[Cite as State v. Bradley, 2012-Ohio-5176.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98048 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

JAMES BRADLEY

DEFENDANT-APPELLANT

 JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-543162 

BEFORE: E. Gallagher, J., Sweeney, P.J., and Cooney, J. 

RELEASED AND JOURNALIZED: November 8, 2012
ATTORNEY FOR APPELLANT

Paul A. Daher 

Paul A. Daher & Associates, L.L.C. 

700 West St. Clair Avenue 

Suite 218 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Ronni Ducoff 

Assistant County Prosecutor 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
EILEEN A. GALLAGHER, J.: 

{¶1} James Bradley appeals his sentence from the Cuyahoga County Court of 

Common Pleas propounding one assignment of error: 

The trial court committed plain error when it failed to merge Bradley’s 

gross sexual imposition convictions as allied offenses of similar import. 

{¶2} Appellant was charged in a 40-count indictment with 12 counts of rape of a 

person under 13 years of age, causing serious physical harm to the victim and purposely 

compelling the victim to submit by force or threat of force. Attendant to those charges 

of rape were sexually violent predator specifications. Appellant was also charged with 

18 counts of kidnapping of a person under 13 years of age with sexual motivation 

specifications and six counts of gross sexual imposition of a person under 13 years of 

age. 

{¶3} The remaining four counts of the indictment did not name appellant. 

{¶4} These crimes, according to the indictment, were committed on or about 

August 18, 2008, to August 17, 2009. 

{¶5} Appellant pled guilty on February 2, 2011, to two counts of gross sexual 

imposition as charged in Counts 13 and 15. 

{¶6} At the plea hearing, the assistant prosecuting attorney clearly stated, on the 

record, that those counts “represent different acts of gross sexual imposition” (tr. 5) and 
that those crimes “really represented his penis on her buttocks; hands on her vagina * * 

*.” (Tr. 26.) 

{¶7} The appellant was referred for a presentence investigation report and 

returned to the trial court for sentencing on February 24, 2011. Appellant was 

sentenced to four years on each count, to be served consecutively. He was advised by 

the trial court that, upon his release from custody, he would serve a mandatory five year 

period of postrelease control and he was adjudicated a Tier II sex-offender. The trial 

court advised him of the duties associated with that classification. 

{¶8} Appellant argues that the trial court committed plain error by failing to 

hold an allied offense hearing and failing to merge Counts 13 and 15 at sentencing. 

{¶9} Appellant failed to object to the court’s imposition of multiple sentences 

and has, therefore, waived all but plain error. Under Crim.R. 52(B), “[p]lain errors or 

defects affecting substantial rights may be noticed although they were not brought to the 

attention of the court.” However, plain error exists only when it is obvious on the 

record. State v. Rogers, 8th Dist. Nos. 97093 and 97094, 2012-Ohio-2496, ¶ 28; State 

v. Tichon, 102 Ohio App.3d 758, 767, 658 N.E.2d 16 (9th Dist.1995). 

{¶10} The Ohio Supreme Court established the proper analysis for determining 

whether offenses qualify as allied offenses subject to merger pursuant to R.C. 2941.25 in 

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48-50, and 

has held that: 

In determining whether offenses are allied offenses of similar import under 
R.C. 2941.25(A), the question is whether it is possible to commit one 

offense and commit the other with the same conduct, not whether it is 

possible to commit one without committing the other. * * * If the offenses 

correspond to such a degree that the conduct of the defendant constituting 

commission of one offense constitutes commission of the other, then the 

offenses are of similar import. 

If the multiple offenses can be committed by the same conduct, then the 

court must determine whether the offenses were committed by the same 

conduct, i.e., “a single act, committed with a single state of mind.” 

If the answer to both questions is yes, then the offenses are allied offenses 

of similar import and will be merged. (Internal citations omitted.) Id. 

{¶11} A review of the record in this case reveals that appellant cannot establish 

plain error.1

 The presentence investigation report was not made part of the record in 

this case. However, a review of the state’s Amended More Particularized Bill of 

Particulars that was filed on January 21, 2011, reflects that Count 13 is reflective of the 

rubbing of the victim’s leg near her vagina on Charters Road and that Count 15 

references the rubbing of her vagina in Euclid, Ohio. Additionally, as mentioned 

above, the prosecutor noted on the record prior to appellant’s plea that the two counts 

represented two different acts of gross sexual imposition. This court has previously 

 1We note that the case sub judice is distinct from the recent line of cases 

where this court has been called upon to address instances where the record is 

devoid of any indication that the challenged offenses are (or are not) allied offenses, 

and different panels have reached different results on the application of the plain 

error doctrine. See State v. Masters, 8th Dist. No. 95120, 2011-Ohio-937; State v. 

Lindsey, 8th Dist. No. 96601, 2012-Ohio-804; State v. Baker, 8th Dist. No. 97139, 

2012-Ohio-1833; State v. Rogers, 8th Dist. Nos. 97093 and 97094, 2012-Ohio-2496; 

State v. Barrett, 8th Dist. No. 97614, 2012-Ohio-3948, 974 N.E.2d 185. The record 

in the present case is not such that there are insufficient facts in the record for this 

court to find whether the offenses are allied. 
referenced the bill of particulars as “an opportunity to establish a record to resolve the 

allied offense issue.” State v. Baker, 8th Dist. No. 97139, 2012-Ohio-1833, ¶ 23; State 

v. Wulff, 8th Dist. No. 94087, 2011-Ohio-700, ¶ 19, 27; see also Barrett, 8th Dist. No. 

97614, 2012-Ohio-3948, 974 N.E.2d 185, ¶ 60 (S. Gallagher, J., dissenting); State v. 

Harshman, 3d Dist. Nos. 13-12-02,13-12-03, 13-12-04, 2012-Ohio-3901, ¶ 9. 

{¶12} Clearly, these are separate and distinct crimes because they were 

committed in different locations. Although the dates of these offenses, as are all the 

charges in the indictment identical, the presentence investigation report may have 

provided us with specific dates for these crimes. Unfortunately, it was not provided in 

the record. 

{¶13} Appellant’s sole assignment of error is overruled. 

{¶14} The judgment of the trial court is affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

It is ordered that a special mandate be sent to said lower court to carry this 

judgment into execution. The defendant’s conviction having been affirmed, any bail 

pending appeal is terminated. Case remanded to the trial court for execution of 

sentence. 

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

the Rules of Appellate Procedure. 

 

 
EILEEN A. GALLAGHER, JUDGE 

JAMES J. SWEENEY, P.J., and 

COLLEEN CONWAY COONEY, J., CONCUR