State v. Palmer-Tesema

[Cite as State v. Palmer-Tesema, 2020-Ohio-907.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107972
v. :
YOHANN PALMER-TESEMA, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 12, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-626287-A
Appearances:
David L. Doughten, for appellee.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carl Mazzone and Christopher D.
Schroeder, Assistant Prosecuting Attorneys, for
appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Yohann Palmer-Tesema (“Palmer-Tesema”),
appeals his convictions after a jury found him guilty of six counts of rape and three
counts of kidnapping. Finding no merit to the appeal, we affirm his convictions.
II. Procedural History and Factual Background
In March 2018, Palmer-Tesema was named in a nine-count indictment
related to crimes committed against three women — S.L., N.D., and M.C. Pertaining
to S.L., he was charged with two counts of rape (vaginal and anal intercourse) and
one count of kidnapping. As related to N.D., Palmer-Tesema was charged with one
count of rape (digital penetration) and one count of kidnapping. Relating to M.C.,
he was charged with three counts of rape (digital penetration, vaginal intercourse,
and cunnilingus) and one count of kidnapping. All charges contained a sexually
violent predator specification, and the kidnapping charges carried a sexual
motivation specification.
Prior to trial, Palmer-Tesema filed a motion for relief from prejudicial
joinder, seeking separate trials for the counts pertaining to each victim. The state
opposed the motion, and following a hearing, the trial court denied Palmer-
Tesema’s motion to sever.
The matter was tried before a jury except for the sexual predator
specifications, which were tried to the bench.
A. The Trial
Three women, S.L., N.D., and M.C., each were raped by Palmer-
Tesema. Although the rape of each woman was a separate and distinct incident,
taken together, they occurred close in time and bear factual similarities. The rapes
occurred between November 22, 2017 and January 14, 2018, and each were
committed at Palmer-Tesema’s house, in his bed, and in spite of each victim’s
substantial impairment and lack of consent.
1. S.L. — November 22, 2017
S.L. testified that on November 22, 2017, the night before
Thanksgiving, she went out with her friends to the West End Tavern (“West End”)
in Lakewood, Ohio. Prior to arriving at the bar, S.L. consumed six beers and shared
half of a box of wine. She admitted it was not uncommon for her to consume this
much alcohol at least once a week.
She testified that when she arrived at the West End she was “definitely
feeling tipsy” and had “started going in and out.” She clarified that she was “on the
verge of blacking out,” — characterizing it as a “brownout.” At the bar, one of her
friends bought her a shot. S.L. did not recall if she had other drinks at the bar aside
from the shot, but said it was the last thing she remembered that evening.
In the morning, S.L. woke up, still drunk, and in a house she did not
recognize. She was in bed with Palmer-Tesema, whom she recognized from high
school but had not seen for a year. According to S.L., they were never friends. She
testified that she was confused and naked from the waist down. She noticed that
the bed was wet underneath her, which she thought at the time could be urine. Her
hearing processor device and cell phone were beside the bed, but she could not
locate her purse.1 She asked Palmer-Tesema if they had sex. He denied it, claiming
1 S.L. testified that she is profoundly deaf and has a cochlear implant. She wears
an external audio processor at all times except when she sleeps and showers.
nothing happened. S.L. found her underwear and pants, got dressed, and texted
her brother. She stated she was still drunk and everything was blurry.
S.L.’s brother, D.L., testified that he woke up Thanksgiving morning
and saw a text message sent by his mother stating that S.L. had not come home.
He also saw two text messages sent at 1:51 a.m. from S.L.’s cell phone that read
“[S.L.’s] sleeping at my place this is yohann [sic],” and “I live in bay village [sic].”
D.L. responded to the message at 6:59 a.m.: “whew thanks man. she awake now?
and okay? [sic].” He testified that he tried to locate Palmer-Tesema’s address to
find his sister. Around 8:30 a.m. he received a text message from S.L. stating that
she was okay; he picked her up shortly thereafter.
S.L. testified that she went to the bathroom at her brother’s house
and noticed that her vagina was “very stretched out” and that she felt “very sore all
over” her body. (Tr. 416.) She testified that it was painful to urinate. She began
crying and immediately told her brother that something happened — “he did
something to me.”
D.L. drove S.L. to the NORD Center in Lorain and a sexual
examination was performed by Amanda McCall, a sexual assault nurse examiner
(“SANE”). S.L. told McCall that Palmer-Tesema raped her the night before.
McCall testified that she found bruising to S.L.’s inner thigh and calf. According
to McCall, the bruising was consistent with finger marks. McCall also testified that
she noted the presence of white discharge in S.L.’s vaginal cavity, which could be
consistent with semen. A toxicology screen was also performed and the results
revealed that at 1:30 p.m., which was approximately 12 hours after she stopped
drinking, S.L. had a blood-alcohol content of 0.165.
S.L. testified that later that evening she felt pain in her anus and was
unable to have a bowel movement. At that time, she told her parents what
happened, and the following morning they took her to Fairview Hospital and then
to the Bay Village Police station to report the rape.
Salesha Baksh (“Baksh”), a forensic DNA analyst with the Cuyahoga
County Regional Forensic Science Laboratory, tested swabs taken from S.L.’s rape
kit. She testified that Palmer-Tesema’s DNA was a match for the DNA found on
the swabs taken from inside of the crotch area of S.L.’s underwear.
The state pieced S.L.’s night together through the West End’s
surveillance video recordings and the testimonies of (1) a West End bartender, (2)
the Uber driver who accepted S.L.’s Uber request, and (3) Palmer-Tesema’s
roommates and friends.
The jury watched the surveillance video and saw S.L’s interactions at
the bar prior to leaving with Palmer-Tesema, including talking to unknown men.
