[Cite as State v. Nguyen, 2015-Ohio-4414.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ATHENS COUNTY 

STATE OF OHIO, : Case No. 14CA42 

 Plaintiff-Appellee, : 

v. : DECISION AND 

 JUDGMENT ENTRY 

CHARLES H. NGUYEN, : 

 Defendant-Appellant. : RELEASED: 10/21/2015 

APPEARANCES: 

Elizabeth N. Gaba, Columbus, Ohio, for appellant. 

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, 

Athens County Assistant Prosecuting Attorney, Athens, Ohio, for appellee. 

Harsha, J. 

{¶1} Charles H. Nguyen appealed his convictions for rape, kidnapping, 

aggravated burglary, and tampering with evidence, and for the most part, we overruled 

his assignments of error and affirmed. Nevertheless, we sustained two assignments of 

error in part and remanded the cause to the trial court to determine whether Nguyen 

committed the (1) rape and the aggravated burglary and the (2) kidnapping and the 

aggravated burglary separately or with a separate animus and if necessary, to 

resentence him accordingly. On remand the trial court determined that the specified 

offenses did not merge and reaffirmed its prior sentence. 

{¶2} In his first assignment of error Nguyen asserts that the trial court erred in 

conducting a merger analysis of the offenses because defects and ambiguity in the 

indictment, bill of particulars, and jury verdicts made this analysis impossible and 

required a new trial. In part of his second assignment of error Nguyen repeats some of 
Athens App. No. 14CA42 2 

this argument and again requests a new trial. He also contends that the trial court erred 

in failing to merge his rape and kidnapping offenses. In his fourth assignment of error 

Nguyen contends that the trial court erred by not declaring R.C. 2941.25 

unconstitutional and void for vagueness on its face and as applied in this case. 

Because Nguyen could have raised these arguments in his initial appeal but did not, res 

judicata precludes our consideration of them following remand. 

{¶3} In the remaining portion of his second assignment of error Nguyen argues 

that the trial court erred in failing to merge the aggravated burglary offense with the rape 

and kidnapping offenses. In his third assignment of error Nguyen claims that the trial 

court erred in relying on State v. Smith, 8th Dist. Cuyahoga No. 100641, 2014-Ohio3420, to support its finding that the aggravated burglary count did not merge with the 

rape and kidnapping counts. The evidence of Nguyen’s conduct supports the trial 

court’s imposition of convictions for the aggravated burglary, rape, and kidnapping 

offenses because the record indicates that the offenses had separate victims; therefore 

the trial court correctly refused to merge these offenses. And although the trial court’s 

apparent reliance on Smith was erroneous, it does not require reversal because we 

review judgments, not the rationale behind them. 

{¶4} In his fifth assignment of error Nguyen argues that the trial court erred by 

“affirming concurrent” (sic)1 and disproportionate sentences in violation of his Eighth 

Amendment rights. We reject the state’s contention that Nguyen cannot raise this claim 

because he could have raised it in his prior appeal. In that appeal we decided not to 

address Nguyen’s complaint about maximum and consecutive sentences because the 

 1 Presumably Nguyen’s counsel meant to say “reimposing” and “consecutive” when she used “affirming” 

and “concurrent”, respectively. 
Athens App. No. 14CA42 3 

remand for the merger analysis might render his contention moot upon resentencing. 

Res judicata does not apply here. 

{¶5} Nevertheless, we also reject Nguyen’s specifically assigned error that his 

aggregate 30-year prison term violated the Eighth Amendment prohibition against cruel 

and unusual punishment. Because none of the sentences for each of his individual 

crimes is grossly disproportionate to those respective crimes, his aggregate prison 

sentence does not constitute cruel and unusual punishment. 

{¶6} Finally, Nguyen also argues in his fifth assigned error that the trial court 

violated R.C. 2929.14 by imposing consecutive sentences without making statutorily 

required findings. However, we need not address this contention because we review 

assignments of error and not mere arguments. Here his argument of error is limited to 

application of the Eighth Amendment. Likewise, his contentions that his trial counsel 

was ineffective for rejecting a plea offer, and that he received a penalty for exercising 

his right to trial, are not specifically assigned as error, so we will not address them. And 

these last two contentions are barred by res judicata. 

