State v. Heft , 2009 Ohio 5908 ( 2009 )

[Cite as State v. Heft, 2009-Ohio-5908.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-09-08
v.
BRIAN HEFT, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 07 08 155
Judgment Affirmed
Date of Decision: November 9, 2009
APPEARANCES:
Alison Boggs for Appellant
Daniel LaRoche for Appellee
Case No. 8-09-08
ROGERS, J.
{¶1} Defendant-Appellant, Brian L. Heft, appeals the judgment of the
Logan County Court of Common Pleas convicting him of two counts of gross
sexual imposition. On appeal, Heft argues that R.C. 2907.05 is unconstitutional as
applied to him; that the trial court erred in ordering consecutive sentences; that the
jury verdicts were against the manifest weight of the evidence; that he was
prejudiced by the trial court’s Howard charge to the jury after the jury indicated an
inability to reach a verdict; that he was denied his constitutional right to a speedy
trial; that the second indictment was constitutionally deficient, as it was
intentionally vague and denied him the ability to form a proper defense; that he did
not receive a fair trial because the trial court permitted introduction of evidence of
other bad acts; and, that he was deprived of effective assistance of counsel. Based
upon the following, we affirm the judgment of the trial court.
{¶2} In September 2007, the Logan County Grand Jury indicted Heft on
Count One: rape in violation of R.C. 2907.02(A)(2), a felony of the first degree;
Count Two: rape in violation of R.C. 2907.02(A)(2), a felony of the first degree;
Count Three: sexual battery in violation of R.C. 2907.03(A)(5), a felony of the
third degree; Count Four: sexual battery in violation of R.C. 2907.03(A)(5), a
felony of the third degree; Count Five: gross sexual imposition in violation of R.C.
2907.05(A)(4), a felony of the third degree; and, Counts Six, Seven, Eight, Nine,
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and Ten: gross sexual imposition in violation of R.C. 2907.05(A)(1), all felonies
of the fourth degree. The indictment stemmed from a multiple year course of
conduct during which Heft allegedly sexually abused his stepdaughter, S.W.
{¶3} In December 2007, Heft waived his speedy trial rights.
Additionally, Heft filed a motion to continue the jury trial, which had been
scheduled for January 8, 2008,1 on the basis that he required additional time to
prepare for trial. Thereafter, the trial court vacated the trial date of January 8,
2008, and rescheduled the date to February 21, 2008.
{¶4} In February 2008, Heft filed a motion to vacate the trial date of
February 21, 2008, on the basis that he again required additional time to prepare
for trial. Additionally, Heft reiterated that he waived his right to have the case
tried within the statutory period. Thereafter, the trial court vacated the trial date of
February 21, 2008, and rescheduled the date to April 29, 2008.
{¶5} In April 2008, the State moved the trial court for an order pursuant
to Crim.R. 7(D) to amend the indictment to include in each charge the culpable
mental state.
{¶6} In May 2008, the trial court overruled the State’s motion to amend
the indictment, and dismissed the September 2007 indictment without prejudice.
1
Heft’s motion stated that the trial was scheduled for January 8, 2007; however, the year was clearly a
typographical error, given that motion was filed in December 2007.
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{¶7} In July 2008, the Logan County Grand Jury indicted Heft on Count
One: rape in violation of R.C. 2907.02(A)(2), a felony of the first degree; Count
Two: sexual battery in violation of R.C. 2907.03(A)(5), a felony of the third
degree; Count Three: gross sexual imposition in violation of R.C. 2907.05(A)(1), a
felony of the fourth degree; and, Count Four: gross sexual imposition in violation
of R.C. 2907.05(A)(1), a felony of the fourth degree. Thereafter, Heft entered a
plea of not guilty to all counts in the indictment.
{¶8} In August 2008, Heft filed a motion to dismiss the indictment on the
basis that the State had violated his speedy trial rights, and that the speedy trial
waivers he had filed in conjunction with the September 2007 indictment did not
apply to the July 2008 indictment.
{¶9} In September 2008, the trial court overruled Heft’s motion to
dismiss, finding that, unlike a speedy trial waiver, periods of delay resulting from
motions filed by the defendant in a previous case also apply in a subsequent case
based on the same underlying facts and circumstances.
{¶10} In October 2008, Heft filed a motion to vacate the trial date of
October 28, 2008, which the trial court granted, assigning the matter for jury trial
on February 18, 2009.
{¶11} In February 2009, the case proceeded to jury trial, at which the
following testimony was heard.
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{¶12} Officer Andrew Kennedy of the Bellefontaine Police Department
testified that, on July 23, 2007, he spoke to S.W. at the police department; that
S.W. was accompanied by her friend, Victoria Early, and her friend’s mother,
Bridget Early; that it was very difficult for S.W. to speak and she was emotional;
and, that S.W. alleged that she had been sexually abused by Heft, and detailed
multiple specific incidents of sexual abuse.
{¶13} Victoria Early testified that she had been close friends with S.W. for
about five years at the time of the trial; that she observed S.W. and Heft interact as
stepparent and stepdaughter on many occasions; that she did not believe Heft was
as encouraging as a father figure should be; that Heft made negative comments to
S.W. about her weight and appearance; that Heft also had a negative attitude
regarding S.W.’s boyfriends; that Heft was rude to S.W.’s boyfriend and called
him names; that S.W.’s role in the household was uncommon because she often
cooked, cleaned, and looked after her younger brother; that she believed S.W. had
taken on this role because S.W.’s mother, Bridget Heft, had health issues; that she
observed that Bridget Heft spent most of the day watching television and drinking
alcoholic beverages, and that she did not really clean; and, that, from her
observations, she believed Heft and Bridget had more of a friendship than a
marriage.
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{¶14} Early continued that, on the third Thursday of July in 2007, S.W.
called her and asked her to pick her up; that S.W. was very distressed and upset;
that S.W. came out of the house carrying her work clothing, but nothing else; that
S.W. stayed at the Earlys’ home from Thursday until Sunday; that she thought it
was strange that S.W. brought no other clothing with her; that, when she arrived
home from work at approximately 7:00 a.m., she and her mother watched a movie
about a young woman being raped and then testifying in court; that S.W. awoke
and came down to watch the movie; that S.W. appeared upset during the movie,
but that did not surprise her because “she had been upset pretty much the whole
weekend” (trial tr., p. 120); that, after the movie ended, S.W. began crying, told
her and her mother that she had something she needed to tell them, and said that
she could never go back home; that her mother called S.W.’s older brother, Nick,
to pick her up; that she and her mother then accompanied S.W. to the police
station, where police officers interviewed S.W.; that she never witnessed any
sexual acts between Heft and S.W. or heard S.W. make such accusations in the
past; and, that the Heft family was always pleasant to her when she was at their
home.
{¶15} Detective Scott Sebring of the Bellefontaine Police Department
testified that, through his training, he was aware that many child victims of sexual
abuse delay disclosure due to fear of not being believed, fear of discipline, fear of
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financial difficulty if the perpetrator is the primary financial support of the family,
and fear of breaking up the family; that he interviewed Heft after he was arrested;
that Heft denied the allegations; that he also interviewed Bridget Heft, who told
him that she did not know anything about the allegations and that S.W. had never
made such allegations to her; that, although S.W. had told him that her step-
grandmother who lived with the family was suspicious of Heft, he did not
interview the step-grandmother; that he did not examine either the Heft family’s
prior or current residence for DNA evidence; that he did not believe he would find
any forensic evidence in the Hefts’ household because it was clean and well-kept;
and, that he did not examine any computers in the household because there was no
indication that anything relevant would be contained on a computer.
