State v. Rodriguez

2025 Ohio 53

• Court: Ohio Court of Appeals
• Decided: January 10, 2025
• Docket: C-240075
• Status: Published

Opinion

[Cite as State v. Rodriguez, 2025-Ohio-53.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-240075 TRIAL NO. B-2200636-A Plaintiff-Appellee, :

vs. : OPINION AMY RODRIGUEZ, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: January 10, 2025

Connie Pillich, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher and Elizabeth Conkin, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Judge.

{¶1} Where a defendant is charged with 11 nearly identical counts of

endangering children, and where each count corresponds to a specific act of torture or

abuse that the defendant is alleged to have committed against the victim, must the trial

court provide the jury with instructions and/or verdict forms for each count that

specify the conduct that was the basis of the count?

{¶2} Defendant-appellant Amy Rodriguez argues that we must answer this

question in the affirmative and that the trial court erred in failing to do so. On the

record before us, we agree. We hold that where Rodriguez was convicted of some, but

not all, of the charged offenses, and where the jury was indisputably confused as to

which act of torture or abuse committed by Rodriguez corresponded with each count

of endangering children, the trial court committed plain error when it failed to provide

the jury with instructions and/or verdict forms that specified the conduct that was the

basis of each count.

{¶3} Because the jury instructions and/or verdict forms failed to distinguish

the conduct that applied to each count, it is impossible to determine which offenses

the jury found Rodriguez to have committed and which charged offenses resulted in

acquittals. And because if we order a new trial, Rodriguez might be retried for acts of

which the jury found her not guilty, we must hold that the trial court’s error precludes

retrial for the underlying offenses. For the reasons set forth in this opinion, the trial

court’s judgment is reversed and Rodriguez is discharged from further prosecution for

the conduct at issue in this case.

I. Factual and Procedural History

{¶4} On February 25, 2022, Rodriguez was indicted for 11 counts of

endangering children in violation of R.C. 2919.22(B)(2). Each count was a felony of

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the second degree, and the alleged victim of each count was Rodriguez’s stepson C.D.

Except for Count 5, each count provided that:

The Grand Jurors of the County of Hamilton, in the name and by

authority of the State of Ohio, upon their oaths do find and present that

AMY M RODRIGUEZ, on an undetermined date between

January in the year Two Thousand Eighteen and April in the

Year Two Thousand Twenty-One at the County of Hamilton and

State of Ohio aforesaid, recklessly tortured or cruelly abused

C.D., a child under eighteen years of age, or a mentally or

physically handicapped child under twenty-one years of age,

and the violation resulted in serious physical harm to C.D., in

violation of Section 2919.22(B)(2) of the Ohio Revised Code and against

the peace and dignity of the State of Ohio.

(Emphasis sic.) Count 5 was nearly identical to the other ten counts, but for the date

upon which the offense was alleged to have been committed. Count 5 alleged that the

offense was committed “from on or about the 1st day of January, Two Thousand

Twenty-One to on or about the 2nd day of January, Two Thousand Twenty-One.”

{¶5} The indictment additionally charged C.D.’s father, A.D., with one count

of endangering children in violation of R.C. 2919.22(A). A separate indictment was

issued against Rodriguez’s parents, Armin and Susan Rodriguez,1 in the case

numbered B-2202282. That indictment charged both Armin and Susan with one count

of endangering children in violation of R.C. 2919.22(B)(2), and additionally charged

Armin with complicity in the commission of the offense of endangering children.

1 We refer to Armin and Susan by their first names because they have the same surname as Rodriguez.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶6} The bill of particulars, filed on March 11, 2022, set forth additional

allegations regarding the charged offenses. As relevant to Rodriguez, it provided that:

Specifically, C.D. was forced to sit on a bench for multiple hours

and days at a time. At times he was tethered to the bench with locked

restraints making it impossible for him to leave.

C.D. was forced to stand in a corner facing the wall for up to 14

hours per day for multiple days in a row.

C.D.’s punishments were moved to his bedroom where he was

forced to stand in an imaginary box for the entire day while classical

music blared from an alarm clock in the room. At the time he was only

allowed to wear his little brother’s shorts. This took place continuously

for multiple weeks.

C.D. was also forced to lean against a wall for extended periods

of time holding himself up with only his fingertips causing serious

discomfort and pain.

Between 1/1/21 and 1/2/21 C.D. was strapped to his bed with

locked restraints on his wrists and ankles throughout the night.

Eventually C.D. was confined to his room without physical

human contact over a course of many days. An alarm was on the door

and he was monitored by 3 cameras for the purpose of preventing C.D.’s

escape.

C.D. was not provided appropriate warm clothing or bedding.

Often he was permitted only to wear a pair of his young brother’s shorts

and was provided only 1 baby size blanket.

C.D. was beaten by [Rodriguez] with a belt on many occasions.

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On one occasion he was hit so severely [Rodriguez] caused his legs to

bleed.

C.D. was also beaten by [Rodriguez] using a spoon on many

occasions. On one occasion he was struck more than 70 times.

Food was restricted from C.D. as a form of punishment. He was

denied access to food by it being locked away in the kitchen. He suffered

unhealthy weight loss as a result.

C.D. was restricted from using the restroom for extensive periods

of time. C.D. was forced to wear a diaper. He could not ask to use the

restroom. If C.D. had an accident and urinated on himself [Rodriguez]

forced C.D. to take a cold shower.

{¶7} While the bill of particulars set forth 11 specific acts of torture or abuse

committed by Rodriguez, it did not link any of those allegations to a specific count in

the indictment.

{¶8} On January 17, 2023, Rodriguez filed a request for a more specific bill

of particulars. The request stated that the bill of particulars “fails to identified [sic]

which indicted count corresponds to the instances of Defendant’s alleged conduct

otherwise detailed in the State’s bill of particulars.” The State did not file a response

to this motion.

{¶9} A.D. filed a motion to have his charge tried separately from Rodriguez.

The State, in turn, filed a motion to consolidate the charges against Rodriguez with the

related charges filed against Armin and Susan in the case numbered B-2202282. The

trial court granted both motions.

{¶10} A jury trial was held on the charges against Rodriguez, Armin, and

Susan. Over the course of the approximately two-and-a-half-week trial, the State

5 OHIO FIRST DISTRICT COURT OF APPEALS

presented testimony from C.D. regarding the various acts of torture and abuse that he

had experienced at the hands of Rodriguez. C.D.’s testimony addressed each of the

allegations set forth in the bill of particulars. He utilized a “trauma timeline” that he

had prepared to explain the progression of abuse. This timeline was admitted into

evidence.

{¶11} The State presented additional testimony from persons that had

witnessed particular acts of torture, abuse, and/or punishment committed by

Rodriguez against C.D., including C.D.’s younger brother P.D., Rodriguez’s daughter

and niece, and A.D. Testimony was presented from several detectives concerning the

investigation of the charges that were ultimately filed against Rodriguez. The State also

called various social workers, therapists, physicians, and a former teacher of C.D. to

the stand. These witnesses discussed the family dynamic and the mental and physical

condition of C.D. during the period that the child endangering was alleged to have

occurred.

