[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 AppelleeCase No. 1-20-08

-2- WILLAMOWSKI, P.J. {¶1} Defendant-appellant Avery E. Ward (“Ward”) brings this appeal f rom the judgment of the Court of Common Pleas of Allen County accep ting the jury verdict of guilty to one count of rape and one count of felonio us assault and sentencing him to prison. On appeal, Ward challenges the sente nces 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), 2907.0 2(B), a felony of the first degree, and one count of felonious assault in violati on 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 c onduct with a nineyear-old victim by force and that he knew he was HIV positive a t that time. Id

. Ward entered pleas of not guilty to both counts. Doc. 11. A j ury trial was held on December 2 and 3, 2019. Doc. 163. At the conclusion of the tr ial, the jury returned verdicts of guilty as to both counts and found that Ward had co mpelled the victim to submit through the use of force. Doc. 160-161. The trial c ourt entered a judgment entry of conviction on December 4, 2019, and ordered a pre-sent ence 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 offens es did not merge. Id

.Case No. 1-20-08

-3- The trial court then sentenced Ward to a prison term of life wi thout 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 cons ecutively 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 identifiabl e 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 o n findings that are not supported by the record. Fourth Assignment of Error By clear and convincing evidence, the record does not support t he imposition of a maximum term of life without parole. Merger of Convictions {¶4} In the first assignment of error, Ward claims that his convicti ons should have merged as they were committed by the same conduct, with th e same animus, and no separate, identifiable harm. “Whether offenses are alli ed offenses of similarCase No. 1-20-08

-4- 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 im port 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 considerin g whether there are allied offenses that merge into a single conviction under R.C. 2941.25(A) must first take into account t he conduct of the defendant. In other words, how were the offense s committed? If any of the following is true, the offenses canno t merge and the defendant may be convicted and sentenced for multiple offenses: (1) the offenses are dissimilar in import o r 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 condu ct. The evidence at trial or during a plea or sentencing hearing wi ll reveal whether the offenses have similar import. When a defendant’s conduct victimizes more than one person, the harmCase No. 1-20-08

-5- for each person is separate and distinct, and therefore, the defendant can be convicted of multiple counts. Also a defendan t’s conduct that constitutes two or more offenses against a single victim can support multiple convictions if the harm that result s 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 analysi s 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 ap pellate 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 simi lar or similar in each

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

-6- {¶5} Here, Ward was convicted of raping a child under the age of thi rteen and of doing so after he knew he tested positive for HIV. To p rove 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. 290 7.02(A)(1)(b). To prove the felonious assault, the State was required to prove th at Ward , knowing that he had tested positive for HIV, knowingly engaged in sexual con duct 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 h e 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 co nviction. He did this conduct knowing he was HIV positive which supports the feloniou s assault conviction. The only question is whether the convictions shoul d 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 separa tely. The only

difference between the two offenses in this case was Ward’s sta tus 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 sep arate animus or motivation. Both the state and counsel for Ward agre ed that these

1 The statute does not differentiate between “protected” sexual conduct and “unprotected” sexual conduct and the issue of consent is irre levant if the victim is under t he age of 18.Case No. 1-20-08

-7- offenses had a separate animus. A separate animus means that t he defendant had a separate intent to commit both offenses. See Black’s Law Dictionary (11 th 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 defenda nt’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 con duct in this case

does not indicate that there were distinct courses of conduct o r 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 offen ses were dissimilar in import. Offenses are considered to be of dissimi lar 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 cou ld result from sexual

2 “ Although the ‘two-step’ analysis prescribed by the Supreme Cour t of Ohio in Logan has been overruled, the court's discussion of animus remains relevant under the cur rent tripart test prescribed in Ruff .” State v. Frye , 3d Dist. Allen No. 1-17-30, 2018-Ohio-564, FN 2, 108 N.E.3d 5 64.Case No. 1-20-08