{¶7} Therefore, we overrule Nguyen’s assignments of error and affirm his 

convictions and sentence. 

I. FACTS2

{¶8} A grand jury indicted Nguyen for rape, kidnapping, aggravated burglary, 

and tampering with evidence. He pleaded not guilty, and a jury trial produced the 

following evidence. 

 2 Except where otherwise noted, these facts are taken from our decision in Nguyen’s prior appeal. See 

State v. Nguyen, 4th Dist. Athens No. 12CA14, 2013-Ohio-3170, ¶ 14-20. 
Athens App. No. 14CA42 4 

{¶9} Nguyen and the victim, H.N., met online on VietSingle.com. Nguyen lived 

in New York City, and H.N. lives in Athens, Ohio. Near the end of March 2009, H.N. 

went on vacation to New York City and met Nguyen in person. On the second day of 

the trip H.N. told Nguyen she just wanted to be friends. But they continued to 

communicate, and Nguyen visited her in Ohio from May 9, 2009, to May 17, 2009. 

During the visit H.N. realized they could not be friends because Nguyen still wanted a 

romantic relationship. When she drove him to the airport on May 17th, H.N. ended the 

friendship. She tried to give Nguyen a goodbye hug at the airport, but he turned and 

walked away. 

{¶10} On May 19, 2009, Nguyen unexpectedly came to H.N.'s apartment where 

she was present along with her three-year-old nephew, K.B. Nguyen told her that he 

wanted to apologize for his behavior at the airport and stepped into the apartment. H.N. 

went to her bedroom to change because she felt exposed in her pajamas. Nguyen 

followed, so she sat on the edge of her bed and used her arms to cover herself. 

Nguyen sat and told her that he wanted them to be together. When she rejected him, 

he took white rope from his pocket. She asked what he was doing, and he told her not 

to scream. H.N. begged him not to “do this,” but he took off her shorts and ripped her 

shirt off. He spread her legs and examined her to see if she had “had sex with 

anybody.” 

{¶11} Later, Nguyen told H.N. to turn around so he could tie her hands with the 

rope. She kept saying “please don't,” and Nguyen told her not to scream or he would 

kill K.B. After he tied her hands up, he told her to lie on the bed so he could tie her 

ankles together. When she begged him to not kill her, he replied he would not because 
Athens App. No. 14CA42 5 

he loved her. H.N. tried to fight, but he said, “I am not kidding around, I am going to kill 

K.B.” When H.N. continued to fight, Nguyen said, “I swear I have scissors in my 

pockets I will slit his throat.” As she lay on the bed, he tied her ankles together. H.N. 

tried to calm Nguyen down while she worked one of her wrists free. Nguyen made her 

promise to give their relationship another chance and said if she broke her promise, her 

family would “die a horrible death.” Then he used scissors and cut the ropes off her 

ankles and other wrist. But when H.N. sat up, Nguyen took off his pants and said “I am 

just gonna do this.” H.N. begged him to stop, but he threatened K.B. again. Nguyen let 

H.N. check on K.B. in another room, but when she returned to the bedroom, he told her 

to “lay down, we are gonna do this.” Then he inserted his penis into her vagina. A few 

minutes later, he ejaculated on her stomach, and she used a scarf to wipe off the 

semen. 

{¶12} Nguyen told H.N. he was taking her to New York. He made her pack and 

get dressed, and he used medical tape to bind her arms together. He also tried to 

blindfold her with a tie and tape her mouth shut but took the items off when H.N. 

protested. He took her to the living room and asked if she was going to call the police. 

After H.N. promised she would not, he used the scissors to cut her free. He let H.N. get 

in her car with K.B. around 9:45 a.m. so she could go to work. H.N. drove to work, 

where she told her sister's boyfriend what happened and called 911. Then she went to 

the police station. Before H.N. left the house she saw Nguyen pick up pieces of the 

rope and stuff them in his pockets. She thought he also put the scissors and medical 

tape in his pockets. Law enforcement did not find the scissors or tape at the crime 

scene and only found what H.N. identified as a portion of the rope Nguyen used. The 
Athens App. No. 14CA42 6 

State presented evidence that Nguyen's semen was in H.N.'s vagina after the incident, 

and his cell phone was in the Athens area around the time of the rape. 