{¶12} At the close of the State’s presentation of evidence, it moved to amend

the charges in Counts 1 and 4 from felonies of the second degree to felonies of the third

degree. The State argued that this amendment would conform the charges to the

evidence presented, which the State believed established physical harm, rather than

serious physical harm. The trial court allowed the amendment over Rodriguez’s

objection.

{¶13} Rodriguez presented testimony from multiple witnesses regarding her

treatment of C.D. Collectively, these witnesses testified about C.D.’s problematic

behavior and that they never saw Rodriguez utilize excessive or extreme punishments

on C.D.

{¶14} In closing argument, the State linked each count in the indictment to a

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specific act of torture or abuse committed by Rodriguez, and it utilized the trauma

timeline that C.D. had prepared while doing so. The prosecutor stated:

Now, when I tell you that there’s 11 different counts, we need to

sort that out a little bit so we know specifically actions or activities or

behaviors that Amy engaged in that were corresponding with each

count, and I will explain that to you.

. . .

So what specific things am I talking about that relate to each

allegation. Well, you probably recognize this. This is [C.D.’s] trauma

timeline. And I wish that these counts went chronologically; however,

as you’ve heard, trauma sometimes makes kids get a little bit confused

as to the dates in the chronology of things.

We’ve got Count 1, Count 1 relates to this behavior right here

where he was forced to sit on the bench. And Count 1 stretches over to

the next timeline where he was tied to the bench. So that’s that behavior

there.

Count 2, he was then forced to stand in the corner. He was forced

to stand in the corner all day 14 plus hours a day.

He was not allowed to use the bathroom, he had to eat his meals

there, he had a camera on him in case he would have closed his eyes or

fallen asleep so that he could be woken up.

We have Count 3. This is after [C.D.] was put in the Children’s

Hospital after he ran away.

He came back—he came back—I’m sorry—to [Rodriguez’s]

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house, and he was immediately put right back up into his bedroom, but

there were a few little differences he remembered about being putting

[sic] back in his bedroom at this time and the time that he was put up

there before.

He remembers only two cameras were on him at this time. And

he also remembers that he was now put in his brother’s little shorts,

rather than having to wear a diaper.

And he also remembers classical music was blasting, and he

attributes that to the fact that he ran away at one point in time because

he could follow the foot patterns of the people in the house to know

when they might be occupied and he could get out there, and he

remembered that now the music was put on him so that he couldn’t

follow the foot patterns of everybody anymore.

Then we move to Count 4, and I think he indicated to you that a

form of punishment that he had to engage in a lot of different times was

standing against the wall using his fingertips.

He said it happened at [sic] lot of times, but the one time he

really remembered was when he ran away and he came back home.

Now, we go to Count 5, and this is him being restrained to the

bed using the child restraints. He indicates that he was tied with both

hands above him and both hands below him—or both feet below him in

an X.

Let me go to Count 6, and this is before he ran away when he was

in his bedroom. He was up there all day long, no human contact, three

cameras on him, a door alarm, he had to stand in an invisible square,

8 OHIO FIRST DISTRICT COURT OF APPEALS

keep on moving, his meals were served to him up there, and he was

isolated in that fashion for days on end.

Count 7 goes across the entire course of this—this timeline. Food

was—oh, I’m sorry—7 is the inadequate clothing, I believe.

Let me just double check this to make sure I have it right.

Yes, 7 is the abuse he suffered by not being provided adequate

clothing. And he testified throughout that he was either standing in

nothing but a diaper, his brother’s shorts, he was not given pajamas to

wear. He only had a little baby blanket to use. He didn’t have any sort of

bedding or pillow or anything like that to help clothe him or give him

warmth.

Count 8 is being hit with a spoon and a belt. That’s Count 8 and

9. He was hit with a spoon and a belt many times, but he specifically

testified about an occasion in which [Rodriguez] started out with a

wooden spoon, hit him so much with it that the spoon broke, and she

continued to go forward with a belt. The belt buckle struck him, and it

caused him to bleed. And so he talked about that time.

And then he also talked about just being hit with a spoon over

and over and over again, and that’s the time when [stepsister and

stepbrother] counted 75 strikes to his person. And so those are two

different episodes that we’re talking about there.

Count 10 was carried out throughout this entire time. And that

was the inadequate food. And you’ve heard over and over and over again

that during the course of this time food was used as a punishment, he

was restricted from what food he could eat, and as a result he suffered

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malnourishment because of it.

Count 11 are these two here. You heard much testimony about

his use of the bathroom being restricted. He wasn’t allowed to use the

bathroom when he wanted to. If he asked, he could get into trouble. He

had to wait until he was given permission.

And so he was then told to wear diapers, and if he had an

accident he would be thrown in a cold shower as punishment for having

the accident.

So those are the counts as it relates to [Rodriguez]. Those

different activities or those different punishments each relate to a

different count.

{¶15} Although the prosecutor’s comments during closing argument linked a

specific act of torture or abuse committed by Rodriguez to each count, the jury

instructions did not similarly do so. Nor did the verdict forms. Rather, the jury

instructions for each count of the indictment generally set forth the statutory elements

of the offense of endangering children, absent any factual allegations specific to an

individual count. And the verdict forms for each count simply stated that the jury

either found Rodriguez guilty or not guilty of that particular count of endangering

children.

{¶16} Included in the jury instructions was an instruction on “Multiple

Counts,” which stated, “The charge[s] set forth in each Count of 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 finding as to

each Count uninfluenced by your verdict as to the other Counts. The defendants may

be found guilty or not guilty of any one or all of the offenses charged.”

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{¶17} The trial court did not allow the jury to take notes during the trial.

Further, the trauma timeline that the prosecutor referred to during her closing

argument and that had been admitted into evidence did not set forth the abuse conduct

in the same order as the prosecutor explained in her closing argument.

{¶18} On the first day of deliberations, the jury sent a question to the court

asking, “For Amy’s 11 counts, which punishment corresponds to each count?” The trial

court responded, “You must refer to the jury instructions and the testimony and the

evidence that was presented to you.”

{¶19} On the second day of deliberations, the jury sent another question to the

court asking, “Which count aligns with each separate and distinct matter? We are

referencing Page 6 under ‘multiple counts’ in the jury instructions.” The trial court

answered, “My answer is the same as it was on Friday; refer to the jury instructions,

use your collective memories to apply [] the testimony and evidence that was

presented to the instructions.”

{¶20} Later that day, the jury returned verdicts of guilty on Counts 2, 4, 6, and

10. It found Rodriguez not guilty of the remaining charges. The trial court sentenced

Rodriguez to an indefinite sentence of three years to four years and six months of

imprisonment.

{¶21} Rodriguez now appeals.

II. Jury Instructions and Verdict Forms

{¶22} In her first assignment of error, Rodriguez argues that the trial court

committed plain error when it failed to provide the jury with final instructions and/or

verdict forms that specified which conduct was the basis of each count of the

indictment, thereby violating her constitutional rights to due-process and double-

jeopardy protections.

