DocketNumber： No. CA2010-03-063
Judges： Hutzel, Powell, Ringland
Filed Date： 3/26/2012
Status： Precedential
Modified Date： 11/12/2024
{¶ 1} A Butler County pediatrician convicted of various drug- and sex-related crimes in connection with allegations that he molested three minor patients and provided, for years, money or the means to obtain drugs to two of the same victims now appeals some of his convictions. Mark E. Blankenburg argues that the trial court erred when it refused to divide certain counts of his indictment into separate counts, incorrectly permitted the indictment to be amended at trial, and improperly admitted evidence of other acts that he had committed. We affirm the convictions, finding none of the arguments well taken.
{¶ 2} A multiple-count indictment was filed against Blankenburg in Butler County Common Pleas Court, and the matter went to trial in 2009. Some charges were tried to a jury, and others were tried to the bench.
{¶ 3} Blankenburg was found guilty of four counts of corruption of a minor, one count of aggravated trafficking in drugs, four counts of trafficking in drugs, one count of money laundering, six counts of gross sexual imposition, three counts of compelling prostitution or complicity thereto, and three counts of pandering sexually oriented matter involving a minor.
{¶ 4} After sentencing, Blankenburg instituted this appeal, raising seven assignments of error for our review.
{¶ 5} Assignment of Error No. 1:
{¶ 6} “Blankenburg’s constitutional rights were violated by a duplicitous indictment and by duplicitous charging.”
{¶ 7} Under this assignment of error, Blankenburg argues that “[mjultiple acts of sexual misconduct were conflated into single counts” and that at trial, the state “introduced evidence of multiple acts of sexual misconduct to prove single counts. This constitutes duplicity, and violates Crim. R 8(A), the Sixth Amendment right to notice of the charge, the Fifth Amendment right to avoid double jeopardy, the
{¶ 8} According to Black’s Law Dictionary, in criminal procedure, “duplicity” “takes the form of joining two or more offenses in the same count of an indictment; also termed double pleading.” Id. (8th Ed.2004) 541. “Duplicitous,” as applicable here, is defined as “alleging two or more matters in one plea.” Id.; see United States v. Murray, 618 F.2d 892, 896 (2d Cir.1980) (an indictment is duplicitous if it joins two or more distinct crimes in a single count).
{¶ 9} Blankenburg asked the trial court to address his duplicity arguments on numerous counts of the indictment prior to trial. More than one hearing was devoted at least partially to a discussion of duplicity, specifically as it pertained to certain drug counts. The trial court denied Blankenburg’s motion to dismiss the counts or to split individual counts into separate counts.
{¶ 10} Under this assignment of error, Blankenburg relies on the bill of particulars to identify the alleged victim of a specific count of the indictment that he is challenging. Blankenburg asserts that the following counts involved duplicitous charging or a duplicitous indictment or both: Counts 37 through 41 (gross sexual imposition against victim B.B.), Count 15 (gross sexual imposition against victim M.K.), Count 16 (corruption of a minor, victim M.K.), and Counts 17 and 18 (compelling prostitution, victim M.K.).
{¶ 11} For B.B., Count 37 alleges that Blankenburg committed the offense of gross sexual imposition as an ongoing and continuing course of conduct during a one-year period from April 18, 1993, through April 17, 1994, when B.B. was eight years old, and each successive count (Counts 38 through 41) involves a one-year period for the following year, which reportedly corresponds to the year in which this particular victim, B.B., would have been 9, 10, between 10 and 11, and 12 years old, respectively.
{¶ 12} Blankenburg argues that Counts 37 through 41 allege multiple acts for each count of gross sexual imposition and that it constituted duplicitous charging when B.B. said that Blankenburg fondled B.B.’s genitals 30 to 40 times at Blankenburg’s medical office beginning at age eight or nine.
{¶ 13} As to M.K., Count 15 of the indictment and bill of particulars alleged that Blankenburg committed gross sexual imposition by fondling M.K’s genitals as an ongoing course of conduct from May 1, 1990, through April 30, 1993; committed the offense of corruption of a minor as an ongoing course of conduct for performing fellatio on M.K. when the victim was 14 to 15 years old for Count 16; and committed the offense of compelling prostitution as an ongoing course of conduct when he paid money to M.K. to induce or procure sexual activity (fellatio)
{¶ 14} An indictment is sufficient if it (1) contains the elements of the charged offense, (2) gives the defendant adequate notice of the charges, and (3) protects the defendant against double jeopardy. Hamling v. United States, 418 U.S. 87, 117-118, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).
{¶ 15} R.C. 2941.03(E) provides that an indictment is sufficient if it can be understood from the indictment “that the offense was committed at some time prior to the time of finding of the indictment.” Each count of the indictment must contain, in substance, “a statement that the accused has committed some public offense therein specified.” R.C. 2941.05.
{¶ 16} R.C. 2941.04 states that an indictment “may charge two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more indictments or informations are filed in such cases the court may order them to be consolidated.”
