State v. Shivers

[Cite as State v. Shivers, 2018-Ohio-5174.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106601
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DORJAN M. SHIVERS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-584116-A
BEFORE: McCormack, J., Kilbane, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: December 20, 2018
ATTORNEYS FOR APPELLANT
Myron P. Watson
1144 Rockefeller Bldg.
614 West Superior Ave.
Cleveland, OH 44113
Anthony D. Jordan
614 W. Superior Ave., Suite 1144
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Jeffrey Schnatter
Christine M. Vacha
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant Dorjan M. Shivers appeals from his convictions for rape and
kidnapping following two jury trials. For the reasons that follow, we affirm the convictions.
I. Procedural History
{¶2} On April 16, 2014, Shivers was charged in a multiple-count indictment pertaining
to acts allegedly committed against two victims, A.T. and A.C., on two separate occasions. The
first three counts stem from acts committed against A.T. on May 18, 2013, and they include:
Count 1 — rape in violation of R.C. 2907.02(A)(2), with a sexually violent predator
specification; Count 2 — rape in violation of R.C. 2907.02(A)(1)(c), with a sexually violent
predator specification; Count 3 — kidnapping in violation of R.C. 2905.01(A)(4), with a sexually
violent predator specification and a sexual motivation specification.
{¶3} The remaining four counts pertain to acts committed against A.C. on January 11,
2013, and they include: Count 4 — rape in violation of 2907.02(A)(2) (digital penetration), with
a sexually violent predator specification; Count 5 — rape in violation of 2907.02(A)(2) (vaginal
intercourse), with a sexually violent predator specification; Count 6 — gross sexual imposition in
violation of 2907.05(A)(1), with a sexually violent predator specification; and Count 7 —
kidnapping in violation of 2905.01(A)(4), with a sexually violent predator specification and a
sexual motivation specification.
{¶4} Shivers filed a motion to sever the counts in the indictment as they pertained to
each alleged victim. The court denied his motion, and the matter proceeded to trial. On
March 29, 2017, the jury returned the following verdict: not guilty of Count 1 (rape), Count 3
(kidnapping), Count 6 (gross sexual imposition), and guilty of Count 2 (rape). The jury was
hung on Counts 4, 5, and 7, all of which pertain to acts allegedly committed against A.C. The
court then declared a mistrial on Counts 4, 5, and 7 and scheduled a new trial on those remaining
counts. The state agreed to dismiss the sexually violent predator specification on Count 2.
{¶5} On October 2, 2017, Shivers waived his right to a jury trial on the sexually violent
predator specifications (on Counts 4, 5, and 7) and the sexual motivation specification (on Count
7). On October 12, 2017, the jury found Shivers guilty of all remaining counts: rape (Counts 4
and 5) and kidnapping (Count 7). The court found Shivers not guilty of the sexually violent
predator specifications and guilty of the sexual motivation specification. At sentencing, the
court merged the kidnapping conviction in Count 7 with the rape conviction in Count 4. The
court then imposed a prison sentence of five years each on Counts 2, 4, and 5, to be served
concurrently.
II. Assignments of Error
{¶6} Shivers now appeals his convictions, raising six assignments of error. For judicial
clarity and ease of discussion, we address the following errors out of order where appropriate:
I. The prosecutor engaged in prosecutorial misconduct by impermissibly
commenting that the appellant’s time to say “no” had passed, which was an
improper comment on his right not to testify, and was irrelevant to any factual
issues in the case.
II. The trial court erred when it denied the [appellant’s] motion for mistrial when
the state of Ohio failed to timely provide a written statement of A.C., which was a
discovery violation, and denied [the appellant] due process of law.
III. The trial court erred when it failed to grant [the appellant’s] motion for
separate trials, and this failure denied him a fair trial, thus violating his right of
due process.
IV. The trial court erred when it denied the appellant’s motion for judgment of
acquittal for rape (substantial impairment) when the state’s evidence was
insufficient as a matter of law.
V. The trial court erred when it accepted the verdicts of the jury although one of
the jurors did not affirm her verdict and there was no unequivocal assent to the
verdict.
VI. The trial court erred when it admitted over the defense’s objections to the
admission of the former testimony of A.C. in the first trial, in violation of Evid.R.
804, without a showing of unavailability.
III. Evidence at Trial
{¶7} The state presented the following witnesses: (1) alleged victim, A.C.; (2)
Mayfield Heights Police Corporal Joseph Leskovec; (3) Mayfield Heights police detective
Sergeant Donald Oberdoester; (4) alleged victim, A.T.; (6) Euclid police officer David Maslyk;
(7) A.T.’s mother, E.T. (“Mother”); (8) A.T.’s friend, Tyler Hawkins; and (9) A.T.’s friend,
Keeada Johnson. The defense presented one witness: A.C.’s former boyfriend, Gerald Reid.
A.C.
{¶8} From October 2012 to January 2013, A.C. worked as a server at Pizza Hut in
Cleveland. A.C. testified that during the time she worked at Pizza Hut, she became friends with
the defendant, Dorjan Shivers, who was a supervisor at Pizza Hut. A.C. stated that she and
Shivers were not romantically involved. During this time, A.C. was dating Gerald Reid, who
was in the military and stationed in New Jersey.
{¶9} On January 1, 2013, Pizza Hut terminated A.C., but she and Shivers remained in
touch through text messaging and “casual conversation.” At some point in January, Shivers and
A.C. decided to “kickback” and “hang out with other people and just relax.” A.C. described a
“kickback” as “a lot of people coming over, or several people coming over, food, maybe
watching [television], very relaxed environment.” She stated that it was Shivers’s idea to go to
his apartment in Mayfield Heights.
{¶10} Shivers picked A.C. up the evening of January 11 and drove to his apartment.
When they arrived, there was only one other person in Shivers’s apartment, Shivers’s cousin.
Shivers poured A.C. a blue alcoholic beverage, introduced A.C. to his cousin, and then led A.C.
to his bedroom. A.C. testified that she was “kind of shocked” that there was no one else in the
apartment.
{¶11} Once in the bedroom, they both sat on the edge of the bed, with her feet hanging
off to the side, and there was some space between the two of them. A.C. testified that after
approximately 15 minutes of watching television and conversing, Shivers began touching her
breast and attempted to hug her. She told him to stop, and she pushed his arm away from her
body. A.C. stated that he stopped briefly and then began to “play wrestle,” explaining that
Shivers was hugging her and trying to get her to lie back on the bed. A.C. told Shivers, “No,
no, stop, get up,” and she sat up. After briefly stopping, once again, Shivers “bear hug[ged]”
A.C. and wrestled her so that her back was on the bed. At this point, A.C. told Shivers that she
had a boyfriend and she told him to stop. A.C. testified that she was “very firm” in telling
Shivers to stop multiple times and she “definitely did communicate * * * to him that [she] did
not want to have any kind of sexual activity with him.”
{¶12} After A.C. told Shivers about her boyfriend, Shivers briefly stopped his advances,
and then for the third time, Shivers pulled her down to the bed. A.C. stated that she resisted,
but because he was stronger than A.C., he continued to pull her down. She began to “scoot”
away from him, toward the wall, telling him “no.” At this point, Shivers got on top of A.C. and
put his hands in her pants and then in her underwear. She continued to say “no” and tried to
remove his hand while scooting toward the wall. A.C. stated that rather than stopping, Shivers
continued his behavior “more forcefully.” She explained that he fondled her vaginal area and
then penetrated her with his finger. A.C. testified that as Shivers became more aggressive, she
became “a little scared” and “shock[ed].” She stated that she began to resist less because she
“started to go a little numb,”“emotionally * * * withdraw[n].”