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{¶23} While the instructions provided to the jury for each count of

endangering children set forth the elements of the offense that the jury was required

to find, they did not specify the conduct that served as the basis for each count. For

example, the instruction provided to the jury concerning Count 1 stated:

The Defendant, AMY RODRIGUEZ, is charged with

Endangering Children. Before you can find the Defendant guilty, you

must find beyond a reasonable doubt that on an undetermined date

between January 2018 and April 2021, and in Hamilton County, Ohio,

the Defendant, AMY RODRIGUEZ, recklessly tortured or cruelly

abused a child, C.D., in violation of Section 2919.22(B)(2) of the Ohio

Revised Code and against the peace and dignity of the State of Ohio.

{¶24} The instructions were nearly identical for the ten remaining counts

against Rodriguez, with two exceptions. First, Counts 1 and 4 were third-degree

felonies, but the remaining counts were second-degree felonies. The instructions given

to the jury concerning these more serious counts provided that the jury must

additionally find that Rodriguez’s actions “resulted in serious physical harm to C.D.”

Second, in accordance with the indictment, the instruction given on Count 5 provided

that the offense occurred “from on or about [] January 1, 2021 and January 2, 2021,”

rather than on an undetermined date in the specified range.

{¶25} Similarly, the verdict forms simply listed the count at the top of the page

and stated that the jury found Rodriguez either guilty or not guilty of endangering

children in violation of R.C. 2919.22(B)(2). They did not contain any identifying

information specific to that count.

{¶26} Rodriguez contends that the jury instructions provided by the trial court

were misleading because they were insufficient to identify which alleged conduct

12 OHIO FIRST DISTRICT COURT OF APPEALS

related to each count of the indictment. She argues that either the jury instructions or

the verdict forms should have contained this identifying information.

{¶27} Rodriguez and the State agree that this court is limited to a plain-error

review because she failed to object below to either the jury instructions or the verdict

forms. See State v. Gasper, 2024-Ohio-4782, ¶ 14 (“A defendant who fails to object to

jury instructions waives all but plain error.”); accord State v. Chasteen, 2024-Ohio-

909, ¶ 10-11 (1st Dist.). To establish plain error, a defendant must show that an error

occurred, that the error was plain, meaning “obvious,” and that it affected the

defendant’s substantial rights, i.e., that it affected the outcome of the trial. State v.

Sowders, 2023-Ohio-4498, ¶ 11 (1st Dist.). Even if an obvious error is found to have

impacted substantial rights, the error should only be corrected where it “seriously

affects the fairness, integrity, or public reputation of judicial proceedings” or when

necessary “to prevent a manifest miscarriage of justice.” State v. Bond, 2022-Ohio-

4150, ¶ 35.

{¶28} In furtherance of her plain-error argument, Rodriguez contends that the

error in the jury instructions was obvious. She asserts that the jury’s two questions

submitted during deliberations evinced the jury’s inability to determine what conduct

served as the basis for each count.

{¶29} As to the third prong of the plain-error analysis, Rodriguez argues that

the erroneous jury instructions impacted her substantial rights. She asserts that she is

unable to determine which conduct the jury found her guilty of and which conduct she

was acquitted of, and that she is consequently unable to challenge the sufficiency or

the weight of the evidence supporting her convictions on appeal. Rodriguez suggests

that this deprivation of the means to an effective appeal is in violation of her due-

process rights. She further argues that, in the event a new trial is granted, there is a

13 OHIO FIRST DISTRICT COURT OF APPEALS

substantial risk that she could be retried for a crime for which she has already been

acquitted in violation of her right to be free from double jeopardy.

{¶30} We address each prong of the plain-error analysis in turn.

A. The Jury Instructions and/or Verdict Forms Were Insufficient

{¶31} As previously set forth, Rodriguez argues that the trial court should have

provided the jury with final instructions and/or verdict forms that specified which

conduct was the basis of each count of the indictment.

{¶32} The law is well settled that “[a] trial court must fully and completely

provide the jury with all instructions that are relevant and necessary for it to weigh the

evidence and to discharge its duty as the factfinder.” State v. Rainey, 2023-Ohio-4666,

¶ 29 (1st Dist.). An instruction must be viewed in the context of the overall charge

provided and not in isolation. Id. “An appellate court’s duty is to review the

instructions as a whole, and, if taken in their entirety, the instructions fairly and

correctly state the law applicable to the evidence presented at trial, reversible error

will not be found merely on the possibility that the jury may have been misled.” State

v. Jones, 2015-Ohio-5029, ¶ 12 (12th Dist.).

{¶33} Although there is no authority from either the Ohio Supreme Court or

this district regarding what information must be contained in the jury instructions and

verdict forms in a situation where a defendant is charged with multiple carbon-copy

counts of the same offense, the Second District has addressed the sufficiency of the

jury instructions that were provided in a factually similar case in State v. Shaw, 2008-

Ohio-1317 (2d Dist.). Shaw was indicted on 15 counts of rape of a minor child under

the age of 13 and ten counts of sexual battery. His three daughters were the victims of

all offenses. Id. at ¶ 3. Following a jury trial, Shaw was found guilty of three counts of

rape (one count for each daughter) and two counts of sexual battery. He was acquitted

14 OHIO FIRST DISTRICT COURT OF APPEALS

of the remaining charges. Id. at ¶ 6.

{¶34} Shaw argued on appeal that he was denied his right to due process

because the offenses were not charged with sufficient specificity. Id. at ¶ 17-18. While

the Second District found that Shaw’s indictment was sufficient because it tracked the

language of the statutes under which he was charged, it found error in the lack of

differentiation at trial as to which facts applied to which charges. Id. at ¶ 18. The court

explained:

The only difference in the language of the indictment regarding

each of the fifteen counts of Rape and each of the ten counts of Sexual

Battery was some variation in dates. In addition to complying with the

local rules of discovery providing extensive information, including

police reports, the State also filed a bill of particulars wherein the State

identified which counts applied to which child and which general acts

were encompassed within each group of charges. For example, “The

victim in Counts 1, 2, 3, 4, and 5 is JX. The sexual conduct includes, but

is not limited to, oral sex and vaginal intercourse.” However, there was

no way for Shaw to know which particular facts applied to which charge.

This deficiency was never rectified during the trial, by jury

instructions, or on the verdict forms.

The confusion regarding matching events with charges is

illustrated by the jury’s request early during their deliberations for

“clarification on difference between each of the counts.” The court

merely responded by telling the jury that it already had all of the

evidence and law that it needed. In other cases confusion has been

avoided by the trial court’s use of jury instructions and verdict forms

15 OHIO FIRST DISTRICT COURT OF APPEALS

wherein the court identifies charges by using brief labels indicating

location or some other identifying fact. See, e.g., State v. Russell, 2007-

Ohio-2108 [8th Dist.]; Valentine v. Konteh, 395 F.3d 626, 634, 637-638

[6th Cir. 2005].

In this case the court did not differentiate the charges, instead

instructing the jury as follows: “You must consider each count and the

evidence applicable to each count separately, and you must state your

finding as to each count uninfluenced by your verdict as to any other

count.” When the indictment covered extensive spans of up to five years,

and each girl testified to multiple incidents of abuse, the jury needed

guidance as to which facts the State was alleging to apply to which

charges.

