Id. 
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The trial court then sentenced Ward to a prison term of life without the possibility 

of parole for the rape conviction and eight years in prison for the felonious assault 

conviction. Id. The trial court also ordered the sentences to be served consecutively 

and made the necessary findings. Id. Ward appeals from this judgment and raises 

the following assignments of error. 

First Assignment of Error 

Should the trial court have merged convictions for rape and 

felonious assault where they were committed by the same conduct

and with the same animus, and result in no separate identifiable 

harm? 

Second Assignment of Error 

[Ward] was deprived of his right to the effective assistance of

counsel under the federal and state constitutions when counsel 

conceded that felonious assault did not merge with rape. 

Third Assignment of Error 

The trial court erred by imposing consecutive sentences based on 

findings that are not supported by the record. 

Fourth Assignment of Error 

By clear and convincing evidence, the record does not support the 

imposition of a maximum term of life without parole. 

Merger of Convictions

{¶4} In the first assignment of error, Ward claims that his convictions should 

have merged as they were committed by the same conduct, with the same animus, 

and no separate, identifiable harm. “Whether offenses are allied offenses of similar 
Case No. 1-20-08 

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import is a question of law that this court reviews de novo.” State v. Cartlidge, 3d 

Dist. Seneca No. 13-18-33, 2019-Ohio-1283, ¶ 26. The most recent test for merger 

of multiple offenses was set forth by the Ohio Supreme Court in the case of State v. 

Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. In Ruff, the defendant 

was convicted of rape, aggravated burglary, attempted rape, and sexual battery of a 

minor. Id. at ¶ 2. The issue before the Court was whether the rape and aggravated 

burglary charges should have merged. Id. When discussing the issue of merger, the 

Court held as follows. 

When the defendant’s conduct constitutes a single offense, the 

defendant may be convicted and punished only for that offense. 

When the conduct supports more than one offense, however, a 

court must conduct an analysis of allied offenses of similar import 

to determine whether the offenses merge or whether the 

defendant may be convicted of separate offenses. R.C. 

2941.25(B). 

A trial court and the reviewing court on appeal when considering 

whether there are allied offenses that merge into a single 

conviction under R.C. 2941.25(A) must first take into account the 

conduct of the defendant. In other words, how were the offenses 

committed? If any of the following is true, the offenses cannot 

merge and the defendant may be convicted and sentenced for 

multiple offenses: (1) the offenses are dissimilar in import or 

significance – in other words, each offenses caused separate, 

identifiable harm, (2) the offenses were committed separately, or 

(3) the offenses were committed with separate animus or 

motivation. 

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. When a 

defendant’s conduct victimizes more than one person, the harm 
Case No. 1-20-08 

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for each person is separate and distinct, and therefore, the 

defendant can be convicted of multiple counts. Also 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. We therefore hold that two or more offenses of 

dissimilar import exist 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. 

* * * 

Rather than compare the elements of two offenses to determine 

whether they are allied offenses of similar import, the analysis 

must focus on the defendant’s conduct to determine whether one 

or more convictions may result, because an offense may be 

committed in a variety of ways and the offenses committed may 

have different import. No bright-line rule can govern every 

situation. 

As a practical matter, when determining whether offenses are 

allied offenses of similar import within the meaning of R.C. 

2941.25, courts must ask three questions when the defendant’s 

conduct supports multiple offenses: (1) Were the offenses 

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

separately? and (3) Were they committed with separate animus 

or motivation? An affirmative answer to any of the above will 

permit separate convictions. The conduct, the animus, and the 

import must all be considered. 

