State v. Echols , 128 Ohio App. 3d 677 ( 1998 )

Any neutral analysis of joinder should first begin with the recognition that joinder of similar offenses in the indictment is the rule, not the exception. Crim.R. 8 (A) provides that multiple offenses may be charged in the same indictment provided that they are "of the same or similar character." When multiple offenses meet this requirement, the law favors joining them in a single trial.⁶¹ The reason joinder is favored is not because the state is cheap and willing to sacrifice justice, as the majority suggests, but because it conserves judicial resources, lessens the chance of inconsistent results in successive trials, and diminishes inconvenience to the witnesses.⁶²

The evidence is undisputed that the six robberies in this case were committed over a thirty-day period by a lone man operating within a two-block area, ordering his victims at knifepoint to hand over money, without any other apparent motive besides robbery. The majority attempts to distinguish each robbery based upon such things as the description of the knife, the degree to which the perpetrator hid his face, or the precise words that he used to threaten the victim. For purposes of Crim.R. 8 (A), however, the inquiry is only whether the offenses are similar in character, not identical in execution.

Under Crim.R. 14, Echols was required to establish prejudice in order to require that each of the robberies be tried separately. As the majority correctly observes, his claim of prejudice is defeated when either the "other acts" or the "simple and distinct" test is met. The majority's analysis unravels, however, when it in effect places the burden on the state to demonstrate that either of these tests is satisfied. Both at trial and on appeal, the burdens of both production and persuasion remain on the defendant to "affirmatively show prejudice."⁶³

I strongly disagree with the majority's conclusion that Echols has affirmatively established prejudice under either the "other acts" or the "simple and distinct" test. Under the "simple and distinct" test, the only question is whether the jury can segregate the evidence of each crime. There are, concededly, many cases in which this might not be possible, as, for example, inSchaim in which the defendant was accused of subjecting the same two victims (his daughter and adopted daughter) to a pattern of sexual abuse. Multiple RICO charges would be another example, or any multicount indictment that involves crimes the evidence of which is overlapping. That is not the case, here, however, where each robbery was a completely separate act. Of course, the mere fact that all the crimes were robberies does not violate the "simple and distinct" test, since the offenses must be of the "same or similar character" even to qualify for joinder under Crim.R. 8 (A). Beyond the similarities already discussed, however, there was nothing interlocking, interwoven, interconnected, or interrelated about the robberies themselves: each involved different victims, different factual scenarios, and different witnesses. The facts concerning each robbery were not even remotely complex: although undoubtedly terrifying to their victims, the robberies were simple holdups, nothing more.

To suggest, therefore, that the jurors lacked the mental capacity to segregate the evidence with respect to each charge is to deny them even average intelligence. Although it is not mentioned by the majority, the trial court allowed the jurors to take notes because of the number of charges. The record reflects that, on the morning of the trial, members of the jury arrived with notebooks. Furthermore, the trial court gave the standard charge from the Ohio Jury Instructions for the jury to consider the evidence of each robbery separately. It is a well-settled principle of appellate review that the jury is presumed to have followed these instructions.⁶⁴

In sum, there is absolutely no evidence of jury confusion in this case and no reason to infer it. In holding that the "simple and distinct" test has not been satisfied, the majority concludes that "it is not improbable" that the jury became confused and cumulated the evidence. (Emphasis supplied.) The burden on Echols, however, is to affirmatively establish prejudice, not merely to demonstrate its theoretical possibility.

Because the "simple and distinct" test is so palpably satisfied upon this record, the "other acts" test need not even be reached. The burden was on Echols to demonstrate that neither test was satisfied. It is sufficient to note that all the robberies shared enough common characteristics to be probative on the issue of identity and would, therefore, have been admissible under Evid.R. 404 (B) if the robberies had been tried separately.⁶⁵ Ironically, in discussing the "other acts" test, the majority relies in part upon this court's decision in State v. Knight (June 5, 1998), Hamilton App. No. C-970563, unreported, 1998 WL 299314, in which the court criticized the defendant's analysis by stating that it "miss[ed] the point entirely when it tries to point out dissimilarities in details of the other acts." This is exactly, however, the analysis adopted by the majority today.⁶⁶

By presuming prejudice rather than requiring the defendant to demonstrate it, the majority's decision stands the law of joinder on its head, turning it into the exception rather than the rule. Other than to require separate trials, the majority provides no guidance for trial courts confronted with the issue. The majority's analysis cannot be reconciled with our previous discussion of joinder in State v. Decker,⁶⁷ unless the dissent in that decision is now to be taken as the law. If so, we have eviscerated Crim.R. 8 (A) and turned our back on an entire body of legal precedent favoring joinder.

Finally, I also disagree with the majority's conclusion that the exclusion of Echols's expert testimony on eyewitness identification amounted to cumulative error sufficient to support reversal. Evidentiary rulings with respect to the admission or exclusion of expert testimony will ordinarily not be reversed absent a clear showing that the trial court abused its discretion.⁶⁸ Despite the fact that the trial court gave erroneous reasons for excluding the testimony, the record creates considerable doubt whether Dr. Fulero's testimony would have assisted the jury without invading its province to determine witness credibility.⁶⁹ Additionally, the trial court retains discretionary authority to exclude even relevant evidence if that evidence would waste time or confuse the issues at trial. Evid.R. 403 (B). Given the opportunities during cross-examination and closing argument to alert the jury to any inconsistencies or extraneous factors affecting perception and memory, I would hold that the jury was given ample information to evaluate the testimony of the robbery victims in this case.

For all these reasons, I disagree strongly with the majority's conclusion that "justice requires a new trial" in this case. Justice requires that we treat jury verdicts with more respect. I would affirm.

⁶¹ State v. Wiles (1991), 59 Ohio St.3d 71, 76,571 N.E.2d 97, 108; State v. Lott (1990), 51 Ohio St.3d 160, 163,555 N.E.2d 293, 298; State v. Torres (1981), 66 Ohio St.2d 340, 343, 20 O.O.3d 313, 314-315, 421 N.E.2d 1288, 1290.

⁶² State v. Schaim (1992), 65 Ohio St.3d 51, 58,600 N.E.2d 661, 667.

⁶³ Wiles, supra, at 76, 571 N.E.2d at 108; Schaim, supra, at 59, 600 N.E.2d at 668.

⁶⁴ State v. Garner (1995), 74 Ohio St.3d 49,656 N.E.2d 623.

⁶⁵ State v. Broom (1988), 40 Ohio St.3d 277, 533 N.E.2d 682;State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180.

⁶⁶ My reference to State v. Knight should not be construed as an endorsement of its holding, which assumes without analysis that identity or motive was put at issue by the facts of that case.

⁶⁷ (1993), 88 Ohio App.3d 544, 624 N.E.2d 350.

⁶⁸ State v. Tomlin (1992), 63 Ohio St.3d 724, 727-728,590 N.E.2d 1253, 1256.

⁶⁹ State v. Buell (1956), 22 Ohio St.3d 124, 133, 22 OBR 203, 210-211, 489 N.E.2d 795, 804.