[Cite as State v. Bailey, 2021-Ohio-3664.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200386 TRIAL NO. B-1906395 Plaintiff-Appellee, :
: O P I N I O N. VS. :
TYTUS BAILEY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: October 13, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Rubenstein & Thurman, LPA, Scott A. Rubenstein, The Law Office of John D. Hill, LLC, and John D. Hill, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} A jury convicted defendant-appellant Tytus Bailey of abduction,
robbery, kidnapping, and two counts of rape stemming from a sexual assault at a
downtown parking garage. The trial court sentenced him to 33 years for the rape and
kidnapping counts and 8 years for the robbery count, to be served consecutively. On
appeal, Mr. Bailey challenges the effectiveness of his trial counsel along with the
imposition of maximum, consecutive sentences as unsupported by the record. We
disagree and affirm the trial court’s judgment as it pertains to his first three
assignments of error. Mr. Bailey also maintains that the rape and kidnapping
convictions should have merged as allied offenses for sentencing purposes. In light
of the case law and the record, we agree and sustain his fourth assignment of error.
I.
{¶2} On the night in question, Mr. Bailey approached the victim sitting with
two homeless men on a concrete bench near the corner of Second and Walnut
streets. Mr. Bailey assaulted the two men, knocking them out in the process, and
threatened to deal a similar fate to the victim unless she performed oral sex on him.
He led her away from the homeless encampment where she was living to the Olympic
Auto Park garage at the corner of Third and Vine streets (about a block away). Once
there, Mr. Bailey forced her to perform oral sex on him. Following that assault, Mr.
Bailey raped her, struck her in the face repeatedly, and threatened to kill her if she
left the garage or infected him with a sexually transmitted disease. Security cameras
captured the two of them entering the garage together just before midnight and
leaving separately around 20 minutes later.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} The next morning, the victim sought out the security guard for the
Olympic Auto Park, reporting her sexual assault. The security guard contacted the
Cincinnati police, who located Mr. Bailey the same day. Mr. Bailey submitted a DNA
sample but initially denied having encountered the victim at any point during the
previous night. That statement proved false when his DNA sample matched semen
collected during a sexual assault exam. Police later arrested Mr. Bailey in the course
of a suspected shoplifting and charged him with robbery, kidnapping, abduction, and
two counts of rape. After being convicted by a jury, the trial court merged the
abduction offense with the kidnapping for sentencing purposes and imposed
maximum consecutive sentences on the other four counts.
{¶4} On appeal, Mr. Bailey presents four assignments of error, asserting: (1)
his trial counsel’s ineffectiveness, (2) error in imposing consecutive sentences, (3) a
lack of record support for imposing maximum sentences on each count, and (4) error
in failing to merge the kidnapping and rape convictions during sentencing. For ease
of discussion, we address the last assignment of error first.
II.
{¶5} The Double Jeopardy Clauses of both the United States and Ohio
Constitutions protect individuals from being punished twice for the same offense.
State v. Merz, 1st Dist. Hamilton No. C-200152, 2021-Ohio-2093, ¶ 6, citing the Fifth
Amendment to the United States Constitution (“No person shall * * * be subject for
the same offence to be twice put in jeopardy of life or limb * * *.”) and the Ohio
Constitution, Article I, Section 10 (“No person shall be twice put in jeopardy for the
same offense.”). To avoid subjecting Mr. Bailey to multiple penalties for the same
offense under different statutes, we assume statutory provisions outlawing the same
3 OHIO FIRST DISTRICT COURT OF APPEALS
offense do not authorize cumulative punishments unless the General Assembly
dictates otherwise. See State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d
892, ¶ 11 (“ ‘[W]here 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 sic.), quoting Whalen v.
United States, 445 U.S. 684, 691–692, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). The
General Assembly codified this double jeopardy protection in R.C. 2941.25, obliging
trial courts “to merge allied offenses when they are of similar import, were
committed together, and were motivated by the same animus.” Merz at ¶ 6. Thus,
we must affirm the trial court’s decision not to merge Mr. Bailey’s rape and
kidnapping offenses if any of the following is true: “(1) the offenses are dissimilar in
import or significance—in other words, each offense caused separate, identifiable
harm, (2) the offenses were committed separately, or (3) the offenses were
committed with separate animus or motivation.” Ruff at ¶ 25. We may end our
analysis “upon finding that any one of the three applies.” State v. Lee, 1st Dist.
