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Date: 10-21-2019
Case Style:
STATE OF OHIO -vs- DANNY DeGARMO
Case Number: CT2018-0061
Judge: John W. Wise
Court: COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
Plaintiff's Attorney: D. MICHAEL HADDOX
TAYLOR P. BENNINGTON
Defendant's Attorney:
Description:
Call 888-354-4529 if you need a Criminal Defense Attorney in Ohio.
The facts and procedural history are as follows.
{¶4} On February 2, 2016, Mary R. reported that her then thirteen ( 13) year old
daughter, "J.M.C.S.", had reported that Danny DeGarmo, "Appellant," had touched her
with his penis in her private area when she was about six (6) years old and in
kindergarten; this would have been between August 15, 2008, and June 1, 2009. (Plea
T. at 11).
{¶5} J.M.C.S. stated the event occurred inside a garage next to Mary's mother's
house in Frazeysburg, Muskingum County, Ohio. Appellant is Mary R.'s brother. J.M.C.S.
stated she had not told anyone about this incident because she was afraid. (Plea T. at
12).
{¶6} J.M.C.S. was interviewed at CAC on June 21, 2016. J.M.C.S. stated that
when she was six (6) years old, Appellant was in the garage next to her grandmother's
house. J.M.C.S. went into the garage to tell Appellant she was going to a friend's house.
As she was leaving, Appellant grabbed her arm and pulled her back into the garage and
pulled her on top of him while he was sitting on a metal folding chair. The child was facing
him and she heard him unbutton and unzip his jeans. She stated that he moved the layer
of her shorts over and rubbed his penis on the skin of her vagina. She stated that his
Muskingum County, Case No. CT2018-0061 3
penis only touched the outside of her vagina. J.M.C.S. stated that it felt “nasty, gross and
weird”, and that she did not like it. (Plea T. at 12). J.M.C.S. stated that at that time her
grandmother then yelled for her, asking where she was, and that Appellant yelled back
and said the child had gone to a friend's house. Appellant then told the child that he would
hurt her if she told anyone. (Plea T. at 12-13).
{¶7} On May 17, 2018, Appellant was indicted on one count of Gross Sexual
Imposition, a felony of the third degree, in violation of R.C. §2907.05(A)(4), one count of
Gross Sexual Imposition, a felony of the third degree, in violation of R.C. §2907.05(A)(1),
and one count of Kidnapping, with a sexual motivation specification and a sexually violent
predator specification, a felony of the first degree, in violation of R.C. §2905.01(A)(4).
{¶8} On August 3, 2018, Appellant entered a plea of guilty to: Count One: Gross
Sexual Imposition, a felony of the third degree, in violation of R.C. §2907.05(A)(4), Count
Two: Gross Sexual Imposition, a felony of the third degree, in violation of R.C.
§2907.05(A)(1), and Count Three: Abduction, a felony of the third degree, in violation of
R.C. §2905.02(A)(1).
{¶9} On September 17, 2018, the trial court sentenced Appellant as follows:
Count One: a stated prison term of 60 months
Count Two: a stated prison term of 60 months
Count Three: a stated prison term of 36 months
{¶10} The periods of incarceration were ordered to be served consecutively to
each other and consecutively to a prison sentence he is currently serving on an unrelated
offense.
Muskingum County, Case No. CT2018-0061 4
{¶11} Appellant now appeals, raising the following assignments of error for review:
ASSIGNMENTS OF ERROR
{¶12} “I. DANNY DEGARMO DID NOT KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HIS DUE PROCESS RIGHTS
UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO
CONSTITUTION.
{¶13} “II. THE TRIAL COURT ERRONEOUSLY FAILED TO MERGE
DEGARMO'S GROSS SEXUAL IMPOSITION OFFENSES, IN VIOLATION OF THE
DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
{¶14} “III. THE TRIAL COURT ERRONEOUSLY FAILED TO MERGE
DEGARMO'S GROSS SEXUAL IMPOSITION OFFENSES WITH THE ABDUCTION
OFFENSE, IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH
AMENDMENT TO THE UNITED STATES CONSTITUTION
{¶15} “IV. DEGARMO RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,
IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
I.
