State v. Valentine , 2019 Ohio 2243 ( 2019 )

[Cite as State v Valentine, 2019-Ohio-2243.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 18 CA 27
ROBERT B. VALENTINE, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 17 CR 706
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 5, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE WITT ANDREW T. SANDERSON
PROSECUTING ATTORNEY BURKETT & SANDERSON, INC.
CHRISTOPHER A. REAMER 738 East Main Street
ASSISTANT PROSECUTOR Lancaster, Ohio 43130
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 18 CA 27 2
Wise, J.
{¶1} Appellant Robert B. Valentine, Jr. appeals the May 8, 2018, decision of the
Fairfield County Court of Common Pleas denying his motion to sever the counts of the
indictment related to the individual victims.
{¶2} Appellee is State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On October 24, 2017, the city of Lancaster police department obtained a
single count rape complaint and arrest warrant for Robert Brandon Valentine, Jr. of 814
Roosevelt Avenue, Lancaster, Ohio. On the same date, Valentine was taken into custody,
and a search warrant was executed at the Roosevelt Avenue residence in an effort to
seize a computer believed to contain pornographic materials/data, and several sexual
toys. (T. at 645, 652).
{¶4} On November 2, 2017, the Fairfield County grand jury returned an eleven
(11) count indictment charging Valentine with five (5) counts of Rape, in violation of R.C.
§2907.02(A)(1)(b), felonies of the first degree; two (2) counts of Kidnapping, in violation
of R.C. §2905.01(A)(4), felonies of the first degree; and four (4) counts of Gross Sexual
Imposition, in violation of R.C. §2907.05(A)(4), felonies of the third degree. The indictment
alleged conduct against two minor victims, B.R. and K.L.
{¶5} On February 28, 2018, Valentine filed a motion to sever the counts of the
indictment related to the individual victims.
{¶6} On March 1, 2018, the Fairfield County Grand Jury issued a superseding
indictment that added four (4) counts of Disseminating Matters Harmful to Juveniles in
violation of R.C. §2907.31(A)(1)&(F), all felonies of the fourth degree. The superseding
Fairfield County, Case No. 18 CA 27 3
indictment was also reorganized such that counts one through nine involved victim, B.R.
and ten through fifteen involved victim, K.L.
{¶7} On April 27, 2018, the State filed a memorandum contra to Valentine's
motion to sever, and on April 30, 2018, the trial court held an oral hearing on the motion.
At the oral hearing, counsel for Valentine stood on his motion, asserting that the
anticipated evidence was not admissible under Evid.R. 404(B) and was not simple and
distinct. (Motion to Sever T. at 3-4).
{¶8} The State asserted that the evidence would be presented in a simple and
direct manner; that each victim would testify to certain behaviors by Valentine that
demonstrated a plan, motive, or intent to engage in sexual abuse against minors, which
could be admissible under Evid.R R. 404(B); and that the separate victims would each
likely testify as eyewitnesses to observations that Valentine had sexually abused the other
victim even if the counts were severed. (Motion to Sever T. at 5-10).
{¶9} On May 8, 2018, the trial court denied Valentine's motion to sever finding
he had not met his affirmative burden to demonstrate any factual basis as how joinder of
the offenses of the two victims specifically prejudiced him or how his trial strategy would
change if the counts related to B.R. and K.L. were tried separately. The trial court further
found that the anticipated evidence related to the separate victims B.R. and K.L. appeared
capable of presentation in a simple and direct manner and the State had set forth an
arguable basis that "other acts" evidence under Evid.R. 404(B) was likely to be present
in the case.
{¶10} On May 16 through May 18, 2018, the matter proceeded to jury trial.
{¶11} At trial, the jury was presented with the following testimony and evidence.
Fairfield County, Case No. 18 CA 27 4
{¶12} In late January, 2014, Victoria Wolfinger allowed her longtime friend Robert
Brandon Valentine, Jr. to move in with her at 718 E. Wheeling Street, Lancaster, Ohio.
(T. at 323, 327).
{¶13} In April, 2014, Wolfinger and Valentine moved to a home on 814 North
Roosevelt, Lancaster, Ohio, which Valentine owned, until Wolfinger moved out on
October 7, 2017. (T. at 325, 326, 339). Wolfinger worked a fulltime job and several part
time jobs, which frequently kept her out of the house on a daily basis. (T. at 316).