Hamilton No. C-190149, 2020-Ohio-944, ¶ 6.
{¶6} Before considering the Ruff approach to merger in general, we note
that earlier case law is “still relevant to determining whether rape and kidnapping
convictions merge” under the third Ruff prong addressing animus. State v. Grate,
164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 108. In State v. Logan, the
Supreme Court established guidelines for evaluating whether kidnapping and rape
are committed with a separate animus. State v. Logan, 60 Ohio St.2d 126, 134-135,
397 N.E.2d 1345 (1979). If the restraint or movement of the victim is merely
incidental to the underlying rape, then no separate animus exists; however, if
4 OHIO FIRST DISTRICT COURT OF APPEALS
prolonged restraint, secretive confinement, or substantial movement occurs, then a
separate animus exists to support separate convictions. Id. at the syllabus; see Merz
at ¶ 11 (“In simplistic terms, the Logan guidelines examine the significance of the
restraint or movement of the victim: whether it was ‘merely incidental’ to the other
crime or whether it was substantial enough (either in execution or in increased risk)
that it attains independent significance.”). As used in the merger statute, “animus”
means “purpose” or “immediate motive” and “must be inferred from the surrounding
circumstances.” Logan at 131.
{¶7} In his fourth assignment of error, Mr. Bailey insists that the trial court
should have merged the kidnapping and rape charges as allied offenses because the
state relied on the rape offense to prove an essential element of the kidnapping
offense. Mr. Bailey failed to preserve this issue for appeal at the trial level, so we
review it for plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 3 (“An accused’s failure to raise the issue of allied offenses of similar
import in the trial court forfeits all but plain error * * *.”). “For this court to reverse
on plain error, we must find that (1) there was an error, (2) the error was plain, i.e.,
an obvious defect in the trial court proceedings, and (3) the error affected substantial
rights, i.e., it affected the outcome * * * .” State v. Burgett, 2019-Ohio-5348, 139
N.E.3d 940, ¶ 30 (1st Dist.). A trial court’s failure to merge allied offenses
“necessarily affects a substantial right” that constitutes plain error. Merz at ¶ 7
(“Because the requirement to merge allied offenses is ‘mandatory, not discretionary,’
see State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 26,
failure to do so necessarily affects a substantial right.”). Mr. Bailey bears the burden
of showing “a reasonable probability that the convictions are for allied offenses of
5 OHIO FIRST DISTRICT COURT OF APPEALS
similar import committed with the same conduct and without a separate animus[.]”
Rogers at ¶ 3.
{¶8} Applying the Ruff and Logan framework to Mr. Bailey’s appeal, we
first explore whether the allied offenses here are of dissimilar import—and more
specifically, whether offenses are of dissimilar import when the harm caused by one
serves as an element of the other. Offenses are of dissimilar import when (1) the
offenses involve separate victims, or (2) the harm from each offense is separate and
identifiable. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892 at ¶ 26 (“We
therefore hold that 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.”). In this case we have only one victim, so we need only consider
whether the harm from the rape is separate and identifiable from the harm
constituting the element of kidnapping. In this respect, Mr. Bailey highlights the
state’s reliance on the rape itself as an essential element of the kidnapping offense.
{¶9} The state convicted Mr. Bailey under R.C. 2905.01(A)(2), which reads:
“No person, by force, threat, or deception * * * shall remove another from the place
where the other person is found or restrain the liberty of the other person * * * [t]o
facilitate the commission of any felony or flight thereafter * * * .” The last element—
the commission of a felony—was established by Mr. Bailey’s rape of the victim. Put
differently, but for committing the rape, Mr. Bailey could not have been convicted of
the kidnapping under this subsection (nor does the state now contend to the
contrary). And where, as here, an element of the kidnapping offense exists solely due
to the felony rape of the victim, the harms are not of dissimilar import or separate
6 OHIO FIRST DISTRICT COURT OF APPEALS
and identifiable. State v. Ruff, 1st Dist. Hamilton No. C-120533, 2015-Ohio-3367,
¶ 18 (“[W]here the conduct that constitutes one offense causes a harm that is not
separate and identifiable from the harm caused by the aggravating element of
another offense, then the offenses are of a similar import.”).