{¶13} A.C. then testified as follows:
He started unbuttoning his pants and he tried to pull my pants off and I pulled my
pants back on, and then he tried to take them off again.
***
I kept repeating “I can’t do this.”
***
After I pulled my pants back up, he pull[ed] my pants back down again, this time
with my underwear, and he pull[ed] his pants off as well, and I’m still a little
shocked at this point about what’s going on and [I’m] scared.
***
He inserted the tip of his penis into my vagina, and then he paused for a few
seconds and he reach[ed] over to the small little desk and he grab[bed] a condom
and he put[] it on and he continues to have sex with me. * * * He put his penis
inside of [my vagina] and repeatedly put it inside of me.
{¶14} When Shivers finished, he went into the bathroom. A.C. looked for her cell
phone. Finding it on the floor, she crouched down and called her boyfriend. A.C. stated that
she was crying when she told her boyfriend “everything.” When she heard the bathroom door
open, she hung up the phone. Shivers then drove A.C. home.
{¶15} When A.C. arrived home, she called her boyfriend again to explain what happened.
She testified that she was crying and she was “a little hysterical.” She took a shower before
she went to bed. The next day, A.C. telephoned a friend, Renee, and told her what happened.
A.C. testified that Renee offered to drive her to the police station, and A.C. accepted her offer.
Two days after the alleged rape, A.C. filed a police report. Thereafter, she went to the hospital,
where a sexual assault nurse examiner (“SANE”) examined her.
{¶16} Reid, A.C.’s boyfriend on January 11, 2013, testified that A.C. told him earlier that
day that she was going to a party in the evening. He stated that A.C. called him that evening,
extremely upset and crying. A.C. told him she had been raped. Reid testified that it was a
very short conversation. When they spoke again that evening, A.C. was still upset and crying,
and she explained to Reid in more detail what happened at Shivers’s apartment.
{¶17} Corporal Leskovec received A.C.’s sexual assault report on January 13, 2013, and
met with A.C. Thereafter, he scheduled an interview with Shivers. Both Corporal Leskovec
and Detective Oberdoester interviewed Shivers. Corporal Leskovec completed his initial report,
and Detective Oberdoester took the case from there. The detective testified that after
interviewing Shivers, he attempted numerous times to contact A.C. to no avail.
A.T.
{¶18} A.T. was a high school student in May 2013. On the evening of May 18, A.T. and
two friends, Tyler and Keeada, decided they wanted to hang out. A.T. went to Tyler’s house
first and then Tyler’s mother drove them to Keeada’s house. The friends decided to hang out at
Tyler’s friend’s place. This friend was Dorjan Shivers. A.T. explained that there was no
discussion regarding plans for that day. All she knew was that they were going to Tyler’s
friend’s place. She did not know if Tyler and Keeada had planned to visit the friend and A.T.
was “just tagging along.” A.T. learned of the plan when she and Tyler arrived at Keeada’s
house. A.T. understood that the three of them were going to “chill with these guys,” meaning
“hang out, go over their house.” A.T. did not know the other people.
{¶19} Shivers, accompanied by two other men, picked up the three friends. He drove
everyone back to his apartment.
{¶20} Arriving at the apartment, A.T. observed a “stripper pole” in the middle of the
living room and “a lot of gelatin (Jello) shots” in the kitchen. She talked only to Tyler initially
because, she stated, she felt comfortable around her.
{¶21} A.T. testified that there was drinking and there were drugs at the party, and
although she had never had alcohol before this night, she was drinking alcohol that night in
Shivers’s apartment. She stated that she had one Jello shot and what she believed to be two
shots of tequila. At some point, however, she learned that they were double shots of tequila.
She also smoked marijuana. A.T. stated that she was feeling different, not normal, after
drinking. She remembered feeling “tipsy, drunk, like really drunk.”
{¶22} A.T. remembered that, after drinking, Shivers picked her up off the couch in the
living room and carried her to the bedroom. At the time, they had not been talking to each
other. When they got to the bedroom, Shivers began kissing her and tried to pull her skirt
down. She remembered pulling her skirt back up and telling Shivers “no.” A.T. testified that
Shivers did not stop. At this point, Keeada came into the bedroom and walked right back out.
Shivers left the bedroom as well. A.T. remembered then trying to pull her skirt back up again
and she “passed out on the bed and fell asleep.”
{¶23} The next thing A.T. remembered was seeing a flash that awakened her and then
seeing Shivers pull her skirt down again. He proceeded to have sex with her, despite A.T.
telling him to stop. She stated that she was physically unable to get “him off [her].”
{¶24} When Shivers finished, he left the room, and A.T. called her boyfriend, crying.
She told her boyfriend that Shivers raped her. A.T. stated that her boyfriend then called A.T.’s
mother and they had a three-way conversation. While A.T. was on the phone with her mother
and her boyfriend, Tyler came into the bedroom and hung up the phone. A.T. was still crying
when Tyler confronted Shivers and demanded to know what happened. A.T. told Tyler that
Shivers raped her. A.T. testified that she told Tyler “the guy in the red shirt” raped her,
explaining that she “knew who it was, but [she] couldn’t use her words.” She identified Shivers
as the only man who was wearing a red shirt that night.
{¶25} After the confrontation, A.T., Tyler, and Keeada engaged in a verbal altercation,
but A.T. cannot recall what the fight was about. Someone then drove the girls back to Keeada’s
house. She vomited on the way to Keeada’s house. A.T. remembered someone taking her
outside, where she passed out on the lawn. She could not walk on her own. She remembered
falling asleep on the lawn and then seeing her mother arrive. A.T.’s mother and her stepfather
picked her up and placed her in their car, and her mother called the police. A.T. stated that she
was not able to get up off the ground herself, nor was she able to talk. The police arrived, and
A.T.’s mother spoke with the police.
{¶26} The next morning, A.T. explained to her parents what happened the previous night.
A.T. testified that she told her mother that Shivers worked at Pizza Hut. Her mother then
“took the initiative and searched down every Pizza Hut that was close to us and that’s how she
found Mr. Shivers.” A.T. stated that her parents confronted Shivers and they drove to the police
department and filed a report. Thereafter, A.T. went to the hospital, where a SANE nurse
examined her.
{¶27} A.T.’s mother (“Mother”) testified that one evening in May 2013, she received a
call from A.T.’s boyfriend, who expressed concern because he could not understand what A.T.
had been saying over the phone. She was incoherent. Mother went to Tyler’s place, knowing
that A.T. was supposed to be with Tyler. When she arrived, she spoke with Tyler’s mother,
who then called Tyler to inquire about A.T.’s whereabouts. Mother learned that A.T. was in the
area of E. 222nd Street. Mother then drove to that location and found A.T. on a tree lawn, alone
and crying. Mother testified that she smelled alcohol and she could not understand what A.T.
was saying. Mother’s boyfriend picked A.T. up, carried her “like a baby” to the car, and he
placed her in the back seat of the car.1 Mother stated that A.T. was limp and could not walk on
1
Mother refers to this gentleman as her “ex-boyfriend” and her boyfriend. A.T. identified the individual who
helped her into the car as her stepfather.
her own. She did not remember who phoned the police, but at some point, the police arrived.
After speaking with a police officer, Mother took A.T. home.
{¶28} Mother learned the following morning what happened to A.T. After speaking
with A.T., Mother drove to area Pizza Huts, looking for Shivers. Mother testified that she
wanted to confront Shivers because she believed he gave her underage daughter alcohol and
because A.T. “felt like someone touched her.” When she found Shivers, she confronted him,
and she told the manager to phone the police. Mother testified that Shivers apologized to her.
