State v. Wright , 2017 Ohio 8702 ( 2017 )

[Cite as State v. Wright, 2017-Ohio-8702.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY
STATE OF OHIO, :
: Case No. 16CA3
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
DENNIS WRIGHT, :
:
Defendant-Appellant. : Released: 11/16/17
_____________________________________________________________
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Kristopher A. Haines,
Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.
Mike DeWine, Ohio Attorney General, and Jocelyn K. Lowe, Special
Assistant Prosecutor, Columbus, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Dennis Wright appeals the Order on Sentencing entered May 23,
2016 in the Jackson County Court of Common Pleas. Wright was convicted
of multiple counts of sexual battery, unlawful sexual conduct with a minor,
gross sexual imposition, and rape. On appeal, Wright asserts: (1) his rights
to due process and a fair trial were violated when the trial court allowed the
State to present overly prejudicial evidence of prior bad acts through a non-
victim witness; and (2) he was rendered the ineffective assistance of counsel
due to trial counsel’s failure to move to sever certain counts of the
Jackson App. No. 16CA3 2
indictment for purposes of trial. However, having reviewed the record
herein, as well as the pertinent Ohio law, we find no merit to Wright’s
assignments of error. Accordingly, we overrule both assignments of error
and affirm the judgment of the trial court.
FACTS
{¶2} In February 2016, Appellant was indicted by the Jackson
County Grand Jury as follows:
Count One Sexual Battery, R.C. 2907.03(A)(12);
Count Two Sexual Battery, R.C. 2907.03(A)(12);
Count Three Unlawful Sexual Conduct with a Minor,
R.C. 2907.04(A);
Count Four Unlawful Sexual conduct with a Minor;
R.C. 2907.04(A);
Count Five Illegal Use of a Minor in Nudity-Oriented
Material, R.C. 2907.323(A)(1);
Count Six Gross Sexual Imposition, R.C. 2907.05(A)(1);
Count Seven Gross Sexual Imposition, R.C. 2907.05(A)(1);
Count Eight Gross Sexual Imposition, R.C. 2907.05(A)(1);
Count Nine Rape, R.C. 2907.02(A)(1)(c);
Count Ten Rape, R.C. 2907.02(A)(2);
Count Eleven Rape, R.C. 2907.02(A)(1)(c);
Count Twelve Rape, R.C. 2907.02(A)(2);
Jackson App. No. 16CA3 3
Count Thirteen Rape, R.C. 2907.02(A)(1)(c);
Count Fourteen Rape, R.C. 2907.02(A)(2); and,
Count Fifteen Rape, R.C. 2907.02(A)(1)(b).
{¶3} At the time of the indictment, Appellant pastored a church in
rural Jackson County. Appellant was married and had two adult sons. The
complaining witnesses in the indictment were two of Appellant’s
congregants at the church, one a teenage female, and one a mentally
challenged adult female. The third complaining witness was one of
Appellant’s sons, dating back to the complainant’s childhood.
{¶4} The indictment also contained sexually violent predator
specifications as to Counts 1, 2, 9, 10, 11, 12, 13, and 14. Appellant was
appointed counsel and entered not guilty pleas. The case eventually
proceeded to jury trial which took place May 9 through May 16, 2016. Prior
to trial, Appellant waived his right to trial on the sexually violent predator
specifications.
{¶5} The State’s theory of the case was Appellant abused his familiar
relationship with the victims and his authority as their pastor, and father, to
perpetrate his criminal sexual activity. The defense strategy was to portray
Appellant as a victim of lies and innuendo by complainants with ulterior
Jackson App. No. 16CA3 4
motives of their own. Local media sources followed the case during the
pretrial and trial phases.
{¶6} At trial, the State presented testimony from M.S., a complaining
witness; Marjorie Norman, an eyewitness to one of the instances of abuse;
M.S.’s twin sister; Deputy Urias Hall, an investigator for the Jackson County
Sheriff’s Office; T.R., another complaining witness; J.W., Appellant’s son
and a complaining witness; Dr. Amy Luckeydoo, a pediatrician employed by
the Child Protection Center in Ross County, Ohio; Ashley Muse, a forensic
interviewer with the Child Protection Center; T.S., M.S.’s older sister; and,
Agent Latisha Schuler of the Ohio Bureau of Criminal Identification and
Investigation. The State also offered two exhibits: a DVD of Ashley Muse’s
forensic interview with M.S. and a recorded conversation between Agent
Schuler and Appellant.
{¶7} When the State rested, defense counsel made a Crim.R. 29
motion to dismiss the charges due to insufficient evidence. The trial court
overruled the motion. Appellant then presented testimony from his wife,
Diana Wright. Appellant also testified on his own behalf. After the defense
rested, both sides gave closing arguments, the trial court instructed the jury,
and the jury retired to deliberate.
Jackson App. No. 16CA3 5
{¶8} Appellant was subsequently convicted of all counts except count
five, illegal use of a minor in sexually oriented material. He was sentenced
to consecutive sentences for all counts, and life imprisonment. This timely
appeal followed. Where pertinent, additional facts will be set forth below.
ASSIGNMENTS OF ERROR
“I. MR. WRIGHT’S RIGHTS TO DUE PROCESS AND A
FAIR TRIAL WERE VIOLATED WHEN THE TRIAL
COURT ALLOWED THE STATE TO PRESENT OVERLY
PREJUDICIAL EVIDENCE ABOUT PRIOR BAD ACTS
THROUGH A NON-VICTIM WITNESS.”
A. STANDARD OF REVIEW
{¶9} The admission of other acts evidence lies within the broad
discretion of the trial court, and a reviewing court will not disturb the trial
court's decision in the absence of an abuse of that discretion. State v. Ruble,
4th Dist. Washington No. 16CA20, 2017-Ohio-7259, at ¶ 27; State v.
Morris, 132 Ohio St. 3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14. “ ‘A
trial court abuses its discretion when it makes a decision that is
unreasonable, unconscionable, or arbitrary.’ ” State v. Keenan, 143 Ohio
St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, quoting State v. Darmond,
135 Ohio St. 3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. An abuse of
discretion includes a situation in which a trial court did not engage in a
“sound reasoning process”; this review is deferential and does not permit an
Jackson App. No. 16CA3 6
appellate court to simply substitute its judgment for that of the trial court.
Darmond at ¶ 34. We are mindful, however, that “Although the abuse of
discretion standard usually affords maximum [deference] to the lower court,
no court retains discretion to adopt an incorrect legal rule or to apply an
appropriate rule in an inappropriate manner. Such a course of conduct
would result in an abuse of discretion.” 2-J Supply Inc. v. Garrett & Parker,
LLC, 4th Dist. Highland No. 13CA29, 2015-Ohio-2757, ¶ 9, quoting Safest
Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 2013-Ohio-5610, 5
N.E.3d 694, ¶ 16.
