[Cite as State v. Vaughn , 2019-Ohio-5005.]

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

State of Ohio Court of Appeals No. L-18-1142 Appellee Trial Court No. CR0201801236

v. Cameron Winston Vaughn DECISION AND JUDGMENT Appellant Decided: December 6, 2019

* * * * * Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee

. Clayton M. Gerbitz, for appellant.

* * * * * MAYLE, P.J. {¶ 1} Appellant, Cameron Vaughn, appeals the June 1, 2018 judgment of the Lucas County Court of Common Pleas sentencing him to 10 years i n prison. For the following reasons, we affirm.2. I. Background and Facts {¶ 2} In February 2018, Vaughn was indicted on nine charges: two cou nts of rape in violation of R.C. 2907.02(A)(2), both first-degree felonies; two counts of sexual battery in violation of R.C. 2907.03(A)(1), both third-degree f elonies; two counts of extortion in violation of R.C. 2905.11(A)(5), both third-degree felonies; two counts of coercion in violation of R.C. 2905.12(A)(3), both second-degree misdemeanors; and one count of kidnapping in violation of R.C. 2905.01(A)(4), a first -degree felony. {¶ 3} Vaughn agreed to plead guilty to the sexual battery and extorti on charges pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). {¶ 4} At the plea hearing, the state explained the circumstances of t he crimes. According to the state, in 2016, the victim, C.B., who was in h igh school at the time, began communicating on the Snapchat app with a person called “M aKahla.” C.B. believed that he was communicating with a woman based on his co nversations with MaKahla and the pictures that MaKahla sent. Later, after C.B. was out of high school, MaKahla told C.B. that she would have sex with him, but only if he first had sex with MaKahla’s boyfriend. C.B. agreed and met with the “boyfriend,” who was actually Vaughn, in the parking lot of a church in Sylvania. After C.B. got into Vaughn’s car, Vaughn made sexual advances toward C.B. C.B. “said he could no t do it” and exited Vaughn’s vehicle. MaKahla later messaged C.B. to ask why C.B. did not have sex with her boyfriend.3. {¶ 5} In addition to communicating through Snapchat, C.B. and MaKahla were also communicating through the Kik app. Through Kik, MaKahla a sked C.B. to send her pictures of his penis and videos of him digitally penetrating a nd inserting objects into his anus. He did. After receiving the pictures and videos, MaKahl a told C.B. that her boyfriend had found the images and was upset. MaKahla said tha t her boyfriend wanted to have sex with C.B. “as revenge.” If C.B. did not, MaKahla c laimed that her boyfriend would post the images “all over social media in an effort to em barrass [C.B.].” C.B. agreed. {¶ 6} C.B. went to a home in Toledo, and when he pulled up, he saw, t hrough the front window, a black man on his phone sending messages. At th is point, the state said that it believed Vaughn was posing as MaKahla because C.B. rece ived messages from MaKahla asking if he had arrived at the same time that the man in the home (who C.B. later identified as Vaughn) was sending messages. Vaughn had a nal sex with C.B. at the

home. {¶ 7} Afterward, MaKahla sent C.B. another message stating that her b oyfriend still intended to put the images of C.B. on social media unless C.B. had sex with her boyfriend again. Although C.B. pleaded with MaKahla not to rel ease the images, she said it would happen unless C.B. had sex with her boyfriend. S o C.B. reluctantly agreed. {¶ 8} C.B.’s third meeting with Vaughn occurred in a store parking lo t in Holland. Once C.B. was in Vaughn’s car, Vaughn had C.B. turn off the loc ation services on his phone so he could not be tracked, blindfolded him, and drove hi m to an apartment in4. Maumee. At the apartment, Vaughn performed fellatio on C.B. an d had anal sex with C.B. He also asked C.B. to perform fellatio on him, but C.B. r efused. {¶ 9} Following this incident, MaKahla again told C.B. that his image s would be released on social media unless C.B. had sex with the boyfriend a third time. This time, however, C.B. refused. Instead, he wrote a letter to his famil y about what had happened, which led to the Sylvania Police Department becoming involved. {¶ 10} The officer who investigated was able to trace the IP addresses associated with the Snapchat and Kik messages to Vaughn. The state conclu ded that Vaughn had been posing as MaKahla the whole time in an effort to engage in sexual conduct with