Id. at ¶ 24-26, 30-31. The Court reversed the judgment of the appellate court and 

remanded the matter to the appellate court for consideration of whether the import 

of the aggravated burglary and the import of the rape were similar or similar in each 

of the events. Id. at 29. 
Case No. 1-20-08 

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{¶5} Here, Ward was convicted of raping a child under the age of thirteen 

and of doing so after he knew he tested positive for HIV. To prove the rape, the 

State was required to prove that Ward engaged in sexual conduct with one who was 

not his spouse and who was under the age of thirteen. R.C. 2907.02(A)(1)(b). To 

prove the felonious assault, the State was required to prove that Ward , knowing that 

he had tested positive for HIV, knowingly engaged in sexual conduct with a person 

under the age of 18.1

 R.C. 2903.11(B)(3). The facts of this case were that Ward 

engaged in anal intercourse with a nine-year-old victim after he knew he was 

positive for HIV. Thus he did engage in sexual conduct with a child who could not 

give consent due to the child’s age, which supports the rape conviction. He did this 

conduct knowing he was HIV positive which supports the felonious assault 

conviction. The only question is whether the convictions should merge. 

{¶6} When looking at the factors set forth in Ruff, there is no dispute that the 

two offenses stemmed from one act and were not committed separately. The only 

difference between the two offenses in this case was Ward’s status as being HIV 

positive, which is not a separate act. The act itself was the sexual conduct with a 

child. 

{¶7} The next question is whether the acts were committed with a separate 

animus or motivation. Both the state and counsel for Ward agreed that these 

 

1

 The statute does not differentiate between “protected” sexual conduct and “unprotected” sexual conduct 

and the issue of consent is irrelevant if the victim is under the age of 18. 
Case No. 1-20-08 

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offenses had a separate animus. A separate animus means that the defendant had a 

separate intent to commit both offenses. See Black’s Law Dictionary (11th Ed.2019). 

“Where an individual's immediate motive involves the commission of one offense, 

but in the course of committing that crime he must, a priori, commit another, then 

he may well possess but a single animus, and in that event may be convicted of only 

one crime.” State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979).2

 

Since animus is frequently difficult to prove directly, a court must infer it from the 

surrounding circumstances by looking to see whether the defendant’s course of 

conduct indicated distinct purposes. State v. Frye, 3d Dist. Allen No. 1-17-30, 2018-

Ohio-564, ¶ 132, 108 N.E.3d 564. A review of the course of conduct in this case 

does not indicate that there were distinct courses of conduct or purposes. The 

evidence appears to indicate that Ward’s purpose was to engage in sexual conduct 

and gave no consideration to his status as being HIV positive. Thus, there was no 

separate animus. 

{¶8} This leads this Court to the third question – whether the offenses were 

dissimilar in import. Offenses are considered to be of dissimilar import when the 

harm that results is separate and identifiable. State v. Rhoads, 3d Dist. Hardin No. 

6-18-02, 2018-Ohio-2620, ¶ 12. In this case, the harm that could result from sexual 

 

2

 “Although the ‘two-step’ analysis prescribed by the Supreme Court of Ohio in Logan has been overruled, 

the court's discussion of animus remains relevant under the current tripart test prescribed in Ruff.” State v. 

Frye, 3d Dist. Allen No. 1-17-30, 2018-Ohio-564, FN 2, 108 N.E.3d 564. 
Case No. 1-20-08 

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conduct with a minor under the age of 13 has considerable psychological and certain 

potential physical ramifications. However, that sexual conduct when one knows 

they are HIV positive implicates a new category of concerns in that it may result in 

an incurable disease that the victim will be forced to deal with during the victim’s 

lifetime and could result in the victim’s death. It can also necessitate that the victim 

be on medication for the victim’s lifetime at great expense. The harm caused by the 

felonious assault in this case was separate and identifiable from the harm caused by 

the rape. Thus, the offenses were of dissimilar import and do not merge for the 

purposes of sentencing. The first assignment of error is overruled. 

Ineffective Assistance of Counsel

{¶9} Ward claims in the second assignment of error that his counsel was 

ineffective for conceding that a separate animus existed for the two offenses. 

In evaluating whether a petitioner has been denied effective 

assistance of counsel, this court has held that the test is “whether 

the accused, under all the circumstances, * * * had a fair trial and 

substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d 

71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus. 