{¶16} S.W. testified that, throughout her childhood, she lived in a
household with her stepfather, Heft, her mother, Bridget Heft, her younger brother,
Shawn, her older brother, Nick, and intermittently her step-grandmother, Beatrice;
that Heft and her mother married when she was two years old, and he was the only
father figure she had known; that the family resided on Reservoir Road in
Bellefontaine between the dates of January 19, 2001, and June 3, 2004; that the
family resided on Highview Drive in Bellefontaine between the dates of June 3,
2004, and July 23, 2007; that Heft was the primary financial provider for the
family because her mother did not work, although she received social security
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payments; that her mother suffered multiple strokes and required brain surgery
prior to the family moving to Bellefontaine in 2001; that her mother’s stroke
changed the dynamics of the household because she could no longer take care of
the children due to speech problems and difficulties with her hand; that she did
whatever she could to help take care of her younger brother and clean; that she
rarely saw Heft and her mother together; that her mother watched television often
and would drink several cans of beer per night; that her mother would consume
alcohol to the point that she would stumble and nearly fall; and, that she did not
believe it was the stroke that caused her mother to lose her balance.
{¶17} S.W. continued that she did not get along well with Heft; that Heft
sexually abused her when the family lived at both the Reservoir Road and
Highview Drive residences; that, on Christmas Eve in 2001 or 2002, when the
family lived on Reservoir Road, Heft had stayed up at night to cook a turkey; that
Heft came into her room that night and summoned her to the door; that she went
over to the door, and Heft pulled her pants and underwear down; that Heft
attempted to kiss her near her vagina; that she pulled her pants and underwear up
and went over to her bed to lie down, and Heft left the room; that Heft then came
back into her room, pulled her covers off, pulled her pants down, and “started
kissing [her] all over [her] body” (Id. at 171); that she attempted to keep her pants
up, but Heft continued to try to kiss her lower and lower; that she could not do
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anything to stop him but attempt to keep her pants up; that Heft “succeeded in
everything that he tried” (Id. at 172); that other people were in the home when this
incident occurred, but they were asleep; that she did not tell anyone immediately
after the incident occurred because Heft “had threatened that if anything happened
to him, [her] mom and brother would both be out on the streets” (Id. at 174); that
she took Heft’s threats seriously because he was manipulative and controlling and
she was afraid of him; that, when Heft would become angry with her, he would
tell her mother that she was treating him like “dirt”; and, that she never consented
to Heft touching her in a sexual manner.
{¶18} S.W. continued that many instances of sexual abuse occurred once
the family moved to the Highview residence; that, approximately every other day,
while she was sleeping in her room, Heft would touch her breasts without her
consent; that she tried to keep her arms as tight as she could, but it did not prevent
Heft; that the abuse impacted her to the point that she overdosed on prescription
Amitriptyline in June 2006; that she took the medication with the goal of killing
herself because she “couldn’t take the abuse” (Id. at 187); that, on one occasion in
July 2006 during the week of the Logan County Fair, she came home from tennis
practice to get permission to go to the fair; that Heft told her to lie on his bed, and
then “scooted” her to the edge of the bed; that Heft removed her pants and
underwear, opened her legs, and engaged in vaginal intercourse with her for
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several minutes; that she “pretty much just laid [sic] there and waited for it to be
over” (Id. at 181); that, when the assault ended, she retrieved her clothing and
went to the fair; that no one else was in the home at the time of this assault, and
she believed her mother had taken her younger brother to run errands, as she did
from time to time; that, sometime after the fair ended, in August 2006, Heft again
engaged in vaginal intercourse with her in his bed; that this occasion was not as
forceful as the first, but “it wasn’t easy to stop him either” (Id. at 185); that Heft
never mentioned the abuse except when it was occurring, except that he would ask
her questions such as “do you think my penis is big” (Id. at 188); that Heft told her
that “he didn’t feel like he was [her] father and that he didn’t feel like [she] was
his daughter because [they] weren’t blood” and that the only two people he loved
“in that way” were her and her mother (Id. at 188); that Heft threatened to leave
her mother and brother if she told anyone about the abuse; that, in July 2007, she
went to visit a college with a friend, which provoked an argument between her and
Heft; that she “couldn’t take it” so she left to go to the Early household for several
days (Id. at 194); that, on Sunday, she watched part of a movie with Victoria and
Bridget Early about a woman who had been sexually abused; that she had
flashbacks of Heft abusing her and became very emotional; that she began crying
and told Victoria and Bridget Early about the abuse; that she did not make up the
story about the abuse in order to get out of the home and her tumultuous
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relationship with her parents; and, that the movie did not plant the idea of sexual
abuse accusations in her head.
{¶19} On cross-examination, S.W. testified that the incident on Christmas
Eve at the Reservoir Road residence may have occurred in 2002 and not 2001, if
receipts existed demonstrating that the family was not at home, but in Canal
Winchester, on Christmas Eve in 2001; that she could not remember if the first
instance of penetration occurred when she was sixteen, seventeen, or eighteen; that
the second incident occurred in August before school started, but she could not
remember the exact date; that her attempted suicide on Father’s Day in 2006
occurred prior to the incidents of penetration, but after some of the touching
incidents; that she lied to the hospital staff and told them she was not trying to kill
herself; that it is possible she told the hospital staff that she and her parents were
arguing because she was staying out late with her boyfriend, but she did not
remember; that, the day she left home, her parents were not having any problems
with her; that her parents did not complain to her that she was not completing her
forms for college; that her parents did not have a problem with her staying out
late; that they did not tell her to “straighten up” or move out; that she never told
the police that her mother was mentally disabled, and the police report stating that
was a mistake; that, although she helped cook and clean in the household, her
mother did most of it; that she never did laundry; that she told her friends she was
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doing a lot of cooking and cleaning at the house; that she did not tell her mother
about the penetration incidents because she had “told her once before and she
never did anything” (Id. at 230); and, that, on Father’s Day in 2007, several
months before making the accusations, she gave Heft a card telling him that she
appreciated everything he did for her, was glad he was her father, would always
love him, and that he was the “greatest father in the whole world.” (Id. at 236).
{¶20} Thereafter, the State rested and Heft moved for dismissal of the
indictment pursuant to Crim.R. 29. The trial court overruled Heft’s motion. Heft
then testified in his defense.
{¶21} Heft testified that he had never been involved with a criminal
investigation prior to this proceeding; that his wife and S.W.’s mother, Bridget
Heft, suffered a stoke in 1999; that her stroke resulted in her having physical
difficulties with her hand and some speech problems, but she had no mental
disabilities; that S.W. never took care of the home and did not cook or clean; that,
in fact, the family had issues with S.W. completing her assigned chores; that he
and Bridget had a normal marital relationship, evidenced by the fact that Bridget
had a son, Shawn, a year after she suffered the stroke; that his relationship with
S.W. the first few years of his marriage to Bridget was “great”; that, as S.W.
became a teenager, she became more challenging because she was argumentative
and wanted to go out a lot; that he and Bridget expected S.W. to help out around
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the house and to get a job for her extra spending money, but she refused; that S.W.
would throw temper tantrums, scream, cry, and “have attitudes” (Id. at 254); that,
on Christmas Eve in 2001, the family was in Canal Winchester, corroborated by a
gas station receipt; that his mother, S.W.’s step-grandmother, Beatrice, lived at the
residence and was agoraphobic, so she never left the home; that S.W. was not
permitted to date boys he considered to be inappropriate, which made her angry;
that S.W. was permitted to date a boy named Grant, and the family included him
in several family get-togethers; that, on Father’s Day in 2006, he and Bridget
argued with S.W. about her behavior, and she then overdosed on pills; that S.W.
reported to the hospital staff that she intentionally overdosed due to arguments
with her parents over her boyfriend, but then later reported she had just
accidentally taken too many pills; that, in July and August 2006, he went out of
state on business, departing the end of “fair week”, and returning several weeks
later when he underwent surgery for blood clots; that he helped S.W. fill out her
college entrance exam forms, college applications, and financial aid forms; that
S.W. did not really help with the forms or pay the fees, which caused problems
between the two of them; that, the day S.W. left the home, he returned from work
and S.W. was instigating Shawn to run around the room, despite the fact that he
had just had his tonsils out; that he became angry because he felt she had put
Shawn’s health at risk, and the two began to argue; that he told S.W. “you’re 17
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years old. You need to straighten up your attitude or find another place to live.
