State v. Decker , 88 Ohio App. 3d 544 ( 1993 )

Defendant-appellant John L. Decker was charged with several sex offenses involving minors in two separate indictments. Case No. B-905610 involved conduct which occurred in 1990. Upon investigation of these charges, some old allegations from 1985, which had at the time apparently not resulted in any indictments, were revived and Decker was charged with six other sex offenses in case No. B-915233.

All of the offenses with which Decker was charged were consolidated into one trial.

In case No. B-905610, Decker was charged with two counts of gross sexual imposition involving two girls under the age of thirteen. The jury found Decker guilty of both these counts.

In case No. B-915233, Decker was charged with one count of rape of his son, one count of sexual battery of his son, two counts of gross sexual imposition of his son, and two counts of gross sexual imposition of his daughter. Before the trial began, the trial court dismissed the charges involving Decker's daughter. The jury found Decker guilty of both counts of gross sexual imposition of his son, and not guilty of the charges of rape and sexual battery of his son.

The question presented for our review under Decker's first assignments of error is whether the trial court erred in allowing these cases to be tried together. Contrary to the conclusion reached by the majority, I believe that the trial court abused its discretion in allowing these charges to be joined for trial and I would, therefore, reverse the judgments of the trial court and remand these cases for new trials. Accordingly, I respectfully dissent.

While it is true that the law favors joinder and the avoidance of multiple trials, I find none of the reasons cited in State v. Thomas (1980), 61 Ohio St.2d 223, 15 O.O.3d 234,400 N.E.2d 401, particularly compelling in this case. More important than matters of convenience in a case such as this, and central to the resolution of the assignment of error, is the potential prejudice to the defendant in trying two cases together which involve completely separate indictments. In no case is such an analysis more important than in cases involving allegations of sexual abuse of minors because of the natural, powerful, and completely understandable abhorrence that society has for those who commit such crimes.

An analysis of whether separate crimes should be severed for trial must begin with the requirements of State v. Torres (1981), 66 Ohio St.2d 340, 20 O.O.3d 313, 421 N.E.2d 1288. The court in Torres held that a defendant claiming error in the trial court's refusal to allow separate trials on different charges has the burden of showing that his rights were prejudiced. To do this he must do two things. First, "he must furnish the trial court with sufficient information so that it can weigh the considerations favoring joinder against the defendant's right to a fair trial." Then "he must demonstrate that the court abused its discretion in refusing to separate the charges for trial." Torres, supra, at syllabus.

Decker filed a motion to sever the charges several weeks before trial. He renewed this motion before the trial began, at the end of the state's case, and again at the close of all the evidence.

In support of his motion to sever, Decker informed the trial court that the charges in the two indictments involved distinctly different offenses with different victims, different witnesses and different crimes, thereby negating the common reasons given for justifying a joint trial. Decker also indicated to the court that the evidence surrounding the charges involving his son was much weaker than the evidence involving the neighborhood girls, and that the case involving his son involved questionable motives by the defendant's ex-wife which were clearly not present in the case involving the girls. In addition, Decker pointed out to the court the confusion that might have been caused by the presence of two defense attorneys, each representing him on one of the indictments. Finally, Decker argued the danger of the jury using other acts as evidence of criminal propensity. The trial court, however, refused to sever the indictments for separate trials.

I find that Decker provided the trial court with sufficient information so that it could weigh the benefits of a joint trial against Decker's right to a fair trial, meeting the first part of the test in Torres.

The second and more difficult question that must be addressed is whether Decker demonstrated that the trial court abused its discretion in refusing to separate the charges for trial, and that his rights were prejudiced thereby. In answering this question, the Ohio Supreme Court has developed a test which has two parts: (1) whether evidence of the crimes from one trial would be admissible in the other trial if the cases were tried separately, and (2) whether the evidence of each crime is simple and distinct. State v. Schaim (1992), 65 Ohio St.3d 51, 59,600 N.E.2d 661, 669, citing State v. Hamblin (1988), 37 Ohio St.3d 153,158-159, 524 N.E.2d 476, 481-482; Drew v. United States (C.A.D.C.1964), 331 F.2d 85. I will refer to these as the "other acts" test and the "simple and distinct" test.¹

In State v. Lott (1990), 51 Ohio St.3d 160, 555 N.E.2d 293, certiorari denied (1990), 498 U.S. 1017, 111 S.Ct. 591,112 L.Ed.2d 596, the Supreme Court articulated the "other acts" test and the "simple and distinct" tests. In Lott, the court held that while the state could use either test to defeat a claim of prejudicial joinder of the offenses, if the state could meet the "simple and distinct" test, it need not meet the admittedly stricter "other acts" test. Id., 51 Ohio St.3d at 163,555 N.E.2d at 298. In Lott, the court stated in the opinion, but not in the syllabus, that "when simple and direct evidence exists, an accused is not prejudiced by joinder regardless of the nonadmissibility of evidence of these crimes as ``other acts' under Evid.R. 404(B)." Id. Despite this pronouncement, I find it significant that the "other acts" evidence in Lott would have been admitted in each case had they been tried separately.

In State v. Mills (1992), 62 Ohio St.3d 357, 582 N.E.2d 972, certiorari denied (1992), ___ U.S. ___, 112 S.Ct. 3048,120 L.Ed.2d 915, the court discussed this issue again, and reiterated that the state could use either the "other acts" test or the "separate and distinct" test to defeat a claim of prejudicial joinder. Once again the court held in the opinion, but not in the syllabus, that if the state could meet the "simple and distinct" test it need not meet the stricter "other acts" test. Id., 62 Ohio St.3d at 362, 582 N.E.2d at 979. However, as in Lott, I find it significant that evidence of the "other acts" would properly have been admitted in each case had they been separately tried.

I now come to the Ohio Supreme Court's decision in Schaim,supra, decided about eleven months after Mills. Schaim involved three separate sets of charges of various sex offenses involving three different victims, all tried together. Here the court wrote, again in the opinion and not in the syllabus:

"We begin with an analysis of whether the defendant was prejudiced by the joinder of the three different offenses at trial. When a defendant claims that he was prejudiced by the joinder of multiple offenses, a court must determine (1) whether evidence of other crimes would be admissible even if the counts were severed, and (2) if not, whether the evidence of each crime is simple and distinct." (Emphasis added.) Id.,65 Ohio St.3d at 59, 600 N.E.2d at 668.

This case appears to reverse the order and importance of the two tests. More important to me, in Schaim, unlike Lott andMills, the evidence of the "other acts" would not have been admissible if the cases had been separately tried.

Despite the fact that in Schaim, as in Lott and Mills, the court stated that as long as the state can meet the "simple and distinct" test, it does not matter whether the state can meet the stricter "other acts" test, in my opinion it is clear, from a reading of the entire decision in Schaim, that the court placed far more emphasis on the "other acts" part of the test than on the "simple and distinct" part of the test.

In Schaim, supra, 65 Ohio St.3d at 59, 600 N.E.2d at 668, the court noted specifically that "[t]he admissibility of other acts evidence is carefully limited because of the substantial danger that the jury will convict the defendant solely because it assumes that the defendant has a propensity to commit criminal acts, or deserves punishment regardless of whether he or she committed the crime charged in the indictment. See State v.Curry (1975), 43 Ohio St.2d 66, 68, 72 O.O.2d 37, 38,330 N.E.2d 720, 723. This danger is particularly high when the other acts are very similar to the charged offense, or of an inflammatory nature, as is certainly true in this case. The legislature has recognized the problems raised by the admission of other acts evidence in prosecutions for sexual offenses, and has carefully limited the circumstances in which evidence of the defendant's other sexual activity is admissible." See, also, R.C. 2907.02(D); R.C. 2907.05(D); R.C. 2945.59.

The court in Schaim discussed at length why evidence of the other crimes would not have been admissible if the cases had been severed for trial. The court then went on to state:

"It is evident that the joinder of these counts allowed the jury to consider significant amounts of other acts evidence that would not have been admissible if the charges had been severed for trial. Instead of separate trials that carefully limited the admissibility of other acts evidence, the defendant was subjected to one trial where the jury was permitted to simultaneously consider the evidence of three different offenses. This was particularly prejudicial concerning the defendant's remaining conviction for gross sexual imposition because the evidence supporting this conviction is at best thin." Id. at 62, 600 N.E.2d at 670.

Then the court in Schaim stated in abbreviated and conclusionary fashion that since the testimony of the two daughters was similar, the crimes were not simple and distinct. Therefore, the court held that the defendant had demonstrated that he was prejudiced by the consolidated trial.

Using the same type of analysis in the case before this court, I would agree with the majority that evidence of the other acts would not have been admissible if the indictments against Decker had been tried separately.

However, applying the "simple and distinct" test exactly as the court did in Schaim, I find that that test was not met in the instant case because of the circumvention of the "other acts" testimony, the highly inflammatory nature of the offenses, and the bootstrapping effect of the strong evidence in the girls' case on the very weak, uncorroborated testimony in the son's case.

Using this approach compels reversal of this case in my opinion. However, I think that the better analysis, one which I believe is wholly justified when reading Schaim in its entirety, is to hold that if the "other acts" test cannot be met, it is an abuse of discretion to allow joinder of separate claims. Since the big picture is "will the defendant be prejudiced by joinder for trial of separate claims," in my opinion allowing the jury to hear evidence of other acts in a consolidated trial, which they would not be allowed to hear in separate trials because ofthe inherent prejudice of such evidence must be viewed as prejudicial to the defendant and joinder disallowed. It is my hope that in the event the Supreme Court has an opportunity to revisit this issue it will review Schaim in its entire context, and hold that if the "other acts" test cannot be met, the "simple and distinct" test need not be reached and joinder disallowed.

Finally, I note that in his second assignment of error in each of his appeals, Decker contends that his convictions were against the manifest weight of the evidence. Because I would hold that the trial court erred in refusing to sever the indictments for separate trials, I would not reach this issue. See App.R. 12(A)(1)(c).

¹ The Supreme Court actually uses the phrases "other acts" test and "joinder" test. See State v. Lott (1990), 51 Ohio St.3d 160, 555 N.E.2d 293. However, I prefer the phrase "simple and distinct" test rather than "joinder" test because it more accurately describes the test to be applied, and because the ultimate issue to be resolved is whether "joinder" was appropriate.