[Cite as State v. Scott, 2012-Ohio-3482.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. -vs- : : Case No. 11CA80 RANDY L. SCOTT : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2010 CR 0313H
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
DATE OF JUDGMENT ENTRY: July 23, 2012
APPEARANCES:
For Appellant: For Appellee:
WILLIAM T. CRAMER JAMES J. MAYER, JR. 470 Olde Worthington Rd., Ste. 200 RICHLAND COUNTY PROSECUTOR Westerville, OH 43082 DANIEL BENOIT 38 South Park St. Mansfield, OH 44902 [Cite as State v. Scott, 2012-Ohio-3482.]
Delaney, J.
{¶1} Appellant Randy L. Scott appeals from the August 26, 2011 judgment
entry of the Richland County Court of Appeals convicting him of four counts of rape,
four counts of sexual battery, four counts of gross sexual imposition, and one count of
kidnapping with a sexual motivation, and sentencing him to an aggregate prison term
of 26 and a half years. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶1} The victim in this case is P.E., the minor daughter of appellant. The
victim was born in 1994. K.S. is appellant’s wife and the victim’s stepmother.
Appellant was the custodial parent of the victim, not having married the victim’s
mother. Appellant and K.S. both worked as corrections officers in Richland County.
{¶2} The following facts are adduced from the record of appellant’s trial.
{¶3} This case arose on May 5, 2010, when K.S. called 911 and reported to
the Richland County Sheriff’s Department that appellant had raped the victim.
The History of Abuse
{¶4} At trial, the victim testified to repeated acts of sexual abuse by appellant
that began when she was 11 years old. The incidents occurred at the family home in
Richland County. The victim stated she didn’t tell anyone because she was afraid
appellant would lose his job and go to jail. She also didn’t want to break up her family.
{¶5} The victim further testified she was afraid of appellant, in part because
he was bigger than she was, but also because she had been led to believe that
appellant had killed a younger sibling. Richland County, Case No. 11CA80 3
{¶6} The victim further testified didn’t tell anyone about the rapes because
she didn’t want appellant to be arrested and she always considered herself to be
“daddy’s girl.”
{¶7} The pattern of sexual assaults continued, increasing in frequency as the
victim got older, to the point that she was raped as often as once a week. She would
say no but the assaults continued. The victim tried to avoid appellant. Her
stepmother was never home when the assaults occurred.
{¶8} The assaults occurred in appellant’s bedroom, the victim’s bedroom, and
the laundry room in the basement. The victim was able to time the general history of
the abuse based upon where her family was living at the time. They lived in two
different houses in Mansfield.
Indicted Offenses: April 2010
{¶9} Throughout the month of April, 2010, the rapes occurred once or twice a
week. The incidents occurred in the victim’s bedroom.
Indicted Offenses: May 3, 2010
{¶10} The final act of rape was clear in the victim’s mind because she
disclosed it to her cousin shortly thereafter and appellant was arrested two days later.
{¶11} On the evening of Monday, May 3, 2010, K.S. was not home from work
yet. The victim was in her bedroom after showering and was raped by appellant. He
ejaculated on her stomach. The victim thereafter wiped herself off with a pink towel.
She then placed the pink towel in her dirty-clothes basket in her closet. The victim
called and texted her cousin to tell him she had been raped again. Richland County, Case No. 11CA80 4
{¶12} Most of the adult family members closest to the victim, whether by
relationship or proximity, claimed to have no idea the abuse was taking place. The
victim did reach out, however, to her friends and younger family members, who
testified to the disclosures at trial. Ultimately, on May 5, 2010, the incidents were
disclosed to K.S.
{¶13} K.S. then called 911 to report the rapes. A Richland County Sheriff’s
deputy came to the house and learned the basic details of the allegations from K.S.
The deputy told K.S. to take the victim to the hospital for a rape exam, and contacted
detectives and children’s services.
The SANE Exam
{¶14} At MedCentral Hospital, the victim met with sexual assault nurse
examiner (SANE) Tammy Lawhorn. Lawhorn’s purpose was to perform a head-to-toe
examination, record the history presented, collect evidence, diagnose and treat
medical conditions, and forward her findings.