{¶16} In his first assignment of error, Appellant argues that his guilty plea was not
made knowingly, intelligently or voluntarily.
{¶17} At the oral argument proceedings held on July 30, 2019, Appellant, through
counsel, withdrew this first assignment of error.
Muskingum County, Case No. CT2018-0061 5
{¶18} Accordingly, we need not address this assignment of error.
II.
{¶19} In his second assignment of error, Appellant argues the trial court erred in
failing to merge the two gross sexual imposition offenses with each other. We agree.
{¶20} Appellant herein pled guilty to two offenses of gross sexual imposition, in
violation of R.C. §2907.05(A)(4) and (A)(1), which provides:
{¶21} R.C. § 2907.05 Gross Sexual Imposition
(A) No person shall have sexual contact with another, not the spouse
of the offender; cause another, not the spouse of the offender, to have
sexual contact with the offender; or cause two or more other persons to
have sexual contact when any of the following applies:
(1) The offender knows that the sexual contact is offensive to the
other person, or one of the other persons, or is reckless in that regard.
(2) The offender knows that the other person's, or one of the other
person's, ability to appraise the nature of or control the offender's or
touching person's conduct is substantially impaired.
(3) The offender knows that the other person, or one of the other
persons, submits because of being unaware of the sexual contact.
(4) The other person, or one of the other persons, is thirteen years
of age or older but less than sixteen years of age, whether or not the
offender knows the age of such person, and the offender is at least eighteen
years of age and four or more years older than such other person.
Muskingum County, Case No. CT2018-0061 6
{¶22} “Sexual contact” is defined as “any touching of an erogenous zone of
another, including without limitation the thigh, genitals, buttock, pubic region, or, if the
person is a female, a breast, for the purpose of sexually arousing or gratifying either
person.” R.C. § 2907.01(B).
{¶23} Here, the trial court sentenced Appellant to sixty (60) months on each count
of Gross Sexual Imposition and ordered the sentences be served consecutively.
Appellant argues that the two charges should have merged for purposes of sentencing
because the charges were allied offenses of similar import.
{¶24} R.C. §2941.25, Ohio's allied offense statute, provides:
(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 to
each, the indictment or information may contain counts for all such offenses,
and the defendant may be convicted of all of them.
{¶25} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
Supreme Court of Ohio explained that “the same conduct can be separately punished if
that conduct constitutes offenses of dissimilar import.” Id. at ¶ 20, citing R.C. §2941.25(B).
Offenses are dissimilar in import “when the defendant's conduct constitutes offenses
Muskingum County, Case No. CT2018-0061 7
involving separate victims or if the harm that results from each offense is separate and
identifiable.” Ruff at paragraph two of the syllabus.
{¶26} Intimate sexual contacts with a victim that constitute the offense of gross
sexual imposition may be treated as separate offenses for the purposes of R.C.
§2941.25(B) in at least two instances: (1) where the evidence demonstrates either the
passage of time or intervening conduct by the defendant between each incident; and (2)
where the evidence demonstrates the defendant's touching of two different areas of the
victim's body occurred in an interrupted sequence. State v. Tate (2000), Cuyahoga App.
No. 77462.
{¶27} At the sentencing hearing, the State explained the two charges as follows:
Prosecutor: … and Mr. DeGarmo, in a garage, grabbed her and
pulled her back, holding her onto his person and then utilizing his penis to
touch the outside of her vagina. So the causing of her to touch his penis is
one gross sexual imposition charge; the touching of her vagina is a second
gross sexual imposition charge.
They – the two charges, the two acts, occurred at the same time, but
they do encapsulate two different means by which gross sexual imposition
is committed. (Sent. T. at 3-4).
