State v. Ruff, No. 2013–1441.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: LANZINGER, J.
• Citation: 34 N.E.3d 892,2015 Ohio 995,143 Ohio St.3d 114
• Decision Date: 25 March 2015
• Docket Number: No. 2013–1441.
• Parties: The STATE of Ohio, Appellant, v. RUFF, Appellee.

143 Ohio St.3d 114
34 N.E.3d 892
2015 Ohio 995

The STATE of Ohio, Appellant,
v.
RUFF, Appellee.

No. 2013–1441.

Supreme Court of Ohio.

Submitted Aug. 19, 2014.
Decided March 25, 2015.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman Currant, Assistant Prosecuting Attorney, for appellant.

The Farrish Law Firm and Michaela M. Stagnaro, Cincinnati, for appellee.

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Daniel T. Van and Joseph J. Ricotta, Assistant Prosecuting Attorneys, urging reversal for amicus curiae Cuyahoga County Prosecutor's Office.

Timothy Young, Ohio Public Defender, and Katherine R. Ross–Kinzie, Assistant State Public Defender, urging affirmance for amicus curiae Office of the Ohio Public Defender.

LANZINGER, J.

143 Ohio St.3d 115

{¶ 1} In this case, we are asked to revisit the holding in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, with respect to when two or more offenses are allied offenses of similar import. Because the circumstances of when offenses are of dissimilar import within the meaning of R.C. 2941.25(B) have been unclear, we hold that offenses with resulting harm that is separate and identifiable are offenses of dissimilar import. We therefore reverse the judgment of the court of appeals.

Case Background

{¶ 2} A jury convicted appellee, Kenneth Ruff, of the rape of three women, along with three associated aggravated burglaries, the attempted rape of a fourth woman, and the sexual battery of a minor. For purposes of this opinion, we are concerned only with the rape and aggravated-burglary convictions.

34 N.E.3d 894

{¶ 3} At trial, K.B. testified that in January 2009, she was living in a group home so that her meals and medication could be monitored. She stated that on the night of the attack, she went to bed at 10:00 p.m. and took her medicine to help her sleep. The next thing she remembered was waking up in the middle of the night with a man raping her. K.B. testified that she started to cry and scream but the man told her, "Shut up or I will kill you." The man, whom she had never seen before, then left. At trial, she identified Ruff as the person who raped her. After the rape, K.B. stayed in the group home for a couple of months and then moved into her own apartment. DNA analysis of semen found in the panties collected from K.B.'s bedroom matched Ruff's DNA.

{¶ 4} S.W. testified at trial that she was living in a basement apartment on the afternoon of May 27, 2009, when a man came over and asked for her ex-husband. She told the man that she was no longer with her ex-husband, and the man left. Later that night, a noise awakened her, and she saw somebody coming toward her. When she realized it was not her boyfriend, she told the person to leave and yelled for help. The man then raped her. During the rape, S.W. grabbed her phone, but the assailant jerked it out of her hands, placed his thumb on her

143 Ohio St.3d 116

throat, and pushed down, saying, "If you don't stop fighting me, I'm gonna hurt you." Later, S.W. realized that the man who raped her was the same one who had come by earlier that day looking for her ex-husband. S.W. said that after that night, she made sure all windows were locked and she slept with all the lights on and with a baseball bat and a pipe in her bed. S.W. identified Ruff as the man who raped her. DNA analysis of semen found on her body matched Ruff's DNA.

{¶ 5} During opening statements, the state represented that the third woman, P.F., had died before trial. Details of the events of September 9, 2009, were testified to by a sexual-assault nurse examiner from the medical history that P.F. gave her during her examination. The examiner testified that she writes down word for word what a victim says. According to the statement, P.F. was sitting on her couch when a black man entered her apartment and demanded money. When she said that she did not have any, he pushed her down on the couch and raped her. When P.F. yelled for help, the man put his arm across her neck and said, "I killed once already, and I won't hesitate to do it again." He also hit her on the head with his cell phone and choked her several times. The examiner stated that P.F. had an abrasion and swelling on the right side of her forehead and that there were petechiae in front of her right ear lobe, on the right side of her neck, and on her chest, which was consistent with having been choked. DNA analysis of the semen found on P.F.'s panties matched Ruff's DNA.

{¶ 6} At sentencing, Ruff requested that the three aggravated-burglary counts be merged into the corresponding rape counts. The trial court denied the motion and imposed an eight-year prison term for each of the three aggravated-burglary counts and ordered that they be served concurrently with each other and the other sentences imposed. For the three rapes, the trial court imposed a ten-year prison term for each count and ordered them to be served consecutively to each other and to the five-year, consecutive prison terms for attempted rape and sexual battery, for a total of 40 years.

{¶ 7} Ruff appealed to the First District Court of Appeals. He raised a number of issues regarding his convictions and alleged that the court improperly imposed

34 N.E.3d 895

consecutive sentences, abused its discretion in imposing a 40–year sentence, and failed to merge allied offenses.

{¶ 8} The First District Court of Appeals affirmed the trial court on the nonsentencing issues, but agreed with Ruff that because the conduct relied upon to establish the rapes was the same conduct used to establish the physical-harm element of the aggravated burglaries, the offenses were allied and subject to merger. The court of appeals determined that Ruff's challenges to the imposition of consecutive sentences and the aggregate term of the sentences were moot. The sentences for the aggravated-burglary and rape counts relating to P.F., K.B.,

143 Ohio St.3d 117

and S.W. were vacated, and the cases were remanded for the state to elect which allied offense would be pursued for sentencing.

{¶ 9} The state appealed to this court, and we accepted jurisdiction on this sole proposition of law: "The import of rape and aggravated burglary are inherently different." 137 Ohio St.3d 1440, 2013-Ohio-5678, 999 N.E.2d 695. In other words, we were asked to determine what "import" means within the meaning of R.C. 2941.25.

Analysis

Protection Against Double Jeopardy

{¶ 10} 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." This protection applies to Ohio 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), and is additionally guaranteed by the Ohio Constitution, Article I, Section 10. The Double Jeopardy Clause protects against three abuses: (1) "a second prosecution for the same offense after acquittal," (2) "a second prosecution for the same offense after conviction," and (3) "multiple punishments for the same offense." 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). It is the third protection—multiple punishments for same offense—that is before us now.

{¶ 11} In interpreting the federal rule against imposing multiple punishments for the same offense, the United States Supreme Court has said:

The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the "same offense," they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent .

(Emphasis added.) Whalen v. United States, 445 U.S. 684, 691–692, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Therefore, we look to the Ohio statute, R.C. 2941.25, on this point.

The Statute, R.C. 2941.25

{¶ 12} The General Assembly in codifying double-jeopardy protections has expressed its intent as to when multiple punishments can be imposed:

143 Ohio St.3d 118

(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

34 N.E.3d 896

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

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