We can’t handle this anymore—or 18, I’m sorry” (Id. at 271); that S.W. chose to
leave the home; and, that, several days later, he was arrested at work and learned
of S.W.’s accusations of sexual abuse.
{¶22} On cross-examination, Heft testified that his income constituted the
bulk of the household funds; that he did not know why S.W. would make false
accusations against him, but speculated it was due to financial concerns, arguing,
and the influence of her friends.
{¶23} Bridget Heft testified that she suffered a stroke in 1999; that her
condition had improved over the years; that she continued to have physical
difficulties with one hand, but had no mental problems; that she never saw Heft
act inappropriately toward S.W. or touch her inappropriately; that S.W. never
approached her with any accusations against Heft; that she drank four to six
alcoholic beverages each evening; that Heft’s mother and S.W.’s step-
grandmother, Beatrice, lived in the household most of the time; that Beatrice was
always in the home unless she took her to a doctors appointment or to a store; that
she and Heft had a normal marital relationship; that she did all of the cooking,
cleaning, and laundry in the home, and could not imagine S.W. saying that she did
it; that, the day S.W. left the home, she had been throwing a ball across the room
and telling Shawn to run to get it; that she told S.W. to stop making Shawn run;
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that Heft came home and told S.W. not to have Shawn run because he recently had
surgery; that Heft and S.W. then argued about her forms for college; that the
argument culminated in Heft telling S.W., “you’ll own up to the rules or you can
get out” (Id. at 307); and, that S.W. then left the home.
{¶24} After the close of testimony, the jury returned verdicts of guilty on
Counts Three and Four, finding Heft guilty of two counts of gross sexual
imposition. The jury was unable to reach a verdict on Counts One and Two,
which were consequently dismissed upon the State’s motion.
{¶25} In April 2009, the trial court ordered Heft to serve a fifteen-month
prison term on Count Three, and a fifteen-month prison term on Count Four, to be
served consecutively. Additionally, the trial court classified Heft as a Tier I sexual
offender.
{¶26} It is from his conviction and sentence that Heft appeals, presenting
the following assignments of error for our review.
Assignment of Error No. I
OHIO REVISED CODE SECTION 2907.05 IS
UNCONSTITUTIONAL AS IT IS APPLIED TO APPELLANT
AND OTHERS SIMILARLY SITUATED BECAUSE IT IS
VAGUE AND OVERBROAD AND CONFLICTS WITH THE
REQUIREMENTS OF OHIO REVISED CODE SECTION
2907.06.
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Assignment of Error No. II
THE TRIAL COURT ERRED WHEN IT ORDERED
CONSECUTIVE SENTENCES.
Assignment of Error No. III
THE VERDICTS ON THE GROSS SEXUAL IMPOSITION
COUNTS WERE AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
Assignment of Error No. IV
APPELLANT WAS PREJUDICED BY THE COURT’S
HOWARD CHARGE TO THE JURY WHEN THE JURY
INDICATED IT COULD NOT COME TO A VERDICT.
Assignment of Error No. V
APPELLANT WAS DENIED HIS CONSTITUTIONAL
RIGHT TO A SPEEDY TRIAL.
Assignment of Error No. VI
THE SECOND INDICTMENT WAS CONSTITUTIONALLY
DEFICIENT AS IT WAS INTENTIONALLY VAGUE [SIC]
THAT IT EFFECTIVELY DENIED APPELLANT THE
ABILITY TO FORM A PROPER DEFENSE, EVEN THOUGH
THE STATE PRESENTED EVIDENCE TO A SPECIFIC
DATE DURING TRIAL WHICH WAS NEVER DISCLOSED
THROUGH THE BILL OF PARTICULARS OR IN ANY
SUBSEQUENT PLEADING.
Assignment of Error No. VII
APPELLANT DID NOT RECEIVE A FAIR TRIAL WHEN
THE COURT PERMITTED THE INTRODUCTION OF
EVIDENCE OF OTHER BAD ACTS, BY ALLOWING THE
VICTIM TO TESTIFY IN VAGUE TERMS AS TO WHEN
EACH OF THE CRIMES OCCURRED, ATTEMPTING TO
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INCORPORATE ALLEGED MULTIPLE INCIDENTS TO
PROVE ONE CERTAIN ACT AND THEN FAILED TO GIVE
A LIMITING INSTRUCTION TO THE JURY.
Assignment of Error No. VIII
APPELLANT WAS DEPRIVED AFFECTIVE [SIC]
ASSISTANCE OF COUNSEL WHEN COUNSEL [SIC]
WHICH DEPRIVED APPELLANT A FAIR TRIAL
{¶27} Due to the nature of Heft’s assignments of error, we elect to address
them in a different order than presented in his brief.
Assignment of Error No. I
{¶28} In his first assignment of error, Heft argues that R.C. 2907.05 is
unconstitutional as applied to him because it is vague, overbroad, and conflicts
with the requirements of R.C. 2907.06. Specifically, Heft contends that R.C.
2907.05 is unconstitutional because a lesser misdemeanor charge, sexual
imposition in violation of R.C. 2907.06, requires corroboration. According to
Heft, the General Assembly’s requirement of a greater burden of evidence on this
lesser charge renders R.C. 2907.05 unconstitutional, as it is a greater charge, yet
requires no corroboration.
{¶29} Initially, we note that Heft failed to challenge the constitutionality of
R.C. 2907.05 prior to or at trial. The Supreme Court of Ohio has held that,
“‘[f]ailure to raise at the trial court level the issue of the constitutionality of a
statute or its application, which issue is apparent at the time of trial, constitutes a
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waiver of such issue and a deviation from this state’s orderly procedure, and
therefore need not be heard for the first time on appeal.’” State v. Rice, 3d Dist.
Nos. 1-02-15, 1-02-29, 1-02-30, 2002-Ohio-3951, ¶7, quoting State v. Awan
(1986), 22 Ohio St.3d 120, syllabus, limited by In re M.D. (1988), 38 Ohio St.3d
149, syllabus. However, the waiver doctrine set forth by Awan is discretionary;
thus, “even where waiver is clear, a reviewing court may consider constitutional
challenges to the application of statutes in specific cases of plain error or where
the rights and interests involved may warrant it.” Rice, 2002-Ohio-3951, at ¶7,
citing In re M.D., supra. The Supreme Court of Ohio has directed, however, that “
‘“discretion will not ordinarily be exercised to review such claims, where the right
sought to be vindicated was in existence prior to or at the time of trial.”’ ” Id.,
quoting State v. 1981 Dodge Ram Van (1988), 36 Ohio St.3d 168, 170-71, quoting
State v. Woodards (1966), 6 Ohio St.2d 14, 21.
{¶30} We find that the constitutional issue Heft now argues was apparent
at the time of trial, and, therefore, Heft has waived the issue on appeal.