While the indictment itself was sufficient, there was never any

differentiation of which specific events applied to each charge either

before or during trial. Such clarification is necessary for the jury and for

the defendant to be able to ensure that he is not indicted on the same

incidents at some point in the future. “The Constitution does demand

that if a defendant is going to be charged with multiple counts of the

same crime, there must be some minimal differentiation between the

counts at some point in the proceeding.” Valentine at 638. Moreover, in

a case like this one, where Shaw was acquitted of most of the charges

against him, clarification is necessary in order to know what evidence

may be presented at a retrial. See, e.g., id. at 634-636.

(Emphasis added.) (Cleaned up.) Id. at ¶ 21-24. Because neither the trial testimony,

jury instructions, or verdict forms differentiated between which acts committed by

16 OHIO FIRST DISTRICT COURT OF APPEALS

Shaw corresponded to which charge, the court held that “there is no way to know upon

which of the charges Shaw was convicted and upon which of the charges he was

acquitted.” Id. at ¶ 25. The court accordingly reversed Shaw’s convictions and held that

“the Double Jeopardy clause of the Fifth Amendment to the United States Constitution

precludes retrial for any offenses against the same three victims that occurred during

the extensive time span covered by the indictment.” Id.

{¶35} The importance of distinguishing between multiple “carbon-copy”

counts of the same offense was recognized by the Sixth Circuit in Valentine v. Konteh,

395 F.3d 626 (6th Cir. 2005), in which the court considered a petition for a writ of

habeas corpus in a case that originated in Cuyahoga County, Ohio. Valentine was

charged with 20 identical counts of rape and 20 identical counts of felonious sexual

penetration. Id. at 628. The factual bases supporting each of these counts was not

distinguished in the indictment, in the bill of particulars, or during trial. Id. Valentine

was convicted of all 40 offenses, and 15 of those convictions were affirmed on direct

appeal. Id. at 629. Valentine then filed a petition for a writ of habeas corpus in the

federal district court. That court issued the writ based on a finding that Valentine’s

due-process rights were violated by the identical counts in the indictment. Id. at 630.

{¶36} On appeal to the Sixth Circuit, the district court’s judgment was

affirmed with respect to all but two of Valentine’s convictions. The Sixth Circuit held

that Valentine’s due-process rights were violated where “[t]he indictment, the bill of

particulars, and even the evidence at trial failed to apprise the defendant of what

occurrences formed the bases of the criminal charges he faced.” Id. at 634. It

explained, “The Constitution does, however, demand that if a defendant is going to be

charged with multiple counts of the same crime, there must be some minimal

differentiation between the counts at some point in the proceeding.” Id. at 638. The

17 OHIO FIRST DISTRICT COURT OF APPEALS

court plainly stated that “[c]ourts cannot uphold multiple convictions when they are

unable to discern the evidence that supports each individual conviction.” Id. at 636-

637.

{¶37} Collectively, Shaw and Valentine stand for the proposition that where

an offender is charged with multiple, identical counts of the same offense, the trial

court must provide some basis for a jury to differentiate the offenses.

{¶38} For additional support of her argument, Rodriguez directs us to Harp

v. Commonwealth, 266 S.W.3d 813 (Ky. 2008). The defendant in Harp was charged

via indictment with multiple offenses, including seven counts of sexual abuse. The

victim of all offenses was the daughter of Harp’s girlfriend. Id. at 816-817. Harp was

convicted of all seven sexual-abuse offenses. Id. at 817. On appeal, he challenged the

jury instructions that had been provided for those offenses, arguing that “it was error

for the trial court not to add language to each of the seven sexual abuse instructions so

that the jury would be required to distinguish from the evidence one count from

another.” Id.

{¶39} The jury in Harp had been provided with identical instructions for each

count of sexual abuse. The challenged instructions stated that the jury should find

Harp guilty if it believed, beyond a reasonable doubt, that he had engaged in sexual

contact with a victim under 12 years of age on a specified date range. Id. The court held

that the seven identical sexual-abuse instructions provided during Harp’s trial were

erroneous, id. at 818, and that they did not comply with Kentucky law requiring, in a

case involving multiple offenses, the instructions “factually [to] differentiate between

the separate offenses.” (Bracketed text in original.) Id. at 817, quoting Combs v.

Commonwealth, 198 S.W.3d 574, 580 (Ky. 2006). The court stated that, “in a case

involving multiple counts of the same offense, a trial court is obliged to include some

18 OHIO FIRST DISTRICT COURT OF APPEALS

sort of identifying characteristic in each instruction that will require the jury to

determine whether it is satisfied from the evidence the existence of facts proving that

each of the separately charged offenses occurred.” Id. at 818.

{¶40} The Harp court further held that any error resulting from the

instructions could not be deemed harmless. Id. at 818. It held that the prosecutor’s

attempt to “flesh out” the generic instructions in closing argument by linking each

specific act of sexual abuse to a specific count did not “rehabilitate erroneous jury

instructions.” Id. at 819-820. The court ultimately vacated Harp’s convictions for

sexual abuse and remanded those offenses to the trial court for further proceedings.

Id. at 825.

{¶41} The State argues that the jury instructions and verdict forms in this case

were not erroneous, and that Rodriguez’s argument should be overruled on the

authority of State v. White, 2021-Ohio-1644 (1st Dist.). In White, the defendant was

charged with multiple offenses, including 17 counts of endangering children. Id. at ¶ 1.

At trial, the State separately discussed each offense and the evidence that it believed

supported that offense. Id. at ¶ 40. While deliberating, the jury asked for written

documentation as to which acts committed by White were connected to each charge of

endangering children. In response, the trial court instructed the jury that it should rely

on its collective memory. Id. White was ultimately convicted of all charges. Id. at ¶ 41.

{¶42} White argued on appeal that he was deprived of his right to due process

and a unanimous jury verdict on the charges of endangering children. In support of

his argument, White relied on what he described as a “hodgepodge” of allegations

presented by the State at trial, the 17 identically charged counts of child endangering

in the indictment, and the jury’s request for an explanation of what acts supported

each count of child endangering. Id. at ¶ 97.

19 OHIO FIRST DISTRICT COURT OF APPEALS

{¶43} This court rejected White’s argument, stating:

White argues this is a “multiples acts” case under State v.

Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 37.

Gardner involved juror unanimity and made a distinction between

alternate-means cases and multiple-acts cases. In alternative-means

cases, an offense may be committed in more than one way and jury

unanimity is required for the crime itself, but not the means by which it

was committed. Id. at ¶ 49. In multiple-acts cases, several different acts

can constitute the charged crime and jury unanimity is required as to

which act or incident supports each crime. Id. at ¶ 50. To ensure

unanimity, the state must specify the particular criminal act upon which

it relies for conviction. Id.

We find no merit to White’s theory that the jury’s findings of guilt

on each count were not unanimous. The state connected specific acts

with each count in the bill of particulars and wrote them on large white

poster paper at trial for the jury. After the jurors requested written

documentation of which act supported which count, the trial court told

the jurors to rely on their collective memories. There is nothing in the

record to indicate that the jury did not do that or did not reach a

unanimous verdict on each count.

Id. at ¶ 98-99.

