State v. Rose

2012 Ohio 5607

• Court: Ohio Court of Appeals
• Decided: December 3, 2012
• Docket: CA2011-11-214
• Status: Published

Opinion

[Cite as State v. Rose, 2012-Ohio-5607.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NO. CA2011-11-214 Plaintiff-Appellee, : OPINION : 12/3/2012 - vs - :

JAMES E. ROSE, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2010-11-1841

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Neal D. Schuett, 121 West High Street, Oxford, Ohio 45056, for defendant-appellant

S. POWELL, P.J.

{¶ 1} Defendant-appellant, James E. Rose, appeals his conviction and sentence in

the Butler County Court of Common Pleas for rape, kidnapping, and assault.

{¶ 2} The testimony at trial revealed that in the early morning hours of November 7,

2010, Officer Kevin Ruhl responded to the Firehouse Café in Hamilton, Ohio, regarding a Butler CA2011-11-214

reported sexual assault.1 Upon his arrival, Officer Ruhl spoke with T.N. She was crying.

"Her hands were shaking, and she had a real hard time getting her words out." T.N. told

Ruhl that she was "raped and pulled or dragged to the area where the act took place." T.N.

then led Officer Ruhl from the rear of the bar through a gap in a wooden enclosed fenced-in

parking lot. T.N. stated that the rape occurred on the hood of a car located in the parking lot.

Officer Ruhl stated that he could tell that there had been dust on the car, but it had been

disturbed as though there had been some type of movement on top of the vehicle. T.N.

explained that the perpetrator was a regular at the bar, but she did not know his name.

However, she described the perpetrator as a white male dressed in jeans and a "white

hoodie." Another officer, Officer Tom Hurst, reported that he had an individual in custody

who matched the description of the suspect given by T.N. Officer Ruhl then transported T.N.

to the location where she positively identified Rose as the person who raped her.

{¶ 3} Also during the early morning hours of November 7, 2010, Nicole Velde was

walking with Chance Whitlock along High Street in Hamilton to a BP gas station to purchase

cigarettes. On their way back from the gas station, the two encountered Rose. At trial, Velde

testified that as she and Whitlock walked past Rose he asked if he could use one of their

cellular telephones. Velde did not know Rose, but agreed to let him use her telephone.

Velde and Whitlock followed behind Rose as he made his phone call. According to Velde, at

some point, Whitlock received a phone call from his girlfriend and left Velde. Once Rose

completed his call, he returned the telephone to Velde. At that time, Velde received a call

from Whitlock telling her to "get away from [Rose] because the police were looking for him."

Velde then attempted to head back to her apartment when Rose said to her, "no you're not,

bitch, you are coming with me," and he grabbed her scarf and dragged her about three or

1. The record also refers to this location as "Bill's Firehouse Café." For ease of discussion, we will refer to it as the Firehouse Café. -2- Butler CA2011-11-214

four feet. Velde, however, slid out of her scarf. According to Velde, Rose then punched her

in the nose, she fell to the ground, and he then ran away. As a result of Rose's punch,

Velde's nose and upper lip bled. She did not go to the hospital or seek any other medical

treatment. Velde also identified Rose as her attacker that morning when Officer Tom Hurst

brought Rose by her residence. Velde identified Rose shortly after T.N. had identified him as

the man who raped her.

{¶ 4} Rose was arrested and indicted for rape in violation of R.C. 2907.02(A)(2),

kidnapping in violation of R.C. 2905.01(A)(4), abduction in violation of R.C. 2905.02(A)(2),

and assault in violation of R.C. 2903.13(A). Counts one and two for rape and kidnapping

related to Rose's encounter with T.N., and counts three and four for abduction and assault

resulted from his interaction with Velde. Prior to trial, Rose moved to sever counts one and

two from counts three and four. The trial court denied the motion.

{¶ 5} On June 29, 2011, a jury trial commenced on all four counts. The state made

its opening statements and presented the testimony of T.N. The following day, the trial

judge, Judge Patricia Oney became incapacitated as a result of a medical emergency and

was unable to proceed with the trial. The administrative judge of the Court of Common Pleas

General Division, Judge Charles Pater, after holding a hearing, declared a mistrial and

ordered a new trial date be scheduled. Following the mistrial, Rose filed an objection to the

new trial date. The objection was denied. Rose then moved to dismiss the matter based on

double jeopardy. The court held a hearing, but ultimately denied the motion to dismiss. A

second jury trial commenced on August 31, 2011.

{¶ 6} During a three-day jury trial, the state first presented testimony from T.N. and

her boyfriend, Brad Coffey, who was also at the Firehouse Café that night. The state then

presented testimony from Velde and Whitlock as to the charges for abduction and assault.

Several of the responding officers from the City of Hamilton Police Department testified, as -3- Butler CA2011-11-214

well as Hamilton Police Detective Paul Davis. The jury also heard testimony from Charlene

Wooten, a sexual assault nurse examiner with the Butler County Sexual Assault Nurse

Examiner Program (SANE) and Adam Garver, a forensic scientist in the DNA Section of the

Ohio Attorney General's Office, Bureau of Criminal Identification and Investigation. In his

defense, Rose called multiple family and friends who were also at the Firehouse Café the

night of November 6, 2010, and into the early morning hours of November 7, 2010.

{¶ 7} The jury ultimately found Rose guilty of the rape and kidnapping of T.N. and the

assault of Velde, but not guilty of the abduction of Velde. On November 8, 2011, the trial

court imposed an aggregate sentence of 15 years. Rose now appeals asserting seven

assignments of error for our review.

{¶ 8} Assignment of Error No. 1:

{¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELANT BY OVERRULING HIS MOTION TO SEVER COUNTS ONE AND TWO FROM

COUNTS THREE AND FOUR.

{¶ 10} In his first assignment of error, Rose challenges the trial court's ruling denying

his motion to sever. Rose contends the cumulative effect of joining the offenses at trial

allowed the evidence of the rape and kidnapping involving T.N. to prejudice the jury regarding

the assault and abduction of Nicole Verde. We find Rose's arguments are without merit.

{¶ 11} The decision to grant or deny a motion to sever is a matter in the trial court's

discretion, and therefore, we review the trial court's decision under an abuse of discretion

standard. State v. Moshos, 12th Dist. No. CA2009-06-008, 2010-Ohio-735, ¶ 76. An abuse

of discretion implies that the trial court's decision was unreasonable, arbitrary, or

unconscionable. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.

{¶ 12} "The law favors joining multiple offenses in a single trial under Crim.R. 8(A) if

the offenses charged 'are of the same or similar character.'" State v. Lott, 51 Ohio St.3d 160, -4- Butler CA2011-11-214

163 (1990), quoting State v. Torres, 66 Ohio St.2d 340 (1981). However, a defendant is

allowed, under Crim.R. 14, to move to sever offenses that have otherwise been properly

joined where it appears that joinder would be prejudicial. State v. Ashcraft, 12th Dist. No.

CA2008-12-305, 2009-Ohio-5281, ¶ 14, citing State v. Schaim, 65 Ohio St.3d 51, 58 (1992).

{¶ 13} To prevail on a claim that the trial court erred in denying a motion to sever, the

appellant must affirmatively demonstrate that "(1) his rights were prejudiced, (2) he provided

the trial court with sufficient information enabling it to weigh the considerations favoring

joinder against the defendant's right to a fair trial, and (3) the trial court abused its discretion

in refusing to separate the charges for trial." Ashcraft at ¶ 15, citing Schaim at 59.