{¶31} Accordingly, we overrule Heft’s first assignment of error.
Assignment of Error No. II
{¶32} In his second assignment of error, Heft contends that the trial court
erred when it ordered him to serve consecutive sentences. Specifically, Heft
argues that the trial court erroneously found he lacked remorse on the basis that he
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maintained his innocence, and that the trial court did not give appropriate weight
to the fact that he had been employed all of his life and had led a law-abiding life.
We disagree.
{¶33} An appellate court must conduct a meaningful review of the trial
court's sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-
Ohio-5774, ¶8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-
1181. A meaningful review allows the appellate court to modify or vacate a
felony sentence and remand the matter to the trial court for resentencing if clear
and convincing evidence shows the sentence was contrary to law or was not
supported by the record. Daughenbaugh, supra, citing Carter, 2004-Ohio-1181, at
¶44; R.C. 2953.08(G).
{¶34} The Supreme Court of Ohio, in State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, declared portions of the felony sentencing statutes to be
unconstitutional, specifically those portions requiring judicial fact finding before
imposition of sentences, pursuant to the United States Supreme Court's decisions
in Apprendi v. New Jersey (2000), 530 U.S. 466; Blakely v. Washington (2004),
542 U.S. 296; and United States v. Booker (2005), 543 U.S. 220. Specifically,
Foster held that “[t]rial courts [now] have full discretion to impose a prison
sentence within the statutory range and are no longer required to make findings or
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give their reasons for imposing maximum, consecutive, or more than the minimum
sentences.” 2006-Ohio-856, at paragraph seven of the syllabus.
{¶35} Furthermore, the Supreme Court of Ohio in State v. Bates, 118 Ohio
St.3d 174, 2008-Ohio-1983, ¶18, held that “[t]he severance and excision of former
R.C. 2929.14(E)(4) * * * by Foster * * * leaves no statute * * * to limit [the] trial
court['s] discretion beyond the basic ‘purposes and principles of sentencing’
provision articulated and set forth in R.C. 2929.11 and 2929.12.”
{¶36} Here, the trial court sentenced Heft to two consecutive fifteen-month
prison terms for his gross sexual imposition convictions, fourth degree felonies.
Under R.C. 2929.14(A)(4), the trial court had discretion to sentence Heft to a
prison term ranging from six to eighteen months. Thus, the trial court imposed
sentences within the statutory range. Further, although the trial court ordered Heft
to serve his sentences consecutively, under Foster, this was within the trial court’s
discretion and the trial court was not required to give its reasons for doing so.
{¶37} Accordingly, we overrule Heft’s second assignment of error.
Assignment of Error No. V
{¶38} In his fifth assignment of error, Heft argues that he was denied his
constitutional right to a speedy trial. Specifically, Heft contends that the matter
came for trial 6062 days after his arrest, and, although he filed numerous motions
2
This Court calculated the time for speedy trial purposes from Heft’s arrest until trial as 578 days, as set
forth in the chart below.
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which tolled the speedy trial time for the first indictment, the State still failed to
try him within 270 days of the date of his arrest. We disagree.
{¶39} “Our standard of review upon an appeal raising a speedy trial issue
is to count the expired days as directed by R.C. 2945.71, et seq.” State v. King, 3d
Dist. No. 9-06-18, 2007-Ohio-335, ¶30, citing State v. DePue (1994), 96 Ohio
App.3d 513, 516. If any ambiguity exists, this court will construe the record in the
defendant's favor. Id., citing State v. Mays (1996), 108 Ohio App.3d 598, 609.
{¶40} “Both the United States and Ohio Constitutions guarantee a criminal
defendant the right to a speedy trial.” State v. Masters, 172 Ohio App.3d 666,
2007-Ohio-4229, ¶9, citing State v. Baker, 78 Ohio St.3d 108, 110, 1997-Ohio-
229. In addition, Ohio statutes set forth specific time requirements necessary for
compliance with the speedy-trial guarantee. The applicable statutory speedy-trial
provision, R.C. 2945.71(C)(2), provides that “[a] person against whom a charge of
felony is pending * * * [s]hall be brought to trial within two hundred seventy days
after the person's arrest.”
{¶41} Additionally, R.C. 2945.73(B) provides that “[u]pon motion made at
or prior to the commencement of trial, a person charged with an offense shall be
discharged if he is not brought to trial within the time required by sections 2945.71
and 2945.72 of the Revised Code.” Both R.C. 2945.71 and 2945.73 are
mandatory, and strict compliance is required by the State. King, 2007-Ohio-335,
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at ¶32, citing State v. Pudlock (1975), 44 Ohio St.2d 104, 105. Therefore, when a
criminal defendant shows that he was not brought to trial within the proper period,
the burden shifts to the State to demonstrate that sufficient time was tolled or
extended under the statute. Masters, 2007-Ohio-4229, at ¶10, citing State v.
Butcher (1986), 27 Ohio St.3d 28, 31.
{¶42} Time extensions are permitted in limited circumstances under R.C.
2945.72, including periods of delay “necessitated by reason of a * * * motion,
proceeding, or action made or instituted by the accused[.]” R.C. 2945.72(E).
Further, the Supreme Court of Ohio has held that “the accused may waive his
constitutional right to a speedy trial, provided such waiver is knowingly and
voluntarily made.” State v. O'Brien (1987), 34 Ohio St.3d 7, citing Barker v.
Wingo (1972), 407 U.S. 514, 529.
{¶43} The statutory time period begins to run on the date the defendant is
arrested; however, the date of arrest is not counted when computing the time
period. Masters, 2007-Ohio-4229, at ¶12, citing State v. Stewart (1998), 12th
Dist. No. CA98-03-021, 1998 WL 640909. Additionally, the triple-count statute,
R.C. 2945.71(E), provides that, for computation purposes, each day an accused
spends in jail in lieu of bond on the pending charge shall count as three days.
State v. Euton, 3d Dist. No. 2-06-35, 2007-Ohio-6704, ¶24.
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{¶44} The Supreme Court of Ohio has specifically addressed speedy trial
situations in which an original indictment is dismissed and a second indictment is
later filed. In State v. Broughton, the Supreme Court held that, “[f]or purposes of
computing how much time has run against the state under R.C. 2945.71 et seq., the
time period between the dismissal without prejudice of an original indictment and
the filing of a subsequent indictment, premised upon the same facts as alleged in
the original indictment, shall not be counted unless the defendant is held in jail or
released on bail pursuant to Crim.R. 12(I).”3 62 Ohio St.3d 253, at paragraph one
of the syllabus. Further, Broughton noted that solely because a defendant may
have suffered anxiety or apprehension during the period between the dismissal of
the first indictment and reindictment does not mean the time period must be
counted and attributed to the State for speedy trial purposes. 62 Ohio St.3d at 258,
citing State v. Bonarrigo (1980), 62 Ohio St.2d 7, 11, citing United States v.