She then drove A.T. to the police station to file a report. Mother stated that both she and A.T.
met with the police and, thereafter, she drove A.T. to the hospital for an examination.
{¶29} A.T.’s friend, Tyler, had known A.T. from school since 2010 or 2011, but they
became friends beginning in 2012. They typically hung out at A.T.’s mother’s place, playing
computer games. Tyler stated that in 2013, she had been acquaintances with Shivers, having
met at Pizza Hut. She had previously hung out with Shivers, along with Keeada, but never A.T.
{¶30} Tyler testified that in May 2013, Shivers picked her, A.T., and Keeada up and
drove the girls back to his apartment. Tyler stated that A.T. was a loner, not talkative, and she
did not previously drink alcohol. When they arrived at Shivers’s apartment, Tyler remembered
there being a lot of alcohol, including “vodkas, tequilas, and whiskeys.” Tyler testified that all
three girls were drinking alcohol that night, and she could tell that A.T. was becoming
intoxicated. She stated that A.T. was “slurring her words * * * acting weird * * * jut totally
completely not herself.” She continued, “I just told you she was [a quiet person]. She wasn’t
quiet. She was walking around. She was just totally, completely opposite of who she is.”
{¶31} Tyler testified that she remembered at some point toward the end of the evening,
she saw A.T. going into the bedroom, and then she saw Shivers come from the bedroom, and he
told Tyler that she needed to “go in the back room and get my friend.” When Tyler went into
the bedroom, she saw A.T. lying on her back “spread eagle” on the bed “with her panties on and
her shirt up and she was saying [Shivers] raped her.” Tyler described finding A.T. “a wreck
* * * terrified * * * almost like traumatized.” Tyler further testified that one could definitely
tell A.T. was drunk and she was “freaking out.”
{¶32} After A.T. indicated that she was raped, Tyler confronted everyone in the
apartment about what happened. No one answered her. Tyler stated that she and Keeada had
to physically dress A.T. At that point, she and the other girls began receiving phone calls from
their mothers. Tyler explained that she answered A.T.’s phone “because [A.T.] was so drunk
she couldn’t answer the phone.” Tyler testified that A.T.’s mother instructed Tyler to have A.T.
waiting outside Keeada’s house after the girls were dropped off.
{¶33} Keeada was acquainted with A.T. through Tyler. Keeada also knew Shivers
through Tyler. Keeada testified that every time she and Tyler hung out with Shivers, they
would drink. Before May 2013, A.T. never hung out with Keeada, Tyler, and Shivers.
{¶34} Keeada testified that on that evening in May 2013, all three girls were drinking.
Specifically, she remembered them “taking shots.” Keeada stated that A.T. was not dancing
with the others; rather, she was “chilling” and on the phone. According to Keeada, A.T. was
not talking to Shivers during the night.
{¶35} At some point, Keeada noticed that A.T. was not around, stating she “disappeared
for a while.” Keeada went looking for A.T. in the apartment. She discovered her in the back
bedroom with Shivers. She saw A.T. on the bed with her pants unbuckled and unzipped, and
Shivers was standing up with his pants unbuckled as well. A.T.’s testimony identified a skirt,
rather than pants, being pulled down or off. Keeada told A.T. that they should go, and she
began to tug on A.T., but A.T. would not get up. So Keeada went back into the living room to
get Tyler’s help. When Keeada returned to the bedroom with Tyler, Keeada recalled that A.T.
was “hanging halfway off the bed,” her pants were completely off, and her panties were at her
knees. Keeada stated that Shivers’s pants were off as well. When Keeada and Tyler tried to
get A.T. off the bed, she began to cry “hysterically.” A.T. indicated that Shivers raped her.
{¶36} Keeada testified that she and Tyler dressed A.T., and Shivers drove them back to
Keeada’s place. Keeada stated that A.T. was vomiting on the car ride home and she was
unsteady on her feet. After they arrived at Keeada’s place, Tyler walked A.T. outside to meet
her mother.
{¶37} Officer Maslyk responded to a call from dispatch in the early morning hours in
May 2013 concerning an intoxicated juvenile in the area of E. 222nd Street. Officer Maslyk
identified A.T.’s mother as the individual who called the police, reporting that Mother had
discovered her daughter lying in the front yard, heavily intoxicated. The officer recommended
that Mother take A.T. to the hospital. He also offered to call an ambulance to the scene to have
A.T. evaluated due to her level of intoxication. Officer Maslyk stated that “someone who’s
extremely impaired, who’s lying in the front yard, who is slurring their words, who can’t even
give a simple sentence, generally, we want them checked out by an EMS or taken to the hospital
to get them evaluated.” The officer testified that A.T. was exhibiting these symptoms. He
further stated that A.T. was mumbling the same words. A.T.’s mother, however, decided to
bring A.T. home, and Officer Maslyk’s involvement with A.T. and her mother ended.
{¶38} Corporal Leskovec testified that he was involved in the investigation of a
complaint filed by A.T. in May 2013, which was similar in nature as the complaint filed by A.C.
in January and likewise implicated Shivers. Corporal Leskovec received the initial report and
met with A.T., Mother, and Mother’s boyfriend. He obtained a statement from A.T., forwarded
the information to Detective Oberdoester, and called Shivers back into the police station for an
interview regarding A.T.’s complaint.
{¶39} Detective Oberdoester testified that approximately four months after receiving
A.C.’s complaint of a sexual assault, the department received a second complaint concerning
Shivers. The second alleged victim was A.T. After reviewing Corporal Leskovec’s report
concerning A.T.’s complaint, Detective Oberdoester learned that the alleged rape occurred at the
same location stated in A.C.’s complaint. The detective then interviewed A.T., Mother, and
Tyler. Thereafter, Detective Oberdoester attempted once again to locate A.C. This attempt
was successful, and charges were filed in both cases.
IV. Sufficiency of the Evidence
{¶40} In his fourth assignment of error, Shivers contends that the trial court erred in
denying his Crim.R. 29 motion for acquittal because his conviction for rape in violation of R.C.
2907.02(A)(1)(c) is not supported by sufficient evidence. Shivers argues that the state failed to
show that the victim, A.T., was substantially impaired and that he knew or should have known
that she was substantially impaired.
{¶41} A Crim.R. 29 motion challenges the sufficiency of the evidence. When assessing
a challenge of sufficiency of the evidence, a reviewing court examines the evidence admitted at
trial and determines whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus. “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.” Id. A reviewing court
is not to assess “whether the state’s evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction.” State v. Thompkins, 78 Ohio St.3d
380, 390, 678 N.E.2d 541 (1997).
{¶42} R.C. 2907.02(A)(1)(c) provides that “no person shall engage in sexual conduct
with another * * * when [t]he other person’s ability to resist or consent is substantially impaired
because of a mental or physical condition * * * and the offender knows or has reasonable cause
to believe that the other person’s ability to resist or consent is substantially impaired because of a
mental or physical condition * * *.”
{¶43} “A person acts knowingly, regardless of his purpose, when he is aware that his
conduct will probably cause a certain result or will probably be of a certain nature.” R.C.
2901.22(B). Whether a person acted “knowingly” is inferred from the totality of the
circumstances surrounding the alleged offense. State v. Jones, 8th Dist. Cuyahoga No. 101311,
2015-Ohio-1818, ¶ 42, citing State v. Booth, 133 Ohio App.3d 555, 562, 729 N.E.2d 406 (10th
Dist.1999).
{¶44} The Ohio Supreme Court has determined that the phrase “substantial impairment”
must be given the meaning understood by its common usage, as the phrase is not defined in the
Ohio Criminal Code. State v. Zeh, 31 Ohio St.3d 99, 103, 509 N.E.2d 414 (1987).
“[S]ubstantial impairment must be established by demonstrating a present reduction, diminution
or decrease in the victim’s ability, either to appraise the nature of his conduct or to control his
conduct.” Id. at 103-104.
{¶45} This court has repeatedly found that voluntary intoxication is a mental or physical
condition that could cause substantial impairment. State v. Keller, 8th Dist. Cuyahoga No.
106196, 2018-Ohio-4107, ¶ 24; Jones at ¶ 43, citing State v. Doss, 8th Dist. Cuyahoga No.
88443, 2008-Ohio-449, ¶ 13; In re King, 8th Dist. Cuyahoga Nos. 79830 and 79755,
2002-Ohio-2313, ¶ 22. And in Ohio, sexual conduct with an intoxicated person “becomes
criminal when the victim’s ‘ability to resist or consent is substantially impaired by reason of
voluntary intoxication.’” Jones at ¶ 43, quoting In re King at ¶ 22. This substantial impairment
may be shown by the testimony of those who have interacted with the victim. State v. Brady,
8th Dist. Cuyahoga No. 87854, 2007-Ohio-1453, ¶ 78.
{¶46} This court has also held that sleep constitutes a mental or physical condition that
substantially impairs a person from resisting or consenting to sexual conduct. Keller at ¶ 25;
State v. McCall, 8th Dist. Cuyahoga No. 104479, 2017-Ohio-296, ¶ 6, citing State v. Jones, 8th
Dist. Cuyahoga No. 98151, 2012-Ohio-5737, ¶ 30, citing State v. Clark, 8th Dist. Cuyahoga No.
90148, 2008-Ohio-3358, ¶ 21 (when a person is asleep, he or she is not in a mental condition to
resist or consent to the sexual conduct).
{¶47} Moreover, the element regarding whether an offender knew or had reasonable
cause to believe a victim was impaired may be reasonably inferred from a combination of the
victim’s demeanor and others’ interactions with the victim. Jones, 8th Dist. Cuyahoga No.
101311, 2015-Ohio-1818, at ¶ 43, citing State v. Novak, 11th Dist. Lake No. 2003-L-077,
2005-Ohio-563, ¶ 25.
{¶48} Here, A.T. testified that she had never drank alcohol before the night of the party in
May 2013; however, that evening at the party in Shivers’s apartment, where Shivers, Shivers’s
friends, and A.T.’s friends were also present, A.T. consumed two double shots of tequila and one
Jello shot. A.T. stated that she did not feel “normal” after drinking, and she remembered
feeling “really drunk.” Shivers picked A.T. up off the living room couch and carried her to the
bedroom, where Shivers repeatedly pulled A.T.’s skirt down. She testified that she continued to
pull her skirt back up and she told Shivers “no,” but Shivers continued. According to A.T., at
some point, Keeada entered the bedroom, Shivers walked out, and A.T. “passed out on the bed
and fell asleep.” A.T. testified that she next remembered seeing a flash of light that awakened
her to Shivers pulling her skirt down again. A.T. stated that she was physically unable to push
Shivers off of her and he proceeded to have sex with her, despite A.T. telling him to stop. A.T.
further testified that she tried to tell Tyler who had raped her, but she had difficulty “using her
words.”
{¶49} Keeada testified that A.T. was doing shots of alcohol. She further testified that
when she walked into the back bedroom later in the evening, she discovered A.T. lying on the
bed and Shivers standing nearby, both of whom had their pants unbuckled and unzipped. When
Keeada tugged on A.T., she would not get up. Keeada testified that she enlisted Tyler’s help in
removing A.T., and when the girls returned to the bedroom, she found A.T. “hanging halfway off
the bed,” with her pants off and her panties at her knees. She stated that Shivers was there and
his pants were completely off as well. Keeada testified that A.T. began crying hysterically.
Both Keeada and Tyler testified that they had to dress A.T. because she could not do it herself.
Keeada observed that A.T. vomited on the way home and she was unsteady on her feet. Keeada
testified that Shivers drove the girls home.
{¶50} Tyler testified that she knew A.T. did not drink. She also knew A.T. to be a loner
and not very talkative; however, that evening, she remembered that A.T. was drinking and
becoming intoxicated. Tyler testified that A.T. was not her usual quiet self; rather, she was
slurring words, “acting weird,” “completely the opposite of who she is,” walking around and
talking. Tyler stated that at some point in the evening, she saw A.T. enter the bedroom and then
Shivers walk out of the bedroom. Upon leaving the bedroom, Shivers told Tyler to “get [her]
friend.” When she entered the bedroom, she found A.T. “spread eagle” on the bed, lying on her
back. Her panties were on and her shirt was up. Tyler described A.T. at this point as a
“wreck” and “traumatized,” and “freaking out.” Tyler testified that one could definitely tell
A.T. was drunk. Finally, Tyler stated that she had to answer A.T.’s phone when A.T.’s mother
called because A.T. was too drunk to answer the phone.
{¶51} A.T.’s mother testified that she found A.T. lying on a tree lawn, alone and crying.
A.T.’s mother stated that she smelled alcohol and she could not understand anything A.T. was
saying. Mother stated that A.T. was limp, she could not walk on her own, and someone had to
carry A.T. to Mother’s car. Officer Maslyk responded to a call from dispatch concerning an
intoxicated juvenile. The officer testified that when he arrived on the scene, he found A.T. to
be heavily intoxicated, and he recommended that Mother take A.T. to the hospital or call an
ambulance for an evaluation.
{¶52} The testimony outlined above demonstrates that A.T. was extremely intoxicated,
as evidenced by her inability to speak clearly, walk, and dress herself, and this intoxication was
evident to all who encountered A.T. that evening. The evidence further shows that Shivers was
in A.T.’s vicinity the entire evening, up to and including when he drove A.T. home. We
therefore find the state presented sufficient evidence to establish that A.T. was substantially
impaired and that Shivers knew or should have known that she was substantially impaired, thus
supporting Shivers’s conviction for rape in violation of R.C. 2907.02(A)(1)(c).
{¶53} Shivers’s fourth assignment of error is overruled.
V. Prosecutorial Misconduct
{¶54} In his first assignment of error, Shivers contends that the prosecutor engaged in
misconduct during closing arguments of the first trial, where the jury convicted Shivers of the
substantial impairment rape of A.T. Shivers argues that the prosecutor improperly commented
on Shivers’s right not to testify.
{¶55} During the state’s closing argument, the prosecutor stated:
[Defendant] wants to belittle Keeada, Tyler, and A.T., who were at the party. I
think Tyler said it best when she took the witness stand and testified, I’m there
because he invited me. He’s serving — shake your head no. Now is not the
time.
The court sustained defense counsel’s objection, and the prosecutor continued with closing
argument. After closing, however, defense counsel addressed the prosecutor’s comment:
Your Honor, there was one thing. And I didn’t know the timing because I didn’t
want to break the flow of it. But you know, there was a comment made by the
state with regard to Shivers’s silence when he referenced them saying no.
Now, I think that was an improper argument made by the prosecutor on that.
And we’re requesting that the court give the curative instruction asking that any
reference to Mr. Shivers’s right to remain silent should not be considered in any
way for any purpose.