{¶ 14} The state may negate a claim of prejudice in one of two ways. The first is

through the "other acts" test, where the "state must demonstrate it could have introduced

evidence of the joined offenses at separate trials, pursuant to the "other acts" provision of

Evid.R. 404(B)". Ashcraft at ¶ 16, citing Lott at 163. Alternatively, under the "joinder test" the

state can refute a claim of prejudice by showing "that evidence of each crime joined at trial is

simple and direct." Moshos at ¶ 79. If the state can establish that the evidence is "simple

and direct" then there is no need to meet the stricter "other acts" test. State v. Hensley, 12th

Dist. No. CA2009-11-156, 2010-Ohio-3822, ¶ 40. In other words, "[a] showing by the state

that the evidence relating to each crime is simple and direct negates any claims of prejudice

and renders joinder proper." Moshos at ¶ 80, quoting State v. Bice, 12th Dist. No. CA2008-

10-098, 2009-Ohio-4672, ¶ 53.

{¶ 15} In the present case, the trial court determined joinder was permissible as the

evidence was simple and direct. Prior to making this determination, the trial court held a

hearing where it heard testimony from both victims in this case. Based on the testimony

presented at the hearing, the court stated:

I haven't heard anything that indicates to me that this evidence is -5- Butler CA2011-11-214

not simple and direct. It certainly is. * * *

There's no basis for a jury to be confused. * * * We have in front of us two adults testifying about two separate incidents that occurred within a reasonable short period of time with some similarities. And that is the act of violence as you say, Mr. Adams, the act of force being used on each, the attempt – the act of physically dragging in the first victim into an area where she could be sexually assaulted and the attempt to drag a second victim who got away.

Based upon what I heard, I haven't heard anything that demonstrate[s] that this Court should sever.

{¶ 16} We agree with the conclusion of the trial court that the evidence in this case was

simple and direct such that Rose was not prejudiced by the joinder of the offenses in one trial.

{¶ 17} At trial, during its opening and closing statements, the state presented an

organized, chronological overview of the facts as to each of the offenses alleged by the two 2 victims. See Moshos at ¶ 82; Ashcraft at ¶ 20. During trial, the state presented the

testimony of each victim who provided detailed testimony as to her interactions with Rose on

the night in question. See Ascraft at ¶ 21. The remaining witnesses provided evidence that

was victim specific and could easily be segregated and was unlikely to confuse the jury. See

Moshos at ¶ 82; Ashcraft at ¶ 23.

{¶ 18} Rose asserts that several witnesses, who were only testifying as to the

abduction and assault of Velde, made numerous references to the rape allegations and that

such references allowed the jury to "cumulate evidence of [the] jointly tried offenses."

However, after reviewing the record, we find that only Whitlock and Officer Hurst specifically

referred to the rape during their testimony relating to the charges involving Velde. Whitlock

2. Specifically, during opening statements the prosecutor stated the following:

[T.N.] was raped. She was kidnapped. She was restrained of her liberty. She was moved from one place to the other for the purpose of committing sexual – a sexual offense, and in this case, rape. And 20 to 25 minutes later, he's on the west side of Hamilton where he abducts, tries to take – remove Nicole Velde from the place where she was, seven or eight feet. He pulls her along, and being -6- Butler CA2011-11-214

stated during direct examination that the police stopped him, provided a description of Rose,

and asked if he had seen him. Whitlock explained that the police told him that the man they

were looking for was wanted for rape. However, the remainder of the testimony elicited from

Whitlock was specific to Velde. Officer Hurst's testimony described the sequence of events

prior to taking Rose into custody. He explained that after placing Rose under arrest, he was

present when T.N. was brought to the scene and positively identified Rose as the person who

raped her. Hurst then explained that a male came running up to him stating that Rose had

assaulted his friend. He then transported Rose to another location where a female identified

Rose as the person who assaulted her. Whitlock and Officer Hurst both referenced the rape

while providing background information of the events that took place between the two

incidents. We do not find that these references to the rape charge were enough to

demonstrate that the jury improperly cumulated the evidence and relied on the evidence of

the rape to convict on the charges relating to Velde. In fact, the jury acquitted Rose of the

abduction of Velde. Such a finding demonstrates that evidence pertaining to each victim and

each offense was easily segregated and did not confuse the jury.

{¶ 19} Furthermore, the trial court provided a limiting instruction to the jury that

required it to consider the charges against Rose as separate matters. See Moshos at ¶ 84,

citing State v. Franklin, 62 Ohio St.3d 118, 123 (1991). The court stated:

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 the other counts. The Defendant may be found guilty or not guilty of any one or all of the offenses charged. (Sic.)

unsuccessful in completing that, the mission of his abduction, and her ability to escape, assaults her by inflicting injury to her nose. -7- Butler CA2011-11-214

{¶ 20} A jury is presumed to have followed the trial court's instructions, and there is

nothing in the record to indicate that the jury failed to do so in this case. Moshos at ¶ 88.

{¶ 21} Finally, Rose argues that he would have defended the offenses differently had

the court granted the motion to sever; however, he fails to explain how he would have

defended the charges differently had they been tried separately. A trial court does not abuse

its discretion in denying a motion to sever where there is sufficient evidence to sustain each

verdict and there is no indication that the defendant would have defended the charges

differently had they been tried separately. Moshos at ¶ 83; see also State v. Franklin, 62

Ohio St.3d 118, 123 (1991). In this case, not only is there no indication that Rose would

have defended the charges differently, the state presented extensive evidence detailing

Rose's unwanted acts committed against both T.N. and Velde.

{¶ 22} Based upon the foregoing, we find the trial court did not err in denying Rose's

request for severance where the evidence concerning each offense was simple and direct.

Rose's first assignment of error is overruled.

{¶ 23} Assignment of Error No. 2:

{¶ 24} THE TRIAL COURT ERRED IN RETRYING THE DEFENDANT AS THE

SECOND TRIAL WAS BARRED BY DOUBLE JEOPARDY WHEN THE FIRST TRIAL

RESULTED IN A MISTRIAL.

{¶ 25} In his second assignment of error, Rose argues that the trial court erred in

declaring a mistrial, and as a result, double jeopardy attached thereby barring his second

trial. Rose asserts that there was not a manifest necessity to order a mistrial in this case

because Crim.R. 25(A) permitted the trial to continue with a substitute judge. Rose further

argues that the "record indicates that while the parties and the court knew a less prejudicial

remedy existed in Crim.R. 25(A), no attempt was made to actually apply the rule." After a

review of the record, we find no merit to Rose's arguments. -8- Butler CA2011-11-214

{¶ 26} The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution, applicable to the states via the Fourteenth Amendment, ensures that a state

may not put a defendant in jeopardy twice for the same offense. State v. Gunnell, 132 Ohio

St.3d 442, 2012-Ohio-3236, ¶ 25, citing Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056

(1969). The Double Jeopardy Clause also provides a criminal defendant with the right "to

have his trial completed by a particular tribunal." Gunnell at ¶ 25, quoting Wade v. Hunter,

336 U.S. 684, 689, 69 S.Ct. 834 (1949). Accordingly, a defendant's rights under the Double

Jeopardy Clause are frustrated by any mistrial. Gunnell at ¶ 25, citing Arizona v.

Washington, 434 U.S. 497, 505, 98 S.Ct. 824 (1978). However, there may be some

situations where these rights are subordinated to the public's interest in fair trials and just

judgments. State v. Kersey, 12th Dist. No. CA2008-02-031, 2008-Ohio-6890, ¶ 7.

