State v. Levy

[Cite as State v. Levy, 2011-Ohio-6378.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2011 CA 00114
DANIEL W. LEVY :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas Court Case No. 2011 CR
0243
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 30, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RONALD MARK CALDWELL RODNEY A. BACA
Stark County Prosecutor’s Office Schnars, Baca & Infantino, LLC
110 Central Plaza, South 610 Market Avenue, North
Canton, Ohio 44702 Canton, Ohio 44702
[Cite as State v. Levy, 2011-Ohio-6378.]
Delaney, J.
{¶1} Defendant-Appellant Daniel Levy appeals the judgment of the Stark
County Common Pleas Court convicting him of sex-related charges after a jury found
him guilty of these offenses.
{¶2} On February 23, 2011, a multi-count indictment was returned against
Appellant charging him with certain crimes involving 3 minor victims over a 10-year
period. He was charged with having unlawful sexual conduct with a minor, R.C.
2907.04(A)(B)(3), sexual imposition with a minor, R.C. 2907.06(A)(1), and furnishing
alcohol to an underage person, R.C. 4301.69(A), in regards to victim #1 (A.F.). In
addition, he was charged with unlawful sexual conduct with a minor, R.C.
2907.04(A)(B)(1), in regards to minor victim #2 (A.G.); and attempting to compel
prostitution, R.C. 2923.02(A), as it pertains to minor victim #3 (J.R.).
{¶3} Appellant pled not guilty to all charges and the matter was set for trial.
{¶4} On April 6, 2011, Appellant filed a motion to separate all the counts for
separate trials as to each victim, arguing the inflammatory nature of the charges over
different time periods with different victims was prejudicial.
{¶5} Thereafter, the State filed a motion to admit “other acts” evidence at trial
pursuant to R.C. 2945.59 and Evid. R. 404(B). The State argued the “other act”
evidence pursuant to Evid. R. 404(B) would have been admissible in the separate trials
and the evidence was simple and direct, therefore, the charges were properly joined.
{¶6} The State also contended the totality of evidence would demonstrate a
“unique, identifiable plan of criminal activity” which was probative of a common scheme
Stark County, Case No. 2011 CA 00114 3
or plan perpetrated by the Appellant and also would demonstrate a lack of mistake or
accident regarding the victims’ ages.
{¶7} After hearing, the trial court agreed with the State’s position and denied
Appellant’s motion to sever.
{¶8} A jury trial commenced on April 18, 2011.
{¶9} The State presented the testimony of A.G., who was 25 years old at the
time of trial.
{¶10} A.G. testified that she began dating Appellant in late 1998 when she was
13 years old and Appellant was 18 years old. They dated for approximately 1 year and
engaged in sexual activities, sometimes while viewing pornography. On one occasion,
sheriff deputies discovered the pair in Appellant’s vehicle parked at an oil well site.
Appellant came out of the vehicle partially clothed and related to a deputy he had oral
sex with A.G. and she was 14.
{¶11} A deputy also spoke with A.G. and confirmed her age and that oral sex
had occurred. A.G. was returned home by the deputies and thereafter a “no contact”
order was issued and the couple stopped seeing each other.
{¶12} The State next presented the testimony of J.R., who was 23 years old at
the time of trial. J.R. testified to an incident that occurred with Appellant in April of 2002
when she was a middle school cheerleader. Appellant volunteered at school sporting
events and was acquainted with J.R. Appellant and J.R. were together in a stockroom
gathering concession supplies when, according to J.R., Appellant asked her if she
would engage in certain sexual activities if he gave her money and showed her cash.
J.R. refused and then Appellant tried to fondle J.R. under her uniform. J.R. then left the
Stark County, Case No. 2011 CA 00114 4
room. She subsequently reported the incident to her mother who alerted school officials
and social services. Appellant was interviewed by a sheriff deputy and claimed the offer
of money was meant only as “joke” and he denied any inappropriate touching.
{¶13} A.F. was the last victim to testify at trial. She was 16 years old at the time
of trial. A.F. testified she met Appellant in the summer of 2008 when she was 13 years
old. A.F. was a friend of Appellant’s younger cousin, named M.L., also a minor, and the
two would frequent Appellant’s home as he had a tanning bed and swimming pool.
Appellant was then 27 years old and married.
{¶14} A.F. testified she engaged in sexual activities with Appellant on four
occasions, sometimes while viewing pornography, and after consuming alcohol
furnished by Appellant. On one occasion, Appellant took the girls to Victoria Secret and
purchased underwear for A.F. He also purchased her a bathing suit and offered her a
dollar to straddle a sprinkler. Appellant also engaged in games with the girls such as
“truth or dare” involving sexual overtures.
