State v. Goldblum , 2014 Ohio 5068 ( 2014 )

[Cite as State v. Goldblum, 2014-Ohio-5068.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25851
Plaintiff-Appellee :
: Trial Court Case No. 2011-CR-4046
v. :
:
KEITH D. GOLDBLUM : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 14th day of November, 2014.
...........
MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, and KIRSTEN A.
BRANDT, Atty. Reg. #0070162, Montgomery County Prosecutor’s Office, Appellate
Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee
LORIN J. ZANER, Atty. Reg. #0008195, 241 North Superior Street, Suite 200, Toledo, Ohio
43604
Attorney for Defendant-Appellant
.............
2
FAIN, J.
{¶ 1} Defendant-appellant Keith D. Goldblum appeals from his conviction and
sentence for one count of Attempt to Commit Voyeurism, two counts of Voyeurism, eight
counts of Rape (under 13), and two counts of Unlawful Sexual Conduct with a Minor.
Goldblum contends that there was insufficient evidence to convict him on the Voyeurism
charges and that all of his convictions are against the manifest weight of the evidence. He
further contends that the trial court erred in overruling his motion to sever. Goldblum also
contends that he was denied due process and a fair trial when the trial court used an improper
definition of “leading question” and when the prosecutor engaged in misconduct during her
closing statement at trial. Finally, Goldblum contends that the trial court failed to make the
necessary findings under R.C. 2929.14(C) for the imposition of consecutive sentences.
{¶ 2} We conclude that Goldblum’s assignments of error are without merit.
Accordingly, the judgment of the trial court is Affirmed. Because the trial court’s judgment
entry does not reflect the statutory findings it made for consecutive sentences, this cause is
Remanded for a nunc pro tunc order amending the judgment entry to include the tral court’s
consecutive sentence findings, in accordance with State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659.
I. Goldblum Molested Several Children Over Almost a Decade
{¶ 3} Over the course of almost a decade, Keith Goldblum molested his niece, N.D.,
and some friends of his daughter, L.G., during sleepovers and slumber parties held at his
3
home. All of the victims described a similar pattern: Goldblum came into the room while the
girls were sleeping, lifted the blankets off the girls, pulled down their pajama bottoms and
underwear, and inserted either his fingers or an object into their vaginas or gazed at their
exposed pubic area.
{¶ 4} Goldblum began molesting his niece, N.D., when she was five years old. He
would come into the room where she was sleeping with L.G., pull off her covers and clothing,
and then touch her and insert his fingers into her vagina. She would pretend to wake up or turn
over, and he would eventually stop and leave the room. As she got older, she would try different
things to prevent the molestation, with varying degrees of success. Tr. 635-667.
{¶ 5} R.D. was a close friend of L.G. One night when she was sleeping over at L.G.’s
house, she awoke and found Goldblum standing over her side of the twin bed. Goldblum pulled
away her covers, slid her pajamas and underpants down, and put a finger in her vagina. He
removed his finger when she pretended to stir in her sleep. Later, in the same year, she fell
asleep with L.G. on a pull-out couch in the living room. Once again, she awoke to find the
covers pulled off, her pajama bottoms pulled down, and Goldblum staring at her pubic area. He
was illuminating her pubic area with a flashlight, but then put down the flashlight and inserted
something thin and cold, possibly a pen, into her vagina. Goldblum and L.G. eventually moved
to a new house, but the same thing happened during sleepovers at the new house. Consequently,
R.D. stopped coming over for sleepovers. Id. at 299-325. During the time that Goldblum was
molesting R.D., occasionally she would pretend to wake up in the middle of the molestation, and
Goldblum would make an excuse that he was looking for the cats. Id. at 303, 317-318.
{¶ 6} M.W. was friends with L.G. since third grade. Goldblum began molesting M.W.
4
when she was 11 or 12 years old. The first time it happened, Goldblum stood next to the twin
beds in L.G.’s room, he lifted the sheet and pulled away her underpants, and he gazed at her
pubic area. She then dove back under the covers, and he left the room. The same thing
happened several times when she slept over with L.G. Id. at 377-407.