{¶ 27} Where a mistrial has been declared without the defendant's request or consent,

double jeopardy will not prohibit retrial if (1) there is a manifest necessity or a high degree of

necessity for ordering a mistrial, or (2) the ends of public justice would otherwise be defeated.

Kersey at ¶ 8, quoting Widner at 189-90; see also Arizona v. Washington, 434 U.S. 497, 98

S.Ct. 824. A trial court is afforded great discretion in determining whether a mistrial is

appropriate as the trial court is in the best position to determine whether the situation

warrants a mistrial. Kersey at ¶ 8, citing State v. Glover, 35 Ohio St.3d 18, 19 (1988).

Therefore, a reviewing court may not reverse a trial court's decision to grant a mistrial absent

an abuse of discretion. State v. Motz, 12th Dist. No. CA2009-10-137, 2010-Ohio-2170, ¶ 12.

{¶ 28} If the possibility of a mistrial arises due to the original judge's inability to

complete a jury trial, one alternative to a mistrial is the use of a substitute judge. Crim.R.

25(A) addresses the use of a substitute judge before a verdict in a jury trial, and it states:

If for any reason the judge before whom a jury trial has commenced is unable to proceed with the trial, another judge designated by the administrative judge * * * may proceed with -9- Butler CA2011-11-214

and finish the trial, upon certifying in the record that he has familiarized himself with the record of the trial. If such other judge is satisfied that he cannot adequately familiarize himself with the record, he may in his discretion grant a new trial.

{¶ 29} Although Crim.R. 25(A) permits the substitution of judges after trial has begun,

substitution should be employed only in extraordinary circumstances where no prejudice

results. Kersey at ¶ 9, citing State v. McKinley, 7 Ohio App.3d 255, 258 (8th Dist.1982).

Additionally, the record "preferably, should stipulate that the defendant consents to the

substitution." McKinley at 258. However, the defendant's consent is not required for the

substitution to occur as long as the court fully complies with Crim.R. 25(A). Id.

{¶ 30} In this case, it appears that the possibility of a mistrial arose on the second day

of Rose's jury trial when the original judge, Judge Oney, became incapacitated and it

appeared that she was not going to be able to proceed for the next few days. The

administrative judge, Judge Pater, held a hearing to determine whether the trial could

continue in Judge Oney's absence. At this hearing, Judge Pater specifically discussed

Crim.R. 25 with the parties.

{¶ 31} Judge Pater inquired as to whether the state and Rose consented to his

substitution such that he would preside over the remainder of the trial. The state consented

to Judge Pater presiding over the remainder of the trial, but Rose, through his counsel, stated

that he did not consent to Judge Pater's substitution. Noting Rose's objection, the judge then

explained that he did not feel that he was adequately familiar with the record of the case.

Judge Pater also noted that he was only recently made aware of the charges in the case, he

was not given a transcript of the testimony of the victim who had testified the day before, and

he noted the sheer volume of the record. Apart from his "cautions about proceeding without

the consent of the defendant," Judge Pater stated he did not feel adequately familiarized with

the record. He therefore declared a mistrial and granted a new trial pursuant to Crim.R.

- 10 - Butler CA2011-11-214

25(A).

{¶ 32} In both his motion to dismiss and argument on appeal, Rose attempts to

characterize his lack of consent to the use of a substitute judge as an objection to Judge

Pater's failure to follow the requirements of Crim.R. 25. However, Rose's argument on

appeal is not the same argument he presented at the hearing declaring a mistrial.

{¶ 33} Immediately after the trial court declared a mistrial, defense counsel placed his

reasoning for his lack of consent on the record:

I want to make the record clear that one of the basis for that objection was the fact that, I believe, in order to adequately familiarize yourself with the record, you would have had to observe the demeanor of the State's witness, [T.N.], who was the complaining witness on the rape and kidnapping, and two most serious charges that my client faces.

There is no way that you could have been able to actually achieve that because we don't have the video here where you would have been able to observe her demeanor, and heard her testimony and her interactions with the exhibits, and that's one of the basis for our lack of consent.

The other one is, Your Honor, that from our standpoint, we have a number of witnesses that we had scheduled to testify. One of those witnesses we know would not be available tomorrow, which is essentially when we would now be able to put our case on. * * * and that was another reason why we withdrew our consent.

{¶ 34} As the record illustrates, Rose objected to Judge Pater's substitution as he felt

that the judge could not become adequately familiar with the record as he was unable to

observe T.N.'s testimony. Furthermore, Rose argued that he would be prejudiced if the case

continued with Judge Pater presiding as it would effectively prevent him from presenting

certain witnesses' testimony due to scheduling issues. Rose did not argue that Judge Pater

should not sit as a substitute judge because he had failed to comply with Crim.R. 25.

Instead, he objected to the judge's substitution as a whole and, in effect, requested the judge

declare a mistrial. - 11 - Butler CA2011-11-214

{¶ 35} The double jeopardy clause does not bar a retrial when the trial court grants a

criminal defendant's request for a mistrial. State v. Leece, 12th Dist. CA89-06-084, 1990 WL

49993, *2 (Apr. 23, 1990), citing Oregon v. Kennedy, 456 U.S. 66, 672-673, 102 S.Ct. 2083

(1982). Similarly, the double jeopardy clause does not bar a retrial when the defendant

acquiesces, but does not specifically request a mistrial and the substitute judge finds that he

is unable to comply with Crim.R. 25(A). After a review of the record, we find that Rose

acquiesced to the mistrial. At the time the parties were discussing the mistrial and when

Judge Pater granted the mistrial, Rose did not voice any objection. He also did not object

when the judge requested the parties to reschedule the trial. In fact, Rose's counsel

indicated that Judge Oney's secretary would have a calendar in which they could tentatively

set a three-day trial. Rose waited until July 8 – eight days after the trial court declared the

mistrial – to object to the new trial. He cannot now argue on appeal that it was in error for the

judge to declare a mistrial as that is exactly what he requested the judge to do.

{¶ 36} Furthermore, we find that the trial court did not abuse its discretion in finding

there was a manifest necessity for declaring the mistrial. The record illustrates that the trial

court's reasoning for granting this mistrial was to protect Rose's right to a fair trial. Judge

Pater found that he was unable to adequately familiarize himself with the entire record as

required by Crim.R. 25(A). Additionally, Rose indicated that he would be further prejudiced

by the continuation of the trial with Judge Pater presiding as it would result in scheduling

conflicts for his witnesses. Therefore, we find that the trial court did not abuse its discretion

in finding that his substitution and the resulting continuation of the trial would prejudice Rose.

{¶ 37} Based upon our findings that Rose acquiesced to the mistrial and that the trial

court did not abuse its discretion in declaring a mistrial, we find that Rose's second trial was

not barred by double jeopardy. Accordingly, Rose's second assignment of error is overruled.

{¶ 38} Assignment of Error No. 3: - 12 - Butler CA2011-11-214

{¶ 39} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN

OVERRULING HIS OBJECTION TO THE ADMISSION OF HEARSAY STATEMENTS INTO

EVIDENCE.

{¶ 40} In his third assignment of error, Rose challenges the admission of a portion of

Exhibit 14, the sexual assault report completed by Charlene Wooten, the SANE nurse

examiner. The report contained a transcription of statements T.N. made during Wooten's

examination of her on November 7, 2010. On appeal, Rose only challenges the transcription

of T.N.'s statements contained within the exhibit. Rose argues that the statements T.N.

made during the examination were hearsay and were not made for the purposes of medical

diagnosis or treatment, and therefore did not fall within the hearsay exception under Evid.R.

803(4).

{¶ 41} As the trial court possesses broad discretion with respect to the admission or

exclusion of evidence, a reviewing court applies an abuse of discretion standard. State v.