Hillegas (C.A.2, 1978), 578 F.2d 453, 457-58. See, also, State v. Gearhart, 5th
Dist. No. 99CA107, 2000 WL 329670; State v. Tornstrom, 8th Dist. No. 72898,
1998 WL 811314.
{¶45} Appellate districts interpreting Broughton have subsequently found
that a trial court’s failure to explicitly declare that a defendant is released from bail
3
Former Crim.R. 12(I) is now Crim.R. 12(J), and provides, in pertinent part: “(J) Effect of determination: If the
court grants a motion to dismiss based on a defect in the institution of the prosecution or in the indictment,
information, or complaint, it may also order that the defendant be held in custody or that the defendant's bail be
continued for a specified time not exceeding fourteen days, pending the filing of a new indictment, information,
or complaint. ”
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Case No. 8-09-08
in the entry of dismissal pursuant to Crim.R. 48(A) does not necessarily mean that
the defendant’s bail is continued pursuant to Crim.R. 12(J). See State v. Buck, 4th
Dist. No. 98CA2438, 1999 WL 253485; State v. Bieser, 5th Dist. No. 06CA00045,
2007-Ohio-1960. In Buck, the Fourth Appellate District found no evidence in the
record indicating that the trial court continued the defendant’s bail following the
dismissal of the original indictment pursuant to Crim.R. 12(J). Further, the
appellate court noted that the defendant’s recognizance form required him to
comply with the bond terms “until such case is finally disposed of,” and concluded
that once the criminal charges were dismissed, the bail obligations were also
extinguished. Accordingly, the appellate court concluded that the trial court had
intended for the defendant’s bail obligation to terminate upon dismissal of the
indictment and, pursuant to Broughton, found that the time period between the
dismissal and the refilling was tolled.
{¶46} In the case before us, Heft was arrested on July 24, 2007, and spent
two days in jail, before being released on bond awaiting trial. The matter did not
come to trial until February 18, 2009, 578 days after his arrest. Thus, at first
observation, it appears Heft’s speedy trial rights were violated.
{¶47} The primary issue Heft and the State dispute as to allocation of days
for speedy trial purposes is whether the time period between the dismissal of the
first indictment and service of the second indictment is attributable to the State
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because Heft was under the “strain” of the impending second indictment and
because nothing in the record demonstrates his bond was released from the first
indictment. As in Buck, supra, neither Heft nor the State argue that Heft’s bail was
continued pursuant to the former Crim.R. 12(J), nor does the record suggest that
the trial court continued Heft’s bail pursuant to Crim.R. 12(J). Additionally, we
reject Heft’s argument that the time should not be tolled, but counted and
attributed to the State, because he was under the strain of a second indictment.
The Supreme Court expressly rejected this argument in Broughton. See
Broughton, 62 Ohio St.3d at 258. Accordingly, we find that, as in Buck and
Broughton, the time period between the dismissal of the first indictment and
service of the second indictment was tolled and is not attributable to either party.
{¶48} Considering the pertinent events in the case before us, we find the
tolling events and days attributable to Heft and the State to be allocated as follows:
Dates Events Days Days Days
Attributed Attributed
to Defendant to State
7-24-07 to Arrest of Defendant 6 0 6
7-26-07 (2 days,
Defendant released on own triple
recognizance bond counted)
7-27-07 to 143 0 143
12-16-07
12-17-07 Defendant’s motion to 50 50 0
to 2-04-08 continue trial (rescheduled
for 2-21-08)
2-05-08 to Defendant’s motion to 84 84 0
4-28-08 continue (rescheduled for 4-
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Case No. 8-09-08
29-08)
State files motion to dismiss
4-28-08 to State’s motion to dismiss 17 17
5-15-08 pending (granted 4-28-08, but
not journalized until 5-15-08)
5-15-08 to No charges pending 53 0 0
7-07-08
7-08-08 Second indictment issued 1 0 0
7-09-08 to Defendant served summons 40 0 40
8-17-08 on second indictment
8-18-08 to Defendant’s motion to 17 17 0
9-03-08 dismiss
Court denies Defendant’s
motion to dismiss
9-04-08 to 46 0 46
10-19-08
10-20-08 Defendant’s motion to 121 121
to 2-18-09 continue (trial rescheduled
for 2-18-09)
Jury trial commences
TOTAL 578 272 252
{¶48} As illustrated above, the total number of days allocated to the State
is below the 270 day limit, and Heft’s speedy trial argument fails.
{¶49} Accordingly, we overrule Heft’s fifth assignment of error.
Assignment of Error No. VI
{¶50} In his sixth assignment of error, Heft contends that the second
indictment was constitutionally deficient as it was intentionally vague, and that it
effectively denied him the ability to form a proper defense, even though the State
presented evidence of a specific date during the trial which was never disclosed
through the bill of particulars or any other pleading. Specifically, Heft argues that
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it is unascertainable from the face of the indictment whether only two acts of gross
sexual imposition were alleged, or whether the State was relying on testimony
about many more acts, and merging these instances into one act during each time
period. We disagree that the second indictment was constitutionally deficient.
{¶49} Initially, we note that Heft failed to object to the indictment prior to
trial. As such, he has waived all but plain error. See State v. Rohrbaugh, 178
Ohio App.3d 211, 2008-Ohio-4781, ¶20; Crim.R. 12(C).
{¶50} A criminal indictment is sufficient only if it “(1) contains the
elements of the charged offense, (2) gives the defendant adequate notice of the
charges, and (3) protects the defendant against double jeopardy.” Valentine v.
Konteh (C.A.6, 2005), 395 F.3d 626, 631. Additionally, courts have found that:
[w]here such crimes constitute sexual offenses against children,
indictments need not state with specificity the dates of the
alleged abuse, so long as the prosecution establishes that the
offense was committed within the time frame alleged. This is
partly due to the fact that the specific date and time of the
offenses are not elements of the crimes charged. Moreover, many
child victims are unable to remember exact dates and times,
particularly where the crimes involved a repeated course of
conduct over an extended period of time. The problem is
compounded where the accused and the victim are related or
reside in the same household, situations which often facilitate an
extended period of abuse.
State v. Yaacov, 8th Dist. No. 86674, 2006-Ohio-5321 (internal citations omitted);
see, also, State v. Mundy (1994), 99 Ohio App.3d 275.
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{¶51} In Valentine, supra, a defendant was convicted of twenty counts of
rape, based on twenty identically worded indictments, and twenty counts of
felonious sexual penetration, based on twenty identically worded indictments. The
federal appeals court reversed all but one of the rape convictions and all but one of
the sexual penetration convictions, finding that the prosecution “did not
distinguish the factual bases of these charges in the indictment, in the bill of
particulars, or even at trial.” 395 F.3d at 628. Consequently, the federal court
found that the defendant “had notice that he was charged with two separate crimes
during the period of time specified in the indictment. But he had no way to
otherwise identify what he was to defend against in the repetitive counts and no
way to determine what charges of a similar nature could be brought against him in
the future if he were re-indicted.” 395 F.3d at 628-29. Noting the lessened
requirement of specificity in regards to date and time for indictments for sexual
offenses against children, the court distinguished Valentine's case, stating that:
[t]he problem in this case is not the fact that the prosecution did
not provide the defendant with exact times and places. If there
had been singular counts of each offense, the lack of
particularity would not have presented the same problem.
Instead, the problem is that within each set of 20 counts, there
are absolutely no distinctions made. [The defendant] was
prosecuted for two criminal acts that occurred twenty times
each, rather than for forty separate criminal acts. In its charges
and in its evidence before the jury, the prosecution did not
attempt to lay out the factual bases of forty separate incidents
that took place.
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Case No. 8-09-08
395 F.3d at 632. Additionally, Valentine noted that this situation presented double
jeopardy concerns because it was unascertainable whether such a vague indictment
would preclude future prosecution for incidents with the same victim during the
same time frame. 395 F.3d at 635.
{¶52} Here, Heft’s July 2008 indictment reflects that the grand jury found
the following:
COUNT I.
Brian L. Heft, between the dates of July 1, 2006 and August 31,
2006, at the county of Logan aforesaid, purposely engaged in
sexual conduct with another when the offender purposely
compels the other person to submit by force or threat of force, in
violation of Ohio Revised Code Section 2907.02(A)(2), Rape, a
felony of the first degree.