When making that determination, a two-step process is usually 

employed. “First, there must be a determination as to whether 

there has been a substantial violation of any of defense counsel's 

essential duties to his client. Next, and analytically separate from 

the question of whether the defendant's Sixth Amendment rights 

were violated, there must be a determination as to whether the 

defense was prejudiced by counsel's ineffectiveness.” State v. Lytle

(1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d 

623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 

3135, 57 L.Ed.2d 1154. 
Case No. 1-20-08 

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On the issue of counsel's ineffectiveness, the petitioner has the 

burden of proof, since in Ohio a properly licensed attorney is 

presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio 

St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64 

Ohio St.2d [107] at 110–111, 18 O.O.3d [348] at 351, 413 N.E.2d

[819] at 822. 

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “The 

failure to prove either 1) a substantial violation or 2) prejudice caused by the 

violation makes it unnecessary for a court to consider the other prong of the test.” 

State v. Walker, 2016-Ohio-3499, 66 N.E.3d 349, ¶ 20. “To show prejudice, the

defendant must show a reasonable probability that, but for counsel's errors, the result 

of the proceeding would have been different.” State v. Conway, 109 Ohio St.3d 

412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “The prejudice inquiry, thus, focuses 

not only on outcome determination, but also on ‘whether the result of the proceeding 

was fundamentally unfair or unreliable.’” State v. Montgomery, 148 Ohio St.3d 

347, 2016-Ohio-5487, 71 N.E.3d 180 quoting Lockhart v. Fretwell, 506 U.S. 364, 

369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). 

{¶10} As discussed above, there was no separate animus pursuant to the facts 

of this case. Trial counsel did make an error in agreeing that there was. However, 

despite the fact that there was no separate animus, the offenses were of dissimilar 

import and were not subject to merger. As a result, Ward did not suffer any 

prejudice from the error of counsel. The failure to show prejudice defeats Ward’s 
Case No. 1-20-08 

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claim of ineffective assistance of counsel. The second assignment of error is 

overruled.

Consecutive Sentences

{¶11} In the third assignment of error, Ward claims that the trial court erred 

by imposing consecutive sentences because the findings are not supported by the 

record. To impose consecutive sentences, a trial court is required to make certain 

findings on the record. R.C. 2929.14(C)(4). 

If multiple prison terms are imposed on an offender for 

convictions of multiple offenses, the court may require the 

offender to serve the prison terms consecutively if the court finds 

that the consecutive service is necessary to protect the public from 

future crime or to punish the offender and 

that consecutive sentences are not disproportionate to the 

seriousness of the offender's conduct and to the danger the 

offender poses to the public, and if the court also finds any of the 

following: 

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a 

sanction imposed pursuant to section 2929.16, 2929.17, 

or 2929.18 of the Revised Code, or was under post-release control 

for a prior offense. 

(b) At least two of the multiple offenses were committed as part of 

one or more courses of conduct, and the harm caused by two or 

more of the multiple offenses so committed was so great or 

unusual that no single prison term for any of the offenses 

committed as part of any of the courses of conduct adequately 

reflects the seriousness of the offender's conduct. 

(c) The offender's history of criminal conduct demonstrates 

that consecutive sentences are necessary to protect the public 

from future crime by the offender. 
Case No. 1-20-08 

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R.C. 2929.14(C)(4). If the findings made by the trial court are supported by the 

record, an appellate court will not reverse them on appeal. State v. Peddicord, 3d 

Dist. Henry No. 7-13-12, 2014-Ohio-2849, ¶ 6. 

{¶12} Here, Ward claims that the trial court erred in imposing consecutive 

sentences because the trial court based its decision on the fact that the victim would 

have to repeatedly tell the victim’s story to law enforcement personnel and in court. 