Gray, 12th Dist. No. CA2011-09-176, 2012-Ohio-4769, ¶ 39, citing State v. Robb, 88 Ohio

St.3d 59, 68 (2000). Hearsay is an out of court statement offered to prove the truth of the

matter asserted. Evid.R. 801(C). Generally, hearsay is not admissible unless the statement

falls under some exception to the hearsay rule. Evid.R. 802. Evid.R. 803(4) allows, as an

exception to the hearsay rule, the admission of statements that are made for medical

treatment or diagnosis. State v. Wagers, 12th Dist. CA2009-06-018, 2010-Ohio-2311, ¶ 51.

Pursuant to Evid.R. 803(4), "[s]tatements made for purposes of medical diagnosis or

treatment and describing medical history, or past or present symptoms, pain, or sensations,

or the inception or general character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment" are admissible.

{¶ 42} In sexual assault cases such as the case at bar, there is often testimony from a

sexual assault nurse. Similar to the dual role of a social worker interviewing a child who may - 13 - Butler CA2011-11-214

be a victim of sexual abuse, these nurses often perform a dual role involving both medical

diagnosis and treatment and the investigation and gathering of evidence. See State v.

Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, ¶ 33 (acknowledging the dual role of the social

worker in interviewing a child who may be a victim of sexual abuse from both an investigatory

and medical perspective). Only those statements made for the purpose of diagnosis and

treatment are admissible under Evid.R. 803(4). See Arnold at ¶ 28; State v. Muttart, 116

Ohio St.3d 5, 2007-Ohio-5267, ¶ 47. Accordingly, the salient inquiry when determining

whether a hearsay statement is admissible under Evid.R. 803(4), is whether the statement

was made for purposes of diagnosis or treatment rather than for some other purpose. See

Muttart at ¶ 47. One such "other purpose" is the gathering of forensic information to

investigate and potentially prosecute a defendant. Arnold at ¶ 33. To the extent that a

victim's statement to a nurse is for investigative purposes in furtherance of such criminal

prosecution, the statements will not fall within the hearsay exception under Evid.R. 803(4).

Rather, such statements are considered "testimonial" and implicate the Confrontation

Clause. Arnold at ¶ 28, citing State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, ¶ 2.

{¶ 43} During trial, Wooten explained that:

the purpose of a sexual assault nurse examiner is to collect specimens that is [sic] requested by the State attorney general's office kit along with the BCI, which is the crime lab up in London. They form a kit, and we collect specimens for that kit along with any type of history and everything from any patient who comes in saying that she was assaulted. * * * We are there only to collect the specimens, and to listen to her story and chart everything down verbatim as she tells us.

{¶ 44} Wooten explained that she is not there to counsel the victim. Wooten testified

that she explains her purpose and the purpose of the kit to the victim and then she obtains

the victim's consent to collect any type of specimens that are required for the kit. Wooten

explained that she takes a "history from the patient" and that this must be written down

- 14 - Butler CA2011-11-214

verbatim. Wooten further explained that she also asks whether there was any penile

penetration in the vagina or if there was any other object inserted in the vagina or rectal area,

and whether or not the victim had scratched or hit the perpetrator as this would "be passed

onto the police to help identify" the perpetrator.

{¶ 45} Wooten did not testify as to the contents of the narrative in her report that she

took from T.N. that night. However, Wooten's report, including T.N.'s narrative, was admitted

as an exhibit. The narrative stated, in pertinent part: "He grabbed me by my hair and pulled

me across the parking lot and took me to a car lot. He undid my belt buckle and pulled my

[sic] down. I told him to stop. Then he took his penis out and put it inside of me. I was

standing and he pushed me up against a car. Then he pulled me onto the ground. I kept

telling him to stop but he wouldn't."

{¶ 46} Based on Wooten's testimony, it appears that her role was merely for

investigative and evidence gathering purposes. Specifically, when the state asked whether

she provides counsel for the victim she answered in the negative. Furthermore, from

Wooten's testimony it appears that she explained, and T.N. would have understood, that her

purpose of performing the examination and collecting specimens for the kit was to help the

police "identify" and potentially later prosecute the perpetrator. Additionally, as Rose is only

challenging T.N.'s narrative, we can find little evidence to suggest that this statement aided in

any sort of diagnosis or medical treatment of T.N. Rather, after a review of the narrative, the

details provided by T.N., such as where the rape took place, how the perpetrator forced her

to the parking lot, and that she asked him to "stop," were not for the purpose of medical

treatment, but rather relate primarily to the investigation of Rose. Based on the foregoing, we

are obligated to find that the narrative contained within Wooten's report would not fall within

the hearsay exception under Evid.R. 803(4). However, this is not meant to say that all

reports and narratives by SANE nurses will be considered inadmissible hearsay. In this case

- 15 - Butler CA2011-11-214

and on these facts, we cannot say that the narrative was for the purposes of diagnosis or

treatment, but rather the statement was for investigative purposes. Accordingly, we find that

the trial court's admission of Wooten's report, without redacting T.N.'s narrative statement

was in error. However, as discussed below, the admission of these hearsay statements did

not violate Rose's confrontation rights, and otherwise constituted harmless error, therefore

we do not find that reversal is required.

{¶ 47} Although not argued by Rose, the testimonial nature of the improperly admitted

hearsay statements by T.N. raises the issue of the Confrontation Clause. In this case,

however, T.N., the declarant, testified at trial and was subject to cross-examination.

Therefore, Rose was able to cross-examine T.N. and his confrontation rights were not

violated. See State v. Gray, 12th Dist. No. CA2011-09-176, 2012-Ohio-4769, ¶ 48 (noting

that when the declarant is present at trial and subject to cross-examination, the Confrontation

Clause presents no constraints on the use of the prior testimonial statement). Moreover,

Wooten was also present at trial and Rose was entitled to cross-examine Wooten on her

transcription of T.N.'s statements.

{¶ 48} Additionally, the error in admitting the narrative of T.N. contained in Exhibit 14

was harmless pursuant to Crim.R. 52(A), as it was merely cumulative to the admissible

testimony of T.N. State v. Kingery, 12th Dist. CA2009-08-014, 2010-Ohio-1813, ¶ 35, citing

State v. Fears, 86 Ohio St.3d 329 (1999) (witness' testimony was cumulative and constituted

harmless error because the error did not contribute to the verdict). T.N. took the stand and

provided substantial testimony regarding the events of the night including what she detailed

to Nurse Wooten. Further, the defense conducted a substantial cross-examination as to

T.N.'s multiple statements regarding her interaction with Rose. Accordingly, the jury was able

to independently assess her credibility. State v. Cappadonia, 12th Dist. No. CA2008-11-138,

2010-Ohio-494, ¶ 20. As a result, it cannot be said that the result of the trial would have - 16 - Butler CA2011-11-214

been otherwise absent the inclusion of the narrative contained in Wooten's report. We

therefore find that the trial court's error in admitting the narrative in Exhibit 14 was harmless.

Rose's third assignment of error is overruled.

{¶ 49} Assignment of Error No. 4:

{¶ 50} THE TRIAL COURT ERRED AND DENIED APPELLANT A FAIR TRIAL IN

VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION WHEN IT LIMITED COUNSEL'S OPPORTUNITY TO PRESENT

A CLOSING ARGUMENT PRIOR TO THE JUDGMENT OF THE JURY TRIAL.

{¶ 51} Rose argues in his fourth assignment of error that the trial court erred when it

placed a time constraint on his closing arguments.

{¶ 52} "It is well established that the time allowed for closing argument is within the

sound discretion of the trial court." State v. Jenkins, 15 Ohio St.3d 164, 221 (1984). The trial

court is entitled to limit closing arguments as long as such limitation is reasonable under the

circumstances. State v. Ferrette, 18 Ohio St.3d 106, 110 (1985). Accordingly, we will not

reverse the trial court's decision limiting closing arguments absent an abuse of discretion.

State v. Parrot, 12th Dist. No. CA97-11-114, 1998 WL 526545, *2 (Aug. 24, 1998).

{¶ 53} The record reveals that during an objection to defense counsel's closing

argument, the trial court inquired how much longer the argument would take. Counsel

responded that he had "a lot to work with" and still had "a while" as he had not even

discussed the third and fourth counts regarding Velde. The court responded, "[t]his is a half-

hour. It is done when you are done." The record indicates that counsel continued his

argument at 11:17 a.m. and voluntarily concluded at 11:42 a.m. Therefore, it appears that

counsel did not utilize the full 30 minutes given by the trial court. There is also nothing in the

record to suggest that counsel was in any way prevented from presenting a full closing

argument. Accordingly, we are unconvinced that the trial court abused its discretion when it - 17 - Butler CA2011-11-214

placed a time limit on the remainder of counsel's closing argument. Moreover, counsel

voiced no objection to the trial court's imposition of a 30-minute limitation, but rather he

simply continued with his closing argument and voluntarily concluded before the expiration of

the 30 minutes. Thus, Rose waived his right to object to this alleged error. Ferrette at 110.

{¶ 54} Rose's fourth assignment of error is overruled.

{¶ 55} Assignment of Error No. 5:

{¶ 56} THE MANIFEST WEIGHT OF THE EVIDENCE DID NOT SUPPORT A

FINDING OF GUILT AGAINST DEFENDANT-APPELLANT FOR RAPE AND KIDNAPPING.

{¶ 57} In his fifth assignment of error, Rose challenges his convictions for rape and

kidnapping claiming they were against the manifest weight of the evidence.

{¶ 58} A manifest weight challenge concerns the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.

State v. Marcum, 12th Dist. No. CA2012-03-054, 2012-Ohio-5007, ¶ 11. A court considering

whether a conviction is against the manifest weight of the evidence must review the entire

record, weigh the evidence and all reasonable inferences and consider the credibility of the

witnesses. State v. Bryant, 12th Dist. No. CA2009-11-277, 2010-Ohio-4801, ¶ 13, citing

State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 39. Although this type of review

permits a reviewing court to consider the credibility of witnesses, the review must

nevertheless be tempered by the principle that weight and credibility issues are primarily

matters for the trier of fact to decide. State v. Kash, 12th Dist. No. CA2002-10-047, 2004-

Ohio-415, ¶ 25, citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the

syllabus. Consequently, an appellate court will overturn a conviction due to the manifest

weight of the evidence only in extraordinary circumstances to correct a manifest miscarriage

of justice, and only when the evidence presented at trial weighs heavily in favor of acquittal.

State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). - 18 - Butler CA2011-11-214

{¶ 59} Rose was convicted of one count of rape, pursuant to R.C. 2907.02(A)(2),

which states: "No person shall engage in sexual conduct with another when the offender

purposely compels the other person to submit by force or threat of force." Rose was also

charged with kidnapping, in violation of R.C. 2905.01(A)(4), which states in pertinent part:

"No person, by force, threat, or deception, * * * shall remove another from the place where

the other person is found or restrain the liberty of the other person * * * [t]o engage in sexual

activity, as defined in section 2907.01 of the Revised Code, with the victim against the

victim's will." Sexual activity includes vaginal intercourse between a male and female. R.C.

2907.01(A)(C).

{¶ 60} Rose's argument that his conviction is against the manifest weight of the

evidence is premised upon the assertion that T.N.'s testimony was not credible as she was

impeached on multiple occasions through inconsistent statements. He alleges that the

greater weight of the evidence suggested a consensual sex act occurred between him and

T.N. Specifically, he argues that the physical evidence did not support the convictions for

rape and kidnapping, but rather the evidence was "equally consistent with consensual sexual

relations."

{¶ 61} T.N. testified on direct examination that sometime after midnight, Rose

motioned for her to go outside. T.N. complied and followed Rose outside. When she exited

the bar, Rose was standing there; he grabbed her hair, and put his hand over her mouth. He

told her not to scream. T.N. explained that Rose then "forced her over to the parking lot"

which contained broken down cars. According to T.N., this parking lot was "a little ways away

from the bar" and Rose pushed her through a gap between a chain linked fence and a

privacy fence that separated the parking lot from the area where the bar was located. Once

the two arrived at this parking lot, T.N. testified that Rose pushed her against the hood of a

car, pulled her pants and underwear down to her ankles, and then penetrated her vagina with - 19 - Butler CA2011-11-214

his penis. She says Rose then turned her over on her stomach on the hood of the car, and

again penetrated her. Navey says that she did not scream or fight back at this point but cried

because she "didn't want to get hurt." Rose then put her on the ground and penetrated her

again. After headlights shined through the fence, T.N. testified that Rose said, "oh shit," got

up and took off towards High Street in Hamilton.

{¶ 62} After reviewing the record, it is clear that there were some inconsistencies in

several of the details provided by T.N. as to her encounter with Rose that night. For

example, there appears to be some inconsistency as to which penetration occurred first,

whether her hair was down or in a ponytail, whether she had met or talked to Rose

previously, or whether she was sitting or standing when Rose pulled down her pants. While

these facts may create a conflict in the evidence or call into question T.N.'s credibility, the

credibility of the witnesses and weight to be given to their testimony are ultimately matters for

the trier of fact to resolve. State v. Amburgey, 12th Dist. No. CA2005-01-007, 2006-Ohio-

1000, ¶ 6, citing State v. DeHass, 10 Ohio St.2d 230, 231 (1967). The jury was free to

believe all, part of, or none of T.N.'s testimony. See State v. Widmer, 12th Dist. No. CA2011-

03-027, 2012-Ohio-4342, ¶ 107.

{¶ 63} Although corroborating evidence of a victim's testimony is not required in a rape

case, a review of the record provides additional evidence the jury could have relied upon in

finding Rose guilty of kidnapping and raping T.N. State v. Johnson, 112 Ohio St.3d 210,

2006-Ohio-6404, ¶ 53.

{¶ 64} Several witnesses testified to seeing Rose and T.N. exit the bar around the

same time. As mentioned above, T.N. testified that Rose "dragged her" from the bar through

a privacy fence over to an adjacent parking lot. Detective Davis estimated that the distance

between the bar and this parking lot was about 75 yards. Davis also testified he noted that

frost on the car which T.N. identified as where the rape occurred had been disturbed. He - 20 - Butler CA2011-11-214

testified that "the striations in [the frost] indicated that there had been some movement on the

hood of this car." A photograph of the hood of this car was entered into evidence.

{¶ 65} Upon T.N.'s return to the bar, she testified that she told her grandmother she

had just been raped. T.N. then called 911 to report the assault. A tape of the 911 call was

played for the jury. On the tape, T.N. can be heard crying. Additionally, several witnesses

testified as to her demeanor at that time. Her boyfriend, Brad Coffey, testified that "she was

curled up in a ball on the steps hysterical and screaming that she had been raped." The

officer responding to the scene described T.N. as "obviously shaken up. She was crying.

Her hands were shaking, and she had a real hard time getting her words out."

{¶ 66} Wooten testified regarding her examination of T.N. at the hospital that night.

Wooten explained that she found debris in the peritoneal area, but found no other injuries to

the vaginal or anal area. She testified that the lack of injuries to the vaginal or anal area of

the body is not uncommon in a sexual assault if there is a lot of alcohol consumed because

the "muscles relax with the alcohol intake, so you don't always see tears and cuts to the

actual orifice." There was testimony that T.N. consumed several drinks that night.

Additionally, forensic evidence confirmed that a sexual encounter occurred between T.N. and

Rose. Adam Garver, a Forensic Scientist in the DNA Section of the Ohio Attorney General's

Office, Bureau of Criminal Identification and Investigation testified that penile swabs taken

from Rose contained a mixture of DNA which was consistent with contributions from both

Rose and T.N. Garver also testified that Rose's DNA was found in sperm cells taken from a

sample cutting of T.N.'s underwear.

{¶ 67} Based on the foregoing evidence and testimony, we cannot say that the jury

clearly lost its way so as to create a manifest miscarriage of justice requiring Rose's

convictions for kidnapping and rape to be reversed. Accordingly, Rose's fifth assignment of

error is overruled. - 21 - Butler CA2011-11-214

{¶ 68} Assignment of Error No. 6:

{¶ 69} THE TRIAL COURT ISSUED A SENTENCE CONTRARY TO LAW, TO THE

PREJUDICE OF THE APPELLANT, BY IMPOSING A MAXIMUM PENALTY AND

CONSECUTIVE PRISON TERM.

{¶ 70} In his sixth assignment of error, Rose challenges the sentence imposed by the

trial court. He argues that the court did not have jurisdiction to hold three sentencing

hearings. Furthermore, he argues that his sentence is contrary to law as the court imposed a

"maximum penalty" and did not provide the proper findings under R.C. 2929.14(C)(4) to

impose consecutive terms of imprisonment. Alternatively, Rose argues that his "sentence

was an abuse of discretion." We find no merit to these arguments.

A. Jurisdiction

{¶ 71} The trial court held an initial sentencing hearing on October 24, 2011. At this

hearing, the trial court heard from Rose, his attorney and several family members. After

considering these statements and the presentence investigation report, the trial court

announced a sentence consisting of 10 years for rape, 5 years for kidnapping, which were to

be served consecutively to each other, and 180 days for assault, to be served concurrently to

the 10 years Rose received for rape. Rose was also fined $1,600, ordered to pay the costs

of prosecution, and given 352 days of jail time credit. However, the trial court, with the

agreement of the parties, continued the sentencing hearing to October 27, 2011, to complete

certain requirements related to Rose's sexual offender registration classification. During the

October 27, 2011 hearing, the trial court explicitly stated that the hearing was a "continuation

of sentencing in this case." Rose did not object to this hearing. The trial court then informed

Rose of his reporting requirements as a Tier III sex offender and obtained his signature on a

form explaining these same responsibilities. The trial court also reiterated the sentence

announced on October 24, 2011, and advised Rose of the applicable postrelease control - 22 - Butler CA2011-11-214

conditions and his right to appeal.

{¶ 72} The trial court did not file a judgment of conviction entry relating to the two

October sentencing hearings. Rather, on November 1, 2011, another sentencing hearing

was held. The sentencing transcript indicates that the purpose of this was to comply with

"House Bill 86 * * * to ensure that certain findings if the Court imposes consecutive sentences

– certain findings are made." At this hearing, Rose's counsel voiced an objection arguing

that the hearing was unnecessary as the trial court had already held two sentencing hearings

and "entered a judgment and made its findings of facts and conclusions of law." The trial

court then considered the purpose of sentencing as reflected in the amended sentencing

statutes and stated that it would consider the statements made during the October 24, 2011

hearing. The trial court sentenced Rose to the same sentence it announced during the

October 24, 2011 hearing, added new findings to the record, and provided additional jail-time

credit. On November 8, 2011, for the first time, the trial court filed a judgment of conviction

entry detailing Rose's sentence.

{¶ 73} The trial court had jurisdiction to hold the sentencing hearings on October 27,

2011, and November 1, 2011. A trial court lacks the authority to reconsider its own valid final

judgments in criminal cases. State v. Staley, 12th Dist. No. CA2006-10-045, 2007-Ohio-

3154, ¶ 11, citing State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5796, ¶

18. It therefore follows, that the trial court retains the authority to reconsider those judgments

that are not final. To constitute a final judgment in a criminal case, a judgment of conviction

must sets forth "(1) the guilty plea, the jury verdict, or the finding of the court upon which the

conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the

journal by the clerk of court." State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, ¶ 18.

{¶ 74} In the present case, there was only one judgment of conviction and it was

entered after the November 1, 2011 hearing. On November 8, 2011, the trial court filed an - 23 - Butler CA2011-11-214

entry which included the jury's finding Rose guilty of rape, kidnapping, and assault, the

sentence, and it is signed by the judge. There are no other entries in the record that were

filed after either of the October hearings. As such, there was no final judgment in this case

until November 8, 2011. The trial court was free to reconsider its sentence of Rose up until

the judgment of conviction entry was filed. Accordingly, the trial court had the authority and

jurisdiction to hold the hearings on October 27, 2011, and November 1, 2011. Therefore, the

trial court retained jurisdiction to modify the sentence.

{¶ 75} Rose also argues that he was prejudiced by having three sentencing hearings

as his family was not present to offer statements in mitigation. It is clear from the record that

the second hearing held on October 27, 2011, was merely a continuation of the hearing on

October 24, 2011, and therefore it would have been unnecessary for the family to be present

at that hearing. As to the hearing on November 1, 2011, the trial court made it clear that it

would consider all statements, including those made by Rose's family, when imposing his

sentence. Accordingly, we can find no prejudice in the trial court holding two additional

sentencing hearings.

B. Sentencing Factors

{¶ 76} Rose also argues in his sixth assignment of error that his sentence is contrary

to law as the court improperly imposed a maximum penalty and ordered him to serve

consecutive terms of imprisonment. We note that on September 30, 2011, the General

Assembly enacted 2011 Am.Sub.H.B. No. 86 (H.B. 86) which revised several sentencing

statues. As Rose was sentenced on November 8, 2011, we find that this legislation is

applicable to him.

{¶ 77} Appellate courts apply a two-step procedure when reviewing felony sentences.

First, courts must examine the sentencing court's compliance with all applicable rules and

statutes in imposing the sentence to determine whether the sentence is clearly and - 24 - Butler CA2011-11-214

convincingly contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26. If

this first prong is satisfied, then the sentencing court's decision is reviewed for an abuse of

discretion. Id. at ¶ 4; State v. Blanton, 12th Dist. No. CA2008-09-235, 2009-Ohio-3311, ¶ 18.

{¶ 78} In applying the first prong of the test outlined in Kalish, a trial court must

consider the statutes that are specific to the case itself. State v. Bishop, 12th Dist. No.