{¶13} After Nguyen chose not to testify or call any witnesses on his behalf, a jury 

found him guilty on all counts. The court sentenced him to 10 years each for rape, 

kidnapping, and aggravated burglary and five years for tampering with evidence. The 

court ordered that the sentences for rape, kidnapping, and aggravated burglary run 

consecutive to each other and the sentence for tampering with evidence run concurrent 

to the other sentences, for an aggregate 30-year sentence. 

{¶14} On appeal we overruled most of Nguyen’s assignments of error. State v. 

Nguyen, 4th Dist. Athens No. 12CA14, 2013-Ohio-3170 (“Nguyen I”). But we sustained 

that portion of his assignment of error contesting the trial court’s refusal to merge his 

rape and aggravated burglary offenses and his kidnapping and aggravated burglary 

offenses.3 Id. at ¶ 108-109. We remanded the cause to the trial court to determine 

whether Nguyen committed the crimes of rape and aggravated burglary and kidnapping 

and aggravated burglary separately or with a separate animus and if necessary, to 

resentence him accordingly. Id. at ¶ 108-109, 116. 

{¶15} However, we refrained from addressing that portion of Nguyen’s 

assignment of error claiming that the trial court erred when it imposed maximum and 

consecutive sentences for his rape, kidnapping, and aggravated burglary convictions. 

We did so because “if on remand the trial court concludes that the kidnapping and 

aggravated burglary offenses merge or that the rape and aggravated burglary charges 

 3 In Nguyen I, we also overruled the part of this same assignment of error in which Nguyen claimed that 

the trial court erred in failing to merge his rape and kidnapping offenses. We held that “evidence supports 

the conclusion that the post-rape restraint and movement of the victim was not merely incidental to the 

rape.” Id. at ¶ 107. 
Athens App. No. 14CA42 7 

merge, some of the issues raised in this assignment of error as to those three 

convictions might be rendered moot.” Id. at ¶ 110, 116. 

{¶16} On remand the state filed a request for findings of fact asking the trial 

court to “affirm” the findings of the predecessor judge who found that Nguyen committed 

the crimes of aggravated burglary and rape, as well as aggravated burglary and 

kidnapping separately and with a separate animus. In a subsequent filing the state 

asked the court to apply State v. Smith, 8th Dist. Cuyahoga No. 100641, 2014-Ohio3420, to find that “[o]nce the Defendant deceivingly entered into the victim’s home with 

the intent to commit a felony inside, the crime of aggravated burglary was complete” 

and was thus committed separately from the rape and kidnapping that followed. 

{¶17} After hearing the parties’ arguments the court indicated that it was going to 

reject Nguyen’s request that the offenses merge, based in part on Smith: 

[B]ased on my review of uh, all the pleadings, the file, the arguments of 

counsel the Court uh, is going to adopt the sentencing order made by 

Judge Ward. I’m going to find that in this case uh, there was a separate 

animus for the aggravated burglary as to the rape and kidnapping. That, 

I’m going to adopt the reasoning in State v. Smith, 8th District uh, Court of 

Appeals, 2014-Ohio-340. Find that the aggravated burglary was complete 

upon the entry with the purpose or the intent to commit another felony. Be 

that rape or kidnapping. And that the uh, rape or kidnapping was a, the 

physical harm associated with that was an element or an enhancement to 

the offense uh, therein. 

{¶18} Following the hearing the trial court issued an entry that adopted the 

State’s position. The trial court thus reimposed Nguyen’s “previously ordered thirty (30) 

year prison sentence. This appeal followed. 