{¶44} Both White and the case at bar involve a defendant who was charged

with multiple, identical counts of endangering children and a jury that requested

guidance as to which of the defendant’s acts corresponded to each count in the

indictment. But that is where the similarity between the two cases ends. White was

20 OHIO FIRST DISTRICT COURT OF APPEALS

charged with 17 counts of endangering children and was convicted of each count.

Rodriguez, in contrast, was charged with 11 counts of endangering children, but was

only convicted of four of those counts. Unlike Rodriguez, White was left with no

question about which offenses he was convicted of.

{¶45} Further, at issue in White was the unanimity, or lack thereof, of a jury

verdict. In contrast, Rodriguez has challenged the jury instructions and has not raised

an argument concerning unanimity. Rodriguez has made no argument that this is a

multiple-acts or alternative-means case. And to be clear, it is not. The State charged

Rodriguez with 11 counts of endangering children and presented evidence of 11

different instances and types of abuse. In closing argument, the State linked each

count to a specific allegation of abuse. The issue for this court to determine is whether

either the jury instructions or the verdict forms had to similarly link each count with a

specific act committed by Rodriguez, not whether the jury unanimously reached a

verdict. Accordingly, White does not dictate the outcome in this case.

{¶46} Turning to the case before us, the indictment issued against Rodriguez

contained 11 nearly identical counts of endangering children. It set forth the elements

of the offenses but did not contain any specific acts that Rodriguez was alleged to have

committed. Compare Shaw, 2008-Ohio-1317, at ¶ 20 (2d Dist.). And while the bill of

particulars described 11 different acts of torture or abuse that Rodriguez committed

against C.D., it did not link those acts to specific counts in the indictment. Compare

id. at ¶ 21. During closing argument, for the first time in the case, the State linked each

count with a specific act committed by Rodriguez. It referred to C.D.’s trauma timeline

while doing so. While the jury was instructed that it must consider the evidence

applicable to each count separately and that Rodriguez could be found guilty or not

guilty of any or all of the charged offenses, the instructions did not link an alleged act

21 OHIO FIRST DISTRICT COURT OF APPEALS

of torture or abuse to a specific count. Rather, for each count of the indictment, the

instructions generally set forth the statutory elements of the offense of endangering

children, absent any specific factual allegations. And the verdict forms for each count

simply stated that the jury either found Rodriguez guilty or not guilty of that particular

count of endangering children.

{¶47} The jury instructions and verdict forms left the jury with no way to

differentiate between the charges or to determine which act corresponded to each

count. See id. at ¶ 21 and 23; Valentine, 395 F.3d at 638; Harp, 266 S.W.3d at 818.

And the jury undeniably struggled with making this determination. During

deliberations, it sent two separate questions to the trial court asking for clarification

regarding which act committed by Rodriguez corresponded to each count in the

indictment. In response to these questions, the trial court instructed to the jury to

“refer to the jury instructions and the testimony and the evidence that was presented

to you” and to “use your collective memories to apply [] the testimony and evidence

that was presented to the instructions.”

{¶48} The problem with this response was that the jury instructions did not

link a specific act with a specific count in the indictment. So even if the jury referred

to the instructions, as it was directed by the trial court to do, it received no guidance.

The same is true of the trial court’s suggestion that the jury utilize its “collective

memories to apply [] the testimony and evidence that was presented to the

instructions.” While the evidence, including the trauma timeline, delineated 11 specific

acts of torture or abuse committee against C.D., it did not link those acts to a specific

count in the indictment. The only time in the entire trial that a punishment or act

committed by Rodriguez was linked to a specific count was during closing argument.

But “closing arguments are not evidence.” State v. Asp, 2023-Ohio-290, ¶ 59 (5th

22 OHIO FIRST DISTRICT COURT OF APPEALS

Dist.).

{¶49} This case involved multiple counts of the same offense against the same

victim, and each count concerned a specific act committed by the defendant. We agree

with the Harp court that in such cases, “a trial court is obliged to include some sort of

identifying characteristic,” whether that be in the jury instructions or in the verdict

forms, to help the jury “determine whether it is satisfied from the evidence the

existence of facts proving that each of the separately charged offenses occurred.” Harp

at 818; see also Valentine at 638 (“The Constitution does, however, demand that if a

defendant is going to be charged with multiple counts of the same crime, there must

be some minimal differentiation between the counts at some point in the

proceeding.”).

{¶50} And as stated above, the jury was not permitted to take notes during the

trial. The jury could not reasonably have been expected to remember, based solely on

the State’s comments during closing argument, which of 11 specific acts corresponded

to each count. In fact, the State itself misspoke at one point during closing argument

about which act was tied to which count. The jury, quite simply, “needed guidance as

to which facts the State was alleging to apply to which charges.” See Shaw, 2008-Ohio-

1317, at ¶ 23 (2d Dist.); see also State v. Martinez, 2015 ND 173, ¶ 16-20 (where the

defendant was charged with three counts of gross sexual imposition against the same

victim based on three separate and distinct incidents, the provided jury instructions

were erroneous because “the instructions and the verdict forms provided no way to

differentiate or distinguish between the counts”). Neither the jury instructions nor the

verdict forms provided that guidance in the case at bar.

{¶51} For the foregoing reasons, we hold that the trial court erred in failing to

instruct the jury as to which alleged act of torture or abuse committed by Rodriguez

23 OHIO FIRST DISTRICT COURT OF APPEALS

corresponded to each count in the indictment. The jury was not given “all instructions

that [we]re relevant and necessary for it to weigh the evidence and to discharge its duty

as the factfinder.” See Rainey, 2023-Ohio-4666, at ¶ 29 (1st Dist.). The trial court

could alternatively have included this information in the verdict forms, rather than the

jury instructions, but it did not.

{¶52} We further hold that the defects in the jury instructions and verdict

forms were not cured by the State’s comments during closing argument discussing

which act corresponded to each count. “[A]rguments of counsel cannot substitute for

instructions by the court.” Taylor v. Kentucky, 436 U.S. 478, 488-489 (1978) (the trial

court’s failure to give a jury instruction on the presumption of innocence was not cured

by defense counsel arguing the presumption in opening and closing statements). Nor

were the defects cured by the State’s use of the trauma timeline in closing argument.

While the timeline set forth each type of abuse or punishment experienced by C.D., it

did not link those acts to counts in the indictment and was in a different order than

the acts described by the prosecutor in her closing argument.

B. The Error was Plain and Obvious

{¶53} The second prong of our analysis requires us to determine whether the

error that occurred below was plain or obvious. Sowders, 2023-Ohio-4498, at ¶ 11 (1st

Dist.). Courts applying a plain-error analysis do not always elaborate upon this prong

or explain when an error will be considered plain. See id.; Bond, 2022-Ohio-4150, at

¶ 17; State v. Mohamed, 2017-Ohio-7468, ¶ 26; Chasteen, 2024-Ohio-909, at ¶ 11 (1st

Dist.). In some cases, courts have explained that an error will be considered plain when

it constitutes “an obvious defect in the trial proceedings.” State v. Browner, 2024-

Ohio-1547, ¶ 8 (1st Dist.); accord State v. Morgan, 2017-Ohio-7565, ¶ 35, quoting

State v. Barnes, 94 Ohio St.3d 21, 27 (2002).