{¶15} K.S. brought the victim to the hospital on May 5, 2010 at 4:55 p.m. A
representative from children’s services was also present.
{¶16} Lawhorn first obtained a history from her, who told her she was sitting on
her bed when her father came into the room and told her to stand up. She said no,
and he turned the lights off. He pinned her to the floor, licked her vagina, and put his
penis in her vagina. His sperm went all over her stomach, and then he went back
downstairs to watch the Cavs game. The victim further stated this was not the first
rape; the abuse started when she was 11 and had occurred over 30 times. She never Richland County, Case No. 11CA80 5
told anyone because she was scared; and she had a baby sister who was killed by
appellant.
{¶17} Lawhorn testified that an exam is “acute” if the sexual assault occurred
within the previous 72 hours. She performed a genital exam with a colposcope, which
magnifies injuries, and noted two “old tears” to the patient’s hymen, multiple blisters on
the lips of the vagina, and a bruised cervix. Although Lawhorn agreed that tears to the
hymen and vaginal blisters could be caused by a number of things other than sexual
assault, the bruise to the cervix was caused by blunt force trauma. These injuries
were consistent with the history related by the victim.
{¶18} Lawhorn’s exam collected key pieces of evidence including the
underwear the victim wore to the hospital and a rape kit. Lawhorn notified a deputy
that the victim had cleaned herself after the assault with the pink towel, and the deputy
sent K.S. back to the house to retrieve the towel. K.S. later testified she found the
towel in the victim’s dirty-clothes basket, and picked it up by placing a plastic grocery
bag over her hand. She placed the towel into a separate plastic bag and turned it
over to investigators.
The Physical Evidence
{¶1} Investigators executed a search warrant upon appellant’s residence and
collected a number of pieces of physical evidence, including cuttings from carpet and
P.’s mattress. Ultimately investigators submitted physical evidence most likely to yield
DNA results, including the rape kit from the hospital, a DNA standard from appellant,
the pink towel found in the victim’s dirty-clothes basket, and a mattress cutting. These
items were submitted to B.C.I. for analysis. Richland County, Case No. 11CA80 6
{¶2} Forensic analysts confirmed the presence of semen on the crotch of the
victim’s underwear and on the pink towel. On the pink towel, the semen appeared in
ten different spots. Two DNA profiles were detected in the cutting from the crotch of
the victim’s underwear: those of the victim and appellant. One DNA profile was
extracted from the semen detected on the pink towel: appellant’s.
The Death of the Victim’s Sibling
{¶3} One issue at trial was why the victim didn’t tell anyone, which was
explained in part by her fear of appellant. She testified that appellant never made any
express threat against her, and yet she never fought back or forcefully resisted.
Although she thought about “kicking him in the balls,” she never did so. She thought
appellant would physically hurt her if she told anyone.
{¶4} The victim testified that her fear of appellant was based in part upon her
belief that he had killed her baby sister. The victim testified she had asked appellant
how the sibling had died and he told her on different occasions that she was sick and
that she was murdered. This topic was explored further with Detective Patrice Smith
on re-cross by the defense. Det. Smith testified she was aware the victim had been
told appellant killed her sister. Smith stated summarily, in response to defense
questioning, that the allegation was investigated and nothing came of it. Upon
redirect, when asked how the child died, Smith replied she had head trauma and a
lacerated liver from being punched in the abdomen.
{¶5} When appellant testified, even more details of the child’s death were
elicited by the defense. Appellant stated the child was 11 months old when she died.
In the 24 hours leading up to her death, the child was with, at different times, her Richland County, Case No. 11CA80 7
mother, appellant, and appellant’s mother. Appellant’s mother called him to say the
child was not responding and they were taking her to the hospital. Upon his arrival,
she had already passed away. Appellant testified that two weeks later he learned the
death was being investigated as a homicide.
{¶6} Upon cross-examination, appellant stated the child was murdered but not
by him. Prior to her death, the child had a history of unexplained bruises and injuries.
Appellant’s Testimony at Trial
{¶7} Appellant testified on his own behalf at trial. He denied any type of
sexual contact or conduct with the victim. He had no explanation why the victim would
make up the allegations. He related his version of the events of May 3, 2010.