{¶10} Having answered the first Ruff question in the negative, we turn to the
second and third: whether the offenses were committed separately or with a separate
animus. Neither side makes an argument that the offenses proceeded separately.
Mr. Bailey indicated from the outset that he intended to sexually assault the victim,
and the kidnapping occurred as part of that assault. As a result, we are left to
consider whether a separate animus or motivation existed between the rape and the
kidnapping. In other words, was the kidnapping incidental to the rape or was it
substantial enough to attain independent significance? No bright-line answer
governs this question in all circumstances. The Supreme Court has acknowledged
that “implicit within every forcible rape * * * is a kidnapping.” Logan, 60 Ohio St.2d
at 130, 397 N.E.2d 1345. The merger statute directs us to take into account the
defendant’s conduct when deciding whether to merge allied offenses, which yields an
often fact-driven inquiry. Ruff at ¶ 26 (“At its heart, the allied-offense analysis is
dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant’s
conduct.”); see State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, ¶ 52 (“[T]his analysis * * * may result in varying results for the same set of
offenses in different cases. But different results are permissible, given that the statute
instructs courts to examine a defendant's conduct—an inherently subjective
determination.”).
7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Turning to Mr. Bailey’s conduct, the state contends that he committed
the kidnapping with a deliberate purpose and separate animus from the rape. Mr.
Bailey counters by arguing that his asportation of the victim to the parking garage
only rose to the level of kidnapping by virtue of committing the rapes, (i.e., it was
“merely incidental”), and no separate animus existed. On these facts, which closely
parallel those of the Logan case itself, we agree with Mr. Bailey. In Logan, the
defendant forced the victim to walk down the alley, around a corner, and down a
flight of stairs, where he raped and then immediately released her. Logan at 127.
The court decided the conduct in Logan represented a single animus with no
significance apart from facilitating the rape, and that the movement did not present a
substantial increase in the risk of harm separate from that involved in the rape. Id.
at 135-136. In circumstances where “[t]he detention was brief, the movement was
slight, and the victim was released immediately following the commission of the
rape[,]” the court held no separate animus to commit kidnapping existed. Id. at 135.
{¶12} Likewise, Mr. Bailey’s behavior confirms that his movement was
merely incidental to the rape. Mr. Bailey told the victim he wanted to use her for
sexual gratification, and he moved her to expedite that assault. Logan at 132
(“[W]here an individual’s immediate motive is to engage in sexual intercourse * * *
the perpetrator may be convicted of either rape or kidnapping, but not both.”).
Based on the victim’s testimony, after Mr. Bailey attacked her friends, he then
walked her to a garage “not too far across the street.” While the exact distance is not
known, it was roughly a city block and likely comparable to the movement in Logan.
Once there, Mr. Bailey assaulted her “just into the entrance [of the parking garage]
and to the left.” In urging us to characterize this action as a secret confinement
8 OHIO FIRST DISTRICT COURT OF APPEALS
constituting separate animus, the state relies mainly on cases in which the defendant
moved the victim from a public place into a private building. See, e.g., State v.
Martin, 1st Dist. Hamilton No. C-150054, 2016-Ohio-802, ¶ 29-32 (holding that rape
and kidnapping were not allied offenses of similar import requiring merger where
defendant removed the child-victim from a public place and took her to a closed
apartment). That is a markedly different factual situation from taking the victim just
inside the entrance of an open-air, public parking garage in downtown Cincinnati,
even at night, with enough security cameras to help police locate Mr. Bailey the
following day. Indeed, this setting seems arguably less secluded than the remote
stairwell in the alley in Logan. And although Mr. Bailey threatened the victim here
not to leave the parking garage, he took no action to keep her confined there after the
assault. In other words, he did not trap her in a room or other confined space.