24 OHIO FIRST DISTRICT COURT OF APPEALS

{¶54} Where Rodriguez was charged with multiple counts of the same offense

and where each count correlated to a specific act committed by Rodriguez, the trial

court’s failure to provide the jury with final instructions and/or verdict forms that

linked each act to a specific count constituted an “obvious defect in the trial

proceedings.” See Browner at ¶ 8; Morgan at ¶ 35. The defect is apparent on the

record, as the jury asked two separate questions about how to determine which act

corresponded to which count. Absent further guidance, the jury was unable to make

this determination.

{¶55} But an obvious defect in the trial proceedings notwithstanding, more

may be necessary to establish the second prong of the plain-error test. In several cases,

both the Ohio Supreme Court and this court have elaborated further and indicated

that this prong cannot be satisfied in the absence of a bright-line, binding rule that

would establish the obviousness of the defect in the proceedings. State v. Steele, 2013-

Ohio-2470, ¶ 30 (“Because there was no explicit case law or statutory guidance in Ohio

on the standard of proving a police officer’s loss of privilege to arrest, it would be

difficult to conclude that the trial court’s failure to invent such an instruction

constitutes an obvious error.”); Barnes at 28 (explaining that even though the trial

court incorrectly instructed the jury with respect to whether the offense of felonious

assault with a deadly weapon constituted a lesser included offense of the charged

offense of attempted murder, the error was not plain because of “[t]he lack of a

definitive pronouncement from this court [on this issue] and the disagreement among

the lower courts.”); State v. Walker, 2017-Ohio-9255, ¶ 30 (1st Dist.) (declining to find

plain error in the absence of “a bright-line rule that would have clearly demonstrated

an obvious defect”).This reasoning comports with how plain error is addressed by

federal courts. See United States v. Turner, 2024 U.S. App. LEXIS 30968, *3 (6th Cir.

25 OHIO FIRST DISTRICT COURT OF APPEALS

Dec. 6, 2024) (to establish plain error, the appellant “must identify a case in our court

or the Supreme Court evidencing the error”); United States v. Vaughn, 119 F.4th 1084,

1090 (6th Cir. 2024), citing United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir.

2015) (a finding of plain error will be precluded by both a circuit split and a “lack of

binding case law”).

{¶56} While the trial court’s failure to provide the jury in this case with final

instructions and/or verdict forms that specified which act committed by Rodriguez

correlated to each count of the indictment was erroneous under both Shaw and

Valentine, there is no binding case law from this court or the Ohio Supreme Court on

the issue. Under the law set forth in this latter group of cases, this would preclude a

finding of plain error.

{¶57} However, some courts have elected to find plain error in the absence of

binding case law. In Davidson v. Kentucky, 2006 Ky.App.Unpub. LEXIS 1224, *1-2

(Feb. 3, 2006), Davidson appealed a conviction for second-degree assault for causing

physical injury to another with a deadly weapon or dangerous instrument. He argued

that his fists could not constitute a “dangerous instrument” and that the trial court

erred by instructing the jury otherwise. Id. at 13-14. Davidson had not objected to this

jury instruction below. Id.

{¶58} While acknowledging that “[a]n error may be readily noticeable and

palpable where the trial court fails to follow clear, binding precedent,” the court

recognized that whether fists constituted a dangerous instrument was an issue of first

impression, and that “Kentucky courts have not addressed whether a trial court’s

erroneous statutory construction can be considered a palpable error when it concerns

an issue of first impression.” Id. at 25. In electing to find plain, or palpable, error in

the jury instructions in the absence of binding precedent, id. at 27, the court relied on

26 OHIO FIRST DISTRICT COURT OF APPEALS

federal law stating, “The lack of such precedent, however, does not prevent a finding

of plain error if the error was, in fact, clear or obvious based on the materials available

to the district court.” Id. at 25, quoting United States v. Lachowski, 405 F.3d 696, 698-

699 (8th Cir. 2005).

{¶59} The purpose of the plain-error rule is to encourage parties to raise

objections in a timely manner so that the trial court has an opportunity to fix the error.

See In re A.J.O., 2019-Ohio-975, ¶ 27 (1st Dist.). Although the error in the jury

instructions and/or verdict forms in this case was not brought to the court’s attention

by either of the parties, it was nonetheless brought to the court’s attention at a time

when the court could have fixed the error. See State v. Rutledge, 2019-Ohio-3460, ¶

45 (10th Dist.) (in response to a question submitted by the jury during deliberations,

the court may issue a response or clarification that is consistent with or supplements

the previously provided instructions).

{¶60} Here, the two questions submitted by the jury during deliberations

established that, based on the jury instructions and verdict forms that it was provided,

the jury was unable to differentiate between the charges or to determine which act

corresponded to each count. The obvious nature of the defect in the proceedings that

was brought to the court’s attention, coupled with the holdings of Shaw and Valentine

and the lack of conflicting authority from either this court, the Ohio Supreme Court,

or any other lower court in Ohio, lead us to conclude that the error in this case was

plain and obvious and that the second prong of the plain-error analysis has been

satisfied.

C. Rodriguez’s Substantial Rights Were Impacted

{¶61} The third prong of the plain-error analysis requires Rodriguez to

establish that the error impacted her substantial rights. Sowders, 2023-Ohio-4498, at

27 OHIO FIRST DISTRICT COURT OF APPEALS

¶ 11 (1st Dist.). Rodriguez contends that she is unable to determine which conduct the

jury found her guilty of and which conduct she was acquitted of, and that she is

consequently unable to challenge the sufficiency or the weight of the evidence

supporting her convictions on appeal. She argues that this deprivation of the means to

an effective appeal is in violation of her due-process rights. She further argues that, in

the event a new trial is granted, there is a substantial risk that she could be retried for

a crime of which she has already been acquitted in violation of her right to be free from

double jeopardy.

{¶62} The concerns noted by Rodriguez are valid in light of the error that

occurred below. But Ohio courts have historically interpreted the third prong of the

plain-error analysis as requiring the appellant to show that the error “‘affected the

outcome of the trial.’” Id., quoting Barnes, 94 Ohio St.3d at 27; State v. Jones, 2020-

Ohio-3051, ¶ 18 (“Whether the defendant’s substantial rights were affected depends

on whether the error was prejudicial, i.e., whether it affected the outcome of the

trial.”); Bond, 2022-Ohio-4150, at ¶ 17. An appellant meets this requirement by

demonstrating a “reasonable probability” that, but for the error, the outcome of the

trial would have been different. State v. Mounts, 2023-Ohio-3861, ¶ 52 (1st Dist.).

{¶63} Recently, the Ohio Supreme Court made an exception to this outcome-

determinative requirement in a plain-error analysis, but only in cases involving

structural error. Bond at ¶ 32. In Bond, the appellant argued on appeal that a

courtroom closure in the trial court violated his right to a public trial under both the

United States and Ohio Constitutions. Id. at ¶ 1. The Court recognized that this alleged

error was a structural error, and that because Bond had failed to object to the closure

in the trial court, the closure was subject to a plain-error review. Id. at ¶ 7.