{¶56} The prosecutor then explained to the court that he was not commenting on his right
to remain silent; rather, he commented on Shivers’s gesture: “I never talked about him not
testifying. But * * * if he has mannerisms and expressions and makes motions in front of the
jury, then I can comment on that.” The court concluded that the circumstances did not warrant
a curative instruction and denied defense counsel’s request, noting that the court sustained the
objection and it previously instructed the jury regarding the defendant not testifying. In
response, defense counsel said, “Okay.”
{¶57} In reviewing a claim of prosecutorial misconduct, we must determine whether the
comments and questions by the prosecution were improper and, if so, whether they prejudiced
appellant’s substantial rights. State v. Smith, 14 Ohio St.3d 13, 14-15, 470 N.E.2d 883 (1984).
An appellate court should only reverse a conviction if the effect of the misconduct “‘permeates
the entire atmosphere of the trial.’” State v. Gibson, 8th Dist. Cuyahoga No. 98725,
2013-Ohio-4372, ¶ 99, quoting State v. Tumbleson, 105 Ohio App.3d 693, 699, 664 N.E.2d 1318(12th Dist.1995). “The touchstone of analysis ‘is the fairness of the trial, not the culpability of
the prosecutor.’” State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 92,
quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
{¶58} Generally, a prosecutor is entitled to wide latitude during closing argument. State
v. Harris, 2017-Ohio-2751, 90 N.E.3d 342, ¶ 84 (8th Dist.), citing State v. Maurer, 15 Ohio
St.3d 239, 473 N.E.2d 768 (1984). And the closing argument must be viewed in its entirety to
determine whether the disputed remarks were prejudicial. “[I]isolated comments by a
prosecutor are not to be taken out of context and given their most damaging meaning.” Gapen
at ¶ 106, citing Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431(1974). In determining whether a prosecutor’s comment was prejudicial, we consider several
factors: (1) the nature of the remark(s); (2) whether an objection was made by counsel; (3)
whether the court gave curative instructions; and (4) the general strength of the evidence against
the defendant. Harris, citing State v. Braxton, 102 Ohio App.3d 28, 41, 656 N.E.2d 970 (8th
Dist.1995).
{¶59} It is well settled, however, that a prosecutor may not comment on a defendant’s
failure to testify. State v. Valentine, 8th Dist. Cuyahoga No. 94355, 2011-Ohio-184, ¶ 16, citing
Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); State v. Lynn, 5 Ohio
St.2d 106, 214 N.E.2d 226 (1966), paragraph one of the syllabus. In determining whether a
defendant’s Fifth Amendment rights were violated, we consider “‘whether the language used was
manifestly intended or was of such character that the jury would naturally and necessarily take it
to be a comment on the failure of the accused to testify.’” State v. Webb, 70 Ohio St.3d 325,
328, 638 N.E.2d 1023 (1994), quoting Knowles v. United States, 224 F.2d 168, 170 (10th
Cir.1955); Ladson at ¶ 34.
{¶60} Nevertheless, even if the prosecutor improperly commented on an accused’s right
to silence, the prosecutor’s comments do not require automatic reversal of the conviction. State
v. York, 8th Dist. Cuyahoga No. 87814, 2006-Ohio-6934, ¶ 29, citing Chapman v. California,
386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Zimmerman, 18 Ohio St.3d 43,
44-45, 479 N.E.2d 862 (1985). “A constitutional error is harmless beyond a reasonable doubt
‘if the remaining evidence, standing alone, constitutes overwhelming proof of defendant’s
guilt.’” York at ¶ 29, quoting State v. Williams, 38 Ohio St.3d 346, 349, 528 N.E.2d 910(1988).
{¶61} Here, the prosecutor was in the middle of closing argument, discussing Tyler’s
testimony, when he observed Shivers shaking his head. The prosecutor, noticing Shivers’s
movement, made a brief comment on Shivers’s gesturing in front of the jury and then continued
with his argument. A prosecutor may comment on a defendant’s demeanor, body language, or
lack of concern during trial. State v. Green, 90 Ohio St.3d 352, 373, 2000-Ohio-182, 738
N.E.2d 1208; State v. Ladson, 8th Dist. Cuyahoga No. 105914, 2018-Ohio-1299, ¶ 38 (finding
prosecutor’s reference to the accused’s “stone-faced” reaction to emotional evidence presented
during trial not infringing on the accused’s right to remain silent); see, e.g., State v. Bey, 85 Ohio
St.3d 487, 496-497, 1999-Ohio-283, 709 N.E.2d 484 (state can comment on accused’s emotional
outburst during argument); State v. Hill, 75 Ohio St.3d 195, 203, 661 N.E.2d 1068 (1996)
(stating that the prosecutor “could legitimately point out that [the accused] did not react when
scenes of his dead child were shown”); State v. Brown, 38 Ohio St.3d 305, 317, 528 N.E.2d 523,
538 (1988) (state may comment on the accused’s appearance as “a defendant’s face and body are
physical evidence”). And at no point during closing argument did the prosecutor explicitly state
that Shivers chose not to testify, nor did he otherwise address Shivers’s right to remain silent.
{¶62} When this sole comment is placed in the context of the prosecutor’s overall closing
argument, we cannot find that the comment was “manifestly intended or was of such character
that the jury would naturally and necessarily take it to be a comment on the failure of the accused
to testify.” Webb, 70 Ohio St.3d 325, 328, 638 N.E.2d 1023. Moreover, the prosecutor’s
isolated comment cannot be taken out of context and given its most damaging meaning. Gapen,
104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047.
{¶63} However, even if we find the prosecutor’s comment improper, we cannot find that
this isolated comment prejudiced the defendant in light of the overwhelming evidence of his
guilt, as more fully discussed in the previous assignment of error. The victim herself testified
that she drank two double shots of tequila and a Jello shot that evening and she was “really
drunk.” She had difficulty talking, walking, and staying awake. According to her friends,
Tyler and Keeada, she could not get up off of the bed without assistance and she could not dress
herself. A.T. testified that at some point she awakened on the bed to find Shivers on top of her,
having sex with her. As reported by A.T.’s mother, her daughter smelled of alcohol and she
was incoherent. And the responding police officer reported that A.T. was highly intoxicated
and should be medically evaluated.
{¶64} Moreover, the evidence demonstrated that Shivers was either with A.T. in the
bedroom or in the apartment living room the entire evening, readily observing A.T.’s
drunkenness. The victim, Tyler, and Keeada, all testified that Shivers was in the bedroom with
A.T. when she was passed out on the bed, when Keeada tried to pull A.T. off the bed, and when
A.T. was “freaking out” or crying hysterically. And Tyler testified that after Shivers left A.T. in
the bedroom, telling Tyler to retrieve her friend, Tyler found A.T. “a wreck,” stating one could
definitely tell that A.T. was drunk. Finally, the evidence shows that A.T. vomited on the ride
home and that Shivers drove all of the girls home.
{¶65} Furthermore, the trial court sustained defense counsel’s objection to the
prosecutor’s comment, and immediately preceding the state’s closing argument, the trial court
instructed the jury that closing arguments are not evidence and the jury should not speculate as to
why the court sustained an objection. The trial court also advised the jury that the defendant has
a constitutional right not to testify and the fact that he did not testify must not be considered by
the jury for any purposes. These jury instructions limited the potential for prejudice from any
misconduct. State v. Sanders, 8th Dist. Cuyahoga No. 106744, 2018-Ohio-4603, ¶ 26, citing
State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 250, 253. And we
presume the jury follows the court’s instructions. Harris, 2017-Ohio-2751, 90 N.E.3d 342, at ¶
87.