C.B. {¶ 11} Vaughn was indicted on several counts of rape, sexual battery, extortion, and coercion, and one count of kidnapping. He pleaded guilty t o the sexual battery and extortion charges pursuant to Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, and the state dismissed the remaining charges. {¶ 12} The trial court accepted Vaughn’s Alford pleas and found him guilty of all charges. The court ordered a presentence investigation and, at defense counsel’s request, a psychological evaluation. {¶ 13} At the sentencing hearing, Vaughn’s attorney addressed the cour t. Counsel explained that Vaughn was a typical 20 year old who “made a ver y very [sic] big mistake.” Vaughn was “struggling and confused with his own sex uality * * *,” which led5. him to in engage in “cat fishing [sic]” behavior. 1 Vaughn believed that he was “role playing” with the victim and “in his mind and in his heart he b elieved that this was a game.” Counsel also noted that Vaughn was a “polite, articulat e, intelligent young man,” and asked the court to run the sentences concurrently. {¶ 14} Vaughn also addressed the court. He said that he “should have never pretended to be someone else” and took “full responsibility” fo r doing so. He also assured the court that “nothing like this will ever happen agai n.” {¶ 15} Following Vaughn’s statement, the court said that it “considere d the record, oral statements, victim impact statement, and the pre-sentence report * * *,” it considered the principles and purposes of sentencing under R.C. 2929.11, b alanced the seriousness and recidivism factors in R.C. 2929.12, and considered the fact ors in R.C. 2929.13(B). The court discounted Vaughn’s and counsel’s explanations for Va ughn’s behavior, saying [T]he term was used as cat fishing [sic], and that’s just a co mfortable word by our culture for some reason in this modern way of commu nicating not to denigrate a conduct but to make it sound like it was ver y nice.

1 “Catfishing” means “deceiv[ing] (someone) by creating a false personal profile online,” Merriam-Webster Online, catfish , https://www.merriam-webster.com/dictionary/catfish (accessed Nov. 4, 2019), or “Lur[ing] (someone) into a relation ship by means of a fictional online persona.” Lexico, catfish , https://www.lexico.com/en/definition/catfish (accessed Nov. 4, 2019).6. It is actually a highly dangerous conduct, and it is a form of terrorization, so cat fishing [sic] that leads to this is nothi ng more than cunning, predatory, calculating, and manipulated. The damage meted out in this situation to the victim is immeasurable. The Court cannot begin to accept any kind of an explanation that this was any kind of an innocence of a situati on. I understand maybe you proclaimed naivety on this, however the conduct that was used and to follow through with the very speci fic acts of the conduct is nothing less than cunning and terrorizing, and t his will not be

tolerated. The court ordered Vaughn to serve 42 months in prison for each sexual battery count and 18 months for each extortion count, with the sentences to be se rved consecutively, for an aggregate prison term of 10 years. The court found that consec utive sentences were necessary to protect the public from future crime and to punish Vaughn, were not disproportionate to the “extreme seriousness” of Vaughn’s condu ct and the danger Vaughn posed to the community, and were necessary because the h arm Vaughn caused was “so grave or unusual” that a single prison term would not a dequately reflect the seriousness of Vaughn’s conduct. {¶ 16} Despite the trial court ordering a psychological evaluation, ne ither the court nor counsel referred to the evaluation at the sentencing hearin g. Nor was a psychological evaluation report filed with the clerk of courts. The court’s file contains a letter, dated six7. days before Vaughn’s sentencing hearing, from Court Diagnostic & Treatment Center indicating that Vaughn appeared for his evaluation, but after t he evaluator “discuss[ed] the nature and privilege of the evaluation” with Vaughn, Vaughn “thought it best to speak with his attorney before proceeding.” Based on the record, it does not appear that Vaughn actually underwent a psychological evaluation. {¶ 17} Vaughn now appeals the trial court’s sentence, raising two assi gnments of

error: I. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT

FAILED TO MERGE THE EXTORTION CHARGES WITH THE

SEXUAL BATTERY CHARGES AT SENTENCING.