{¶64} The Court directly confronted the issue of whether structural errors

28 OHIO FIRST DISTRICT COURT OF APPEALS

were subject to an outcome-determinative analysis under a plain-error review. It

explained that the language of Crim.R. 52(B), which codifies plain-error review, does

not require that the error affect the outcome of the trial. Id. at ¶ 25. Rather, the rule

“simply states that ‘[p]lain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.’” (Bracketed text in

original.) Id., quoting Crim.R. 52(B). The Court further explained that “[s]tructural

errors are constitutional defects that defy analysis by harmless-error standards

because they ‘affect[] the framework within which the trial proceeds, rather than

simply an error in the trial process itself.’” (Second bracketed text in original.) Id. at ¶

26, quoting Arizona v. Fulminante, 499 U.S. 279, 309-310 (1991). The Court

ultimately determined that:

[A] structural error may affect substantial rights even if the defendant

cannot show that the outcome of the trial would have been different had

the error not occurred. To conclude otherwise would be to ignore the

long-standing structural-error doctrine, the purpose of which “is to

ensure insistence on certain basic, constitutional guarantees that should

define the framework of any criminal trial.”

Id. at ¶ 32, quoting Weaver v. Massachusetts, 582 U.S. 286, 295 (2017).

{¶65} The Court’s expansion of the third prong of the plain-error analysis was

based on the unique nature of structural errors and was incontrovertibly limited to

cases involving structural error. And there is no question that a structural error is not

implicated in the case at bar. Accordingly, to establish that her substantial rights have

been impacted, Rodriguez must show a “reasonable probability” that the outcome of

the proceedings would have been different but for the trial court’s error. See Mounts,

2023-Ohio-3861, at ¶ 52 (1st Dist.). That the error had an impact on her rights to due

29 OHIO FIRST DISTRICT COURT OF APPEALS

process and to be free from double jeopardy does not seem to be sufficient under

current case law to satisfy this third prong, despite the fact that Crim.R. 52(B) does

not require that the error affect the outcome of the trial.

{¶66} Rodriguez’s underlying argument with respect to the alleged due-

process violation is nonetheless relevant to our consideration of whether there is a

reasonable probability that the outcome of the proceedings would have been different.

As set forth above, Rodriguez contends that she is unable to challenge the sufficiency

or the weight of the evidence supporting her convictions on appeal because she cannot

determine which conduct the jury found her guilty of and which conduct she was

acquitted of. The jury’s confusion in determining which act of torture or abuse

corresponded to each count of the indictment was clearly documented in the two

questions it submitted during deliberations. And the response given by the trial court

to the jury’s questions did not provide the jury with a direct answer or provide them

with guidance or the means to find the answer.

{¶67} In State v. Gardner, 2008-Ohio-2787, the Court suggested that jury

confusion could amount to plain error. In Gardner, the defendant was charged with

aggravated burglary and the jury instruction for that offense failed to specify that the

jury needed to unanimously agree as to what criminal act the defendant intended to

commit during the course of the burglary. Id. at ¶ 24-27. The Court declined to find

plain error where “[t]here [was] no suggestion of jury confusion” and “[t]he jury did

not question the meaning of the ‘any criminal offense’ element.” Id. at ¶ 79.

{¶68} The record establishes jury confusion in this case. It does not establish

that the jury understood or was aware of what actions were associated with the counts

for which it returned guilty verdicts. We therefore hold that there is a reasonable

probability that, but for the trial court’s error in failing to provide the jury with final

30 OHIO FIRST DISTRICT COURT OF APPEALS

instructions and/or verdict forms that specified which conduct was the basis of each

count, there is a reasonable probability that the outcome of the proceedings would

have been different.

{¶69} We must stress that we likely would reach a different outcome had the

jury, like the jury in White, found Rodriguez guilty of all charged offenses. In such a

situation, despite the failure of the jury instructions or verdict forms to specify which

act corresponded to which count, there would be no question as to which acts the jury

found the defendant to have committed. But where the jury returns a guilty verdict as

to some, but not all, of the charged offenses, and where the jury exhibits confusion as

to which actions correlate to each count, there is no way for the defendant or a

reviewing court to effectively determine upon which acts the convictions were based.

{¶70} Finally, even if a reviewing court finds plain error, the error should only

be corrected where it “seriously affects the fairness, integrity, or public reputation of

judicial proceedings” or when necessary “to prevent a manifest miscarriage of justice.”

Bond, 2022-Ohio-4150, at ¶ 35. Correction of the error is necessary in this case to

prevent a manifest miscarriage of justice. Rodriguez was found guilty of four counts of

endangering children but is unable to challenge the sufficiency or the weight of the

evidence supporting those convictions on appeal because, as a result of the error that

occurred below, she does not know what acts she stands convicted of. See State v.

Marcum, 166 Wis.2d 908, 925 (Wis.App. 1992) (where defendant was charged with

multiple counts of sexual assault of a juvenile but was only convicted of one count, and

where the jury instructions and verdict forms did not distinguish the defendant’s

illegal acts, the defendant was “prejudiced by not knowing what act he stands

convicted of”); see also Valentine, 395 F.3d at 638 (“The Constitution . . . demand[s]

that if a defendant is going to be charged with multiple counts of the same crime, there

31 OHIO FIRST DISTRICT COURT OF APPEALS

must be some minimal differentiation between the counts at some point in the

proceeding.”). We accordingly hold that the trial court committed plain error when it

failed to provide the jury with final instructions and/or verdict forms that specified

which conduct was the basis of each count of the indictment. Rodriguez’s first

assignment of error is sustained.

D. Retrial is Precluded

{¶71} Rodriguez argues that, as a remedy for the trial court’s error, we must

reverse the trial court’s judgment and hold that retrial is precluded under the doctrine

of double jeopardy. We are constrained to agree.

{¶72} Both the Double Jeopardy Clause, set forth in the Fifth Amendment to

the United States Constitution and applied to Ohio by the Fourteenth Amendment,

and its twin provision in Article 1, Section 10 of the Ohio Constitution, prohibit

prosecuting an individual multiple times for the same offense. State v. Mutter, 2017-

Ohio-2928, ¶ 2. The Double Jeopardy Clause protects against three different types of

abuses: (1) the prosecution of an individual for the same offense after an acquittal, (2)

the prosecution of an individual for the same offense after a conviction, and (3) the

imposition of multiple punishments for the same offense. Id. at ¶ 15, quoting North

Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama

v. Smith, 490 U.S. 794 (1989).

{¶73} As a result of the trial court’s error, Rodriguez does not know which acts

were included in the guilty verdicts and which acts she was acquitted of. As such, if we

were to reverse and remand for a new trial, Rodriguez would face a potential retrial

for acts upon which she has already been acquitted. See Shaw, 2008-Ohio-317, at ¶ 25

(2d Dist.) (Double Jeopardy Clause precluded retrial where “there [was] no way to

know upon which of the charges [defendant] was convicted and upon which of the

32 OHIO FIRST DISTRICT COURT OF APPEALS

charges he was acquitted”); Marcum, 166 Wis.2d at 925 (“Part of our problem is that

we cannot reverse and remand for a new trial on count six because we do not know

what acts were included in the not guilty verdicts of counts four and five. We cannot

order a new trial because Marcum might be retried for acts on which the jury has

already adjudged him not guilty.”).