{¶ 17} An indictment is valid even if it states the time imperfectly or omits the time if the time is not an essential element of the offense. R.C. 2941.08(B) and (C). Other defects in the indictment do not render it invalid if they “do not tend to prejudice the substantial rights of the defendant upon the merits.” R.C. 2941.08(E).
{¶ 18} Crim.R. 8(A) provides: “Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, 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.”
{¶ 19} R.C. 2941.28 states:
No indictment or information shall be quashed, set aside, or dismissed for any of the following defects:
(A) That there is a misjoinder of the parties accused;
(B) That there is a misjoinder of the offenses charged in the indictment or information, or duplicity therein;
(C) That any uncertainty exists therein.
If the court is of the opinion that either defect referred to in division (A) or (B) of this section exists in any indictment or information, it may sever such indictment or information into separate indictments or informations or into separate counts.
*211 If the court is of the opinion that the defect referred to in division (C) of this section exists in the indictment or information, it may order the indictment or information amended to cure such defect, provided no change is made in the name or identity of the crime charged.
{¶ 20} We have thoroughly reviewed the record with reference to Blankenburg’s specific arguments and found none of them well taken. First, this case involves a continuing course of conduct charged as separate offenses differentiated by certain time frames. As noted below, Ohio courts have permitted course-of-conduct prosecutions in cases involving multiple acts of sexual abuse perpetrated against child victims. The counts at issue here involve allegations of conduct toward victims who were children or teenagers when the alleged acts occurred several years ago.
{¶ 21} When crimes alleged in the indictment constitute sexual offenses against children, they need not state with specificity the dates of the alleged abuse, so long as the state establishes that the offense was committed within the time frame alleged. State v. Wagers, 12th Dist. No. CA2009-06-018, 2010-Ohio-2311, 2010 WL 2026779, ¶ 17-18.
{¶ 22} We do not share the concerns expressed about jury unanimity. If an indictment alleges that a child victim was molested intermittently within a specified time period even though the exact date of each molestation is unknown, the jury must either believe or disbelieve the victim’s testimony that the pattern of conduct occurred. State v. Ambrosia, 67 Ohio App.3d 552, 587 N.E.2d 892 (6th Dist.1990).
{¶ 23} While some of the separate acts might have been separately charged, the possibility of but one conviction rather than many was to the accused’s advantage. See State v. Nebe, 26 Ohio Law Abs. 581, 1937 WL 2412 (8th Dist.1937).
{¶ 24} In State v. Chaney, 3d Dist. No. 13-07-30, 2008-Ohio-3507, 2008 WL 2718509, the Third Appellate District upheld a conviction for two rape counts and one count of gross sexual imposition, where it was alleged that the accused engaged in a course of conduct beginning in September 1995 through September 2002 and the victim testified that she was touched inappropriately when she was a minor every day except weekends when her mother wasn’t home, and after they moved, the accused engaged in cunnilingus several times.
{¶ 25} This court affirmed a conviction in which the accused was charged with four counts of felonious assault and those four counts were based upon numerous acts and omissions perpetrated against her children over the course of years. State v. Cooper, 139 Ohio App.3d 149, 743 N.E.2d 427 (12th Dist.2000).
{¶ 27} The Eighth Appellate District upheld a conviction where the accused was charged with three counts of rape and three counts of gross sexual imposition for abusing two girls separately and repeatedly over a four-year period; one victim testified that she was raped approximately two out of every five school days and at every place the family resided. State v. Bruce, 8th Dist. No. 92016, 2009-0hio-6214, 2009 WL 4170493.
{¶ 28} We agree with the reasoning of the Third Appellate District in State v. Heft, 3d Dist. No. 8-09-08, 2009-0hio-5908, 2009 WL 3720562, which found no double-jeopardy issues when the defendant’s indictment — as is the case here— differentiated the counts by the type of offense alleged and the time period, and therefore the accused was protected against a subsequent prosecution for the same conduct.
{¶ 29} In the case at bar, Blankenburg was charged with one offense per count of gross sexual imposition of B.B. as an ongoing course of conduct during a specific and separate time frame for the five counts. He was charged with one offense of gross sexual imposition as an ongoing course of conduct during a specific time frame for fondling M.K’s genitalia, one offense of corruption of a minor for performing fellatio on M.K. as an ongoing course of conduct during a specific time frame, and one offense each of compelling prostitution as an ongoing course of conduct for a specific and separate time frame for two separate counts of procuring sexual activity with M.K. for hire.
{¶ 30} This case involved the difficulties presented when adults must recall acts of sexual abuse that occurred when they were minors. In many cases involving child sexual abuse, child victims are simply unable to remember exact dates and times, particularly where the crimes involved a repeated course of conduct over an extended period of time. State v. Barnes, 12th Dist. No. CA2010-06-009, 2011-Ohio-5226, 2011 WL 4790887. However, the victims in the case at bar offered testimony of conduct as indicated by the grand jury indictment and within the time frames as reflected by the indictment.