II. THE TRIAL COURT ERRED WHEN SENTENCING

APPELLANT WITHOUT CONSIDERING THE PSYCHOLOGICAL

EVALUATION OR MAKING IT AVAILABLE TO THE APPELLANT. II. Law and Analysis

A. Allied Offenses {¶ 18} In his first assignment of error, Vaughn argues that the trial court committed plain error by failing to merge the sexual battery co unts with the extortion counts because “the Extortion charges are actually elements of the Sexual Battery charges.” He contends that the offenses are allied offenses of similar import because the conduct constituting extortion (i.e., Vaughn threating to expos e sexual images of C.B. on social media) was the same conduct constituting the coercion ne cessary to prove sexual8. battery. The state responds that the offenses do not merge bec ause they caused separate and identifiable harm, were committed separately, or were commi tted with separate

animus. {¶ 19} We review de novo a trial court’s ruling as to whether convicti ons merge under the allied-offenses doctrine. State v. Roberson , 2018-Ohio-1955, 113 N.E.3d 204, ¶ 12 (6th Dist.). Vaughn, however, did not raise the issue of allied offenses of similar import in the trial court. Our review of this issue on appeal is therefore limited to plain

error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Vaughn must “demonstrate a reasonable probability that the conv ictions are for allied offenses of similar import committed with the same conduct and without a separate animus,” and “absent that showing, the accused cannot demonstra te that the trial court’s failure to inquire whether the convictions merge for purposes o f sentencing was plain

error.” Id. {¶ 20} The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This protection applies to O hio citizens through the

Fourteenth Amendment to the United States Constitution. Benton v. Maryland , 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The right agai nst double jeopardy is also guaranteed by the Ohio Constitution, Article I, Section 10 (“No person shall be twice put in jeopardy for the same offense.”). “The protection provi ded by the Ohio Constitution’s Double Jeopardy Clause is coextensive with that provided by the Double9. Jeopardy Clause of the United States Constitution.” Clark v. Adult Parole Auth. , 151 Ohio St.3d 522, 2017-Ohio-8391, 90 N.E.3d 909, ¶ 13. {¶ 21} The Double Jeopardy Clause “protects against three abuses: (1) ‘a second prosecution for the same offense after acquittal,’ (2) ‘a secon d prosecution for the same offense after conviction,’ and (3) ‘multiple punishments for th e same offense.’” State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10, quoti ng North Carolina

v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith , 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). {¶ 22} R.C. 2941.25 codifies the Double Jeopardy Clause’s third protec tion, which prohibits multiple punishments for the same offense. The statu te prohibits multiple convictions for “allied offenses of similar import” arising out of the same conduct. R.C.

2941.25 states: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the i ndictment or information may contain counts for all such offenses, but the d efendant may be convicted of only one. (B) Where the defendant’s conduct constitutes two or more offe nses of dissimilar import, or where his conduct results in two or mo re offenses of the same or similar kind committed separately or with a sepa rate animus as to each, the indictment or information may contain counts fo r all such offenses, and the defendant may be convicted of all of them.10. {¶ 23} “At its heart, the allied-offense analysis is dependent upon th e facts of a

case because R.C. 2941.25 focuses on the defendant’s conduct.” Ruff at ¶ 26. This means that the “‘analysis may be sometimes difficult to perform and may result in varying results for the same set of offenses in different cases . But different results are permissible, given that the statute instructs courts to examine a defendant’s conduct―an inherently subjective determination.’” Id. at ¶ 32, quoting State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 52. {¶ 24} In Ruff, the Supreme Court of Ohio announced that whenever a court considers whether there are allied offenses that merge into a s ingle conviction, the court

“must first take into account the conduct of the defendant. In other words, how were the

offenses committed?” Id. at ¶ 25. When considering this overarching question, the cour t must address three sub-questions: (1) Were the offenses “dissi milar in import,” meaning did the offenses involve either separate victims or “separate a nd identifiable” harm? (2) Were the offenses committed separately? and (3) Were the of fenses committed with separate animus? Id. at ¶ 23-25. “‘An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.’” (Emphasis added.) State v. Earley , 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, quoting Ruff at ¶ 31. The defendant bears the burden to establish that R.C . 2941.25 prohibits multiple punishments. State v. Washington , 137 Ohio St.3d 427, 2013-Ohio4982, 999 N.E.2d 661, ¶ 18, citing State v. Mughni , 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987).11. {¶ 25} Under the Ruff test , we first address whether the sexual battery and extortion offenses were “dissimilar in import”―i.e., whether th e offenses involved separate victims or “separate and identifiable” harm. Here, th e offenses undoubtedly involved the same victim, so our inquiry becomes whether they r esulted in separate and