B. LEGAL ANALYSIS
{¶10} In general, “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person to show action in conformity
therewith.” Evid.R. 404(B). “It may, however, be admissible * * * [to
prove] motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id. But evidence of other crimes and acts
of wrongdoing are strictly construed against admissibility. See also Ruble,
supra, at ¶ 25; State v. Marshall, 4th Dist. Lawrence No. 06CA23, 2007-
Ohio-6298, ¶ 46.
{¶11} In determining the admissibility of other acts evidence, trial
courts should determine: (1) whether the other acts evidence is relevant to
Jackson App. No. 16CA3 7
establishing any fact that is of consequence, i.e. the other acts make the
existence of a material fact more or less probable than it would be without
that evidence; (2) whether the other acts evidence is presented to prove the
character of the accused in order to show the accused acted in conformity
with that character, or whether the other acts evidence is presented for a
legitimate purpose, such as those stated in Evid.R. 404(B); and (3) whether
the probative value of the other acts evidence is substantially outweighed by
the danger of unfair prejudice under Evid.R. 403. Ruble, at ¶ 26; State v.
Williams, 134 Ohio St. 3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20;
State v. Adams, 9th Dist. Lorain No. 15CA010868, 2017-Ohio-1178, ¶ 10;
State v. Fowler, 2017-Ohio-438, ––– N.E.3d ––––, ¶ 17, 2017 WL 495595
(10th Dist.).
{¶12} In his first assignment of error, Appellant asserts that the trial
court prejudiced him when it admitted testimony of M.S.’s sister, T.S.
Appellant argues this testimony essentially added another unindicted accuser
to bolster the State’s case with improper propensity evidence. The State
filed a motion to use Evid.R. 404(B) evidence to show Appellant’s motive,
preparation, plan, and modus operandi.
{¶13} The State’s motion indicated T.S.’s testimony would be that
Jackson App. No. 16CA3 8
between 2010 and 2011, when T.S. was 14 and 15 years old, Appellant
taught T.S. to drive a truck and used this opportunity to touch her breasts.
The State argued in doing so, Appellant used his role as T.S.’s pastor and
trusted family friend to gain access to her and sexually assault her. The
State argued that Appellant used the same relationship with the victims as
their pastor and trusted family friend to gain access to M.S., whom he also
taught to drive and also sexually assaulted by touching her breasts during the
“lesson.” M.S. was almost the exact same age as T.S. when Appellant
molested her. The State concluded that in using the same relationship, the
same location, the same scheme, and the same sexual contact, the evidence
adduced from T.S.’s testimony was admissible and relevant in the current
case pursuant to Evid.R. 404(B) to show motive, preparation, plan, and
modus operandi in committing the sexual abuse against M.S.
{¶14} At a hearing to resolve pretrial motions, Appellant argued it
was highly prejudicial to allow T.S.’s testimony when she was not named as
a victim in any count of the indictment. However, by written decision, the
trial court announced it would be allowing T.S. to testify. The trial court
relied on the Supreme Court of Ohio’s decision in State v. Williams, 134
Ohio St. 3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, and the Eight District
Court of Appeals’ decision in State v. Herrington, 8th Dist. Cuyahoga No.
Jackson App. No. 16CA3 9
101322, 2015-Ohio-1820, finding that the factual scenario in Appellant’s
case was strikingly similar to the facts in Harrington.
{¶15} The first witness at Appellant’s trial was M.S., age 17. She
testified in the past, her family attended a church with Appellant, and she
identified Appellant. Appellant was the pastor and the congregation was a
very small group which included her family, Appellant’s family, and only a
few others.
{¶16} M.S. testified she sometimes went to Appellant’s farm to help
him clean stalls and feed the animals. At times, Appellant bought her candy,
food, and clothing. When M.S. was 10-13 years old, Appellant began
talking to her about sex and “how it would feel.” He also touched her
breasts and vagina under her clothing. When he put his hands on her, she
would tell him to stop and try to shrug him away or try to get her clothes
back. He told her “it would make him love again and all that but that he
loves me.”
{¶17} On occasion, Appellant would get on top of M.S. on the floor
of his bedroom. Once he put his penis on her vagina and it hurt. He also
asked her at times to touch his penis with her hand. She felt “awkward and
“really didn’t want to.” M.S. testified she was forced to do it, “He kept
Jackson App. No. 16CA3 10
nagging and riding me until I did it.” One time, he had her put her mouth on
his penis. Afterwards she cried and complained she was sick.
{¶18} M.S. further testified that Appellant let her drive his truck to
practice. He told her he would help her get her license “if I do stuff with
him.” M.S. testified she did not tell anyone what was happening because
she was scared and because her father did not “believe other victims when it
happened.” She also testified that on occasion, after doing the farm chores,
M.S. would take a shower at Appellant’s house. Sometimes Appellant
would come in, open the door to look at her, and take pictures of her naked
body on his phone. M.S. later deleted them.
{¶19} The instances of abuse began when M.S. was 10-13 years old.
They occurred numerous times until she was 15 or 16 years old.
{¶20} On the fourth day of trial, T.S., now age 20, testified a handful
of people, which included her family, attended the church where Appellant
pastored. T.S. testified when she was 14 or 15 years old, she was at
Appellant’s house, in his truck, and he asked her if she wanted to learn to
drive. When they switched places in the truck and T.S. was driving, he told
her “This is what young boys will do.” T.S. testified:
“He stuck his arm around… he stuck his arm around my
shoulders and tried to stick it down my shirt and I said no then
he stuck it around me and tried to stick it down the front and
back of my pants and I said no and I stopped him.”
Jackson App. No. 16CA3 11
{¶21} Prior to T.S.’s testimony, Appellant’s counsel renewed the
objection. At the close of trial, the court instructed the jury as follows:
“Evidence was admitted of other acts which the defendant may
have committed. You may not consider that evidence to
determine whether the defendant committed any act alleged in
the indictment. If you find from other evidence that the
defendant committed the acts charged in the indictment, then
you may consider the evidence of the other act as bearing upon
the defendant’s motive, preparation, plan, and modus
operandi.”
{¶22} Based upon our review of the facts herein and the pertinent
case law, we find no error or abuse of discretion in the trial court’s ruling
which allowed the State to present evidence of other acts through T.S.’s
testimony.
{¶23} In Williams, supra, the Supreme Court of Ohio was asked to
determine whether evidence that the defendant had a prior sexual
relationship with an underage boy, A.B., he coached in the 1990s was
properly admitted pursuant to Evid.R. 404(B) in the State's prosecution of
the defendant for sex offenses committed in 2008 against a different
underage boy, J.H., that the defendant was mentoring. Id. The Supreme
Court recognized that “[e]vidence of other crimes, wrongs, or acts of an
accused tending to show the plan with which an act is done may be
admissible for other purposes, such as those listed in Evid.R. 404(B)—to
show proof of motive, opportunity, intent, preparation, plan, knowledge,
Jackson App. No. 16CA3 12
identity, or absence of mistake or accident.” Id. at ¶ 19. The court set forth a
three-step analysis that courts should conduct in determining the
admissibility of other acts evidence. Id. First, the court should “consider
whether the other acts evidence is relevant to making any fact that is of
consequence to the determination of the action more or less probable than it
would be without the evidence.” Id. at ¶ 20, citing Evid.R. 401. Second, the
court should “consider whether evidence of the other crimes, wrongs, or acts
is presented to prove the character of the accused in order to show activity in
conformity therewith or whether the other acts evidence is presented for a
legitimate purpose, such as those stated in Evid.R. 404(B).” Id. Third, the
court should “consider whether the probative value of the other acts
evidence is substantially outweighed by the danger of unfair prejudice.” Id.,
citing Evid.R. 403.
{¶24} In Williams, applying the three-part test, the Court determined
that the other acts evidence related to the defendant's conduct and
relationship with A.B. and was properly admitted in accordance with
Evid.R. 404(B) as it helped to prove motive, preparation, and plan on the
part of the defendant. Id. at ¶ 24 –25. With respect to the first step of the
court's three-part test, the court found that A.B.'s testimony was relevant
“because it tended to show the motive [the defendant] had and the
Jackson App. No. 16CA3 13
preparation and plan he exhibited of targeting, mentoring, grooming, and
abusing teenage boys.” Id. at ¶ 22. Further, A.B.'s testimony “rebutted the
suggestion offered by the defense during opening statements that J.H. had
falsely accused [the defendant] of abuse with the hope of getting out of
trouble at school and the suggestion that [the defendant] was sexually
attracted to women.” Id. As for the second part of the test, the court noted
that the evidence of the defendant's relationship with A.B. was not offered to
show that abusing J.H. was in conformity with the defendant's character. Id.
at ¶ 23. “In fact, the trial court gave two limiting instructions that this
evidence was not being offered to prove [the defendant's] character—one
just prior to the testimony of A.B. and one prior to deliberation.” Id. Finally,
with respect to the third part of the test, the court found that the evidence
was not unduly prejudicial given the limiting instructions provided to the
jury. Id. at ¶ 24. “[T]he trial court instructed the jury that this evidence
could not be considered to show that [the defendant] had acted in conformity
with a character trait. This instruction lessened the prejudicial effect of
A.B.'s testimony, and A.B. corroborated J.H.'s testimony about the sexual
abuse, which had been denied by [the defendant].” Id.
{¶25} In State v. Powih, 12th Dist. Brown No. CA2016-11-023,
2017-Ohio-7208, the appellate court found the facts therein to be similar to
Jackson App. No. 16CA3 14
Williams and, after applying the three-part test, concluded that the trial court
did not abuse its discretion in permitting the other acts evidence. The court
found the testimony of the uninindicted complainant in Powih was relevant
as it tended to show the appellant's motive, intent, and plan of targeting and
sexually assaulting female nursing aides in their mid-twenties who were
isolated in a resident's room while caring for elderly patients who lacked
awareness of what was occurring around them. The challenged other acts
testimony was also relevant to prove the absence of mistake and to rebut the
suggestion offered by the defense during opening statements that A.H.
consented to sexual contact with the appellant before falsely accusing the
appellant of assaulting her because she did not want to accept responsibility
for her actions. Id. at ¶ 27.
{¶26} In this case, the trial court’s decision allowing T.S.’s testimony
also cited State v. Herrington. There Herrington was indicted and charged
with multiple counts of gross sexual imposition, one count of kidnapping,
and one count of illegal use of a minor in nudity-oriented material or
performance. Prior to Herrington’s trial, the court addressed appellant's
pretrial motions to exclude other acts evidence pursuant to Evid.R. 404(B).
{¶27} The evidence involved Herrington’s prior acts against a 19-
year-old victim, A.H., in 1995. Before the jury was selected, the trial court
Jackson App. No. 16CA3 15
stated that it would permit A.H. to testify but that evidence of the appellant's
prior conviction would not be admitted. The matter proceeded to jury trial
in March, 2014.
{¶28} A.H., then 37 years old, testified she knew Herrington from the
time of her birth. A.H.'s father and Herrington were “best friends” and both
served as associate ministers at their church. A.H. testified that in 1995,
Herrington approached her at her parents’ home and offered to give her
driving lessons. A.H. accepted his offer because she wanted to get her
driver’s license and was excited for the opportunity to learn how to drive.
Over the course of approximately one month, Herrington took A.H. for
driving lessons on three separate occasions. After the last driving lesson,
Herrington suddenly kissed A.H., placed her on a couch, got on top of her
and forced her to have sexual intercourse. She stated, “I tried to push him
off, but I couldn't get him off of me.”
{¶29} T.B., Herrington’s current victim, was 20 years old at the time
of trial. She testified that she first met Herrington when he began a romantic
relationship with her grandmother when T.B. was approximately 7 or 8 years
old. On separate occasions, T.B. lived with Herrington and her
grandmother. T.B. testified about several incidents when she was
inappropriately touched by Herrington in her grandmother’s home.
Jackson App. No. 16CA3 16
However, several incidents occurred after Herrington offered to provide T.B.
driving lessons when she was 15 years old. After the first driving lesson,
T.B. went up to her bedroom. Herrington followed her to her bedroom and
said he needed to “check [her] pulse” because “she seemed nervous and
tense.” Herrington claimed that he had to check T.B.'s pulse on her chest
and had her take her shirt off. Appellant then “cupped” her breast over her
bra.
{¶30} Approximately two or three weeks later, Herrington offered to
give T.B. a second driving lesson. While in the vehicle, Herrington warned
T.B. not to tell anyone about the driving lessons. When they returned home,
T.B. went upstairs to her bedroom and Herrington followed her. Again,
Herrington asked if he could check her pulse. On this occasion, Herrington
had T.B. take off her pants so he could check her pulse by touching her inner
leg. T.B. testified that she complied and Herrington placed two fingers on
her inner thigh and “brushed” his hand over her “private parts.”
{¶31} One month later, Herrington told T.B. that he was going to
drive to Akron and that he would let her drive on the freeway if she wanted
to join him. T.B. agreed to go along. When they returned home, Herrington
followed T.B. upstairs to her bedroom and began to give her a massage
because he thought she “looked tense.” Herrington then asked her to take
Jackson App. No. 16CA3 17
her shirt off. T.B. testified that she complied because they were alone and
she did not know what would happen if she told him no. T.B. stated that
Herrington continued to give her a massage while she was lying face down
on the bed. Herrington then unclasped her bra and took off her pants. T.B.
testified that Herrington “moved” her underwear to the side and “separated
[her] privates” with his fingers. T.B. closed her legs and Herrington went
downstairs shortly thereafter.
{¶32} The Herrington court was guided by the Supreme Court’s
analysis in Williams. The Herrington court applied the three-step analysis,
reasoning as follows at ¶ 33:
“With regard to the first and second steps of the Williams test,
we find A.H.'s testimony was relevant and was presented for a
legitimate purpose under Evid.R. 404(B). Similar to the factual
scenario in Williams, appellant's relationship and interaction with
A.H. and T.B. were similar in character and method.
Collectively, A.H.'s testimony demonstrated appellant's motives
and the preparation and plan he exhibited, i.e., offering teenage
girls driving lessons and manipulating their confidence and trust
for his own sexual gratification. In our view, if believed by the
jury, such testimony could corroborate portions of T.B.'s
testimony. See Williams at ¶ 22.”
{¶33} The Herrington court, as did the court in Williams, also
elaborated on the fact the trial court gave limiting instructions that the
evidence was not being offered to prove appellant's character. Citing the
same authorities as Williams, the Herrington court further recognized the
Jackson App. No. 16CA3 18
presumption that the jury followed those instructions. Finally, the
Herrington court considered whether the probative value of the other acts
evidence of the prior relationship with A.H. was substantially outweighed by
the danger of unfair prejudice. The Herrington court held:
“In our view, the challenged evidence is not unduly prejudicial
because the trial court instructed the jury that this evidence
could not be considered to show that appellant had acted in
conformity with a character trait. This instruction lessened the
prejudicial effect of A.H.'s testimony, and A.H. corroborated
T.B.'s testimony about appellant's pattern of conduct, which had
been denied by appellant. Thus, Evid.R. 404(B) permitted
admission of evidence of appellant's prior crime because it
helped to prove appellant's motive, preparation, and plan.
Accordingly, the prejudicial effect did not substantially
outweigh the probative value of that evidence.”
{¶34} We begin the three-step analysis by considering whether the
other acts evidence through T.S.’s testimony is relevant to establishing any
fact that is of consequence. M.S.’s testimony regarding the sexual abuse
which she endured is set forth above fully. She testified the abuse began
when she was 10-13 years old and ended when she was 15-16 years old.
Appellant was M.S.’s pastor and family friend. She testified Appellant
bought her candy, food, and clothes. He also let her drive his truck and
promised to help her get her driver’s license if she engaged in sexual
activities with him or allowed him to touch her.
Jackson App. No. 16CA3 19
{¶35} Having reviewed M.S.’s testimony, we find T.S.’s testimony
was relevant to establishing a fact of consequence. In both cases, the abuse
occurred when the teenage girls were the age to be interested in driving, and
the sexual abuse occurred during driving lessons or was endured for the sake
of driving lessons. T.S.’s testimony, if believed, tended to corroborate
M.S.’s testimony that at least part of the abuse she experienced occurred at
approximately the same age and under the same pretextual assistance with
driving lessons.
{¶36} We also consider whether the other acts evidence is presented
for a legitimate purpose. Here, we find T.S.’s testimony was relevant to
establish Appellant’s motive, preparation, and plan. In both instances,
Appellant took advantage of his relationship with the girls’ families and as
the girls’ pastor, in order to gain their trust. The reasonable inference is that
his motive was sexual gratification. It is also reasonable to infer that he
planned and prepared to sexually abuse them by either getting them in a
vulnerable position in his truck with him for driving lessons, or using the
driving lessons as a “carrot” to get M.S. to agree to submit to unwanted
sexual conduct. As in Herrington, Appellant’s relationship and interaction
Jackson App. No. 16CA3 20
with teenage girls was similar in character and method. T.S.’s testimony
demonstrated Appellant’s motives, preparation, and the plan exhibited.1
{¶37} Finally, we consider whether the probative value of the other
acts evidence is substantially outweighed by the danger of unfair prejudice.
Here, the trial court’s ruling announced that it would give a limiting
instruction. The trial court then gave its limiting instruction during the
closing portion of trial, but not prior to T.S.’s testimony. And, the transcript
is devoid of any request for a limiting instruction by Appellant.
{¶38} In Powih, supra, the trial court gave two limiting instructions
regarding other acts testimony. Just prior to allowing the challenged
testimony, the court advised the jury as follows:
“Ladies and gentlemen, you're about to hear evidence
concerning a separate alleged incident, in May 2016, involving
Mr. Powih. This evidence is only being offered and may only
be considered by you in determining whether Mr. Powih had a
common scheme, a plan, or a system in engaging in the conduct
alleged in determining Mr. Powih's preparation, motive, intent,
or absence of mistake or accident, in engaging in the alleged
misconduct, with the alleged victim, in this present case.
You may not—again, you may not consider this evidence as
proof of Mr. Powih's character, in order to show that he acted in
conformity with that character.”
1
See also State v. Shank, 9th Dist. Mahoning No. 12CA0104-M, 2013-Ohio-5368, ¶19 (As in Williams,
[witnesses’] testimony was relevant because it tended to show Shank's motive and plan of targeting for
sexual activity teenage girls who spent the night at his house after drinking alcohol. As the trial court noted,
[the witnesses’ testimony was “highly probative of whether [Shank] acted in conformity with a plan or a
purpose or an intent to commit these sexual offenses against [the complaining witness.].”)
Jackson App. No. 16CA3 21
{¶39} Then, prior to the jury's deliberation, the court provided a
second limiting instruction to the jury regarding the other acts evidence. The
Powih court noted the presumption that the jury followed the court's
instructions and did not consider the other acts testimony to show that Powih
was acting in conformity with bad character. 2
{¶40} In State v. Landers, 2nd Dist. Greene No. 2015-CA-74, 2017-
Ohio-1194, Landers argued that the trial court erred by failing to give a
contemporaneous instruction when the unindicted witness testified about the
“other acts” evidence. However, the Landers court noted that the “other
acts” testimony presented was not extensive, and a limiting instruction was
given. Id. at 65. The Landers court also recognized an earlier decision in
State v. Shaw, 2nd Dist. Montgomery No. 21880, 2008–Ohio–1317, wherein
the court stated: “[t]he limiting instruction should be given at the time the
‘other acts’ evidence is received, [State v.] Lewis, supra, [66 Ohio App. 3d
37, 583 N.E.2d 404 (2nd Dist.1990) ] * * *. Shaw at ¶ 13; Landers at 66.