{¶14} Wolfinger was close with two nephews, B.R. and K.L., who both frequently
spent time with her and Valentine. (T. at 321). During the time when Wolfinger was at
work and away from the house, Valentine was the primary caregiver for B.R. and K.L.
Both boys frequently slept with Valentine because Wolfinger got up early for work. (T. at
333, 334).
{¶15} Between May and June of 2016, K.L. had moved in to 814 North Roosevelt
with Wolfinger and Valentine to attend elementary school to help his mother concentrate
on her college studies in Indiana. (T. at 291-293). Around September/October 2016, K.L.'s
mother, Brittany Wood, noticed he was acting out. (T. at 289, 298). During the week of
the Fairfield County Fair in October 2016, K.L. called his mother upset and demanding to
come home to his mother in Indiana. (T. at 299-301).
{¶16} Wolfinger had arrived home one evening from work the week of the fair in
October, 2016, to find K.L. had been misbehaving according to Valentine and was
refusing to come inside to do his homework. (T. at 377). After Wolfinger yelled at K.L. to
get in the house, K.L. yelled "Brandon's gay" and "He sucked my dick." (T. at 378).
Fairfield County, Case No. 18 CA 27 5
{¶17} The following weekend Wolfinger returned K.L. to his mother in Indiana. (T.
at 382). Wolfinger stated that because she wanted badly to believe Valentine had not
abused K.L., did not report the incident, and did not leave 814 Roosevelt until October 7.
2017. (T. at 383-384).
{¶18} On February 8, 2017, Marcie Wesselhoft, an attendance officer and
visitation monitor with Fairfield County Child Protective Services, responded to a case of
alleged physical abuse involving B.R. in Bremen, Ohio. (T. at 67, 74). Wesselhoft
contacted B.R. and his custodian and biological grandmother, Margie Stevens. (T. at 75).
As Wesselhoft was speaking alone with B.R. and attempting to build a rapport with B.R.,
she accidentally referred to a counselor B.R. was seeing as Brandon. B.R. quickly
corrected Wesselhoft noting his counselor was Clayton and Brandon is the one that did
bad things to him. (T. at 77, 78). B.R. described the "bad things" Uncle Brandon did as
touching B.R.'s penis and making B.R. touch his [Uncle Brandon's] penis as well. (T. at
79). Uncle Brandon was frequently called, "Big Brandon" by B.R. (T. at 146). During this
visit with Stevens, Wesselhoft also learned that the family had concerns of sexual abuse
against K.L. as well. (T. at 83).
{¶19} Wesselhoft made a referral of the allegations of sexual abuse to law
enforcement and, consistent with her agency policy, went to inform the alleged
perpetrator, Valentine, of the allegations on March 16, 2017. (T. at 81). Wesselhoft was
accompanied by Detective Dan Thomas of the Lancaster Police Department. (T. at 80-
82). Det. Thomas recorded the conversation, however, Valentine was unaware of the
recording. (T. at 636-639). Det. Thomas had initially asked Valentine about discussing
K.L.'s allegations in October, 2016, and quickly thereafter Wesselhoft informed Valentine
Fairfield County, Case No. 18 CA 27 6
she needed to notify him that he was the alleged perpetrator in two cases of alleged
sexual abuse against both K.L. and B.R. (T. at 88, 91). Valentine responded as if he was
confused at hearing the second name, B.R. and subsequently uttered, "We were never
alone." (T. at 91).
{¶20} During the time period of this interaction, Valentine had let Wesselhoft and
Thomas inside 814 Roosevelt, and Det. Thomas was able to observe a computer he later
seized pursuant to search warrant on October 24, 2017. (T. at 645, 646).
{¶21} On October 24, 2017, Det. Thomas assisted with the preparation of a
search warrant for Valentine's residence at 814 Roosevelt Avenue as additional
information was learned that Valentine possibly used/possessed sexual toys described
as a purple dildo and a tan dildo in committing acts of sexual abuse against the victims.