{¶66} We therefore find, in light of the overwhelming evidence that A.T. was extremely
intoxicated, her intoxication was obvious to all those who encountered A.T., and Shivers was
aware of A.T.’s condition, that the outcome of the trial would have been the same even had the
prosecutor refrained from commenting on Shivers’s gesture during closing argument. Thus, the
prosecutor’s comment did not “permeate the atmosphere of the whole trial” such that it
substantively deprived Shivers of a fair trial. Gibson, 8th Dist. Cuyahoga No. 98725,
2013-Ohio-4372, at ¶ 99.
{¶67} Shivers’s first assignment of error is overruled.
VI. Motion for a Mistrial
{¶68} In his second assignment of error, Shivers contends that the trial court erred when
it denied his motion for a mistrial based upon the state’s alleged discovery violation during the
first trial.
{¶69} The decision whether to grant or deny a motion for mistrial lies within the sound
discretion of the trial court and will not be reversed absent a showing of an abuse of discretion.
State v. Willis, 8th Dist. Cuyahoga No. 99735, 2014-Ohio-114, ¶ 36, citing State v. Garner, 74
Ohio St.3d 49, 59, 656 N.E.2d 623 (1995). A mistrial should not be ordered in a criminal case
“merely because some error or irregularity has intervened, unless the substantial rights of the
accused or the prosecution are adversely affected.” State v. Reynolds, 49 Ohio App.3d 27, 33,
550 N.E.2d 490 (2d Dist.1988). Rather, a mistrial is declared “only when the ends of justice so
require and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580
N.E.2d 1 (1991), citing Illinois v. Somerville, 410 U.S. 458, 462-463, 93 S.Ct. 1066, 35 L.Ed.2d
425 (1973).
{¶70} Here, the state did not disclose to the defense the victim, A.C.’s, written statement
prior to trial. Shivers argues that this discovery violation unfairly prejudiced him and therefore
warranted a mistrial.
{¶71} Crim.R. 16, which governs discovery in a criminal case, provides that the purpose
of the discovery rule is “to provide all parties in a criminal case with the information necessary
for a full and fair adjudication of the facts, to protect the integrity of the judicial system and the
rights of defendants, and to protect the well-being of witnesses, victims, and society at large.”
Crim.R. 16(A). The rule serves “‘to prevent surprise and the secreting of evidence favorable to
one party.’” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 19,
quoting Lakewood v. Papadelis, 32 Ohio St.3d 1, 3, 511 N.E.2d 1138 (1987). And pursuant to
Crim.R. 16(B)(7), the prosecutor must provide the defense “[a]ny written or recorded statement
by a witness in the state’s case-in-chief, or that it reasonably anticipates calling as a witness in
rebuttal.”
{¶72} A trial court has broad discretion in regulating discovery and in determining a
sanction for a discovery violation. Darmond at ¶ 33. When imposing a sanction, however, the
trial court must inquire into the circumstances and impose the least severe sanction that is
consistent with the purpose of the rules of discovery. Papadelis at paragraph two of the
syllabus; State v. Rucker, 8th Dist. Cuyahoga No. 105628, 2018-Ohio-1832, ¶ 20.
{¶73} In determining the appropriate sanction, a trial court must consider the following
three factors: (1) whether the failure to disclose was a willful violation of Crim.R. 16; (2)
whether foreknowledge of the undisclosed material would have benefitted the accused in the
preparation of a defense; and (3) whether the accused was prejudiced. Darmond at ¶ 35, citing
State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983), syllabus.
{¶74} During cross-examination of A.C., defense counsel learned that A.C. made a
written statement during her interview with the Mayfield Heights police department. Prior to
the conclusion of A.C.’s cross-examination, the court briefly recessed. Upon returning, defense
counsel completed A.C.’s cross-examination, and the state presented three more witnesses for
examination. At the conclusion of the second witness’s testimony, defense counsel requested a
side bar concerning an issue. After briefly conferring with the court, defense counsel agreed to
wait until the afternoon recess to address his issue.
{¶75} During the afternoon recess, defense counsel advised the court that he had not
received a copy of A.C.’s written statement prior to trial and, in fact, he did not receive a copy of
this statement until after A.C.’s cross-examination. Counsel asserted that Shivers had therefore
been prejudiced and moved for a mistrial. During this discourse, however, counsel conceded
that he did not believe the state purposefully withheld the statement; nonetheless, the state,
counsel argued, received a “tactical advantage” as a result.
{¶76} The prosecutor responded that the state’s failure to disclose the statement was
inadvertent, as he was unaware the statement existed. He explained that when A.C. began
discussing a statement and the prosecutor “became aware that one might exist,” he made efforts
to retrieve the statement from the police department’s property room, he obtained the statement,
and he turned the statement over to the defense while A.C. was still on the witness stand. The
prosecutor asserted that the defense therefore had an opportunity to review the report for any
inconsistencies and use the statement to impeach A.C., if desired. The prosecutor also
suggested that at the very least, defense counsel had an opportunity to address this issue with the
court while A.C. was still on the witness stand but neglected to do so.
{¶77} The court reviewed the timing of the events. Defense counsel conceded that he
had received A.C.’s statement during redirect examination and could have “theoretically”
conducted a recross-examination of A.C. The court then reviewed A.C.’s statement and
determined that a mistrial was not warranted, finding that “with exception of her testimony about
* * * him trying to get her to touch his penis” it found no inconsistencies. The court
nonetheless offered to bring A.C. back to the witness stand for defense counsel’s questioning
concerning this issue, and it offered the defense counsel an opportunity to otherwise make a
record. In denying counsel’s motion for a mistrial, the court stated:
I don’t believe an instruction to the extent of discounting her testimony is
appropriate. And, again, you had full opportunity to cross-examine her regarding
her in-court statements. I presume you had the benefit of the reiteration of
whatever her statement was in the police report. Maybe not. And so I’m going
to deny your motion for mistrial at this point.
{¶78} The prosecutor suggested defense counsel proffer how the defense would have
used the statement during A.C.’s cross-examination and how the defense was prejudiced.
Defense counsel, however, declined, stating that “the situation is just plain and clear” and the
state violated “the spirit of the rule” to timely produce documents. In response, the court stated:
[Q]uite frankly, if you’ve read [the statement], there really is nothing in there.
It’s a one-page statement * * *. [A]nd the only thing in here that indicates
anything contrary to what she testified to is about the attempt to have * * * her
touch his penis.
{¶79} The court then inquired whether defense counsel had any additional comments for
the record, and he replied that he did not.
{¶80} In light of the foregoing, we find the trial court did not err in denying the
defendant’s motion for a mistrial. We note initially that defense counsel conceded that the
failure to disclose the victim’s statement was not a willful violation of Crim.R. 16.
Additionally, the trial court conducted a thorough inquiry into the circumstances, including the
timing of the disclosure and whether the defendant suffered prejudice. In so doing, the court
reviewed the one-page statement and determined that the statement did not contain material
inconsistencies. Nonetheless, the court offered to recall the victim in order for the defense to
continue its cross-examination, which is a less drastic sanction for discovery violations permitted
under Crim.R. 16(E)(3). See State v. Collins, 8th Dist. Cuyahoga No. 89668, 2008-Ohio-2363,
¶ 38, citing State v. Wickline, 50 Ohio St.3d 114, 552 N.E.2d 913 (1990); Crim.R. 16(E)(3)
(providing the court the power to “make such order as it deems just” when a party has failed to
comply with discovery).
{¶81} Accordingly, we find the trial court’s actions were sufficient under the
circumstances to ensure Shivers received a fair trial.
{¶82} Shivers’s second assignment of error is overruled.
VII. Joinder
{¶83} In his third assignment of error, Shivers contends that the trial court erred when it
denied his motion to sever the charges pertaining to the two victims.
{¶84} Crim.R. 8(A) governs the joinder of offenses in a single indictment. Under Crim.R.
8(A), two or more offenses may be charged together if the offenses “are of the same or similar
character, or are based on the same act or transaction, or are based on two or more acts or
transactions connected together or constituting parts of a common scheme or plan, or are part of a
course of criminal conduct.”
{¶85} The law favors joining multiple offenses in a single trial if the requirements of
Crim.R. 8(A) are satisfied. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d
565. “[J]oinder and the avoidance of multiple trials is favored for many reasons, among which
are conserving time and expense, diminishing the inconvenience to witnesses and minimizing the
possibility of incongruous results in successive trials before different juries.” State v. Torres, 66
Ohio St.2d 340, 421 N.E.2d 1288 (1981). See also State v. Schiebel, 55 Ohio St.3d 71, 86-87,
564 N.E.2d 54 (1990); State v. Schaim, 65 Ohio St.3d 51, 58, 600 N.E.2d 661 (1992).
{¶86} Under Crim.R. 14, however, the trial court may grant a severance, if it appears that
the defendant would be prejudiced by the joinder. The defendant bears the burden of proving
prejudice. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 29.
{¶87} There are two methods by which the state may refute the defendant’s claim of
prejudicial joinder: (1) by showing that, if in separate trials, the state could introduce evidence
of the joined offenses as “other acts” under Evid.R. 404(B) (referred to as the “other acts” test);
or (2) by showing that the evidence of each crime joined at trial is “simple and direct.” State v.
Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). “Simple and direct” evidence means the
evidence of each crime is “so clearly separate and distinct as to prevent the jury from considering
evidence of [one crime] as corroborative as the other.” State v. Quinones, 11th Dist. Lake No.
2003-L-015, 2005-Ohio-6576, ¶ 48. See also State v. Varney, 4th Dist. Hocking No.
07CA18/07AP18, 2008-Ohio-5283. This court has held that evidence of multiple offenses is
simple and direct where the offenses involved different victims, different incidents or factual
scenarios, and different witnesses. State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 88 (8th
Dist.).
{¶88} “A trier of fact is believed capable of segregating the proof on multiple charges
when the evidence as to each of the charges is uncomplicated.” State v. Lunder, 8th Dist.
Cuyahoga No. 101223, 2014-Ohio-5341, ¶ 33, citing Torres, 66 Ohio St.2d at 343-344, 421
N.E.2d 1288. Joinder is therefore not prejudicial when the evidence is direct and
uncomplicated and can reasonably be separated as to each offense, regardless of the
inadmissibility of evidence of these crimes as “other acts” under Evid.R. 404(B). Id. Thus, if
the state can meet the requirements of the “joinder test,” it need not meet the requirements of the
stricter “other acts” test. Franklin, 62 Ohio St.3d at 122, 580 N.E.2d 1.
{¶89} Generally, we review a trial court’s decision regarding joinder for an abuse of
discretion. State v. Banks, 2015-Ohio-5413, 56 N.E.3d 289, ¶ 64 (8th Dist.). Where a
defendant fails to renew a motion to sever at the close of the state’s case or the close of all
evidence, however, he waives all but plain error on appeal. Lyndhurst v. Smith, 8th Dist.
Cuyahoga No. 101019, 2015-Ohio-2512, ¶ 32, citing State v. Howard, 3d Dist. Marion No.
9-10-50, 2011-Ohio-3524, ¶ 82. Plain error is “an obvious error or defect in the trial court
proceeding that affects a substantial right.” State v. Gray, 8th Dist. Cuyahoga No. 92303,
2010-Ohio-240, ¶ 17, citing State v. Long, 53 Ohio St.2d 91, 94, 372 N.E.2d 804 (1978). We
take notice of plain error only in exceptional circumstances to avoid a miscarriage of justice.
Long at 95. Further, the party asserting the error bears the burden of demonstrating plain error.
State v. Crawford, 2016-Ohio-7779, 73 N.E.3d 1110, ¶ 13 (8th Dist.). We note that the record
does not indicate that Shivers renewed his motion to sever at the close of the state’s case or the
close of all the evidence. He therefore waives all but plain error.
{¶90} Shivers contends that the court’s joinder of the offenses prejudiced him. In
support, he states that joinder allowed the jury to make improper inferences based solely on the
fact that he was tried together for two separate, dissimilar offenses. However, he provides no
specific examples that demonstrate the jury was confused or that the jury considered evidence of
one crime as corroborative of the other.
{¶91} Here, the crimes against the two young females involved rape. The evidence
relating to each incident was simple and direct: the incidents occurred on separate dates, they
involved separate victims, and the state presented different witnesses to support the charges in
each incident. Moreover, the trial court advised the jury that “each count in the indictment
constitute[s] a separate and distinct matter,” and it instructed the jury to “consider each count and
the evidence applicable to each count separately” and “state your findings as to each count
uninfluenced by your verdict as to the other count or counts.” We presume a jury follows the
court’s instructions. Harris, 2017-Ohio-2751, 90 N.E.3d 342, at ¶ 8.
{¶92} In addition, there is nothing in the record that suggests the jury factored the
evidence from the incident involving A.C. to determine Shivers’s guilt in the incident involving
A.T., or vice versa, or that the jury was confused or was “improperly influenced by the
cumulative effect of the joinder.” Banks, 2015-Ohio-5413, 56 N.E.3d 289, at ¶ 66. On the
contrary, the record demonstrates that the jury considered each offense separately, finding
Shivers guilty of the substantial impairment rape of A.T. while acquitting him of the gross sexual
imposition of A.C. by force or threat of force. He therefore cannot show he was prejudiced by
the court’s refusal to sever the offenses. Id. at ¶ 68.
{¶93} Shivers’s third assignment of error is overruled.
VIII. Jury Polling
{¶94} In his fifth assignment of error, Shivers contends that the trial court erred when it
accepted the jury’s verdict. Specifically, he argues that Juror No. 1 did not definitively assent to
her verdict when she indicated the amount of pressure in the jury room. Shivers also argues that
Juror No. 4 did not affirm her verdict and the court’s failure to require the jury to continue
deliberations violated R.C. 2945.77.
{¶95} We review a trial court’s acceptance of a jury’s verdict for an abuse of discretion.
State v. Goodwin, 8th Dist. Cuyahoga No. 99254, 2013-Ohio-4591, ¶ 45, citing State v.
Brumback, 109 Ohio App.3d 65, 73, 671 N.E.2d 1064 (9th Dist.1996). We therefore will not
reverse the trial court’s ruling unless the court’s decision was “unreasonable, arbitrary, or
unconscionable.” State v. Lowe, 69 Ohio St.3d 527, 532, 634 N.E.2d 616 (1994).
{¶96} The purpose of the jury poll is to
“give each juror an opportunity, before the verdict is recorded, to declare in open
court his assent to the verdict which the foreman has returned and thus to enable
the court and the parties to ascertain with certainty that a unanimous verdict has in
fact been reached and that no juror has been coerced or induced to agree to a
verdict to which he has not fully assented.”
State v. Hessler, 90 Ohio St.3d 108, 121, 734 N.E.2d 1237 (2000), quoting Miranda v. United
States, 255 F.2d 9, 17 (1st Cir.1958).
{¶97} R.C. 2945.77 and Crim.R. 31(D) provide for the polling of the jury to determine
whether there is a unanimous verdict. State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796
N.E.2d 506, ¶ 41. R.C. 2945.77 provides that “[i]f one of the jurors being polled declares that
said verdict is not his verdict, the jury must further deliberate upon the case.” This statute
requires the jury to further deliberate if a juror contradicts his or her own verdict. Goodwin at ¶
46. Similarly, Crim.R. 31(D) permits a trial court to either direct further deliberations or
discharge the jury “[i]f upon the poll there is not unanimous concurrence.” “‘Both the statute
and the rule preclude acceptance of the verdict only if the jury members are not in agreement on
the determination of guilt.’” State v. Garner, 11th Dist. Lake No. 2007-L-041,
2007-Ohio-5914, ¶ 63, quoting Brumback at 73.
{¶98} Here, the verdict was returned and at the defense’s request, the court polled the
jurors. During polling, the following exchange occurred:
Court: Ma’am, are these verdicts your individual verdicts?
Juror No. 1: Yes.
***
Juror No. 4: Me?
Court: Yes, Ma’am. Are the ones which I’ve read that have been filled
out, the Count 1, Count 2, Count 3, and Count 6.
Juror No. 4: You said we have to have a yes or no answer? What did you say
about comments to it?
Court: Did you have a comment that you wanted to —
Juror No. 4: Yeah. According to the letter of the law and the understanding
that was provided, then on Count 2 I had to vote not guilty. But I
was not in agreement with the letter of the law. But I don’t know
if I have that right.
Juror No. 1: There was a lot of pressure going on.
Court: I imagine so. But hold on. Because Count 2 is a charge of
rape and the verdict is for guilty.
Juror No. 4: Right.
Court: So is this verdict in Count 2 not your individual verdict?
Juror No. 4: I — according to the understanding that they made — that I had to
abide by the letter of the law, it was kind of forced.
Court: Well, again, I —
Juror No. 4: So you asked me if we had a yes or no or a comment. So I’m
saying it’s my verdict. But if I have a comment based on the
information and instructions I was given, there was really no
choice * * * according to the letter of the law.
Court: So am I to understand you’re saying that in following the
instructions as I gave them to you and applying those to the
evidence that you determined, this was your verdict? * * *
Juror No. 4: It was not determined by the evidence. It was determined by the
law.
Court: But in following the law —
Juror No. 4: So — okay. Then yes.
{¶99} The above exchange demonstrates that the court endeavored to ensure that Juror
No. 4’s verdict was “guilty” and it showed that Juror No. 4 assented to the verdict. In providing
additional commentary, the juror stated that, although she disagreed with the law and she felt
compelled by “the letter of the law” to return a guilty verdict in Count 2, she did, in fact, follow
the law in finding Shivers guilty in Count 2.
{¶100} Furthermore, although Juror No. 1 commented about “a lot of pressure” in the
jury room, Shivers did not present any evidence that Juror No. 1 was pressured or intimidated
into changing her opinion or that her decision was not of her own free will. On the contrary, the
record shows that when asked by the court whether the verdicts are her individual verdicts, Juror
No. 1 clearly replied, “Yes,” without any noted hesitation or commentary. Moreover, there was
no evidence presented of explicit or implicit coercive pressure that caused any of the jurors “to
surrender their independent judgment and vote to find the defendant guilty.” State v. Cogdill,
10th Dist. Franklin No. 91AP-1092, 1992 Ohio App. LEXIS 3654, 10 (July 9, 1992); Hessler, 90
Ohio St.3d at 120, 2000-Ohio-30, 734 N.E.2d 1237 (finding “heightened emotions and intense
feelings,” “heavy-handed influencing and browbeating” a typical part of deliberations process).
{¶101} In light of the foregoing, we find the trial court did not abuse its discretion in not
sending the jury back for further deliberations.
{¶102} Shivers’s fifth assignment of error is overruled.
IX. Prior Testimony
{¶103} In his sixth and final assignment of error, Shivers contends that the trial court
erred when it permitted the state to admit the transcript of A.C.’s testimony from the first trial
into evidence in the second trial. Shivers argues that A.C.’s former testimony was not
admissible under Evid.R. 804 because the witness was available and had already testified at trial.
He argues, therefore, that her testimony was hearsay.
{¶104} We review a trial court’s evidentiary rulings at trial for an abuse of discretion.
State v. Williams, 8th Dist. Cuyahoga No. 106266, 2018-Ohio-3368, ¶ 42.
“Where, on cross-examination, a witness is impeached by a showing of
prior statements made by him in a written instrument apparently inconsistent with
his statements on direct examination, reference to other statements in the same
document used to impeach him is proper for the purpose of rehabilitation, where
such other statements are consistent with the statements made on direct
examination or are in explanation of such apparent inconsistency and do not serve
to inject new issues into the case.”
State v. Rodriguez, 8th Dist. Cuyahoga No. 101971, 2015-Ohio-3875, ¶ 52, quoting Shellock v.
Klempay, 167 Ohio St. 279, 148 N.E.2d 57 (1958), paragraph two of the syllabus; State v.
Monroe, 8th Dist. Cuyahoga No. 94768, 2011-Ohio-3045, ¶ 47; State v. Totarella, 11th Dist.
Lake No. 2002-L-147, 2004-Ohio-1175, ¶ 47.
{¶105} Thus, when a portion of a prior statement is used to impeach a witness, “thereby
showing an inconsistency with the current testimony, the entire document may be admitted on
rebuttal, in order to rehabilitate the witness.” State v. Wilson, 8th Dist. Cuyahoga No. 96380,
2012-Ohio-102, ¶ 40, citing State v. Loper and Nash, 8th Dist. Cuyahoga Nos. 81400, 81297,
and 81878, 2003-Ohio-3213, ¶ 60. The other statements, however, cannot “serve to inject new
issues into the case.” Shellock at paragraph two of the syllabus.
{¶106} Here, during cross-examination of A.C. at the second trial, defense counsel used
or referenced A.C.’s prior testimony from the first trial approximately 11 times in an effort to
impeach her testimony. At the close of the state’s case, the state moved to admit the entire
transcript of A.C.’s prior testimony, among other exhibits. Defense counsel offered a general
objection, stating, “just note our objection with regard to the transcript.” Defense counsel
offered no explanation for his objection.
{¶107} Because, under the circumstances, an entire statement may be admitted in order to
rehabilitate a witness, and defense counsel did not object to the transcript on the basis that it
“injected new issues” into the case, we cannot find the trial court abused its discretion in
allowing the entire transcript of A.C.’s prior testimony to be admitted.
{¶108} Shivers’s sixth and final assignment of error is overruled.
{¶109} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
__________________________________________
TIM McCORMACK, JUDGE
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY;
MARY EILEEN KILBANE, P.J., DISSENTS (WITH SEPARATE OPINION ATTACHED)
MARY EILEEN KILBANE, P.J., DISSENTING:
{¶110} Respectfully, I would find that the prosecutor’s comments during closing
arguments constituted reversible error.
{¶111} The comments of the prosecutor with regard to the silence of the appellant were
improper and prejudicial to the appellant in light of the evidence adduced by the state during the
course of trial. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1995);
State v. Hedrick, 8th Dist. Cuyahoga No. 57844, 1990 Ohio App. LEXIS 5647 (Dec. 20, 1990),
overruled in part on other grounds, State v. Jones, 8th Dist. Cuyahoga No. 99703,
2014-Ohio-1634, ¶ 18. A new trial is warranted where the improper comments are considered
within the context of the totality of the circumstances, which include hesitation by some jurors
regarding their guilty verdicts.
{¶112} Accordingly, I would find the prosecutor’s statements were improper comments
on appellant’s failure to testify in violation of his state and federal constitutional rights and
require a new trial.