COUNT II.
Brian L. Heft, between the dates of July 1, 2006 and August 31,
2006, at the county of Logan aforesaid, knowingly engaged in
sexual conduct with another, not the spouse of the offender when
the offender is the other person’s natural or adoptive parent, or
a stepparent, or guardian, custodian, or person in loco parentis
of the other person, in violation of Ohio Revised Code
§2907.03(A)(5), Sexual Battery, a felony of the third degree.
COUNT III.
Brian L. Heft, between the dates of January 19, 2001 and June 2,
2004, at the county of Logan aforesaid, purposely had sexual
contact with another, not the spouse of the offender; purposely
caused another, not the spouse of the offender, to have sexual
contact with the offender; or purposely caused two or more
other persons to have sexual contact when the offender
purposely compels the other person, or one of the other persons,
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Case No. 8-09-08
to submit by force or threat of force, in violation of Ohio Revised
Code §2907.05(A)(1), Gross Sexual Imposition, a felony of the
fourth degree.
COUNT IV.
Brian L. heft, between the dates of June 3, 2004 and July 21,
2007, at the county of Logan aforesaid, purposely had sexual
contact with another, not the spouse of the offender; purposely
caused another, not the spouse of the offender, to have sexual
contact with the offender; or purposely caused two or more
other persons to have sexual contact when the offender
purposely compels the other person, or one of the other persons,
to submit by force or threat of force, in violation of Ohio Revised
Code R.C. §2907.05(A)(1), Gross Sexual Imposition, a felony of
the fourth degree.
{¶53} We note that Heft filed no request for a bill of particulars as to this
second indictment, nor did the State file one. Nevertheless, we find the case
before us to be distinguishable from the situation presented in Valentine because
the indictment provided Heft with adequate notice of the offenses as well as
protection from double jeopardy.
{¶54} Here, while the indictment does not specifically enumerate every
instance of sexual contact the victim alleged over the six-year period, it sets forth a
single representative count of gross sexual imposition for each household in which
the family lived during the six-year period. Additionally, the indictment sets forth
one count for the rape instance the victim alleged, and one count for the instance
of sexual battery the victim alleged. We find that the indictment sufficiently
connected each charge to a specific incident, providing Heft with adequate notice
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Case No. 8-09-08
of the offenses against which he must defend. Further, it is clear that the jury
differentiated between the incidents, as it acquitted Heft of the rape and sexual
battery counts. See State v. Meador, 12th Dist. No. CA2008-03-042, 2009-Ohio-
2195, ¶12, citing Valentine, 395 F.3d at 634.
{¶55} Additionally, we find that the indictment protects Heft against
double jeopardy because, unlike the defective indictment at issue in Valentine,
Heft’s indictment differentiated the counts by the type of offense alleged and the
time period. As the counts were differentiated, Heft is protected against a
subsequent prosecution for the same conduct. See State v. Van Voorhis, 3d Dist.
No. 8-07-23, 2008-Ohio-3224, ¶44.
{¶56} Accordingly, we overrule Heft’s sixth assignment of error.
Assignment of Error No. VII
{¶57} In his seventh assignment of error, Heft argues that he did not
receive a fair trial because the trial court permitted the introduction of evidence of
other unindicted offenses by permitting the victim to testify in vague terms as to
when each of the incidents occurred. Specifically, Heft contends that S.W. was
permitted to testify about multiple occasions of alleged abuse for which he was not
indicted, which he contends constituted prohibited “bad acts” evidence in violation
of Evid.R. 404(B). We disagree.
{¶58} Evid.R. 404(B) governs character evidence and provides that:
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Case No. 8-09-08
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.
{¶59} The exceptions allowing the evidence “must be construed against
admissibility, and the standard for determining admissibility of such evidence is
strict.” State v. Broom (1988), 40 Ohio St.3d 277, paragraph one of the syllabus.
Nevertheless, the admission of evidence lies within the broad discretion of the trial
court, and a reviewing court should not disturb evidentiary decisions in the
absence of an abuse of discretion that has created material prejudice. State v. Issa,
93 Ohio St.3d 49, 64, 2001-Ohio-1290. Thus, our inquiry is confined to
determining whether the trial court acted unreasonably, arbitrarily, or
unconscionably in deciding the evidentiary issue about which Heft complains.
State v. Barnes, 94 Ohio St.3d 21, 23, 2002-Ohio-68.
{¶60} Regarding the applicability to Evid.R. 404(B) to course-of-conduct
sexual abuse cases, several courts have held that extensive presentation of
evidence of other acts for which a defendant was not indicted can become so
pervasive as to deny that defendant a fair trial. See State v. Shaw, 2d Dist. No.
21880, 2008-Ohio-1317; Meador, supra. Compare State v. Molen, 2d Dist. No.
21941, 2008-Ohio-6237.
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Case No. 8-09-08
{¶61} In Shaw, supra, a defendant was indicted for fifteen counts of rape
and ten counts of sexual battery against three different victims. At trial, the State
elicited testimony about several specific instances of abuse, in addition to
“extensive” testimony from each victim that she was abused multiple times each
week for several years. On appeal, the State argued that the testimony about the
unindicted offenses was admissible under Evid.R. 404(B) because it demonstrated
why the victims tolerated the abuse. However, the appellate court found that the
only justification offered at trial for the admission of this testimony was that the
prosecutor needed to speak to the victims “about what happened during these
times so [she could] move on to what the next incident will be. There [were] so
many incidents.” 2008-Ohio-1317, at ¶12. The Appellate Court disagreed and
reversed the defendant’s convictions, finding that this cursory explanation did not
fall into an exception under Evid.R. 404(B), and concluded that the “extensive”
and “pervasive” testimony about other acts had denied the defendant a fair trial.
2008-Ohio-1317, at ¶14.
{¶62} In Meador, a defendant was charged with three counts of rape
against one victim, and with other sexual offenses against the victim’s cousin.
Although the cases were severed for trial, the trial court permitted several
witnesses to testify at the victim’s trial about an unelaborated “incident” with the
cousin to put the offenses at issue within a time frame. However, the testimony
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Case No. 8-09-08
elicited clearly insinuated that the “incident” was sexual abuse, and one witness
actually stated that the incident was “touching * * * inappropriately.” 2009-Ohio-
2195, at ¶59. Further, the trial court failed to give the jury a curative or limiting
instruction. On appeal, the Twelfth Appellate District concluded that the trial
court committed plain error in permitting this testimony, finding that “it was not
offered for an enumerated purpose,” and that the pervasiveness of the improper
references were “so unfairly prejudicial that exclusion would be necessary under
Evid.R. 403(A).” 2009-Ohio-2195, at ¶75.
{¶63} Here, S.W. stated at trial that Heft sexually abused her on “multiple
occasions” (Id. at 167); that, when the family moved into the Highview residence,
there were “many” incidents of sexual abuse (Id. at 176); that, during these
incidents, Heft would “always come in – well, most of the time it was usually
pretty much every other day is what it felt like to [her]” (Id.); that Heft would “just
come in while [she] was sleeping and take off [her] covers, and sometimes he
would lay [sic] in bed and he would put his arm around [her] and start touching
[her] breasts” (Id.). Initially, we note that S.W.’s testimony about “multiple
occasions” of abuse was not necessarily concerning other acts, as Heft was
indicted and tried for multiple sexual abuse offenses. Additionally, we do not find
that these minimal, vague references reached the extensive and pervasive nature of
the testimony at issue in Shaw and Meador.
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Case No. 8-09-08
{¶64} Accordingly, we overrule Heft’s seventh assignment of error.