{¶ 31} We are persuaded by the cases cited above that the manner in which these specific counts were charged, and the evidence that was offered, did not constitute error. Therefore, we decline to follow as too dissimilar State v. Jackson, 8th Dist. No. 95920, 2011-0hio-5920, 2011 WL 5588708.
{¶ 33} After reviewing the indictment and the record at trial, we are not convinced that the manner in which Blankenburg was indicted or the evidence that was presented at trial prejudiced Blankenburg and, further, do not find that the indictment or evidence failed to give him notice of the nature of the charges against him, resulted in an inadequate trial record to protect against subsequent prosecution for the same offense, violated Crim.R. 8, presented the risk that the jury may have convicted him by a nonunanimous verdict, or violated a right to have the grand jury determine the charge.
{¶ 34} Blankenburg’s first assignment of error is overruled.
{¶ 35} Assignment of Error No. 2:
{¶ 36} “The court erred in permitting Blankenburg to be tried for an offense that were [sic] never presented to, or indicted by, the grand jury.”
{¶ 37} Blankenburg argues that the grand jury indicted him on three counts of corruption of a minor based on D.J.’s testimony to the grand jury but that at trial, D.J. “specifically disavowed any sex act occurring on 27 August 1998,” which was the basis for Count 1. Blankenburg argues that the trial court erred in permitting Count 1 to be amended after D.J. testified that the August 27 incident didn’t happen.
{¶ 38} According to the indictment and bill of particulars, Blankenburg was charged with three counts of corruption of a minor for performing fellatio on D.J. at Blankenburg’s medical office when the youth was 13, 14, and 15 years of age, respectively. Count 1 specifically lists the time frame as “[o]n or about August 27,1998.”
{¶ 39} During trial, the state successfully moved to amend the indictment on Count 1 to allege that the act took place between June 12, 1998, and June 11, 1999, to reflect the year in which D.J. was 13 years of age.
{¶ 40} D.J. testified at trial that the first act of fellatio occurred at Blankenburg’s medical office when D.J. was 13 years of age. D.J. testified that he did
{¶ 41} Section 10 of Article I of the Ohio Constitution provides, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * This provision guarantees the accused that the essential facts constituting the offense for which he is tried will be found in the indictment of the grand jury. State v. Headley, 6 Ohio St.3d 475, 478-479, 453 N.E.2d 716 (1983) (where one of the vital elements identifying the crime is omitted from the indictment, it is defective and cannot be cured by the court, because that procedure would permit the court to convict the accused on a charge essentially different from that found by grand jury).
{¶42} The essence of this constitutional guarantee is also manifested in Crim.R. 7(D). Headley. That rule delineates the court’s power to amend the indictment and provides: “The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged.”
{¶ 43} A precise time and date of an alleged offense are ordinarily not essential elements. State v. Sellards, 17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985) (absent material detriment to the preparation of a defense, the omission of specific dates and times is without prejudice, and without constitutional consequence). It is axiomatic that in cases involving sexual misconduct with a young child, precise times and dates of the conduct or offenses often will not be determined. State v. Boyer, 10th Dist. No. 06AP-05, 2006-Ohio-6992, 2006 WL 3825264, ¶ 11, citing State v. Barnecut, 44 Ohio App.3d 149, 151-152, 542 N.E.2d 353 (5th Dist.1988).
{¶ 44} If the evidence ultimately establishes a variance between the dates alleged in the indictment and the evidence adduced at trial, the prosecution or court may amend the indictment pursuant to Crim.R. 7(D) to conform to the evidence offered-in the state’s case-in-chief. Boyer at ¶ 12.
{¶ 45} Whether or not an amendment changes the name or identity of the offense with which one is charged is a matter of law, and therefore we must review this issue de novo. State v. Craft, 181 Ohio App.3d 150, 2009-Ohio-675, 908 N.E.2d 476, ¶ 22 (12th Dist.). In order to determine whether the identity is
{¶ 46} We are aware of the cases cited by Blankenburg in support of his argument that the amendment to Count 1 changed the identity of the offense and created the risk that he was convicted on evidence that was not presented to the grand jury. See, e.g., State v. Plaster, 164 Ohio App.3d 750, 2005-Ohio-6770, 843 N.E.2d 1261 (5th Dist.); see, e.g., Barnecut, 44 Ohio App.3d 149, 542 N.E.2d 353. However, we are not persuaded by this argument.
{¶ 47} It appears from the record available for this appeal that D.J. told the grand jury that he was 13 years old when the first act of fellatio occurred. D.J. was 13 years of age from June 12, 1998, through June 11, 1999, which included Aug. 27, 1998. The amendment kept the same time frame — when D.J. was 13 years of age — by which Blankenburg was informed that he was accused of committing this particular offense against D.J. when the victim was 13. The amendment to the indictment did not change the identity of the offense, nor did it result in a conviction based on evidence that was not presented to the grand jury.
