author: Cunningham, Judge. Mock, P.J., concurring in part and dissenting in part.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Christopher BEDELL, Defendant-Appellant.
    NO. C-160911
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: February 28, 2018
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, Cincinnati, for Plaintiff-Appellee.
    Roger W. Kirk, Cincinnati, for Defendant-Appellant.
    OPINION.
   Cunningham, Judge.

{¶ 1} Defendant-appellant Christopher Bedell appeals his convictions for gross sexual imposition. Bedell challenges the sufficiency and weight of the evidence to support his convictions, raises claims of prosecutorial misconduct and ineffective assistance of trial counsel, and argues that his sentences were erroneous. Because Bedell demonstrated plain error resulting from the trial court's consideration of an incorrect sentencing range when determining his sentences, we vacate the sentences and remand for further proceedings. In all other respects we affirm.

I. Background Facts and Procedure

{¶ 2} On May 7, 2015, nine-year-old M.S. and her younger sister T.S. were living with Bedell, who was their legal custodian. Bedell's wife, Twayna, also lived with them. That morning, the girls were getting dressed for school after Twanya had left for work. M.S. asked Bedell for assistance "snapping" her bra, which closed in the back. Bedell put his hands down M.S.'s pants and inside her underwear, and rubbed her vagina. When M.S. told him that she needed to finish getting ready for school, he asked her if she wanted him to pick her up from school early so they "could have a little drinky drink and have some fun." M.S. told him "no" and reminded him that she had after-school choir practice that day.

{¶ 3} M.S. and T.S. then walked to their neighborhood elementary school. Later that morning, M.S. appeared unusually "sad and quiet" during her weekly individual therapy session with Jamie Baxter, who had been assigned to provide M.S. with community-health school-based services for symptoms of Attention Deficit/Hyperactivity Disorder. When Baxter asked M.S. what was wrong, M.S. told her what had happened at home. M.S. also revealed to Baxter other instances when Bedell's hand had touched her "privates."

{¶ 4} After Baxter contacted the relevant authorities, Megan Foley of the Mayerson Unit at the Hamilton County Department of Job and Family Services was assigned to investigate the allegations. Foley responded to M.S.'s school that same day and spoke with M.S. in Baxter's office about her home life. According to Foley, M.S. told her that Bedell had groped her "private parts" that morning while helping her put on her bra and had digitally penetrated her. M.S. also conveyed concern that Bedell was going to pick her up early from school and do it again. M.S. told of other instances when Bedell had had sexual contact with her, including when helping her with her bra and when she was laying on his bed watching a movie.

{¶ 5} Foley took both M.S. and T.S. to be examined at Children's Hospital. At Children's, M.S. was interviewed by Beth Hutson, a social worker in the emergency department. Hutson recalled that M.S. was shaking during the interview. Among other things, M.S. told Hutson that in the morning Bedell had touched her all over, had put his hand or part of his hand into her vagina, and had licked and kissed her butt. M.S. said she did not want to return to his home and was concerned that Bedell wanted to "drink" with her and "do it" after school.

{¶ 6} Later that same day, M.S. was examined by an emergency room physician and a pediatric sexual assault nurse examiner, who swabbed M.S.'s back when compiling a sexual assault evidence kit. M.S. and her sister did not return to Bedell's home and were placed with a foster family.

{¶ 7} About three weeks later, Andrea Richey, a social worker with Children's Hospital, conducted a forensic interview with M.S. At that time, M.S. indicated that on May 7, when she had asked him to help her with her bra, Bedell had touched her all over her body with his hand, including touching her inside her "body part"-meaning her vagina. M.S. also recalled that Bedell had told her he was going to pick her up early from school that day so that they could "do it," which to her meant the same type of conduct. M.S. accused Bedell of one time touching her "body part" with his "body part." She also described Bedell as "mean" because he hit her and her sister.

{¶ 8} Cincinnati Police Detective Hollis Hudepohl interviewed Bedell with his attorney on June 18, 2015. While Bedell did not make any incriminating statements as to committing sexual acts, he confirmed that he had helped M.S. with her bra in the mornings and that he had given her malt liquor in the past "to let her taste it hoping she wouldn't like it." In response to the detective's inquiry about whether his DNA would be found on M.S.'s body, Bedell informed him that it was possible that his nose may have touched her on the morning of May 7 when he checked to make sure she was not "dirty or smelly." But ultimately Bedell's DNA was not found on M.S.'s body.

{¶ 9} Later, Bedell was indicted on two counts of rape and two counts of gross sexual imposition involving M.S. The case proceeded to a bench trial. The trial court granted Bedell's Crim.R. 29 motion with respect to the rape charges after M.S. did not testify to any vaginal penetration. After the state rested, Bedell did not present any testimony, but he did move into evidence a note M.S. had written to Twanya, whom she addressed as "mom." In the note, M.S. apologized to Twanya for lying about taking a cookie, and told her that she "love[d]" her.

{¶ 10} The trial court found Bedell guilty on both counts of gross sexual imposition and proceeded to sentence him without delay. Just before the court announced Bedell's sentences of concurrent 36-month prison terms, the prosecutor confirmed for the trial court that the sentencing range for the offense was "36 months to 60 months."

II. Analysis

{¶ 11} In his second assignment of error, which we address first, Bedell contends that his convictions were not supported by sufficient evidence. This court's inquiry when reviewing a claim of insufficient evidence "is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

{¶ 12} Bedell was convicted on two counts of gross sexual imposition in violation of R.C. 2907.05(A)(4). To prove these charges, the state had to show Bedell had "sexual contact" with M.S. on at least two occasions when she was less than 13 years old. " 'Sexual contact' means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttocks, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B).

{¶ 13} At trial, M.S. unequivocally explained how Bedell had put his hands inside her underwear and rubbed her vagina on the morning of May 7, 2015, when she was nine years old. She further indicated that he had engaged in similar conduct on previous occasions and had also previously rubbed her thighs and breasts. Despite the lack of any physical evidence to corroborate M.S.'s testimony, this testimony was sufficient evidence to demonstrate that Bedell had two separate and distinct sexual contacts with M.S. when she was under the age of 13, as charged by the state.

{¶ 14} Next Bedell claims his convictions were against the weight of the evidence. Bedell argues that M.S. had a "total failure of credibility" because her testimony at trial conflicted in part with other witnesses' recollections of M.S.'s statements to them during the investigation. For example, Hutson testified that M.S. had told her that she had been "raped" by her mother's boyfriend when she was four and that Bedell was doing the same thing to her. And when Hutson asked M.S. about the incident on the morning of May 7, M.S. indicated she had been wearing a towel, which conflicted with M.S,'s testimony at trial that she had been wearing pants. Further, while M.S. did not testify to any vaginal penetration or penile-vaginal contact-just the "rubbing" of her vagina when his hands were inside her underwear-Foley, Hutson, and Richey all testified M.S. had told them that Bedell's hand or part of his hand had entered her vagina on May 7, and that on at least one occasion there had been penile-vaginal contact.

{¶ 15} Bedell contends also that M.S. wanted to live with her grandparents, and this desire was strong proof she fabricated the instances of sexual abuse so she would be removed from Bedell's home. In support, Bedell cites M.S.'s testimony that she would like to live with her grandparents. He cites also Richey's testimony that M.S. had expressed a desire to live with her grandparents during the interview on May 26, 2015, which occurred after M.S. had been placed in a foster home.

{¶ 16} In determining whether the judgment of conviction is against the manifest weight of the evidence, "th[is] court, reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983), quoted in State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶ 17} Upon our review of the entire record, we hold there is no basis to conclude that the trial court lost its way and created a manifest miscarriage of justice in resolving the factual issues against Bedell. M.S. was thoroughly cross-examined on the sexual contact on May 7, 2015, and on the earlier days. She did not waiver in her testimony, and this testimony was entirely consistent with her disclosure to Baxter shortly after the sexual contact. This initial disclosure occurred closest to the abuse and was precipitated by an inquiry by Baxter, who had noticed M.S.'s unusual demeanor during their counselling session. Moreover, at trial, M.S. denied having an ulterior motive for disclosing the abuse that led to her removal from Bedell's home, explaining that she liked living with Twanya, Bedell's spouse. Ultimately, the trial court was in the best position to determine the credibility of the witnesses and to determine what weight to give the evidence. See State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

{¶ 18} Because the record demonstrates that Bedell's convictions were supported by sufficient evidence and were not against the weight of the evidence, we overrule the second assignment of error.

{¶ 19} In his first assignment of error, which we address next, Bedell argues that misconduct by the prosecutor resulted in a denial of his right to a fair trial. Specifically, he contends the prosecutor committed misconduct by asking leading questions of state witnesses. To evaluate the claim, we must determine whether the prosecutor's conduct was improper and whether Bedell was denied a fair trial as a result. See State v. McKelton , 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 257. The "touchstone" of the analysis "is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips , 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

{¶ 20} Leading questions, which suggest the examiner's desired answer to the witness, "should not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony." Evid.R. 611(C). Although Bedell cites to transcript page numbers in his brief, he does not otherwise identify the questions he contends were improperly leading, and he fails to articulate how he was prejudiced by this questioning. Further, during the trial, counsel did not object to any question on the referenced pages on the ground that it was a leading question. Thus, Bedell forfeited all but plain error with respect to the challenged questioning. Because Bedell failed to analyze the propriety of specific questions or explain how they prejudiced him, we reject his claim of prosecutorial misconduct, see McKelton at ¶ 264, including misconduct that resulted in plain error, see State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Accordingly, we overrule his first assignment of error.