CA2010-08-054, 2011-Ohio-3429, ¶ 15, citing Kalish at ¶ 13; Kalish at ¶ 14. A sentence is

not clearly and convincingly contrary to law where the trial court considers the purposes and

principles of sentencing under R.C. 2929.11, as well as the seriousness and recidivism

factors listed in R.C. 2929.12, properly applies postrelease control, and sentences a

defendant within the permissible statutory range. State v. Elliott, 12th Dist. No. CA2009-03-

020, 2009-Ohio- 5926, ¶ 10, citing Kalish at ¶ 18. Through H.B. 86, the General Assembly

amended R.C. 2929.11 and it now states that the "overriding purposes of felony sentencing

are to protect the public from future crime by the offender and others and to punish the

offender using the minimum sanctions that the court determines accomplish those purposes

without imposing an unnecessary burden on state or local government resources." Even in

light of these changes made by H.B. 86, there is still no "mandate" for the sentencing court to

engage in any factual findings under R.C. 2929.11 or R.C. 2929.12. State v. Putnam, 11th

Dist. No. 2012-L-026, 2012-Ohio-4891, ¶ 9, citing State v. Foster, 109 St.3d 1, 2006-Ohio-

856, ¶ 42. Rather, the trial court still has discretion to determine whether the sentence

satisfies the overriding purpose of Ohio's sentencing structure. R.C. 2929.12(A).

{¶ 79} The judgment entry of conviction clearly indicates that the trial court considered

"the principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and

has balanced the seriousness and recidivism factors of Ohio Revised Code Section

2929.12." Furthermore, at the November 1, 2011 sentencing hearing the trial court

specifically referenced the purposes of sentencing as set forth in the newly amended R.C. - 25 - Butler CA2011-11-214

2929.11. The transcripts from the hearing on October 24, 2011, and November 1, 2011, also

indicate that the trial court considered certain factors under R.C. 2929.12. Furthermore,

Rose was sentenced within the applicable statutory range. Rose was convicted of rape, in

violation of R.C. 2907.02(A)(2) and kidnapping, in violation of R.C. 2905.01(A)(4). Both of

these offenses are first-degree felonies. R.C. 2907.02(B); R.C. 2905.01(C)(1). The available

prison term for a felony in the first degree is 3 to 11 years. R.C. 2929.14(A)(1).3 As Rose

was sentenced to 5 years for kidnapping and 10 years for rape his sentence was well within

the permissible statutory range. The trial court also advised Rose of the applicable

postrelease control issues. However, our inquiry as to whether Rose's sentence is clearly

and convincingly contrary to law does not end here.

{¶ 80} H.B. 86 has added an additional requirement that trial courts must adhere to

when imposing consecutive sentences.4 In enacting H.B. 86, the General Assembly revived

the requirement that trial courts make certain factual findings before imposing consecutive

sentences under R.C. 2929.14(C)(4). State v. Smith, 12th Dist. No. CA2012-01-004, 2012-

Ohio-4523, ¶ 20, citing State v. Alexander, 1st Dist. Nos. C-110828, C-110829, 2012-Ohio- 5 3349, ¶ 13. The amended version of R.C. 2929.14(C)(4) now provides a three-step analysis

before a trial court can impose consecutive sentences. Smith at ¶ 21, citing State v. Snyder,

3. H.B. 86 also amended the available prison term for first degree felonies from a maximum of 10 years to a maximum of 11 years.

4. Prior to the enactment of H.B. 86, trial courts were given full discretion to impose a prison sentence within the statutory range and were not required to make findings or give reasons for imposing consecutive sentences. State v. Foster, 109 St.3d 1, 2006-Ohio-856, at ¶ 100 .

5. The First District has found and we agree that our determination as to whether a trial court has adhered to the applicable requirements of R.C. 2929.14(C)(4) in imposing consecutive sentences is subject to review under the first prong of Kalish and under R.C. 2953.08(G)(2). Alexander at ¶ 14; see also Kalish at ¶ 14. Pursuant to R.C. 2953.08(G)(2), a reviewing court may vacate consecutive sentences only if it "clearly and convincingly finds" either that the record does not support the trial court's R.C. 2929.14(C)(4) findings or that the sentence is otherwise contrary to law. Moreover, in Kalish, the court noted that even though R.C. 2953.08(G)(2) refers to the excised fact-finding portions of the sentencing scheme the appellate court is precluded from applying an abuse- of-discretion standard when it initially reviews a sentence, rather the standard is whether the sentence is clearly and convincingly contrary to law. Kalish at ¶ 14. It therefore follows that even though certain judicial fact-finding portions have been revived by H.B. 86, the clearly and convincingly contrary to law standard would still apply. - 26 - Butler CA2011-11-214

3rd Dist. No. 13-11-37, 2012-Ohio-3069, ¶ 25. Pursuant to R.C. 2929.14(C), the trial court

must find: (1) that consecutive sentencing is necessary to protect the public from future crime

or to punish the offender; (2) that consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public; and

(3) that one of the following applies:

The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.

The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

Smith at ¶ 21.

{¶ 81} In arguing that his sentence is contrary to law, Rose asserts that the "record

lacks evidence that [he] was a danger to society and a maximum penalty and consecutive

sentences were necessary to protect the public from future harm."

{¶ 82} Initially, we note that the trial court is not required to make any findings prior to

imposing a maximum sentence. The prior version of R.C. 2929.14(C) required the trial court

to make certain findings before imposing a maximum term of imprisonment. In State v.

Foster, 109 St.3d 1, 2006-Ohio-856, the Supreme Court held this portion of the statute to be

unconstitutional. Id. at paragraph one of the syllabus. Although the recently enacted H.B. 86

revised R.C. 2929.14, the General Assembly did not revive the former portions of R.C.

2929.14 which addressed maximum sentences. See Am.Sub.H.B. No. 86, Section 11.

- 27 - Butler CA2011-11-214

Rather, R.C. 2929.14(C)(4) as amended only addresses consecutive sentences and does not

mention maximum sentences. R.C. 2929.14(C)(4); see also State v. Calliens, 8th Dist. No.

97034, 2012-Ohio-703, ¶ 28. Furthermore, Rose did not receive the maximum penalty for

either offense in this case. As discussed above, the permissible range of imprisonment for

each of Rose's convictions was 3 to 11 years. He received five years for kidnapping and ten

years for rape.

{¶ 83} As to the imposition of consecutive sentences, we find that the trial court

complied with the dictates of the newly amended R.C. 2929.14(C)(4) and made all the

required findings. Contrary to Rose's assertions, the record indicates that the trial court

complied with the three-step analysis in R.C. 2929.14(C)(4) and found all of the statutory

findings applicable. Specifically, during the November 1, 2011 hearing, the court stated:

The Court is going to impose on Count One, rape, ten years * * * the Court is finding that consecutive sentences are necessary to punish the offender, and consecutive sentences are not disproportionate to the seriousness of the offender's conduct, and the danger that the offender poses to the public. And the offender has a history of criminal conduct and demonstrates that consecutive sentences are necessary to protect the public from future crime by the defendant.

{¶ 84} Moreover, although the trial court was not required to set forth its consecutive

sentence findings in the sentencing entry, the trial court memorialized its findings in the

judgment entry of conviction. See State v. Smith, 2012-Ohio-4523, ¶ 34 (finding that the trial

court is not required to set forth its consecutive sentence findings pursuant to R.C.

2929.14(C)(4) in the sentencing entry). Based on the foregoing, Rose's sentence was not

contrary to law as the trial court complied with all applicable statutes and rules.

{¶ 85} As to the second prong of Kalish, Rose only argues in passing that the trial

court abused its discretion in imposing his sentence. He does not, however, argue how his

sentence was an abuse of discretion. The record demonstrates that Rose had a criminal

- 28 - Butler CA2011-11-214

history, lacked remorse, and committed two separate violent crimes. After a review of the

record, we find no abuse of discretion.

{¶ 86} Rose's sixth assignment of error is overruled.

{¶ 87} Assignment of Error No. 7:

{¶ 88} THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE APPELLANT'S

CONVICTIONS FOR COUNT ONE AND COUNT TWO.

{¶ 89} In his seventh and final assignment of error, Rose argues that the trial court

erred in convicting and sentencing him for both kidnapping and rape as these offenses are

allied offenses of similar import and should have been merged at sentencing.

{¶ 90} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme

court set forth a two-part test to determine if offenses are allied offenses of similar import

under R.C. 2941.25. The court made clear that in applying this test, "the conduct of the

accused must be considered." Johnson at ¶ 44. In determining whether offenses are allied

offenses of similar import under R.C. 2941.25(A), a court must first determine "whether it is

possible to commit one offense and commit the other with the same conduct." (Emphasis

sic.) Johnson at ¶ 48; State v. Stefanopoulos, 12th Dist. No. CA2011-10-187, 2012-Ohio-

4220, ¶ 48. In making this determination, it is not necessary that the commission of one

offense would always result in the commission of the other, but instead, the question is

simply whether it is possible for both offenses to be committed with the same conduct. State

v. Craycraft, 193 Ohio App.3d 594, 2011-Ohio-413, ¶ 11 (12th Dist.), citing Johnson at ¶ 48.

If it is found that the offenses can be committed by the same conduct, then a court must

determine "whether the offenses were committed by the same conduct, i.e., 'a single act,

committed with a single state of mind.'" Johnson at ¶ 49, quoting State v. Brown, 119 Ohio

St.3d 447, 2008-Ohio- 4569, ¶ 50. If both of these questions are answered in the affirmative,

the offenses are allied offenses of similar import and must be merged. Johnson at ¶ 50. - 29 - Butler CA2011-11-214

However, if the commission of one offense will never result in the commission of the other,

"or if the offenses are committed separately, or if the defendant has separate animus for

each offense, then, according to R.C. 2941.25(B), the offenses will not merge." State v.

Standifer, 12th Dist. No. CA2011-07-071, 2012-Ohio-3132, ¶ 66, quoting Johnson at ¶ 51.

{¶ 91} Applying Johnson to the facts present here, we must first determine if it is

possible to commit both kidnapping and rape with the same conduct. See Johnson at ¶ 48.

To be guilty of rape in violation of R.C. 2907.02(A)(2), the state had to prove that Rose

engaged in sexual conduct with T.N. and purposely compelled her to submit by force or

threat of force. To be guilty of kidnapping in violation of R.C. 2905.01(A)(4), the state had to

prove that Rose, moved T.N. by force or restrained her liberty in order to engage in sexual

activity against her will. The Ohio Supreme Court and this court have held that kidnapping, in

violation of R.C. 2905.01(A)(2) and rape, in violation of R.C. 2907.02(A)(2), can constitute

allied offenses of similar import. State v. Mitchell, 6 Ohio St.3d 416, 418 (1983); State v.

Ramirez, 12th Dist. No. CA2010-11-305, 2011-Ohio-6531, ¶ 52, 59. We conclude that it is

possible to commit the offenses of kidnapping and rape with the same conduct. Where, as

here, a person forcibly restrains the victim in order to engage in sexual activity against the

victim's will, this conduct would constitute both kidnapping and rape.

{¶ 92} We next determine whether Rose in fact committed kidnapping and rape by

way of a single act, performed with a single state of mind, or whether he had separate

animus for each offense. Johnson at ¶ 49, 51. In Logan, in establishing whether kidnapping

and another offense of the same or similar kind are committed with a separate animus, the

Ohio Supreme Court adopted the following guidelines:

Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a - 30 - Butler CA2011-11-214

significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions;

Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions.

State v. Logan, 60 Ohio St.2d 126 (1979), syllabus. "The foregoing guidelines appear to

remain valid in the wake of Johnson." State v. McCullough, 12th Dist. Nos. CA20110-04-006

and CA2010-04-008, 2011-Ohio-992, ¶ 20.

{¶ 93} Testimony at trial indicated that once T.N. exited the Café, Rose grabbed her

by the hair, covered her mouth, and dragged her 75 yards to a parking lot containing broken

down cars. Detective Davis described this parking lot as an "enclosed" car lot with secured

fencing around it. According to Davis, there was a "chain-link fence that [ran] from the

privacy fence westbound." In moving T.N. from the rear entrance of the Café to this parking

lot, Rose forced T.N. through a gap between the chain-linked fence and the privacy fence. At

trial, an aerial photograph depicting the area of the bar and this car lot was admitted as an

exhibit. From this exhibit, it appears that another building's parking lot separated the car lot

where the rape occurred from the area where the bar was located. Once Rose and T.N.

reached the enclosed car lot, T.N. testified that Rose pushed her on top of the hood of a car

and vaginally raped her twice, once while her back was on the hood and then again with her

stomach on the hood of the car. Rose then pinned T.N. to the ground and vaginally raped

her a third time.

{¶ 94} The indictment and bill of particulars indicate that the charge of kidnapping was

based on both Rose's actions in restraining T.N. in order to engage in sexual activity with her

against her will and for removing her from the place she was located in order to engage in

sexual activity against her will. From the testimony provided at trial, it appears that the force - 31 - Butler CA2011-11-214

used to compel T.N. into the sexual acts, namely pinning her against the hood of the car and

to the ground was the same as the force used to restrain her. Rose's restraint of T.N. was

incidental to the underlying sexual crime and had no independent significance. The

detention was no longer than the time necessary to complete the underlying sexual offenses.

This was a single course of action, committed with a single state of mind. Therefore, the

state could have relied upon the same conduct, i.e., Rose's restraint of T.N., in convicting him

of both rape and kidnapping.

{¶ 95} However, after reviewing the record, it appears that the state instead relied

upon Rose's separate conduct in removing T.N. from the Café to the secured car lot in

convicting Rose of kidnapping. Specifically, during closing arguments, the prosecutor stated:

"The defendant is also charged with – indicted for committing the act of kidnapping. That's

by force removing or restraining – in this case, it's removing a person from the place they are

found." From the testimony described above, it is clear that the state's argument was

supported by the testimony and evidence submitted to the jury.

{¶ 96} Furthermore, in applying the guidelines as set forth in Logan we find that Rose's

actions in grabbing T.N. by the hair and dragging her 75 yards to the car lot demonstrate a

separate animus for both crimes. The movement of T.N. was substantial. Not only did Rose

move T.N 75 yards and through a gap between two fences, but he also had to drag her

across another building's parking lot that separated the area between the bar and the car lot

to reach the car where the rape ultimately occurred. Moreover, the confinement was

secretive as Rose removed T.N. from the entrance of a crowded bar to an "enclosed" car lot

containing broken down cars. Accordingly, we cannot say that Rose's use of force in

removing T.N. from the rear of the Café to the parking lot and the use of force in compelling

her into the sexual acts was a single course of action committed with a single state of mind.

As such, we find that the kidnapping and rape were not allied offenses of similar import. - 32 - Butler CA2011-11-214

Therefore, the trial court properly sentenced Rose for kidnapping and rape under Johnson

and R.C. 2941.25.

{¶ 97} Rose's seventh and final assignment of error is overruled.

{¶ 98} Judgment affirmed.

YOUNG, J., concurs.

RINGLAND, J., concurs separately.

RINGLAND, J., concurring separately.

{¶ 99} I concur with the majority opinion, however, I write separately to address the

trial court's decision to limit counsel's closing arguments. I agree with the majority only

because counsel did not object and was able to adapt to the court's decision, therefore

rendering the error harmless. However, such a decision could have very easily resulted in

prejudicial error were this not the case. Therefore, I find that the better practice would be for

the trial court to set forth the perimeters and limitations of closing arguments prior to the

parties beginning their arguments, rather than during.

Young, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.

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