Ward claims that this does not make the offense any worse because it is just part of 

the process. If this was the sole reason for the trial court imposing consecutive 

sentences, this court might be inclined to agree, but it was not. Additionally, the 

record shows that the victim suffered extreme psychological harm not only from the 

rape, but also from having to live with the fear of a potential HIV infection which 

requires the victim to attend regular doctor’s visits and take medication in an effort 

to avoid becoming HIV positive. The record shows that the victim suffers from 

great fear of dying because the victim may have contracted this illness. This fear is 

different from the normal psychological fear suffered by a rape victim. 

In its judgment entry, the trial court made the following findings. 

The Court has decided that the offender shall serve the prison 

terms consecutively, pursuant to R.C. 2929.14(C)(4), because the 

Court finds that the consecutive service is necessary to protect the 

public from future crime, as well as to punish the offender and

that consecutive sentences are not disproportionate to the 

seriousness of the offender’s conduct and to the danger the 

offender poses to the public, and the Court also finds the 

following: 
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At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or 

more of the multiple offenses so committed was so great or 

unusual that no single prison term for any of the offenses 

committed as part of any of the courses of conduct adequately 

reflects the seriousness of the offender’s conduct. 

Doc. 171. Ward has failed to show by clear and convincing evidence that the 

findings of the trial court were not supported by the record. As discussed above, the 

record before this court shows that there was competent, credible evidence to 

support the findings of the trial court regarding the unusual harm. Therefore, the 

third assignment of error is overruled. 

Maximum Sentence

{¶13} Ward’s final assignment of error raises the issue of the imposition of 

the maximum sentence on the rape charge. Ward argues that the sentencing factors 

set forth in R.C. 2929.11 and 2929.12 do not support the sentence imposed by the 

trial court. Recently, the Ohio Supreme Court has clarified the role of an appellate 

court in reviewing the sentencing factors set forth in R.C. 2929.11 and 2929.12. 

State v. Jones, ___ Ohio St.3d ___, 2020-Ohio-6729, ___ N.E.3d ___. 

The Supreme Court of Ohio determined that R.C. 

2953.08(G)(2)(a) “clearly does not provide a basis for an appellate 

court to modify or vacate a sentence if it concludes that the record 

does not support the sentence under R.C. 2929.11 and R.C. 

2929.12 because * * * R.C. 2929.11 and R.C. 2929.12 are not 

among the statutes listed in the provision.” Id. at ¶ 31. Thus, the 

Supreme Court of Ohio concluded that an appellate court may 

not modify or vacate a felony sentence based upon a finding by 

clear and convincing evidence that the record does not support 

the trial court's “findings” under R.C. 2929.11 and R.C. 
Case No. 1-20-08 

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2929.12. Id. at ¶ 42 (“Nothing in R.C. 2953.08(G)(2) permits an 

appellate court to independently weigh the evidence in the record 

and substitute its judgment for that of the trial court concerning 

the sentence that best reflects compliance with R.C. 

2929.11 and 2929.12.”). 

In Jones, the Supreme Court of Ohio also confirmed that R.C. 

2953.08(G)(2)(b) does not provide a mechanism for an appellate 

court to modify or vacate a felony sentence based upon a finding 

that the sentence is “contrary to law” because it clearly and 

convincingly is not supported by the record under R.C. 2929.11 

and R.C. 2929.12. Id. at ¶ 32-39. “As a result of the Supreme 

Court's holding in Jones, when reviewing felony sentences that 

are imposed solely after considering the factors in R.C. 2929.11 

and R.C. 2929.12, we shall no longer analyze whether those 

sentences are unsupported by the record. We simply must 

determine whether those sentences are contrary to law.” State v. 

Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76, ¶ 18. “A 

sentence is contrary to law when it does not fall within the 

statutory range for the offense or if the trial court fails to consider 

the purposes and principles of felony sentencing set forth in R.C. 

2929.11 and the sentencing factors set forth in R.C. 2929.12.” Id. 

citing State v. Brown, 2d Dist. No. 2016-CA-53, 99 N.E.3d 1135, 

2017-Ohio-8416, ¶ 74; see State v. D-Bey, 8th Dist. Cuyahoga No. 