II. ASSIGNMENTS OF ERROR 

{¶19} Nguyen assigns the following errors for review: 
Athens App. No. 14CA42 8 

1. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT 

IN FAILING TO PROPERLY ADDRESS THE FUNDAMENTAL 

STRUCTURAL ERRORS IN THIS CASE THAT FORECLOSED A 

CONCLUSION ABOUT MERGER OF ALLIED OFFENSES OF 

SIMILAR IMPORT AT SENTENCING. IT IS IMPOSSIBLE IN THIS 

CASE FOR THE COURT TO DETERMINE WHETHER THE 

OFFENSES OF KIDNAPPING AND AGGRAVTED BURGLARY, AND 

THE OFFENSES OF RAPE AND AGGRAVATED BURGLARY, AND 

EVEN THE OFFENSES OF RAPE AND KIDNAPPING, ARE ALLIED 

OFFENSES OF SIMILAR IMPORT BECAUSE OF THE DUPLICITY 

AND AMBIGUITY OF THE INDICTMENT, AND THE AMBIGUITY OF 

THE BILL OF PARTICULARS AND THE JURY VERDICTS, AND AS 

SUCH, DEFENDANT IS ENTITLED TO A NEW TRIAL. A COURT 

CANNOT CONDUCT MERGER ANALYSIS BASED ON THESE 

INCONCLUSIVE VERDICTS, AND CANNOT SUBSTITUTE ITS 

FACT-FINDING FOR THAT OF THE JURY. TO DO SO IS 

UNCONSTITUTIONAL. 

 

2. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT 

IN FAILING TO PROPERLY MERGE ALLIED OFFENSES OF 

SIMILAR IMPORT AT SENTENCING PURSUANT TO R.C. 2941.25. 

3. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT 

IN USING State v. Smith, 2014-Ohio-3420 TO SUPPORT ITS 

FINDING THAT THE AGGRAVATED BURGLARY COUNT DOES 

NOT MERGE WITH THE RAPE AND KIDNAPPING COUNTS. THE 

FINDING IS WRONG, THE CASE IS INAPPOSITE, AND, IF THIS 

COURT DOES NOT CONCLUDE THAT THERE IS FUNDAMENTAL 

STRUCTURAL ERROR IN THE NGUYEN CASE, THEN THE 

COUNTS SHOULD MERGE. 

4. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT 

BY NOT DECLARING R.C. 2941.25 UNCONSTITUTIONAL AND 

VOID ON ITS FACE AND AS APPLIED IN THIS CASE. AS A 

RESULT, EITHER NGUYEN IS ENTITLED TO A NEW TRIAL OR THE 

TRIAL COURT SHOULD HAVE MERGED ALL ALLIED OFFENSES. 

5. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT 

IN AFFIRMING CONCURRENT (SIC) AND DISPROPORTIONATE 

SENTENCES IN VIOLATION OF APPELLANT’S EIGHTH 

AMENDMENT RIGHTS. 

 

III. LAW AND ANALYSIS 

A. Res Judicata 
Athens App. No. 14CA42 9 

{¶20} In his first assignment of error Nguyen asserts that the trial court erred in 

performing a merger analysis of the offenses because the ambiguity in the indictment, 

the bill of particulars, and the jury verdicts made that task impossible, and required a 

new trial. In part of his second assignment of error Nguyen repeats this argument and 

reiterates his request for a new trial. In both of these assignments of error he also 

contends that the trial court erred in failing to merge his rape and kidnapping offenses. 

In his fourth assignment of error Nguyen contends that the trial court erred by not 

declaring R.C. 2941.25 unconstitutional and void for vagueness on its face and as 

applied to this case. 

{¶21} Res judicata bars all of these claims because they are based entirely on 

the record of his jury trial and Nguyen should have raised them in his prior appeal. “ 

‘Where an argument could have been raised on an initial appeal, res judicata dictates 

that it is inappropriate to consider that same argument on a second appeal following 

remand.’ ” State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 

95, quoting State v. D’Ambrosio, 73 Ohio St.3d 141, 143, 652 N.E.2d 710 (1995); see 

also State v. Gillard, 78 Ohio St.3d 548, 549, 679 N.E.2d 276 (1997) (issues not raised 

in prior appeal are barred by res judicata and overruled without further consideration). 

Nguyen cites no persuasive authority in support of his contention that his claims raise 

structural error, or that these errors are not also barred by res judicata. See Lloyd v. 