{¶15} In 2009, A.F. sought counseling and the matter was subsequently
reported to social services and the Canton Police Department. Appellant was
interviewed by police on May 5, 2009, and he acknowledge knowing A.F. and hanging
out with the girls. He admitted to providing alcohol at his home to M.L. and taking the
girls shopping and playing “truth or dare” games. He admitted to having pornographic
movies at home, but denied ever watching them with the girls and had no idea why A.F.
would make up allegations against him. He denied sexual activity with A.F.
{¶16} The State rested and Appellant made a Crim. R. 29 motion for acquittal,
which was denied.
Stark County, Case No. 2011 CA 00114 5
{¶17} The defense called Christopher Corbi, who was principal at East Canton
High School in 2002. He testified that he learned of an incident involving Appellant and
J.R. He discussed the incident with J.R. who characterized it as a joke. Mr. Corbi also
spoke with Appellant and he confirmed the offer was meant as a joke. Mr. Corbi
counseled Appellant that such conduct was not appropriate, even if meant as a joke,
and he would rather not have Appellant volunteer that year.
{¶18} The defense next called Appellant’s wife who testified as to an identifiable
scar on Appellant’s penis and that she had never seen Appellant act inappropriately
toward younger woman.
{¶19} M.K. also testified for the defense and stated she did not observe any
sexually inappropriate conduct between Appellant and A.F. and she is still friends with a
A.F. M.K. stated she remembered telling social services that Appellant provided alcohol
to the girls. The defense also called Appellant’s minister as a character witness.
{¶20} On April 19, 2011, the jury found Appellant guilty of the charges set forth
above. The trial court sentenced Appellant to an aggregate four year prison term.
{¶21} Appellant timely appealed and raises three Assignments of Error:
{¶22} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S MOTION TO SEVER THE OFFENSES AND TRY THEM
SEPARATELY, THUS PREJUDICING THE APPELLANT.
{¶23} “II. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL.
{¶24} “III. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE CONVICTION
AND THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF EVIDENCE.
Stark County, Case No. 2011 CA 00114 6
I.
{¶25} In his first assignment of error, Appellant contends that the trial court erred
when it denied his motion to sever the offenses.
{¶26} Normally, we review a ruling on a motion to sever under an abuse of
discretion standard. State v. Williams (1991) 62 Ohio St. 3d 118, 122, 580 N.E.2d 1,
citing State v. Lott, 51 Ohio St. 3d 160, 163, 555 N.E.2d 293, 298 and State v. Torres
(1981), 66 Ohio St. 2d 340, at syllabus.
{¶27} The record, however, reflects the Appellant did not renew the motion to
sever either after the state rested or at the conclusion of all of the evidence.
Accordingly, he was waived all but plain error. See, State v. Owens (1975) 51 Ohio
App.2d 132, 366 N.E.2d 1367, syllabus two (a motion for severance due to prejudicial
misjoinder must be renewed at the close of the State’s case or at the conclusion of all
the evidence and unless made at the time, it is waived); State v. Ferren, 8th Dist. No.
95094, 2011-Ohio-3382, ¶ 34; and State v. Howard, 3rd Dist. No. 9-10-50, 2011-Ohio-
3524, ¶ 82.
{¶28} Notice of plain error is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice. State
v. Cooperrider (1983), 4 Ohio St. 3d 226, 448 N.E.2d 452.
{¶29} In Williams, 62 Ohio St. 3d at 122, the Ohio Supreme Court succinctly set
forth the legal analysis to employ as to joinder issues, stating:
{¶30} “The law favors joining multiple criminal offenses in a single trial under
Crim.R. 8(A). State v. Lott (1990), 51 Ohio St. 3d 160, 163, 555 N.E.2d 293, 298. Two or
more offenses can be joined if they are of the same or similar character. State v. Torres
Stark County, Case No. 2011 CA 00114 7
(1981), 66 Ohio St. 2d 340, 343, 20 O.O.3d 313, 314-315, 421 N.E.2d 1288, 1290. An
accused may move to sever under Crim.R. 14 if he can establish prejudice to his rights.
State v. Lott, 51 Ohio St. 3d at 163, 555 N.E.2d at 298; State v. Wiles (1991), 59 Ohio
St.3d 71, 76, 571 N.E.2d 97, 108. * * *
{¶31} “The prosecutor may counter the claim of prejudice in two ways. State v.