Assignment of Error No. VIII
{¶65} In his eighth assignment of error, Heft contends that he was deprived
of effective assistance of counsel. Specifically, Heft argues that trial counsel was
ineffective for failing to call as a witness S.W.’s step-grandmother, who lived in
the Heft household; for failing to admit into evidence documents from the hospital
showing S.W.’s stated reasons for overdosing on pills; for failing to object to
hearsay statements made by Victoria Early; for failing to bring to the trial court’s
attention that the jury could be overheard discussing sentencing during
deliberations; and, for failing to bring to the trial court’s attention that Victoria
Early’s mother, Bridget Early, who sat by S.W. during sentencing, was the Logan
County Law Librarian, who allegedly worked closely with the trial judge on a
daily basis, and could have influenced the judge’s sentencing decision and his
ruling on Heft’s motions for acquittal. We disagree that trial counsel was
ineffective.
{¶66} An ineffective assistance of counsel claim requires proof that trial
counsel’s performance fell below objective standards of reasonable representation
and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio
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Case No. 8-09-08
St.3d 136, paragraph two of syllabus. To show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there
exists a reasonable probability that, but for counsel’s errors, the outcome at trial
would have been different. Id. at paragraph three of syllabus. “Reasonable
probability” is a probability sufficient to undermine confidence in the outcome of
the trial. State v. Waddy (1992), 63 Ohio St.3d 424, 433, superseded by
constitutional amendment on other grounds as recognized by State v. Smith, 80
Ohio St.3d 89, 103, 1997-Ohio-355.
{¶67} Furthermore, the court must look to the totality of the circumstances
and not isolated instances of an allegedly deficient performance. State v. Malone
(1989), 2d Dist. No. 10564, 1989 WL 150798. “Ineffective assistance does not
exist merely because counsel failed ‘to recognize the factual or legal basis for a
claim, or failed to raise the claim despite recognizing it.’” Id., quoting Smith v.
Murray (1986), 477 U.S. 527.
{¶68} Heft first argues that trial counsel was ineffective for failing to call
as a witness S.W.’s step-grandmother, who lived in the household. This Court has
previously held that “[t]he decision whether to call a witness is ‘within the rubric
of trial strategy and will not be second-guessed by a reviewing court.’” In re
Walker, 3d Dist. Nos. 5-05-22 & 5-05-23, 2005 WL 3359125, ¶14, quoting State
v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396. Here, the record provides no
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Case No. 8-09-08
evidence supporting a claim that declining to call S.W.’s step-grandmother as a
witness was not sound trial strategy. Additionally, although Heft insinuates that
S.W.’s step-grandmother’s testimony would have been in his favor, this claim is
unsubstantiated by the record, and thus, he has demonstrated no reasonable
probability that calling her would have changed the outcome of the proceeding.
Therefore, trial counsel was not ineffective for declining to call S.W.’s step-
grandmother as a witness. See State v. Martin, 2d Dist. No. 20610, 2005-Ohio-
1369, ¶19.
{¶69} Next, Heft argues that trial counsel was ineffective for failing to
object to Victoria Early’s hearsay testimony that S.W. told her and Bridget Early
that “she had something that she needed to tell [them] and was just repeating over
and over again that she could never go back home” (trial tr., p. 120). However,
admission of hearsay evidence may be harmless where the declarant was cross-
examined on the same matters and the hearsay evidence was cumulative in nature.
See State v. Abdullah, 10th Dist. No. 05AP-1316, 2006-Ohio-5412, ¶38; State v.
Tomlinson (1986), 33 Ohio App.3d 278, 281. Here, S.W. testified during direct
examination that she told Victoria and Bridget Early that Heft had abused her, and
was subject to cross-examination on these statements. Accordingly, admission of
these statements was harmless, and we do not find that, but for their admission,
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Case No. 8-09-08
there was a reasonable probability that the outcome of trial would have been
otherwise.
{¶70} Finally, Heft contends that trial counsel was ineffective for failing to
admit into evidence S.W.’s hospital records; for failing to bring to the trial court’s
attention that the jury could be overheard discussing sentencing during
deliberations; and, for failing to bring to the trial court’s attention that Bridget
Early was the Logan County Law Librarian and could have influenced the judge.
{¶71} It is well-settled that an appellate court may only consider evidence
that was before the trial court in the proceeding being appealed from and was
made part of the appellate record. Bank One Lima, N.A. v. Altenburger (1992), 84
Ohio App.3d 250, 256, citing Paulin v. Midland Mut. Life Ins. Co. (1974), 37 Ohio
St.2d 109, 112. Thus, an appellate court may not make a decision based upon
allegations founded upon facts outside of the record. App.R. 9(A); State v.
Ishmail (1978), 54 Ohio St.2d 402. Accordingly, we cannot consider Heft’s
arguments, as nothing in the record demonstrates that this evidence or these
alleged issues were before the trial court in the current proceeding being appealed.
{¶72} Accordingly, we overrule Heft’s eighth assignment of error.
Assignment of Error No. IV
{¶73} In his fourth assignment of error, Heft contends that he was
prejudiced by the trial court’s giving of the Howard charge to the jury after it
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Case No. 8-09-08
indicated that it could not reach a verdict. Specifically, Heft argues that the
Howard charge favors conviction over acquittal; that the trial court failed to
remind the jurors that Heft was entitled to the benefit of any doubt; and, that the
trial court did not determine the numerical division before giving the instruction.
We disagree that Heft was prejudiced by the giving of the Howard charge.
{¶74} Jury instructions are within the trial court’s discretion. State v.
Guster (1981), 66 Ohio St.2d 266, 271. Accordingly, a trial court’s decision
whether to give an instruction pursuant to State v. Howard (1989), 42 Ohio St.3d
18, is within its discretion, and this Court will not reverse that decision absent an
abuse of discretion. State v. Thomas, 2d Dist. No. 2000-CA-43, 2001-Ohio-1353,
citing State v. King, 7th Dist. No. 95 CA 163, 2000 WL 309393. An abuse of
discretion connotes that the trial court’s decision was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶75} In Howard, the Supreme Court of Ohio expressly approved of the
following supplemental instruction to be given to juries deadlocked on the
question of conviction or acquittal:
The principal mode, provided by our Constitution and laws, for
deciding questions of fact in criminal cases, is by jury verdict.
In a large proportion of cases, absolute certainty cannot be
attained or expected. Although the verdict must reflect the
verdict of each individual juror and not mere acquiescence in
the conclusion of your fellows, each question submitted to you
should be examined with proper regard and deference to the
opinions of others. You should consider it desirable that the
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Case No. 8-09-08
case be decided. You are selected in the same manner, and from
the same source, as any future jury would be. There is no
reason to believe the case will ever be submitted to a jury more
capable, impartial, or intelligent than this one. Likewise, there
is no reason to believe that more or clearer evidence will be
produced by either side. It is your duty to decide the case, if you
can conscientiously do so. You should listen to one another's
arguments with a disposition to be persuaded. Do not hesitate to
reexamine your views and change your position if you are
convinced it is erroneous. If there is disagreement, all jurors
should reexamine their positions, given that a unanimous verdict
has not been reached. Jurors for acquittal should consider
whether their doubt is reasonable, considering that it is not
shared by others, equally honest, who have heard the same
evidence, with the same desire to arrive at the truth, and under
the same oath. Likewise, jurors for conviction should ask
themselves whether they might not reasonably doubt the
correctness of a judgment not concurred in by all other jurors.
42 Ohio St.3d at 25-26. We note that virtually the same instruction has been
adopted by the Ohio Jury Instructions. See Ohio Jury Instructions (2008), Section
CR 429.09(2).