{¶ 48} Having established that the amendment did not change the name or identity of the crime charged, we review the decision of the trial court to allow the amendment under the abuse-of-discretion standard. Craft, 181 Ohio App.3d 150, 2009-Ohio-675, 908 N.E.2d 476, at ¶ 27 (in order to constitute reversible error, appellant must show not only that the trial court abused its discretion, but also that the amendment hampered or otherwise prejudiced appellant’s defense).
{¶ 49} Upon review, we find no abuse of discretion and no prejudice to Blankenburg. His second assignment of error is overruled.
{¶ 50} Assignment of Error No. 3:
{¶ 51} “The state possessed information regarding a specific offense date that it failed to supply to the defense.”
{¶ 52} Blankenburg argues that Counts 16 and 17 of the indictment and bill of particulars provided offense dates over a 24-month period, but the state was aware of the specific date of the offenses when it directed the complaining witness (M.K.) to a specific medical office visit, thereby violating the requirement to disclose a specific date when it possessed that information.
{¶ 53} Blankenburg did not raise this objection at trial. Generally, an appellate court will not consider an alleged error that the complaining party did not bring to the trial court’s attention at the time the alleged error occurred, but a reviewing court may consider an error that was not objected to when that error is plain error. See State v. Kilgore, 12th Dist. No. CA2005-06-172, 2006-Ohio-
{¶ 54} The offense charged under Count 16 was corruption of a minor. The state alleged that Blankenburg had sexual conduct with a person who was 13 years of age or older but less than 16 years of age. Compelling prostitution was the offense charged under Count 17, which alleged that the offender induced, procured, solicited, or requested a minor to engage in sexual activity for hire, whether or not the offender knew the age of the minor.
{¶ 55} Blankenburg cites Sellards for the proposition that the state must, in response to a request for a bill of particulars or demand for discovery, supply specific dates and times with regard to an alleged offense if it possesses that information.
{¶ 56} First, Sellards also stated that ordinarily, precise times and dates are not essential elements of offenses, and specifications as to date and time ordinarily would not be required in a bill of particulars, since that information does not describe particular conduct but instead describes only when that conduct is alleged to have occurred. Sellards, 17 Ohio St.3d at 171, 478 N.E.2d 781.
{¶ 57} The state’s failure to provide specific dates and times in an indictment is more likely to prejudice an accused in cases in which the age of the victim is an element of the crime charged and the victim bordered on the age required to make the conduct criminal. Barnes, 2011-Ohio-5226, 2011 WL 4790887 at ¶ 15, citing Sellards at 172. A second common situation resulting in prejudice is where the defendant was indisputably elsewhere during part but not all of the intervals of time set out in the indictment. Sellards.
{¶ 58} Conversely, where the inability to produce a specific time or date when the criminal conduct occurred is without material detriment to the preparation of a defense, “the omission is without prejudice and without constitutional consequence.” Id.
{¶ 59} First, since the alleged error was not raised below, the record was not developed regarding when the state learned of a more specific date or was able to narrow the time frame for the offenses. M.K. testified that he was able to identify the date once he reviewed his old medical records and remembered the context within which the events occurred.
{¶ 61} Upon review, we cannot say that an obvious error occurred and but for the error, the outcome of the trial clearly would have been otherwise. See Sellards, 17 Ohio St.3d at 172, 478 N.E.2d 781. Accordingly, Blankenburg’s third assignment of error is overruled.
{¶ 62} Assignment of Error No. 4:
{¶ 63} “The trial court erred to the prejudice of defendant-appellant when it admitted numerous ‘other acts’ testimony and documents into evidence.”
{¶ 64} Blankenburg presents a number of arguments in his challenge to the “other-acts evidence” admitted in this case. Before we address those arguments, we will briefly outline the law pertaining to “other acts.”
{¶ 65} R.C. 2945.59 states:
In any criminal case in which the defendant’s motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with, or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
{¶ 66} Evid.R. 404(B) provides: “Evidence of other * * * acts is not admissible to prove the character of a person to show that the person acted in conformity with his character on a particular occasion. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” See also State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 18 (generally, extrinsic acts may not be used to suggest that the accused has the propensity to act in a certain manner).
{¶ 67} The underlying policies of Evid.R. 404(B) and R.C. 2945.59 are essentially the same and are exceptions to the common-law rule that evidence of other acts is inadmissible to prove any element in the crime for which a defendant stands trial. State v. Broom, 40 Ohio St.3d 277, 281-282, 533 N.E.2d 682 (1988). Therefore, both the rule and the statute must be strictly construed against admissibility. Id.
{¶ 69} In addition to R.C. 2945.59 and Evid.R. 404(B), Evid.R. 408(A) requires the exclusion of relevant evidence if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury.
{¶ 70} When the charges involve gross sexual imposition under R.C. 2907.05, the applicable versions of that statute carry their own version of the “rape shield” law, which provides that evidence of specific instances or opinion or reputation evidence of the defendant’s sexual activity shall not be admitted unless it involves evidence of the defendant’s past sexual activity with the victim or is admissible against the defendant under R.C. 2945.59 and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.
{¶ 71} Blankenburg first argues that State v. Lowe, 69 Ohio St.3d 527, 634 N.E.2d 616 (1994), held that there must be substantial proof that he committed the other acts in question before they can be admitted. Blankenburg asserts that there was not substantial evidence that he possessed the photographs admitted as other-acts evidence, and for that reason, the trial court erred in permitting Dr. Sharon Cooper to refer to them when testifying about the nature of child erotica.
{¶ 72} Testimony was presented that Blankenburg and his brother, Scott, took photographs during male youth sporting events for Hamilton-area teams for several years. Former athletes testified they observed Blankenburg and his brother with camera equipment, taking photos. Some also testified that that at the end of the season, athletes were often given a packet of action photographs depicting their play on the field or court.
{¶ 73} The state presented evidence that law-enforcement officers removed camera equipment and tens of thousands of photographs from the home shared by Blankenburg, his brother, and their father. Some of the photographic evidence was found in a bedroom in which clothing and other personal effects from Blankenburg and his brother were located, and other photographic evidence was found in the basement of the dwelling. Evidence was presented that Blankenburg used the computer found in the area where some of the photos were found.
{¶ 74} The state presented evidence that some of the photographs or negatives removed from the house contained images appearing to feature the clothed
{¶ 75} A law-enforcement witness testified that Blankenburg’s name was found on a few photo processing labels and his brother’s name on some but that many of the processing labels contained what law enforcement believed to be fictitious female names.
{¶ 76} The evidence also contained notebooks of photo negatives. Small sheets of paper were attached to many of the negative sheets or contact prints, and those papers contained notations as to specific images. One such prescription sheet also contained the notation “For me” and listed two images that depicted a shirtless athlete. The notations were scribbled on the back of sheets from Blankenburg’s prescription pad.
{¶ 77} The trial court indicated that there was sufficient evidence to find that at the very least, Blankenburg jointly possessed the photographic materials with his brother. Having reviewed the record in accordance with the applicable law, we find substantial proof that Blankenburg possessed the evidence, and consequently, the trial court did not err in permitting Dr. Cooper to rely on the photo evidence in her testimony as an expert witness.
{¶ 78} Blankenburg next argues that when an accused commits a sex crime for the obvious motive or intention of sexual gratification, other-acts evidence tending to prove that intent or motivation is not material and is therefore inadmissible under Evid.R. 404(B) and R.C. 2945.59. He further argues that the admission of other-acts evidence was “certainly prejudicial” to him.
{¶ 79} In support of his claims, Blankenburg argues that possession of various photographs did not constitute a criminal act and that the photos had “nothing whatsoever to do with the specific acts that Blankenburg was accused of’ in relation to the charges of gross sexual imposition and corruption of a minor and were simply used improperly to show that Blankenburg was the type of person who could commit such sex crimes.
{¶ 80} In conjunction with his opposition to the admission of the photographs, Blankenburg objects to the admission of a wrestling video that was apparently filmed by him. In this video, two high school male wrestlers are recorded practicing, watching, and participating in matches, with some camera focus solely on their bodies.
{¶ 82} The state argues that the other-acts evidence was properly admitted to show Blankenburg’s motive for committing the crimes. “Motive” has been defined as a mental state that induces an act, the moving power that impels action for a definite result. State v. Williams, 2d Dist. 24149, 2011-Ohio-4726, 2011 WL 4346650; State v. Young, 7 Ohio App.2d 194, 196, 220 N.E.2d 146 (10th Dist.1966). Motive is generally relevant in criminal trials even though the matter involved is not an element of the offense that the state must prove to secure a conviction. Williams. Unless readily evident from the accused’s conduct, motive is a part of the narrative of the state’s theory of its case against the accused seeking to prove his criminal liability. Id.
{¶ 83} In order for other acts to be admissible to show motive, the other acts must be “ ‘of a character so related to the offense for which the defendant is on trial that they have a logical connection therewith and may reasonably disclose a motive or purpose for the commission of such offense.’ ” State v. Craycraft, 12th Dist. Nos. CA2009-02-013 and CA2009-02-014, 2010-Ohio-596, 2010 WL 610601, ¶ 27, reversed on other grounds, 128 Ohio St.3d 337, 2010-Ohio-6332, 944 N.E.2d 220, quoting State v. Moore, 149 Ohio St. 226, 78 N.E.2d 365 (1948), paragraph one of the syllabus (construing a predecessor of R.C. 2945.59).