{¶ 7} J.R. also was friends with L.G. On the morning of February 18, 2011, J.R. and a
number of other girls spent the night at L.G.’s home. J.R. awoke early the next morning to find
Goldblum pulling off her blankets and tugging on the drawstring of her sweatpants. She jumped
back and asked him “what the hell” he was doing. He backed off, told her to be quiet, and said
he was looking for the cats. J.R. told the other girls, including L.G., what Goldblum had done,
then locked herself in the bathroom until her sister came and picked her up. L.G. went with J.R.
and M.W. that morning to discuss the abuse with school officials. Id. at 503-535.
{¶ 8} That night, L.G. and N.D. told L.G.’s mother about the confrontation between
J.R. and Goldblum. The family confronted Goldblum about J.R.’s accusations, and Goldblum
explained that he was just looking for the cat. N.D. told the family that he had used that excuse
before and that he had been abusing her for years. The next day, N.D. disclosed the abuse to her
mother, aunt, grandmother, and a family friend. Id. at 664-672. Subsequently, Goldblum was
arrested.
II. Course of the Proceedings
{¶ 9} In May 2012, a Montgomery County Grand Jury returned a 17-count indictment
against Goldblum. The indictment included two counts of Voyeurism relating to M.W., in
violation of R.C. 2907.08(C); one count of Voyeurism relating to R.D., in violation of R.C.
5
2907.08(C); one count of Attempted Voyeurism relating to J.R., in violation of R.C. 2907.08(C)
and R.C. 2923.02(A); five counts of Rape (under 13) of R.D., in violation of R.C.
2902.02(A)(1)(b); four counts of Rape (under 13) of N.D., in violation of R.C. 2902.02(A)(1)(b);
one count of Menacing by Stalking of R.D., in violation of R.C. 2903.211(A), (B); one count of
Menacing by Stalking of N.D., in violation of R.C. 2903.211(A), (B); and two counts of
Unlawful Sexual Conduct with a Minor, in violation of R.C. 2907.04(A), (B).
{¶ 10} Goldblum moved to sever the counts of the indictment. The trial court granted
this motion. Prior to trial, the State asked the trial court to reconsider its ruling in light of the
recent decision of the Supreme Court of Ohio in State v. Williams, 134 Ohio St.3d 52,
2012-Ohio-5695, 938 N.E.2d 1278. The trial court granted the motion to reconsider, found that
joinder of the counts was proper, and overruled Goldblum’s motion to sever the counts for trial.
{¶ 11} Prior to trial, the State dismissed one count of Voyeurism relating to M.W. and
the two counts of Menacing by Stalking. During trial, the State dismissed one count of Rape
involving R.D. Ultimately, the jury found Goldblum guilty of the remaining thirteen counts.
The trial court sentenced Goldblum as follows: ten years on each of the eight Rape counts;
twelve months on each of the two Voyeurism counts; six months on the Attempted Voyeurism
count; and three years on each of the two Unlawful Sexual Conduct with a Minor counts. The
sentence on one count of Rape of R.D. was run consecutively to the sentence on the count of
Voyeurism involving M.W. and consecutively to the sentence on one count of Rape of N.D. All
of the remaining sentences were run concurrently with each other, for a total prison sentence of
21 years. The trial court also designated Goldblum a Tier I sex offender/child victim offender
regarding Count I, a Tier II sex offender/child victim offender regarding Counts 13 and 14, and a
6
Sexually Oriented Offender regarding the remaining counts. The trial court also set forth the
terms of post-release control.
{¶ 12} From this judgment, Goldblum appeals.
III. The Evidence Was Sufficient to Convict Goldblum
of Voyeurism and Attempt to Commit Voyeurism
{¶ 13} Goldblum’s First Assignment of Error states:
THE APPELLANT WAS DENIED DUE PROCESS AND A FAIR
TRIAL WHEN THE TRIAL COURT DID NOT ORDER AN ACQUITTAL OF
THE THREE VOYEURISM-RELATED CHARGES AS THE EVIDENCE WAS
INSUFFICIENT TO SUSTAIN A CONVICTION FOR THEM.