In addition, the search warrant sought a computer described by the children as having
been used by Valentine to display pornographic images to them. (T. at 645). Lancaster
police had also obtained a complaint/warrant for arrest of Valentine on that same date.
(See Complaint filed 10/24/17.)
{¶22} During execution of the arrest and search warrants, Det. Thomas had the
home photographed prior to moving any objects. Det. Thomas seized three (3) computers
but only an Asus computer located in the dining room area of the home appeared to be
actively used. (T. at 649). Det. Thomas also obtained photographs from a nightstand
drawer in Valentine's bedroom which depicted several personal lubricants labeled
Astroglide and Lubrigel. (T. at 656).
{¶23} Det. Thomas also observed gaming systems inside Valentine's bedroom
and in the downstairs living area. (T. at 659). Det. Thomas had occasion while executing
Fairfield County, Case No. 18 CA 27 7
the search warrant to view the backyard area of the home from the kitchen sliding door;
he noted no covering over the sliding door. (T. at 661). Valentine himself stated he was
living alone at 814 Roosevelt at the time of his arrest on October 24, 2017. (T. at 664).
{¶24} The jurors also heard from both B.R. and K.L. B.R. was twelve (12) years
of age at the time of trial and related that he previously lived with his grandmother Margie
[Stevens]. (T. at 122-124). B.R. confirmed his Aunt Vickie [Wolfinger] lived in Lancaster
with a roommate that B.R. frequently referred to as "Big Brandon." (T. 126-129). B.R.
testified that his private parts included his "butt" and "the part he pees out of." (T. at 134).
B.R. testified that frequently at both Aunt Vickie's apartment and at her home, "Big
Brandon" would touch B.R.'s penis and his butt. B.R. testified that Valentine performed
fellatio on B.R., fondled his penis, and that Valentine inserted dildos into B.R.'s anus. (T.
at 134-138). B.R. further described that when Valentine penetrated B.R. with the tan dildo
he would use "clear stuff' on the inside and outside of the tan dildo and it would come out.
(T. at 139-140). B.R. testified that most of the sexual abuse occurred in Valentine's
bedroom but that it also occurred in the living room. (T. at 142). B.R. testified the same
types of sexual abuse occurred in Aunt Vickie's apartment [Wheeling Street]. (T. at 135).
B.R. also explained that Valentine often lured him to Valentine's upstairs bedroom with
the suggestion of playing the game system inside the bedroom. (T. at 143). Once upstairs,
Valentine would shut the bedroom room and even hold B.R. down if he tried to get away.
(T. at 145-146). B.R. also reported that he had observed Valentine sexually abusing his
cousin, K.L. in the living room and bedroom areas of 814 Roosevelt. (T. at 145-146). B.R.
described Valentine performing fellatio on K.L., fondling K.L.'s penis and penetrating K.L.
with the purple and tan things (T. at 146). B.R. also reported that Valentine would
Fairfield County, Case No. 18 CA 27 8
frequently call him over to the computer seized by Det. Thomas and display to him naked
adults touching each other's private parts. (T. at 149). B.R. could not use the computer
without the assistance of Valentine or Aunt Vickie. (T. at 182).
{¶25} During cross examination defense sought to point out differences in the two
victims’ reports of witnessing sexual abuse, the ability of B.R. to have observed K.L. being
sexually abused while mowing in the back yard, and to suggest that B.R. may have been
responsible for the pornographic content of the computer seized. On cross examination,
B.R. described the purple and tan dildos as being kept in the nightstand drawer in
Valentine's room. (T. at 169-170).
{¶26} Defense also elicited testimony that K.L. was frequently in the same room
while Valentine was sexually abusing B.R. (T. at 176-178). Defense also questioned
B.R.'s ability to have observed Valentine's sexual abuse of K.L. from the backyard area
of the home. (T. at 178).
{¶27} At the request of Valentine, B.R.’s prior child advocacy center video was
played for the jury and B.R. was then questioned about facts that he had not mentioned
in the video, but had reported during testimony. (T. at 194-205).