Robinson, 4th Dist. Ross No. 14CA3462, 2015-Ohio-33, ¶ 16. Res judicata also bars 

Nguyen’s attempt to resurrect his claim from his prior appeal that his offenses of rape 

and kidnapping should have merged. See fn. 3 above; State v. Davis, 139 Ohio St.3d 

122, 2014-Ohio-1615, 9 N.E.3d 1031, ¶ 28, quoting State v. Perry, 10 Ohio St.2d 175, 
Athens App. No. 14CA42 10 

226 N.E.2d 104 (1967), paragraph nine of the syllabus (“ ‘Under the doctrine of res 

judicata, a final judgment of conviction bars a convicted defendant who was represented 

by counsel from raising and litigating in any proceeding except an appeal from that 

judgment, any defense or any claimed lack of due process that was raised or could 

have been raised by the defendant at the trial, which resulted in that judgment of 

conviction, or on an appeal from that judgment’ ”). 

{¶22} Furthermore, Nguyen additionally forfeited his constitutional challenge to 

R.C. 2941.25 by failing to raise it below. See State v. Quarterman, 140 Ohio St.3d 464, 

2014-Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting State v. Awan, 22 Ohio St.3d 120, 122, 

489 N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St.2d 26, 236 N.E.2d 545 

(1968), paragraph three of the syllabus (“It is a well-established rule that ‘ “an appellate 

court will not consider any error which counsel for a party complaining of the trial court’s 

judgment could have called but did not call to the trial court’s attention at a time when 

such error could have been avoided or corrected by the trial court” ’ ”). Therefore, we 

overrule the first, part of the second, and the fourth assignments of error. 

B. Allied Offenses of Similar Import 

{¶23} In his second assignment of error Nguyen contends that the trial court 

erred by failing to properly merge allied offenses of similar import at sentencing in 

accordance with R.C. 2941.25. In his third assignment of error he claims that the trial 

court erred in using State v. Smith, 8th Dist. Cuyahoga No. 100641, 2014-Ohio-3420, to 

support its decision not to merge his aggravated burglary offense with his rape and 

kidnapping offenses. 
Athens App. No. 14CA42 11 

{¶24} The Double Jeopardy Clause of the Fifth Amendment to the United States 

Constitution provides that no person shall “be subject for the same offence to be twice 

put in jeopardy of life or limb,” and this protection applies to Ohio citizens through the 

Fourteenth Amendment and is additionally guaranteed by Article I, Section 10 of the 

Ohio Constitution. This constitutional protection prohibits a second prosecution for the 

same offense after an acquittal, a second prosecution for the same offense after a 

conviction, and multiple punishments for the same offense in a single trial. 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). This last protection does no more than prevent the sentencing court from 

proscribing greater punishment than the legislature intended. State v. Miranda, 138 

Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, ¶6. 

{¶25} The General Assembly enacted R.C. 2941.25 to specify when multiple 

punishments can be imposed: 

(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. 

(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. 

 

{¶26} Appellate courts apply a de novo standard of review in an appeal 

challenging a trial court’s determination of whether offenses constitute allied offenses of 

similar import that must be merged under R.C. 2941.25. State v. Williams, 134 Ohio 

St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28; State v. Cole, 4th Dist. Athens No. 
Athens App. No. 14CA42 12 

12CA49, 2014-Ohio-2967, ¶ 7. Merger is a sentencing question where the defendant 

bears the burden of establishing his entitlement to the protection of R.C. 2941.25. State 

v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18. 

{¶27} In Nguyen I at ¶ 108-109, we determined that the offenses of rape and 

aggravated burglary and the offenses of kidnapping and aggravated burglary were 

offenses of similar import because the force or threat of force used to commit the rape 

or kidnapping could satisfy the requirement for aggravated burglary that the offender 

“inflicts, or attempts or threatens to inflict physical harm on another.” See R.C. 

2907.02(A)(2), 2905.01(A)(2), and 2911.11(A)(2). We remanded the cause to the trial 

court to determine whether Nguyen committed these crimes separately or with a 

separate animus. Nguyen I at ¶ 108-109. On remand the trial court determined that the 

specified offenses should not merge under R.C. 2941.25. 

{¶28} Nguyen argues that the trial court erred because it incorrectly relied on the 

appellate case cited by the state—Smith, 8th Dist. Cuyahoga No. 100641, 2014-Ohio3420. The trial court did not cite this case in its journal entry, but a review of the hearing 

on remand indicates that it specifically relied on Smith. Although a court generally 

speaks only through its journal entries, the reviewing court must examine the entire 

entry and proceedings when it is in the interest of justice to ascertain the grounds upon 

which a judgment is rendered. See Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 551 

N.E.2d 172 (1990), paragraph one of the syllabus; Infinite Security Solutions, L.L.C. v. 