{¶8} Appellant had disciplined the victim earlier in the day by taking her cell
phone away because he learned she was sent to in-school suspension for texting at
school.
{¶9} That evening, K.S. was at work and Appellant had been watching a
basketball game but went upstairs. Appellant heard the shower running and reached
into the room to jokingly turn the light on and off while his daughter was in the shower.
Appellant then went into his bedroom to turn on the basketball game on the television
there. He heard his daughter come out of the bathroom, and go into her bedroom and
close the door.
{¶10} A few minutes later, the telephone rang and when he answered it, no
one was there, but the caller ID indicated his daughter’s friend had called. He took the
telephone to her room, knocked on her door, and she stuck her head out. Appellant Richland County, Case No. 11CA80 8
told her a friend had called and his daughter took the phone. After then took a
shower, and he returned to his bedroom and remained there for the rest of the night.
{¶11} Appellant further testified that he has a problem with “longevity during
sexual intercourse” and therefore masturbates if he expects to later be intimate with
his wife. He claimed he masturbated and cleaned up with the pink towel, which he
placed in his own dirty-clothes basket.
{¶12} Appellant had no explanation for how his semen turned up in the crotch
of his daughter’s underwear, or how the pink towel containing his semen wound up in
his daughter’s clothes basket.
Indictment, Jury Trial, Conviction, and Sentence
{¶13} Appellant was charged by indictment with three counts of rape occurring
between April 5, 2010 and May 2, 2010 [R.C. 2907.02(A)(2), felonies of the first
degree]; one count of rape occurring on May 3, 2010 [R.C. 2907.02(A)(2), a felony of
the first degree]; three counts of sexual battery occurring between April 5, 2010 and
May 2, 2010 [R.C. 2907.03(A)(5), felonies of the third degree]; one count of sexual
battery occurring on May 3, 2010 [R.C. 2907.03(A)(5), a felony of the third degree];
three counts of gross sexual imposition occurring between April 5, 2010 and May 2,
2010 [R.C. 2907.05(A)(1), felonies of the fourth degree]; one count of gross sexual
imposition occurring on May 3, 2010 [R.C. 2907.05(A)(1), a felony of the fourth
degree]; and one count of kidnapping with a sexual motivation specification occurring
on May 3, 2010 [R.C. 2905.01(A)(4) and 2941.147, a felony of the first degree]. Richland County, Case No. 11CA80 9
{¶14} Appellant entered pleas of not guilty and the case proceeded to jury trial.
Appellant moved for a judgment of acquittal at the close of appellee’s evidence and at
the close of all of the evidence; the motions were overruled.
{¶15} The jury found appellant guilty as charged, and the trial court sentenced
him to an aggregate prison term of twenty-six and a half years.
{¶16} Appellant now appeals from the judgment entry of his convictions and
sentence.
{¶17} Appellant raises six Assignments of Error:
{¶18} “I. APPELLANT WAS DENIED HIS STATE AND FEDERAL DUE
PROCESS RIGHT TO A FAIR TRIAL WHEN THE JURY WAS EXPOSED TO HIGHLY
PREJUDICIAL CHARACTER EVIDENCE IN VIOLATION OF EVID.R. 403(A) AND
404(B).”
{¶19} “II. APPELLANT WAS DENIED HIS STATE AND FEDERAL DUE
PROCESS RIGHT TO A FAIR TRIAL WHEN THE PROSECUTION WAS
IMPROPERLY PERMITTED TO BOLSTER THE VICTIM’S CREDIBILITY WITH
EVIDENCE OF PRIOR CONSISTENT STATEMENTS.”
{¶20} “III. APPELLANT WAS DENIED HIS STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL
WHEN COUNSEL FAILED TO OBJECT TO NUMEROUS INADMISSIBLE PIECES
OF EVIDENCE.”
{¶21} “IV. APPELLANTS (sic) STATE AND FEDERAL DUE PROCESS RIGHT
TO A FAIR TRIAL WAS VIOLATED WHEN THE TRIAL COURT INSTRUCTED THE
JURY TO PAY PARTICULAR ATTENTION TO APPELLANT’S INTEREST IN THE Richland County, Case No. 11CA80 10
OUTCOME OF THE CASE AND RESULTING BIAS WHEN INSTRUCTING THE
JURY ON HOW TO ASSESS WITNESS CREDIBILITY.”