The state also presented the testimony of the West End bartender who stopped
serving S.L. alcohol due to her intoxicated state. The Uber driver who drove
Palmer-Tesema and S.L. to S.L.’s parent’s house, then to Palmer-Tesema’s house,
testified about the couple’s interactions during the ride, including that they were
kissing. The state also presented testimony from two of Palmer-Tesema’s
roommates who described S.L. and Palmer-Tesema’s behavior after they arrived at
their house. Finally, Palmer-Tesema’s friend testified that Palmer-Tesema “kind
of bragged” to her on Thanksgiving night that the night before, “he slept with a girl
he didn’t want to, but she started taking her clothes off so he had to do it.” (Tr.
594.)
The jury also heard testimony from the investigating detectives and
listened to Palmer-Tesema’s initial interview with police denying any sexual conduct
with S.L., even though she “wanted to” but he did not because she was way too drunk
and he was not attracted to her. He told them that she slept in his bed, and he slept
on the couch.
2. N.D. — November 29, 2017
N.D. testified that she met Palmer-Tesema through their mutual
friend, M.C. (the third victim). N.D. explained that she “tolerated” Palmer-Tesema,
considering him to be more of an acquaintance. She was better friends with other
members of the group and stated she would hang out with Palmer-Tesema only if
he was with other friends. According to N.D. “[w]e were all friends,” who hung out
at Palmer-Tesema’s house in Bay Village and referred to it as the “Bay house.” She
told the jury that they all just slept in the beds that were open or on couches or the
floor and were able to leave the next day without having to drive. N.D. estimated
that she had slept in Palmer-Tesema’s bed around three to five times, but that he
was never in the bed with her.
On November 29, 2017, N.D. and her friend Tia McCord drank at the
Bay house for several hours prior to going to bars, including the West End. She
remembered having five to seven mixed drinks and three to four shots. She testified
that she did not remember leaving the West End. She recalled being back at the Bay
house and being “very drunk” before going to sleep in Palmer-Tesema’s bed, alone,
and fully clothed. N.D. testified that she awoke lying flat on her stomach and to
somebody vaginally penetrating her from behind; she eventually realized it was
Palmer-Tesema. She did not recall saying or doing anything in response. N.D. was
awakened when McCord came into the bedroom the next morning and she realized
she was naked from the waist down. N.D. got dressed and left with her friend.
N.D. told the jury that she did not initially go to the police or report
the sexual assault because it was “not registering” to her as a sexual assault.
However, after speaking with the Bay Village Police about Palmer-Tesema sexually
assaulting M.C., she decided to come forward. She testified that she never consented
to have sex with Palmer-Tesema.
3. M.C. — January 14, 2018
M.C. testified that at one point in time she was “very close” friends
with Palmer-Tesema and one of his roommates. She would “hang out” at the Bay
house three times a week. M.C. explained that she and others in the group,
including N.D., would drink excessively and then sleep at the Bay house. M.C.
testified that she would “just typically crash on the couch.”
M.C. told the jury that in the summer of 2017, Palmer-Tesema
wanted to be more than friends but she did not. She stated that on two prior
occasions, Palmer-Tesema kissed her without her permission but he was respectful
when she told him to stop each time.
M.C. testified that on January 14, 2018, she had been “day drinking.”
She explained that she had her first drink around 11:30 a.m., and continuously
drank for the entire day. This included an unknown number of drinks at the West
End Tavern. M.C. explained “I don’t remember because I was drunk. I remember
where I was and who I was with but at that point I don’t really remember the
context of conversation or how many drinks I had had.” That night, M.C.
exchanged text messages with Palmer-Tesema and decided to stay the night at the
Bay house.
She remembered talking to Palmer-Tesema in the kitchen and then
waking up with her face in the toilet, unsure if she had vomited. She recalled
crawling up the stairs and going directly to Palmer-Tesema’s bed. She testified that
she fell asleep fully-clothed, and that her next memory was waking up and realizing
that Palmer-Tesema’s fingers were inside her vagina. She also stated that Palmer-
Tesema was having sex with her despite her telling him multiple times to stop. She
testified that she was still drunk at that point and was unsure whether she lost
consciousness during the sexual encounter. M.C. next recalled waking up naked
from the waist down and that Palmer-Tesema’s hand was inside her bra. She found
her clothes, got dressed, and left.
The jury read text messages between her and Tia McCord, in which
M.C. stated that Palmer-Tesema “borderline raped me.” M.C. did not report the
rape to police until another one of her friends, Leah, encouraged her to do so on
January 18, 2018. Following the report and advice of the investigating detective,
M.C. went to NORD for a rape-kit examination.
SANE Nurse Denise Miller, testified that she performed M.C.’s rape-
kit examination and observed bruising to M.C.’s abdomen, hips, and buttocks. A
speculum and a toluidine blue dye exam were conducted, revealing a small
laceration to the vulva. According to Miller, the laceration is consistent with
vaginal penetration but it does not reveal whether consensual or nonconsensual
activity occurred.
Forensic analyst and expert Baksh also testified that she performed
and analyzed the DNA from M.C.’s rape kit. According to Baksh, a swab taken from
the inside crotch area of M.C.’s underwear revealed a mixture of DNA.
Accordingly, additional Y-STR testing, which focuses solely on the Y-chromosome
to isolate male DNA in the sample, was performed on the swab. Christine Scott, a
forensic DNA analysis with the Cuyahoga County Regional Forensic Science
Laboratory, performed the additional testing and testified that she found that the
major Y-STR DNA component in the sample was Palmer-Tesema’s.
4. The Defense’s Case
Palmer-Tesema testified. He admitted that alcohol was involved and
that each woman slept in his bed. He further claimed that he participated in
consensual sexual conduct with M.C. and N.D., but denied that any sexual activity
occurred with S.L.
In his defense, two of his friends testified regarding the interactions
between Palmer-Tesema and S.L. and M.C. His friend Reynaldo testified that he
was at the West End on November 22, 2017, and saw S.L and Palmer-Tesema
together, and that S.L. was kissing Palmer-Tesema’s neck.
On January 14, 2018, Reynaldo was at the Bay house playing cards
when M.C. came over. According to Reynaldo, M.C. and Palmer-Tesema were in
the kitchen talking, and M.C. was sitting on the kitchen counter with her legs
around Palmer-Tesema. He stated that when he and his friends came back from
getting pizza, he did not see them again.
Palmer-Tesema’s friend Tyler testified that on November 30, 2017,
he was with N.D., McCord, and Palmer-Tesema and they were all drinking.
According to Tyler, he was initially sleeping in the same bed with Palmer-Tesema
but he left when McCord and N.D. came into the room, and N.D. got into the bed
with Palmer-Tesema. He testified that he also witnessed M.C. being affectionate
toward Palmer-Tesema on January 14, 2018.
B. The Verdict and Sentence
The jury found Palmer-Tesema guilty of all charges, including the
sexual motivation specifications. Following the jury verdict and prior to sentencing,
the state dismissed the sexually violent predator specifications. After merging allied
offenses, the trial court imposed an aggregate prison term of 17 years.
Palmer-Tesema now appeals, raising three assignments of error.
II. Law and Analysis
A. Joinder of Offenses
Prior to trial, Palmer-Tesema filed a motion for relief from prejudicial
joinder, seeking separate trials for the counts pertaining to each woman because the
underlying facts of each incident were such that presenting them together would
confuse the jury and deny him a fair trial. Specifically, he contended that based on
the nature of the offenses charged and the similarity of the factual scenarios
underlying them, the jury would be influenced by any evidence of guilt as related to
one victim and thereby use it to improperly infer guilt as related to another.
The state opposed the motion, arguing that the joinder of offenses was
proper because the evidence was simple and direct pertaining to each victim, the
occurrences shared a common modus operandi, and the evidence of each sexual
assault would likely be admissible under Evid.R. 404(B). Following a hearing, the
trial court denied Palmer-Tesema’s motion.
On at least two different occasions during trial, Palmer-Tesema either
renewed his motion for relief from prejudicial joinder or moved for a mistrial on the
grounds of prejudicial joinder. The trial court denied each request.
In his first assignment of error, Palmer-Tesema contends that the trial
court abused its discretion when it denied his motion for relief from prejudicial
joinder.
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.” Ohio law favors joinder of offenses that meet the Crim.R. 8(A)
requirements in a single trial. State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347,
54 N.E.3d 80, ¶ 59. “Joinder is liberally permitted to conserve judicial resources,
reduce the chance of incongruous results in successive trials, and diminish
inconvenience to the witnesses.” State v. Schaim, 65 Ohio St.3d 51, 58, 600 N.E.2d
661 (1992); see also State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-
5138, ¶ 10 (joinder preferable where not unduly prejudicial).
In this case, Palmer-Tesema does not dispute that joinder was proper
under Crim.R. 8(A); rather, he contends that joinder was unduly prejudicial.
Crim.R. 14 provides relief from prejudicial joinder. “If it appears that
a defendant * * * is prejudiced by a joinder of offenses * * * the court shall order an
election or separate trial of counts * * * or provide such other relief as justice
requires.” Crim.R. 14. “Severance may be warranted if the trial court finds a serious
risk that a joint trial would prevent the jury from making a reliable judgment about
guilt or innocence.” State v. Jackson, 8th Dist. Cuyahoga No. 102394, 2015-Ohio-
4274, ¶ 12, citing United States v. Zafiro, 506 U.S. 534, 539, 113 S.Ct. 933, 122
L.Ed.2d 317 (1993). A defendant seeking severance must provide the trial court
“‘sufficient information so that it can weigh the considerations favoring joinder
against the defendant’s right to a fair trial.’” State v. Hand, 107 Ohio St.3d 378,
2006-Ohio-18, 840 N.E.2d 151, ¶ 166, quoting State v. Torres, 66 Ohio St.2d 340,
343, 421 N.E.2d 1288 (1981). The defendant “‘bears the burden of proving prejudice
and of proving that the trial court abused its discretion in denying severance.’” Dean
at ¶ 60, quoting State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d
959, ¶ 29.
If a defendant makes a claim for prejudicial joinder, “[t]he state may
rebut a defendant’s claim * * * in two ways.” Dean at ¶ 61. First, if the state shows
that the evidence of each joined offense is “simple and direct” the defendant’s claim
of prejudice fails. Id. Where the evidence of the joined offenses is “uncomplicated,”
such that the jury is “capable of segregating the proof” required to prove each
offense, a defendant is not prejudiced by the joinder. State v. Lunder, 8th Dist.
Cuyahoga No. 101223, 2014-Ohio-5341, ¶ 33.
The second way the state can refute prejudice is if the state could
otherwise introduce evidence of the joined offenses at separate trials as “other acts”
pursuant to Evid.R. 404(B). Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d
80, at ¶ 61. However, if the state can establish that the evidence of each offense is
simple and direct, it need not establish that the evidence would be otherwise
admissible under Evid.R. 404(B). State v. Clipps, 8th Dist. Cuyahoga No. 107747,
2019-Ohio-3569, ¶ 45.
Evidence is “simple and direct” if (1) the jury is capable of readily
separating the proof required for each offense, (2) the evidence is unlikely to confuse
jurors, (3) the evidence is straightforward, and (4) there is little danger that the jury
would “improperly consider testimony on one offense as corroborative of the other.”
State v. Wright, 4th Dist. Jackson No. 16CA3, 2017-Ohio-8702, ¶ 52. Courts have
held that evidence of multiple offenses is “simple and direct” where, for example,
the offenses involved different victims, different incidents or factual scenarios, and
different witnesses. State v. Dantzler, 10th Dist. Franklin Nos. 14AP-907 and 14AP-
908, 2015-Ohio-3641, ¶ 23. Thus, as this court has stated, “Ohio appellate courts
routinely find no prejudicial joinder where the evidence is presented in an orderly
fashion as to the separate offenses or victims without significant overlap or
conflation of proof.” State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-
5138, ¶ 16, citing State v. Lewis, 6th Dist. Lucas Nos. L-09-1224 and L-09-1225,
2010-Ohio-4202, ¶ 33.
In this case, Palmer-Tesema offers no evidence or support for his
claim that he was prejudiced by the jury’s consideration of the joined offenses.
Instead, and without identifying any purportedly confusing evidence or
demonstrating how the jury was confused, he generally argues that the evidence was
“confusing,” and the witnesses were “mixed” and “intertwined.” Palmer-Tesema’s
bare allegations are insufficient to establish prejudice. See, e.g., State v. Rosas, 2d
Dist. Montgomery No. 22424, 2009-Ohio-1404, ¶ 48 (defendant “merely assert[ed]
broad general allegations of prejudice that any defendant could assert”); State v.
Corker, 10th Dist. Franklin Nos. 13AP-264, 13AP-265, 13AP-266, 2013-Ohio-5446,
¶ 21, quoting State v. Strobel, 51 Ohio App.3d 31, 32, 554 N.E.2d 916 (3d Dist.1988)
(rejecting defendant’s “bare assertions” of prejudice and noting always the
possibility of prejudice in joining separate instances of any offense in the same
indictment, but that the defendant bears the burden to “‘either affirmatively
demonstrate before trial that his rights would be prejudiced by the joinder, or to
show at the close of the state’s case, or at the conclusion of all the evidence, that his
rights actually had been prejudiced by the joinder’”).
The record before us does not reflect that prejudicial joinder occurred
because the state presented simple and direct testimony relating to each of the three
different victims. Each victim provided detailed testimony of the separate incidents,
and the record reflects that the evidence pertaining to each victim in each offense is
separate and distinct and could easily be segregated. Although the rapes may have
occurred around the same approximate time, the state presented each witness’s
testimony separately so that there was no danger of confusing the evidence.
The first nine witnesses presented to the jury testified regarding the
events leading up to and the rape of S.L., including S.L.’s own testimony.
Thereafter, the state called a forensic DNA analyst who testified that
she analyzed evidence from both S.L.’s and M.C.’s rape kits. After a general
introduction regarding the procedure for performing such an analysis, the analyst
testified about specific aspects of S.L.’s rape kit, and the specific findings and
conclusions relating solely to S.L. Following a recess “to clear our heads,” the analyst
then testified about the analysis, findings, and conclusions of M.C.’s rape kit,
including that more specific testing was conducted.
The next witness the state called was a toxicologist to discuss S.L.’s
toxicology report revealing her level of intoxication the morning after the rape. Only
S.L. submitted to a toxicology screen; thus the jury would not have been confused or
unable to separate the findings. A second forensic DNA analyst testified next
regarding the specific testing and analysis conducted on the foreign DNA discovered
from M.C.’s rape kit.
Thereafter, the state called three witnesses pertaining solely to the
rape of M.C., including M.C. Following these witnesses, N.D. testified and a mutual
friend of both M.C. and N.D. testified about her interactions with both victims.
The final witness was the investigative detective whose testimony was
direct and gave a detailed timeline and sequence of events from the beginning of his
assignment of the case involving S.L., the investigative process, and the discovery of
the incident involving M.C., which then lead to the discovery of the rape of N.D.
Based on the foregoing, we find that the testimony and evidence was
clearly distinguishable, easily separated, and not confusing.
Furthermore, the state presented more than sufficient evidence with
respect to each victim so that there is no danger that the jury convicted Palmer-
Tesema based on an accumulation of evidence. See State v. Jamison, 49 Ohio St.3d
182, 187, 552 N.E.2d 180 (1991) (concluding that joined offenses are not prejudicial
when evidence presented was “amply sufficient to sustain each verdict, whether or
not the indictments were tried together” and the strength of the state’s proof
establishes that the prosecution did not attempt to prove one case simply by
questionable evidence of the other offenses). In fact, Palmer-Tesema makes no
argument on appeal that the evidence was insufficient to support any of the offenses
charged. See State v. Roberts, 62 Ohio St.2d 170, 405 N.E.2d 247 (1980) (prejudice
may be demonstrated when the evidence, considered separately, would be
insufficient to sustain all convictions).
Moreover, the fact that the jury found Palmer-Tesema guilty of all
counts does not support that the jury was confused or conflated the evidence. A trier
of fact is considered “capable of segregating the proof of multiple charges when the
evidence as to each of the charges is uncomplicated.” State v. Lunder, 8th Dist.
Cuyahoga No. 1011223, 2014-Ohio-5341, ¶ 33, citing State v. Torres, 66 Ohio St.2d
340, 421 N.E.2d 1288.
Here, the testimony pertaining to each victim was not so complicated
that it would potentially confuse the jury. These were not complicated events, and
did not depend on complex circumstantial evidence. Two of the victims were able
to recall the nonconsensual sexual conduct perpetrated by Palmer-Tesema. And
although S.L. was unable to recall the sexual assault, DNA evidence substantiated
her belief that Palmer-Tesema unlawfully engaged in sexual conduct with her.
Finally, the jury was instructed to consider each count separately, and
we presume that the jury followed the court’s instructions. See State v. Gibson, 6th
Dist. Lucas Nos. 2-13-1222 and 2-13-2223, 2015-Ohio-1679, ¶ 30 (“Absent evidence
to the contrary, we indulge the presumption that the jury followed the instruction of
the trial court.”). In this case, the trial court instructed the jury as follows:
The charges set forth in each count in the indictment constitute
a separate and distinct matter. You must consider each count and the
evidence applicable to each count separately and you must state your
findings as to each count uninfluenced by your verdict as to any other
count.
The defendant may be found guilty or not guilty of any one or all
of the offenses charged.
(Tr. 1222-1223.) We note that the jury did not submit any questions during
deliberations, and nothing in the record reveals that the jury failed to follow the trial
court’s instructions.
Accordingly, because joinder was proper and the evidence was simple
and direct, Palmer-Tesema was not prejudiced by joinder, and the trial court did not
abuse its discretion in denying the motion to sever. The first assignment of error is
overruled.
II. Sleep Jury Instruction
In his second assignment of error, Palmer-Tesema contends that the
trial court erred by providing the jury with a “sleep” instruction pertaining to the
offense of rape.
In this case, Palmer-Tesema was charged with rape, in violation R.C.
2907.02(A)(1)(c), which provides, in pertinent part,
[n]o person shall engage in sexual conduct with another who is not the
spouse of the offender * * * 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 or
because of advanced age.
The state requested that the trial court instruct the jury that “sleep”
can constitute “substantial impairment.” Over objection, the trial court gave the
following jury instruction to the jury on “substantial impairment”:
Substantially impaired means a present reduction, diminution or
decrease in the victim’s ability either to apprise the nature of his
conduct or to control his conduct. Voluntary intoxication is a mental
or physical condition that could cause substantial impairment.
Sleep is a mental or physical condition which is sufficient to
substantially impair a victim’s ability to consent or resist to sexual
conduct or contact.
(Tr. 1214.)
On appeal, Palmer-Tesema contends that the evidence and trial
testimony do not support the “sleep” instruction. He maintains that based on the
evidence presented and the state’s theory of the case — that intoxication was the
basis for the victims’ impairment — a sleep instruction was improper.
This court has held that sleep constitutes a mental or physical
condition that substantially impairs a person from resisting or consenting to sexual
conduct. State v. Keller, 8th Dist. Cuyahoga No. 106196, 2018-Ohio-4107, ¶ 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).
The giving of jury instructions is within the sound discretion of the
trial court, and is reviewed for an abuse of discretion. State v. Howard, 8th Dist.
Cuyahoga No. 100094, 2014-Ohio-2176, ¶ 35, citing State v. Martens, 90 Ohio
App.3d 338, 629 N.E.2d 462 (3d Dist.1993). Trial courts have a responsibility to give
all jury instructions that are relevant and necessary for the jury to properly weigh
the evidence and perform its duty as the factfinder. State v. Comen, 50 Ohio St.3d
206, 553 N.E.2d 640 (1990), paragraph two of the syllabus.
A trial court need not instruct the jury where there is insufficient
evidence to support an issue. In reviewing a record to ascertain whether
sufficient evidence exists to support the giving of an instruction, an
appellate court should determine whether the record contains evidence
from which reasonable minds might reach the conclusion sought by the
instruction.
Goldfuss v. Davidson, 79 Ohio St.3d 116, 124, 679 N.E.2d 1099 (1997).
A review of the record demonstrates that a sleep instruction was
proper because sufficient evidence was presented to support the instruction. Each
of the three victims testified that they were either intoxicated or asleep on the nights
of the rape. Unlike the circumstances surrounding the rape of S.L., who could not
recall any events beyond being at the West End Tavern, both M.C. and N.D. testified
that they were awakened by Palmer-Tesema engaging in sexual conduct with them
without their consent. Accordingly, the evidence supported a sleep instruction
regarding at least two of the victims.2
Moreover, Palmer-Tesema testified that M.C. was not intoxicated that
night; rather, he stated that “she was falling asleep as in she was sleepy.” (Tr. 1183.)
Accordingly, by Palmer-Tesema’s own testimony and M.C.’s testimony that she was
awakened by Palmer-Tesema raping her, the sleep jury instruction was proper
because sufficient evidence was presented supporting the instruction.
Additionally, Palmer-Tesema testified that although he was drunk, he
did not believe that N.D. was intoxicated the night he engaged in sexual conduct
with her. (Tr. 1149.) He testified that during sex with N.D., he became sick and
vomited as he walked to the bathroom, where he took a shower. Palmer-Tesema
stated that after he showered, he went back to his bedroom and continued to have
sex with N.D. (Tr. 1154.) He stated, however, that he “believed” that she was awake
— “It was very staticky [sic].” (Tr. 1189.) Accordingly, by Palmer-Tesema’s own
testimony and N.D.’s testimony that she was awakened by Palmer-Tesema raping
her, the sleep jury instruction was proper because sufficient evidence was presented
supporting the instruction.
We find that the evidence supported both a voluntary intoxication and
sleep instruction. The jury was able to consider the circumstances surrounding each
2 Palmer-Tesema did not request that the court only give the sleep instruction
regarding certain victims. On the other hand, when the defense requested and received a
lesser-included sexual-battery instruction, the state requested that the instruction only be
given regarding the offenses pertaining to N.D. and M.C., and not S.L.
rape, including whether each victim was unable to resist or consent because of
substantial impairment by virtue of voluntary intoxication or being asleep.
Accordingly, the trial court did not abuse its discretion by giving the
jury a sleep instruction. Palmer-Tesema’s second assignment of error is overruled.
C. Mid-trial Amendment of the Indictment
Count 4 charged Palmer-Tesema with the rape of N.D., and alleged
that Palmer-Tesema “did engage in sexual conduct to wit: digital penetration of the
victim’s vagina.” During her testimony, N.D. stated that Palmer-Tesema vaginally
penetrated her with “[h]is penis.” (Tr. 915.) Following N.D.’s testimony, the state
moved to amend the offense of rape as charged in Count 4 of the indictment by
changing the method of rape from digital penetration to vaginal intercourse. The
trial court granted the state’s request over objection.
Palmer-Tesema contends in his third assignment of error that the trial
court erred in permitting the state to amend the indictment on a material element
of the offense during the trial.
Crim.R. 7(D) provides that a court may amend an indictment “at any
time before, during, or after a trial * * * provided no change is made in the name or
identity of the crime charged.” “A change in the name or identity of a crime charged
occurs when the offense alleged in the indictment and the offense alleged in the
amended indictment contain different elements that require independent proof.”
State v. Buchanan, 8th Dist. Cuyahoga No. 104500, 2017-Ohio-1361, ¶ 22. Where
the amendment does not change the name or identity of the offense, a reviewing
court will not disturb the trial court’s decision to permit the amendment absent an
abuse of discretion and a showing of prejudice. Id.Here, the amendment did not change the name or identity of the
offense. “Amending a rape charge from one type of sexual conduct to another type
of sexual conduct changes neither the name nor the identity of the rape offense.”
State v. Abdullah, 10th Dist. Franklin No. 05AP-1316, 2006-Ohio-5412, ¶ 24, citing
State v. Martin, 10th Dist. Franklin No. 05AP-818, 2006-Ohio-2749, ¶ 9.
Rape in violation of R.C. 2907.02(A)(1)(c) requires proof that the
defendant “engage[d] in sexual conduct with another.” R.C. 2907.01(A) defines
“sexual conduct” to include both “vaginal intercourse” and digital penetration (“the
insertion, however slight, of any part of the body or any instrument, apparatus, or
other object into the vaginal or anal opening of another”). As a result, the type of
sexual conduct was not an element of the offense, and the state’s amendment to the
specific type of sexual conduct did not contain any different elements that required
independent proof. See State v. Steele, 8th Dist. Cuyahoga No. 101139, 2014-Ohio-
5431 (amendment proper when it only changed the type of sexual conduct for the
rape offense).
Palmer-Tesema relies upon this Court’s decision in State v. Vitale, 96
Ohio App.2d 695, 645 N.E.2d 1277 (8th Dist.1994), where this court held that the
amendment to the indictment was prejudicial to Vitale’s defense because it included
a different potential theft, occurring at a different address, over an expanded time
period. This amendment was different from the evidence on which the grand jury
issued the indictment.
Vitale is distinguishable because the amendment to Count 4 did not
allow the state to argue a different rape, at a different address, at a different date.
Nor did it allow the jury to find Palmer-Tesema guilty of a different offense than
indicted. The amendment merely changed the type of sexual conduct to correct “any
variance with the evidence[.]” Crim.R. 7(D).
Finally, the amendment did not prejudice Palmer-Tesema because his
defense did not depend on a distinction between vaginal intercourse and digital
penetration. Palmer-Tesema’s defense as to N.D. was that the sex was consensual.
(Tr. 1267; 1278.) Neither N.D. nor any other witness testified that N.D. consented
to one type of sexual conduct versus another. To the contrary, N.D. testified that she
never consented to any type of sexual conduct with Palmer-Tesema. Accordingly,
he was not prejudiced, and the trial court did not abuse its discretion in allowing the
state to amend the indictment to conform to the evidence.
Palmer-Tesema’s third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from 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
convictions having been affirmed, any bail pending 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.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, P.J., CONCURS;
EILEEN A. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION
EILEEN A. GALLAGHER, J., DISSENTING:
I respectfully dissent from my learned colleagues’ resolution of the
first assignment of error. I believe that Palmer-Tesema did establish that he was
prejudiced by the joinder of offenses and that the trial court abused its discretion by
denying severance. See State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54
N.E.3d 80, ¶ 60.
Before trial, Palmer-Tesema filed a motion for relief from prejudicial
joinder seeking separate trials for counts as pertaining to each woman. He argued
that the underlying facts of each incident were such that presenting them together
would confuse the jury and deny him a fair trial. He argued that there was a
“particularly strong” likelihood that the jury would be influenced by any evidence of
guilt as related to one woman and thereby use it to improperly infer guilt as related
to another. I think that is precisely what happened.
At the hearing on his motion, Palmer-Tesema argued that based on
the nature of the offenses charged and the similarity of the factual scenarios
underlying them, the jury would be unable to consider the evidence relating to one
of the women solely for the charges pertaining to her and that the jury would use
evidence pertaining to one woman as proof establishing the claims of another.
During trial he reasserted this argument and made specific reference
to the victims’ testimony. He complained that the victims impermissibly
“bootstrapped each other’s credibility.”
I think Palmer-Tesema met his requisite burden of “furnishing the
trial court with sufficient information so that it can weigh the considerations
favoring joinder against the defendant’s right to a fair trial.” State v. Torres, 66 Ohio
St.2d 340, 343, 421 N.E.2d 1288 (1981).
Moreover, I think the state failed to meet its reciprocal burden and
rebut Palmer-Tesema’s claim. The state could have rebutted Palmer-Tesema’s
prejudice claim by showing the evidence of each joined offense was “simple and
direct” or that it could otherwise introduce the evidence at separate trials pursuant
to Evid.R. 404(B). State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d
80, at ¶ 61. I don’t think the state did either.
Simple and Direct Evidence
I recognize that this court has observed that appellate courts
“‘routinely find no prejudicial joinder where the evidence is presented in an orderly
fashion as to the separate offenses * * * without significant overlap or conflation of
proof.’” State v. Knox, 8th Dist. Cuyahoga No. 107414, 2019-Ohio-1246, ¶ 49,
quoting State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, ¶ 16. The
majority found the testimony and evidence to be “clearly distinguishable, easily
separated, and not confusing.” I find that the record belies this claim and
respectfully disagree with the majority opinion.
As the majority observed, the events in this case occurred close in time
and involved similar factual backgrounds. They involved the same people and
locations. The state further admitted, the witnesses were “inextricably intertwined.”
It observed that the three women “at the very base are acquainted with each other
and at most are friends,” that “[a]ll of the witnesses here know each other.” And it
recognized that “[e]veryone here is, at the very baseline, acquaintances running up
the gamut to good and very close friends.”
Although I quibble with the state’s absolute characterizations of the
witnesses and evidence, 3 I think its basic sentiment about the interconnectedness
of the witnesses and evidence is correct. Indeed, this highlights precisely why the
evidence was not simple and direct. I disagree with the majority’s characterization
that the evidence as presented was “separate and distinct and could easily be
segregated.”
3For example, one of the testifying witnesses, a driver for the ride-sharing service
Uber, who testified solely to her experience driving Palmer-Tesema and S.L. to Palmer-
Tesema’s house. There was no evidence that the driver knew any of the other witnesses.
Moreover, one of Palmer-Tesema’s roommates testified that although he was acquainted
with many of the other witnesses, he did not know N.D. Similarly, a different witness who
was similarly acquainted testified that she did not know S.L.
The state questioned witnesses about multiple incidents at the same
time. For example, the state questioned one roommate about the alleged incident
with S.L., followed by questions about the alleged incident with M.C. before
proceeding to inquire again about the alleged incident with S.L. Whether
intentional or not, this invited the jury to conflate facts about each incident.
Similarly, a forensic DNA analyst testified as to her analysis of both
S.L.’s and M.C.’s rape kits at the same time. After a general introduction regarding
the general procedure for performing such an analysis, the analyst testified about
specific aspects of S.L.’s rape kit and specific findings and conclusions related to it.
As the majority points out, after this testimony the court ordered a “quick ten-
minute break just to clear our heads” before the state proceeded to question the
analyst about M.C.’s rape kit. However, in the midst of its questions about M.C.’s
rape kit, the state again addressed S.L.’s rape kit:
And, once again, this testing that was done on the items submitted for
[M.C.], is this happening in similar time as the items submitted in
testing for [S.L.]? If you can go back to State’s Exhibit 120 [S.L.’s DNA
analysis].
(Tr. 695.)
The state then questioned the analyst about S.L. again, this time with
regard to a second DNA analysis performed on her rape kit. The state inquired
further about M.C.’s rape kit and a second DNA analysis performed on it. The state
then questioned the analyst about the formal reports generated on each of the four
analyses, two relating to S.L.’s rape kit and two relating to M.C.’s rape kit and further
inquired about comparisons of the reports. The state then discussed S.L.’s rape kit
again, this time relating to a third DNA analysis.
The next witness that the state called was a toxicologist to discuss
S.L.’s toxicology report that indicated her level of intoxication following the evening
she spent with Palmer-Tesema. The state then called a second DNA analyst to
discuss a third DNA analysis performed on M.C.’s rape kit. Again, whether
intentional or not, jumping back and forth between specific facts relating to different
incidents invited the jury to confuse and conflate the evidence.
The investigating detective’s testimony further illustrated the
interrelatedness of the incidents and the evidence and the overlap of the
investigations. Investigation into S.L.’s claims began with her November 22, 2017
interview. The detective detailed that S.L.’s investigation involved inquiry into the
West End Tavern, including attempts to interview staff and management and locate
surveillance footage. He discussed how that investigation also included interviews
with Palmer-Tesema and some “Bay House” roommates and that this investigation
continued into February 2018.
The detective also discussed investigating M.C.’s claims following her
January 17, 2018 police report. This investigation involved interviewing M.C. as well
as several of her friends. The detective discussed these interviews in the context of
M.C.’s claims but also described how these interviews involved N.D.’s claims as well.
Although police investigation into N.D.’s claims began during the
pendency of both the S.L. and M.C. investigations, the detective testified N.D.
alleged Palmer-Tesema sexually assaulted her on November 30, 2017, the same day
that police interviewed Palmer-Tesema pursuant to their S.L. investigation, before
the date which M.C. claimed Palmer-Tesema assaulted her.
The detective further testified about the factual similarities between
the three claims:
The similarities were the alcohol, similarities in which the individuals
involved indicated how they woke up in the morning. So those — the
fact that there was some level of either being in the same social group
or at least a level of acquaintance, that the circumstances were similar
enough * * *.
Based on the interrelationship of the evidence presented at trial,
including the overlapping relationships between both victims and witnesses, the
similarities between the between underlying facts of the crimes as alleged and the
timeline in which they were claimed to have occurred, I believe that the evidence
was not simple and direct such that the jury would confuse and conflate the
evidence. In fact, it appears that is precisely what happened here. The jury
convicted Palmer-Tesema on every count. Compare State v. Powell, 8th Dist.
Cuyahoga No. 107276, 2019-Ohio-4345, ¶ 78 (conviction on some counts and
acquittal on other “reflects the jury’s ability to segregate the proof”); compare State
v. Lee, 8th Dist. Cuyahoga No. 104682, 2017-Ohio-1449, ¶ 19 (jury acquittal as to
some offenses reflects “simple and direct” evidence); compare State v. Bonneau, 8th
Dist. Cuyahoga No. 97565, 2012-Ohio-3258, ¶ 22 (not guilty verdict as counts
pertaining to one victim and guilty verdicts as to another demonstrated jury was able
to separate the evidence and consider victims separately).
Put differently, I think the state failed to rebut Palmer-Tesema’s
prejudicial joinder claim by failing to establish that the evidence was simple and
direct. See Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138 at ¶ 16, quoting
State v. Echols, 128 Ohio App.3d 677, 694, 716 N.E.2d 728 (1st Dist. 1998). (“‘The
object of the simple and distinct test is to prevent the jury from improperly
considering evidence of various crimes as corroborative of each other. The very
essence of the rule is that the evidence be such that the jury is unlikely to be confused
by it or misuse it.’”).
Evid.R. 404(B)
The state also failed to demonstrate that the evidence was otherwise
admissible pursuant to Evid.R. 404(B). The state’s Evid.R. 404(B) argument as to
why the joinder was not prejudicial that the evidence demonstrated “the modus
operandi as well as identification.”
Identity and Modus Operandi
The Supreme Court has recognized that in the context of Evid.R.
404(B), other acts evidence can be used to prove identity in two situations. In the
first, the state may use other acts to prove identity “where other acts ‘form part of
the immediate background of the alleged act which forms the foundation of the
crime charged in the indictment,’ and which are ‘inextricably related to the alleged
criminal act.’” State v. Lowe, 69 Ohio St.3d 527, 531, 634 N.E.2d 616 (1994), quoting
State v. Curry, 43 Ohio St.2d 66, 73, 330 N.E.2d 720 (1975). The first situation does
not apply in this case. The evidence related to one woman’s claims does not form
the background or foundation of the incidents involving the other women’s claims.
Moreover, despite having occurred in close temporal proximity and with similar
factual backdrops, each incident was clearly separate from the others; the state
showed no inextricable relationship uniting them.
The second situation that the Supreme Court has recognized where
other acts evidence can be used to prove identity is when the other acts establish a
“modus operandi applicable to the crime with which a defendant is charged * * *
‘forming a unique, identifiable plan of criminal activity * * *.’” (Emphasis deleted.)
Id., quoting State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 (1990), syllabus.
In discussing Evid.R. 404(B) evidence in the context of modus operandi, the
Supreme Court has further explained that such evidence is admissible
[N]ot because it labels a defendant as a criminal, but because it
provides a behavioral fingerprint which, when compared to the
behavioral fingerprints associated with the crime in question, can be
used to identify the defendant as the perpetrator.
Lowe at 531.
I acknowledge that there are indeed factual similarities between each
incident as alleged by the women, however I think those similarities are decidedly
insufficient to establish a behavioral fingerprint. See State v. Picklesimer, 4th Dist.
Pickaway No. 96CA2, 1996 Ohio App. LEXIS 4668, at *10 (Oct. 15, 1996) (“In order
to be admissible for identity purposes, the similarity between the other acts and the
charged offense, i.e., their pattern and characteristics, must be so unusual and
distinctive as to be like a signature.”); see State v. Miller, 4th Dist. Washington No.
06CA57, 2007-Ohio-6909, ¶ 28 (“The mere repeated commission of crimes of the
same class is insufficient to establish a behavioral fingerprint.”).
I reject the state’s argument that the evidence of each incident would
be otherwise admissible to prove identity and modus operandi. See also State v.
Schaim, 65 Ohio St.3d 51, 59, 600 N.E.2d 661 (1992) (“[The danger that a jury will
convict a defendant solely based on the assumption that he has a propensity to
commit criminal acts or deserves punishment regardless of guilt] is particularly high
when the other acts are very similar to the charged offense, or of an inflammatory
nature * * *.”). As such, the state failed to rebut Palmer-Tesema’s prejudicial joinder
claim by establishing that the evidence was otherwise admissible pursuant to
Evid.R. 404(B).
Conclusion
The evidence in this case as related for each alleged incident was far
from overwhelming. For example, the Uber driver who transported Palmer-Tesema
and S.L. from the bar to Palmer-Tesema’s house testified that although S.L. was
“clumsy” getting into the car, by the time they arrived she “got out by herself and
walked up to the door by herself” and that “[i]t was just a straight walk.” The
majority notes that S.L.’s toxicology report indicated that the next day S.L. still had
a substantial amount of alcohol in her system. But S.L. admitted in her testimony
that she was a frequent, heavy drinker. This evidence raises questions as to whether
Palmer-Tesema knew or had reasonable cause to believe that S.L. was substantially
impaired.
Similarly, as the majority notes, N.D. testified that she did not
initially go to the police or seek medical attention because she “wasn’t registering”
the incident as a sexual assault at that time. It was only after learning of M.C.’s claim
that she came forward with her own.
I believe that the trial court abused its discretion by denying
severance.
The majority notwithstanding, this court has previously recognized
the “‘spill-over effect’” where a jury “‘relies on evidence present on one set of counts
when reaching a conclusion on the other set.’” State v. Jackson, 8th Dist. Cuyahoga
No. 102394, 2015-Ohio-4274, ¶ 12, quoting United States v. Ervin, 540 F.3d 623,
628 (7th Cir.2008). Unfortunately for Palmer-Tesema, I think that is exactly what
happened here.
Accordingly, I would vacate Palmer-Tesema’s convictions and
remand the case for separate trials.