State v. Rosa , 2012 Ohio 1042 ( 2012 )

[Cite as State v. Rosa, 2012-Ohio-1042.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96587
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ALFREDO ROSA
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-517590
BEFORE: Celebrezze, P.J., S. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: March 15, 2012
ATTORNEY FOR APPELLANT
John P. Parker
988 East 185th Street
Cleveland, Ohio 44119
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mark J. Mahoney
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Defendant-appellant, Alfredo Rosa, appeals his convictions on 12 counts of
unlawful sexual conduct with a minor. For the reasons that follow, we affirm in part,
reverse in part, and remand.
{¶2} During the summer of 2008, appellant and his wife, Diana Rosa, began a
sexual relationship with a then 15-year-old family friend, “K.G.” The Rosa family and
K.G.’s family had become acquainted while attending the same church. K.G.’s mother
(“Mother”) assisted with the youth church, where appellant and Diana also volunteered.
K.G. had spent time playing at appellant’s house with his niece and would often go there
to get away from the burdens of helping to raise two younger half-siblings. In the
summer of 2008, after the death of K.G.’s grandmother, she began spending more time at
appellant’s house. She often stayed overnight on the weekends, playing with appellant’s
children and spending time talking with appellant and Diana.
{¶3} K.G. testified that early in August 2008, she told appellant that she had a
“crush” on him. After a few days, appellant and K.G. engaged in sexual activity on two
occasions. After these two incidents, K.G., appellant, and Diana were seated at the
kitchen table at the Rosa house when they began discussing K.G.’s feelings for appellant.
The three often communicated by writing in a notebook and passing it between
themselves. K.G. testified that Diana handed her a list of questions asking her if she
would like to have a sexual relationship with Diana and appellant. This list, entitled
“Random ?’s,” was then verbally discussed between the three. K.G. circled or placed a
check mark next to questions she would agree to discuss with the other two. K.G.
testified that by the end of the discussion, she had agreed to engage in a sexual
relationship with appellant and Diana.
{¶4} The following weekend, K.G. spent the night at the Rosas’ house. K.G.,
appellant, and Diana engaged in sexual activities in the couple’s bedroom. On
September 26, 2008, the trio engaged in another sexual encounter in the living room of
the Rosas’ home.
{¶5} K.G. had kept the list of questions appellant had presented to her entitled
“Random ?’s” as well as other notes between the trio. K.G. testified that she usually
kept them in a box in her closet, but on the morning of October 3, 2008, she had forgotten
them on the counter in the bathroom. K.G.’s mother discovered these notes. K.G.
testified that, upon realizing that the notes were missing, she called her mother and
verified that she had the notes, then she called appellant and Diana to advise them the
notes had been found. Appellant instructed K.G. to minimize any relationship they had
and say it was only “kissing and touching.”
{¶6} K.G.’s mother testified that she took the notes to work and read them.
Although the notes did not contain any names or descriptions of the activities the three
had engaged in, they were enough to deeply disturb Mother. She was unable to finish
work and called her ex-boyfriend to pick her up. Mother, along with her husband, her
ex-boyfriend, and K.G., went to appellant’s home to confront him and Diana about the
notes. The two were not at home, and the group left to return later that day.
{¶7} When the group returned, they discussed the notes with appellant and Diana
on the front lawn of the Rosas’ home so that appellant’s children would not hear. K.G.’s
mother and her husband both testified that, upon confrontation, appellant was apologetic
and stated there had only been “kissing and touching” and that Diana stated “they had
agreed to wait until [K.G.] was 18 before they had sex with her.” K.G. corroborated this
statement at the time. Mother testified that the group parted amicably, but that she still
had questions. A few days later, she called the police and made a report.
{¶8} Detective Pamela Berg of the Cleveland Police Sex Crimes and Child Abuse
Unit testified that she followed up with K.G. and her mother. Det. Berg stated that she
took a statement from K.G. that detailed various sexual activities that took place between
K.G., appellant, and Diana. Prior to giving this written statement, K.G. had only stated
there had been some “kissing and touching.”
{¶9} Appellant and Diana were indicted on November 7, 2008, and charged with
12 counts of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), with
only six counts applicable to Diana. Trial began on February 23, 2009, and resulted in a
guilty verdict on all charges. On March 19, 2009, appellant was sentenced to an
eight-year aggregate term of imprisonment. Appellant was classified as a Tier II sex
offender and was advised of postrelease control.
{¶10} Diana was sentenced to a six-year term of imprisonment. She perfected a
timely appeal from her convictions and sentence to this court, which affirmed the trial
court’s judgment in all respects. State v. Rosa, 8th Dist. No. 93108, 2010-Ohio-2215,
2010 WL 2007199 (“Rosa I”). Appellant, however, failed initially to timely perfect his
appeal to this court. Appellant’s motion for delayed appeal was ultimately granted.
{¶11} Appellant now brings this appeal, raising four assignments of error for
review.1
Law and Analysis
I. Ineffective Assistance of Counsel
{¶12} In his first assignment of error, appellant argues that he received ineffective
assistance of counsel. In order to substantiate a claim of ineffective assistance of
counsel, the appellant is required to demonstrate that 1) the performance of defense
counsel was seriously flawed and deficient, and 2) the result of appellant’s trial or legal
proceeding would have been different had defense counsel provided proper
representation. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Brooks, 25 Ohio St.3d 144, 495 N.E.2d 407 (1986).
{¶13} In reviewing a claim of ineffective assistance of counsel, it must be
presumed that a properly licensed attorney executes his legal duty in an ethical and
1 Appellant’s assignments of error are contained in the appendix to this
opinion.
competent manner. State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985); Vaughn
v. Maxwell, 2 Ohio St.2d 299, 209 N.E.2d 164 (1965).
{¶14} The Ohio Supreme Court held in State v. Bradley, 42 Ohio St.3d 136,
141-142, 538 N.E.2d 373 (1989):
“When considering an allegation of ineffective assistance of counsel, a
two-step process is usually employed. First, there must be a determination
as to whether there has been a substantial violation of any of defense
counsel’s essential duties to his client. Next, and analytically separate
from the question of whether the defendant’s Sixth Amendment rights were
violated, there must be a determination as to whether the defense was
prejudiced by counsel’s ineffectiveness.” State v. Lytle (1976), 48 Ohio
St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in
part on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d
1154. This standard is essentially the same as the one enunciated by the
United States Supreme Court in Strickland v. Washington (1984), 466 U.S.
668 * * *.
Even assuming that counsel’s performance was ineffective, this is not
sufficient to warrant reversal of a conviction. “An error by counsel, even
if professionally unreasonable, does not warrant setting aside the judgment
of a criminal proceeding if the error had no effect on the judgment. Cf.
United States v. Morrison, 449 U.S. 361, 364-365 [101 S.Ct. 665, 667-68,
66 L.Ed.2d 564] (1981).” Strickland, supra, 466 U.S. at 691, 104 S.Ct. at
2066. To warrant reversal, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, supra, at 694, 104 S.Ct. at 2068. In adopting this
standard, it is important to note that the court specifically rejected lesser
standards for demonstrating prejudice. Bradley at 142.
{¶15} “Accordingly, to show that a defendant has been prejudiced by counsel’s
deficient performance, the defendant must prove that there exists a reasonable probability
that, were it not for counsel’s errors, the result of the trial would have been different.”
Id. at 143.
{¶16} Appellant raises several claims of ineffective assistance of counsel. We
address each alleged instance individually. First, appellant contends he received
ineffective assistance when his counsel failed to object to the testimony of Charlene
Gerhart. At trial, counsel for co-defendant, Diana, called Charlene to testify on Diana’s
behalf. Charlene testified that, in 2007, Diana approached her about engaging in sexual
activity with her and appellant. Charlene testified that Diana had written several
questions in a notebook and presented it to Charlene for her consideration. Ultimately,
Charlene declined the invitation to engage in sexual activities with Diana and appellant.
{¶17} Appellant argues that Charlene’s testimony was improper and in violation of
Evid.R. 404(B). Evid.R. 404(B) provides:
(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
{¶18} On review of the record, it is evident that Diana’s counsel intended to
introduce Charlene’s testimony in order to rebut the credibility of the victim, K.G.
During the direct examination of K.G., the prosecution introduced a letter entitled
“Random ?’s” into evidence. K.G. testified that Diana presented her with the letter
while K.G. was in the Rosas’ home in the summer of 2008. On cross-examination, K.G.
acknowledged that she personally witnessed Diana draft the letter. K.G. testified that
the questions contained in the letter related to appellant’s and Diana’s invitation to K.G.
to engage in sexual activity. K.G. testified that she placed check marks next to questions
she felt comfortable answering.
{¶19} To cast doubt on the veracity of K.G.’s testimony, Diana’s counsel
attempted to demonstrate that the document entitled “Random ?’s” was, in fact, written by
Diana for Charlene in 2007. During direct examination, Charlene testified that she
recognized the document entitled “Random ?’s” as the document presented to her by
Diana. Charlene testified that the letter was the exact document presented to her in
2007, except that the document contained markings that were not present at the time she
received it from Diana. In short, Diana’s counsel intended to establish that the
document entitled “Random ?’s” was not created in K.G.’s presence as she claimed.
Rather, Diana’s counsel proposed that the letter was drafted approximately one year prior
to the time the allegations involving K.G. arose and was only presented to Charlene.
{¶20} This is not a scenario where the prosecution attempted to introduce improper
404(B) evidence in order to establish appellant’s propensity to act in conformity
therewith. Rather, the decision to introduce Charlene’s testimony was based on trial
strategy. Trial strategy and even debatable trial tactics do not establish ineffective
assistance of counsel. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848
N.E.2d 810, ¶ 111.
{¶21} Here, appellant and Diana shared a mutual theory of defense, i.e. K.G. had
made up the allegations. Moreover, counsel’s questions of Charlene during direct
examination clearly were made in furtherance of the theory of the defense. Counsel’s
strategy may have proved unsuccessful, but this fact, in itself, does not establish
ineffective assistance. Id. at ¶ 115. Therefore, appellant’s counsel did not err in failing
to object to Charlene’s testimony.
{¶22} Next, appellant contends that he received ineffective assistance based on his
counsel’s failure to request severance or separate trial. Specifically, appellant argues
that counsel had a duty to request severance where he knew that Charlene’s prejudicial
testimony would be introduced.
{¶23} The joinder of defendants and the avoidance of multiple trials is favored in
the law because joinder “conserves judicial and prosecutorial time, lessens the not
inconsiderable expenses of multiple trials, diminishes inconvenience to witnesses, and
minimizes the possibility of incongruous results in successive trials before different
juries.” State v. Thomas, 61 Ohio St.2d 223, 225, 400 N.E.2d 401 (1980).
{¶24} R.C. 2945.13 states:
When two or more persons are jointly indicted for a felony, except a capital
offense, they shall be tried jointly unless the court, for good cause shown on
application therefor by the prosecuting attorney or one or more of said
defendants, orders one or more of said defendants to be tried separately.
{¶25} Whether an accused shall be tried separately from a co-defendant is a matter
within the sound discretion of the trial court. State v. Abbott, 152 Ohio St. 228, 89
N.E.2d 147 (1949). Joinder is the rule rather than the exception. The burden is on the
defendant to show good cause why a separate trial should be granted and that the trial
court abused its discretion in refusing to do so. A trial court is to grant a severance of
defendants “[i]f it appears that a defendant or the state is prejudiced by a joinder of
offenses or of defendants in an indictment, information, or complaint, or by such joinder
for trial together of indictments, informations, or complaints * * *.” Crim.R. 14. A
defendant claiming error in the trial court’s refusal to sever offenses or defendants has the
burden to affirmatively show that his rights were prejudiced by the joinder. State v.
Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981).
{¶26} On review of the record, appellant has failed to affirmatively demonstrate
that his rights were prejudiced by the joinder of the parties. Despite appellant’s position
to the contrary, Charlene’s testimony did not amount to the confession of a non-testifying
co-defendant. Rather, the decision to question Charlene about her experience with
appellant and Diana was made in furtherance of their theory of defense. Moreover, the
charges brought against appellant and Diana involved similar conduct, witnesses, and
evidence. To have tried the co-defendants’ cases separately would have resulted in
nearly identical trials, resulting in an inefficient misuse of judicial time and resources
without any advantage to appellant. Therefore, we are unable to conclude that
appellant’s trial counsel erred in failing to file a written or oral motion for a separate
trial.
{¶27} Next, appellant argues that his counsel failed to object to Det. Berg’s
testimony involving the veracity of two witnesses. Specifically, the state asked Det.
Berg if she obtained written statements from K.G. and her mother. Det. Berg testified
that she had. The state next asked Det. Berg if their respective statements were
“consistent with [their] testimony that you saw in court?” She replied, “[i]t was.” The
state then asked, “[d]id you find any material inconsistencies?” To which, Det. Berg
responded, “I did not.”
{¶28} This issue was discussed in Rosa I, 2010-Ohio-2215. In Rosa I, this court
concluded that the failure to object to the above evidence was error. However, the court
concluded that the error was harmless, stating:
While it was error to allow the brief testimony of Det. Berg as to the prior
statements, that testimony did not alter the outcome of the trial, which
would require this court to reverse appellant’s conviction. Other evidence,
including the testimony of Mother, mother’s husband, the notes, and the
admissions by appellant and Alfredo, provide support for K.G.’s testimony
without the brief improper testimony of Det. Berg. Therefore, appellant has
not demonstrated that “there exists a reasonable probability that, were it not
for counsel’s errors, the result of the trial would have been different.” Id.,quoting Bradley, supra, at 142, 538 N.E.2d 373.
We find no basis to depart from our previous review of this issue.
{¶29} Finally, appellant argues that his counsel failed to object to the irrelevant
testimony of Jonah Gerhart. During trial, Jonah was questioned by the state about a
telephone conversation he allegedly had with appellant. Jonah testified that he
contacted appellant and
[t]old him to stop bugging my wife to come testify for him, and that
offering us money to testify wasn’t going to happen. He apologized for it,
and then there was basically just him asking me please and me telling him
no back and forth for a couple of minutes, and I hung up the phone.
{¶30} Appellant contends that “such testimony is confusing, not relevant and not
admissible.” We disagree. Information relating to appellant’s attempt to pay Jonah for
his testimony relating to this case was certainly relevant. State v. Robinson, 7th Dist.
No. 05 JE 8, 2007-Ohio-3501, 2007 WL 1976578, ¶ 61 (“The fact of whether a witness
was bribed in exchange for his testimony is highly relevant to any judicial inquiry”),
citing State v. Walker, 55 Ohio St.2d 208, 215, 378 N.E.2d 1049 (1978).
{¶31} Therefore, we are unable to conclude that appellant received ineffective
assistance where an objection to Jonah’s testimony on relevancy grounds would have
been baseless.
{¶32} Appellant’s first assignment of error is overruled.
II. Court Costs
{¶33} In his second assignment of error, appellant argues that he was denied due
process of law when the trial court failed to assess court costs in open court, and yet costs
were assessed in the judgment entry. In support of his argument, appellant cites to the
Ohio Supreme Court’s decision in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954,
926 N.E.2d 278.
{¶34} In Joseph, the court held that it is reversible error under Crim.R. 43(A) for
the trial court to impose costs in its sentencing entry when it did not impose those costs in
open court at the sentencing hearing. Id. at ¶ 22. The court reasoned that the defendant
was denied the opportunity to claim indigency and to seek a waiver of the payment of
court costs before the trial court because the trial court did not mention costs at the
sentencing hearing. Id.
{¶35} The state concedes that the trial court failed to assess costs in open court.
Appellant’s second assignment of error is sustained. This matter is remanded to the trial
court to have costs properly assessed.
III. Spousal Competency Hearing
{¶36} In his third assignment of error, appellant argues that it was plain error
under Crim.R. 52 for the trial court not to conduct a spousal competency hearing
regarding statements that appellant’s wife allegedly made to witness Charlene Gerhart.
{¶37} Crim.R. 52(B) provides that “plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”
“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.” State
v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
“‘Plain error does not exist unless it can be said that but for the error, the outcome of the
trial would clearly have been otherwise.’ State v. Moreland (1990), 50 Ohio St.3d 58,
62, 552 N.E.2d 894, 899.” State v. Adamson, 72 Ohio St.3d 431, 434-435, 650 N.E.2d
875 (1995).
{¶38} In support of his argument, appellant cites to the Ohio Supreme Court’s
decision in State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, for the
proposition that a spousal competency hearing was required. In Brown, the court
reversed a murder conviction because the trial court failed to instruct defendant’s wife on
spousal competency and failed to make a finding on the record that she voluntarily chose
to testify. The Brown court held that failure to do so constituted reversible plain error.
Brown observes that a spouse’s decision to testify must be made with knowledge and
understanding of the witness’s right not to testify, and the decision must be made freely
and voluntarily.
{¶39} However, appellant’s reliance on Brown is inapplicable to the facts and
circumstances in the case at hand. Unlike the scenario in Brown, appellant’s spouse,
Diana, did not elect to testify at trial. Therefore, the trial court had no basis to conduct a
spousal competency hearing in this matter.
{¶40} Appellant’s third assignment of error is overruled.
IV. Cumulative Errors
{¶41} In his fourth assignment of error, appellant argues that cumulative errors
have denied him a fair trial under the Fourteenth Amendment to the United States
Constitution.
{¶42} The “cumulative error” doctrine states that “a conviction will be reversed
where the cumulative effect of errors in a trial deprives a defendant of the constitutional
right to a fair trial even though each of the numerous instances of the trial court error does
not individually constitute cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64,
1995-Ohio-168, 656 N.E.2d 623. However, “[t]here can be no such thing as an error-free,
perfect trial, and * * * the Constitution does not guarantee such a trial.” State v. Hill, 75
Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996), quoting United States v. Hasting, 461 U.S.
499, 508-509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983).
{¶43} As we have previously discussed, the only demonstrable error we have
found after review is the court’s failure to properly assess costs. This error neither
adversely affected the outcome of appellant’s trial, nor did it cumulatively affect his right
to a fair trial.
{¶44} Appellant’s fourth assignment of error is overruled.
{¶45} This cause is affirmed in part, reversed in part, and remanded to the lower
court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR
APPENDIX
Appellant’s assignments of error:
I. Defense counsel was ineffective under the Sixth and Fourteenth Amendments of
the federal Constitution.
II. The appellant was denied due process under the Fourteenth Amendment when the
trial court imposed court costs in its sentencing journal entry but not in open court.
III. It was plain error under Crim.R. 52 for the court to not conduct a “spousal
competency hearing” concerning the alleged statements of Mrs. Rosa to Mrs. Gertrude
[sic] under State v. Brown, 115 Ohio St.3d 55 and to not sever the defendants or give
cautionary jury instructions.
IV. The cumulative errors have denied appellant a fair trial under the Fourteenth
Amendment of the Constitution.