{¶28} The jurors also heard from ten (10) year old K.L. (T. 208). K.L. is the cousin
of B.R. and visited/lived with Wolfinger during various times. (T. at 210). K.L. reported
that he also knew and stayed with Wolfinger's roommate Valentine or as K.L. called him,
"Big B or Big Brandon." (T. at 212). K.L. played sports with Valentine, they worked in the
garden together and play video games. (T. at 214-215). K.L. described a boy's private
parts as being the "butt" and the "wiener." (T. at 216, 217). K.L. testified that a few months
after he started to stay there, "Big B" started to touch him inappropriately. (T. at 219). K.L.
Fairfield County, Case No. 18 CA 27 9
described that Valentine would fondle K.L.'s penis with his hand and perform fellatio on
K.L. (T. at 220-221). K.L. related that the sexual abuse usually happened in Valentine's
bedroom. (T. at 220). K.L. described the day the sexual abuse stopped, explaining that
Valentine had told K.L. to shut off a video game and come upstairs with him. (T. at 221).
K.L. refused and Valentine shut off the game and pulled K.L. upstairs. (T. at 222). As
Valentine began fondling K.L.'s penis he stopped to go downstairs and obtain a mouth
spray that he frequently used when his mouth got dry; K.L. fled outside to wait until
Wolfinger got home. (T. at 223-224). K.L. also reported that Valentine threatened suicide
if K.L. ever told others of the abuse. (T. at 224).
{¶29} K.L. further recalled an event in which B.R. had stayed the night and K.L.
worried that Valentine had sexually abused B.R. K.L. stated that he was playing a video
game downstairs and Valentine and B.R. where upstairs in Valentine's bedroom with the
door closed. (T. at 229). K.L. also related that on approximately four occasions Valentine
displayed to K.L. on the downstairs computer nude males engaged in sexual activity. (T.
at 230-232).
{¶30} In addition to the testimony of the victims regarding sexual abuse the jury
also heard testimony that Valentine was the primary user of and only individual likely to
have control over a password-protected user file labeled, "Brandon" that was found on
the seized computer. Both Wood and Wolfinger provided testimony as to having received
emails from Valentine as early as 2012 from an email address labeled,
bvalen2474@yahoo.com. (T. at 303, 347). Wolfinger confirmed that the file labeled
"Brandon" was the only password-protected user file on the computer, and that the three
separate designated user accounts immediately appeared on the home screen when
Fairfield County, Case No. 18 CA 27 10
someone turned on the Asus computer. (T. at 344). Wolfinger stated that the user folder
which was labeled in Valentine’s name was created by him, and that she has never known
his password. (T. at 344-345).
{¶31} Wolfinger also described and identified a series of photographs of victim
K.L laying on Valentine’s bed, which were found inside the computer folder labeled
Brandon. (T. at 375, 376). Wolfinger had never seen the photographs before. (T. at 376).
{¶32} The jurors also heard from Dylan Waggy, a computer forensic analyst with
the Bureau of Criminal Identification and Investigation. (T. at 485,486). Waggy had
forensically analyzed an Asus computer seized and submitted from 814 Roosevelt by the
Lancaster Police Department. (T. at 496). Waggy noted the computer's original account
was set up in 2012 and labeled, "Brandon." (T. at 496). Waggy noted that of the three
user accounts on the computer only the “Brandon” account was password protected. (T.
at 496). Waggy noted the last usage/access to the Asus computer was on 10/24/2017
under the Brandon folder at 12:43 a.m.; a date Valentine confirmed he was living alone
to Det. Thomas. Waggy also noted that a series of child images, those previously
identified as K.L. by Wolfinger, were created/placed on the Brandon account on October
10, 2017, three days after Wolfinger had moved out of the residence. (T. at 499, 500).
Waggy noted that his forensic analysis revealed the Chrome autofill information related
to the “Brandon” user account was, Robert B. Valentine, bvalen2474@yahoo.ocom, 814
North Roosevelt. (T. at 511). Under the “Brandon” folder Waggy found evidence of
ordinary everyday computer uses such as pizza orders, banking and the use of the Skype
application. (T. at 515, 517). Waggy also detailed that his search had revealed numerous
Google searches had been performed on the name "Robert Valentine" and further that
Fairfield County, Case No. 18 CA 27 11
numerous Google search and web URL links suggested the computer was frequently
used to access pornography. (T. at 503-510).