Karam Properties II, Ltd., __ Ohio St.3d __, 2015-Ohio-1101, __ N.E.3d __, ¶ 29. In 

fact, the state does not suggest that the trial court did not rely on Smith, so we presume 

that it did. 
Athens App. No. 14CA42 13 

{¶29} In Smith the Eighth District Court of Appeals held that burglary and theft 

were not allied offenses of similar import subject to merger; once the defendant entered 

the victim’s home without her permission with an intent to commit a felony inside, the 

crime of burglary was complete so that the defendant’s subsequent theft of the victim’s 

television and Wii console was committed separately. The trial court relied on Smith

and adopted the state’s argument that Nguyen’s offense of aggravated burglary was 

complete when he entered the residence in which H.N. and her nephew K.B. were 

present. 

{¶30} There are three problems with the trial court’s rationale. First, the offense 

of burglary at issue in Smith does not include the additional element in the offense of 

aggravated burglary at issue here, i.e. that the offender “inflicts, or attempts or threatens 

to inflict physical harm on another.” When Nguyen entered the residence there had not 

yet been any infliction, attempt, or threat to inflict physical harm on anyone. Second, as 

we noted in Nguyen I at ¶ 85, in resolving a manifest-weight challenge “[e]vidence 

suggests that H.N. implicitly consented to Nguyen’s entrance into the apartment” so that 

the trespass required for aggravated burglary did not occur until after he entered the 

residence and his privilege to remain in the residence was terminated by his criminal 

conduct. More importantly, the court’s reliance on Smith requires the “parsing” of 

conduct that State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061

criticized. Therefore, the trial court incorrectly relied on Smith to deny Nguyen’s request 

for merger of the rape and aggravated burglary offenses and for merger of the 

kidnapping and aggravated burglary offenses. 
Athens App. No. 14CA42 14 

{¶31} Nevertheless, “ ‘a reviewing court should not reverse a correct judgment 

merely because it is based on erroneous reasons.’ ” State v. Marcum, 4th Dist. Hocking 

No. 14CA13, 2014-Ohio-5373, ¶ 27, quoting Stammco, L.L.C. v. United Tel. Co. of 

Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, ¶ 51. In other words, we 

review judgments, not the rationale behind them. 

{¶32} The Supreme Court of Ohio recently clarified the appropriate analysis to 

determine whether two offenses merge under R.C. 2941.25 in State v. Ruff, 143 Ohio 

St.3d 114, 2015-Ohio-995, 34 N.E.2d 892. “In determining whether offenses are allied 

offenses of similar import within the meaning of R.C. 2941.25, courts must evaluate 

three separate factors—the conduct, the animus, and the import.” Id. at paragraph one 

of the syllabus. “Under R.C. 2941.25(B), a defendant whose conduct supports multiple 

offenses may be convicted of all the offenses if any one of the following is true: (1) the 

conduct constitutes offenses of dissimilar import, (2) the conduct shows that the 

offenses were committed separately, or (3) the conduct shows that the offenses were 

committed with separate animus.” Id. at paragraph three of the syllabus.4

{¶33} In Nguyen I at ¶ 108-109, we held that under the Ohio Supreme Court’s 

decision in Johnson at ¶ 42, the charged offenses of rape and aggravated burglary and 

kidnapping and aggravated burglary were offenses of similar import because it was 

possible to commit these offenses with the same conduct. We thus remanded the 

 4 Although we could remand the cause to the trial court to redetermine the merger issue based on the 

factors specified in Ruff, 143 Ohio St.3d 144, 2015-Ohio-995, 34 N.E.3d 892, because this raises a de 

novo issue and the record is sufficient, we elect to apply Ruff in the first instance. See State v. Kirkby, 9th 

Dist. Summit Nos. 27381 and 27399, 2015-Ohio-1520, fn. 2 (court applied Ruff in the first instance rather 

than remanding the case to the trial court while noting that the Supreme Court in Ruff remanded the 

matter to the court of appeals to consider whether aggravated burglary and rape were crimes of similar 

import rather than instructing the court of appeals to remand the matter back to the trial court to make the 

determination). 
Athens App. No. 14CA42 15 

cause to the trial court to determine whether these offenses required merger because 

they were committed as single acts with the same animus. Id. 