{¶74} As in Shaw and Marcum, it is not possible to “eliminate the possibility”

that Rodriguez would be retried for an offense upon which she has already been

acquitted. See Shaw at ¶ 25; see also Marcum at 925. We accordingly hold that the

Double Jeopardy Clause precludes retrial for the offenses that are the subject of this

appeal.

III. Ineffective Assistance

{¶75} In her second assignment of error, Rodriguez argues that her trial

counsel was ineffective for failing to object to the jury instructions and verdict forms.

This assignment of error has been rendered moot by our resolution of Rodriguez’s first

assignment of error, and we decline to address it.

IV. Conclusion

{¶76} The trial court committed plain error when it failed to provide the jury

with final instructions and/or verdict forms that specified which conduct was the basis

of each count of the indictment. Because it is impossible to determine which offenses

the jury found Rodriguez to have committed and which offenses resulted in acquittals,

a retrial is precluded by the Double Jeopardy Clause. The trial court’s judgment is

reversed, and Rodriguez is discharged from further prosecution for the offenses that

are the subject of this appeal.

Judgment accordingly.

BERGERON, P.J., concurs.

33 OHIO FIRST DISTRICT COURT OF APPEALS

WINKLER, J., dissents.

WINKLER, J., dissenting.

{¶77} Because Ohio law does not require a trial court to include a defendant’s

alleged conduct in the jury instructions or in the verdict forms in order to differentiate

counts of the indictment, and because the State’s closing argument in this case

included a count-by-count reiteration of the defendant’s conduct for the jury without

any objection by the defendant, the trial court did not commit plain error in failing to

include the defendant’s alleged conduct in the jury instructions or the verdict forms.

Therefore, I dissent.

{¶78} The State indicted defendant-appellant Amy Rodriguez on 11 counts of

child endangering with respect to her stepson, C.D. The bill of particulars listed 11

different “punishments” that Rodriguez had imposed on C.D., but other than one

punishment that differed temporally from the others, the bill of particulars did not

correlate any specific punishment to any specific count in the indictment. The matter

proceeded to a lengthy jury trial where Rodriguez was tried along with her parents.

The jury ultimately acquitted Rodriguez of Counts 1, 3, 5, 7, 8, 9, and 11, and found her

guilty of Counts 2, 4, 6, and 10. Counts 2, 4, 6, and 10 contained the allegations that

Rodriguez had committed child endangering sometime between January 2018 and

April 2021.

{¶79} On appeal, Rodriguez argues that the trial court committed plain error

when it failed to delineate the conduct that allegedly formed the basis of each child-

endangering count either in the jury instructions or the verdict forms. Although

Rodriguez argues that the trial court committed an obvious error in failing to instruct

the jury as to what alleged criminal conduct related to each of the 11 counts, Rodriguez

34 OHIO FIRST DISTRICT COURT OF APPEALS

fails to point to any Ohio law requiring the trial court to do so. Ohio courts have

recognized that due process requires that “‘if a defendant is going to be charged with

multiple counts of the same crime, there must be some minimal differentiation

between the counts at some point in the proceeding[,]’” but that is exactly what

happened in this case when the prosecutor identified the conduct associated with each

count in closing argument. (Emphasis in original.) See State v. Barrett, 2008-Ohio-

2370, ¶ 22 (8th Dist.), quoting Valentine v. Konteh, 395 F.3d 626, 638 (6th Cir.2005);

compare People v. Filipiak, 2023 IL App (3d) 220024, ¶ 16 (“Two sets of identical

verdicts forms were submitted to the jury pertaining to the predatory criminal sexual

assault charges for [the victim], which were not differentiated, except with

parentheticals indicating (“1”) and (“2”). Nor did the State in any way suggest to the

jury at closing which of the verdict forms pertained to which of the alleged acts of

penetration.”).

{¶80} Rodriguez relies on a case from Kentucky, Harp v. Commonwealth, 266

S.W.3d 813, 817 (Ky.2008). In Harp, the Kentucky Supreme Court held that the trial

court erred in instructing the jury on seven identical sexual-abuse charges without

differentiating the counts with testimony from the trial. The Harp court reasoned that

it had “clearly held—before Harp’s trial—that a trial court errs in a case involving

multiple charges if its instructions to the jury fail ‘factually [to] differentiate between

the separate offenses.’” Id., quoting Combs v. Commonwealth, 198 S.W.3d 574, 580

(Ky. 2006). The Harp court also reasoned that “a failure to include proper identifying

characteristics in jury instructions is reversible error, provided that a timely objection

to the error has been made.” Id. at 818.

{¶81} The Ohio Supreme Court has never held that a trial court commits error

when it fails to include the defendant’s alleged conduct in the jury instructions or

35 OHIO FIRST DISTRICT COURT OF APPEALS

verdict forms in order to differentiate identical counts in the indictment, particularly

where, as here, the State differentiated the counts in closing argument in its review of

the detailed testimony of the various forms of abuse to which the victim was subjected.

Even the Kentucky Supreme Court in Harp recognized that the trial court’s failure to

include differentiating facts in the jury instructions constituted reversible error where

the defendant objected at trial. Id. Here, no objection was made.

{¶82} The only Ohio case relied on by the majority is State v. Shaw, 2008-

Ohio-1317 (2d Dist.). In Shaw, the State indicted the defendant on 15 counts of rape

and ten counts of sexual battery related to his three minor daughters. The jury found

the defendant guilty of some charges and not guilty on most of the charges. The

appellate court sustained Shaw’s first assignment of error on the basis of prejudicial,

other-acts evidence admitted at trial. In Shaw’s second assignment of error, he argued

that his due-process rights were violated because his offenses were not charged with

sufficient specificity. The appellate court rejected Shaw’s argument that the

indictment was insufficient, but the court nevertheless determined that it would be

impossible on retrial to ensure that Shaw was not being tried for an offense of which

he had been acquitted, because the proceedings did not differentiate which specific

facts applied to which charge either before or during trial. Unlike Shaw, any double-

jeopardy concern in this case is purely speculative.

{¶83} Rodriguez argues that her due-process rights have been violated

because she has lost the means to effectively appeal her convictions on manifest-

weight or sufficiency grounds. First, Rodriguez can rely on the State’s theory of the

case in closing argument to correlate the counts in the indictment with the verdicts.

Second, Rodriguez has not even attempted to formulate any challenges to the weight

or sufficiency of the evidence with respect to any of the counts. Rodriguez’s defense at

36 OHIO FIRST DISTRICT COURT OF APPEALS

trial was that none of these “punishments” occurred, and that C.D. was lying.

{¶84} In conclusion, I would hold that the trial court did not commit plain

error by failing to include Rodriguez’s alleged conduct in the jury instructions or

verdict forms. I would also overrule Rodriguez’s second assignment of error pertaining

to ineffective assistance of counsel. Therefore, I would affirm Rodriguez’s convictions,

and I respectfully dissent.

Please note:

The court has recorded its entry on the date of the release of this opinion.