{¶ 21} In his third assignment of error, Bedell contends that he was denied the effective assistance of trial counsel. To disturb a conviction based on such a claim, Bedell must prove that counsel violated an essential duty to him and that he was prejudiced as a result. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Prejudice to the defendant results when there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Bradley at 142, 538 N.E.2d 373, quoting Strickland at 694, 104 S.Ct. 2052.

{¶ 22} When reviewing an ineffective-assistance-of-counsel claim, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Bradley at 143, 538 N.E.2d 373, citing Strickland at 697, 104 S.Ct. 2052. Here, Bedell has failed to show any prejudice.

{¶ 23} Bedell argues that counsel was ineffective for not objecting to the prosecutor's questioning on the ground that it was improperly leading. But in support of this claim, Bedell presents no more than the nonspecific, conclusory assertions that we have already held, in response to the first assignment of error, were insufficient to support a claim of prosecutorial misconduct. Thus, Bedell has failed to demonstrate the result of the trial would have been different had counsel objected.

{¶ 24} Bedell claims also that trial counsel was ineffective for failing to renew his Crim.R. 29 motion to acquit for lack of sufficient evidence on the gross-sexual-imposition charges at the end of the defense's case. But the motion would have been overruled because, as we have already held, in response to the second assignment of error, the evidence was sufficient to support the gross-sexual-imposition charges.

{¶ 25} Finally, Bedell contends that counsel was ineffective for failing to request a presentence investigation ("PSI") before sentencing. The record, however, does not indicate how a PSI would have helped Bedell, as the parties agreed at the sentencing hearing that Bedell had no prior offenses, and defense counsel presented evidence in mitigation at that time. As a result, Bedell cannot show that he was prejudiced by any allegedly deficient performance by counsel.

{¶ 26} Because Bedell's ineffective-assistance-of-counsel claim is meritless, we overrule the third assignment of error.

{¶ 27} In his fourth assignment of error, Bedell challenges his sentences. The trial court imposed concurrent 36-month prison terms, in addition to classifying Bedell as a Tier II sex offender/child victim offender.

{¶ 28} This court reviews sentences under the standard of review set forth in R.C. 2953.08(G)(2). Under that standard, we may modify or vacate Bedell's sentence only if we clearly and convincingly find that the record does not support the trial court's findings or that the sentence is contrary to law. State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 ; State v. White , 2013-Ohio-4225, 997 N.E.2d 629 (1st Dist.).

{¶ 29} Bedell first argues that the court's imposition of any prison term, instead of community control, was the result of the trial court's failure to "adequately" consider the sentencing factors set forth in R.C. 2929.11 and 2929.12. He contends that prison was not warranted where there was no physical injury to the victim and where he had an exemplary background, including no prior convictions. But the trial court is not required to note its consideration of all the sentencing factors, and this court can presume that the court did consider all of the appropriate factors when determining that prison was appropriate where, as here, nothing in the record rebuts that presumption. See State v. Kennedy , 2013-Ohio-4221, 998 N.E.2d 1189, ¶ 118 (1st Dist.).

{¶ 30} Next Bedell argues that his sentences were contrary to law because the trial court applied an incorrect sentencing range when determining the appropriate prison sentence. He explains that a violation of R.C. 2907.05(A)(4) is a third-degree felony offense that subjects a violator to a prison term of 12 to 60 months. See R.C. 2907.05(C)(2) ("Gross sexual imposition committed in violation of [ R.C. 2907.05(A)(4) ] is a felony of the third degree"); R.C. 2929.14(A)(2) ("* * * For a felony of the third degree that is a violation of * * * R.C. 2907.05 * * *, the prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months"). Notwithstanding the law, Bedell contends that at sentencing, the trial court deemed applicable an incorrect, higher range of 36 to 60 months and then imposed the minimum term within that incorrect, higher range.

{¶ 31} While Bedell now argues that the trial court used an erroneous range when determining his sentences, he did not call the error to the attention of the sentencing judge. Therefore, he forfeited all but plain error. Under the authority of Crim.R. 52(B), this court has "discretion to correct '[p]lain errors or defects affecting substantial rights' notwithstanding the accused's failure to meet his obligation to bring those errors to the attention of the trial court." State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22, quoting Crim.R. 52(B).

{¶ 32} The burden of demonstrating plain error rests with the appellant. Id. , citing State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. This entails demonstrating "an error, i.e., a deviation from a legal rule" that constituted "an 'obvious' defect in the trial proceedings." State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), quoted in Rogers at ¶ 22. And the obvious error must have affected the appellant's substantial rights, meaning that "the trial court's error must have affected the outcome of the trial." Id. To meet this burden, the appellant must "demonstrate a reasonable probability that the error resulted in prejudice." Rogers at ¶ 22.

{¶ 33} Notice of plain error under Crim.R. 52(B) is to be taken "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Long , 53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph three of the syllabus. If the conditions to establish the plain error have been met, an appellate court should exercise its discretion to correct the error if it " 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " (Internal citations omitted.) United States v. Olano , 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), cited in Barnes at 27, 759 N.E.2d 1240 ; Molina-Martinez v. United States , --- U.S. ----, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016), quoting Olano .

{¶ 34} Here, the state does not contradict Bedell's assertion that the trial court erroneously applied a sentencing range of 36 to 60 months when sentencing him. And, on the record before us, we conclude the only reasonable interpretation of the court's comments at sentencing is the one presented by Bedell.

{¶ 35} The transcript of the proceedings indicates that the trial court proceeded directly to sentencing after finding Bedell guilty. At that time, defense counsel presented mitigating facts and asked the court to give Bedell credit for the 303 days that he had served, which defense counsel incorrectly characterized as "more than what the minimum sentence would be for the offense" of gross sexual imposition. The prosecutor then addressed the court and requested prison time, a request supported by a statement from the victim's grandfather. Next, Bedell and his father addressed the court and both proclaimed Bedell's innocence. The following then transpired with respect to Bedell's sentencing:

The court: In considering the purposes and principles of sentencing, I recognize that the statute provides that in this case, there's a presumption of prison. In the event there was corroboration there would be mandatory prison time. But the evidence didn't show, to my determination, that there was corroboration. Considering other factors, the injury to-in this case was exacerbated by the age of the victim and also by the offender's relationship to the victim and his duty to protect and safeguard this child. I also recognize that there are-he has no prior convictions. Does the state confirm that?
The prosecutor: That's correct, Judge.
The court: And it appears he has lived to this-up to this time and aside from what we know in this case a law-abiding life. Doesn't seem to show remorse and continues to deny the offense. Considering there's two counts here I've also considered whether or not it would be appropriate for consecutive sentences. And it's my finding that the factors for consecutive sentences do not exist. Therefore, as to Count 2, wherein the charge is gross sexual imposition and Court 4, wherein the charge is gross sexual imposition, in both cases felonies of the third degree-and counsel, it's my understanding that it's the higher level of the sentencing range? Am I correct?
The prosecutor: Yes.
The defense counsel: Correct. 60 months.
The court: We're talking 36 months to 60 months, correct?
The prosecutor: Yes.
The court: It's the sentence of the Court that the defendant serve a period of 36 months at the Ohio Department of Corrections as to each count. Those sentences can be served concurrently. I will credit time served. Have we calculated that?
The baliff: 302.
The court: Credit 302 days served at the Hamilton County Justice Center.

{¶ 36} In summary, when announcing its sentencing decision, the court expressly and correctly referred to the fact that the offenses Bedell committed fell within "the higher level of the sentencing range" for third-degree felonies. Although the court did not repeat the word "range," the court next asked, "We're talking 36 to 60 months, correct?" and the prosecutor replied "correct."

{¶ 37} The court misunderstood the sentencing range, however, because the sentencing range it inquired about for high-tier third-degree felonies is 12 to 60 months, and the range for low-tier third-degree felonies is 9 to 36 months. And without a correction of this misunderstanding, the court immediately imposed the concurrent 36-month prison terms that Bedell now challenges. This record, therefore, unequivocally demonstrates the sentencing judge misunderstood the applicable sentencing range for the offense and sentenced Bedell with that misunderstanding.

{¶ 38} On the state of this record, including the timing of the court's challenged comments, we are unable to concur with the dissent's suggestion that the judge was merely expressing his intent to sentence within the higher level of the appropriate sentencing range when he asked, "We're talking 36 months to 60 months, correct?" Instead, we conclude that Bedell has demonstrated an obvious error by the trial court in the proceedings below.

{¶ 39} Bedell argues that he was prejudiced by this error because the trial court selected the minimum term from the erroneous, higher range when sentencing him.

{¶ 40} When analyzing Bedell's claim of prejudice, we are mindful that, under Ohio's sentencing framework, the sentencing range mandated by statute is the starting point for sentences involving prison terms. See R.C. 2929.14(A) and 2929.13(A). Logically, therefore, the sentencing court's mere use of an incorrect, higher range would typically demonstrate prejudice to the defendant, even though the ultimate sentence fell within the correct range. See, e.g., Molina-Martinez at 1345 (rejecting a requirement that a petitioner sentenced under an incorrect-but-unobjected-to sentencing guideline range, but whose sentence was also within the correct range, must identify additional evidence to show that his sentence would be different absent the clear error).

{¶ 41} While not required to do so to, Bedell additionally showed that the trial court imposed the minimum term within that incorrect, higher range. The state does not present an argument to counter Bedell's showing of prejudice. Thus, on this record, we hold that Bedell demonstrated a reasonable probability that the sentencing court would have imposed a different, lower sentence if the court had applied the correct sentencing range. Therefore, we conclude that Bedell met his burden of establishing that the obvious error affected his substantial rights. We do not determine, as represented by the dissent, that the trial court in fact intended to impose a minimum prison term, only that Bedell met the standard required to establish prejudice under plain-error analysis.

{¶ 42} Finally, we conclude that this obvious error affecting Bedell's substantial rights impugns the integrity of the judicial process and is one that should be corrected at resentencing. See, e.g., United States v. Sabillon-Umana , 772 F.3d 1328, 1333 (10th Cir.2014) ("[W]e can think of few things that affect an individual's substantial rights or the public's perception of the fairness and integrity of the judicial process more than a reasonable probability an individual will linger longer in prison than the law demands only because of an obvious judicial mistake [involving the application of an incorrect advisory guidelines range]").

{¶ 43} Thus, here, the court's application of an incorrect, higher sentencing range rose to the level of plain error that must be corrected. For these reasons, we sustain the fourth assignment of error.

III. Conclusion

{¶ 44} Accordingly, the trial court's imposition of concurrent 36-month prison terms is vacated and the cause is remanded for resentencing in accordance with the law and this opinion. In all other respects, we affirm the trial court's judgment.

Judgment accordingly.

Zayas, J., concurs.

Mock, concurs in part and dissents in part.

Mock, P.J., concurring in part and dissenting in part.

{¶ 45} After a review of the record, I cannot agree that the trial court's statement "[w]e're talking 36 months to 60 months" amounts to plain error. I agree with the majority in all other respects.

{¶ 46} Crim.R. 52(B) affords appellate courts discretion to correct "[p]lain errors or defects affecting substantial rights" notwithstanding the accused's failure to meet his obligation to bring those errors to the attention of the trial court. State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21. The accused must demonstrate plain error on the record-showing "an error, i.e., a deviation from a legal rule" that constitutes "an 'obvious' defect in the trial proceedings." State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). But even if the error is obvious, it must have affected substantial rights, and must have affected the outcome of the trial. Id. The accused is therefore required to demonstrate a reasonable probability that the error resulted in prejudice-the same deferential standard for reviewing ineffective assistance of counsel claims. Rogers , citing United States v. Dominguez Benitez , 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

{¶ 47} But even if an accused shows that the trial court committed plain error affecting the outcome of the proceeding, an appellate court is not required to correct it; we have "admonish[ed] courts to notice plain error 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice .' " (Emphasis added.) Rogers at ¶ 23, citing Barnes at 27, 759 N.E.2d 1240.

{¶ 48} In this case, I do not believe that the only fair reading of the transcript of the sentencing hearing is one that concludes that the trial court did not understand the range of available sentences for Bedell in this case. During the sentencing hearing, defense counsel said that "[h]e has been incarcerated for-at this point about 303 days. * * * I'd ask the court to take into consideration he has served more than what the minimum sentence would be for the gross sexual imposition charge and to allow him to have credit for time served for what the Court has found him guilty of." The state then indicated that it was "asking for prison time."

{¶ 49} The trial court then said that

[i]n considering the purposes and principles of sentencing, I recognize that the statute provides that in this case there's a presumption of prison. In the event that there was corroboration there would have been mandatory prison time. But the evidence did not show, to my determination, that there was corroboration. Considering other factors, the injury to-in this case was exacerbated by the age of the victim and also by the offender's relationship to the victim and his duty to protect and safeguard this child.

And while the trial court recognized that this was his first offense, the court also noted that Bedell

[didn't] seem to show any remorse and continues to deny the offense. * * * Therefore, as to Count 2, wherein the charge is gross sexual imposition and Count 4, wherein the charge is gross sexual imposition, in both cases felonies of the third degree-and, counsel, it's my understanding that it's the higher level of the sentencing range? Am I correct?

When the state responded in the affirmative, and defense counsel said "[c]orrect-60 months." The trial court said "[w]e're talking 36 to 60 months," to which the state responded "correct" and defense counsel was silent. The trial court concluded that "[i]t's the sentence of the Court that the defendant serve a period of 36 months at the Ohio Department of Corrections as to each count. Those sentences can be served concurrently. I will credit time served."

{¶ 50} The majority makes two observations with which I cannot agree. First, the majority says that "the trial court committed an obvious error when it applied a sentencing range of 36 to 60 months in determining Bedell's sentences, contrary to the provisions set forth in the sentencing statutes." The majority also concludes that "Bedell additionally showed that the trial court imposed the minimum term within the correct, higher range," making the assumption that the trial court had intended to impose a minimum sentence and did so within a range it incorrectly believed had applied.

{¶ 51} "A reviewing court must presume that the trial court applied the law correctly." State v. Coombs , 18 Ohio St.3d 123, 125, 480 N.E.2d 414 (1985), citing State v. Eubank , 60 Ohio St.2d 183, 398 N.E.2d 567 (1979). This is especially true in the context of plain error, where-as here-a misstatement or ambiguous comment could have been addressed at the time in such a way that the misstatement or ambiguity could have been corrected.

{¶ 52} In beginning to analyze the issue, I start with the observation that there is nothing in the record to support the conclusion that the trial court intended to give the minimum possible sentence. First, the trial court obviously never actually said it wanted to impose the minimum sentence. Second, when considering the sentencing factors, the trial court first noted that the victim's injury was exacerbated by her age and that Bedell's relationship with the victim facilitated the offense. Both are factors that indicate "that [Bedell's] conduct [was] more serious than conduct normally constituting the offense." See R.C. 2929.12(B). Additionally, the trial court found that Bedell showed no genuine remorse, indicating that he is more likely to reoffend. See R.C. 2929.12(D). The only sentencing factor in Bedell's favor was the fact that Bedell had no previous criminal record. See R.C. 2929.12(E). These findings do not lend themselves to the conclusion that the trial court had intended to impose the minimum sentence.

{¶ 53} Additionally, while the trial court's statement "it's my understanding that it's the higher level of the sentencing range" and "[w]e're talking 36 to 60 months" could be read as the trial court misunderstanding the applicable sentencing range, it could also be read-in light of the trial court's sentencing determinations-that it intended to sentence within the higher level within the sentencing range. In this context, it is noteworthy that defense counsel had initially suggested that Bedell be sentenced to time served for the offense. Having heard that, and knowing that Bedell had served less than a year awaiting trial, the record contains some indication that the trial court had been made aware that the minimum sentence was not 36 months. Additionally, defense counsel did not say anything to correct the trial court when it said "[w]e're talking 36 to 60 months," which may indicate that the parties involved had a different understanding of what the trial court was saying than the majority has surmised.

{¶ 54} In this case, the record is susceptible to more than one interpretation. Therefore, I would conclude that Bedell has failed to demonstrate that there is an "obvious" defect in the proceedings such that this court can find plain error. See State v. Stojetz , 84 Ohio St.3d 452, 462, 705 N.E.2d 329 (1999) (finding no plain error, in part, because "the transcript passages at issue are subject to more than one interpretation"-one indicating error and the other indicating no error). As a result, I would overrule all assignments of error and affirm the judgment of the trial court.


source: Caselaw Access Project

author: HORTON, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellant, v. Titus THOMAS, Defendant-Appellee.
    No. 16AP-852
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 1, 2018
    On brief: Ron O'Brien, Prosecuting Attorney, Steven L. Taylor and Seth L. Gilbert, for appellant.
    On brief: Yeura R. Venters, Public Defender, and Timothy E. Pierce, Columbus, for appellee.
    DECISION
   HORTON, J.

{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a judgment of the Franklin County Court of Common Pleas in which the trial court granted the motion to suppress of defendant-appellee, Titus Thomas. For the following reasons, we affirm the judgment.

I. Facts and Procedural History

{¶ 2} Thomas was indicted on one count of carrying a concealed weapon, a violation of R.C. 2923.12, and one count of having a weapon while under a disability, a violation of R.C. 2923.13, for an offense alleged to have occurred on or about July 12, 2016. (July 22, 2016 Indictment.) Thomas filed a motion to suppress the evidence that the state intended to introduce as evidence to prove its case, alleging it constituted fruits of an unconstitutional search and seizure. (Sept. 19, 2016 Mot. to Suppress.)

{¶ 3} The trial court held an evidentiary hearing on the motion on December 6, 2016. At the hearing, the state called Columbus Police Officer Joseph Houseberg as the first witness. Officer Houseberg testified that he has been a patrol officer for nine years and was on patrol with his partner, Officer Brumfield, on July 12, 2016, at approximately 6:00 p.m. They were in a marked cruiser travelling eastbound on Hildreth Avenue when they saw Thomas walking eastbound on the north side of the street. Both officers noticed a single firearm magazine attached to his belt on his left hip. Officer Houseberg stated that he saw Thomas look back towards the cruiser and then move his shirt so it covered the magazine. The officers stopped the cruiser in front of 1436 Hildreth Avenue and saw Thomas turn to go up the stairs to the house. When Thomas "turned, his right side, his shirt kind of pressed against his right side and gave a textbook outline of a-of a firearm." (Tr. at 12.) Officer Houseberg testified he is very familiar with a firearm concealed in that manner. (Tr. at 13-14.)

{¶ 4} Officer Brumfield asked Thomas whether he had a permit for the gun and Thomas replied, "what gun and went up the stairs and into the house immediately." (Tr. at 12.) The officers requested backup help and exited the cruiser. Officer Houseberg went around the side of the house in order to monitor the back and prevent Thomas from exiting through the back of the house. Officer Brumfield went to the front door and kicked the door open. Officer Houseberg heard Officer Brumfield giving Thomas commands to get on the ground and so Officer Houseberg followed them into the house. Officer Houseberg deployed his taser on Thomas and the officers took Thomas into custody. Thomas had a firearm on his right side and the magazine on his left side.

{¶ 5} Officer Bryan Brumfield testified that he and Officer Houseberg were on patrol and saw a magazine and holster on Thomas as he was walking eastbound on Hildreth Avenue. Officer Brumfield stated he saw Thomas look back toward the cruiser and then move his shirt to cover the magazine. Officer Brumfield testified that he asked Thomas whether he had a permit for that pistol. Thomas answered, he "did not have a gun" and then he turned to his right and Officer Brumfield saw "a clear outline of the firearm on his hip." (Tr. at 40-41.) Thomas then "made a straight dash into the house." (Tr. at 28.) Officer Brumfield stated Thomas was "running" inside and the officer pursued him. (Tr. at 41.)

{¶ 6} Officer Brumfield stated that he followed Thomas into the house. The screen door was open, but the front door was closed so he kicked it open. When Officer Brumfield was struggling to get one of Thomas' hands behind his back, Thomas' shirt lifted and the firearm was visible. (Tr. at 33.) Officer Brumfield testified that carrying a magazine without a firearm is not a crime.

{¶ 7} Thomas called two witnesses. The first witness was Darlene Williams who lives at 1436 Hildreth Avenue with her husband and three children. She had invited Thomas over for a party for her birthday. She drove Thomas to her house and he had been there approximately two hours when he walked to the corner store to buy potato chips. She drove to the liquor store at the same time. As she returned, she parked in front of her house and Thomas had also returned and was walking onto the porch. Williams heard the police officer ask Thomas if he had a permit and Thomas denied having a weapon. Thomas then went into the house and closed the door. Williams stated that the officer "jumped out of the car with his gun" and "kicked the door." (Tr. at 53.) Williams heard the officer tell Thomas, "Get the F down, get the F down." (Tr. at 53.) She did not enter the house because the officers told her family to stay outside, but she could see Thomas on the ground and an officer with his taser and gun drawn. (Tr. at 53.)

{¶ 8} The final witness was Sabrea Watts, Williams' daughter. Watts testified that she lives at 1436 Hildreth Avenue with her parents and siblings. She attends Wright State University but was home during the summer. Thomas was at her house for a birthday party. He had been at the house for several hours when he walked to the store. Watts was sitting on the front porch when Thomas returned with chips. Watts testified that when Thomas was opening the screen door, the police officers stopped in front of her house and asked Thomas if he had a permit. Watts recalled that Thomas denied having a weapon and went inside the house. The police officers followed Thomas with their guns drawn and kicked open the door. (Tr. at 70-71.) Watts stated that Thomas was on the ground but the officers were yelling, "Get the fuck on the ground, get the fuck on the ground." (Tr. at 71.) Watts saw the officers use the taser on Thomas but never saw Thomas with a firearm. Watts testified that the door was slightly ajar when the officer kicked it open. (Tr. at 77.)

{¶ 9} After the hearing, the trial court concluded that the police officers did not have the legal authority to seize and search Thomas without a warrant. The trial court granted the motion to suppress.

II. Assignments of Error

{¶ 10} The state of Ohio filed a timely notice of appeal and asserts four assignments of error:

[I.] THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT THERE WAS NO PROBABLE CAUSE TO ARREST DEFENDANT AND WHEN IT FURTHER CONCLUDED THAT THE HANDGUN MUST BE SUPPRESSED BECAUSE OF THE LACK OF PROBABLE CAUSE AND REASONABLE SUSPICION.
[II.] THE TRIAL COURT ERRED IN CONCLUDING THAT THE OFFICERS' ENTRY INTO THE RESIDENCE VIOLATED THE FOURTH AMENDMENT AND REQUIRED SUPPRESSION OF THE GUN.
[III.] THE TRIAL COURT ERRED WHEN IT REFUSED TO APPLY THE GOOD-FAITH EXCEPTION.
[IV.] THE TRIAL COURT ERRED WHEN IT HELD THAT THE NON-EXCLUSIONARY RULE ENUNCIATED BY STATE v. LINDWAY , 131 OHIO ST. 166 [2 N.E.2d 490] (1936), UNDER ARTICLE I, SECTION 14, OF THE OHIO CONSTITUTION HAD BEEN "EXPLICITLY AND IMPLICITLY OVERRULED BY THE UNITED STATES SUPREME COURT IN MAPP v. OHIO , 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081] (1961)."

III. Standard of Review

{¶ 11} "Appellate review of a motion to suppress presents a mixed question of law and fact." State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8, 797 N.E.2d 71. This court "must accept the trial court's findings of fact if they are supported by competent, credible evidence." Id. , citing State v. Fanning , 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). "Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id. , citing State v. McNamara , 124 Ohio App.3d 706, 710, 707 N.E.2d 539 (4th Dist. 1997). Thus, " '[d]eterminations of reasonable suspicion and probable cause should be reviewed de novo on appeal.' " Columbus v. Ellyson , 10th Dist. No. 05AP-573, 2006-Ohio-2075, 2006 WL 1102765, ¶ 4, quoting Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

IV. Analysis

A. First Assignment of Error

{¶ 12} The state contends in its first assignment of error that the trial court erred when it concluded that there was no probable cause to arrest Thomas and when it further concluded that the handgun must be suppressed because of the lack of probable cause and reasonable suspicion.

{¶ 13} The trial court found that the officers did not have the legal authority to seize and search Thomas without a warrant because they did not have reasonable suspicion of criminal activity to justify a Terry stop and thus, they did not have probable cause to justify invoking the exigent circumstances exception to the warrant requirement. The trial court determined that the Constitutions of the United States and Ohio do not permit the officers to chase a defendant, kick in the door to a house the defendant had been invited into, and tase him when the underlying concern was the commission of a legal act in carrying a firearm.

{¶ 14} "The Fourth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment, as well as the Ohio Constitution, Article I, Section 14, prohibit the government from conducting warrantless searches and seizures, rendering them per se unreasonable unless an exception applies." State v. Hairston , 10th Dist. No. 16AP-294, 2017-Ohio-7612, 2017 WL 4074578, ¶ 9, quoting State v. Goodloe , 10th Dist. No. 13AP-141, 2013-Ohio-4934, 2013 WL 5972402, ¶ 6, citing State v. Mendoza , 10th Dist. No. 08AP-645, 2009-Ohio-1182, 2009 WL 690204, ¶ 11, citing Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The United States Supreme Court recognizes three categories of police interaction with citizens: a consensual encounter, an investigatory detention, and an arrest. In re Parks , 10th Dist. No. 04AP-355, 2004-Ohio-6449, 2004 WL 2757852, ¶ 7, citing Florida v. Royer , 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

{¶ 15} A consensual encounter occurs when the police approach a person in a public place, the police engage the person in a conversation and the person remains free not to answer or to walk away. United States v. Mendenhall , 446 U.S. 544, 555, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Even if the police ask questions and ask to see the person's identification or to search belongings, the encounter remains consensual as long as, " 'the police do not convey a message that compliance with their requests is required.' " State v. Franklin , 97 Ohio St.3d 1, 2002-Ohio-5304, ¶ 11, 776 N.E.2d 26, quoting Florida v. Bostick , 501 U.S. 429, 435, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). A consensual encounter does not involve the Fourth Amendment. In re Parks at ¶ 7. If a police officer restricts the freedom to walk away, the result is a "seizure" of the individual and the officer's conduct implicates the Fourth Amendment. Id. , citing Brown v. Texas , 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). To determine whether a seizure occurs, the question is whether, in view of all the circumstances, a reasonable person would believe he or she was not free to leave. State v. Moyer , 10th Dist. No. 09AP-434, 2009-Ohio-6777, 2009 WL 4936383, ¶ 13, citing State v. Bell , 6th Dist. No. L-03-1015, 2004-Ohio-1327, 2004 WL 540960, ¶ 19, quoting Mendenhall at 554, 100 S.Ct. 1870.

{¶ 16} The second category of police-citizen interaction is an investigatory detention, based on Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Pursuant to Terry , a police officer may stop an individual without probable cause when the officer has a reasonable suspicion based on articulable facts that criminal activity is happening or about to happen. Terry at ¶ 14. An appellate court views the propriety of a police officer's investigative stop in light of the totality of the surrounding circumstances. State v. Bobo , 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph one of the syllabus.

{¶ 17} The third category of police-citizen interaction is a seizure that is equivalent to an arrest. "A seizure is equivalent to an arrest when: 1) there is an intent to arrest; 2) the seizure is made under real or pretended authority; 3) it is accompanied by an actual or constructive seizure or detention; and 4) it is so understood by the person arrested." State v. Taylor , 106 Ohio App.3d 741, 749, 667 N.E.2d 60 (2d Dist. 1995).

{¶ 18} The trial court found that the officers engaged in a consensual encounter with Thomas as he approached the porch of 1436 Hildreth Avenue after they had viewed an ammunition magazine underneath Thomas' shirt. At that point, Thomas was free to leave and the fact the officers then observed the outline of a firearm in Thomas' right hip did not elevate the interaction into an investigatory stop. The trial court found that the police officers did not have reasonable suspicion of criminal activity to justify a Terry stop because the possession of a firearm is not evidence of criminal activity.

{¶ 19} When the officers asked Thomas whether he had a permit, they engaged in a consensual encounter that does not involve the Fourth Amendment. However, we must determine whether Thomas was "seized." Considering the totality of the circumstances in this case, it is clear that when the officers rushed out of the marked cruiser with their guns drawn, kicked the door open, yelled at Thomas repeatedly to, "get the F down" and then used a taser on Thomas, no reasonable person would have believed he was free to leave and Thomas was "seized" within the meaning of the Fourth Amendment.

{¶ 20} We next consider whether Thomas' seizure was reasonable. To be lawful, a Terry stop " 'must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.' " United States v. Black, 707 F.3d 531 (4th Cir. 2013), quoting Reid v. Georgia , 448 U.S. 438, 440, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980). There must be a " 'particularized and objective basis for suspecting the particular person stopped of criminal activity.' " United States v. Griffin , 589 F.3d 148, 152 (4th Cir. 2009), quoting United States v. Cortez , 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). "The officer must be able to articulate more than an 'inchoate and unparticularized suspicion or "hunch" of criminal activity.' " Illinois v. Wardlow , 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), quoting Terry at 27, 88 S.Ct. 1868.

{¶ 21} Here, the totality of the facts fail to support the conclusion that the officers had reasonable and articulable suspicion to detain Thomas. The state argues that since Thomas possessed a firearm underneath his shirt and ammunition, the officers had reasonable and articulable suspicion. However, as the trial court properly noted, "under Ohio law, possession of ammunition and/or a firearm, in and of itself, is not evidence of criminal activity. * * * Ohio citizens have the right to arm themselves." (Dec. 8, 2016 Entry at 5-6.) Consequently, Thomas did not have any obligation to answer the officers' questions. Furthermore, Thomas did not flee from the officers. Officer Houseberg testified Thomas used "a brisk walk" (Tr. at 24), and Williams and Watts testified that Thomas was already opening the screen door when Officer Brumfield asked him whether he had a permit. (Tr. at 51; 70.) Under these circumstances, the officers did not have a reasonable and articulable suspicion to seize Thomas. The state's first assignment of error is overruled.

B. Second Assignment of Error

{¶ 22} In the second assignment of error, the state contends that the trial court erred in concluding that the officers' entry into the residence violated the Fourth Amendment and required suppression of the firearm.

{¶ 23} "Searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York , 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In Kirk v. Louisiana , 536 U.S. 635, 637-38, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002), the United States Supreme Court examined the Payton decision further, as follows:

In Payton , we examined whether the Fourth Amendment was violated by a state statute that authorized officers to 'enter a private residence without a warrant and with force, if necessary, to make a routine felony arrest.' * * * We determined that 'the reasons for upholding warrantless arrests in a public place do not apply to warrantless invasions of the privacy of the home.' * * * We held that because "the Fourth Amendment has drawn a firm line at the entrance to the house...[, a]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant.'

(Citations omitted.) Id. at 637-38, 122 S.Ct. 2458, quoting Payton at 590, 100 S.Ct. 1371.

{¶ 24} Thus, since the officers did not possess a reasonable and articulable suspicion, they did not possess probable cause. Without probable cause and exigent circumstances or a search warrant, they could not chase Thomas into the residence.

While it may have appeared to be, this was not an instance where martial law was in effect. The United States Constitution and the Ohio Constitution safeguard our rights as citizens to be free from warrantless seizure or entry by the police into our homes.

{¶ 25} Contrary to the state's assertion, the facts in this case do not support the existence of exigent circumstances. An exception to the warrant requirement " 'permits warrantless felony arrests in the home if both probable cause to arrest and exigent circumstances are present.' " State v. Enyart , 10th Dist. No. 08AP-184, 2010-Ohio-5623, 2010 WL 4681889, ¶ 18, quoting State v. Jenkins , 104 Ohio App.3d 265, 268, 661 N.E.2d 806 (1st Dist. 1995), citing Payton at 583-90, 100 S.Ct. 1371. " 'An exigent circumstance is one that prompts police officers to believe either that a person in the home is in need of immediate aid to prevent a threat to life or limb, or that immediate entry is necessary to stop the imminent loss, removal, or destruction of evidence or contraband.' " Id. at ¶ 20, quoting State v. Karle , 144 Ohio App.3d 125, 131, 759 N.E.2d 815 (1st Dist. 2001). The state has the burden of demonstrating exigent circumstances. Id. An objective test that looks at the totality of the circumstances confronting the police officers at the time of entry is used to determine whether exigent circumstances exist. Id. at ¶ 21, citing United States v. MacDonald , 916 F.2d 766, 769 (2d Cir. 1990). " '[A] warrantless entry to prevent the destruction of evidence is justified if the government demonstrates: "(1) a reasonable belief that third parties are inside the dwelling; and (2) a reasonable belief that these third parties may soon become aware the police are on their trail, so that the destruction of evidence would be in order." ' " Id. at ¶ 21, quoting United States v. Lewis , 231 F.3d 238, 241 (6th Cir. 2000), quoting United States v. Sangineto-Miranda , 859 F.2d 1501, 1512 (6th Cir. 1988).

{¶ 26} The state argues that exigent circumstances existed because of the fear of an imminent destruction of evidence, the danger the firearm posed to others, and the hot-pursuit doctrine. The totality of the circumstances reveal that none of the exceptions were supported. Thomas answered the officers' questions before terminating the consensual encounter, as was his right, by walking into the house. The officers gave no indication to Mrs. Williams of any exigent circumstance requiring them to enter the house or warning that supports the state's assertion that the officers believed the firearm posed a danger to anyone. Nor was there evidence presented by the state to support its assertion that the officers reasonably believed that destruction of the firearm was imminent. The record does not demonstrate that at the moment Thomas entered the house, he was even aware that the officers were exiting the cruiser with the intention of pursuing and seizing him. Because the officers failed to provide any testimony to support a finding of exigent circumstances, the trial court properly found exigent circumstances did not exist under these facts. Since we have determined the trial court did not err in finding that no probable cause existed, there is no basis to invoke the exigent circumstances exception to the warrant requirement. Warrantless felony arrests inside a residence are permitted if both probable cause and exigent circumstances exist. The state's second assignment of error is overruled.

C. Third Assignment of Error

{¶ 27} As the third and fourth assignments of error are related, we shall address them together. In its third assignment of error, the state contends that the trial court erred when it refused to apply the good-faith exception. In its fourth assignment of error, the state argues that the trial court erred when it held that the non-exclusionary rule as set forth in State v. Lindway , 131 Ohio St. 166, 2 N.E.2d 490 (1936) has been "explicitly and implicitly overruled by the United States Supreme Court in Mapp v. Ohio , 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)."

{¶ 28} "Except in circumstances where an established exception exists, the United States Constitution has been interpreted to presume that arrests and searches are unreasonable if not conducted pursuant to a warrant." State v. Dickman , 10th Dist. No. 14AP-597, 2015-Ohio-1915, 34 N.E.3d 488, ¶ 22. The exclusionary rule provides that when a violation of the Fourth Amendment occurs, items obtained through such violations are not to be used in court. Id. However, the fact that a Fourth Amendment violation occurred does not necessarily mean that the exclusionary rule applies. Herring v. United States , 555 U.S. 135, 140, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). The United States Supreme Court has stated that "exclusion 'has always been our last resort, not our first impulse.' " Id. , quoting Hudson v. Michigan , 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). The exclusionary rule applies when it results in " 'appreciable deterrence.' " Id. at 141, 129 S.Ct. 695, quoting United States v. Leon , 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). "[T]he question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct." Id. at 137, 129 S.Ct. 695.

{¶ 29} There are exceptions to the exclusionary rule. For example, in Leon , the court held that when police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted "in objectively reasonable reliance" on the subsequently invalidated search warrant. Leon at 922, 104 S.Ct. 3405. The court called this objectively reasonable reliance "good faith." Id. "The Court has over time applied this 'good-faith' exception across a range of cases." Davis v. United States , 564 U.S. 229, 131 S.Ct. 2419, 2428, 180 L.Ed.2d 285 (2011).

{¶ 30} The state argued to the trial court that the federal exclusionary rules should not be applied to suppress the evidence in this case because it is in the best interest of society to assure that the crowded streets are free of improper firearms and the Ohio Constitution does not provide an exclusionary rule for search and seizure violations pursuant to Lindway .

{¶ 31} The trial court determined that the state "did not and could not argue the 'Good Faith Exemption' applies in the Instant matter." (Dec. 8, 2016 Entry at 7.) The trial court further found that Lindway was explicitly and implicitly overruled in Mapp v. Ohio , 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

{¶ 32} This court has recently explained that despite the state arguing that the "good faith exception" should be given a broad application, Ohio courts, including this court, have "declined to apply the exception to the rule 'in cases in which officers, conducting warrantless searches, relied on their own belief that they were acting in a reasonable manner, as opposed to relying upon another's representations.' " Dickman at ¶ 26, quoting State v. Thomas , 10th Dist. No. 14AP-185, 2015-Ohio-1778, 2015 WL 2191107, ¶ 43, citing State v. Forrest , 10th Dist. No. 11AP-291, 2011-Ohio-6234, 2011 WL 6037409. This court reaffirmed that " ' " Leon's good-faith exception applies only narrowly, and ordinarily only where an officer relies, in an objectively reasonable manner, on a mistake made by someone other than the officer." ' " Id. , quoting Thomas at ¶ 47, quoting United States v. Herrera , 444 F.3d 1238, 1249 (10th Cir. 2006). In this case, the officers did not rely on laws or precedent that have changed these settled principles. Simply put, the conduct of the officers in this case, which included a destructive entry into a home with no warrant, no probable cause, and no exigent circumstances, cannot and will not be excused by invoking an exception to the exclusionary rule. Thomas correctly describes their behavior as "acutely egregious." (Appellee's brief at 53.) We agree. To apply the exclusionary rule under these facts would degrade the protections of the Fourth Amendment. This case merits no finding of a good-faith exception to the exclusionary rule.

{¶ 33} Finally, the state argues that the Ohio Constitution does not provide an exclusionary rule for search and seizure violations pursuant to Lindway . In Lindway , the Supreme Court of Ohio determined that the exclusionary rule does not apply to searches and seizures found to be in violation of the Ohio Constitution. As recognized by this court in State v. Kosla , 10th Dist. No. 13AP-514, 2014-Ohio-1381, 2014 WL 1347117, ¶ 19, Lindway has been expressly overruled in the context of violations of the Fourth Amendment to the United States Constitution.

{¶ 34} While the Supreme Court of Ohio has not expressly overruled Lindway , the court's subsequent decisions appear to have significantly limited, if not eliminated, its precedential value. For example, in State v. Chatton , 11 Ohio St.3d 59, 63, 463 (N.E.2d 1237 1984), fn 4 (superseded by statute regarding temporary tags), the court, in discussing the good-faith exception to the federal exclusionary rule, stated, "even should a good faith exception to the federal exclusionary rule be recognized for Fourth Amendment purposes, the question remains whether we would likewise recognize such an exception under Section 14, Article I of the Ohio Constitution."

{¶ 35} Further, the Ohio appellate courts that have considered Lindway have acknowledged its diminished precedential value. See State v. Watson , 117 Ohio App. 333, 339, 192 N.E.2d 253 (9th Dist. 1962) ("As a consequence of [ Mapp ], the rule of State v. Lindway * * * no longer prevails in this state"); State v. McCarthy , 20 Ohio App.2d 275, 281, 253 N.E.2d 789 (8th Dist. 1969). Even this court has set forth that " Lindway has been * * * overruled * * * by implication for violations of the Ohio Constitution." Kosla at ¶ 20. The state's third and fourth assignments of error are overruled.

V. Conclusion

{¶ 36} For the foregoing reasons, appellant's four assignments of error are overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed .

TYACK and BRUNNER, JJ., concur.

      Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: MARY EILEEN KILBANE, P.J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Alfonso E. HERNANDEZ, Defendant-Appellant
    No. 104976
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 1, 2018
    Brian R. McGraw, 55 Public Square, Suite 2100, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, Frank Romeo Zeleznikar, Assistant County Prosecutor, The Justice Center-9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Kilbane, P.J., Stewart, J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   MARY EILEEN KILBANE, P.J.:

{¶ 1} Defendant-appellant, Alfonso E. Hernandez ("Hernandez"), appeals his jury conviction for rape, kidnapping, and gross sexual imposition. For the reasons set forth below, we affirm.

{¶ 2} In December 2015, Hernandez was charged in an eight-count indictment with two counts of rape, four counts of kidnapping, and two counts of gross sexual imposition ("GSI"). Each count carried a sexually violent predator specification. The indictment alleged that Hernandez sexually assaulted two young girls: his great-niece, K.T., and her cousin, M.R.

{¶ 3} In May 2016, Hernandez moved to sever Counts 1 through 4 from Counts 5 through 8, effectively moving for separate trials on the allegations of each victim. The trial court denied this motion. Prior to jury selection, and again after the close of all evidence, the defense renewed its motion to sever and the trial court denied the renewed motion. The parties stipulated that Hernandez's immigration status would not be mentioned in the presence of the jury.

{¶ 4} The following evidence was adduced at trial.

Allegations of K.T.

{¶ 5} Twelve year-old K.T. described in detail two separate instances where she testified that Hernandez sexually assaulted her. K.T. testified that the first sexual assault occurred when she was about five years old. At that time, she lived with her parents in the downstairs unit of a triple house. K.T.'s grandmother and great-grandmother lived in the second floor unit. Hernandez, as well as K.T.'s other great-uncle and his wife, J.H., lived upstairs in the third floor unit.

{¶ 6} K.T. explained that the first instance of sexual assault took place while she was visiting the third floor unit of the home with her mother, N.H. N.H. went into the living room to talk with J.H. Hernandez called K.T. to his room, telling her that he had something to show her. She explained that once inside Hernandez's room, Hernandez proceeded to lay her on the bed, pull down her pants and his own pants, put a condom on, and put his penis inside her vagina.

{¶ 7} K.T. testified that at some point, J.H. began knocking on the door, telling K.T. that her mother was waiting and wanted her to come out of the room. K.T. explained that Hernandez took off the condom and pulled up his pants and K.T.'s pants. He then gave K.T. a small toy, told her "not to tell anyone," and sent her out of the room. K.T. testified that she was confused and scared so she told Hernandez that she would not tell anyone what had happened.

{¶ 8} K.T. explained that the second sexual assault occurred years later when she was in the fifth grade. At that time, K.T. and her immediate family lived in a new home in the downstairs unit of a double house owned by her grandmother-Hernandez's sister. K.T. testified that Hernandez would come to this house a few times each week to visit his mother-K.T.'s great-grandmother-who lived in the second-floor unit with Hernandez's sister.

{¶ 9} K.T. testified that a few weeks before Hernandez raped her a second time, Hernandez snuck up on her while she was in the basement doing laundry. K.T. explained that she ran upstairs and into her mother's room. She forgot to lock the door, so Hernandez came in, tried to touch her, and asked her "why are you ignoring me?" She testified that Hernandez forcefully pulled her pants down, whispered in her ear "don't ignore me again or I'm going to do the same thing to your [younger] sister," and then walked away.

{¶ 10} A few weeks later, K.T. went up to the second-floor. K.T. testified that her parents were at work and her great-grandmother was in the basement of the home. K.T. noticed that Hernandez was in one of the bedrooms. She testified that he began to walk toward her; she tried to walk away, but he followed her into the living room.

{¶ 11} Once in the living room, K.T. sat on the couch and covered herself with a blanket. Hernandez took the blanket off of her and began to pull down her pants. He then lifted her up and put her on the ground. He unzipped his pants, put on a condom that he had retrieved from his wallet, put his penis inside her vagina, and "started thrusting for about three minutes." K.T. testified that during this second rape she was scared and thought "it happened again, * * * I didn't want it to, and I couldn't do anything about it."

{¶ 12} K.T. explained that Hernandez stopped when he heard the kitchen door creaking, as if someone was coming in. He took the condom off, put it in a small plastic bag in his wallet, and put it in his back pocket. Hernandez then left K.T. lying on the floor.

{¶ 13} K.T. testified that she first told her cousin, M.R., about the sexual assaults, and eventually, she also told her mother.

Allegations of M.R.

{¶ 14} Eleven-year-old M.R. also testified that Hernandez had sexually assaulted her on two separate occasions. M.R. explained that K.T. is her cousin and "good friend." Through the testimony of adults in the family it was established that M.R. is not related to Hernandez, but their families are close. K.T.'s father and M.R.'s mother are brother and sister, whereas Hernandez is K.T.'s maternal great-uncle.

{¶ 15} M.R. testified that when she was younger Hernandez's mother-K.T.'s great-grandmother-cared for her five days a week while her parents were at work. Hernandez's mother would care for M.R. in the home Hernandez shared with his brother and his brother's family.

{¶ 16} M.R. testified that while in this home, she was in Hernandez's room with his nephews playing on Hernandez's computer. M.R. testified that she was sitting on Hernandez's lap. His nephews left the room. M.R. testified that Hernandez pushed her against the door and began touching her breasts both over and under her shirt. She testified that eventually Hernandez's nephews knocked on the door, so Hernandez stopped touching her and let the boys in the room. M.R. testified that she could not remember how old she was or how long ago this happened.

{¶ 17} M.R. also testified to a second incident when she was in Hernandez's room sitting on his lap. Hernandez grabbed her hand and attempted to put her hand on his penis. M.R. testified that she told Hernandez she had to go to the bathroom. Hernandez let her go, and she ran out of his room to the bathroom. She testified that this second incident occurred when she was around five-years old.

Testimony of N.H.

{¶ 18} N.H., K.T.'s mother, testified that in November 2015, she and K.T. had an argument while preparing to go to a family picnic. N.H. had noticed that K.T. had recently been withdrawn and would not leave her bedroom. N.H. explained that K.T. did not want to go to family functions and was upset that she had to go to this particular family picnic. K.T. told N.H. that she wanted to stay home, and N.H. and K.T. began fighting. During the argument, K.T. told N.H. that Hernandez had sexually assaulted her. K.T. also told N.H. that she had confided in M.R. about the assaults. N.H. and K.T. then went to M.R.'s home. Once at M.R.'s home, M.R. confided in N.H., her aunt, that Hernandez had sexually assaulted her as well. That same day, K.T.'s father called Cleveland police to report Hernandez's sexual assaults of both K.T. and M.R.

{¶ 19} The investigating detective, Traci Hill ("Detective Hill"), testified about her investigation of the girls' allegations of sexual abuse by Hernandez.

{¶ 20} The defense called Hernandez's sister-in-law, J.H., his niece, as well as his sister-K.T.'s grandmother. Notably, J.H. testified that she did not remember having knocked on Hernandez's bedroom door and asking K.T. to come out of his room, as K.T. had testified.

{¶ 21} At the conclusion of the trial, the jury returned guilty verdicts on Counts 1 through 4 and Counts 7 and 8. The jury found Hernandez not guilty of Counts 5 and 6, which related to M.R.'s first sexual assault allegation.

{¶ 22} The trial court held a hearing on the sexually violent predator specifications. The trial court found Hernandez not guilty on all sexually violent predator specifications and proceeded to sentence Hernandez to life in prison with parole eligibility after 25 years.

{¶ 23} Hernandez now appeals his convictions, raising the following assignments of error for our review:

Assignment of Error One
The court abused its discretion in denying repeated defense motions to sever, allowing the joinder [of] the individually weak [K.T.] and [M.R.] allegations [in one trial].
Assignment of Error Two
The manifest weight of the evidence was not established to allow for convictions in any of the crimes.
Assignment of Error Three
The court abused its discretion when it admitted "other acts" evidence pursuant to [ Evid.R. 404(B) ]; evidence of other alleged sexual acts by [Hernandez] upon [K.T.] deemed to be too weak to indict.
Assignment of Error Four
[Hernandez] was denied a fair trial when his status as a non-citizen was hinted at by Detective Hill after motion in limine prohibiting introduction.
Assignment of Error Five
[Hernandez] was denied a fair trial when the trial court denied [Hernandez's] attempts to review [K.T. and M.R.'s] statements through testimony of [Detective Hill].

{¶ 24} For ease of analysis, we address Hernandez's assignments of error out of order.

Manifest Weight

{¶ 25} In the second assignment of error, Hernandez argues that his convictions are against the manifest weight of the evidence because they were "depend[ent] upon the cloudy and shaky testimony of two young girls." Hernandez contends that K.T.'s and M.R.'s testimony lacks credibility, pointing to inconsistencies in their testimony.

{¶ 26} The Ohio Supreme Court has addressed the standard of review we must apply for a criminal manifest weight challenge:

The criminal manifest-weight-of-the-evidence standard was explained in State v. Thompkins (1997), 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. In Thompkins , the court distinguished between sufficiency of the evidence and manifest weight of the evidence, finding that these concepts differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held that sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, but weight of the evidence addresses the evidence's effect of inducing belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks whose evidence is more persuasive-the state's or the defendant's? We went on to hold that although there may be sufficient evidence to support a judgment, it could nevertheless be against the manifest weight of the evidence. Id. at 387, 678 N.E.2d 541. "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony." Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.

State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.

{¶ 27} In evaluating a criminal manifest weight challenge, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of all witnesses and determine whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins at 387, 678 N.E.2d 541, citing State v. Martin , 20 Ohio App.3d 172, 172, 485 N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus. Accordingly, reversal of a conviction on manifest weight grounds is reserved for "the exceptional case that the evidence weighs heavily against the conviction." Id.

{¶ 28} In conducting this review, this court remains mindful that the weight of the evidence and the credibility of the witnesses are matters primarily for the factfinder to assess. State v. Bradley , 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, 2012 WL 2355778, ¶ 14, citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The rationale behind this principle is that the trier of fact is in the best position to take into account inconsistencies, along with the witnesses' manner and demeanor, and determine whether the witnesses' testimonies are credible. Id.

{¶ 29} For this reason, "a conviction is not against the manifest weight of the evidence solely because the jury heard inconsistent or contradictory testimony." State v. Rudd , 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, 2016 WL 193495, ¶ 72, citing State v. Wade , 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, 2008 WL 4174867, ¶ 38. "[T]he decision whether, and to what extent, to credit the testimony of a particular witness is within the peculiar competence of the fact-finder, who has seen and heard the witness." State v. Johnson , 8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, 2014 WL 585043, ¶ 54. Thus, it is within the province of the jury to evaluate the credibility of witnesses in light of inconsistent or contradictory testimony. Rudd at ¶ 74.

{¶ 30} Here, the jury heard K.T. and M.R. each describe in detail two separate instances when Hernandez sexually assaulted them. The jury also heard corroborating testimony from the girls' parents, the investigating officer, and Detective Hill. Hernandez argues that inconsistencies in K.T.'s and M.R.'s testimony indicate their lack of credibility. However, other than Hernandez's general statement that "[K.T.'s and M.R.'s family members] were not living in certain homes when the girls alleged these crimes to have occurred," he does not specify any particular inconsistencies between the statements K.T. and M.R. made to police and their trial testimony. We note that defense counsel cross-examined both K.T. and M.R. in the presence of the jury as to the inconsistencies between their statements given to Cleveland police and their trial testimony.

{¶ 31} Hernandez also points to the following contradictory testimony of K.T. and J.H.: K.T. testified that Hernandez was interrupted the first time he raped her when J.H. knocked on the door, whereas J.H. testified that she did not remember ever having done so. As discussed above, inconsistent and contradictory testimony alone does not render Hernandez's convictions against the manifest weight of the evidence. The jury heard the direct testimony and cross-examination of all witnesses, thus the members of the jury were in the best position to determine the credibility of each witness in light of any inconsistent or contradictory testimony.

{¶ 32} Based on the foregoing, we cannot conclude that the jury "clearly lost its way" and created such a manifest miscarriage of justice that Hernandez's convictions are against the manifest weight of the evidence. Accordingly, the second assignment of error is overruled.

Right to a Fair Trial

{¶ 33} Throughout his first, third, fourth, and fifth assignments of errors, Hernandez argues that certain trial court rulings and testimony introduced at trial cumulatively amounted to a denial of his right to a fair trial.

Joinder of Offenses for Trial

{¶ 34} In the first assignment of error, Hernandez argues that he was prejudiced by having to defend himself against the separate allegations of two victims in one trial, and that the trial court erred in denying his motions to sever.

{¶ 35} We note that Ohio law favors joining multiple offenses in a single trial if the requisites of Crim.R. 8(A) are fulfilled. State v. Ferrell , 8th Dist. Cuyahoga No. 100659, 2014-Ohio-4377, 2014 WL 4924034, ¶ 38, citing State v. Woodson , 8th Dist. Cuyahoga No. 93476, 2010-Ohio-5230, 2010 WL 4292235, ¶ 9. Crim.R. 8(A) provides, in relevant part:

Two or more offenses may be charged in the same indictment * * * if the offenses charged, * * * are of the same or similar character, * * * or are based on two or more acts or transactions connected together * * * or are part of a course of criminal conduct.

{¶ 36} This court has held "[j]oinder is liberally permitted to conserve judicial resources, reduce the chance of incongruous results in successive trials, and diminish inconvenience to the witnesses." State v. Wilson , 2016-Ohio-2718, 51 N.E.3d 676, ¶ 24 (8th Dist.), quoting State v. Schaim , 65 Ohio St.3d 51, 58, 600 N.E.2d 661 (1992).

{¶ 37} After reviewing the record, we find that the rape, kidnapping, and GSI offenses were permissibly joined under Crim.R. 8 -these offenses were of similar character, based on two or more acts or transactions connected together, and were part of a course of criminal conduct. Both K.T. and M.R. were young children at the time of the offenses. K.T. was related to Hernandez, and he was very close with M.R.'s family.

{¶ 38} Crim.R. 14 provides that a trial court may grant a severance "[i]f it appears that a defendant * * * is prejudiced by a joinder of offenses." State v. Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 95, quoting Crim.R. 14. "The defendant, however, bears the burden of proving prejudice and of proving that the trial court abused its discretion in denying severance." Id. , quoting State v. Brinkley , 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 29, citing State v. Torres , 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981), syllabus.

{¶ 39} In Torres , the Ohio Supreme Court held:

A defendant claiming error in the trial court's refusal to allow separate trials of multiple charges under Crim.R. 14 has the burden of affirmatively showing that his rights were prejudiced; he must furnish the trial court with sufficient information so that it can weigh the considerations favoring joinder against the defendant's right to a fair trial, and he must demonstrate that the court abused its discretion in refusing to separate the charges for trial.

Id. at syllabus. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams , 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

{¶ 40} Hernandez argues that the trial court's denial of his motion to sever the offenses related to each victim, combined with a series of rulings favorable to the state, made the allegations against him "nearly impossible to defend" and resulted in "prejudice required to be established for a [ Crim.R. 14 ] severance."

{¶ 41} This court has held that once the defendant has demonstrated prejudice, the state may counter a claim of prejudicial joinder in one of two ways:

The first is the "other acts" test, where the State can argue that it could have introduced evidence of one offense in the trial of the other severed offense under the "other acts" portion of Evid.R. 404(B). The second is the "joinder" test, where the state is merely required to show that evidence of each of the crimes joined at trial is simple and direct. If the state can meet the "joinder" test, it need not meet the stricter "other acts" test. Thus, an accused is not prejudiced by joinder when simple and direct evidence exists, regardless of the admissibility of evidence of other crimes under Evid.R. 404(B).

State v. Solomon , 8th Dist. Cuyahoga Nos. 85303, 85304, 85305, 2005-Ohio-6016, 2005 WL 3030419, ¶ 13, citing State v. Franklin , 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991).

{¶ 42} We agree with the state that Hernandez was not prejudiced by the joinder of the offenses against both K.T. and M.R. because the state presented simple and direct evidence as to each instance of sexual assault. We note that the evidence as to each count was clearly delineated between each victim and based upon specific time frames, such that it is unlikely that the jury would confuse the evidence proving the separate offenses. At trial, K.T. and M.R. each detailed two distinct instances of sexual assault. The state provided time frames for each count for which the jury found Hernandez guilty. The jury found Hernandez not guilty of M.R.'s first allegation of sexual assault in Counts 5 and 6, presumably because she testified that she could not remember a time frame for that particular sexual assault.

{¶ 43} Based on the foregoing, we find that the trial court did not abuse its discretion in denying Hernandez's motion to sever. Accordingly, the first assignment of error is overruled.

Other Acts Evidence

{¶ 44} In the third assignment of error, Hernandez argues that the trial court abused its discretion in allowing the state to introduce evidence of an act of sexual assault of K.T. that was not indicted. He asserts that this ruling, "along with all other rulings made against the defense," cumulatively resulted in the denial of his right to a fair trial.

{¶ 45} At trial, K.T. testified that there were instances between the first and second sexual assault when Hernandez would try to grab her and that he had touched her breasts. In addressing Hernandez's motion in limine as to this evidence, the assistant county prosecutor explained to the trial court that these allegations were ultimately not indicted because K.T. could not remember a specific enough time frame for the state to seek an indictment of this conduct. The assistant prosecutor argued that the state's purpose for eliciting this testimony was to "prove[ ] the element of force" and "to establish the defendant's plan or motive and his pattern of conduct of abuse."

{¶ 46} The Ohio Supreme Court has held that

[a] trial court has broad discretion in the admission of evidence, and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, an appellate court should not disturb the decision of the trial court.

State v. Issa , 93 Ohio St.3d 49, 64, 752 N.E.2d 904 (2001).

{¶ 47} As a general rule, "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion." Evid.R. 404(A). However, Evid.R. 404(B) provides, in relevant part, that

[e]vidence 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.

{¶ 48} Evidence of other acts may also be admissible to establish an element of the crime. State v. Piert , 8th Dist. Cuyahoga No. 89803, 2008-Ohio-1828, 2008 WL 1747193, ¶ 7, citing State v. Ervin, 8th Dist. Cuyahoga No. 80473, 2002-Ohio-4093, 2002 WL 1824977, ¶ 49. In Piert , this court noted that "[e]vidence regarding prior acts of molestation upon other individuals or family members, even if not included in the indictment, has been permitted in numerous Ohio jurisdictions, including this one." Id. at ¶ 8.

{¶ 49} This court has also recognized that

[r]egarding the applicability of Evid.R. 404(B) to course-of-conduct sexual abuse cases, extensive presentation of evidence of other acts for which a defendant was not indicted can become so pervasive as to deny that defendant a fair trial. See , e.g. , State v. Shaw , 2d Dist. Montgomery No. 21880, 2008-Ohio-1317 [2008 WL 748365] ; see also State v. Meador , 12th Dist. Warren No. CA2008-03-042, 2009-Ohio-2195 [2009 WL 1278439], ¶ 12. However, where the testimony is minimal and vague, no error will be found.
See, e.g. , State v. Heft , 3d Dist. Logan No. 8-09-08, 2009-Ohio-5908 [2009 WL 3720562].

State v. Czech , 8th Dist. Cuyahoga No. 100900, 2015-Ohio-1536, 2015 WL 1851168, ¶ 30.

{¶ 50} The defendant in Czech claimed that the admission of other acts testimony by Czech's victim of sexual assault that occurred outside the indictment was so prejudicial that it resulted in a denial of his right to a fair trial. In Czech , we distinguished Shaw from Heft in order to explain the point at which other acts testimony of sexual abuse becomes so pervasive and extensive that it results in the denial of a defendant's right to a fair trial.

In Shaw , the defendant was indicted for fifteen counts of rape and ten counts of sexual battery against three different victims. At trial, the state elicited testimony about several specific instances of abuse, in addition to "extensive" testimony from each victim that she was abused multiple times each week for several years. On appeal, the state argued that the testimony about the unindicted offenses was admissible under Evid.R. 404(B) because it demonstrated why the victims tolerated the abuse. The Second District disagreed, finding that the state's reasoning at trial for the testimony was different than argued on appeal and failed to establish any of the exceptions under Evid.R. 404(B). The court reversed the defendant's convictions, finding that the "extensive" and "pervasive" testimony about other acts had denied the defendant a fair trial, especially because no limiting instruction regarding the evidence was given. Shaw at ¶ 14.
In Heft , the defendant was indicted for rape, sexual battery, and gross sexual imposition. At trial, the victim testified that Heft abused her on "multiple occasions." She further testified that there were "many" instances of sexual abuse and then explained how the incidents would occur. The Third District recognized that Heft had been charged with multiple sex abuse offenses and that the victim's testimony about "multiple occasions" could have referenced the indicted offenses. Id. at ¶ 63. The court ultimately found that "these minimal, vague references" did not reach the extensive and pervasive nature of the testimony at issue in Shaw and thus found no abuse of discretion in allowing the testimony.

Czech at ¶ 31-32.

{¶ 51} In Czech , this court, reviewing the admissibility of other acts evidence under a plain error standard, found that Czech's victims' isolated references to the timing and frequency of the unindicted sexual abuse by Czech were not extensive and did not amount to a denial of Czech's right to a fair trial.

{¶ 52} Similarly, in the instant case, the testimony elicited by the state from K.T. as to the unindicted sexual assault by Hernandez was limited and vague as to when and how often this conduct occurred. K.T. testified:

[THE STATE]: Okay. Now, after the first time when [Hernandez sexually assaulted you] at that house, okay, were there other times that you remember when he would do things like that?
[DEFENSE COUNSEL]: Objection, your honor.
[K.T.]: He would-
THE COURT: Overruled.
[K.T.]: He would only-look at me weird, and there was [sic] times where he tried to touch me but he didn't get a chance to.
* * *
[THE STATE]: Okay. And you said he would try to grab you. What was he doing?
[K.T.]: He, like, if you don't know he's there, he would like, come up behind me and he would just touch me but only for a short amount of time.
[THE STATE]: Where on your body would he touch you?
[K.T.]: On my breast.
[THE STATE]: Was it on top of your clothes or underneath?
[K.T.]: On top of.
[THE STATE]: And do you remember, was this close to the first time of it [the sexual assault] happening or was it a long time after?
[K.T.]: A long time after.

{¶ 53} We find that K.T.'s testimony alleging unindicted sexual abuse by Hernandez was both minimal and vague, akin to the other acts testimony at issue in Czech and Heft. Therefore, we do not find that the trial court abused its discretion in allowing the state to elicit this other acts testimony from K.T., nor do we conclude that Hernandez was prejudiced. Accordingly, the third assignment of error is overruled.

Immigration Status

{¶ 54} In the fourth assignment of error, Hernandez argues that he was denied a fair trial because his status as a noncitizen was "hinted at by Detective Hill" in her direct examination.

{¶ 55} Prior to jury selection, the parties stipulated that Hernandez's immigration status would not be mentioned in the presence of the jury. The state confirmed to the trial court that it would "instruct witnesses * * * not to make any reference [to Hernandez's immigration status], and certainly no questions will address the topic."

{¶ 56} However, Detective Hill, a state witness, made an unprompted reference to Hernandez's immigration status.

[THE STATE]: And are you able to obtain information from [K.T.] that you then used in your investigation?
[Detective Hill]: Yes.
[THE STATE]: Following that interview [of K.T.], what did you do next?
[Detective Hill]: I spoke to, I believe it was our Intelligence Unit, due to the suspect's status.
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: Sustained.

{¶ 57} As illustrated above, Detective Hill's reference to Hernandez's immigration status was vague and was clearly not prompted by the state. Hernandez recognizes that this testimony merely "hinted at" his immigration status. Defense counsel objected to and cut off Detective Hill's testimony before she could elaborate as to what she meant when she mentioned Hernandez's "status." The trial court properly sustained the objection, and no further mention was made of Hernandez's noncitizen status.

{¶ 58} The objection to Detective Hill's comment was sustained. Consequently, there was no error. State v. Hale , 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 171, citing Viox v. Weinberg , 169 Ohio App.3d 79, 2006-Ohio-5075, 861 N.E.2d 909 (1st Dist.). Accordingly, the fourth assignment of error is overruled.

Cross-Examination of Detective Hill

{¶ 59} In the fifth assignment of error, Hernandez argues that he was denied a fair trial because the trial court denied his attempts to attack inconsistencies in K.T. and M.R.'s testimony and the credibility of these victims through the cross-examination of Detective Hill. The trial court ruled that Hernandez's defense counsel could elicit general testimony from Detective Hill that K.T. and M.R.'s statements were inconsistent with their trial testimony, but did not allow the defense to explore the specific inconsistencies through her cross-examination.

{¶ 60} Evid.R. 701 limits the testimony of lay witnesses "to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." This court has held that "lay witnesses are prohibited from testifying as to another witnesses's veracity." State v. Pawlak , 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, 2014 WL 2167887, ¶ 113. " '[I]t is the fact-finder, not the so-called expert or lay witness, who bears the burden of assessing the credibility and veracity of witnesses.' " Id. , citing State v. Burchett , 12th Dist. Preble Nos. CA2003-09-17 and CA2003-09-18, 2004-Ohio-4983, 2004 WL 2182660, ¶ 19, quoting State v. Boston , 46 Ohio St.3d 108, 129, 545 N.E.2d 1220 (1989), quoting State v. Eastham , 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988).

{¶ 61} We note that Hernandez's defense counsel had the opportunity to and did indeed inquire of K.T. and M.R. as to inconsistencies between statements they made to Detective Hill and their trial testimony. Therefore, Hernandez's claim that he was prejudiced by the trial court's refusal to allow defense counsel to explore these inconsistencies through the cross-examination of Detective Hill is unpersuasive. Ultimately, such a line of questioning would have been an improper attempt to illicit a lay witness to comment on the veracity and credibility of another witness. Pawlak at ¶ 113.

{¶ 62} Based on the foregoing, we find that the trial court properly limited Hernandez's defense counsel's attempts to attack the credibility of K.T. and M.R. through the cross-examination of Detective Hill.

{¶ 63} Accordingly, the fifth assignment of error is overruled.

{¶ 64} Judgment is affirmed.

MELODY J. STEWART, J., and FRANK D. CELEBREZZE, JR., J., CONCUR

      Prior to trial, Hernandez filed a jury waiver as to the sexually violent predator specifications in each of the eight counts of the indictment.

      We note that an indictment charging sexual offenses against children "need not state with specificity the dates of alleged abuse, so long as the prosecution established that the offense was committed within the time frame alleged." State v. Yaacov , 8th Dist. Cuyahoga No. 86674, 2006-Ohio-5321, 2006 WL 2902794, ¶ 13-14.