Landers further noted that in Shaw, it did not say that the limiting instruction
“must” be given at the time of the testimony. “We used the terms “should”
and “either”—meaning that the instruction could be given at the time of the
2
See Williams, 134 Ohio St. 3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 23; State v. Stevens, 12th
Dist., 2017-Ohio-498, ––– N.E.3d ––––, ¶ 32; State v. Ward, 12th Dist. Clermont No. CA2013-07-059,
2014-Ohio-990, ¶ 36.
Jackson App. No. 16CA3 22
testimony or at the end of the trial.” Landers at 67. The Landers court
concluded the trial court did not err in failing to give the instruction at the
time the witness testified, emphasizing that the trial court did give a limiting
instruction and the presumption that the jury followed its instructions.
{¶41} Similarly, in State v. Rodrigues, 10th Dist. Franklin No.
95APA06-683, 1996 WL 146063 (Mar. 26, 1996), Rodrigues faulted the
trial court for not instructing the jury that other acts evidence was to be
considered for a limited purpose only and not as substantive evidence of his
guilt. The Rodrigues court duly noted Rodrigues did not request such an
instruction and thus waived all but plain error. The Rodrigues court opined
trial court's failure to sua sponte issue a limiting instruction to the jury with
respect to the other acts evidence would not have clearly changed the
outcome of the proceedings. Moreover, Rodrigues recognized the Supreme
Court of Ohio’s decision in State v. Schaim, 65 Ohio St. 3d 51, 1992-Ohio-
31, 600 N.E.2d 661, in rejecting a defendant's claim that it was plain error
for a trial court to fail to give a limiting instruction on the use of other acts
evidence, which stated:
“[T]he decision not to request a limiting instruction is
sometimes a tactical one, and we do not wish to impose a duty
on the trial courts to read this instruction when it is not
requested.” Schaim, supra, at 61-62, fn. 9.
Jackson App. No. 16CA3 23
{¶42} Here, we find the probative value of T.S.’s other acts testimony
is not substantially outweighed by the danger of unfair prejudice.
Appellant’s counsel did not request a limiting instruction prior to T.S.’s
testimony, which may or may not have been a tactical decision. However,
the trial court gave a limiting instruction along with the closing jury
instructions. As in Williams and the numerous other cases cited, we
presume the jury followed the court’s instruction.
{¶43} Having engaged in the three-step analysis, we find the trial
court did not abuse its discretion in allowing T.S.’s testimony regarding
other acts of the Appellant. As such, we find no merit to the first assignment
of error and accordingly, it is hereby overruled.
“II. MR. WRIGHT’S TRIAL COUNSEL WAS INEFFECTIVE
FOR FAILING TO MOVE TO SEVER CERTAIN COUNTS
IN HIS INDICTMENT, UNDER CRIM.R. 8 AND CRIM.R.
14, IN VIOLATION OF MR. WRIGHT’S RIGHTS UNDER
THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION, AND
ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO
CONSTITUTION.”
A. STANDARD OF REVIEW
{¶44} Criminal defendants have a right to counsel, including a right
to the effective assistance from counsel. State v. Dukes, 4th Dist. Scioto No.
16CA3760, 2017-Ohio-7204, ¶ 67; McMann v. Richardson, 397 U.S. 759,
771, 90 S. Ct. 1441 (1970), fn. 14; State v. Stout, 4th Dist. Gallia No. 07CA5,
Jackson App. No. 16CA3 24
2008-Ohio-1366, ¶ 21. To establish constitutionally ineffective assistance of
counsel, a criminal defendant must show (1) that his counsel's performance
was deficient and (2) that the deficient performance prejudiced the defense
and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052 (1984); State v. Issa, 93 Ohio St. 3d 49, 67, 752 N.E.2d
904 (2001); State v. Goff, 82 Ohio St. 3d 123, 139, 694 N.E.2d 916 (1998).
“In order to show deficient performance, the defendant must prove that
counsel's performance fell below an objective level of reasonable
representation. To show prejudice, the defendant must show a reasonable
probability that, but for counsel's errors, the result of the proceeding would
have been different.” State v. Conway, 109 Ohio St. 3d 412, 2006–Ohio–
2815, 848 N.E.2d 810, ¶ 95. “Failure to establish either element is fatal to
the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008–Ohio–968,
¶ 14.
{¶45} “When considering whether trial counsel's representation
amounts to deficient performance, ‘a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance.’ ” Dukes, supra, at 68, quoting State v. Walters, 4th
Dist. Washington Nos. 13CA33 & 13CA36, 2014–Ohio–4966, ¶ 23; quoting
Strickland at 689. “Thus, ‘the defendant must overcome the presumption
Jackson App. No. 16CA3 25
that, under the circumstances, the challenged action might be considered
sound trial strategy.’ ” Id. “A properly licensed attorney is presumed to
execute his duties in an ethical and competent manner.” State v. Taylor, 4th
Dist. Washington No. 07CA11, 2008–Ohio–482, ¶ 10; citing State v. Smith,
17 Ohio St. 3d 98, 100, 477 N.E.2d 1128 (1985). “Therefore, a defendant
bears the burden to show ineffectiveness by demonstrating that counsel's
errors were so serious that he or she failed to function as the counsel
guaranteed by the Sixth Amendment.” Walters at ¶ 23; citing State v.
Gondor, 112 Ohio St. 3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 62, and
State v. Hamblin, 37 Ohio St. 3d 153, 524 N.E.2d 476 (1988).
{¶46} “To establish prejudice, a defendant must demonstrate that a
reasonable probability exists that but for counsel's errors, the result of the
trial would have been different.” Dukes at 69, quoting Walters at ¶ 24;
quoting State v. White, 82 Ohio St. 3d 16, 23, 693 N.E.2d 772 (1998) and
State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989), at paragraph
three of the syllabus. “Furthermore, courts may not simply assume the
existence of prejudice, but must require that prejudice be affirmatively
demonstrated.” Walters at ¶ 24. “There are countless ways to provide
effective assistance in any given case; therefore, judicial scrutiny of
counsel's performance must be highly deferential.” Id. (Citations omitted).
Jackson App. No. 16CA3 26
B. LEGAL ANALYSIS
{¶47} At a pretrial hearing, defense counsel indicated a motion to
sever would “probably” be filed. However, this filing did not occur.
Appellant argues the indictment against him was based on allegations that he
sexually assaulted three different individuals over the course of nearly 26
years. He argues while there are some similarities between the accounts as
told by the alleged victims, there were also significant differences.
Appellant points out the allegation by Appellant’s son, supposedly occurring
in 1989 and 1990, differed from the conduct alleged by the teenage female
victims in 2012-2015 and 2009-2010. Appellant argues the cumulative
nature of the allegations caused him prejudice, and furthermore, if counsel
had requested severance, it is likely that it would have been granted and the
outcome of his trials would have been different. Appellant concludes the
failure of his counsel to move to sever the counts pertaining to each of the
alleged victims resulted in his being deprived of due process and a fair trial.
{¶48} Crim.R. 8(A) permits an indictment to charge two or more
offenses “in a separate count for each offense if the offenses charged * * *
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
Jackson App. No. 16CA3 27
course of criminal conduct.” The law favors joining same or similar
offenses in order to “conserve [ ] judicial and prosecutorial time, lessen[ ]
the not inconsiderable expenses of multiple trials, diminish[ ] inconvenience
to witnesses, and minimize[ ] the possibility of incongruous results in
successive trials before different juries.” State v. Freeland, 4th Dist. Ross
No. 12CA3352, 2015-Ohio-3410, ¶ 11, quoting State v. Thomas, 61 Ohio
St.2d 223, 225, 400 N.E.2d 401 (1991); State v. Lott, 51 Ohio St. 3d 160,
163, 555 N.E.2d 293 (1990); accord State v. Fry, 125 Ohio St. 3d 163, 2010–
Ohio–1017, 926 N.E.2d 1239, ¶ 196.
{¶49} Although the law favors joining same or similar offenses for
trial, a defendant may nevertheless request a trial court to sever the offenses.
Freeland, supra, at ¶ 12; Fry at ¶ 197, 926 N.E.2d 1239; State v. LaMar, 95
Ohio St. 3d 181, 2002–Ohio–2128, 767 N.E.2d 166, ¶ 49. Crim.R. 14 states:
“If it appears that a defendant * * * is prejudiced by a joinder of offenses
* * * the court shall order * * * separate trial of counts * * * or provide such
other relief as justice requires.” A defendant who claims that a trial court
erred by refusing a Crim.R. 14 request for separate trials of multiple offenses
must (1) affirmatively demonstrate that his rights were prejudiced and (2)
establish “that the court abused its discretion in refusing to separate the
charges for trial.” State v. Torres, 66 Ohio St. 2d 340, 421 N.E.2d 1288
Jackson App. No. 16CA3 28
(1981), syllabus; accord Fry at ¶ 197, 926 N.E.2d 1239; State v. Hand, 107
Ohio St. 3d 378, 2006–Ohio–18, 840 N.E.2d 151, ¶ 166; State v. Skatzes, 104
Ohio St. 3d 195, 2004–Ohio–6391, 819 N.E.2d 215, ¶ 33. Thus, a reviewing
court will not reverse a trial court's decision regarding a motion to sever
unless the defendant shows that the trial court abused its discretion. We
have set forth the standard of review applicable to an abuse of discretion
argument above.
{¶50} In response to Appellant’s argument, the State argues that
Appellant was not prejudiced by the decision not to file a motion to sever.
The State contends the evidence of each offense was simple, distinct, and
unlikely to confuse a jury. The State contends the evidence of other acts
would be admissible even if the counts had been severed. The State further
argues the evidence of each offense was sufficient to sustain each verdict.
As such, the State concludes Appellant’s trial counsel’s performance was
neither deficient nor prejudicial. We agree with the State’s arguments.
{¶51} The State may negate claims of prejudicial joinder in two
ways. Freeland, supra, at 13; Fry at ¶ 198, 926 N.E.2d 1239. Under the first
method, known as the “other acts” test, joinder is not prejudicial if the joined
offenses would be admissible in separate trials as “other acts” under Evid.R.
404(B). Id.; Lott, 51 Ohio St. 3d at 163, 555 N.E.2d 293. Under the second
Jackson App. No. 16CA3 29
method, known as the “joinder” test, the State is not required to meet the
stricter “other acts” admissibility test, but is merely required to show that
evidence of each crime joined at trial is simple and direct. State v. Roberts,
62 Ohio St. 2d 170, 175, 405 N.E.2d 247 (1980); State v. Torres, 66 Ohio
St.2d at 344, 421 N.E.2d 1288. “The purpose of the ‘joinder test’ is to
prevent the finder of fact from confusing the offenses,” State v. Varney, 4th
Dist. Hocking No. 07CA18, 2008–Ohio–5283, ¶ 19, and “to prevent juries
from combining the evidence to convict” the defendant of multiple crimes,
“instead of carefully considering the proof offered for each separate
offense.” State v. Mills, 62 Ohio St. 3d 357, 362, 582 N.E.2d 972 (1992).
“The two tests are disjunctive, so that the satisfaction of one negates a
defendant's claim of prejudice without consideration of the other.” State v.
Sullivan, 10th Dist. Franklin No. 10AP–997, 2011–Ohio–6384, ¶ 23; accord
Mills, 62 Ohio St. 3d at 362, 582 N.E.2d 972 (stating that “if the state can
meet the joinder test, it need not meet the stricter ‘other acts’ test”). “Thus,
when simple and direct evidence exists, an accused is not prejudiced by
joinder regardless of the nonadmissibility of evidence of these crimes as
‘other acts’ under Evid.R. 404(B).” Lott, 51 Ohio St. 3d at 163–64, 555
N.E.2d 293; State v. Franklin, 62 Ohio St. 3d 118, 122, 580 N.E.2d 1 (1991)
(stating that “an accused is not prejudiced by joinder when simple and direct
Jackson App. No. 16CA3 30
evidence exists, regardless of the admissibility of evidence of other crimes
under Evid.R. 404(B)”).
{¶52} Evidence is “simple and direct” if the jury is capable of readily
separating the proof required for each offense, if the evidence is unlikely to
confuse jurors, if the evidence is straightforward, and if there is little danger
that the jury would “improperly consider testimony on one offense as
corroborative of the other.” Freeland, supra, at ¶ 14, quoting Skatzes at ¶ 34,
citing State v. LaMar, 95 Ohio St. 3d 181, 2002–Ohio–2128, 767 N.E.2d
166, ¶¶ 50–51; State v. Brinkley, 105 Ohio St. 3d 231, 2005–Ohio–1507, 824
N.E.2d 959, ¶ 37; Varney at ¶ 19. Thus, a defendant does not suffer
prejudice from joinder of offenses when the offenses charged in an
indictment are “simple and distinct,” when “[t]he factual situation of each
crime was easy to understand and was capable of segregation, and when
“[t]he crimes involved different victims, different factual situations and
different witnesses.” State v. Clifford, 135 Ohio App. 3d 207, 212, 733
N.E.2d 621 (1st Dist.1999).