{¶ 14} When a defendant challenges the sufficiency of the evidence, he is arguing that
the State presented inadequate evidence on at least one element of the offense to sustain the
verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d
Dist.2000). “An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to determine whether
such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991), paragraph two of the syllabus.
{¶ 15} R.C. 2907.08(C) provides: “No person, for the purpose of sexually arousing or
7
gratifying the person's self, shall commit trespass or otherwise surreptitiously invade the privacy
of another to videotape, film, photograph, otherwise record, or spy or eavesdrop upon the other
person in a state of nudity if the other person is a minor.”
{¶ 16} Goldblum contends that the State failed to prove the purpose element contained
in R.C. 2907.08(C). According to Goldblum, there is no credible evidence that Goldblum was
in a state of undress or engaged in masturbation and there is no circumstantial evidence that
Goldblum had pornography or sexual devices. Rather, according to Goldblum, the only
evidence of record to infer the purpose element is that he looked up M.W.’s shorts. Brief, p. 5.
{¶ 17} Although Goldblum is correct that the purpose element is often met with
evidence of a defendant in a state of undress, masturbating, or both, a purpose of sexual
gratification may be inferred from other circumstances. State v. Wilson, 192 Ohio App.3d 189,
2011-Ohio-155, 948 N.E.2d 515, ¶ 45 (11th Dist.). For example, if pornography is part of the
circumstances surrounding the invasion of the victim’s privacy, then a purpose of sexual arousal
or gratification may be inferred. (Citations omitted.) Id. “The courts have also held that the
sexual-arousal and/or gratification element may be inferred when there is no innocent, i.e.,
nonsexual, explanation for the offender’s conduct.” (Citations omitted.) Id. at ¶ 47.
{¶ 18} M.W. testified that when she was in the fifth or sixth grade, Goldblum came into
the room where she was sleeping, lifted the sheet that covered her, pulled down her pajama
bottoms, and moved the fabric of her underpants out of the way so that he could stare at her
vaginal area. She testified that he did it to her several more times when she stayed overnight.
N.D. described similar experiences. Goldblum would come into the room when she was
sleeping, removed some of her clothing that was in the way, and put his fingers inside of her.
8
R.D. testified that when she was in first grade staying overnight, she woke up to find her pants off
and Goldblum staring at her vaginal area, which he was illuminating with a flashlight. R.D. also
testified that after Goldblum looked at her with the flashlight, he put something smaller and cold,
like a pen, insider her vagina. And on several occasions he came into the room, pulled off the
covers, and put one or more fingers inside of her. J.R. testified that she awoke one night when
she was almost 16 years old and Goldblum was tugging on the drawstrings of her sweatpants.
{¶ 19} The testimony of the victims is overwhelming and demonstrates the purpose
element of “sexually arousing or gratifying the person's self.” Wilson at ¶ 47. Although
Goldblum contends that the victims are not credible, it was within the province of the jury to
credit the testimony of these witnesses.
{¶ 20} Goldblum also contends that there was no evidence of a trespass or invasion of
privacy. According to Goldblum, he did not hide his actions from M.W. and did these acts to
her and directly in front of her. In other words, there was no secretive nature to it. Brief, p. 5.
We do not agree. Goldblum committed a number of acts while the victims were sleeping, which
satisfies the “surreptitiously invade the privacy of another” element.
{¶ 21} Goldblum’s First Assignment of Error is overruled.
IV. Goldblum’s Convictions Are Not Against
the Manifest Weight of the Evidence
{¶ 22} Goldblum’s Second Assignment of Error states:
THE APPELLANT WAS DENIED DUE PROCESS AND A FAIR
TRIAL AS ALL OF HIS CONVICTIONS ARE AGAINST THE MANIFEST
9
WEIGHT OF THE EVIDENCE AND THE JURY’S VERDICT WAS
INCONSISTENT WITH THE EVIDENCE AND TESTIMONY PRESENTED.
{¶ 23} “A weight of the evidence argument challenges the believability of the evidence
and asks which of the competing inferences suggested by the evidence is more believable or
persuasive.” State v. Cassell, 2d Dist. Clark No. 09CA0064, 2011-Ohio-23, ¶ 46. When a
conviction is challenged on appeal as being against the manifest weight of the evidence, “ ‘[t]he
court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury
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, 678 N.E.2d
541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 24} Goldblum contends that the jury’s verdicts are against the manifest weight of the
evidence because there was no physical evidence to corroborate the victims’ allegations.
Furthermore, Goldblum contends that “J.R.’s testimony is totally contradicted by the other
evidence. M.W., R.D., and N.D.’s testimony clearly defies reason and common sense. For
hundreds of incidents to have occurred with others in the room and house without detection is
incredible.” Brief, p. 8.
{¶ 25} We have reviewed the testimony of record. The State presented sufficient victim
testimony, if credited, that supports Goldblum’s convictions beyond a reasonable doubt.
Overall, Goldblum takes issue with whose testimony the jury credited. The credibility of the
witnesses and the weight to be given to their testimony are matters for the trier of facts to
resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). “The decision
10
whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar
competence of the factfinder, who has seen and heard the witness.” State v. Lawson, 2d Dist.
Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). We find no basis to overrule
the jury’s decision to credit the testimony of the victims in this case.
{¶ 26} Goldblum’s convictions are not against the manifest weight of the evidence.
Consequently, the Second Assignment of Error is overruled.
V. The Trial Court Did Not Abuse Its Discretion
in Overruling Goldblum’s Motion to Sever
{¶ 27} Goldblum’s Third and Fourth Assignments of Error state:
THE APPELLANT WAS DENIED DUE PROCESS AND A FAIR
TRIAL WHEN THE TRIAL COURT SUBSTANTIVELY MISAPPLIED STATE
v. WILLIAMS, 2012-OHIO-5695, IN REVERSING ITS RULING REGARDING
JOINDER.
THE APPELLANT WAS DENIED DUE PROCESS AND A FAIR
TRIAL WHEN THE TRIAL COURT, WITHOUT LEGAL AUTHORITY TO DO
SO, ENTERTAINED A MOTION TO RECONSIDER THE COURT’S
PREVIOUS SEVERANCE RULING AND REVERSED ITS DECISION.
{¶ 28} Initially, we will address Goldblum’s contention that the trial court was without
authority to reconsider its ruling regarding Goldblum’s motion to sever. The trial court’s ruling
on Goldblum’s motion to sever was interlocutory in nature. Therefore, the trial court had the
inherent authority to reconsider its ruling. Once the State brought a recent Supreme Court of
11
Ohio decision to the trial court’s attention, it was reasonable for the trial court to reconsider its
previous determination. Consequently, we find no error in the trial court’s decision to
reconsider its ruling on Goldblum’s motion to sever.
{¶ 29} The decision whether to grant a motion to sever certain counts of an indictment
from other counts of the indictment is guided by Crim.R. 8 and 14. In State v. LaMar, 95 Ohio
St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 49-50, the Supreme Court of Ohio explained the
analysis that goes into a determination on joinder and severance:
“The law favors joining multiple offenses in a single trial under Crim.R.
8(A) if the offenses charged ‘are of the same or similar character.’ ” State v. Lott
(1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293. Crim.R. 8(A) also allows
joinder of two or more offenses that “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.”
Notwithstanding the policy in favor of joinder, an accused may move to sever
counts of an indictment on the grounds that he or she is prejudiced by the joinder
of multiple offenses. See Crim.R. 14. * * *
The state may rebut a defendant’s claim of prejudicial joinder in two ways.
The first way is by satisfying the “other acts” test. Id. If in separate trials the
state could introduce evidence of the joined offenses as “other acts” under Evid.R.
404(B), a defendant cannot claim prejudice from the joinder. Id. See, also, State
v. Coley (2001), 93 Ohio St.3d 253, 259-260, 754 N.E.2d 1129. The state may
also negate a claim of prejudice by satisfying the less stringent “joinder test,”
12
which requires a showing “that evidence of each crime joined at trial is simple and
direct.” Lott, 51 Ohio St.3d at 163, 555 N.E.2d 293; see, also, State v. Torres
(1981), 66 Ohio St.2d 340, 344, 20 O.O.3d 313, 421 N.E.2d 1288.
{¶ 30} Evid.R. 404(B) provides:
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. *
**
{¶ 31} R.C. 2945.59 similarly permits the admission of other-acts evidence tending to
show a defendant's “motive or intent, the absence of mistake or accident on his part, or the
defendant's scheme, plan, or system in doing the act in question.” State v. Kirkland, 140 Ohio
St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 68.
{¶ 32} Generally, evidence of other acts is admissible if (1) it is offered for a purpose
other than to prove the character of a person in order to show action in conformity with that
character, Evid.R. 404(B), (2) it is relevant when offered for that purpose, Evid.R. 401, and (3)
the danger of unfair prejudice does not substantially outweigh its probative value, Evid.R. 403.
Kirkland at ¶ 68, citing State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d
1278, ¶ 20. A trial judge has considerable discretion to determine whether the specific evidence
is of such a nature that it falls within one of the other purposes under Evid.R. 404(B) for which
the evidence may be admitted. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972
N.E.2d 528, ¶ 19. “Unless the trial court has ‘clearly abused its discretion and the defendant has
13
been materially prejudiced thereby, [appellate courts] should be slow to interfere’ with the
exercise of such discretion.” Kirkland at ¶ 67, quoting State v. Hymore, 9 Ohio St.2d 122, 128,
224 N.E.2d 126 (1967).
{¶ 33} Goldblum contends that the other act evidence offered by the State in this case
was not offered for any of the permissible purposes outlined in Evid.R. 404(B) or R.C. 2945.59.
The State counters that “evidence that Appellant engaged in inappropriate conduct with other
young female friends of his daughter was relevant to prove a proper purpose under Evid.R.
404(B), specifically, Appellant’s intent, his plan, scheme, or system, and to refute his claim that
the girls were mistaken about what he was doing and that they had falsely accused him.” Brief,
p. 21.
{¶ 34} We conclude that the trial court did not abuse its discretion in overruling
Goldblum’s motion to sever. Goldblum conceded at trial that he would occasionally manipulate
the blankets on the girls who were asleep at his place. However, he testified that he did this to
check to see if they were hiding any games under the blankets. Also, he testified that J.R. was
mistaken about what he was doing when she woke up on the morning of February 18, 2011.
According to Goldblum, he was simply checking for the cat when she woke up and saw him in
the basement. The testimony of other act evidence in this case rebutted Goldblum’s testimony
that he was simply looking for the cat or making sure there were no games hidden underneath the
girls’ blankets. Furthermore, the other act evidence assisted the trier of fact in determining
Goldblum’s purpose or intent, especially relating to the Voyeurism charges. As we noted in Part
III above, the purpose element in R.C. 2907.08(C) may be inferred “when there is no innocent,
i.e., nonsexual, explanation for the offender’s conduct.” State v. Wilson, 2011-Ohio-155, at ¶
14
47. The other acts evidence rebutted Goldblum’s contention that there were innocent, nonsexual
explanations for his removal of the blankets and presence near the girls when they suddenly
awoke.
{¶ 35} The record supports the trial court’s exercise of its discretion to allow the
introduction of other acts evidence. Furthermore, based on our review of the record, we
conclude that the danger of unfair prejudice by allowing the other acts evidence did not
substantially outweigh its probative value. Kirkland at ¶ 68, citing Williams at ¶ 20. Also,
“[t]he trial court reduced any danger of unfair prejudice in its limiting instruction to the jury.”
Kirkland at ¶ 70. Consequently, the trial court did not abuse its discretion by overruling
Goldblum’s motion to sever.
{¶ 36} Goldblum’s Third and Fourth Assignments of Error are overruled.
VI. Goldblum Has Failed to Cite to the Record to Establish Prejudicial Error
From the State’s Use of Leading Questions on Direct Examination
{¶ 37} Goldblum’s Fifth Assignment of Error states:
THE APPELLANT WAS DENIED DUE PROCESS AND A FAIR
TRIAL WHEN THE TRIAL COURT USED AN IMPROPER DEFINITION OF
WHAT CONSTITUTES A “LEADING QUESTION” AND ALLOWED THE
STATE TO PRESENT THE SUBSTANCE OF THEIR CASE THROUGH
LEADING QUESTIONS.
{¶ 38} “A leading question is ‘one that suggests to the witness the answer desired by the
examiner.’ ” (Citation omitted.) State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900
15
N.E.2d 565, ¶ 149. Evid.R. 611(C) provides that: “Leading questions should not be used on the
direct examination of a witness except as may be necessary to develop the witness’ testimony.
Ordinarily leading questions should be permitted on cross-examination.” Moreover, the trial
court has discretion to allow leading questions on direct examination. Diar at ¶ 149.
{¶ 39} Goldblum contends that the State’s “entire case was rampant with leading
questions of every one of its witnesses.” Brief, p. 21. According to Goldblum, “[t]he trial court
created the problem and prejudice to the Appellant when he responded to defense objections to
leading questions raised at Tr. 304, 307.” Id.{¶ 40} In support of his assignment of error, Goldblum cites only to pages 304 and 307
of the trial transcript. Page 304 contains an objection by Goldblum’s counsel on the basis of a
leading question. The trial court overruled this objection when it appeared that the response the
State received from the witness was not the response the State was expecting. Tr. 304.
Goldblum does not explain how this alleged leading question prejudiced him. Then, at pages
307-309 of the transcript, the following exchange occurred:
Q Did he stop with just looking at that area with the flashlight?
A Yes.
Q Did he do something in addition though to just looking with that
flashlight?
A No.
Q Did he put his fingers inside you - -
MR. ZANER: Objection. Leading.
THE COURT: Let’s approach.
16
(At sidebar.)
THE COURT: Just so you know, I take the position rightly or wrongly that
if a question can be answered yes or no, it’s not leading. So, that’s been my
position. And that’s - - I’m going to stick with that position. And you can make
the objection - -
MR. ZANER: Um-hum.
THE COURT: - - but if it’s a yes or no. Now, this
is a little bit different in that she said,
“No.” She said, “No.” And I take
it that that’s not the answer you
expected.
MS. CLAYPOOLE: Well, because we are guided by the bill of particulars
and it’s happened so many times, but we are alleging specific times. I think
(indiscernible) we would be allowed to lead to get to the charged counts.
MR. ZANER: And, Judge, our position would be it should be more
open-ended questions than you do anything else at the time. (Indiscernible.)
MS. CLAYPOOLE: Well - -
THE COURT: Well, what you can do it seems to me is, do you remember
the time - - kind of get her beyond this. Do you remember a time when Mr.
Goldblum used a flashlight in a similar way that something more happened?
MS. CLAYPOOLE: (Indiscernible.) I need to ask the questions
(indiscernible). So, it’s my own fault. (Indiscernible) ask me - - ask the question
17
correctly, Judge.
THE COURT: Okay. All right.
(Sidebar concluded.)
THE COURT: There’s really no ruling on the objection, because the
objection occurred before the question was completely out. So, let’s hear the
question. We’ll go and we’ll see where we’re at.
{¶ 41} The State proceeded to ask additional questions of the witness and Goldblum’s
counsel did not raise any objection on the basis of leading questions. Tr. 309-327. Based on
our review of the record, we conclude that Goldblum has failed to cite to the record instances in
which the State used leading questions or instances in which the trial court improperly allowed
the use of leading questions that prejudiced Goldblum. App.R. 12(A)(2), 16(A)(7).
{¶ 42} Goldblum’s Fifth Assignment of Error is overruled.
VII. Goldblum Has Failed to Demonstrate Prosecutorial
Misconduct and Resulting Prejudice
{¶ 43} Goldblum’s Sixth Assignment of Error states:
THE APPELLANT WAS DENIED DUE PROCESS AND A FAIR
TRIAL WHEN THE PROSECUTOR ENGAGED IN MISCONDUCT IN HER
CLOSING STATEMENT AT TRIAL, WHICH CONDUCT SUBSTANTIALLY
PREJUDICED THE APPELLANT AND MISLED THE JURY.
{¶ 44} Our review of claims of prosecutorial misconduct focuses on whether the
prosecutor's remarks were improper and, if so, whether those comments prejudicially affected the
18
substantial rights of the defendant. State v. Jones, 90 Ohio St.3d 403, 420, 739 N.E.2d 300(2000). The touchstone of the analysis is the fairness of the trial, not the culpability of the
prosecutor. Id., quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78(1982). Where it is clear beyond a reasonable doubt that the jury would have found the
defendant guilty, even absent the alleged misconduct, the defendant has not been prejudiced, and
his conviction will not be reversed. State v. Underwood, 2d Dist. Montgomery No. 24186,
2011-Ohio-5418, ¶ 21. We review allegations of prosecutorial misconduct in the context of the
entire trial. State v. Stevenson, 2d Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing
Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).
{¶ 45} Goldblum contends that “[t]he Prosecutor, in closing, attempted to evoke
sympathy for the complainants based upon the Appellant invoking his constitutional right to
cross-examine witnesses as well as calling witnesses to his defense.” Brief, p. 22. In support of
his contention, Goldblum cites to pages 1300, 1306, 1345, and 1348 of the trial transcript. We
have reviewed these pages of the trial transcript and conclude that the prosecutor's remarks were
not improper.
{¶ 46} Goldblum next contends that “[t]he Prosecutor repeatedly tried to use a ‘class
warfare’ tactic versus the Appellant.” Brief, p. 22. In support of this contention, Goldblum
cites to pages 1340-1341 of the trial transcript. We have reviewed those pages of the trial
transcript. On page 1340 of the transcript, the prosecutor attempted to make the point that just
because the defendant is a physician and is charitable does not necessarily mean that he could not
have committed the crimes with which he was charged. She brought up this point to rebut the
positive character evidence that the defense introduced through witnesses. The point the
19
prosecutor was trying to make, in and of itself, was not improper. However, we acknowledge
that the prosecutor started to stray a little further in trying to make this point by beginning to talk
about the “fancy house” that Goldblum lived in. Tr. 1340. At this point, however, the trial
court instructed the prosecutor to “back away from that.” Id. at 1341. Based on our review of
the prosecutor’s closing statement, we disagree with Goldblum’s contention that the State tried to
use a class warfare tactic against him.
{¶ 47} Goldblum also contends that “[t]he Prosecutor also referenced items not in
evidence. She claimed that L.G. had testified to the Appellant bending over her friends on
previous occasions while they slept.” Brief, p. 22. In support of this contention, Goldblum
cites to pages 1301 and 1352 of the trial transcript. Based on our review of the record, we do not
agree that the State referred to items not in evidence. Furthermore, Goldblum failed to object to
these statements made by the State during closing, and had the opportunity during his closing
statement to point out and challenge any inaccuracies made by the State during closing statement.
Therefore, we conclude that Goldblum has failed to establish prosecutorial misconduct and
resulting prejudice.
{¶ 48} Goldblum’s Sixth Assignment of Error is overruled.
VIII. The Trial Court Made the Necessary Findings
to Impose Consecutive Sentences
{¶ 49} Goldblum’s Seventh Assignment of Error states:
THE TRIAL COURT FAILED TO FOLLOW THE PURPOSES OF
FELONY SENTENCING UNDER R.C. 2929.11, FAILED TO CONSIDER THE
20
SERIOUSNESS/RECIDIVISM FACTORS UNDER R.C. 2929.12 AND FAILED
TO MAKE THE NECESSARY FINDINGS UNDER R.C. 2929.14(C) FOR THE
IMPOSITION OF CONSECUTIVE SENTENCES.
{¶ 50} On a silent record, a trial court is presumed to have considered the statutory
purposes and principles of sentencing, and the statutory seriousness and recidivism factors. State
v. Carlton, 2d Dist. Montgomery No. 26086, 2014-Ohio-3385, ¶ 18. There is nothing in the
record in the case before us to overcome that presumption.
{¶ 51} R.C. 2929.14(C)(4) permits a trial court to impose consecutive sentences if it
finds that: (1) consecutive sentencing is necessary to protect the public from future crime or to
punish the offender; (2) consecutive sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender poses to the public; and (3) “[a]t least two of
the multiple offenses were committed as part of one or more courses of conduct, and the harm
caused by two or more of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.” R.C. 2929.14(C)(4)(b).
{¶ 52} In most cases, “[t]he trial court is not required to give reasons explaining these
findings, nor is the court required to recite any ‘magic’ or ‘talismanic’ words when imposing
consecutive sentences. * * * Nevertheless, the record must reflect that the court made the
findings required by the statute.” State v. Temple, 2d Dist. Clark No. 2012-CA-65,
2013-Ohio-3843, ¶ 21, quoting State v. Hubbard, 10th Dist. Franklin No. 11AP-945,
2013-Ohio-2735, ¶ 86.
{¶ 53} At sentencing, the trial court stated, in part:
21
And that sentence then is a sentence of 21 years at the Corrections
Reception Center, with 440 days of jail-time credit. Now, because I have made
certain of these sentences a consecutive sentence, there are certain findings
required by Ohio Revised Code 2929.14(C)(4), and I am now going to make those
required findings.
First, I find that the imposed consecutive sentences are necessary to punish
the defendant, and the imposed consecutive sentences are not disproportionate to
the seriousness of the defendant’s conduct and to the danger the defendant poses
to the public.
And, secondly, I find that the counts where a consecutive sentence is being
imposed reflect at least two multiple offenses committed as part of multiple
courses of conduct. And the harm caused by such offenses is so great and
unusual that no single prison term for all of the offenses committed as part of the
defendant’s multiple courses of conduct adequately reflects the seriousness, the
seriousness of such conduct.
Tr. 1427-28.
{¶ 54} When imposing Goldblum’s sentence, the trial court made the findings required
by R.C. 2929.14(C)(4). We do not “clearly and convincingly” find either that the record does
not support the trial court's findings under R.C. 2929.14(C)(4), or that the sentence is otherwise
contrary to law. R.C. 2953.08(G)(2).
{¶ 55} But a trial court is required not only to make the statutory findings required for
consecutive sentences at the sentencing hearing, but also to incorporate its findings into its
22
sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
syllabus. Accordingly, this cause is Remanded for the purpose of allowing the trial court to
enter a nunc pro tunc amendment of its judgment entry to incorporate the statutory
consecutive-sentence findings it made at the sentencing hearing. See State v. Mayberry, 2d Dist.
Montgomery No. 26025, 2014-Ohio-4706, ¶ 34.
{¶ 56} Goldblum’s Seventh Assignment of Error is Overruled.
IX. Goldblum Failed to Establish Cumulative Error
{¶ 57} Goldblum’s Eighth Assignment of Error states:
THE APPELLANT WAS DENIED DUE PROCESS AND A FAIR
TRIAL AS THE ERRORS COMMITTED BY THE TRIAL COURT AND THE
PROSECUTOR COMBINED TO DENY THE APPELLANT A FAIR TRIAL.
{¶ 58} The “cumulative error” doctrine states that a “conviction will be reversed where
the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair
trial even though each of the numerous instances of the trial court errors do not individually
constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995).
In order to find cumulative error, we must find: (1) that multiple errors were committed at trial,
and (2) there is a reasonable probability that the outcome of the trial would have been different
but for the combination of the separately harmless errors. State v. Kelly, 2d Dist. Greene No.
2004-CA-20, 2005-Ohio-305, ¶ 33. Where no individual, prejudicial error has been shown,
there can be no cumulative error. State v. Jones, 2d Dist. Montgomery No. 20349,
2005-Ohio-1208, ¶ 66.
23
{¶ 59} Goldblum has failed to establish any error, let alone cumulative error.
Consequently, his Eighth Assignment of Error is overruled.
X. Conclusion
{¶ 60} All of the assignments of error having been overruled, the judgment of the trial
court is Affirmed, and this cause is Remanded for entry of a nunc pro tunc order amending the
judgment entry to include the statutory consecutive-sentence findings.
.............
DONOVAN, J. and WELBAUM, J., concur.
Copies mailed to:
Mathias H. Heck
Carley J. Ingram / Kirsten A. Brandt
Lorin J. Zaner
Hon. Michael Tucker