{¶33} Waggy explained that through various means pornography could be
displayed through internet browsing, peer-to-peer sharing, DVDs or flash drives and
without any actual image artifact being retained on a computer. (T. at 509, 510). Waggy
further related that in the “Brandon” folder he found evidence that a Staples flash drive
and peer to peer networks had been accessed to display pornography. (T. at 587, 588).
{¶34} The jurors also heard the testimony of Carrie Schnirring, MA, a
psychological assistant with North East Ohio Behavioral Health. (T. at 595). Schnirring
provided her qualifications and work experience in the field of child abuse trauma and
conducting assessments of that trauma. (T. at 596-598). Schnirring provided expert
testimony regarding her experience, current research in, and educational background
related to the concepts of the process of disclosure, grooming behaviors of sexual
offenders, and how a young child's memory works. (T. at 603-605; 607-612; 616-621).
{¶35} The state's final witness was Detective Thomas. In addition to detailing the
preliminary investigative steps he took, Det. Thomas provided testimony regarding
several intercepted jail phone calls between Valentine and a female that occurred around
May 15th and 16th, 2018. (T. at 679). During the calls, Valentine, despite his earlier denial
that he was never alone with at least one of the victims, acknowledged that at least one
of the victims slept in his bedroom from time to time. (T. at 687). In a second call, Valentine
spoke with the same female, exhibiting surprise that a folder labeled "Brandon" was found
on his computer and denied knowing about the folder. (T. at 688). Valentine later assured
Fairfield County, Case No. 18 CA 27 12
the female that no porn would show up on the computer as he had informed her from day
one. (T. at 693).
{¶36} The State rested its case and offered 21 exhibits into evidence. (T. at 725-
726). Valentine made a Crim.R. 29 motion to dismiss which the trial court overruled. (T.
at 715). Valentine did not renew his motion to sever the counts related to B.R. or K.L.
either at the close of the State's case or at the close of his case. Valentine rested his
cases without calling any witnesses.
{¶37} Following deliberations, the jury found Valentine guilty on all counts of the
indictment.
{¶38} On June 6, 2018, the matter proceeded to sentencing and the court
imposed an aggregate maximum state prison term of two consecutive sentences of life
without parole. (Judgment Entry of Sentence, June 8, 2018).
{¶39} Appellant now appeals to this Court, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶40} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING
THE DEFENDANT-APPELLANT’S MOTION TO GRANT HIM RELIEF FROM
PREJUDICIAL JOINDER OF COUNTS OF THE INDICTMENT.”
I.
{¶41} In his sole assignment of error, Appellant argues the trial court erred in
denying his motion to sever the counts in the indictment by the individual victims. We
disagree.
{¶42} Appellant argues that the trial court erred when it denied his motion to sever
the counts in the indictment into two separate trials, one for each victim. In his motion to
Fairfield County, Case No. 18 CA 27 13
sever the charges, Appellant argued (1) the offenses related to the two separate victims
were not related temporarily and do not involve the same alleged incident; (2) joinder of
the offenses would unfairly prejudice him, arguing that none of the evidence or allegations
related to the offenses with regard to one victim would be admissible against him in the
prosecution of the offenses regarding the second victim; (3) evidence relating to the
allegations specified regarding one victim is irrelevant to the prosecution of the offenses
relating to the other victim; and (4) if joinder was permitted, the jurors would be tainted
with respect to the independent allegations set forth in the various offenses.
{¶43} In general, the law favors joining multiple offenses in a single trial if the
offenses charged “are of the same or similar character.” State v. Lott, 51 Ohio St.3d 160,
163, 555 N.E.2d 293 (1990), citing State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288(1981). Crim.R. 8(A), regarding joining offenses, provides that two or more offenses may
be charged in the same indictment if they “are of the same or similar character, or are
based on the same act or transaction, or are based on two or more acts or transactions
connected together or constituting parts of a common scheme or plan, or are part of a
course of criminal conduct.” Crim.R. 13 also permits a court to “order two or more
indictments * * * to be tried together, if the offenses * * * could have been joined in a single
indictment[.]” Consequently, joinder is appropriate where the evidence is interlocking and
the jury is capable of segregating the proof required for each offense. State v. Czajka,
101 Ohio App.3d 564, 577-578, 656 N.E.2d 9 (8th Dist.1995).
{¶44} Nonetheless, if it appears that a criminal defendant would be prejudiced by
such joinder, then the trial court is required to order separate trials. Crim.R. 14. “It is the
defendant, however, who bears the burden of demonstrating prejudice and that the trial
Fairfield County, Case No. 18 CA 27 14
court abused its discretion in denying severance.” State v. Saade, 8th Dist. Cuyahoga
Nos. 80705 and Cuyahoga Nos. 80706, 2002-Ohio-5564, ¶ 12, citing State v. Coley, 93
Ohio St.3d 253, 754 N.E.2d 1129 (2001), and State v. LaMar, 95 Ohio St.3d 181, 2002-
Ohio-2128, 767 N.E.2d 166.
{¶45} The state may negate claims of prejudicial joinder in two ways. Lott at 163,
555 N.E.2d 293. Under the first method, the “other acts” test, the state may argue that it
could have introduced evidence of the other crimes under the “other acts” portion of
Evid.R. 404(B), if the other offenses had been severed for trial. Id., citing Bradley v. United
States, 433 F.2d 1113 (D.C.Cir.1969).
{¶46} Evid.R. 404(B) recognizes that evidence of other crimes may be admissible
for purposes such as “proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” If one offense could be introduced under
Evid.R. 404(B) at the trial of the other offenses, had the offenses been tried separately,
“any ‘prejudice that might result from the jury's hearing the evidence of the other crime in
a joint trial would be no different from that possible in separate trials,’ and a court need
not inquire further.” State v. Schaim, 65 Ohio St.3d 51, 58, 600 N.E.2d 661 (1992), quoting
Drew v. United States, 331 F.2d 85 (D.C.Cir.1964).
{¶47} “Under the second method, the ‘joinder’ test, the state is merely required
to show that evidence of each crime joined at trial is simple and direct.” Lott, 51 Ohio
St.3d at 163, 555 N.E.2d 293, citing State v. Roberts, 62 Ohio St.2d 170, 405 N.E.2d 247(1980); Torres, 66 Ohio St.2d at 344, 421 N.E.2d 1288. The Ohio Supreme Court made
it clear 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
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Evid.R. 404(B).” Id., citing Roberts; Torres; and United States v. Catena, 500 F.2d 1319(3d Cir.1974).
{¶48} Evidence is “simple and direct” if (1) the jury is capable of readily separating
the proof required for each offense, (2) the evidence is unlikely to confuse jurors, (3) the
evidence is straightforward, and (4) there is little danger that the jury would “improperly
consider testimony on one offense as corroborative of the other.” State v. Wright, 4th Dist.
Jackson No. 16CA3, 2017-Ohio-8702, ¶ 52, citing State v. Freeland, 4th Dist. Ross No.
12CA3352, 2015-Ohio-3410.
{¶49} Courts have held that evidence of multiple offenses is “simple and direct”
where, for example, the offenses involved different victims, different incidents or factual
scenarios, and different witnesses. See State v. Dantzler, 10th Dist. Franklin Nos. 14AP-
907 and Franklin Nos. 14AP-908, 2015-Ohio-3641, ¶ 23 (“The evidence relating to each
incident was simple and direct: the incidents occurred separately, involved different
victims, and different eyewitnesses independently identified defendant as the shooter at
each incident. As such, there was no concern that the jury would confuse the evidence,
and defendant cannot establish that he was prejudiced by the joinder.”); State v. Lewis,
6th Dist. Lucas Nos. L-09-1224 and Lucas Nos. L-09-1225, 2010-Ohio-4202, ¶ 33 (“Ohio
appellate courts routinely find no prejudicial joinder where the evidence is presented in
an orderly fashion as to the separate offenses or victims without significant overlap or
conflation of proof.”).
{¶50} If either the “other acts” test or the “simple and direct” test is met, a
defendant cannot establish prejudice from the joinder.
Fairfield County, Case No. 18 CA 27 16
{¶51} An appellate court normally reviews a trial court's decision on joinder for an
abuse of discretion. State v. Banks, 2015-Ohio-5413, 56 N.E.3d 289, ¶ 64 (8th Dist.),
citing State v. Grimes, 8th Dist. Cuyahoga No. 94827, 2011-Ohio-4406. However, where
a defendant fails to renew a Crim.R. 14 motion for severance either at the close of the
state's case or the close of all evidence, he or she “ ‘waives all but plain error on appeal.’
” Lyndhurst v. Smith, 8th Dist. Cuyahoga No. 101019, 2015-Ohio-2512, ¶ 32, quoting
State v. Howard, 3d Dist. Marion No. 9-10-50, 2011-Ohio-3524.
{¶52} Here, Appellant failed to renew his motion to sever at the end of the state's
case, which was also at the close of all of the evidence.
{¶53} To demonstrate plain error, Appellant must show “an error, i.e., a deviation
from a legal rule” that was “an ‘obvious’ defect in the trial proceedings,” and that the error
“affected a substantial right,” i.e., a “reasonable probability” that the error resulted in
prejudice, affecting the outcome of the trial. State v. Rogers, 143 Ohio St.3d 385, 2015-
Ohio-2459, 38 N.E.3d 860, ¶ 22. “We recognize plain error ‘with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.’ ”
Lyndhurst at ¶ 32, quoting State v. Landrum, 53 Ohio St.3d 107, 559 N.E.2d 710 (1990).
{¶54} Upon review, we find no error in this case, plain or otherwise. The offenses
relating to the two victims were charged together under Crim.R. 8(A) because they were
of the “same or similar character” and part of “a common scheme or plan” occurring over
a relatively short period of time. As we stated, Ohio law favors joining multiple offenses in
a single trial if the requirements of Crim.R. 8(A) are satisfied. State v. Williams, 73 Ohio
St.3d 153, 158, 652 N.E.2d 721 (1995); State v. Ferrell, 8th Dist. Cuyahoga No. 100659,
2014-Ohio-4377, ¶ 38.
Fairfield County, Case No. 18 CA 27 17
{¶55} While the state argues that the cases could be tried together under either
test, there is no reason for us to look to the more stringent “other acts” test because the
evidence here was simple and straightforward. Appellant committed these sexual abuse
offenses at the same locations in Fairfield County, Ohio between the dates of January 1,
2013 through October 16, 2016, for one victim and May 1, 2016 through October 1, 2016,
for the other victim. Each victim testified in detail as to the sexual abuse which occurred
at Appellant’s home. Corroboration in the form of disclosure to other individuals was also
presented. Both victims offered testimony as to observations of when/how Appellant likely
committed sexual abuse against the other victim. This testimony would have been
admissible even if severance of the counts had been granted.
{¶56} There was no complicated methodology to Appellant's crimes. Also, the
prosecutor explained to the jury during closing arguments how the counts applied to each
victim. Accordingly, we find that Appellant was not prejudiced in any way by the trial
court's denial of his motion to sever the offenses.
{¶57} Moreover, we presume that the jury followed the court's instructions. State
v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 192, citing State
v. Loza, 71 Ohio St.3d 61, 641 N.E.2d 1082 (1994). The trial court in this case instructed
the jury as follows:
The charges set forth in each count in the Indictment constitute a
separate and distinct matter. You must consider each count and the
evidence applicable to each count separately and you must state your
finding as to each count uninfluenced by your verdict as to any other count.
Fairfield County, Case No. 18 CA 27 18
The Defendant may be found guilty or not guilty of any one or all of the
offenses charged.
{¶58} Further, a trier of fact is also considered “capable of segregating the proof
on multiple charges when the evidence as to each of the charges is uncomplicated.” State
v. Lunder, 8th Dist. Cuyahoga No. 101223, 2014-Ohio-5341, ¶ 33, citing Torres, 66 Ohio
St.2d 340, 421 N.E.2d 1288. There is nothing in the record before us to suggest that the
jury confused the evidence as to the various counts or was improperly “influenced by the
cumulative effect of the joinder.” Banks, 2015-Ohio-5413, 56 N.E.3d 289, at ¶ 66.
{¶59} For the foregoing reasons, the judgment of the Court of Common Pleas of
Fairfield County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/d 0515