-8- conduct with a minor under the age of 13 has considerable psych ological 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 wit h during the victim’s

lifetime and could result in the victim’s death. It can also n ecessitate that the victim be on medication for the victim’s lifetime at great expense. T he harm caused by the felonious assault in this case was separate and identifiable fr om 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 overr uled. 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 th e two offenses. In evaluating whether a petitioner has been denied effective assistance of counsel, this court has held that the test is “wh ether the accused, under all the circumstances, * * * had a fair tria l 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 syllab us. 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 counse l's essential duties to his client. Next, and analytically separat e 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.C t. 3135, 57 L.Ed.2d 1154.Case No. 1-20-08

-9- On the issue of counsel's ineffectiveness, the petitioner has t he 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) prejud ice caused by the violation makes it unnecessary for a court to consider the othe r 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 coun sel'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 inqui ry, thus, focuses not only on outcome determination, but also on ‘whether the res ult 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 th e 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 offense s were of dissimilar import and were not subject to merger. As a result, Ward did n ot suffer any prejudice from the error of counsel. The failure to show preju dice defeats Ward’sCase No. 1-20-08

-10- claim of ineffective assistance of counsel. The second assignm ent of error is

overruled.

Consecutive Sentences {¶11} In the third assignment of error, Ward claims that the trial co urt erred by imposing consecutive sentences because the findings are not supported by the record. To impose consecutive sentences, a trial court is requ ired 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 f inds 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 o f 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 contr ol for a prior offense. (b) At least two of the multiple offenses were committed as par t 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

-11- R.C. 2929.14(C)(4). If the findings made by the trial court ar e 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 consec utive

sentences because the trial court based its decision on the fac t that the victim would have to repeatedly tell the victim’s story to law enforcement p ersonnel and in court. Ward claims that this does not make the offense any worse becau se it is just part of the process. If this was the sole reason for the trial court i mposing consecutive sentences, this court might be inclined to agree, but it was no t. Additionally, the record shows that the victim suffered extreme psychological har m 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 vict im 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 findi ngs. The Court has decided that the offender shall serve the prison terms consecutively, pursuant to R.C. 2929.14(C)(4), because th e Court finds that the consecutive service is necessary to protec t 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:Case No. 1-20-08

-12- 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 evid ence 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, credib le evidence to support the findings of the trial court regarding the unusual h arm. Therefore, the third assignment of error is overruled.

Maximum Sentence {¶13} Ward’s final assignment of error raises the issue of the imposi tion 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 senten ce imposed by the

trial court. Recentl y, the O hio Supreme C ourt has clarified th e role of an appellate court in reviewing the sentencing factors set forth in R.C. 292 9.11 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 appel late court to modify or vacate a sentence if it concludes that the r ecord 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

-13- 2929.12. Id . at ¶ 42 (“Nothing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the reco rd and substitute its judgment for that of the trial court concern ing 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 findin g 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. 2929.1 1 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 29 29.12. 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 convin cingly c ontrary to

law and his sentence must be affirmed. See State v. D-Bey , 8 th Dist. Cuyahoga No. 109000, 2021-Ohio-60 (holding that the court could not review t he sentence toCase No. 1-20-08

-14- determine whether they were excessive or not supported by the r ecord). The fourth assignment of error is overruled. {¶15} Having found no error prejudicial to Appellant in the particula rs 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 dispo sition of the Assignments of Error. However, with regard to the issue of merger discussed under the First Assignment of Error, I respectfully disagree wi th the conclusion reached by the majority that the two offenses in this case cons titute the same conduct

and the same animus. {¶17} At paragraph 6 of their opinion, the majority concludes that th e 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 o ffense. The distinct and separate “conduct” constituting the Felonious Assault offen se 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

-15- {¶18} Similarly, at paragr aph 7 of the ir opinion, the maj ority conclu des 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 h is 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 under lying 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 Assaul t 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 con duct, as noted by the majority, is irrelevant as it does not equate to a lack of anim us or otherwise diminish his awareness of his HIV status and knowing choice to proceed w ith 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 Fel onious Assault, without regard for the potential harm to the victim. Moreover, Ward’s d etermination to engage in the sexual conduct in this situation certainly meets the requisiteCase No. 1-20-08

-16- “awareness of circumstances” and the “probable results” of thos e circumstances included in the definition of the culpable mental state of know ingly 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, separ ate and distinct from anything required for the Rape offense. Although it does not af fect 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 rem ain clarified for future merger cases that might come before this court.

/hls