identifiable harms. {¶ 26} Vaughn was convicted of sexual battery in violation of R.C. 290 7.03(A)(1) and extortion in violation of R.C. 2905.11(A)(5). {¶ 27} Under the relevant sexual battery statute, R.C. 2907.03(A)(1), it is illegal for any person to engage in sexual conduct with another who is not the person’s spouse when the person knowingly coerces the other “to submit by any m eans that would prevent resistance by a person of ordinary resolution.” “Sexua l conduct” means, among other things, “anal intercourse [or] fellatio * * * between per sons regardless of sex * * *.” R.C. 2907.01(A). {¶ 28} An extortion conviction under R.C. 2905.11(A)(5) requires the s tate to prove that the defendant, “with purpose to obtain any valuable thing or valuable benefit * * *,” exposed or threatened to expose “any matter tending to subject any person to hatred, contempt, or ridicule, or to damage any person’s person al * * * repute * * *.” {¶ 29} Contrary to Vaughn’s argument, the harm caused by sexual batter y is not the coercion used to compel the victim’s compliance; instead, t he harm is participation in sexual conduct against the victim’s will. “‘[A]s a matter of l aw and common sense,’” forced sexual conduct causes “harm in the form of physical and mental trauma.” State v.12. Jackson , 6th Dist. Lucas No. L-17-1228, 2019-Ohio-577, ¶ 26, quoting State v. Dean , 2018-Ohio-1740, 112 N.E.3d 32, ¶ 56 (6th Dist.). In contrast, as applicable in this case, extortion causes harm in the form of the victim’s psychological distress that comes from knowing someone is likely to put sexual photos and videos of th e victim on the internet where they would be available for millions of people to see. T hus, in this case, the sexual battery and extortion offenses resulted in at least two “separa te and identifiable” harms: physical harm from unwanted sexual conduct and mental distress from threats to expose sensitive material. Accordingly, we find that Vaughn’s convict ions were offenses of dissimilar import. {¶ 30} Given that we have answered the first prong of the Ruff test in the affirmative and determined that Vaughn’s convictions were dissi milar in import, we need not address the remaining two elements of Ruff

. Earley , 145 Ohio St.3d 281, 2015-Ohio4615, 49 N.E.3d 266, at ¶ 12 (“‘An affirmative answer to any of the [required questions

under Ruff ] will permit separate convictions.’” (Emphasis added.)). The refore, we find that the trial court did not commit plain error by failing to m erge Vaughn’s sexual battery convictions with his extortion convictions. Accordingly, we fi nd that Vaughn’s first assignment of error is not well-taken. B. Psychological Evaluation {¶ 31} In his second assignment of error, Vaughn argues that the trial court failed to consider the psychological evaluation report it ordered unde r R.C. 2947.06(B) and failed to comply with the statute because the court did not req uire the psychological13. evaluation report to be made in writing, in open court, and in Vaughn’s presence. The state responds that nothing in the record shows that the trial court failed to consider the report or failed to comply with the requirements of R.C. 2947.0 6(B). {¶ 32} Under R.C. 2947.06(B), a trial court has the discretion to appo int up to two psychiatrists or psychologists to “make any reports concerning the defendant that the court requires for the purpose of determining the disposition o f the case.” If a report is ordered, it “shall be made in writing, in open court, and in th e presence of the defendant

* * *.” Id. The court “may” give the defendant a copy of the report, and t he defendant has the option of examining the person who made the report. Id. {¶ 33} Here, although the trial court ordered a psychological evaluati on, Vaughn chose not to complete the evaluation. Thus, there was no repor t for the evaluator to make “in writing, in open court, and in the presence of * * *” Vaugh n, or for the trial court to consider before sentencing Vaughn. Because a psychological eva luation report does not exist—due entirely to Vaughn’s own actions—we cannot find that the trial court erred in its handling of the report. Vaughn’s second assignment of erro r is not well-taken.

III. Conclusion {¶ 34} For the foregoing reasons, the June 1, 2018 judgment of the Luc as County Court of Common Pleas is affirmed. Vaughn is ordered to pay th e costs of this appeal pursuant to App.R. 24.

Judgment affirmed.14. State v . Vaughn C .A. No. L-18-1142

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

Arlene Singer, J. _________________

______________ JUDGE Christine E. Mayle, P.J.

_______________________________ Gene A. Zmuda, J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.