{¶ 84} Blankenburg cites a number of cases in support of his argument that his motive was readily evident from his conduct and could not justify the use of other-acts evidence for that purpose. It does not appear from the record that Blankenburg denied that he may have engaged in a sexual relationship with at least one of these victims when the alleged victim was an adult, but he maintains that he did not abuse his minor patients.
{¶ 85} The state introduced the photographs described as child erotica, the former athletes who testified about their photographs, and the other instances of sexual activity with M.K. and D.J. to show Blankenburg’s motive for engaging in sexual activity with minor male patients. After reviewing the record, we cannot agree that Blankenburg’s motive to engage in sexual activity with minors was readily evident. Blankenburg was a physician apparently well respected in the community, a booster of local athletics for years, and at some point a youth baseball coach. The other-acts evidence provided the motive or explained why a
{¶ 86} The other-acts testimony of M.K. and D.J. also provided evidence of Blankenburg’s preparation, scheme, plan, or system in committing the offenses. See R.C. 2945.59; Evid.R. 404(B).
{¶ 87} There are two situations in which other-acts evidence is admissible to show a defendant’s scheme, plan, or system: (1) to show the background of the alleged crime or (2) to show identity. State v. Williams, 195 Ohio App.3d 807, 2011-Ohio-5650, 961 N.E.2d 1200 (to show background, evidence must be inextricably related to the charged crime and admissible because it would be virtually impossible to prove that the accused committed the crime charged without also introducing evidence of the other acts).
{¶ 88} Evidence was presented establishing the background necessary to give a complete picture of the alleged crimes: Blankenburg engaged in sexual activity with M.K., D.J., and B.B. after a parent or guardian did not accompany them to the examination room. B.B. indicated that after one incident of fondling, Blankenburg gave him some money. M.K. and D.J. testified that Blankenburg would provide them with money or the means to obtain drugs after sexual conduct occurred. See State v. Frost, 6th Dist. Nos. L-06-1142 and L-06-1143, 2007-Ohio-3469, 2007 WL 1953624 (other-acts evidence shows that defendant committed similar crimes against the same victim within a period of time near to the crimes charged and that a similar system was used to commit both the crimes charged and the other acts); see State v. Walker, 8th Dist. No. 79767, 2002-Ohio-1653, 2002 WL 538761 (other acts were inextricably related to the defendant’s alleged course of conduct and formed a background necessary to give a complete picture of the alleged crime; child victim’s testimony about previous sexual advances played an integral part in explaining the sequence of events and was necessary to give the jury a complete picture of the crimes with which defendant was charged); see also R.C. 2907.05 (past sexual activity with the victim).
{¶ 89} The admission of other-acts evidence under Evid.R. 404(B), R.C. 2945.59, and the rape shield law, where applicable, lies within the broad discretion of the trial court, and a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice. State v. Short, 1st Dist. No. C-100552, 2011-Ohio-5245, 2011 WL 4863768, ¶ 5; see also State v. Perez, 124 Ohio St.3d 122, 2009-0hio-6179, 920 N.E.2d 104, ¶ 96.
{¶ 90} Upon review of the record, the prejudicial effect of the admission of the other-acts evidence did not outweigh its probative value. We find no abuse of discretion in permitting the introduction of the other-acts evidence, and the
{¶ 91} Blankenburg next argues the trial court violated his right to a fair trial by admitting cumulative and repetitive photographs into evidence. The state told the trial court that officers seized probably 40,000 photos from Blankenburg's home and the state selected a percentage of them, reportedly 4,000, to admit into evidence. Some of the photographs were shown to Dr. Cooper, who was asked during her testimony to provide an opinion about whether they were consistent with child erotica, and were subsequently “published” to the jury. The rest of the photos were admitted and available to the jury.
{¶ 92} The admission or exclusion of photographic evidence is left to the discretion of the trial court. Under Evid.R. 403, a trial court may reject an otherwise admissible photograph that, because of its inflammatory nature, creates a danger of prejudice that substantially outweighs the probative value of the photograph as evidence, but absent such danger, the photograph is admissible. State v. Morales, 32 Ohio St.3d 252, 257, 513 N.E.2d 267 (1987); see also R.C. 2907.05 (its inflammatory or prejudicial nature does not outweigh its probative value).
{¶ 93} The admission of roughly 4,000 photos would certainly appear, at first blush, to support Blankenburg’s argument that the evidence was cumulative. However, the collection of photographs was, in itself, significant. This collection of photographs was the evidence, photographs possessed by Blankenburg, not photos taken by law enforcement. The photos did not depict overtly sexual images. In fact, many of them could be considered innocuous and arguably could have been accidently taken in the process of capturing thousands and thousands of images over several years.
{¶ 94} It is for this reason, however, that the large number of shots described as child erotica presented a more accurate evidentiary picture of Blankenburg’s motive. In other words, these images were not the result of inadvertence, accident, or ineptness. Blankenburg argues that this “overabundance of photographs was overwhelming.” Indeed, the number of photographs illustrates that Blankenburg collected not some evidence of his motive, but a remarkable number of images directly relevant to his motive.
