[Cite as State v. Cox , 2013-Ohio-301.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Case No. 25143 Plaintiff-Appellee : : Trial Court Ca se No. 2011-CR-1025 v. : : MICAH COX : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 1st day of February, 2013.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery County Prosecutor’s Office, Appe llate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee BRYAN K. PENICK, Atty. Reg. #0071489, Peni ck & Deters, 1800 Lyons Road, Dayton, Ohio 45458 Attorney for Defendant-Appellant

. . . . . . . . . . . . . HALL, J. {¶ 1} Micah Cox appeals from his conviction and sentence on two counts of sexualbattery and two counts of unlawfu l sexual conduct with a minor. {¶ 2} Cox advances two assignments of error on appeal. First, he contends the trial court erred in failing to merg e his sexual battery and unlaw ful sexual conduct convictions. Second, he claims the tr ial court erred in overru ling a suppression motion. {¶ 3} The record reflects that a count y victim’s advocate overheard jailhouse telephone conversations between Cox and his fifteen-year-o ld stepdaughter while he was incarcerated on drug charges. Based on the cont ent of the conversations , the advocate believed Cox and his stepdaughter had been having sex. Police contacted the stepdaughter, who claimed Cox had raped her. A detective interviewed Cox in jail. The March 8, 2011 interview took place one day after Cox had received a leng thy prison sentence on the drug charges. The detective advised Cox he was go ing to be questioned about alle gations of rape and unlawful sexual conduct with a minor. At Cox’s request, the detective provided a definition of rape. Cox responded by proclaiming that he never had sex with women against their will or forced anyone to have sex. Cox proceeded to waive his Miranda rights and acknowledged having consensual sex with his ste pdaughter more than 100 times. {¶ 4} On May 25, 2011, a grand jury indicted Cox on two counts of unlawful sexual conduct with a minor. On August 18, 2011, Cox was indicted on two counts of sexual battery. He subsequently moved to s uppress his jailhouse confession, ar guing that the detective had misled him about the nature of the potential char ges. Cox claimed that no rape allegation was being investigated or pursued at the time of th e interview. Following a suppression hearing, the trial court overruled Cox’s mo tion. He pled no contest to the four charges. The trial court found him guilty and sentenced him accordingly. This appeal followed. {¶ 5} In his first assignment of err, Cox c ontends the trial cour t should have merged 3

 his sexual battery and unlawful sexual conduct with a minor convi ctions as allied offenses of similar import. {¶ 6} Applying the test found in State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, Cox argues that his act of having sex with his stepdaughter constituted both se xual battery and unlawful sexu al conduct with a minor and was committed with a single animus. Therefore, he maintains that the offenses were subject to merger under R.C. 2941.25. {¶ 7} Because Cox failed to raise an allied- offense argument below, we are limited to plain error review. In State v. Patel , 2d Dist. Greene No. 2010-CA-77, 2011-Ohio-6329, ¶79 n.2, we recognized that imposing multiple se ntences for allied offenses of similar import does constitute plain error. The record before us fails to establish, however, that Cox’s sexual battery and unlawful sexual conduc t with a minor convictions were subject to merger. In the plain-error context, we will not presume that offenses are subject to merger where the record contains no facts to support such a conclusion. State v. Adams , 2d Dist. Montgomery No. 22493, 2009-Ohio-2056, ¶15-16. {¶ 8} Here the record reflects that Cox was indicted on two counts of unlawful sexual conduct with a minor for acts that o ccurred between September 1, 2009 and January 25, 2011. He later was indicted on tw o counts of sexual battery, again for acts that occurred between September 1, 2009 and January 25, 2011. A ll four charges were filed after Cox admitted having sex with his st epdaughter more than 100 times. At the plea hearing, the prosecutor explained that the two counts for unlawful sexual conduct involved “separate acts within the date range.” (Plea tr anscript at 6). With regard to the second indictment for two 4

 counts of sexual battery, the prosecutor explaine d that “these are two distinct sex acts.” ( Id . at 7). In light of this explanation, and Cox’s ad mission to engaging in more than 100 sex acts, the record reasonably can be r ead as involving a no-contest pl ea to four separate sex acts occurring at different times. {¶ 9} To accept Cox’s allied-offense argume nt, we would need to overlook the prosecutor’s unchallenged explanation during th e plea hearing and Cox’s admission that he engaged in more than 100 acts of sexual intercour se with his stepdaughter. We would need to presume that the State erroneously based th e unlawful sexual conduc t and sexual battery charges on just two instances of sexual activity rather than four. In a plain-error analysis, however, we do not presume error. To the contrary, a defendant bears the burden of establishing an “obvious” error. State v. Barrett , 8th Dist. Cuyahoga No. 97614, 2012-Ohio-3948, ¶8. “[T]o the extent that appella te review requires th e application of the plain error doctrine, it is an oxymoron to find plain error [where] there are insufficient facts in the record necessary to determine whether e rror occurred at all. If we cannot determine whether error exists because of the absence of facts in the record on appeal, it follows that there is no plain error that is ‘obvious.’” Id. at ¶10. {¶ 10} We do not dispute that each time Cox had sex with his stepdaughter he simultaneously committed sexual battery and unlawful sexu al conduct with a minor. See R.C. 2907.03(A)(5) (prohibiting sexual conduct between a stepparent and stepchild) and R.C. 2907.04(A) (prohibiting sexual c onduct between an adult and a child under age sixteen). We also agree that no separate animus existed for the two offenses each time Cox had sex with his stepdaughter. Therefore, if only two instances of sexual activity were at issue, merger would 5

 be required. {¶ 11} As noted above, however, Cox admitted having sex with his stepdaughter more than 100 times. Partic ularly in light of the prosecutor’s explanation at the plea hearing, the indictments reasonably can be read as charging him with four representative counts, two involving sexual battery and two involving unlawful sexual conduct with a minor. In Johnson , the Ohio Supreme Court recognized that allied offenses do not merge if they are committed “separately.” Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at ¶51. In the plain-error context, we find that to be the case here. Compare Adams , 2009-Ohio-2056, at ¶16 (“Simply put, there is nothing in the record demonstrating that any of the counts should be treated as allied offenses of similar import, n ecessitating merger. No facts were placed on the record suggesting the same animus for multiple counts, nor are there facts in the record suggesting anything less than distinct counts. Plain error is not dem onstrated.”). The first assignment of error is overruled. {¶ 12} In his second assignment of error, Cox claims the tria l court erred in overruling his suppression motion. He asserts that “trickery a nd deceit” by the detective rendered his Miranda waiver involuntary. Specifically, Cox contends he “was tricked as to what crime he would be interro gated about in the jail[.]” According to Cox, the detective deceived him into believing he would be questioned about rape . Cox argues that he “was concerned with exculpating himself from a charge that was never going to be presented against him” and that the detective’s decepti on should have resulted in suppression of his confession. {¶ 13} In rejecting Cox’s argument, the trial court was “not persuaded that simply 6

 advising a suspect that he is being investigated for a more serious charge than is ultimately placed in an Indictment is tric kery, let alone coercion.” We agr ee. The detective told Cox he was being questioned a bout allegations of rape and unlaw ful sexual conduct with a minor. (Suppression Tr. at 21-22). The reco rd reflects that his stepdaught er did claim to have been raped. ( Id. at 24). Cox told the detective the rape allegation was a lie. ( Id . at 25). Although rape charges ultimately were not filed, the record establishes that the detective had a good-faith basis for telling Cox a rape allegation was being investigated. In short, we see no trickery, deceit, or anything else sufficient to render Cox’s Miranda waiver involuntary. {¶ 14} Cox’s reliance on State v. Wilson , 31 Ohio App.3d 133, 508 N.E.2d 1002 (12th Dist.1986), fails to persua de us otherwise. He cites Wilson for the proposition that “where a suspect is interrogated about crimes other than those wh ich he consented to discuss, a trial court errs in not granting a motion to suppress.” (Appellant’s brief at 11). In Wilson , the defendant waived his Miranda rights prior to taking a polyg raph examination about a breaking and entering. Prior to the actua l test, he was asked a control question about other crimes. The Twelfth District held that the defendant’s Miranda waiver was invalid as to the other crimes because he did not know he w ould be asked about them. {¶ 15} The present case is distinguishable from Wilson . Here the detective advised Cox he was being questi oned about illegal sexual activity with his stepda ughter. The detective mentioned rape and unlawful se xual conduct with a minor as possible charges. During the interview, Cox in fact was que stioned about illegal sexual activ ity with his stepdaughter. Cox has not identified any crimes unrelat ed to sexual activity with hi s stepdaughter about which he 7

 was questioned. 1 Therefore, his reliance on Wilson is misplaced. The second assignment of error is overruled. {¶ 16} The judgment of the Montgomery C ounty Common Pleas Court is affirmed.

. . . . . . . . . . . . . FAIN, P.J, concurs. FROELICH, J., concurring: {¶ 17} I concur on the record before us. C onvictions for multiple acts over a lengthy time period can raise problems at trial if there is not some minimal differentiation in the indictment, bill of particulars, and/or jury charge and verdicts. State v. Shaw , 2d Dist. Montgomery No. 21880, 2008-Ohio-1317. But here there was one victim, an admission to over 100 offenses, pleas which did not contest separate offenses a nd no objection to the

sentences.

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Copies mailed to: Mathias H. Heck Andrew T. French Bryan Penick Hon. Frances E. McGee

1 Although the detective did not specifically mention a possible sexual battery charge, “it is not necessary that a suspect under stand the nature of every offense of which he is suspected or all possible subjects of questioning in order for his waiver of Miranda rights to be valid.” (Citations omitted.) State v. Brown , 2d Dist. Montgomery No. 19113, 2002-Ohio-6370, ¶19. Cox certainly knew he had been accused of having sex with his stepdaughter even if he was not informed of every law that such conduct might violate.