109000, 2021-Ohio-60, ¶ 65. 

State v. Denoyer, 3d Dist. Allen No. 1-20-34, 2021-Ohio-886, ¶ 28-29. 

{¶14} A review of the record in this case shows that the trial court did 

consider the statutory factors set forth in R.C. 2929.11 and 2929.12. The sentences 

imposed for each of the offenses was within the statutory range. See R.C. 2929.14. 

Thus, Ward cannot show that this sentence is clearly and convincingly contrary to 

law and his sentence must be affirmed. See State v. D-Bey, 8th Dist. Cuyahoga No. 

109000, 2021-Ohio-60 (holding that the court could not review the sentence to 
Case No. 1-20-08 

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determine whether they were excessive or not supported by the record). The fourth 

assignment of error is overruled. 

{¶15} Having found no error prejudicial to Appellant in the particulars 

assigned and argued, the judgment of the Court of Common Pleas of Allen County 

is affirmed. 

Judgment Affirmed 

ZIMMERMAN, J., concurs. 

SHAW, J., concurring separately. 

{¶16} I concur in the judgment of the majority and in the final disposition of 

the Assignments of Error. However, with regard to the issue of merger discussed 

under the First Assignment of Error, I respectfully disagree with the conclusion 

reached by the majority that the two offenses in this case constitute the same conduct 

and the same animus. 

{¶17} At paragraph 6 of their opinion, the majority concludes that the only 

“conduct” in this case was the sexual conduct with a child, and that the only 

distinguishing feature of the felonious assault was Ward’s status as HIV positive 

during the sexual conduct. However, it is not merely Ward’s status as HIV positive 

that constitutes the conduct underlying the Felonious Assault offense. The distinct 

and separate “conduct” constituting the Felonious Assault offense in this case is the 

knowing decision or choice by Ward to proceed with the sexual conduct with full 

awareness of his HIV status. 
Case No. 1-20-08 

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{¶18} Similarly, at paragraph 7 of their opinion, the majority concludes that 

the only animus or purpose Ward had in this case was to commit the sexual conduct 

because at that moment he allegedly “gave no consideration to his status as being 

HIV positive.” However, contrary to the majority’s description, there is no element 

of purpose or mental state attached to the sexual conduct underlying the Rape 

offense in this case, which is a strict liability offense. R.C.2901.21(B). In other 

words, there is no legal animus required for the sexual conduct underlying the Rape 

offense in this case at all. 

{¶19} In contrast, the Felonious Assault offense requires Ward to act

knowingly. As such, the animus underlying the Felonious Assault offense is again, 

the determination or choice by Ward to knowingly proceed with the sexual conduct 

with full awareness of his HIV status. Whether or not it appears to us that Ward 

“gave no consideration” to his HIV status during the sexual conduct, as noted by the 

majority, is irrelevant as it does not equate to a lack of animus or otherwise diminish 

his awareness of his HIV status and knowing choice to proceed with the sexual 

conduct anyway. 

{¶20} On the contrary, a willful or reckless disregard by Ward of his known 

HIV status, or even a claimed failure to give it any thought at the moment of the 

sexual conduct, is itself a distinct animus to complete the Felonious Assault, without 

regard for the potential harm to the victim. Moreover, Ward’s determination to 

engage in the sexual conduct in this situation certainly meets the requisite 
Case No. 1-20-08 

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“awareness of circumstances” and the “probable results” of those circumstances 

included in the definition of the culpable mental state of knowingly under 

R.C.2901.22(B). 

{¶21} In sum, Ward’s conduct and animus in committing the Felonious 

Assault offense in this case are each clearly additional, separate and distinct from 

anything required for the Rape offense. Although it does not affect the outcome of 

our decision in this particular instance, I believe the unique and separate nature of 

the elements of these two offenses are important and should remain clarified for 

future merger cases that might come before this court. 

/hls