{¶34} But in Ruff, which the Supreme Court decided after we decided Nguyen I, 

the court held at ¶ 16 that its previous analysis in Johnson was “incomplete because 

R.C. 2941.25(B) provides that when a defendant’s conduct constitutes two or more 

offenses of dissimilar import, the defendant may be convicted of all of the offenses.” 

(Emphasis sic.) The Supreme Court held that notwithstanding its previous analysis set 

forth in Johnson. “[t]wo 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 in each offense is separate and identifiable.” Although 

we were without the benefit of the Supreme Court’s decision in Ruff when we decided 

Nguyen I, it is applicable now. “ ‘The general rule is that a decision of a court of 

supreme jurisdiction overruling a former decision is retrospective in its operation, and 

the effect is not that the former was bad law, but that it never was the law.’ ” Taylor v. 

Ernst & Young, L.L.P., 130 Ohio St.3d 411, 2011-Ohio-5262, 958 N.E.2d 1203, ¶ 56, 

quoting Peerless Elec. Co. v. Bowers, 164 Ohio St. 209, 210, 129 N.E.2d 467 (1955); 

see also State v. Bey, 85 Ohio St.3d 487, 508-509, 709 N.E.2d 484 (1999). Therefore, 

we apply Ohio Supreme Court decisions retrospectively except when those decisions 

create new constitutional rights. See State v. Creech, 4th Dist. Scioto No. 12CA3500, 

2013-Ohio-3791, ¶ 13, fn. 6. Ruff did not create a new constitutional right so it applies 

here.

{¶35} Under Ruff, the trial court’s refusal to merge the offenses of rape and 

aggravated burglary was correct. Although the aggravated burglary was not complete 
Athens App. No. 14CA42 16 

at the time Nguyen entered the residence, the evidence established that it was 

complete before the rape occurred. Shortly after he entered the apartment where H.N. 

and her nephew K.B. were present, he followed her to her bedroom and after H.N. 

rejected his request that they be together, he took rope out of his pocket, took off her 

shorts, and ripped off her shirt. When H.N. continued to resist, Nguyen told her not to 

scream or he would kill K.B. He told her once again that he would kill K.B. when she 

continued to resist, and he threatened to slit K.B.’s throat when she continued to fight. 

Because K.B. was a victim of these threats and was present in the occupied structure, 

Nguyen’s aggravated burglary was dissimilar in import from his rape and kidnapping of 

H.N. Significantly, the state filed a bill of particulars that listed both K.B. and H.N. as 

being present in the residence during Nguyen’s aggravated burglary, i.e., which 

indicated that both were separate victims of the offense. 

{¶36} When the defendant’s conduct puts two individuals at risk, that conduct 

can support separate convictions because the crimes are of dissimilar import. Ruff at ¶ 

23, 26, and paragraph two of the syllabus. H.N. was the sole victim of the rape and the 

kidnapping, but K.B. was a separate victim of the aggravated burglary—he was in the 

apartment during Nguyen’s trespass and violent acts; some of the threats involved harm 

to K.B. See Ruff at paragraph two of the syllabus (“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”). 

{¶37} Nguyen relies on the court of appeals’ decision in State v. Ruff, 2013-

Ohio-3234, 996 N.E.2d 513, (1st Dist.), which held at ¶ 33 that the trial court in that 
Athens App. No. 14CA42 17 

case erred by not merging offenses of aggravated burglary and rape because “each 

aggravated burglary was not completed until Mr. Ruff raped his victims, and the state 

necessarily relied upon evidence of the rapes to establish the elements of the 

aggravated burglary offenses. The conduct relied upon to establish rape—sex 

compelled by force—was the same as the conduct relied upon by the state to establish 

the ‘physical harm’ component in R.C. 2911.11(A)(1).” But Nguyen fails to note that the 

Supreme Court of Ohio reversed that judgment of the court of appeals case relied on by 

him. See Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. Therefore, after 

applying the Supreme Court’s analysis in Ruff to the evidence submitted during the jury 

trial, we hold that Nguyen failed to satisfy his burden of proving that the offenses of rape 

and aggravated burglary or the offenses of kidnapping and aggravated burglary should 

merge under R.C. 2941.25. The offenses were offenses of dissimilar import because 

the aggravated burglary included an additional victim—H.N.’s nephew, K.B. We 

overrule Nguyen’s second and third assignments of error. 