{¶53} In Freeland, we considered the issue of joinder Freeland raised
on appeal. In 2012, the Ross County Grand Jury returned an indictment
charging Freeland with six counts of gross sexual imposition, three counts of
felonious sexual penetration, and five counts of rape. The allegations arose
Jackson App. No. 16CA3 31
from reports law enforcement officers received between 2007 and 2009, that
during the mid-1990s, Freeland sexually abused his step-children, and
another young child whom he had tutored. Freeland filed a motion to sever
the offenses, which the trial court subsequently overruled. Freeland was
convicted of many of the offenses.
{¶54} In our decision affirming Freeland’s convictions, we
considered the joinder issue and found that the State satisfied the elements of
the joinder test. Id. at 15. We observed that “the State presented simple and
direct testimony from three different individuals who described distinct and
separate acts that Appellant allegedly committed against them.” Id. J.F., a
twenty-two year old female, described sexual acts that occurred when she
was a young child living with Freeland, who was her step-father. J.B., J.F.'s
twenty-four year old brother, testified that when J.B. was around seven or
eight years old, Freeland rubbed or touched his penis on two occasions.
D.T., a twenty-nine year old male who was unrelated to the other two
witnesses, described several incidents of fellatio and anal sex occurring
when he was ten and eleven years old.
“Each witness thus provided a different account of the acts
appellant allegedly committed against them and there was no
overlap in the testimony.3 * * * Although the acts may have
3
See State v. Clyde, 6th Dist. Erie No. E–14–006, 2015–Ohio–1859, ¶ 38, quoting State v. Lewis, 6th Dist.
Lucas Nos. L–09–1224, L–09–1225, 2010–Ohio–4202, ¶ 33 (concluding that evidence simple and direct
when “each victim testified as to his or her own experiences with [the defendant]” and stating joinder is not
Jackson App. No. 16CA3 32
occurred around the same approximate time, the state presented
each witness's testimony separately so that there was no danger
of confusing the evidence. Furthermore, the state presented
more than sufficient evidence with respect to each victim so
that there is no danger that the jury convicted appellant based
upon a cumulation of evidence.4
{¶55} As in Freeland, we have reviewed the trial transcript and find
that the State satisfied the elements of the joinder test. The State presented
simple and direct testimony from the three victims, M.S., a teenage girl,
T.R., a mentally challenged adult female, and J.W., his own son. With
regard to the female victims, Appellant abused his friendship with the family
and his authority as a pastor in their church to sexually assault the females.
As to the male victim, Appellant abused his position of authority as a parent.
{¶56} The details of the sexual abuse M.S. suffered have been
previously discussed. Further, on cross-examination, M.S. testified she went
to Appellant’s house nearly every day during the summers. On Sundays,
after church, she would go home with Appellant and work in the barn until
going back to church Sunday evening. Sometimes she stayed overnight,
sleeping in a recliner or on the floor in Appellant’s room. Appellant’s wife
and son were present at times. Appellant’s wife was often away at work.
prejudicial when “ ‘the evidence is presented in an orderly fashion as to the separate offenses or victims
without significant overlap or conflation of proof’ ”).
4
See State v. Hand, 107 Ohio St. 3d 378, 2006-Ohio-18, 840 N.E.2d 151, at ¶ 170, quoting Torres, supra,
66 Ohio St.2d at 344, 421 N.E.2d 1288 (1981), and State v. Jamison, 49 Ohio St. 3d 182, 187, 552 N.E.2d
180 (1991).
Jackson App. No. 16CA3 33
M.S. acknowledged that she never feigned illness to get out of going to
Appellant’s house. She testified she never told her twin sister about the
abuse.
{¶57} In sum, Appellant’s acts of sexual abuse committed on M.S.
involved his taking advantage of a young teenage girl by virtue of his
position of authority and were aided by his bestowing gifts of food and
clothing and driving privileges. Although M.S. was forced to endure
wrongful sexual conduct, Appellant told her he loved her and held out the
gifts and driving lessons as quid pro quo for the unwanted sexual advances.
M.S. testified on one occasion when she cried and said she was sick, he left
her alone.
{¶58} By contrast, Appellant’s criminal sexual activity with T.R. was
cruel, forceful, and at times violent. He called her names. Sometimes, if she
refused to engage in sexual conduct, Appellant would slap her back, hit her
face, and “do it anyways.”
{¶59} At trial, T.R., age 35, testified she has lived with her mother
almost her entire life. She was in special classes in school, but dropped out
in 10th grade due to bullying. She has never been employed and is unable to
drive a car. She testified she has seizures, PTSD, and a learning disability.
Jackson App. No. 16CA3 34
T.R. also identified Appellant and testified she attended the church he
pastored. Appellant was also her neighbor.
{¶60} T.R. testified she went to Appellant’s house for cookouts. She
enjoyed petting his horses and cows and sitting outside under a tree. In
2009, she lived at Appellant’s house for approximately one year. Appellant
promised he would help her obtain a GED and get a car. She slept on a
couch in the living room. She cleaned, vacuumed, and did outside work.
{¶61} T.R. was alone with Appellant when his wife and sons went to
work. She testified she had sexual relations with him. He touched her
breasts and vagina. At this point, T.R. became emotional and the court took
a break. When her testimony resumed, she explained she quit doing outside
work because Appellant told her she did it wrong. Appellant called her “the
b-word,” “idiot,” and “stupid.”
{¶62} Appellant touched her with his hands and he placed his penis
inside her vagina and her anus. Her mouth touched his penis. T.R.
emphasized she “never” wanted to do these things.
{¶63} T.R. testified one time, in the living room, she was laying on
her side because Appellant shoved her head onto his penis. Appellant’s son
J.W. overheard them arguing, came out and said “Dad you did it again.”
T.R. testified J.W. punched Appellant’s face. Then J.W. smacked and
Jackson App. No. 16CA3 35
pushed her. Appellant’s wife found out. T.R. lived there another week until
someone in church found her an apartment.
{¶64} On cross-examination, T.R. acknowledged she lived at
Appellant’s house because she wanted to get away from her mother and
experience life. She testified she never told anybody about Appellant’s
abuse because she was “scared to death.” She admitted that when Appellant
hit her, she did not have bruising.
{¶65} T.R. testified that when Appellant’s wife overheard the
commotion, she screamed “Oh, oh this done ruined everything. He ruined
my life.” T.R. denied leaving her mother’s house to get away from abuse by
her mother. She testified Appellant took her pills and she had seizure
activity. When she has seizures, she sits and stares.
{¶66} On redirect, T.R. explained that she cannot remember what
happens during a seizure, but it does not make her forget other things.