{¶13} Because the kidnapping was an allied offense of similar import and
was not committed separately or with a separate animus, the trial court erred in not
merging the convictions for sentencing purposes. Accordingly, we sustain Mr.
Bailey’s fourth assignment of error.
III.
{¶14} Returning to his first assignment of error, Mr. Bailey claims a denial of
his constitutionally-protected right to effective counsel both during trial and
sentencing. As to the sentencing phase, Mr. Bailey points to counsel’s failure to
address whether the kidnapping and rape charges should have merged at sentencing.
Our discussion above sustaining his fourth assignment of error renders that issue
moot. To prevail on his claim of ineffective assistance of counsel during trial, Mr.
Bailey must show that “counsel’s performance was deficient and that counsel’s
9 OHIO FIRST DISTRICT COURT OF APPEALS
deficient performance prejudiced the defense so as to deprive the defendant of a fair
trial.” State v. Worley, Slip Opinion No. 2021-Ohio-2207, ¶ 95, citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We will
generally presume that an attorney is competent, and the defendant bears the
burden to show ineffective assistance of counsel. State v. Walker, 1st Dist. Hamilton
No. C-190193, 2020-Ohio-1581, ¶ 64. “Conclusory statements that the outcome
would have been different, without more, are not enough to carry [Mr. Bailey’s]
burden on the issue of prejudice.” State v. Williams, 1st Dist. Hamilton No. C-
180588, 2020-Ohio-1368, ¶ 22, citing State v. Montgomery, 148 Ohio St.3d 347,
2016-Ohio-5487, 71 N.E. 3d 180, ¶ 95 (“[Defendant]’s argument is conclusory, and
he has not even attempted to show prejudice under Strickland.”).
{¶15} Regarding trial deficiencies, Mr. Bailey first complains that his counsel
allowed the case to be heard by a jury. But he then concedes—and the trial transcript
confirms—that it was his decision to exercise his constitutional right to a jury. In any
case, Mr. Bailey acknowledges that he is not raising this issue for consideration by
our court, but rather he intends to pursue it in a postconviction petition. Without
any legal or factual substantiation of this charge, we have no occasion to ponder it
further.
{¶16} Next, Mr. Bailey asserts that poor advice from trial counsel prevented
him from testifying in his own defense. This strategy decision allegedly prejudiced
him because only he could explain what happened on the night in question and why
he spun a series of lies as the walls closed in on him. According to Mr. Bailey, he and
the victim engaged in a consensual sex-for-drugs transaction. Through cross-
examination, Mr. Bailey’s counsel explored that theory by insinuating that the victim
10 OHIO FIRST DISTRICT COURT OF APPEALS
prostituted herself in exchange for drugs. Relying on cross-examination to
undermine witness testimony represents a legitimate trial strategy and does not
necessarily constitute ineffective assistance of counsel. State v. Hunter, 131 Ohio
St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 66. Even if it did, Mr. Bailey never
explains “what the alternative strategy would have entailed or how that strategy
would have impacted the outcome of his case.” See Williams, 1st Dist. Hamilton No.
C-180588, 2020-Ohio-1368, at ¶ 22, citing State v. Sanford, 8th Dist. Cuyahoga No.
84478, 2005-Ohio-1009, ¶ 15 (finding no prejudice when defendant failed to
demonstrate “how the outcome of the trial would have been different had counsel
employed another strategy[.]”). The jury heard Mr. Bailey’s narrative and chose not
to believe him. Mr. Bailey’s speculation that changing the messenger would have
altered the outcome falls short on this record. Advising Mr. Bailey not to testify was
not objectively unreasonable nor did it prejudice the outcome of his case based on
the record at hand. Accordingly, we overrule this assignment of error.
{¶17} In his second assignment of error, Mr. Bailey faults the statutory
findings made by the trial court before imposing consecutive sentences as not
supported by clear and convincing evidence. Specifically, he challenges the trial
court’s findings pursuant to R.C. 2929.14(C)(4)(b) and (c)—that the harm he
committed was so great no single prison term would adequately reflect the
seriousness of his conduct, and that his history of criminal conduct demonstrated a
need to protect the public from commission of future offenses. Regarding harm, Mr.
Bailey again argues the kidnapping and rape were allied offenses and the sentences
for those offenses should have been imposed concurrently, if not merged, because
they were part of a singular course of conduct. We addressed this in paragraphs 5-13
11 OHIO FIRST DISTRICT COURT OF APPEALS
above and our granting relief on his fourth assignment of error essentially moots this
point. As to criminal history, Mr. Bailey excuses his record as youthful dalliances not
warranting consecutive sentences. The trial court found otherwise, pointing to Mr.
Bailey’s lack of remorse, the court’s belief that he would victimize people again based
on his prior criminal history, and the fact that Mr. Bailey brutalized defenseless
homeless people. And “[a]s long as we can discern that the trial court engaged in the
correct analysis and the record contains evidence to support the findings,
consecutive sentences will be upheld.” State v. Marshall, 1st Dist. Hamilton Nos. C-
190748 and C-190758, 2021-Ohio-816, ¶ 49. Because the trial court’s findings are
supported by the record, we overrule this assignment of error.
{¶18} Finally, Mr. Bailey challenges his maximum sentences as unsupported
by the record and violative of the Eighth Amendment’s prohibition against cruel and
unusual punishment. Trial courts have discretion to impose prison sentences within
the statutory range for the crime committed and any sentence imposed under a valid
statue generally does not trigger cruel and unusual concerns. State v. Dieterle, 1st
Dist. Hamilton No. C-070796, 2009-Ohio-1888, ¶ 42-43. The Eighth Amendment
only prohibits sentences that are “grossly disproportionate” to the crime, meaning
the penalty in relation to the circumstances of the offense “would be considered
shocking to any reasonable person” or the penalty “shock[s] the sense of justice of
the community.” State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888
N.E.2d 1073, ¶ 13-14. That is not the situation here and the individual sentences fall
within their respective statutory ranges. To the extent Mr. Bailey believes the
consecutive nature of the sentences transforms them into cruel and unusual
punishment, Supreme Court precedent forecloses that path. See id. at ¶ 20 (“Where
12 OHIO FIRST DISTRICT COURT OF APPEALS
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.”).
{¶19} Mr. Bailey’s final position—that the maximum sentences are
unsupported by the record—is similarly misguided. He asserts that R.C. 2929.12(B)
implicitly directs the trial court to conduct a “worst-form of the offense” analysis
before imposing maximum sentences. But the statute does not prescribe that—
rather, it instructs courts to consider numerous factors “as indicating that the
offender’s conduct is more serious than conduct normally constituting the offense[.]”
R.C. 2929.12(B). We see no obligation on the part of the trial court to find Mr.
Bailey’s conduct amounted to the worst type (however defined) of robbery, rape, or
kidnapping before imposing the maximum sentence on each charge. Regardless, we
can only modify a sentence if it is contrary to law or the record does not support the
trial court’s finding under certain enumerated statutes. See R.C. 2953.08(G)(2).
Notably, R.C. 2929.12 is not one of statutes listed, and R.C. 2953.08(G)(2) provides
no “basis for an appellate court to modify or vacate a sentence based on its view that
the sentence is not supported by the record[.]” State v. Jones, 163 Ohio St.3d 242,
2020-Ohio-6729, 169 N.E.3d 649, ¶ 39, 31 (“* * * R.C. 2953.08(G)(2)(a) clearly does
not provide a basis for an appellate court to modify or vacate a sentence if it
concludes that the record does not support the sentence under R.C. 2929.11 and
2929.12, because * * * [they] are not among the statutes listed in the provision.”).
Considering that the sentences comported with the applicable legal standards, and
13 OHIO FIRST DISTRICT COURT OF APPEALS
we lack authority to modify or vacate the sentences as unsupported by the record, we
overrule Mr. Bailey’s third assignment of error.
* * *
{¶20} In light of the foregoing analysis, we overrule Mr. Bailey’s first three
assignments of error. We sustain his fourth assignment of error and remand the
cause for a new sentencing hearing so the state may choose which allied offense to
pursue.
Judgment affirmed in part, reversed in part, and cause remanded.
WINKLER and BOCK, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion