Doan, Presiding Judge.
Defendant-appellant John L. Decker was charged with several crimes in two separate indictments. In case No. B-905610, Decker was charged with two counts of gross sexual imposition in violation of R.C. 2907.05. In case No. B-915233, Decker was charged with one count of rape in violation of R.C. 2907.02, one count of sexual battery in violation of R.C. 2907.03, and four counts of gross sexual imposition in violation of R.C. 2907.05. Prior to trial, counts five and six in case No. B-915233, which charged Decker with gross sexual imposition involving his daughter, were dismissed. The remaining counts proceeded to trial before a jury. The jury returned not-guilty verdicts on counts one and two in case No. B-915233, which charged Decker with rape and sexual battery involving his son Danny. However, the jury found Decker guilty of gross sexual imposition as charged in counts three and four in case No. B-915233 involving Danny, and as charged in counts one and two in case No. B-905610 involving two different girls. The trial court imposed a sentence of two years on each count in case No. B-905610 to be served consecutively, and two years on each count in case No. B-915233 to be served concurrently with each other and concurrently with the sentences in case No. B-905610. Decker then filed these appeals.
In each appeal, Decker raises two assignments of error. In these assignments of error, Decker alleges that the trial court erred in failing to grant his motion for separate trials for each indictment, and that his convictions are against the manifest weight of the evidence. These assignments of error are without merit and, therefore, the judgments of the trial court are affirmed.
In case No. B-905610, Decker was convicted on two counts of gross sexual imposition. The facts surrounding these offenses are as follows. On July 19, 1990, several children were at Decker’s house watching television in the afternoon. While the children were watching television, Decker was in his bedroom lying down. At some point, Decker called two seven-year-old girls into his bedroom and asked them to close the door. He asked them to rub cocoa lotion over his body to help relieve the pain of a sunburn. Decker told the girls to rub the lotion on his penis, which they did. He then ejaculated.
Decker denied the accusations of the two girls. He stated that he had been sleeping and that the girls had asked if they could nib the cocoa lotion on his body. He permitted them to rub the lotion on his body because he was still
“half’ asleep. Decker’s common-law wife testified that she had been in the bedroom during this alleged incident, that the girls had asked if they could rub the lotion on Decker’s body, and that she had retrieved the lotion from the bathroom for the girls. Both Decker and his -wife denied that- the girls ever touched Decker’s penis.
In case No. B-915233, Decker was convicted on two counts of gross sexual imposition. The facts surrounding these offenses are as follows. In 1985, Decker was living with his first wife and their two children. At that time, Decker’s son Danny was five years old. Danny stated that in the latter half of 1985, his father touched Danny’s penis on several occasions, and that his father forced him to touch his father’s penis on several occasions.
Decker denied his son’s accusations. He then stated that his ex-wife and her boyfriend had indicated that they would ruin his life.
In the first assignment of error in each of his appeals, Decker asserts that the trial court erred in denying his motion for a severance of the indictments. At the trial level, Decker was represented by separate counsel for each indictment. Defense- counsel on both indictments moved for separate trials on several occasions, including prior to trial and at the close of the prosecution’s case. The trial court denied the motions every time that they were raised.
As the Supreme Court of Ohio stated in
State v. Thomas
(1980), 61 Ohio St.2d 223, 15 O.O.3d 234, 400 N.E.2d 401, joinder and the avoidance of multiple trials are favored for several reasons, including conserving time and expense, diminishing the inconvenience to witnesses, and minimizing the possibility of incongruous results in successive trials before different juries. Therefore, to prevail on a claim that the trial court erred in refusing to allow separate trials on different charges, an accused must affirmatively demonstrate “(1) that his rights were prejudiced, (2) that at the time of the motion to sever he provided the trial court with sufficient information so that it could weigh the considerations favoring joinder against the defendant’s right to a fair trial, and (3) that given the information provided to the court, it abused its discretion in refusing to separate the charges for trial.”
State v. Schaim
(1992), 65 Ohio St.3d 51, 59, 600 N.E.2d 661, 668, citing
State v. Torres
(1981), 66 Ohio St.2d 340, 20 O.O.3d 313, 421 N.E.2d 1288, syllabus.
To determine whether an accused has been prejudiced by the joinder of multiple offenses, a court must first determine (1) whether evidence of the other crimes would be admissible even if the counts were severed, and (2) if not, whether the evidence of each crime is simple and distinct.
Schaim, supra,
65 Ohio St.3d at 59, 600 N.E.2d at 669, citing
State v. Hamblin
(1988), 37 Ohio St.3d
153, 158-159, 524 N.E.2d 476, 481-482;
Drew v. United States
(C.A.D.C.1964), 331 F.2d 85.
The admissibility of other-acts evidence is carefully limited, particularly in prosecutions for sexual offenses. See
State v. Curry
(1975), 43 Ohio St.2d 66, 72 O.O.2d 37, 330 N.E.2d 720. Both the rape statute and the gross sexual imposition statute contain subsections that limit the admissibility of evidence of other sexual activity by the defendant. R.C. 2907.02(D) and 2907.05(D) provide:
“Evidence of specific instances of the defendant’s sexual activity, opinion evidence of the defendant’s sexual activity, and reputation evidence of the defendant’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant’s past sexual activity with the victim, or is admissible against the defendant under section 2945.59 of the Revised Code, 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.”
R.C. 2945.59 provides:
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Doan, Presiding Judge.
Defendant-appellant John L. Decker was charged with several crimes in two separate indictments. In case No. B-905610, Decker was charged with two counts of gross sexual imposition in violation of R.C. 2907.05. In case No. B-915233, Decker was charged with one count of rape in violation of R.C. 2907.02, one count of sexual battery in violation of R.C. 2907.03, and four counts of gross sexual imposition in violation of R.C. 2907.05. Prior to trial, counts five and six in case No. B-915233, which charged Decker with gross sexual imposition involving his daughter, were dismissed. The remaining counts proceeded to trial before a jury. The jury returned not-guilty verdicts on counts one and two in case No. B-915233, which charged Decker with rape and sexual battery involving his son Danny. However, the jury found Decker guilty of gross sexual imposition as charged in counts three and four in case No. B-915233 involving Danny, and as charged in counts one and two in case No. B-905610 involving two different girls. The trial court imposed a sentence of two years on each count in case No. B-905610 to be served consecutively, and two years on each count in case No. B-915233 to be served concurrently with each other and concurrently with the sentences in case No. B-905610. Decker then filed these appeals.
In each appeal, Decker raises two assignments of error. In these assignments of error, Decker alleges that the trial court erred in failing to grant his motion for separate trials for each indictment, and that his convictions are against the manifest weight of the evidence. These assignments of error are without merit and, therefore, the judgments of the trial court are affirmed.
In case No. B-905610, Decker was convicted on two counts of gross sexual imposition. The facts surrounding these offenses are as follows. On July 19, 1990, several children were at Decker’s house watching television in the afternoon. While the children were watching television, Decker was in his bedroom lying down. At some point, Decker called two seven-year-old girls into his bedroom and asked them to close the door. He asked them to rub cocoa lotion over his body to help relieve the pain of a sunburn. Decker told the girls to rub the lotion on his penis, which they did. He then ejaculated.
Decker denied the accusations of the two girls. He stated that he had been sleeping and that the girls had asked if they could nib the cocoa lotion on his body. He permitted them to rub the lotion on his body because he was still
“half’ asleep. Decker’s common-law wife testified that she had been in the bedroom during this alleged incident, that the girls had asked if they could rub the lotion on Decker’s body, and that she had retrieved the lotion from the bathroom for the girls. Both Decker and his -wife denied that- the girls ever touched Decker’s penis.
In case No. B-915233, Decker was convicted on two counts of gross sexual imposition. The facts surrounding these offenses are as follows. In 1985, Decker was living with his first wife and their two children. At that time, Decker’s son Danny was five years old. Danny stated that in the latter half of 1985, his father touched Danny’s penis on several occasions, and that his father forced him to touch his father’s penis on several occasions.
Decker denied his son’s accusations. He then stated that his ex-wife and her boyfriend had indicated that they would ruin his life.
In the first assignment of error in each of his appeals, Decker asserts that the trial court erred in denying his motion for a severance of the indictments. At the trial level, Decker was represented by separate counsel for each indictment. Defense- counsel on both indictments moved for separate trials on several occasions, including prior to trial and at the close of the prosecution’s case. The trial court denied the motions every time that they were raised.
As the Supreme Court of Ohio stated in
State v. Thomas
(1980), 61 Ohio St.2d 223, 15 O.O.3d 234, 400 N.E.2d 401, joinder and the avoidance of multiple trials are favored for several reasons, including conserving time and expense, diminishing the inconvenience to witnesses, and minimizing the possibility of incongruous results in successive trials before different juries. Therefore, to prevail on a claim that the trial court erred in refusing to allow separate trials on different charges, an accused must affirmatively demonstrate “(1) that his rights were prejudiced, (2) that at the time of the motion to sever he provided the trial court with sufficient information so that it could weigh the considerations favoring joinder against the defendant’s right to a fair trial, and (3) that given the information provided to the court, it abused its discretion in refusing to separate the charges for trial.”
State v. Schaim
(1992), 65 Ohio St.3d 51, 59, 600 N.E.2d 661, 668, citing
State v. Torres
(1981), 66 Ohio St.2d 340, 20 O.O.3d 313, 421 N.E.2d 1288, syllabus.
To determine whether an accused has been prejudiced by the joinder of multiple offenses, a court must first determine (1) whether evidence of the other crimes would be admissible even if the counts were severed, and (2) if not, whether the evidence of each crime is simple and distinct.
Schaim, supra,
65 Ohio St.3d at 59, 600 N.E.2d at 669, citing
State v. Hamblin
(1988), 37 Ohio St.3d
153, 158-159, 524 N.E.2d 476, 481-482;
Drew v. United States
(C.A.D.C.1964), 331 F.2d 85.
The admissibility of other-acts evidence is carefully limited, particularly in prosecutions for sexual offenses. See
State v. Curry
(1975), 43 Ohio St.2d 66, 72 O.O.2d 37, 330 N.E.2d 720. Both the rape statute and the gross sexual imposition statute contain subsections that limit the admissibility of evidence of other sexual activity by the defendant. R.C. 2907.02(D) and 2907.05(D) provide:
“Evidence of specific instances of the defendant’s sexual activity, opinion evidence of the defendant’s sexual activity, and reputation evidence of the defendant’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant’s past sexual activity with the victim, or is admissible against the defendant under section 2945.59 of the Revised Code, 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.”
R.C. 2945.59 provides:
“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 to subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.”
Evidence of Decker’s “other acts” as charged in the separate indictments would not have been admissible if these trials had been separated. Decker was charged with gross sexual imposition involving two young girls in case No. B-905610 for forcing them to rub cocoa lotion on his penis until he ejaculated. He was charged with rape and sexual battery for allegedly engaging in anal intercourse with his young son, and with gross sexual imposition for fondling his son’s penis and for having his son fondle his penis in case No. B-915233. Decker denied his involvement in these acts completely. Therefore, Decker’s “motive or intent, the absence of mistake or accident on his part, or [his] scheme, plan, or system in doing an act” was not material. See R.C. 2945.59. Furthermore, the “other acts” did not have “such a temporal, modal and situational relationship with the acts constituting the crime charged that evidence of the other acts discloses purposeful action in the commission of the offense in question.”
State v. Burson
(1974), 38 Ohio St.2d 157, 159, 67 O.O.2d 174, 175, 311 N.E.2d 526, 529.
Evidence of Decker’s “other acts” would not have been admissible in separate trials because it would have been offered merely to prove Decker’s character in order to show that he acted in conformity therewith. See Evid.R. 404(B). Evidence of the alleged crimes against the two young girls would not have been admissible in a separate trial on the charges involving Decker’s son; and evidence of the alleged crimes against Decker’s son would not have been admissible in a separate trial on the charges involving the two young girls.
The Supreme Court of Ohio has written a specific two-prong test to determine whether an accused’s right to a fair trial has been prejudiced by the joinder of offenses for trial. See
Schaim, supra.
Under that test, even though the joinder for trial of the charges in the two indictments returned against Decker allowed the jury to consider evidence that would not have been admissible if the charges had been severed for trial under the first prong, joinder of the indictments for trial was appropriate if the evidence of the crimes under each indictment was “simple and distinct” under the second prong. See
Schaim, supra.
The crimes charged against Decker in the different indictments are indeed simple and distinct. Case No. B-905610 involved allegations from two girls living in Decker’s neighborhood that Decker had asked them to rub cocoa lotion on his penis. Case No. B-915233 involved allegations from Decker’s son that Decker had engaged in anal intercourse with his son, that Decker had fondled the son’s penis, and that Decker had forced his son to fondle Decker’s penis. The factual situation of each crime charged was easy to understand and was capable of segregation since the crimes charged involved different victims, different factual scenarios and different witnesses.
That the jury was capable of segregating the facts of the different crimes is further evidenced by the jury’s verdicts. The jury returned verdicts of not guilty on the. charges of rape and sexual battery as contained in case No. B-915233. The jury must have reasoned that insufficient evidence was presented by the prosecution on these crimes. However, the jury returned guilty verdicts on the remaining crimes charged under case No. B-915233 and all the crimes charged under case No. B-905610, determining that sufficient evidence was presented with respect to these charges.
Because the evidence of each crime charged in the separate indictments returned against Decker was “simple and distinct,” Decker has failed to affirmatively demonstrate that his rights were prejudiced by the joinder of these crimes for trial. See
Schaim, supra.
Therefore, his claim that the trial court erred in refusing to allow separate trials on the different charges in the separate indictments is without merit.
Furthermore, to prevail on his claim that the trial court erred in refusing to separate the indictments for trial, Decker must demonstrate that he provided the trial court with sufficient information so that it could weigh the considerations favoring joinder against his right to a fair trial at the time his motion to sever was made, and that the trial court abused its discretion in refusing to separate the charges given that information. See
Schaim, supra.
Decker argued that the charges in the separate indictments involved distinctly different offenses with different victims, different witnesses and different factual situations; that the evidence relevant to the crimes charged in one indictment was not as strong as the evidence relevant to the crimes charged in the other indictment; and that the jury would use the “other acts” evidence as evidence of his criminal propensity. However, there is nothing in the record to indicate that the trial court was aware of the specific evidence that would be presented with respect to the different crimes charged, or that there would be any danger of the jury failing to segregate the evidence presented with respect to the different crimes charged. Cf.
Schaim, supra.
Given this information, the trial court did not abuse its discretion in refusing to sever the indictments for trial.
Decker has failed to demonstrate that his rights were prejudiced by the joinder of the two indictments returned against him for trial, or that the trial court abused its discretion in refusing to grant his motion to sever the indictments for trial. His first assignment of error in each appeal is, therefore, not well taken.
In the second assignment of error advanced in each of his appeals, Decker contends that his convictions were against the manifest weight of the evidence. In reviewing a claim that the judgment in a criminal case was against the manifest weight of the evidence, an appellate court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
Tibbs v. Florida
(1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652;
State v. Martin
(1983), 20 Ohio App.3d 172, 20 OBR 215, 485 N.E.2d 717. The discretionary power of an appellate court to grant a new trial on a claim that the judgment was against the manifest weight of the evidence should be exercised only in the exceptional case where the evidence weighs heavily against the conviction.
Tibbs v. Florida, supra; State v. Martin, supra.
Decker was convicted on four counts of gross sexual imposition in violation of R.C. 2907.05. R.C. 2907.05(A)(4) provides as follows:
“No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact
with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
u
‡ ‡ H*
“(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of such person.”
Sufficient evidence was presented to establish that Decker had sexual contact with his son when his son was less than thirteen years old; that Decker caused his son to have sexual contact with him when his son was less than thirteen years old; and that Decker caused two girls in his neighborhood to have sexual contact with him when they were less than thirteen years old. Therefore, all the elements of R.C. 2907.05 were established with respect to each of the counts of gross sexual imposition on which Decker was convicted. Although Decker denied these accusations, we cannot say that the jury “lost its way” in believing the children’s testimony over Decker’s testimony. Decker’s second assignment of error in each appeal is, therefore, without merit.
The judgments of the trial court are, accordingly, affirmed.
Judgments affirmed.
Hildebrandt, J., concurs.
M.B. Bettman, J., dissents.