{¶76} In formulating the Howard instruction, the Supreme Court of Ohio
was “mindful of several competing factors when giving a supplemental instruction
to a divided jury and attempted to accommodate those factors.” State v. Troglin,
3d Dist. No. 14-04-41, 2005-Ohio-6562, ¶46, citing Howard, 42 Ohio St.3d at 23-
24. Particularly, the instruction may not isolate jurors holding the minority
position and direct them to reconsider their positions. Id., citing Howard, 42 Ohio
St.3d at 24. Additionally, the instruction may not coerce the jury by stressing that
it must reach a verdict. Id. Moreover, through the instruction, the trial judge must
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remind the jury of its purpose—to reach a unanimous decision. Id. Finally, the
instruction must be balanced and neutral, ask all of the jurors to reconsider their
opinions, and encourage a verdict. Id., citing Howard, 42 Ohio St.3d at 24-25.
{¶77} Here, the trial court appropriately delivered the Howard instruction
to the jury after it indicated that it could not reach a decision. We find no merit to
Heft’s argument that the Howard instruction is prejudicial and favors conviction
over acquittal. The Supreme Court of Ohio and Ohio Jury Instructions have
expressly approved of this instruction, finding it to be balanced, neutral, and
uncoercive. Heft’s arguments do not persuade us to the contrary.
{¶78} Accordingly, we overrule Heft’s fourth assignment of error.
Assignment of Error No. III
{¶79} In his third assignment of error, Heft argues that his convictions for
gross sexual imposition were against the manifest weight of the evidence.
Specifically, Heft contends that the entire case was based on S.W.’s unverified
statements, and that S.W. was not credible because she lied to hospital staff about
her attempted suicide, was inconsistent concerning the time frame during which
she revealed the alleged abuse to Victoria and Bridget Early, and was mistaken
about which year the Christmas Eve incident took place. Additionally, although
not separately set forth, Heft argues that there was insufficient evidence to convict
him of gross sexual imposition because the element of force was not demonstrated
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pertaining to Count Three of the indictment. We disagree that the verdicts were
against the manifest weight of the evidence, or that there was insufficient evidence
to convict Heft of Count Three.
{¶80} When an appellate court analyzes a conviction under the manifest
weight standard it must review the entire record, weigh all of the evidence and all
of the reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the fact finder clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380,
387, 1997-Ohio-52, superseded by state constitutional amendment on other
grounds as stated in Smith, supra, quoting State v. Martin (1983), 20 Ohio App.3d
172, 175. Only in exceptional cases, where the evidence “weighs heavily against
the conviction,” should an appellate court overturn the trial court’s judgment. Id.Finally, we emphasize that the trial court is in the best position to weigh witness
credibility, as it is “best able to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.” In re Jane Doe I (1991), 57 Ohio St.3d
135, 138; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80.
{¶81} Here, Heft is correct in his assertions that S.W.’s accusations were
not corroborated by physical evidence; that her testimony had some
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inconsistencies; and, that she admitted she had lied to hospital staff. However,
despite the lack of physical corroboration, inconsistencies, and S.W.’s admission
to lying on that occasion, S.W. maintained that Heft had sexually abused her,
which the jury apparently believed. We cannot find that the evidence weighs so
heavily against the conviction to warrant reversal, particularly given that the jury
was in the best position to weigh the credibility of the witnesses’ testimonies.
{¶82} We next turn to whether insufficient evidence was presented to
convict Heft of Count Three. When an appellate court reviews a record for
sufficiency, the relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt. State v.
Monroe, 105 Ohio St.3d 384, 392, 2005-Ohio-2282, citing State v. Jenks (1981),
61 Ohio St.3d 259, superseded by state constitutional amendment on other
grounds as stated in Smith, supra. Sufficiency is a test of adequacy, Thompkins,
supra, and the question of whether evidence is sufficient to sustain a verdict is one
of law. State v. Robinson (1955), 162 Ohio St. 486, superseded by state
constitutional amendment on other grounds as stated in Smith, supra.{¶83} Here, Heft contends that insufficient evidence was presented to
demonstrate that he used force to commit gross sexual imposition as alleged in
Count Three. Specifically, Heft contends that S.W. only testified that Heft
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approached her in the Reservoir Road residence, kissed her, that she walked away
and lay on her bed, and that he came over and kissed her again. Heft contends that
there was no evidence that he used any sort of physical force or that he threatened
her.
{¶84} Heft was convicted of gross sexual imposition in violation of R.C.
2907.05(A)(1), which provides, in pertinent part:
(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 purposely compels the other person, or one of
the other persons, to submit by force or threat of force.
{¶85} The Revised Code defines “force” as “any violence, compulsion, or
constraint physically exerted by any means upon or against a person or thing.”
R.C. 2901.01(A)(1). A victim “need not prove physical resistance to the offender”
in order to demonstrate force. R.C. 2907.05(D). The Supreme Court of Ohio has
addressed the issue of “force or threat of force” several times in the context of the
rape statute, R.C. 2907.02. In State v. Eskridge (1988), 38 Ohio St.3d 56, the
Court stated that, under R.C. 2907.02, the amount of force necessary to commit
the offense “depends upon the age, size and strength of the parties and their
relation to each other,” 38 Ohio St.3d 56, at paragraph one of the syllabus, and that
“‘ * * * [f]orce need not be overt and physically brutal, but can be subtle and
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psychological. As long as it can be shown that the rape victim’s will was
overcome by fear or duress, the forcible element of rape can be established.’” 38
Ohio St.3d at 58-59, quoting State v. Fowler (1985), 27 Ohio App.3d 149, 154;
see, also, State v. Byrd, 8th Dist. No. 82145, 2003-Ohio-3958, ¶26. Finally, the
Court observed that “‘[s]exual activity between a parent and a minor child is not
comparable to sexual activity between two adults with a history of consensual
intercourse. The youth and vulnerability of children, coupled with the power
inherent in a parent's position of authority, creates a unique situation of dominance
and control in which explicit threats and displays of force are not necessary to
effect the abuser’s purpose.’” Id., quoting State v. Etheridge (1987), 319 N.C. 34,
47, 352 S.E.2d 673, 681.
{¶86} Here, Count Three indicted Heft for the incident occurring when the
family resided at Reservoir Road from January 2001 until June 2004. On this
occasion, S.W. testified that Heft came into her room, pulled her pants and
underwear down, and attempted to kiss her near her vagina; that she pulled up her
pants and underwear and lied down on her bed; that Heft came back into her room,
pulled her covers off, and began kissing her body; that she attempted to keep her
pants up, but Heft continued to kiss her and “succeeded in everything that he
tried” (trial tr., p. 172); that she did not tell anyone about the incident because Heft
threatened that, if anything happened to him, her mother and brother would be
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“out on the streets” (Id. at 174); and, that she took Heft’s threats seriously because
he was manipulative and controlling, and she was afraid of him. Additionally,
S.W. testified that Heft was her stepfather from the time she was two years old,
and that he was the only father figure she had ever known.
{¶87} We find that, from S.W.’s testimony, a jury could reasonably
conclude that she resisted Heft’s actions when he kissed her by attempting to keep
her pants up, and that he physically and psychologically forced her to submit,
particularly given their parent-child relationship and Heft’s control over her. See
Eskridge, supra. Thus, we find that sufficient evidence was heard to demonstrate
that Heft used force to commit gross sexual imposition as alleged in Count Three.
{¶88} Accordingly, we overrule Heft’s third assignment of error.
{¶89} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and WILLAMOWSKI, J., concur.
/jlr
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