State v. Barnes

427 N.E.2d 517, 68 Ohio St. 2d 13, 22 Ohio Op. 3d 126, 1981 Ohio LEXIS 610

• Court: Ohio Supreme Court
• Decided: October 28, 1981
• Docket: Nos. 81-1, 81-2, and 81-3
• Status: Published

Opinions

Per Curiam.

The sole, question for review is whether under R. C. 2941.25(B)², entry into two bodily orifices constitutes two separate rape offenses of the same or similar kind for both of which a defendant may be convicted.

In Ohio, either vaginal intercourse or fellatio constitutes separate sexual conduct, each punishable as rape under R. C. 2907.01(A). See footnote 1.

With reference to the application of division (B) of R. C. 2941.25, the Court of Appeals determined that the sexual conduct of each defendant did not constitute “two* * * offenses of the same kind committed separately or with a separate animus as to each***.” We disagree.

In this cause, each defendant by engaging in fellatio followed immediately by vaginal intercourse committed “two * * * offenses of* * * similar kind * * * separately * * * [and] with a separate animus as to each***” within the meaning of division (B) of R. C. 2941.25. The trial court properly convicted each defendant for both crimes of rape.

We are mindful that this court in many recent cases, in varying situations, has made a thorough and extensive analysis of the multiple counts statute, R. C. 2941.25. Another exhaustive exploration, distinguishing or considering the applicability of earlier precedents of this court, would not be judicially fruitful. The last apt, well-reasoned and exhaustive examination of this statute by this court is contained in the opinion of Rutherford, J., in State v. Baer (1981), 67 Ohio St. 2d 220. Our decision today is compatible with State v. Baer, supra. We are consistent with the rationale and holdings of those cases where the defendant was convicted and sentenced separately for two offenses, such as State v. Ware (1980), 63 Ohio St. 2d 84; State v. Frazier (1979), 58 Ohio St. 2d 253; and State v. Thomas (1980), 61 Ohio St. 2d 254, and with those cases where defendant could not be convicted and sentenced separately for two offenses, such as State v. Roberts (1980), 62 Ohio St. 2d 170; State v. Price (1979), 60 Ohio St. 2d 136; State v. Logan (1979), 60 Ohio St. 2d 126; State v. Donald (1979), 57 Ohio St. 2d 73; and Maumee v. Geiger (1976), 45 Ohio St. 2d 238.

Accordingly, that part of the judgment of the Court of Appeals which requires the trial court to elect one of two convictions of rape upon which to enter judgment is reversed.

Judgment accordingly.

W. Brown, Sweeney, Locher, Holmes, C. Brown and Krupansky, JJ., concur.

²

R. C. 2941.25(B) provides:

“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 land 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.”