{¶22} “V. APPELLANT WAS DEPRIVED OF HIS STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AS A RESULT OF THE
CUMULATIVE IMPACT OF THE ERRORS.”
{¶23} “VI. APPELLANT WAS DENIED HIS STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND PROTECTION FROM
DOUBLE JEOPARDY WHEN THE TRIAL COURT FAILED TO PROPERLY MERGE
SEVERAL COUNTS INVOLVING ALLIED OFFENSES IN VIOLATION OF R.C.
2941.25.”
I.
{¶24} In his first assignment of error, appellant claims the trial court erred in
admitting inadmissible character evidence in the form of allegations of repeated abuse
over a period of years and the allegation appellant killed the victim’s baby sister. We
disagree.
{¶25} Prior to trial appellant moved to exclude evidence of ongoing abuse
from the time his daughter was 11 years old, and evidence of the homicide allegation
involving her younger sibling. The state argued the evidence was admissible to show
the state of mind of the victim, including the delay in reporting the abuse. The trial
court agreed, and ruled the evidence was admissible subject to a limiting instruction.
Appellant renewed objections to the evidence at trial, and the trial court did instruct the
jury at the end of the trial the evidence was not admitted to show the character of
appellant but rather to state of mind of the victim. Richland County, Case No. 11CA80 11
{¶26} The admission or exclusion of evidence is a matter left to the sound
discretion of the trial court. Absent an abuse of discretion resulting in material
prejudice to the defendant, a reviewing court should be reluctant to interfere with a
trial court’s decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224
N.E.2d 126 (1967).
{¶27} Generally, the prosecution in a criminal trial may not present evidence
that a defendant has committed other crimes or bad acts independent of the crime for
which he is being tried to establish the defendant acted in conformity with his bad
character. Evid.R. 404(B); State v. Hirsch, 129 Ohio App.3d 294, 306, 717 N.E.2d
789 (1st Dist.1998). Evid.R. 404(B) and R.C. 2945.59 provide that other-acts
evidence is admissible to show “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”
{¶28} In this case, however, the challenged evidence does not fit squarely
within the 404(B) exceptions, and appellee did not argue it was offered for any of
those purposes. Instead, the evidence was offered to show the victim’s state of mind;
specifically, why she didn’t tell anyone about the abuse and why she was in fear of
appellant. “Other-acts evidence may be admitted for reasons other than those listed
in R.C. 2945.59 or Evid.R. 404(B), provided that the evidence is not offered solely to
show the accused’s propensity to commit the crime in question.” State v. Wright, 4th
Dist. No. 00CA39, 2001-Ohio-2473, appeal not allowed, 101 Ohio St.3d 1490, 2004-
Ohio-1293, 805 N.E.2d 540.
{¶29} Appellant was charged with multiple counts of forcible rape against his
daughter. We find, consistent with holdings of other courts in similar cases, the Richland County, Case No. 11CA80 12
challenged other-acts evidence helped demonstrate appellant purposely compelled his
daughter to submit by force or threat of force. See Wright, supra. In a case involving
a minor child and a parent, testimony which tends to establish psychological force is
not improper propensity evidence, but instead tends to show an element of the crime,
force, which is a material issue at trial. See Wright, supra, citing State v. Eskridge, 38
Ohio St.3d 56, 526 N.E.2d 304 (1988) and State v. Schaim, 65 Ohio St.3d 51, 1992-
Ohio-31, 600 N.E.2d 661.
{¶30} This holding is consistent with our holding in State v. Doup, 5th Dist. No.
02CA000008, 2002-Ohio-6981, appeal not allowed, 98 Ohio St.3d 1513, 2003-Ohio-
1572, 786 N.E.2d 63, in which we found other-acts evidence “explained the victim’s
acquiescence to the sexual abuse” and “explained the state of the victim’s mind and
the environment wherein the sexual assaults occurred.” Id., at ¶ 48.
