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11th District remands Portage County child rape case
TRACEY BLAIR
Legal News Reporter
Published: July 29, 2019
A Portage County trial court erred by imposing separate, consecutive sentences in a child rape case, the 11th District Court of Appeals recently ruled.
After a jury trial, Ross M. Fair was convicted on all counts - two counts each of rape, sexual battery and gross sexual imposition, and one count of importuning. He was sentenced to prison with eligibility for parole after 38 years.
He was found guilty of sexually abusing a 5 or 6-year-old minor, C.M., at his Kent apartment from May 2013 through May 2016 while babysitting. The child testified that Fair would ask to “borrow” him, take him into his room and ask him to put his mouth on his penis.
C.M. said he threw up on Fair’s underwear after the first incident. Another time, he tried to run away after Fair allegedly pulled him into his bedroom closet and kissed him on the check.
After those incidents, Fair would ask C.M. to do fellatio “most days” he was babysat – sometimes with Fair’s 4-year-old son, E.F. in the room. C.M. testified that Fair told him if he didn’t tell, then he wouldn’t tell, but that he was never physically threatened.
Fair denied the sexual abuse allegations on the witness stand, claiming C.M. made them up because he did not like how he punished him with spankings or time outs.
C.M. testified his mother stopped taking him to Fair’s house after she told him about the abuse, but she told him not to tell anyone else or he would be taken away from her. He kept the abuse to himself, but was removed from his mother’s custody on Sept. 2, 2016 for undisclosed reasons, according to court records.
A month later, he disclosed the abuse to a social worker after undergoing counseling. An interview between a pediatric sexual abuse nurse examiner was then video recorded in which C.M. stated he was sexually abused at Fair’s apartment, and Kent police were called.
During a telephone interview with Detective Norman Jacobs, Fair got defensive, claiming C.M. was making up the allegations because he hated him. He then refused to speak with the detective further or come in for questioning.
The trial court found the gross sexual imposition counts merged with the rape counts for sentencing purposes.
On appeal, Fair argued the charges are allied offenses of similar import within the meaning of R.C. 2941.25. The appellate court agreed.
Eleventh District Judge Cynthia Westcott Rice noted that since the state does not argue the merging rape and sexual battery counts arose from separate instances or were committed with separate motive, the panel focused on whether the offenses were of dissimilar import.
“At sentencing, the trial court determined the sexual battery charges did not merge with rape charges because sexual battery requires the offender to be acting in loco parentis, and the violation of this additional element constituted additional harm, namely ‘an additional violation of trust,’ “ Judge Rice said in her majority opinion. “However, in this case, we do not find that acting in loco parentis constitutes a separate harm sufficient to determine a rape charge and a sexual battery charge arising from the same occurrence are of dissimilar import.”
Judge Rice cited similar findings in other appellate jurisdictions, including State v. Marcum, 12th District, 2016-Ohio-263, and State v. Nickel, 6th District, 2011-Ohio-1550.
“We find that when the only difference between the facts supporting the count of rape and the facts supporting the count of sexual battery is the existence of an in loco parentis relationship, this alone does not constitute sufficient harm to find the offenses are of dissimilar import,” she added.
The panel also raised a related issue sua sponte.
“The trial court found that the two rape counts merged, for purposes of sentencing, with the two gross sexual imposition counts,” Judge Rice wrote. “However, the court sentenced appellant on both the rape counts and the gross sexual imposition counts.”
The trial court sentenced Fair to five years on each of the gross sexual imposition counts, finding they are mandatory sentences, but ordered them to run concurrently and merge with the rape counts.
“Here, the court found counts 1 and 3, and 2 and 4 merged, but sentenced him on both rape counts and both gross sexual imposition counts,” the appellate judge stated. “As this constitutes plain error pursuant to Crim.R. 52(B), we must remand this case for resentencing.”
Appellate judges Thomas R. Wright and Matt Lynch concurred.
The case is cited State v. Fair, 2019-Ohio-2508.