State v. Chasteen , 2024 Ohio 909 ( 2024 )

[Cite as State v. Chasteen, 2024-Ohio-909.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230174
TRIAL NO. 22CRB-8342
Plaintiff-Appellee, :
vs. : O P I N I O N.
BRENT CHASTEEN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 13, 2024
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Amber H. Daniel, Assistant Prosecuting Attorney, for Plaintiff-
Appellee,
Palmer Legal Defense and Stephen E. Palmer, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Brent Chasteen appeals his conviction for one
count of sexual imposition following a jury trial. Chasteen argues that the trial court
erred by failing to instruct the jury on the meaning of “purposely” and that his trial
counsel was ineffective for failing to request such an instruction. Chasteen also argues
that the trial court erred in allowing the two counts of sexual imposition alleged
against him to be consolidated into a single trial because the two counts pertained to
separate instances of alleged conduct against two distinct victims. For the following
reasons, we affirm the judgment of the trial court.
I. Factual and Procedural History
{¶2} At the time of the conduct at issue, Chasteen worked as a licensed
massage therapist at Real Wellness in Cincinnati.
{¶3} On March 1, 2022, E.B. visited Real Wellness for a massage scheduled
with Chasteen. The appointment was at the end of the day, and no other employees
appeared to be on site. The massage started normally. E.B. alleged that, during the
massage, Chasteen asked if she had experienced childhood trauma or abuse. E.B.
stated that she did not want to discuss it. E.B. alleged that throughout the course of
the massage, Chasteen inappropriately touched her buttocks in a “weird” way, with his
skin directly in contact with hers even though she was still wearing underwear. E.B.
testified that Chasteen pushed his hand in between her “butt cheeks,” near her anus.
E.B. further testified that later in the massage, Chasteen brushed against the sides of
her breasts and the outer part of her vagina. Later, according to E.B., Chasteen asked
her if she wanted a “sexual release.” E.B. told him no, but Chasteen went on to say that
he thought it would help and asked about her sex life with her boyfriend. Chasteen
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finished the massage, and then E.B. paid and left.
{¶4} A couple of weeks later, after seeing a post online about another person’s
bad experience with a different massage therapist, E.B. reported the incident with
Chasteen to the state medical board. After the medical board followed up, E.B. was
referred to the local police, who took her complaint against Chasteen.
{¶5} On March 30, 2022, M.V. went to an appointment with Chasteen at Real
Wellness. She had previously had a couple’s massage performed by Chasteen, and she
had seen him alone at a mid-afternoon appointment. When M.V. saw Chasteen on
March 30, the appointment was later in the evening, and no one else was on the
premises. The massage started normally, with M.V. lying on the massage table on her
stomach. About halfway through, Chasteen had M.V. flip over on her back and
continued the massage, as expected. M.V. testified that, while Chasteen was massaging
her leg, he asked her if she wanted a “happy ending.” M.V. told him that she was “not
interested in that at all.” M.V. testified that shortly after that, Chasteen rubbed up her
leg, moved her panties to the side, and began to rub in the center of her vaginal area.
M.V. testified that she felt uncomfortable, but she was too afraid to leave or take any
other action to end the massage. When the massage ended, M.V. paid and left.
{¶6} M.V. testified that after leaving, she phoned two friends to tell them
what happened. She then drove to the Hyde Park police station to report the incident.
While M.V. was at the police station, Chasteen called and apologized for making M.V.
feel uncomfortable. M.V. put the call on speaker for the police at the station to hear.
M.V. produced her telephone records corroborating that she had received a call from
the Real Wellness telephone number that evening.
{¶7} Chasteen was eventually charged with two counts of sexual imposition,
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in violation of R.C. 2907.06(A)(1), each a third-degree misdemeanor. Chasteen was
charged in the case numbered 22CRB-8342 with sexual imposition against M.V. He
was charged in the case numbered 22CRB-8343 with sexual imposition against E.B.
The state moved to have the trials for the two counts joined. Over Chasteen’s objection,
the trial court joined the charges for trial. Following a jury trial, Chasteen was
convicted of one count of sexual imposition against M.V. The jury found Chasteen not
guilty as to E.B.
{¶8} This appeal timely followed.
II. Analysis
{¶9} On appeal, Chasteen raises three assignments of error for our
consideration. First, Chasteen argues that the trial court erred in omitting a jury
instruction on the mens rea element of “purposely.” Second, Chasteen argues that his
trial counsel was ineffective for failing to request such an instruction. Finally, Chasteen
argues that the trial court erred in granting the state’s motion to join the two charges
in a single trial.
Instruction on “Purposely”
{¶10} In his first assignment of error, Chasteen argues that the trial court
erred by not including a jury instruction providing a definition of “purposely,” which
is the correct mens rea element to apply when determining if “sexual contact”
occurred.
{¶11} Chasteen concedes that he did not raise the matter before the trial court,
and therefore he has waived all but plain error. State v. Samueal, 1st Dist. Hamilton
No. C-220641, 2023-Ohio-3322, ¶ 16, citing State v. West, 168 Ohio St.3d 605,
2022-Ohio-1556, 200 N.E.3d 1048, ¶ 22. To show plain error, the “appellant must
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OHIO FIRST DISTRICT COURT OF APPEALS
demonstrate that ‘an error occurred, that the error was obvious, and that there is “a
reasonable probability that the error resulted in prejudice,” meaning that the error
affected the outcome of the trial.’ ” Id. at ¶ 17, quoting State v. Bailey, 171 Ohio St.3d
486, 2022-Ohio-4407, 218 N.E.3d 858, ¶ 8, quoting State v. McAlpin, 169 Ohio St.3d
279, 2022-Ohio-1567, 204 N.E.3d 459, ¶ 66.
{¶12} R.C. 2907.06(A)(1) provides, in relevant part, that: “No person shall
have sexual contact with another, not the spouse of the offender, * * * when * * * [t]he
offender knows that the sexual contact is offensive to the other person * * * or is
reckless in that regard.”
{¶13} Under R.C. 2907.01(B), “ ‘[s]exual contact’ means any touching of an
erogenous zone of another * * * for the purpose of sexually arousing or gratifying
either person.” It is well-established that “[t]he mens rea of purpose applies to the
sexual-contact element of sexual imposition.” Phipps v. State, 2018-Ohio-720, 107
N.E.3d 754, ¶ 19 (1st Dist.), citing State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111,
953 N.E.2d 816, ¶ 23. The critical question in this appeal is whether the trial court
committed plain error by failing to include an instruction on the mens-rea standard of
“purposeful” conduct.
{¶14} The prosecuting attorney, in closing arguments, correctly defined sexual
contact as including a purpose of sexual gratification. The state properly connected the
evidence to the element of purpose:
He also asked [E.B.] if she wanted a sexual release. This is showing that
all of this was sexual contact.
* * *
He also asked [M.V.] if she wanted a happy ending. He did this before
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OHIO FIRST DISTRICT COURT OF APPEALS
rubbing in her vagina, and she told him no, and he did it anyway.
* * *
You also have to know that it was for some kind of gratification. It can
be either person. It is obvious that he was doing this for gratification
when he is asking, do you want a happy ending, do you want a sexual
release. He is doing this for sexual gratification.
{¶15} A substantial theme of defense counsel’s closing argument was that the
jury must acquit Chasteen unless they believe his purpose in the alleged touching was
sexual gratification. Defense counsel argued, for instance:
The specific “touching” in that question has to be for the purpose of
sexual gratification. That means in your deliberations if you are
thinking, well, maybe he, Mr. Chasteen, did touch her breast, or maybe
Mr. Chasteen did touch the vulvas, and if you don’t believe anything
else, that’s still not a guilty, because it has to be for the purpose of sexual
gratification. That’s what makes it this specific crime.
{¶16} The trial court did not instruct the jury on the definition of “purpose” or
“purposefully.” However, the trial court did instruct the jury that, “Sexual contact
means any touching of an erogenous zone of another, including, without limitation,
the thigh, genitals, buttocks, pubic region, or, if the person is a female, a breast[,] for
the purpose of sexually arousing or gratifying either person.”
{¶17} During its deliberations, the jury sent a question to the court: “Is there
a specific definition for sexual gratification? If yes, what is it?” The court informed the
jury:
And the answer to the question is no. There is no specific definition for
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OHIO FIRST DISTRICT COURT OF APPEALS
sexual gratification. The jury instructions you received contain the
specific statutory definitions which are set forth in the jury instructions.
Now, if a term is not defined for you, it is incumbent upon you to rely
upon your individual and collective knowledge and understanding of
the meaning of the term at issue.
{¶18} “As a general rule, a defendant is entitled to have the jury instructed on
all elements that must be proved to establish the crime with which he is charged, and,
where specific intent or culpability is an essential element of the offense, a trial court’s
failure to instruct on that mental element constitutes error.” State v. Wamsley, 117
Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶ 17, quoting State v. Adams, 62
Ohio St.2d 151, 153, 404 N.E.2d 144 (1980). However, “the failure to instruct on each
element of an offense is not necessarily reversible as plain error.” Id. A reviewing court
“must review the instructions as a whole and the entire record to determine whether a
manifest miscarriage of justice has occurred as a result of the error in the instructions.”
Id.{¶19} The Fifth District has held that it is not plain error for the trial court to
omit a definition of “purpose” when instructing the jury on the definition of sexual
contact. State v. Smith, 5th Dist. Stark No. 2008CA00097, 2009-Ohio-1759, ¶ 41.
Other districts have reached the same conclusion. See State v. Edwards, 9th Dist.
Lorain No. 12CA010274, 2013-Ohio-3068, ¶ 24; State v. Ocasio, 9th Dist. Lorain No.
15CA010773, 2016-Ohio-4686, ¶ 13; State v. Jay, 8th Dist. Cuyahoga No. 91827,
2012-Ohio-914, ¶ 11-12; State v. Wrasman, 3d Dist. Auglaize No. 2-20-03,
2020-Ohio-6887, ¶ 47-48.
{¶20} Chasteen argues that in Wrasman, unlike in his case, the trial court
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OHIO FIRST DISTRICT COURT OF APPEALS
provided an instruction that, “[w]here a term has not been defined, [the jury] must
give that term [its] common and ordinary meaning.” See Wrasman at ¶ 48. Multiple
holdings from other districts have found no plain error even without such an
instruction. Nevertheless, the trial court did provide such an instruction in this case.
When the jury inquired about the definition of “sexual gratification,” the court
provided the exact sort of instruction that Chasteen argues is required: “if a term is not
defined for you, it is incumbent upon you to rely upon your individual and collective
knowledge and understanding of the meaning of the term at issue.”
{¶21} While it would have been preferable for the trial court to provide an
instruction on the definition of “purposely,” Chasteen did not request such an
instruction at trial. Taking the instructions to the jury as a whole and the entire record,
a “manifest miscarriage of justice” did not occur as a result of the omission. See
Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, at ¶ 17. Accordingly,
the trial court did not commit plain error in omitting a specific definition of
“purposely” from the jury instructions. Chasteen’s first assignment of error is
overruled.
Ineffective Assistance of Counsel
{¶22} In his second assignment of error, Chasteen argues that his trial counsel
was constitutionally ineffective for failing to object to the jury instructions because of
the omission of a definition of “purposely.”
{¶23} In evaluating a claim of ineffective assistance of counsel, “[c]ounsel’s
performance will not be deemed ineffective unless and until counsel’s performance is
proved to have fallen below an objective standard of reasonable representation and, in
addition, prejudice arises from counsel’s performance.” State v. Bradley, 42 Ohio
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St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus; Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “In reviewing
an ineffective assistance of counsel claim, we consider ‘whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.’ ” State v. Bell, 1st Dist. Hamilton No.
C-210494, 2023-Ohio-1010, ¶ 9, quoting Strickland at 686.
{¶24} Having determined that the failure to give the jury instruction on
“purpose” is not plain error, the failure of trial counsel to request such an instruction
is unlikely to be “conduct [that] so undermine[s] the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.”
See Bell at ¶ 9. Additionally, although trial counsel did not request an instruction,
counsel did argue strongly on the point that Chasteen’s conduct must be for the
purpose of sexual gratification. The state, in turn, presented a compelling argument
showing that Chasteen’s conduct met the purpose requirement.
{¶25} Because Chasteen has not shown that prejudice arose from counsel’s
performance, we overrule his second assignment of error.
Joinder of Charges
{¶26} In his third assignment of error, Chasteen argues that the trial court
erred by granting the state’s motion to join the two charges for trial. Chasteen
preserved this issue for appellate review by opposing the state’s motion, renewing the
objection at the start of trial, renewing the objection again at the close of the state’s
evidence, and finally renewing the objection at the close of evidence.
{¶27} An appellate court reviews joinder and severance issues for an abuse of
discretion. State v. Gideon, 2021-Ohio-1863, 174 N.E.3d 381, ¶ 5 (3d Dist.); State v.
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Jordan, 1st Dist. Hamilton No. C-210603, 2022-Ohio-2566, ¶ 35. An abuse of
discretion occurs when the trial court’s judgment “neither comports with reason, nor
the record.” Jordan at ¶ 35. “An abuse of discretion may be found when the trial court
‘applies the wrong legal standard, misapplies the correct legal standard, or relies on
clearly erroneous findings of fact.’ ” Id., quoting State v. Travis, 11th Dist. Trumbull
Nos. 2018-T-0101 and 2018-T-0102, 2020-Ohio-628, ¶ 65, quoting State v. Figueroa,
2018-Ohio-1453, 110 N.E.3d 612, ¶ 26 (11th Dist.), quoting Thomas v. Cleveland, 176
Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.).
{¶28} Under Crim.R. 13, “[t]he court may order two or more complaints to be
tried together, if the offenses or the defendants could have been joined in a single
complaint.” See Jordan at ¶ 36. However, under Crim.R. 14, “[i]f it appears that a
defendant or the state is prejudiced by a joinder of offenses or of defendants in an
indictment, information, or complaint, or by such joinder for trial together of
indictments, informations or complaints, the court shall order an election or separate
trial of counts * * *.” See Jordan at ¶ 37.
{¶29} Crim.R. 8(A) provides that “two or more offenses may be charged in the
same indictment if the offenses charged are (1) of ‘the same or similar character,’ (2)
‘based on the same act or transaction,’ (3) ‘based on two or more acts or transactions
connected together or constituting parts of a common scheme or plan,’ or (4) ‘part of
a course of criminal conduct.’ ” Jordan at ¶ 36, quoting State v. Allen, 1st Dist.
Hamilton Nos. C-050010 and C-050011, 2006-Ohio-2338, ¶ 18.
{¶30} In reviewing the trial court’s decision to join two complaints, the joinder
is not prejudicial if the court makes either of two determinations. Jordan at ¶ 38. The
“other acts” test negates prejudice from joinder if the state would be permitted under
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Evid.R. 404(B) to introduce evidence of one offense in a separate trial on the other
offense. Id. Alternatively, the “simple and distinct” test negates prejudice if the
evidence of each of the joined offenses is “simple and distinct.”1 Id.The object of the “simple and distinct” test is to prevent the jury from
improperly considering evidence of various crimes as corroborative of
each other. “The very essence of the rule is that the evidence be such
that the jury is unlikely to be confused by it or misuse it.” Generally,
under the simple-and-distinct test, if the evidence of each offense is
direct and uncomplicated, it is presumed that the trier of fact is capable
of segregating the proof and not cumulating evidence of the various
offenses being tried.
State v. Echols, 128 Ohio App.3d 677, 694, 716 N.E.2d 728 (1st Dist.1998); Jordan, 1st
Dist. Hamilton No. C-210603, 2022-Ohio-2566, at ¶ 38.
{¶31} In determining whether evidence of separate offenses is simple and
distinct, courts consider such factors as whether: “(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.’ ”
Gideon, 2021-Ohio-1863, 174 N.E.3d 381, at ¶ 9.
{¶32} In the case at bar, the state argues that the evidence of each charge was
simple and distinct. The alleged offenses were against separate victims and took place
at different times, and each had distinct evidence presented as to Chasteen’s guilt. The
1 As we have previously observed, “[t]he Ohio Supreme Court has used ‘simple and distinct’ and
‘simple and direct’ interchangeably.” See State v. Echols, 128 Ohio App.3d 677, 694, 716 N.E.2d 728(1st Dist.1998).
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OHIO FIRST DISTRICT COURT OF APPEALS
jury could easily differentiate the evidence offered for each offense, based on testimony
from each of the victims, and the evidence of each offense was straightforward. Finally,
the jury did reach different verdicts on the charges, suggesting that it did, in fact,
differentiate between the two charged offenses.
{¶33} In Gideon, the Third District held that the joinder of seven charges of
sexual imposition against a single defendant was not an abuse of discretion where each
instance of the charged conduct occurred separately and with different victims. Gideon
at ¶ 12-13. The Gideon court found that joinder was appropriate under the simple-and-
distinct test because there was no “complicated methodology” to the alleged crimes,
the offenses were committed at the same location within a few months of each other,
and each victim testified independently. Id. at ¶ 13.
{¶34} The state’s evidence in the case at bar is similar: there was no
complicated methodology, the alleged offenses both occurred at Chasteen’s workplace,
and each victim testified independently to what she experienced. Following Gideon,
we hold that the trial court did not abuse its discretion in joining the cases under the
simple-and-distinct test. Because the state has shown that the evidence against
Chasteen is simple and distinct, we need not consider whether the evidence would be
admissible under the other-acts test. See Gideon, 2021-Ohio-1863, 174 N.E.3d 381, at
¶ 15. Accordingly, we overrule Chasteen’s third assignment of error.
III. Conclusion
{¶35} Having overruled each of Chasteen’s assignments of error, we affirm the
judgment of the trial court.
Judgment affirmed.
ZAYAS, P.J., and WINKLER, J., concur.
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Please note:
The court has recorded its entry on the date of the release of this opinion.
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