{¶ 95} The dissent acknowledges that there is no bright-line test for the appropriate number of images introduced but argues that the admission of 100 or 200 or possibly even 400 photographs should be sufficient. There was a tremendous number of images, approximately 40,000, reportedly removed from Blankenburg’s home, and the state presented a percentage — roughly 10 percent — of the collection. We do not fault the trial court for choosing to allow within its
{¶ 96} While the sheer number of photographs admitted may constitute error when they are needlessly cumulative, “the mere fact that there are numerous photos will not be considered reversible error unless the defendant is prejudiced thereby,” and “[ajbsent gruesomeness or shock value, it is difficult to imagine how the sheer number of photographs admitted can result in prejudice requiring reversal.” State v. DePew, 38 Ohio St.3d 275, 281, 528 N.E.2d 542 (1988) (reviewing photographs of crime scene taken by law enforcement in capital murder trial).
{¶ 97} The number of images made available to the jury was a discretion call by the trial court, and we cannot say that the trial court abused its discretion in that regard.
{¶ 98} Blankenburg’s final argument under this assignment of error asks this court to find that the improper admission of other-acts evidence violated his due process constitutional right to a fair trial. Since we did not find that the trial court improperly admitted the other-acts evidence, we do not find that Blankenburg’s due process rights were violated by the admission of this evidence.
{¶ 99} After having thoroughly considered the arguments and law cited by Blankenburg, including supplemental authority, we are not persuaded to accept Blankenburg’s arguments and overturn the trial court’s rulings on these issues. Blankenburg’s fourth assignment of error is overruled.
{¶ 100} Assignment of error No. 5:
{¶ 101} “The trial court erred to the prejudice of defendant-appellant when it permitted Dr. Cooper to testify as an expert.”
{¶ 102} Blankenburg argues that it was improper to allow Dr. Cooper to testify to matters that are not beyond a jury’s knowledge or experience when she based her testimony on photographs the “jury was quite capable of reviewing and interpreting.”
{¶ 103} Evid.R. 702 provides that a witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
*224 (C) The witness’ testimony is based on reliable scientific, technical, or other specialized information.
{¶ 104} Dr. Cooper, a pediatrician, testified that approximately 60 percent of her current practice involved “child-abuse maltreatment,” including child exploitation.
{¶ 105} The trial court expressed concern about whether Dr. Cooper’s testimony was required with regard to child erotica, but qualified her as a doctor of pediatrics. It ruled that Dr. Cooper possessed knowledge, experience, and specialized information helpful to the jury and judge but limited the scope of her testimony. The trial court eventually permitted Dr. Cooper to testify that child erotica was a visual, written, or physical object concerning children that serves as a sexual fantasy for a person who has a preferential interest in children and may include photos that do not depict any type of sexually explicit behavior but may involve children dressed in a manner significant to a person who has a preferential interest in children.
{¶ 106} Dr. Cooper described a collector as a person who finds images and has them in his or her possession; she indicated that a reproducer not only collects images, but produces hard copies. Dr. Cooper was also shown numerous photographs removed from the Blankenburg home and she opined that they were consistent with child erotica.
{¶ 107} The determination of the admissibility of expert testimony is within the discretion of the trial court, and its decision will not be disturbed absent an abuse of that discretion. State v. Barnes, 2011-Ohio-5226, 2011 WL 4790887, ¶ 44, citing Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 9.
{¶ 108} Dr. Cooper’s testimony tied the seemingly innocuous, nonsexual photographs to Dr. Blankenburg’s motive and the mental state that induced his conduct. Dr. Cooper used her knowledge and experience to provide evidence related to matters beyond the knowledge and experience possessed by the jury or helped dispel misconceptions common to lay persons. We do not find that the trial court abused its discretion in admitting the expert testimony of Dr. Cooper. Blankenburg’s fifth assignment of error is overruled.
{¶ 109} Assignment of Error No. 6:
{¶ 110} “Blankenburg’s conviction for count 37 was unlawful.”
{¶ 111} Blankenburg challenges the sufficiency and manifest weight of the evidence for Count 37, which alleged that he committed the offense of gross sexual imposition on B.B. when the victim was eight years old. Blankenburg
{¶ 112} When reviewing a challenge to the sufficiency of the evidence to support a criminal conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 34; State v. Blanton, 12th Dist. No. CA 2005-04-016, 2006-Ohio-1785, 2006 WL 902362, ¶ 6.
{¶ 113} A court considering whether a conviction is against the manifest weight of the evidence must review the entire record, weighing the evidence and all reasonable inferences, and consider the credibility of witnesses. Hancock at ¶ 39. The question is 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. Id.; Blanton at ¶ 7.
{¶ 114} The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We must be mindful that the original trier of fact was in the best position to judge the credibility of witnesses and the weight to be given the evidence. See State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). A unanimous concurrence of all three judges on the court of appeals panel reviewing the ease is required to reverse a judgment on the weight of the evidence in a jury trial. Thompkins at 389.