Lott, 51 Ohio St. 3d at 163, 555 N.E.2d at 298. The first is the “other acts” test, where
the state can argue that it could have introduced evidence of one offense in the trial of
the other, severed offense under the “other acts” portion of Evid.R. 404(B). Id.; see,also
Bradley v. United States (C.A.D.C. 1969), 433 F.2d 1113, 1118-1119. The second is
the “joinder” test, where the state is merely required to show that evidence of each of
the crimes joined at trial is simple and direct. State v. Lott, supra; State v. Roberts
9180), 62 Ohio St. 2d 170, 175, 16 O.O.3d 201, 204, 404 N.E.2d 247, 251; State v.
Torres, 66 Ohio St. 2d at 343-344, 20 O.O.3d at 315, 421 N.E.2d at 1291. If the state
can meet the joinder test, it need not meet the stricter “other acts” test. Thus, an
accused is not prejudiced by joinder when simple and direct evidence exists, regardless
of the admissibility of other crimes under Evid. R. 404(B). State v. Lott, supra; State v.
Roberts, supra; State v. Torres, supra.”
{¶32} On appeal, Appellant argues the eight year difference in time between the
incidents involving A.G. and A.F. warrants severance. He cites no legal authority in
support of his argument.
{¶33} We find the eight year difference between the incidents involving A.G. and
A.F., standing alone, does not demonstrate the trial court committed plain error in
denying severance of the charges. See also, State v. Ashcraft, 12th Dist. No. CA2008-
Stark County, Case No. 2011 CA 00114 8
12-305 (upholding a trial court’s joinder of offenses arising out of defendant’s sexual
abuse of 5 female minors over the course of 15 years).
{¶34} In this case, we find the two crimes involving A.G. and A.F. are of the
same or similar character. Both involve sexual conduct with a 13 or 14 year old female,
the viewing of pornography. Each victim testified as to their various allegations against
the Appellant. Each victim gave clear testimony as to her allegations, and the testimony
offered by one victim did not contradict or overlap with the testimony of the other victim.
The offenses took place during different time periods, in different locations, against
different victims. It is unlikely that the jury would have confused the evidence proving
the separate conduct, as it was separate in time and place.
{¶35} Moreover, the State did not attempt to use one victim’s evidence to
corroborate the other victim’s testimony. There was no indication that each victim’s
claims independently corroborated one another and, by implication, made it more likely
that the offenses occurred. The victims did not know each other. The State presented its
case in an organized, chronological and methodical manner.
{¶36} The trial court instructed the jury that the charges were separate and
distinct, and the jury was to consider each count and the evidence applicable to each
count separately and to state their findings as to each count uninfluenced by the verdict
as to any other count. The jury instruction, along with the direct and uncomplicated
nature of the evidence, did not heighten a risk that the trier of fact would likely consider
evidence of one offense as corroborative of the other.
{¶37} Nor has Appellant attempted to argue that he would have defended either
case differently if the charges had not been joined. See, Franklin, supra,at 123.
Stark County, Case No. 2011 CA 00114 9
{¶38} In this case, the trial court determined that joinder was permissible under
both the “other acts” and ‘joinder” tests. Because we find no error in the trial court’s
determination that the evidence was simple and direct such that appellant was not
prejudiced by the joinder of the offenses at trial, we need not determine whether the trial
court erred in finding that evidence of each offense would have been admissible at
separate trials pursuant to Evid. R. 404 (B). Williams, supra, at 122.
{¶39} Appellant also faults the trial court in failing to hear evidence from J.R. at
the motion hearing before overruling the motion to sever.
{¶40} At the motion hearing, the State presented the testimony of A.G. and A.F.
Appellant did not object or raise the issue of severance as to the charge involving J.R.
or lack of testimony thereof at the hearing. As noted earlier, Appellant did not renew a
motion for severance at any time during trial, even after the State’s case when the
testimony of J.R. was presented, and this well may have been a strategic decision.
{¶41} Where a defendant claims that joinder was improper he must affirmatively
show prejudice. State v. Roberts (1980), 62 Ohio St. 2d 170, 175, 405 N.E.2d 170.
Upon review of the record, we find Appellant has failed to meet his burden in
demonstrating prejudice as to the joined offenses.
{¶42} We find no plain error in the trial court’s conclusion that the offenses were
of the same and similar character and that the evidence was simple and distinct.
{¶43} Accordingly, Appellant’s first Assignment of Error is overruled.
II.
{¶44} In his second Assignment of Error, Appellant contends that he was denied
the right to effective assistance of counsel.
Stark County, Case No. 2011 CA 00114 10
{¶45} An ineffective assistance of counsel claim requires a showing that
counsel’s performance was deficient and that the deficient performance was prejudicial.
Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674, 693. Deficient performance requires a “showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” Id. Prejudice requires a “showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.
When determining whether counsel’s performance was deficient, “a court must indulge
a strong presumption that counsel’s conduct falls within a wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be considered sound trial
strategy.’”. Id. at 689, 104 S.Ct. at 2065, 80 L. Ed. 2d at 694-695.
{¶46} Appellant argues that he received ineffective assistance of counsel
because his trial counsel made inappropriate remarks during opening statement and
closing argument. For example, during opening statement, the trial court sustained two
objections by the State when defense counsel began making argument to the jury
instead of explaining what the evidence will or will not be. The trial court also sustained
objection made by the State when defense counsel commented upon the possible
punishment Appellant would receive if found guilty by the jury. Defense counsel also
insinuated at a sidebar conference that the State’s prosecutors, both women, were
biased against men. 1
1
The record does not reflect the jury overheard the sidebar statements by defense counsel.
Stark County, Case No. 2011 CA 00114 11
{¶47} During closing, Appellant takes issue with defense counsel’s argument
that conceded Appellant did inappropriate things, such as purchasing the underwear
and bathing suit, but that was not a crime. Counsel also indicated that he was not
claiming Appellant was “innocent and clear” because of these activities, but that the
State had not proven the case. For example, defense counsel stated “[w]e are not
saying he’s not guilty, we are saying they haven’t proven their case. That’s all we have
to do.”
{¶48} A review of the entire transcript reveals that trial counsel made the above
statements as part of his trial strategy, which was to admit that the Appellant engaged in
perhaps some inappropriate behavior (such as purchasing the underwear and bathing
suit, making a joke) but denying illegal sexual conduct. While trial counsel strayed from
the proper parameters of opening statement (which sometimes occur in the emotions of
trial), we cannot say this amounted to ineffective assistance of counsel. The record
demonstrates trial counsel thoroughly cross-examined the State’s witnesses, made
Crim. R. 29 motions after the State’s case and the close of the evidence and adamantly
argued the State did not meet its burden of proof, which is often-used trial strategy. We
cannot second guess counsel’s strategy simply because it was not successful.
{¶49} We also observe that the trial court expressly instructed the jury that
opening statements and closing arguments of counsel are not evidence but only
designed to assist the jury. A jury is presumed to follow the instructions of the court.
State v. Hancock, 108 Ohio St. 3d 57, 2006-Ohio-160, ¶ 86.
{¶50} Accordingly, we find no ineffective assistance of counsel and overrule the
second Assignment of Error.
Stark County, Case No. 2011 CA 00114 12
lll.
{¶51} Appellant’s final assignment of error challenges the sufficiency and weight
of the evidence upon which the jury verdict rested.
{¶52} The standard of review for a challenged to the sufficiency of the evidence
was set forth in State v. Jenks (1991), 61 Ohio St. 3d d 259, 574 N.E.2d 492, paragraph
two of the syllabus, in which the Ohio Supreme Court held:. “An appellate court’s
function when reviewing the sufficiency of the evidence to support a criminal conviction
is to examine the evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.”
{¶53} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeal functions as a “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” State v. Thompkins (1997), 78
Ohio St. 3d 380, 387, 678 N.E.2d 541. Reversing a conviction as being against the
manifest weight of the evidence and ordering a new trial should be reserved for only the
“exceptional case in which the evidence weights heavily against the conviction” Id.
{¶54} Appellant’s challenge to the evidence is general in nature and not specific
as to any element of the offenses of which he was convicted.
Stark County, Case No. 2011 CA 00114 13
{¶55} Ample direct and circumstantial evidence was presented by the State via
the testimony of the three victims and the investigating law enforcement officers. We
conclude the State’s evidence, if believed, was sufficient for any rational trier of fact to
find that Appellant committed the offenses of unlawful sexual conduct, sexual imposition
and furnishing alcohol to a minor, A.F.; unlawful sexual conduct with A.G, a minor and
attempting to compel prostitution with J.R.
{¶56} In this matter, we cannot say that the jury clearly lost its way and created a
manifest miscarriage of justice in convicting Appellant of these charges.
{¶57} Appellant’s third Assignment of Error is overruled.
{¶58} Accordingly, we affirm Appellant’s conviction and sentence in the Stark
County Court of Common Pleas.
By: Delaney, J.
Hoffman, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE
[Cite as State v. Levy, 2011-Ohio-6378.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
DANIEL W. LEVY :
:
Defendant-Appellant : Case No. 2011 CA 00114
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE