State v. Slaven

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[Cite as State v. Slaven, 2010-Ohio-6400.] COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee JUDGES: Hon. Julie A. Edwards, P.J. Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J. -vsCase No. 09CAA110093 ORAL SLAVEN Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 09CR1030163 JUDGMENT: Reversed and Remanded DATE OF JUDGMENT ENTRY: December 27, 2010 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant DAVID A. YOST Delaware County Prosecuting Attorney STEPHEN E. PALMER NICHOLAS SINIFF Yavitch & Palmer, Co., LPA 511 South High Street Columbus, Ohio 43215 By: Marianne T. Hemmeter Assistant Prosecuting Attorney 140 N. Sandusky Street Delaware, Ohio 43015 Delaware County, Case No. 09CAA110093 2 Hoffman, J. {¶1} Defendant-appellant Oral Slaven appeals his convictions in the Delaware County Court of Common Pleas. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE {¶2} Appellant was indicted by the State of Ohio on seven counts of rape and three counts of gross sexual imposition for the alleged sexual abuse of his twelve yearold step-daughter, K.S., and three year-old son, D.S. {¶3} K.S. initially disclosed the abuse to a friend at school. Following a referral from the school s principal, Job and Family Services ( JFS ) intervened. Patty Clements of JFS testified as part of her investigation she interviewed K.S. at school, during which K.S. disclosed Appellant had raped and fondled her. {¶4} K.S. testified at trial Appellant sexually abused her from the time she started fourth grade. K.S. related numerous incidents of Appellant engaging in sexual penetration and fondling with her, including an incident during which D.S. walked into the room and witnessed the encounter. {¶5} Testimony at trial indicated D.S. told Kathy Speakman, his maternal grandmother, Appellant had put his pee-pee in his butt and it hurt , and he had witnessed Appellant put a balloon on his pee-pee and engage in inappropriate behavior with K.S. D.S. told a hospital nurse Appellant had given him a boo boo on his butt. {¶6} The trial court conducted a competency hearing as to the testimony of D.S. The trial court ultimately determined D.S. was competent to testify at trial. Delaware County, Case No. 09CAA110093 {¶7} 3 D.S. testified at trial his father pulled his pants down and put his penis inside D.S. s butt, where my poop lives. {¶8} Prior to trial, Appellant filed a motion to sever due to the separate incidents involving the two separate victims. Appellant also filed a motion in limine to preclude the State from introducing the testimony of Joyce Mangold Lee concerning a prior sexual encounter with Appellant. The trial court allowed the testimony of Mangold. {¶9} Following a jury trial on August 6, 2010, Appellant was found guilty on all counts, and sentenced to a total of eighty-five years to life in the Ohio Department of Corrections. {¶10} Appellant now appeals, assigning as error: {¶11} I. THE TRIAL COURT ERRED IN CONSOLIDATING K.S. AND D.S. S TRIALS THEREBY VIOLATING APPELLANT S RIGHTS AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO. {¶12} II. THE TRIAL COURT ERRED IN PERMITTING JOYCE MANGOLD LEE TO TESTIFY ABOUT HER SEXUAL ENCOUNTER WITH APPELLANT 13 YEARS PRIOR TO THE TRIAL IN THIS CASE THEREBY VIOLATING APPELLANT S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION. {¶13} III. THE TRIAL COURT IMPROPERLY ADMITTED HEARSAY STATEMENTS OF THE ALLEGED VICTIMS IN VIOLATION OF THE RULES OF Delaware County, Case No. 09CAA110093 4 EVIDENCE AND APPELLANT S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION. {¶14} IV. THE TRIAL COURT VIOLATED APPELLANT S RIGHT OF CONFRONTATION AND RIGHT TO PRESENT A FULL AND COMPLETE DEFENSE AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION BY IMPROPERLY ADMITTING HEARSAY STATEMENTS OF THE ALLEGED VICTIMS AND LIMITING APPELLANT S CROSS-EXAMINATION CONCERNING KARMA S HISTORY OF MENTAL ILLNESS. {¶15} V. THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO CONTINUE THE CASE AS A SUBPOENAED WITNESS WAS OUT-OF-TOWN, THEREBY VIOLATING APPELLANT S RIGHT TO PRESENT A FULL DEFENSE AS GUARANTEED BY THE COMPULSORY PROCESS CLAUSE OF THE SIXTH AMENDMENT, THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. {¶16} VI. THE TRIAL COURT ERRED IN ADMITTING THE EXPERT TESTIMONY OF MEDICAL DOCTORS AS IT IMPROPERLY BOLSTERED THE CREDIBILITY OF KARMA AND FINNY, THUS VIOLATING APPELLANT S FIFTH AND FOURTEENTH AMENDMENT RIGHTS TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION. Delaware County, Case No. 09CAA110093 5 {¶17} VII. THE TRIAL COURT ERRED IN OVERRULING APPELLANT S OBJECTION TO THE COMPETENCY OF FIVE YEAR OLD D.S. TO TESTIFY WHEN HE COULD NOT RECALL SPECIFIC EVENTS FROM OVER TWO YEARS PRIOR TO THE COMPETENCY HEARING AND TRIAL, THEREBY VIOLATING APPELLANT S SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION. {¶18} VIII. THE TRIAL COURT VIOLATED APPELLANT S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BY ENTERING VERDICTS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. I & II {¶19} Appellant s first and second assignments of error raise common and interrelated issues; therefore, we will address the arguments together. {¶20} Appellant maintains the trial court erred in consolidating the trials for the separate victims. {¶21} Ohio Criminal Rule 8 governs joinder of offenses, and provides: {¶22} (A) Joinder of offenses {¶23} Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions Delaware County, Case No. 09CAA110093 6 connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct. {¶24} Criminal Rule 14 governs relief from prejudicial joinder, and states: {¶25} If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, informations or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires. In ruling on a motion by a defendant for severance, the court shall order the prosecuting attorney to deliver to the court for inspection pursuant to Rule 16(B)(1)(a) any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial. {¶26} Joinder is liberally permitted to conserve judicial resources, reduce the chance of incongruous results in successive trials, and diminish inconvenience to the witnesses. State v. Schaim (1992), 65 Ohio St.3d 51. Joinder of offenses solely because they are of the same or similar character creates a greater risk of prejudice to the defendant, while the benefits from consolidation are reduced because unrelated offenses normally involve different times, separate locations, and distinct sets of witnesses and victims. Id. When a defendant claims he or she was prejudiced by the joinder of multiple offenses, the court must determine (1) whether evidence of the other crimes would be admissible even if the counts were severed; and (2) if not, whether the evidence of each crime is simple and distinct. Schaim, supra, at 59. The defendant bears the burden of proving prejudice and that the trial court abused its discretion in denying severance. Delaware County, Case No. 09CAA110093 7 {¶27} Ohio Evidence Rule 404(B) reads, {¶28} (B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. {¶29} The admissibility of other acts evidence is carefully limited because of the substantial danger that the jury will convict the defendant solely because it assumes that the defendant has a propensity to commit criminal acts, or deserves punishment regardless of whether he or she committed the crime charged in the indictment. See State v. Curry (1975), 43 Ohio St.2d 66, 68, 72 O.O.2d 37, 38, 330 N.E.2d 720, 723. This danger is particularly high when the other acts are very similar to the charged offense, or of an inflammatory nature. State v. Schaim, 65 Ohio St.3d 51, 60, 1992Ohio-31, 600 N.E.2d 661,669; State v. Miley, Richland App. Nos.2005-CA-67, 2006-CA4670; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010-Ohio-2720. {¶30} Evidence of other acts is admissible if (1) there is substantial proof that the alleged other acts were committed by the defendant, and (2) the evidence tends to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. State v. Carter (1971), 26 Ohio St.2d 79, 83, 269 N.E.2d 115, 117; State v. Lowe, 69 Ohio St.3d 527, 530, 1994-Ohio-345, 634 N.E.2d 616, 619. (Citing State v. Broom (1988), 40 Ohio St.3d 277, 282-283, 533 N.E.2d 682, 690-691; Evid.R. 404(B); R.C. 2945.59); Miley, supra; Clay, supra. Delaware County, Case No. 09CAA110093 8 {¶31} In the case at bar, no dispute exists Appellant was the perpetrator. In other words, no dispute exists as to identity. Miley, supra, 2006-Ohio-4670 at ¶ 73; Clay, supra, 2010-Ohio-2720 at ¶ 45. As the identity of the person who had committed the crime was not an issue at trial, the other acts would not have been properly admitted to prove appellant's scheme, plan, or system in committing the crimes charged. Mt. Vernon v. Hayes, Knox App. No. 09-CA-0007, 2009-Ohio-6819 at ¶ 26. For a comparable analysis see also this Court s prior opinions in State v. Ross, Stark App. No. 2009CA00253 (June 22, 2010) and State v. Gresh, Delaware App. No. 09-CAA012-0102 (Nov. 29, 2010).1 {¶32} Additionally, Appellant did not claim mistake or accident. Rather, Appellant denied committing the sexual acts altogether. {¶33} We find the probative value of the evidence at issue is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. The similarities between the sexual abuses committed against each victim and the inflammatory nature of the offenses elevates the risk of prejudice to the degree the trial court should have severed the offenses. See, State v. Kaufman (March 31, 2010), Mahoning App. No. 08MA57, 2010-Ohio-1536. {¶34} In State v. Frazier (March 11, 2004), Cuyahoga App. No. 83024, 2004Ohio-1536, the Eighth District addressed this issue and found the evidence of the other sexually related actions would not have been admissible in both trials if the offenses had been tried separately. 1 The court noted this combined with the fact that the Unlike our decisions in Ross and Gresh, supra, we do not find the other evidence in this case comprises overwhelming evidence of Appellant s guilt beyond a reasonable doubt. Delaware County, Case No. 09CAA110093 9 offenses against each victim varied in degree and that the testimony by each victim was similar, the fact-finder would have had a very difficult time looking at the evidence supporting each offense as simple and distinct because the temptation would be too great to respond to the evidence emotionally rather than rationally. Id. {¶35} We find the evidence as to each victim would not be admissible in both trials if the offenses were tried separately, and the varying degree of testimony as to each victim obscures a finding as to the evidence being simple and direct. {¶36} Appellant further maintains the trial court erred in denying his motion in limine to prohibit the testimony of Joyce Mangold Lee as to her prior sexual encounter with Appellant thirteen years prior. Lee testified when she was fourteen years-old she lived near Appellant. While she was visiting a friend s house, Lee testified Appellant put his hand up her skirt. The trial court admitted the evidence over objection. {¶37} Again, the other acts evidence presented in the testimony is not necessary to demonstrate motive, intent or a modus operandi. Intent and motive are usually obvious in sexual abuse cases, and Appellant s defense did not challenge the State s case in this regard. Rather, the Appellant argued as a defense he did not commit the offenses. Further, Appellant s encounter with Lee is not necessary to establish a behavioral fingerprint to identify Appellant. Accordingly, we conclude the trial court erred in admitting the testimony of Ms. Lee. {¶38} For the reasons set forth above, we sustain Appellant s first and second assignments of error. Delaware County, Case No. 09CAA110093 10 III, IV, V, VI, VII, VIII {¶39} Based upon our analysis and disposition of Appellant s first and second assignments of error, we find Appellant s third, fourth, fifth, sixth, seventh and eighth assignments of error are moot. {¶40} Appellant s convictions in the Delaware County Court of Common Pleas are reversed, and the matter is remanded to the trial court for further proceedings in accordance with the law and this opinion. By: Hoffman, J. Edwards, P.J. and Gwin, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN Delaware County, Case No. 09CAA110093 11 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsORAL SLAVEN Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. 09CAA110093 For the reasons stated in our accompanying Opinion, Appellant s convictions entered by the Delaware County Court of Common Pleas are reversed, and the matter is remanded to the trial court for further proceedings in accordance with the law and our Opinion. Costs to Appellee. s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN

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