{¶31} The trial court did give a limiting instruction. As we have frequently
noted, “[a] presumption always exists that the jury has followed the instructions given
to it by the trial court.” State v. Bleigh, 5th Dist. No. 09-CAA-03-0031, 2010-Ohio-
1182, ¶ 134, citing Pang v. Minch, 53 Ohio St.3d 186, 187, 559 N.E.2d 1313 (1990) at
paragraph four of the syllabus. Appellant points to no evidence in the record that the
jury failed to follow the trial court’s limiting instruction.
{¶32} Accordingly, we find the trial court did not abuse its discretion in
admitting the evidence of the unexplained death of the victim’s sibling and the history
of sexual abuse of the victim.
{¶33} We overrule appellant’s first assignment of error. Richland County, Case No. 11CA80 13
II.
{¶34} In his second assignment of error, appellant argues the state should not
have been permitted to “bolster” the victim’s credibility with evidence of her
disclosures to friends and family. We disagree.
{¶35} Prior to trial, a hearing was held on a number of motions filed by the
parties. Appellant moved to exclude evidence in the form of statements made by the
victim about the abuse to friends and family members. At the hearing, the state
asserted that the statements would not be offered for the truth of the matter asserted
but instead to show the effect of the statement on the listener: “In other words, this
child over the years told various people who were not in a position of authority, like a
15-year-old brother, et cetera, people of that nature, about the abuse that was going
on, and it’s offered to show the effect on the listener, because every time she told one
of these people about it she made them promise not to tell anybody. The issue is, the
matter was not reported until May 5, 2010. And these witnesses, I understand, cannot
go into detail about what she said, but I think they can testify they were informed by
her that she was being sexually abused, they were asked not to say anything about it,
and they didn’t tell anybody about it. * * *.” The trial court pointed out that the
evidence may be inadmissible if it was hearsay, but that if the defense impugned the
victim’s credibility, the statements would become admissible. Ultimately the trial court
determined the ruling would have to be made in the course of the trial.
{¶36} During the state’s case, younger family relatives and friends testified the
victim told them about ongoing sexual abuse by her father since she was 11 years old. Richland County, Case No. 11CA80 14
{¶37} Appellant argues the testimony of the witnesses is impermissible
hearsay. Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. Evid.R. 801(C). The Rule further provides that some statements are not
hearsay. Evid.R. 801(D)(1)(b) states: “A statement is not hearsay if * * * the declarant
testifies at the trial * * * and is subject to cross-examination concerning the statement,
and the statement is * * * consistent with declarant’s testimony and is offered to rebut
an express or implied charge against declarant of recent fabrication or improper
influence or motive.”
{¶38} Appellant’s opening statement at trial presented the theory that the victim
didn’t want to live with appellant anymore because she didn’t want to move to a new
house, didn’t get along with her step-mother, was curious about living with her mother
who was a more permissive parent than appellant. We have previously found that
such implications during opening statements are sufficient to allow the state’s use of
Evid.R. 801(D)(1)(b). State v. Crawford, 5th Dist. No. 07 CA 116, 2008-Ohio-6260,
¶65, appeal not allowed, 121 Ohio St.3d 1442, 2009-Ohio-1638, 903 N.E.2d 1224.
See also, State v. Abdussatar, 8th Dist. No. 86406, 2006-Ohio-803, State v. Johnson,
2nd Dist. No. 15253 (Apr. 26, 1996), State v. Hoskins, 2nd Dist. No. 94-CA-42 (Jun.
28, 1995).
{¶39} We therefore find the statements made to the victim’s friends and family
members, by the victim, are not impermissible hearsay and the trial court did not
abuse its discretion in admitting them. Richland County, Case No. 11CA80 15
{¶40} For the foregoing reasons, we therefore overrule appellant’s second
assignment of error.
III.
{¶41} In his third assignment of error, appellant argues he received ineffective
assistance of trial counsel because counsel failed to object to three instances of
improper character evidence. We disagree.
{¶42} To succeed on a claim of ineffectiveness, a defendant must satisfy a
two-prong test. Initially, a defendant must show that trial counsel acted incompetently.
See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing
such claims, “a court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350
U.S. 91, 101, 76 S.Ct. 158 (1955).
{¶43} “There are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a particular client in
the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted
“outside the wide range of professionally competent assistance.” Id. at 690.