{¶28} Similarly, defense counsel, argued:
Counsel: So finally, the only question is, should those sentences run
concurrent or consecutive to each other. And I would ask the Court to
consider that. This was one incident. I know it was one incident that was
charged several ways. But it was one contact, one time with one victim.
Muskingum County, Case No. CT2018-0061 8
There was not separate criminal animus that he was both going to touch
her with is penis and also separately touch her vagina. It was one act.
I think that screams that the counts in this case should run concurrent
to each other. (Sent. T. at 7-8).
{¶29} Although Appellant’s counsel did argue for concurrent sentences for the
two counts of gross sexual imposition, he did not raise the issue of allied offenses.
{¶30} In State v. Rogers, 143 Ohio St.3d 385, the Ohio Supreme Court held that
where a defendant fails to seek the merger of his convictions as allied offenses of similar
import in the trial court, he forfeits any allied offenses claim, except to the extent it
constitutes plain error. Rogers at ¶ 21–25, citing State v. Quarterman, 140 Ohio St.3d
464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15–16. “Crim.R. 52(B) affords appellate courts
discretion to correct ‘[p]lain errors or defects affecting substantial rights' notwithstanding
the accused's failure to meet his obligation to bring those errors to the attention of the trial
court.” Rogers at ¶ 22. The defendant “bears the burden of proof to demonstrate plain
error on the record.” Id., citing Quarterman at ¶ 16. To demonstrate plain error, the
defendant must show “ ‘an error, i.e., a deviation from a legal rule’ that constitutes ‘an
“obvious” defect in the trial proceedings' ” and that the error affected a substantial right,
i.e., the defendant must demonstrate a “reasonable probability” that the error resulted in
prejudice, affecting the outcome of the trial. Rogers at ¶ 22, quoting State v. Barnes, 94
Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). “We recognize plain error ‘with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.’ ” Lyndhurst v. Smith, 8th Dist. Cuyahoga No. 101019, 2015-Ohio-2512, 2015 WL
3899130, ¶ 32, quoting State v. Landrum, 53 Ohio St.3d 107, 110, 559 N.E.2d 710 (1990).
Muskingum County, Case No. CT2018-0061 9
{¶31} Upon review of the indictment and the statements made by the prosecutor
at the sentencing hearing, and applying Ruff, supra, we find that the two counts of gross
sexual imposition should have merged for purposes of sentencing. The two counts were
of similar import, they were committed at the same time and were not committed with a
separate animus or motivation.
{¶32} Here, the trial court imposed a sixty (60) month sentence on each of the
gross sexual imposition counts and thirty-six (36) months on the abduction count. The
sentences for all counts were ordered to be served consecutively. The order of
consecutive service means that recognition of plain error would affect the length of
Appellant's sentence. We therefore find a manifest miscarriage of justice would occur if
the counts were not merged.
{¶33} Based on the above, we find Appellant’s second assignment of error well
taken. Appellant’s second assignment of error is sustained.
III.
{¶34} In his third assignment of error, Appellant argues the trial court erred in
failing to merge the gross sexual imposition offenses with the abduction charge. We
disagree.
{¶35} In addition to the two counts of gross sexual imposition, Appellant also plead
guilty to one count of Abduction, in violation of R.C. §2905.02……, which provides:
{¶36} R.C. §2905.02 Abduction
(A) No person, without privilege to do so, shall knowingly do any of
the following:
Muskingum County, Case No. CT2018-0061 10
(1) By force or threat, remove another from the place where the other
person is found;
{¶37} Again, we note that the record reflects that Appellant has forfeited all but
plain error with regard to the allied offenses argument. See State v. Rogers, 143 Ohio
St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3, 21 (a defendant who fails to raise an
allied offense issue in the trial court forfeits all but plain error); State v. Clarke, 8th Dist.
Cuyahoga No. 105047, 2017-Ohio-8226, 2017 WL 4711959, ¶ 26–27. “A forfeited error
is not reversible error unless it affected the outcome of the proceedings and reversal is
necessary to correct a manifest miscarriage of justice.” State v. Amison, 8th Dist.