{¶ 115} B.B. alleged that he was fondled by Blankenburg 30 to 40 times while he was Blankenburg’s patient and that he was often sick as a child and had to have frequent allergy shots at Blankenburg’s office. B.B. was asked how old he was when the fondling began, and he responded, “I would say around — right around nine.”
{¶ 116} B.B. answered in the affirmative when asked by the prosecutor whether the fondling occurred “some time before you were ten, in the eight or nine or ten range, somewhere in there?” When asked to clarify, B.B. testified, “What I told them [the state] is in between the ages of eight, nine, ten, eleven years old. I don’t remember the exact age; I was a kid. I said it happened 30 to 40 times, okay. That’s what I’m saying.” When asked again if it happened before B.B. was seven, he said he didn’t believe so. When asked if it happened before he was nine years old, B.B. replied, “Nine, ten years old.”
{¶ 117} As we’ve previously noted,' in many cases involving child sexual abuse, child victims are simply unable to remember exact dates and times, particularly when the crimes involved a repeated course of conduct over an extended period of
{¶ 118} Assignment of error No. 7:
{¶ 119} “The clerk of courts and prosecutor erred in assessing court costs and obtaining a certified judgment.”
{¶ 120} Blankenburg argues that a costs statute and his due process rights were violated when the clerk of courts did not compile the cost information or certify it, and did not present it to the prosecutor for review, and some of the costs included those for a prior dismissed case against him and a detective’s overtime pay.
{¶ 121} The applicable version of R.C. 2949.14 states that upon conviction of a nonindigent person for a felony,
the clerk of the court of common pleas shall make and certify under his hand and seal of the court, a complete itemized bill of the costs made in such prosecution, including the sum paid by the board of county commissioners, certified by the county auditor, for the arrest and return of the person on the requisition of the governor * * *. Such bill of costs shall be presented by such clerk to the prosecuting attorney, who shall examine each item therein charged and certify to it if correct and legal. Upon certification by the prosecuting attorney, the clerk shall attempt to collect the costs from the person convicted.
{¶ 122} In all criminal cases, costs must be included in the sentencing entry. State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 19, citing R.C. 2947.23(A). The clerk of courts is responsible for generating an itemized bill of the court costs. Id. However, even if the itemized bill is ready at the time of sentencing, the specific amount due is generally not put into a judgment entry. Id. at ¶ 19, 21 (calculating a bill for the costs in a criminal case is merely a ministerial task; failing to specify the amount of costs assessed in a sentencing entry does not defeat the finality of the sentencing entry as to costs).
{¶ 123} The phrase “costs of prosecution” has not been statutorily defined. Middleburg Hts. v. Quinones, 120 Ohio St.3d 534, 2008-Ohio-6811, 900 N.E.2d 1005, ¶ 8. Ohio courts have consistently held that the power to impose court costs must be statutorily granted. Id. at ¶ 8, 9.
{¶ 124} The Ohio Supreme Court described costs in Quinones, as “the statutory fees to which officers, witnesses, jurors, and others are entitled for their
{¶ 125} “The expenses which may be taxed as costs in a criminal case are those directly related to the court proceedings and are identified by a specific statutory authorization.” State v. Christy, 3d Dist. No. 16-04-04, 2004-Ohio-6963, 2004 WL 2940888, ¶ 22.
For example, as expressly provided for by the Ohio Revised Code, a sentencing court may order a criminal defendant to pay the following costs and expenses associated with criminal proceedings: fees of officers and court personnel [R.C. 2303.28], including clerks of court [R.C. 2303.20]; jury fees [R.C. 2947.23]; witness fees [R.C. 2335.05]; interpreters fees [R.C. 2335.09]; and fees of psychologists and psychiatrists [R.C. 2947.06]; etc.
Id. (no statutory provision has been identified by the state as authorizing the towing and storage of the defendant’s vehicle to be assessed as costs in this proceeding, so consequently, trial court is without authority to assess those expenses under the category of “costs of prosecution,” however desirable it might be to do so); see also R.C. 2929.28 (defendant convicted of arson to pay costs of investigation and prosecution); see also R.C. 2923.32 (assessment of costs of investigation and prosecution for engaging in a pattern of corrupt activity).
{¶ 126} The trial court ordered Blankenburg to pay costs of prosecution, and the sentencing entry did not contain an amount of the calculated costs. The state argues that the clerk’s office filed a praecipe for certification of the court costs, but nothing has been reduced to judgment. We have nothing in the record before us to indicate whether the proper procedure is being followed or whether the prosecution costs have been reduced to judgment. Therefore, we have nothing to pass upon as the record stands before this court. Accordingly, the issue does not appear to be ripe for our consideration. Blankenburg’s seventh assignment of error is overruled.
{¶ 127} The judgment is affirmed.
Judgment affirmed.