{¶67} The sexual abuse M.S. and T.R. described was different from
that suffered by the third victim, Appellant’s son J.W. J.W., age 37, testified
he grew up in a very strict household. His father would punish him by
beating him with a horse whip, ball bats, a water hose, a chunk of wood, or
“whatever” was nearby. When J.W. was 9 or 10, his father would touch
J.W.’s penis in the shower or the bedroom. Usually, after a spanking, his
Jackson App. No. 16CA3 36
father would throw him back into bed and caress him in an inappropriate
way. Appellant would touch his anus and insert his fingers. J.W. never told
anyone and over the years, Appellant eventually quit abusing him.
{¶68} J.W. testified Agent Schuler sought him out and questioned
him. J.W. testified he and his wife were staying at Appellant’s house during
2009-2010. One night, he heard a noise and went into the living room and
saw T.R. “giving my dad a blow job.” Appellant ran into the bedroom. J.W.
confronted him and hit him in the mouth. J.W. was also upset with T.R.
However, J.W. did not report the incident. J.W. does not have a relationship
with T.R. J.W. admitted he had a misdemeanor conviction for falsification.
{¶69} On cross-examination, J.W. described T.R. as follows: “I
didn’t think she was all there. I thought something might have been wrong
with her * * * mentally.” However, he also testified she could cook, help
mow, and he thought she knew right from wrong. J.W. also admitted when
he was 13 or 14, he was removed from the home because his parents could
not control him.
{¶70} We find the evidence presented by the State’s three
complaining witnesses to be simple and direct. While there are some
similarities, such as the fact M.S. and T.R. knew Appellant through church,
and that M.S. and T.R. both performed farm chores for Appellant, each
Jackson App. No. 16CA3 37
witness testified to his or her own experiences. The three witnesses’
testimony regarding their own unwanted sexual encounters was detailed and
straightforward. We also note, as a matter of the presentation of evidence,
there were other witnesses that testified between M.S. and T.R., and then
between T.R. and J.W. The only overlap in testimony occurred when J.W.
testified he walked in on the sexual activity between Appellant and T.R.,
however we do not find that overlap to be significant.
{¶71} In Freeland, we also observed that courts have held that any
prejudice that results from the joinder of offenses is minimized when a trial
court cautions a jury before deliberations to consider each count, and the
evidence applicable to each count separately, and to state its findings as to
each count uninfluenced by its verdict on any other counts. Freeland, supra,
at 16; State v. Gibson, 6th Dist. Lucas No. L–13–1223 and L–13–1222,
2015–Ohio–1679, ¶ 30; State v. Meeks, 5th Dist. Stark No. 2014CA17,
2015-Ohio-1527, at ¶ 99; State v. Hillman, 2014-Ohio-5760, 26 N.E.2d
1236 (10th Dist.), at ¶ 40. Here, at Appellant’s trial during closing, the trial
court instructed:
“The charges set forth in each count in the indictment
constitutes 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. The defendant may be
Jackson App. No. 16CA3 38
found guilty * * * the defendant may be found guilty or not
guilty of any one or all the offenses charged.”
{¶72} As in Freeland, based on our review of the record, we find the
evidence and testimony presented was simple and direct. And, we see
nothing to indicate that the jury failed to follow the trial court's instructions.
See State v. Gibson, 6th Dist. Lucas Nos. L-13-1223 and L-13-1222, 2015-
Ohio-1679, at ¶ 30 (“Absent evidence to the contrary, we indulge the
presumption that the jury followed the instructions of the trial court.”). In
fact, we observe that the jury declined to return a guilty verdict on
Appellant’s charge of illegal use of a minor in nudity-oriented material.
This gives us some indication that the jury considered each charge carefully
and separately.
{¶73} Freeland further asserted that the State failed to satisfy the
“other acts” test, and, thus, joinder of the offenses prejudiced him. We
determined, however, that the State negated Freeland’s claimed prejudice by
showing that the evidence regarding each offense is simple and direct. Id. at
17. The Supreme Court of Ohio held that “when simple and direct evidence
exists, an accused is not prejudiced by joinder regardless of the
nonadmissibility of evidence of these crimes as ‘other acts' under Evid.R.
404(B).” Lott, supra, 51 Ohio St.3d at 163, 555 N.E.2d 293. Thus, joinder
of the offense was not prejudicial. Here, as in Freeland, even if we had
Jackson App. No. 16CA3 39
found the evidence of Appellant’s other offenses to have been inadmissible
other acts, having found the evidence of offenses to be simple and direct,
joinder of offenses for purposes of trial was not prejudicial to Appellant.
{¶74} Therefore, having found that joinder of the offenses was not
prejudicial to Appellant, we further find that he was not rendered the
ineffective assistance of counsel by his attorneys’ failure to file a motion to
sever. Freeland also raised this argument on appeal. Freeland’s trial counsel
had filed a motion to sever the offenses, but did not file it in accordance with
the correct time limits. However, the trial court considered the merits of
Freeland’s motion to sever and only cited trial counsel's failure to timely file
the motion as an additional reason for denying the motion.
{¶75} In Freeland, having determined that the trial court ultimately
ruled on the merits of his motion to sever, we failed to see how Freeland
suffered prejudice as a result of trial counsel's failure to timely file the
motion. We cited State v. Carr, 9th Dist. Summit No. 26661, 2014–Ohio–
806, ¶ 25, wherein the appellate court rejected an ineffective assistance of
counsel claim due to trial counsel's failure to renew motion to sever at the
close of the evidence when the record revealed no evidence that joinder of
offenses prejudiced Carr.
Jackson App. No. 16CA3 40
{¶76} Here, we have considered the merits of the severability
argument and found that Appellant was not prejudiced by the offenses being
joined at trial. Had Appellant’s counsel filed the motion to sever, the trial
court reasonably could have reached the same conclusion and denied
severance. Therefore, we likewise fail to see how Appellant was rendered
the ineffective assistance of counsel by counsel’s failure to file a motion to
sever which could reasonably have been denied.
{¶77} For the foregoing reasons, we find Appellant was not rendered
ineffective assistance of counsel by his attorneys’ failure to file a motion to
sever. As such, we find no merit to the second assignment of error.
Accordingly, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Jackson App. No. 16CA3 41
Harsha, J., dissenting in part and concurring in part:
{¶78} I conclude the trial court abused its discretion in finding the
probative value of T.S.’s other acts evidence was not substantially
outweighed by its prejudicial effect in the context of this trial. The state
already had joined 15 counts of sexual abuse that the jury was going to hear.
To add additional evidence of similar conduct to that evidence went way too
far in my opinion.
{¶79} In all other regards I concur in judgment and opinion.
Jackson App. No. 16CA3 42
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Jackson County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Dissents in Part and Concurs in Part with Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.