C. Cruel and Unusual Punishment 

{¶38} In his fifth assignment of error Nguyen asserts that the trial court erred in 

affirming concurrent and disproportionate sentences in violation of his Eighth 

Amendment rights. Nguyen actually argues that the trial court erred in imposing 

consecutive sentences for his rape, kidnapping, and aggravated burglary convictions, 

which resulted in his 30-year aggregate prison term. 

{¶39} Initially we reject the state’s contention that Nguyen’s claim is barred by 

res judicata because he could have raised it in his prior appeal. We explicitly did not 

address Nguyen’s claim contesting his aggregate sentence in Nguyen I. We noted that 
Athens App. No. 14CA42 18 

“if on remand the trial court concludes that the kidnapping and aggravated burglary 

offenses merge or that the rape and aggravated burglary charges merge, some of the 

issues raised in this assignment of error as to those three convictions might be rendered 

moot.” Nguyen I, 4th Dist. Athens No. 12CA14, 2013-Ohio-3170, at ¶ 110. Therefore, 

res judicata did not bar this claim. 

{¶40} Nguyen’s assigned error raises an Eighth Amendment claim. “[T]he 

Eighth Amendment's prohibition on ‘cruel and unusual punishments’ requires that the 

‘punishment for crime * * * be graduated and proportioned to [the] offense.’ ” State v. 

Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 167, quoting

Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910). 

Nguyen challenges the trial court’s imposition of consecutive sentences. But it is well 

established that “ ‘[w]here none of the individual sentences imposed on an offender are 

grossly disproportionate to their respective offenses, an aggregate prison term resulting 

from consecutive imposition of those sentences does not constitute cruel and unusual 

punishment.’ ” State v. Leonhart, 4th Dist Washington No. 13CA38, 2014-Ohio-5601, ¶ 

61, quoting State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, 

syllabus. Because none of Nguyen’s sentences for his individual crimes of rape, 

kidnapping, and aggravated burglary is grossly disproportionate to those respective 

crimes, his aggregate prison term does not constitute cruel and unusual punishment. 

Id.

{¶41} Nguyen also argues in his fifth assignment of error that the trial court 

violated R.C. 2929.14 by imposing consecutive sentences. However we do not address 

this contention because we review assignments of error and not mere arguments. See 
Athens App. No. 14CA42 19 

State v. Wade, 4th Dist. Ross No. 14CA3435, 2015-Ohio-997, ¶ 21; State v. Lamb, 4th 

Dist. Highland No. 14CA3, 2014-Ohio-2960, ¶ 13. Similarly, we will not address 

Nguyen’s claim that his trial counsel was ineffective for failing to accept a plea deal that 

would have resulted in a recommended five-year prison term. Nguyen’s assigned error 

is restricted to challenging the trial court’s imposition of cruel and unusual punishment in 

violation of his Eighth Amendment rights. Therefore, we overrule Nguyen’s fifth 

assignment of error. 

IV. CONCLUSION 

{¶42} The trial court properly denied Nguyen’s request on remand that his 

offenses of rape and aggravated burglary and his offenses of kidnapping and 

aggravated burglary merge. Having overruled Nguyen’s assignments of error, we affirm 

the judgment of the trial court 

JUDGMENT AFFIRMED. 
Athens App. No. 14CA42 20 

JUDGMENT ENTRY 

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the 

costs. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Athens 

County Court of Common Pleas to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS 

BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is 

temporarily continued for a period not to exceed sixty days upon the bail previously 

posted. The purpose of a continued stay is to allow Appellant to file with the Supreme 

Court of Ohio an application for a stay during the pendency of proceedings in that court. 

If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 

sixty day period, or the failure of the Appellant to file a notice of appeal with the 

Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of 

the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court 

of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as 

of the date of such dismissal. 

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

the Rules of Appellate Procedure. 

Hoover, P.J. & McFarland, A.J.: Concur in Judgment and Opinion. 

 For the Court 

 BY: ________________________ 

 William H. Harsha, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.