{¶44} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. Richland County, Case No. 11CA80 16
{¶45} First, we note the record is replete with objections raised by appellant’s
trial counsel to various evidence and arguments presented by the state. Appellant
points, though, to three specific comments by witnesses to which defense trial counsel
raised no objection: the victim’s mother’s references to physical abuse by appellant
and his “nasty dream” about her, and a comment appellant made to the victim’s friend
that he would be “all over her” if he was her age.
{¶46} In the context of the entire trial, we find defense trial counsel was not
deficient in failing to object to these statements. While these remarks may have been
objectionable, counsel may have deliberately chosen not to object to avoid drawing
the jury’s attention to the comments. Trial strategy and even debatable trial tactics do
not establish ineffective assistance of counsel. State v. Conway, 109 Ohio St.3d 412,
2006-Ohio-2815, ¶ 101. Strategic choices made after substantial investigation “will
seldom if ever” be found wanting. Strickland, supra, 466 U.S. at 681.
{¶47} Moreover, the failure to object to error, alone, is not enough to sustain a
claim of ineffective assistance of counsel. State v. Crawford, 5th Dist. No. 07 CA 116,
2008-Ohio-6260, ¶ 72, appeal not allowed, 123 Ohio St.3d 1474, 2009-Ohio-5704,
915 N.E.2d 1255, citing State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d 136
(1999).
{¶48} In short, we find no reasonable probability the outcome of the trial would
have been different had such objections been raised. See, State v. Graber, 5th Dist.
No. 2002CA00014, 2003-Ohio-137, ¶ 154, appeal not allowed, 101 Ohio St.3d 1466,
2004-Ohio-819, 804 N.E.2d 40.
{¶49} Appellant’s third assignment of error is therefore overruled. Richland County, Case No. 11CA80 17
IV.
{¶50} In his fourth assignment of error, appellant asserts the trial court erred in
instructing the jury to pay particular attention to appellant’s interest in the outcome of
the case and any bias that interest may engender.
{¶51} No objection was raised to the jury instructions given by the trial court.
Crim.R. 30(A) states: “On appeal, a party may not assign as error the giving or the
failure to give any instructions unless the party objects before the jury retires to
consider its verdict, stating specifically the matter objected to and the grounds of the
objection.”
{¶52} We therefore review this issue for plain error. Pursuant to Crim.R. 52(B),
“plain errors or defects affecting substantial rights may be noticed although they were
not brought to the attention of the court.” The rule places several limitations on a
reviewing court’s determination to correct an error despite the absence of timely
objection at trial: (1) “there must be an error, i.e., a deviation from a legal rule,” (2) “the
error must be plain,” that is, an error that constitutes “an ‘obvious’ defect in the trial
proceedings,” and (3) the error must have affected “substantial rights” such that “the
trial court’s error must have affected the outcome of the trial.” State v. Dunn, 5th Dist.
No. 2008-CA-00137, 2009-Ohio-1688, citing State v. Morales, 10 Dist. Nos. 03-AP-
318, 03-AP-319, 2004-Ohio-3391, at ¶ 19 (citation omitted).
{¶53} The decision to correct a plain error is discretionary and should be made
“with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” Barnes, supra, quoting State v. Long, 53 Ohio St.2d
91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. The Ohio Supreme Court Richland County, Case No. 11CA80 18
has noted “* * * an erroneous jury instruction ‘does not constitute a plain error or
defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly
would have been otherwise.” State v. Cooperrider, 4 Ohio St.3d 226, 227, 448 N.E.2d
452 (1983), citing State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).
{¶54} We have carefully reviewed the record of this case, and find the
evidence of appellant’s guilt to be substantial. We find the trial court’s instruction did
not rise to level of plain error because the outcome of the trial would not have been
otherwise absent the instruction. See, State v. Broucker, 5th Dist. No. 2007CA00315,
2008-Ohio-2946, ¶ 38.
{¶55} Appellant’s fourth assignment of error is therefore overruled.
V.
{¶56} In his fifth assignment of error, appellant claims cumulative errors in his
trial deprived him of a fair trial. We disagree.
{¶57} In State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995), the
Ohio Supreme Court held pursuant to the cumulative error doctrine “a conviction will
be reversed where the cumulative effect of errors in a trial deprives a defendant of the
constitutional right to a fair trial even though each of numerous instances of trial court
error does not individually constitute cause for reversal.”
{¶58} In the instant case, we do not find multiple instances of harmless error
triggering the cumulative error doctrine, and appellant’s fifth assignment of error is
therefore overruled. Richland County, Case No. 11CA80 19
VI.
{¶59} In his sixth and final assignment of error, appellant asserts the trial court
failed to properly merge several counts involving allied offenses in sentencing
appellant. We agree.
{¶60} Appellant was convicted of four separate incidents of rape, sexual
battery, and gross sexual imposition: three of these incidents occurred in April, 2010,
and the fourth occurred on May 3, 2010. The May 3 incident included an act of
kidnapping, which the state summarized as appellant’s act of holding P. down by
force. At sentencing, the parties agreed that some counts merged and asked the trial
court for concurrent sentencing (T. 953-954, 957-958). Specifically, the state agreed
that the sexual battery offenses of Counts Five, Six, and Seven merged with the rape
offenses of Counts One, Two, and Three, the April offenses. The state argued a
separate animus existed for the sexual battery offense in Count Eight, the May 3
incident. The trial court agreed (T. 962). The trial court also found a separate animus
existed as to Count 12, the gross sexual imposition offense of May 3.
{¶61} The trial court noted that the 10-year sentence for the offense of
kidnapping “should run concurrent” on the basis of State v. Logan, 60 Ohio St.2d 126
(1979) because the restraint and movement of the victim had no significance apart
from facilitating the rape (T. 963). The record of the sentencing hearing does not
indicate the trial court made any other findings regarding allied offenses or merger
beyond references to separate animuses of Counts Eight and Twelve.
{¶62} The trial court sentenced appellant on all counts. The resulting
sentencing entry also indicates that the terms for Counts One [rape, 10 years], Four Richland County, Case No. 11CA80 20
[rape, 10 years], Eight [sexual battery, 5 years], and Twelve [gross sexual imposition,
18 months] are consecutive to each other, and the remaining counts are concurrent.
Among the remaining counts is Count 13, kidnapping, on which the trial court imposed
a concurrent sentence of 10 years.
{¶63} R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to constitute two
or more allied offenses of similar import, the indictment or information may
contain counts for all such offenses, but the defendant may be convicted of only
one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the
same or similar kind committed separately or with a separate animus as to
each, the indictment or information may contain counts for all such offenses,
and the defendant may be convicted of all of them.
With State v. Johnson, the Ohio Supreme Court attempted to clarify whether
offenses are subject to merger. 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061. First, the court must determine whether the offenses are allied and of similar
import. In so doing, the pertinent question is ‘whether it is possible to commit one
offense and commit the other offense with the same conduct, not whether it is possible
to commit one without committing the other.” * * *. Second, “the court must determine
whether the offenses were committed by the same conduct, i.e. ‘a single act,
committed with a single state of mind.’” * * *. If both questions are answered in the Richland County, Case No. 11CA80 21
affirmative, then the offenses are allied offenses of similar import and will be merged.
Johnson, at ¶ 50, internal citations omitted.
{¶64} The crimes of rape and sexual battery are generally allied offenses of
similar import and should have been merged, as appellee concedes in terms of
Counts One, Two, and Three [the April rape counts] and Counts Five, Six, and Seven
[the April sexual battery counts]. Instead, appellant received concurrent sentences.
Imposing a concurrent sentence is not the equivalent of merging allied offenses. State
v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950 N.E.2d 512, ¶ 17.
{¶65} Appellee urges us to review the merger issues as plain error, stating
“[b]ecause the trial court believed that running the sentences concurrently was
sufficient to merge them as allied offenses, [appellant] would be serving the same
consecutive sentences even if the allied offenses had not been sentenced.” Appellant
urges, too, to avoid remanding the case and to simply resentence him “to reflect an
appropriate merger.” Unfortunately it is not clear from the record that the trial court
found any of the counts to be allied offenses which merged for sentencing. The only
specific reference to merger occurred with respect to Count 13, kidnapping, for which
the trial court imposed a concurrent sentence.
{¶66} Although the parties urge us to avoid remand and to correct the
sentencing errors pursuant to Section 3(B)(2), Article IV of the Ohio Constitution and
R.C. 2953.07, we are required to follow the instruction of the Ohio Supreme Court in
Whitfield: “If, upon appeal, a court of appeals finds reversible error in the imposition of
multiple punishments for allied offenses, the court must reverse the judgment of
conviction and remand for a new sentencing hearing at which the state must elect Richland County, Case No. 11CA80 22
which allied offense it will pursue against the defendant.” 124 Ohio St.3d 319, 2010-
Ohio-2, 922 N.E.2d 182, ¶ 25; see also State v. Bleigh, 5th Dist. No. 09-CAA-03-0031,
2010-Ohio-1182, ¶ 154-155.
{¶67} In State v. Damron, the Ohio Supreme Court addressed a sentencing
error very much like the one in this case:
When a defendant has been found guilty of offenses that are allied offenses,
R.C. 2941.25 prohibits the imposition of multiple sentences. [State v.] Whitfield,
124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at ¶ 12. Therefore, a trial
court must merge the crimes into a single conviction and impose a sentence
that is appropriate for the offense chosen for sentencing. State v. Brown, 119
Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149m at ¶ 41-43. In this case,
the sentencing court found Damron guilty of both offenses and sentenced him
on both. The imposition of concurrent sentences is not the equivalent of
merging allied offenses. As we explained in Whitfield, for purposes of R.C.
2941.25, a “conviction” is the combination of a guilt determination and a
sentence or penalty. Whitfield at ¶ 12. * * *.
State v. Damron, supra, 2011-Ohio-2268, ¶ 17.
{¶68} As the record presently stands, appellant has been convicted and
sentenced on all 13 charged offenses, despite the parties’ acknowledgment, and the
trial court’s apparent agreement, that some of those are allied offenses of similar
import which should merge. We therefore find the trial court erred in sentencing
appellant on all counts. Accordingly, appellant’s sixth assignment of error is
sustained. Richland County, Case No. 11CA80 23
{¶69} For the reasons stated in the foregoing opinion, the judgment of the
Richland County Court of Common Pleas is affirmed in part, reversed in part, and
remanded for the trial court to review the issue of merger.
By: Delaney, P.J.
and Wise, J. concur.
Hoffman, J. concurs separately
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE
PAD:kgb Richland County, Case No. 11CA80 24
Hoffman, J., concurring {¶70} I concur in the majority’s analysis and disposition of Appellant’s
Assignments of Error II, IV, V, and VI.
{¶71} I further concur in the majority’s disposition of Appellant’s Assignment of
Error I. Unlike the majority, I would find the trial court erred in permitting allegations of
the repeated sexual abuse of the victim over a period of years outside the time
parameters of the Indictment. The majority conceded the challenged evidence does
not fit squarely within the 404(B) exceptions. The victim’s state of mind is not one of
the listed exceptions. While the victim’s belief Appellant may have killed her sister was
arguably permissible to explain the victim’s failure to timely report the abuse, I find
evidence of other incidents of abuse violates Evid.R. 404(B). The trial court is vested
with discretion in determining the admissibility of evidence, so long as such discretion
is exercised in line with the rules of procedure and evidence. Rigby v. Lake Cty., 58
Ohio St.3d 269, 271 (1991).
{¶72} Despite finding error in the admission of the other acts evidence, I concur
in the majority’s decision to overrule this assignment of error in light of the trial court’s
cautionary instruction and the fact the weight of the other admissible evidence renders
the error harmless. Richland County, Case No. 11CA80 25
{¶73} Finally, I also concur in the majority’s disposition of Appellant’s
Assignment of Error III. Unlike the majority, I find counsel’s failure to object cannot be
defended as trial strategy or tactics. However, I do agree with the majority no
reasonable probability exists the outcome of the trial would have been different had
such objections been raised and sustained.
_________________________
HON. WILLIAM B. HOFFMAN [Cite as State v. Scott, 2012-Ohio-3482.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : RANDY L. SCOTT : : : Case No. 11CA80 Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Richland County Court of Common Pleas is affirmed in part, reversed in part, and
remanded for further proceedings consistent with our Opinion. Costs assessed
equally between appellant and appellee.