Cuyahoga No. 104728, 2017-Ohio-2856, 2017 WL 2241655, ¶ 4. If a defendant fails to
raise the issue of allied offenses at the trial court level, “the burden is solely on that
defendant, not on the state or the trial court, to ‘demonstrate a reasonable probability that
the convictions are for allied offenses of similar import committed with the same conduct
and without a separate animus.’ ” State v. Locke, 8th Dist. Cuyahoga No. 102371, 2015
Ohio-3349, 2015 WL 4997202, ¶ 20, quoting Rogers at ¶ 3.
{¶38} In the instant matter, we cannot say that the trial court committed plain error
in failing to merge the gross sexual imposition and abduction counts for sentencing
purposes because the offenses caused separate, identifiable harm. The abduction
offense occurred separately from the gross sexual imposition when the victim was
forcefully pulled into the garage and was not allowed to leave. This emotional and physical
harm is dissimilar to that experienced by the victim when he touched her vagina with his
penis.
Muskingum County, Case No. CT2018-0061 11
{¶39} Based on the foregoing analysis, we find that the trial court did not err when
it did not merge the gross sexual imposition and abduction counts and imposed
consecutive sentences for the two offenses of dissimilar import. Accordingly, Appellant's
third assignment of error is overruled.
IV.
{¶40} In his fourth assignment of error, Appellant claims that he was denied the
effective assistance of counsel. We disagree.
{¶41} Specifically, Appellant argues that his counsel was ineffective for failing to
move the trial court to merge the gross sexual imposition offense with each other and with
the abduction offense. Appellant also argues that counsel should have requested the trial
court waive court costs.
{¶42} The Sixth Amendment to the United States Constitution guarantees a
criminal defendant the effective assistance of counsel. Courts employ a two-step process
to determine whether the right to effective assistance of counsel has been violated.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
First, the defendant must show that counsel's performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the defense. This requires showing
that counsel's errors were as serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Id.
Muskingum County, Case No. CT2018-0061 12
{¶43} In this matter, we have determined that the two Gross Sexual Imposition
convictions must be merged and that the gross sexual imposition offenses and abduction
offense are not allied offenses, so this aspect of the assigned error is moot.
{¶44} With regard to Appellant’s argument that his trial counsel failed to request
that the trial court waive court costs, this Court rejected such an argument in State v.
Davis, 5th Dist. Licking No. 17-CA-55, 2017-Ohio-9445. We have continued to follow our
Davis holding in this regard, most recently in State v. Ross, 5th Dist. Muskingum No.
CT2018-0047, 2019-Ohio-2472, ¶ 60. The present issue remains pending before the Ohio
Supreme Court on a certified conflict between Davis, supra, and State v. Springer, 8th
Dist. Cuyahoga No. 104649, 2017-Ohio-8861.
{¶45} In State v. Ramsey, 5th Dist. Licking No. 17-CA-76, 2018-Ohio-2365, we
held that unless an Ohio Supreme Court decision is rendered on this issue to the contrary
in the future, we would continue to abide by our decision in Davis. Ramsey at ¶ 46.
{¶46} Accordingly, we herein hold Appellant was not deprived of the effective
assistance of trial counsel in violation of his rights under the Sixth and Fourteenth
Amendments to the United States Constitution and Article I, § 10 of the Ohio Constitution.
{¶47} Accordingly, this assigned error is without merit
{¶48} Appellant’s fourth assignment of error is overruled.
Outcome: Accordingly, the judgment of the Muskingum County Court of Common
Pleas, Muskingum, Ohio, is affirmed in part and reversed in part. The sentences imposed
for the two gross sexual imposition counts are reversed, and the matter is remanded for
resentencing on whichever of those two counts survives the state's election.
Plaintiff's Experts:
Defendant's Experts:
Comments: