State v. Armengau , 93 N.E.3d 284 ( 2017 )

[Cite as State v. Armengau, 2017-Ohio-4452.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
v. : No. 14AP-679
(C.P.C. No. 13CR-2217)
Javier Armengau, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 22, 2017
On brief: Michael DeWine, Attorney General, Katherine
Mullin, and Jocelyn K. Lowe, for appellee.
Argued: Jocelyn K. Lowe.
On brief: Timothy Young, Public Defender, and
Francisco E. Lüttecke, for appellant. Argued: Francisco E.
Lüttecke.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Javier Armengau, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas pursuant
to jury verdicts finding him guilty of one count of public indecency, four counts of sexual
battery, one count of kidnapping, one count of rape, and two counts of gross sexual
imposition.
I. PROCEDURAL BACKGROUND
{¶ 2} During the period of the indicted offenses, appellant was an attorney
licensed in Ohio, with a central Ohio general practice that over time became focused on
No. 14AP-679 2
criminal defense work. The women who accused him of sexual misconduct were clients or
relatives of clients; two of the accusers also worked in appellant's law offices.
{¶ 3} Columbus police began investigating appellant in 2013 after one of the
accusers, C.C., hired appellant to represent her son in criminal proceedings and
complained of appellant's unwanted physical advances. After appellant's arrest at the
termination of that investigation, other accusers began coming forth, leading to an 18-
count indictment issued by the Franklin County Grand Jury alleging crimes victimizing
five different women: Counts 1, 2, and 3 alleged kidnapping, public indecency, and gross
sexual imposition involving accuser C.C., all occurring on or about April 4, 2013. Counts 4
and 5 alleged rape and kidnapping involving accuser L.G., arising out of a single incident
occurring between August 1 and August 31, 2008. Counts 6 and 7 alleged sexual battery
and gross sexual imposition involving accuser A.C., occurring between January 1, 1998 and
December 31, 2010. Count 8 alleged gross sexual imposition involving accuser K.R.,
occurring between August 8 and September 17, 2008. Counts 10 through 13 alleged rape
involving accuser L.M. Count 14 alleged kidnapping involving L.M. in connection with one
of the rape counts. Counts 15 through 18 alleged sexual battery against L.M. All the
counts involving L.M. alleged conduct occurring between January 1, 2002 and
December 31, 2008. All counts involving all accusers alleged that the criminal conduct
occurred in Franklin County, Ohio.
{¶ 4} The state provided a bill of particulars on June 1, 2014, amended it on the
eve of trial on June 6, 2014, and further amended it at the close of the state's case on
June 22, 2014. The state, over objection, also verbally amended the indictment during
trial to conform to certain testimony. The specifics of these amendments are more
extensively developed below in connection with appellant's first and sixth assignments of
error.
II. TRIAL PROCEEDINGS
{¶ 5} The prosecution relied chiefly on the testimony of the five accusers. In
addition, three other similarly situated women testified as other-acts witnesses regarding
events that did not give rise to further criminal charges. Two of these described
appellant's conduct in connection with consensual sexual relationships, and one testified
regarding appellant's offensive conduct or statements towards her.
No. 14AP-679 3
{¶ 6} The first accuser that testified at trial was C.C. She stated that she hired
appellant to represent her son in a criminal matter, and met with appellant at his office on
South High Street in Columbus. On April 4, 2013, C.C. received a call from appellant's
secretary asking her to come to appellant's Columbus office to discuss the upcoming trial.
During the course of their interview, appellant retrieved a legal file and sat next to C.C.,
brushing up against her. Appellant then opened the file, C.C. testified, and when the file
fell to the floor, he gripped C.C.'s left arm firmly and put his right arm down her shirt,
pulling her bra away from her breasts. C.C. testified that she was unable to move during
this episode because of appellant's physical restraint. C.C. then attempted to readjust her
clothing, and realized that appellant had stood up and unzipped his pants, placing his
penis before her face. C.C. was offended, and quickly left the office, calling a friend to pick
her up. She later called her sister, K.C., to complain of the episode.
{¶ 7} K.C. herself testified to confirm the phone call from C.C. She described her
sister as frantic during the call, which prompted K.C. to advise C.C. to call the police.
{¶ 8} After C.C. reported the incident to the Columbus police, investigators
contacted C.C. and asked her to set up further meetings with appellant that could be
recorded as evidence. She exchanged several recorded phone calls with appellant and
eventually met him at a restaurant, where their conversation was recorded and observed
by police. During this meeting, appellant again made unwanted advances towards C.C. by
repeatedly putting his hand on her thigh, and did not deny his prior conduct during their
meeting at his office. In the course of C.C.'s testimony, these recordings were played for
the jury in open court.
{¶ 9} Officer Jeffrey Cain, of the Columbus Division of Police, testified that he
went to C.C.'s apartment on April 4, 2013 to take the report of a sexual assault.
{¶ 10} Corporal Jeff Zech, of the Franklin County Sheriff's Office, testified
regarding the technical aspects of the audio recording process used for the restaurant
meeting between C.C. and appellant.
{¶ 11} Detective Jason Sprague, of the Columbus Division of Police, testified
regarding the preparations for the restaurant meeting between C.C. and appellant. He was
in the vicinity during the meeting but had difficulty picking up the conversation because
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recording sound was poor. After appellant's arrest upon leaving the restaurant, Detective
Sprague participated in a recorded interview with appellant at the police station.
{¶ 12} During Detective Sprague's testimony, the recording of appellant's post-
arrest interview was played in open court. In this interview, appellant described in detail
his recent meeting with C.C. at his office regarding her son's case. He denied any
inappropriate conduct on his part towards C.C. on that or any other occasion. He
professed to be baffled by some of C.C.'s text messages and phone calls that contained
flirtatious or sexual references, and stated that he had previously asked her to refrain from
such comments.
{¶ 13} Detective Jeffery Ackley, of the Columbus Division of Police, testified about
his participation in the investigation. He acted as security backup and an observer during
the restaurant meeting. His visual observations corroborated C.C.'s testimony regarding
appellant's physical actions, although the ambient noise prevented him from overhearing
their conversation directly. He was able to make a partial video recording of the meeting
using his personal recording device, and this was later transferred to CD by investigators.
The video was partially played for the jury but did not include any of appellant's alleged
physical advances.
{¶ 14} On cross-examination of C.C., defense counsel played a video recording
made in Columbus police facilities during a telephone conversation between C.C. and her
incarcerated son, who was awaiting trial for aggravated murder and other charges. In the
recorded conversation, C.C. several times assured her son that, due to the developing
conflict with appellant, the son would receive not only new defense counsel but a different
prosecutor and judge for his case. Upon further questioning, C.C. testified that she felt
that these changes would benefit her son, because she was dismayed by the harsh 43-year
sentence offered to her son in plea discussions, and doubted whether appellant had
obtained the best available result.
{¶ 15} In his testimony at trial regarding C.C.'s accusations, appellant denied any
inappropriate conduct towards C.C. He described his representation of her son against
several extremely serious charges, including aggravated murder. Appellant testified that
his primary contact was with other family members or his jailed client via telephone,
because C.C., after two brief initial meetings, made herself unavailable. While other family
No. 14AP-679 5
members came to various court hearings, C.C. did not. After several months, in April
2013, the trial date approached and appellant advised his client that the prosecution's 43-
year offer was preferable to trial and a life sentence. Appellant felt that the state had put
together a very solid investigation and his client would have little chance in front of a jury,
and a plea to the indictment without an agreed sentence would result in more time.
{¶ 16} Appellant testified that prior to the April 4 meeting, he instructed his
assistant to contact C.C. and arrange a meeting to update C.C. regarding the case. The
meeting was arranged for April 4, and C.C. arrived as agreed. Her behavior struck him as
odd. He asked about an individual that she had previously introduced to him as her
husband, and she laughed and stated that she had this individual arrested. They then
discussed her son's case, and C.C. expressed extreme disappointment with the plea offer.
Appellant explained the situation to her and showed her some of his case notes. He denied
sitting next to her on the office couch or touching her in any way. He was taken aback
when C.C., on leaving the office, asked if he would like to have dinner some time.
{¶ 17} Appellant testified that the next day he learned from his client, C.C.'s son,
that the client no longer wanted to accept the plea deal. C.C. then called him, and, in one
of the conversations that he later learned was recorded by her at police request, asked for a
dinner meeting to further discuss her son's plea. During the phone call, C.C. made several
flirtatious or sexually charged remarks, which appellant deflected. He was not particularly
put off by this because he considered C.C. to be somewhat unstable or unpredictable, and
in any case he had experienced flirtatious comments from other clients and could usually
steer such conversations back to business without difficulty. Appellant then described the
meeting with C.C. at the restaurant, and denied putting his hand on her thigh or touching
her inappropriately.
{¶ 18} The defense called S.K., C.C.'s former roommate. She testified that, in
March 2013, C.C. approached her about blackmailing appellant. C.C. appeared frustrated
by appellant's representation and the poor plea offer made by the state in her son's murder
case. C.C. was also upset about the amount of money she had paid appellant for her son's
representation. C.C. told S.K. that she had lied regarding the sexual incident so that she
could sue appellant and get a new attorney for her son. She promised to give S.K. a car if
S.K. would participate in the blackmail scheme. S.K. refused to participate when she
No. 14AP-679 6
learned that appellant had been arrested, whereupon C.C. kicked S.K. out of their shared
apartment.
{¶ 19} The second accuser to appear at trial was A.C. She testified that she began
working for appellant in the late 1990's, during the time that appellant represented her in a
custody dispute. Appellant's principal office at the time was in Marion, Ohio. A.C. worked
for appellant for over seven years, and she eventually resided in one of his rental
properties. Early in the working relationship, A.C. testified appellant approached her
when she was working in his Marion office, rubbed her shoulders, put his hands down her
shirt, and eventually requested that she perform oral sex. She acquiesced. These incidents
went on for some time, including an incident when she was in his Columbus office during
2005 or 2006. She could provide no specific dates for any of the incidents except for one
occurring on September 11, 2001. On direct and cross-examination, A.C. agreed that she
has a lengthy history of disabling mental illness and experienced many civil and criminal
legal difficulties as a result. She stated that the sexual activity with appellant was "to an
extent" consensual, but that at the time she felt she had little choice but to comply with his
demands. (Tr. at 834.)
{¶ 20} Appellant testified that he first met A.C., as she had testified, during
representation of her in a custody matter in 1999. He agreed that she had worked for him
off and on over the years and had rented a home from him. Appellant denied having any
sexual relationship of any kind with A.C. He represented her on numerous legal matters,
some arising from her mental health issues, which often led to run-ins with police. This
legal representation ended when A.C. complained that appellant was taking too long
obtaining a dissolution for her.
{¶ 21} The third accuser to testify was L.G., who testified that she met appellant in
2006 or 2007 when she retained appellant to represent her son in a legal matter. Their
interactions began professionally, but she claimed appellant soon began acting
inappropriately. She claimed that at one point, appellant demanded oral sex in exchange
for a promise to help her son. On several occasions he stripped naked in front of her in his
office and masturbated. Later, on the eve of her son's court appearance in September or
October 2007, she went to appellant's office for a meeting. Appellant and another man
were drinking in the office. L.G. claimed appellant offered her a drink and suggested that
No. 14AP-679 7
if she performed oral sex on both men, her son's case would have a better outcome. L.G.
refused and left the office.
{¶ 22} L.G. testified that next day, while in court attending her son's sentencing
hearing, she realized that the man she had seen the night before with appellant was, in
fact, the judge in her son's case. She was extremely upset when the judge imposed the
maximum sentence on her son at this hearing. After the hearing, L.G. claimed appellant
forced her to perform oral sex on him in an attorney conference room in the courthouse,
physically restraining her from leaving. She claimed that after this, she was violently ill as
she rejoined her family outside. L.G. testified that she had made a police report about the
incident in 2009, and refiled it in 2013 when learning of appellant's arrest.
{¶ 23} Prosecution witness S.W. testified that she was L.G.'s aunt and had
observed interaction between L.G. and appellant. She advanced some funds for
appellant's fees in the defense of L.G.'s son and later took L.G. to retrieve paperwork from
appellant's office after L.G. had terminated the attorney-client relationship on behalf of
her son. S.W. observed a heated confrontation between L.G. and appellant, prompted in
part by appellant's refusal to return the son's case file. At some point in the conversation,
L.G. called appellant a rapist. From appellant's office, they drove to the Columbus police
department, where L.G. went inside for at least two and one-half hours while S.W.
remained in the car. On previous occasions, S.W. had accompanied L.G. for case
conferences, and felt that appellant was upset that L.G. was not alone and would not come
up to his office alone.
{¶ 24} Prosecution witness J.B. testified that she was L.G.'s de facto mother-in-law,
as L.G. had lived with her son for 24 years even though the two were not married. She
attended a meeting with L.G. at appellant's office in 2009 and observed an argument or
scene in which L.G. called appellant a rapist. Thereafter, she rode in the car with L.G. and
S.W. to the police station, and testified that L.G. was in the police station only 15 or 20
minutes. On another occasion, J.B. attended a hearing for her grandson at the courthouse
and waited outside in the hall during proceedings. J.B. testified that, at some point, L.G.
emerged from the courtroom and became violently ill. When J.B. asked what was the
matter, L.G. replied "if you only knew." (Tr. at 1291.)
No. 14AP-679 8
{¶ 25} On cross-examination of L.G., the defense offered the dates and results of
L.G's son's criminal cases, and the dates of appellant's representation in those cases, to
impeach her testimony. In particular, the defense introduced court records indicating that
her son had received only community control, rather than prison, in his appearance before
the trial judge she identified as associating with appellant.
{¶ 26} In his testimony regarding his contact with L.G., appellant agreed that he
had represented her son in a criminal case. He also noted that he had represented her
personally in several criminal cases in 2006, as well as her other son during the same
period. Appellant denied all allegations by L.G. regarding sexual conduct. He testified
that his representation of her son ended when the son received probation in the cases on
which appellant worked, but that she asked him to appear at sentencing involving the son's
other case. On that occasion, appellant spoke briefly with L.G. before leaving after the
son's current counsel, a public defender, arrived.
{¶ 27} Attorney Emily Huddleson testified for the defense regarding L.G.'s
accusations. She stated that she was the public defender who represented L.G.'s son at the
sentencing hearing in question. She testified that after sentencing, she and L.G. walked
out in the lobby together, were met by an older woman, and the three discussed the
sentence and the reasoning behind it for 20 or 30 minutes. Despite the fact that
Huddleson was assigned counsel for all four cases involving L.G.'s son that day, L.G.
complained to Huddleson that she had paid appellant a lot of money and felt he should
still be there. Huddleson testified that appellant was initially present at the hearing but
not there for the conclusion when the judge imposed a prison sentence on L.G.'s son.
Huddleson described L.G. as furious after her son received prison time. Huddleson did
not observe L.G. crying, being sick to her stomach, or going into a courthouse conference
room with appellant or anyone else after the hearing.
{¶ 28} The fourth accuser to testify was K.R. K.R. testified that appellant
represented K.R.'s boyfriend in a case in which he had been accused of domestic violence
against K.R. Despite being the victim of the domestic violence at issue, K.R. met with
appellant to pursue dropping the charges. Appellant subsequently represented K.R. in a
criminal matter of her own. Before her trial in September 2008, K.R. testified they met in
appellant's Marion office, where he offered her a drink, rubbed her shoulders, and began
No. 14AP-679 9
feeling her breasts. K.R. refused to have sex with appellant, whereupon appellant began
masturbating in front of her. K.R. told her mother about the incident, and reported the
incident to the bar association, police, and a judge of the Marion County common pleas
court. After the incident, she obtained new representation. Despite the statement that she
gave to police and court, she heard nothing more from local authorities. Her own criminal
case concluded with a guilty plea and a one-year sentence in prison. The Columbus Bar
Association referred her complaint to the Supreme Court of Ohio, and a representative of
the Supreme Court interviewed her regarding her allegations. To her knowledge, nothing
came of the matter. After learning of appellant's 2013 arrest involving similar allegations,
she contacted a detective with the Columbus police to renew her allegations in the matter.
{¶ 29} Regarding K.R., appellant testified that he recalled representing her in
2008, when they disagreed about a plea offer from the prosecution. She terminated
representation when he refused to seek a continuance on what he felt were unwarranted
medical grounds. He was later summoned to court for a pretrial and was requested by the
prosecution and the judge to arrive early. When he arrived, the judge and prosecutor
informed him that K.R. had reported a sexual assault. He withdrew from her case, and a
new lawyer was appointed. Appellant denied any sexual misconduct with K.R.
{¶ 30} The final accuser to testify was L.M., who described a long history of
coerced sexual relations with appellant. Her testimony with regard to dates was generally
vague, and often established only by reference to the age of her young daughter, born in
1997, during the various incidents described.
{¶ 31} L.M. described her background as an immigrant from Venezuela with
limited English. She came to America with her Venezuelan fiancé, and after they married
in Florida he took a job in Ohio. She testified that she first retained appellant in late 1998
or early 1999 to represent her in divorce proceedings. She selected him based on his
ability to communicate in Spanish. She also had difficulties with her immigration status,
which was solely based on her then-husband's student visa, and appellant advised her to
delay the divorce while dealing with these immigration issues. As a result, the divorce
action went on for a considerable time, and L.M. met many times with appellant. She
traveled from her home in Groveport, in southeast Franklin County, to appellant's office in
Marion for these meetings, which appellant usually scheduled for Friday afternoon or
No. 14AP-679 10
Saturday. At first she brought her infant daughter along, but approximately three months
after taking the case appellant requested that she not bring the child to meetings.
{¶ 32} The first incident she claimed occurred about four or five months after she
retained appellant. She testified that during an office conference at appellant's Marion
office, appellant offered L.M. a cup of coffee, and thereafter she lost consciousness. She
awoke alone on appellant's office couch with her clothes in disarray and indications that
she had experienced sexual intercourse. She felt confused, as if drugged or drunk. After a
short time, appellant returned to the room and told her she had fainted. As a result of this
incident, L.M. avoided seeing appellant for the next two months.
{¶ 33} L.M. resumed contact with appellant after a series of phone calls from him
in which he advised that she was at risk of deportation and would lose custody of her
daughter. Around this time in 1999, appellant provided a tenant reference that helped
L.M. move from Groveport to an apartment in Dublin, in northern Franklin County and
thus closer to Marion. She claimed that she met again with appellant in his Marion office
at this time, and another assault occurred. After briefly discussing her case, appellant
suddenly approached her and pulled down his pants. Appellant threatened a poor result
in her legal matters if she did not perform oral sex. He placed his hands behind her head,
thereby "restraining [her] head against his penis," told her to "do it," and forced his penis
into her mouth. (Tr. at 1483.)
{¶ 34} L.M. testified that after that incident sexual conduct between appellant and
L.M. was frequent over approximately the next three years, always under the implied
threat that if he dropped her case she would lose her immigration status and custody of
her daughter. These events first took place at appellant's Marion office, where appellant
eventually hired her to do office work to help pay her legal bills. Later appellant kept a
residential apartment in Marion and took her there. Some incidents also took place at her
apartment in Dublin, where appellant would ask L.M. to lock her daughter in another
room. Although L.M.'s testimony did not provide details of any specific instances for most
of the abuse occurring after the two specific incidents described above, she did testify in
more detail about later events that formed the basis for two of the rape charges: sometime
in 2000 or 2001, appellant drove L.M. in a white truck from his Marion office to a rural
field where he forced her to have vaginal sex. Six months later, he repeated the offense.
No. 14AP-679 11
{¶ 35} L.M. testified that around the time that her daughter was three and one-half
or four years old, L.M. became pregnant by appellant and appellant insisted that she have
an abortion. The last time she claimed she had sexual contact with appellant was 2003.
This was the year in which she obtained her permanent U.S. residency, and with her
immigration status settled she no longer felt compelled to submit to appellant's demands.
{¶ 36} L.M. learned of appellant's arrest in 2013 when her daughter emailed a link
to a newspaper story. From this she learned that she was not the only person who claimed
to suffer appellant's advances. After discovering this, L.M. called appellant to tell him that
she was glad that the arrest would prevent him from taking advantage of other women.
L.M. then contacted the Columbus police detective named in the news story to complain of
the past incidents.
{¶ 37} On cross-examination, L.M. denied that appellant had ceased representing
her in her divorce case by 2001. Defense counsel offered docket items to establish that a
different attorney appeared on her behalf in the domestic action after that time. L.M.
responded that many attorneys had represented her in different matters through this time,
but she felt certain that appellant continued to act on her behalf. She acknowledged that
her original divorce action was dismissed and she eventually divorced under a new case
filed in 2003 by another attorney. She also acknowledged that, despite her professed
hatred for appellant arising from past abuse, she had often approached appellant for
informal assistance with legal or practical matters over the years during and after the
abusive conduct. She stated that she viewed this assistance as repayment for past abuse:
"I wanted to take advantage of him because he abused me so – for so long. * * * So he
abusing [me] so long, so he has to do it for me." (Tr. at 1645.)
{¶ 38} Generally, appellant testified that he had a long-standing professional
relationship with L.M., beginning when L.M. approached him for representation in a
divorce matter. Even after his representation of her in her divorce matter terminated in
approximately 2001, appellant testified L.M. repeatedly sought his assistance in several
legal and non-legal matters. Regarding the duration of his legal representation, appellant
testified that he filed L.M.'s divorce paperwork in December 1999 and withdrew from
representation in 2001. Other attorneys took her case thereafter. In 2004, appellant and
his wife separated briefly, and appellant and L.M. dated for about two weeks. Appellant
No. 14AP-679 12
denied ever having any type of sexual contact with L.M. at any other time during their
relationship. Their brief dating relationship ended abruptly when L.M. told appellant she
was pregnant, and appellant, who had undergone a vasectomy, understood that she had
been seeing other men. He denied arranging an abortion for her.
{¶ 39} The next witness was L.L., who was not the object of any indicted offenses,
but testified as to appellant's conduct when he represented her in 2009 as she faced a
murder charge. The defense objected unsuccessfully to this "other acts" evidence.
{¶ 40} L.L. testified that during one of her pre-trial meetings with appellant in a
jailhouse conference room, appellant illustrated his views on witness credibility by stating
that "he could rape [her] in the room and it would be [her] word against his and nobody
would be the wiser." (Tr. at 1794.) Appellant also stated on that occasion that L.L. could
crawl under the table and perform oral sex on him because there were no correction
officers around, and it would be only her word against his if she complained.
{¶ 41} In his testimony, appellant denied making any such comments to L.L.
{¶ 42} M.H. was another witness offered by the prosecution for "other acts"
testimony, again over objection. M.H. testified that appellant represented her as her
attorney for over a decade, beginning when she was 17 years old and incarcerated in the
juvenile detention facility. Upon initial release, she and appellant met at his Marion office,
went to dinner, and went back and had sex in his office. Over the ensuing 12 years,
appellant represented M.H. on multiple cases but she never paid him. They continued to
have sex during this time, and M.H. accompanied appellant on a vacation to Florida.
{¶ 43} Appellant testified that he met M.H. at the very beginning of his legal
career, when he substituted for an attorney who had failed to appear at the Marion County
Juvenile Center. M.H. was 17 and charged with a felony. She later approached appellant
for representation in a divorce. Rather than going on a dinner date followed by sex, as
described by M.H., appellant recalled that they had dinner with M.H.'s stepfather and
mother, and he left that dinner meeting alone. Appellant adamantly denied ever having
sex with M.H. He agreed that he continued to represent her in various criminal matters
for 12 years after the initial case.
{¶ 44} C.P. testified over objection as the third and final "other acts" witness. She
testified that she met appellant about handling her divorce. He did not do so because she
No. 14AP-679 13
eventually proceeded with a dissolution in another state. She then retained him to
represent her boyfriend in a criminal case. C.P. acted as a liaison between the boyfriend
and appellant while the boyfriend was incarcerated. During one jail call, which was
recorded, C.P. told the boyfriend that appellant had slapped her buttocks while she was
leaving appellant's office one day. Appellant learned of this conversation and told her he
was upset about this both because it would create friction with his client and because he
knew that all jailhouse calls were recorded. Later, after appellant was removed from the
boyfriend's case because he was a potential witness, C.P. and appellant began a consensual
sexual relationship. This continued intermittently until just prior to appellant's trial.
{¶ 45} Appellant's testimony with respect to C.P. denied any sexual conduct
between them. He testified that in the course of his criminal defense practice, his office
routinely obtained and reviewed audio discs of recorded jailhouse phone conversations
involving many of his clients. After reviewing the recorded jailhouse phone call in which
C.P. told her boyfriend that appellant had slapped or groped her buttocks, appellant asked
for a meeting to explain why she would make such a false statement to his client. She
stated that she was upset by reports of the boyfriend's past infidelity and merely wished to
make the boyfriend jealous. He then advised her to be cautious with such conversations.
{¶ 46} In addition to his testimony addressing the specific accusations presented
by the state's witnesses, appellant testified in his case-in-chief regarding his background.
He stated that he graduated from Capital Law School in 1998 as an older, non-traditional
student with a growing family. He clerked with an experienced criminal defense attorney
in Marion, Ohio, during law school, and shared space in that office for one year after
passing the bar. He then secured his own space and began his own practice in Marion and,
eventually, in Columbus, Mansfield, and Cleveland. His practice, general at first,
eventually focused on criminal defense with a smaller proportion of domestic and civil
litigation. He testified that he believed the accusations against him were the result of a
coordinated campaign by the Franklin County Prosecutor's Office, the Attorney General,
and the Columbus police to remove him from the practice of law because of his effective
advocacy in criminal cases.
{¶ 47} The defense presented testimony from several current or former female
employees and clients of appellant's practice. These witnesses testified that they had never
No. 14AP-679 14
experienced or witnessed any misconduct by appellant. The defense also sought to attack
the credibility of the accusers by introducing testimony, photographs, and documentary
evidence that conflicted with the accuser's descriptions of appellant's office locations and
interior furnishings.
{¶ 48} With respect to the charges involving L.M., the jury returned guilty verdicts
on Count 10 of the indictment (rape), Count 14 of the indictment (kidnapping), and Counts
15, 16, 17, and 18 of the indictment (sexual battery). The court merged Counts 15 and 10 of
the indictment for sentencing purposes, and the prosecution elected to sentence on Count
10 of the indictment for rape. The court declined to merge any other counts involving
L.M., in particular, finding that the rape and kidnapping counts, although arising out of
the same transaction, were driven by a separate animus.
{¶ 49} The jury returned a guilty verdict on Count 2, public indecency, involving
C.C. The trial court addressed this in a separate misdemeanor sentencing entry imposing
30 days jail time with full credit for time served.
{¶ 50} The jury returned a guilty verdict on Count 3 of the indictment (gross sexual
imposition) involving C.C. The jury also returned a guilty verdict on Count 8 of the
indictment (gross sexual imposition) involving K.R.
{¶ 51} The court imposed sentences of 15 months on Count 3 of the indictment, 15
months on Count 8 of the indictment, 9 years on Count 10 of the indictment, 4 years on
Count 14 of the indictment, and 30 months each on Count 16, 17, and 18 of the indictment.
The terms for Counts 3 and 8 of the indictment were to be served concurrently with each
other and with Counts 10 and 14 of the indictment. Terms for Counts 10 and 14 were
consecutive to each other but concurrent to Counts 16, 17, and 18, themselves concurrent
with each other, for a total sentence of 13 years.
{¶ 52} The trial court entered sentence on August 28, 2014. Appellant filed his notice of
appeal with this court on August 29, 2014. On August 7, 2015, appellant filed a motion for
a new trial. On July 9 and 10, 2015, the court transmitted the transcript and record,
respectively, in the criminal case to this court. On April 5, 2016, the trial court denied
appellant's motion for leave to file his motion for a new trial. Appellant attempted to
appeal the trial court's denial of his motion for leave to move for a new trial and, on
No. 14AP-679 15
May 24, 2016, we dismissed that appeal as untimely. State v. Armengau, 10th Dist. No.
16AP-355 (May 24, 2016) (journal entry of dismissal).
III. APPELLANT'S APPEAL
{¶ 53} Appellant's direct appeal has now been fully briefed. Appellant brings the
following nine assignments of error:
[I.] The trial court erred in permitting the amendment of the
indictment and bill of particulars, which even after
amendment remained duplicative and lacked the requisite
specificity. That error, along with the State's own confusion
regarding the relevant conduct underlying these counts,
resulted in violations to Mr. Amengau's rights to due process
of law, a fair trial, jury unanimity, and the double jeopardy
protections to which he was entitled. Fifth, Sixth, and
Fourteenth Amendments, United States Constitution; Article
I, Sections 10 and 16, Ohio Constitution; Crim.R. 31(A).
[II.] Mr. Armengau's rights to due process and a fair trial
were violated when the trial court allowed the State to
present irrelevant, cumulative, overly prejudicial evidence
about prior bad acts through additional non-victim
witnesses, whose testimony also violated the Ohio Rape
Shield Statute, as well as testimony of hundreds of
unindicted offenses.
[III.] The trial court erred when it imposed separate
sentences for offenses that arose from the same conduct,
were not committed separately or with a separate animus,
had a similar import, and should have been merged for
sentencing purposes under R.C. 2941.25.
[IV.] The prosecutors' misconduct denied Mr. Armengau a
fair trial and due process of law, in violation of his Fifth,
Sixth, and Fourteenth Amendment rights under the United
States Constitution, Article I, Sections 10 and 16, of the Ohio
Constitution, and R.C. 2901.05.
[V.] Javier Armengau was deprived of his constitutional right
to the effective assistance of counsel. Fifth, Sixth, and
Fourteenth Amendments, United States Constitution; Article
I, Section 10 and 16, Ohio Constitution.
[VI.] The trial court erred in denying Javier Armengau's
Crim.R. 29 motion for acquittal, and violated his rights to
No. 14AP-679 16
due process and a fair trial when, in the absence of sufficient
evidence, it convicted him of counts 8, 10, 14, 15, 17, and 18.
[VII.] The trial court erred in denying Javier Armengau's
Crim.R. 29 motion for acquittal, and violated his rights to
due process and a fair trial when, in the absence of sufficient
evidence, it convicted him of counts 3 and 8.
[VIII.] The trial court violated Javier Armengau's
constitutional right to be free from retroactive laws.
[IX.] The trial court violated Javier Armengau's right to due
process and a fair trial through cumulative error.
A. The Indictment and Bill of Particulars
{¶ 54} Appellant's first assignment of error raises multiple issues relating to the
charges involving L.M. Appellant first asserts that the trial court erred in allowing the state
to amend the indictment and bill of particulars. He also asserts that the trial court allowed
the state to try him for unindicted offenses. Finally, he asserts that the indictment and bill
of particulars lacked specificity to differentiate duplicative offenses involving L.M., and the
result was a patchwork verdict that did not reflect the jury unanimity required by Crim.R.
31(A). Appellant asserts that the trial court erred in denying a mistrial based on these
errors, and that he was deprived of his due process rights under the Fifth, Sixth, and
Fourteenth Amendments, United States Constitution, and Article I, Sections 10 and 16,
Ohio Constitution.
{¶ 55} Article 1, Section 10 of the Ohio Constitution provides that "no person shall
be held to answer for a capital, or otherwise infamous crime, unless on presentment or
indictment of a grand jury." This language "guarantees the accused that the essential facts
constituting the offense for which he is tried will be found in the indictment of the grand
jury." State v. Headley, 6 Ohio St.3d 475, 478 (1983). The state is entitled to state a count
in the indictment in bare statutory language. Crim.R. 7(B). A defendant seeking to clarify
the facts of the criminal allegations contained within the indictment may request a bill of
particulars "setting up specifically the nature of the offense charge and of the conduct of
the defendant alleged to constitute the offense." Crim.R. 7(E). The purpose of the bill of
particulars is to "elucidate or particularize the conduct of the accused alleged to constitute
No. 14AP-679 17
the charged offense." State v. Sellards, 17 Ohio St.3d 169, 171 (1985). However, "[a] bill of
particulars is not designed to provide the accused with specifications of evidence or to
serve as a substitute for discovery." Id.
1. The L.M. Charges and Amendments
{¶ 56} Appellant points out that the charges with respect to L.M. varied between
the bill of particulars, the amended bill of particulars, and yet again with L.M.'s testimony.
For all offenses, the time frame shifted: 2002 to 2008 inclusive in the indictment, 1999 to
2008 inclusive after amendment of the indictment at trial, and between 1998 and 2003
according to L.M.'s testimony.
{¶ 57} The other particulars of the offenses varied as well. For example, as
indicted, Count 9 alleged vaginal rape. The first bill of particulars described this as
occurring on the couch in appellant's Marion office, with the door locked and appellant's
hands in L.M's mouth to silence her. The first and second amended bills of particulars did
not alter this description. When opposing the defense's Crim.R. 29 motion for acquittal at
the close of the state's case, the state, lacking any testimony from L.M. concerning rape
under these circumstances, argued that this offense now rested on L.M.'s description of a
possible drugging rape occurring in appellant's Marion office, the first incident she
endured. The state's closing statements maintained this theory, in direct contradiction to
the state's comments in opening statements, which represented the drugging incident as
an unindicted offense. (Tr. at 1463-69, 2355-56.) Based on those transformations,
appellant now asserts that he ultimately was tried (albeit acquitted) for the crime of rape
through induced intoxication, R.C. 2907.02(A)(1)(a), when the indictment charged rape
through submission by force or threat of force, R.C. 2907.02(A)(2).
{¶ 58} Similarly, Count 10 of the indictment alleged oral rape, and the conduct
supporting this shifted over the course of trial. The initial bill of particulars did not
provide details for this offense. The second amended bill of particulars specified that
appellant "did force [L.M.] to have oral sex with him in his Marion office by telling her to
'do it' and forcing his penis into her mouth." (June 22, 2014 Second Amended Bill of
Particulars at 2).
{¶ 59} Finally, Count 14 of the indictment alleged kidnapping with purpose to
engage in sexual activity. The first bill of particulars tied this conduct to an office couch
No. 14AP-679 18
rape involving a locked door and appellant's hand in the victim's mouth to silence her;
after the various amendments to the bills of particulars regarding the three original counts
of vaginal rape (Counts 9, 12, and 13) in the indictment, this conduct matches only Count
9. (The second amended bill of particulars described Counts 12 and 13 to conform to
L.M.'s testimony of rapes in a white truck.) The second amended bill of particulars further
altered the facts so that the kidnapping in Count 14 now alleged restraint of liberty in
furtherance of compelled oral sex, thus detaching Count 14 from the vaginal rape in Count
9 and attaching it to one of the two oral rape counts, either Count 10 or 11.
{¶ 60} There is no doubt that the evidence heard at trial forced a steady evolution
of the state's theory of the case for the offenses involving L.M. However, the law, in the
form of Crim.R. 7(D), contemplates that this circumstance will arise in many criminal
cases and the state will not be irremediably bound to the facts available at the outset of
trial: the state may amend the indictment and bill of particulars so long as "no change is
made in the name or identity of the crime charged." Crim.R. 7(D); State v. White, 10th
Dist. No. 06AP-607, 2007-Ohio-3217, ¶ 17. And even in cases where the state has not
amended the bill of particulars, "Crim.R. 33(E)(2) states that a verdict shall not be set
aside, nor shall any judgment of conviction be reversed because of a variance between the
allegations and the proof unless the defendant is misled or prejudiced by the variance."
State v. Kersey, 124 Ohio App.3d 513, 518 (1st Dist.1997).
{¶ 61} Ultimately, the initial lack of specificity and the court's allowance of serial
amendments did not materially prejudice appellant. Apart from the dates of the offenses,
which remained imprecise, the charges against appellant were sufficiently specific to allow
an effective defense, which ultimately was successful as to certain charges. With respect to
the variations in dates, appellant's defense did not rely on alibis or impossibility for the
open dates given in the indictment, and "[t]he precise date and time a rape occurs is not an
essential element of the crime." State v. Reinhardt, 10th Dist. No. 04AP-116, 2004-Ohio-
6443, ¶ 20, citing State v. Madden, 15 Ohio App.3d 130 (12th Dist.1984). Appellant's
defense relied on absolute denial of any sexual activity with L.M. outside of a two-week
consensual dating relationship whose timing did not impact the charged crimes. The jury
found appellant not guilty of rape by induced intoxication under Count 9, the alleged
No. 14AP-679 19
unindicted offense. Appellant cannot suggest prejudice from the lack of specificity in the
bill of particulars or the later amendments.
2. Jury Unanimity
{¶ 62} Finally, appellant argues that the complex, and allegedly mismatched,
assemblage of facts, testimony, indictment, and amendments of the bill of particulars
allowed the jury to produce a "patchwork" verdict in violation of Ohio's requirement of
jury unanimity, under Crim.R. 31(A). Pursuant to that rule, jurors must unanimously
agree not only on the defendant's guilt, but as to proof as to each element of the crime.
State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, ¶ 37. While unanimity is not
required on the manner in which each element is satisfied in an "alternative means" case,
the distinction must be made between "alternative means" cases and "multiple acts" cases.
Id. at ¶ 48-51. Appellant argues that both the state's tactics and the court's jury
instructions invited a less-than-unanimous verdict.
{¶ 63} In alternative-means cases, an offense may be committed in more than one
way and jury unanimity is required for the crime itself but not the means by which it was
committed. Gardner at ¶ 49. In multiple-acts cases, several different acts can constitute
the charged crime, and jury unanimity is required as to which act or incident supports the
crime. Id. at ¶ 50. In a multiple-acts case, the jury must be unanimous as to which act or
incident constitutes the crime. To ensure this, the state must specify the particular
criminal act upon which it relies for conviction, and the trial court must "instruct the jury
that all of them must agree that the same underlying criminal act has been proved beyond
a reasonable doubt." Id. It follows that in a case where multiple crimes are charged, the
jury must unanimously agree on which underlying criminal act supports any given charge.
{¶ 64} Here, appellant's counsel requested a jury instruction expressly advising the
jury to consider each count separately, uninfluenced by their conclusion as to any other
count. This was not given. The state requested an alternative-means instruction, which
was given. The court then advised the jury only in general terms regarding unanimity,
without elaborating on the need to consider the counts independently: "Before you can
find the defendant guilty, you must unanimously agree on your verdict." (Tr. at 3830.)
Because counsel did not object to the jury instructions as given, we review the issue under
a plain-error standard. State v. Hartman, 93 Ohio St.3d 274, 289 (2001). Plain error
No. 14AP-679 20
exists where the outcome of the trial would clearly have been different but for the error.
Crim.R. 52(B); State v. Biros, 78 Ohio St.3d 426, 431 (1997); State v. Long, 53 Ohio St.2d
91, 97 (1978). The plain error rule must be applied with the utmost caution and invoked
only under exceptional circumstances to prevent a manifest miscarriage of justice. State v.
Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, at ¶ 62; State v. Cooperrider, 4 Ohio St.3d
226, 227 (1983).
{¶ 65} Appellant argues that his case is a multiple-acts case, not an alternative-
means case, and that the state improperly led the jury to believe that various acts,
occurring in different places and at different times, could support conviction for a given
count as long as jurors all agreed that some of the acts had been committed, although not
necessarily agreeing as to which ones. Because L.M. testified, not only as to specifics, but
as to continuous sexual conduct occurring on at least a weekly basis over a period of years,
he asserts that it becomes impossible to ascertain which aspect of the testimony the jury
unanimously relied upon to convict for any particular criminal count.
{¶ 66} The jury verdict reflects, to the contrary, that the jury was able to clearly
differentiate the various specifics supporting each offense. L.M.'s general testimony of
ongoing and continual abuse does not compel the conclusion that the jury confused the
various specific incidents she described. These included four specific incidents of vaginal
or oral rape and an incident of compelled fellatio in her Dublin apartment in which
appellant made L.M. lock her young child away in another room. L.M.'s testimony was
sufficiently precise in describing the major incidents outlined above. While we, of course,
do not take the blanket position that a partial acquittal disproves all error, in this case,
under a plain error standard, the fact that the jury refused to convict on some of these
counts even while returning a guilty verdict on the others tends to refute the possibility of a
patchwork verdict. We find that the outcome of the case would not have been clearly
different had the requested instruction been given or the counts particularized more
consistently in the course of prosecution.
{¶ 67} In summary, we conclude that appellant was not deprived of his
constitutional due process rights by the form of the indictment, the subsequent
amendment thereof, the form of the bill of particulars through multiple amendments, and
No. 14AP-679 21
the jury instructions provided by the court. We overrule appellant's first assignment of
error.
B. The Admission of Other-Acts Testimony
{¶ 68} Appellant's second assignment of error asserts that the trial court
prejudicially erred when it permitted the state to present, over objection, quantities of
prior-bad-acts evidence. This consisted of the testimony of the other-acts witnesses, two
of whom described appellant's conduct in the form of consensual sexual relationships with
clients, and testimony by the accusers, who were allowed to describe related but
unindicted acts. Appellant asserts that the sheer volume of such evidence demonstrates
that the state's case was strategically premised on improper evidence regarding his
propensity to commit the alleged offenses.
1. Legal Standards
{¶ 69} Evidence of other acts of the defendant, different from those for which the
defendant is on trial, is generally not admissible when the purpose is to show the
defendant's character, or propensity to commit crime. Evid.R. 404(B); R.C. 2945.59; State
v. Curry, 43 Ohio St.2d 66 (1975); State v. DeMarco, 31 Ohio St.3d 191 (1987). Because
the much more recent rules of evidence essentially supplanted the earlier statute but
reflect the same common-law exclusion, the Supreme Court of Ohio has clarified that the
underlying policies of Evid.R. 404(B) and R.C. 2945.59 are essentially the same, and that
the provisions should be read in conjunction with each other. State v. Broom, 40 Ohio
St.3d 277, 281 (1988); see also State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-
1289, ¶ 67 (12th Dist.). The policies underlying the limited admissibility of other-acts
evidence include the inherent danger that the jury will convict because the defendant is
crime-prone, the injustice of forcing a defendant to defend against evidence the defendant
is not prepared to challenge, and the resulting confusion of the issues. Curry at 68.
{¶ 70} Such evidence may, however, be "admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident." Evid.R. 404(B). In State v. Williams, 134 Ohio St.3d 521, 2012-
Ohio-5695, the Supreme Court set out a three-step analysis for the trial court to consider
in admitting "other acts" evidence: (1) whether the other-acts evidence is relevant under
Evid.R. 401, (2) whether the other-acts evidence is presented for a permissible purpose,
No. 14AP-679 22
such as those stated in Evid.R. 404(B), rather than to prove the character of the accused in
order to show activity in conformity therewith, and (3) whether the probative value of the
other-acts evidence is substantially outweighed by the danger of unfair prejudice under
Evid.R. 403. Id. at ¶ 19-20.
{¶ 71} "[T]rial court decisions regarding the admissibility of other-acts evidence
under Evid.R. 404(B) are evidentiary determinations that rest within the sound discretion
of the trial court. Appeals of such decisions are considered by an appellate court under an
abuse-of-discretion standard of review." State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-
2407, ¶ 22. Although the term "abuse of discretion" is often defined, pursuant to
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983), as an unreasonable, arbitrary, or
unconscionable decision, no court has the authority, within its discretion, to commit a
prejudicial error of law. State v. Moncrief, 10th Dist. No. 13AP-391, 2013-Ohio-4571, ¶ 7,
State v. Easley, 10th Dist. No. 16AP-9, 2016-Ohio-7271, ¶ 6.
{¶ 72} Appellant objected at trial to much of this testimony. The trial court, in
addressing objections to the three other-acts witnesses who did not testify as to indicted
crimes, accepted the state's explanation of relevancy and Evid.R. 404(B) admissibility.
The court ruled that their testimony was admissible to establish motive and method,
describing appellant's alleged practice of "grooming" vulnerable clients for eventual
exploitation. Over separate objections, the court similarly allowed A.C. and L.M. to testify
in the most general terms that appellant demanded sexual compliance on a regular basis
over many years. This testimony wove a pattern of numerous instances of express or
implied sexual conduct that did not specifically underlie any indicted offenses. The court
issued limiting instructions to the jury at two points in the trial, instructing the jury to
consider the other-acts evidence, not as proof of character and tendency to act in
conformity therewith, but solely as "proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident." (Tr. at 1443, 3800.)
2. Legal Analysis
{¶ 73} The first step under Williams asks whether the evidence is relevant.
" 'Relevant evidence' means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." Evid.R. 401. Irrelevant evidence is
No. 14AP-679 23
inadmissible, while relevant evidence is generally admissible subject to certain
exceptions. Evid.R. 402.
{¶ 74} Appellant argues that evidence of consensual relationships with some
witnesses, and improper comments to another, is irrelevant to prove the existence of
coerced or forcible sexual conduct towards the accusers. He also asserts that testimony by
the accusers themselves exceeded the scope of charged crimes and included many
instances of alleged but uncharged sexual assaults. On both aspects, the evidence was
sufficiently probative to support the court's ruling of admissibility. Evidence of consensual
sexual activity with clients is not so remote from the charged crimes. While appellant
understandably stresses that consensual sex is fundamentally distinguishable from
coerced or forced sex, sexual activity with clients, particularly clients similarly situated to
those who were the objects of the charged crimes, is a common thread that supports
relevance. Similarly, evidence of uncharged but similar crimes may be admissible if they
establish plan or method of operation. See generally State v. Perez, 124 Ohio St.3d 122,
¶ 98-102 (Evidence of uncharged robberies not resulting in injuries to victims was
admissible in aggravated murder trial arising from armed robbery and shooting.).
{¶ 75} The second question asked in Williams assesses whether the state offered
the evidence under a permissible exception defined in Evid.R. 404(B). This distinction
frequently, as here, turns on whether the evidence served only to offer a description of
character and tendency to act in conformity therewith, or to the contrary was permissible
evidence of a scheme, plan, or system. The line is often blurred, see, e.g., Perez at ¶ 98-
104, but in the context of this case the trial court had discretion to admit the disputed
evidence for the reasons described above. In fact, the case here is nearly on all fours with
Williams, as the holding in that case shows: "Evidence that Williams had targeted teenage
males who had no father figure to gain their trust and confidence and groom them for
sexual activity with the intent of sexual gratification may be admitted to show the plan of
the accused and the intent for sexual gratification." Williams at ¶ 25.
{¶ 76} The third step in Williams asks whether the probative value of the evidence
is outweighed by the danger of unfair prejudice. We find that it does not on the present
facts. The court twice gave a limiting instruction to the jury, and the jury is presumed to
follow the trial court's instructions. State v. Loza, 71 Ohio St.3d 61, 75 (1994).
No. 14AP-679 24
{¶ 77} Moreover, even if the evidence were improperly admitted, we would find no
prejudicial error on this record. "In determining whether to grant a new trial as a result of
the erroneous admission of evidence under Evid.R. 404(B), an appellate court must
consider both the impact of the offending evidence on the verdict and the strength of the
remaining evidence after the tainted evidence is removed from the record." State v.
Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, syllabus. "[A]n improper evidentiary
admission under Evid.R. 404(B) may be deemed harmless error on review when, after the
tainted evidence is removed, the remaining evidence is overwhelming." Id. at ¶ 32; see also
Columbus v. Phillips, 10th Dist. No. 15AP-408, 2015-Ohio-5088, ¶ 40. The evidence on
the crimes for which the jury returned a verdict was considerable, if believed, and the
jury's decision to reject some counts as to certain accusers, and all counts as to others,
again indicates that the jury did not allow the contested evidence to taint the overall
verdict.
{¶ 78} In addition to the obstacles to introduction of other-acts evidence under the
rules of evidence, appellant asserts that admission of his past sexual activity violates R.C.
2907.02(D) and 2907.05(E), which govern the introduction of evidence pertaining to the
sexual history of either the victim or defendant in sex offense cases. Although the statutes
are identically worded, R.C. 2907.02(D) applies to rape prosecutions, and R.C. 2907.05(E)
applies to gross sexual imposition prosecutions. The statutes are commonly referred to as
"Ohio's rape shield laws." In re M.C., 10th Dist. No. 12AP-618, 2013-Ohio-2109, ¶ 59.
Their wording is identical with respect to evidence of the defendant's past sexual activity:
Evidence of specific instances of the defendant’s sexual
activity, opinion evidence of the defendant’s sexual activity,
and reputation evidence of the defendant’s sexual activity
shall not be admitted under this section unless it involves
evidence of the origin of semen, pregnancy, or disease, the
defendant’s past sexual activity with the victim, or is
admissible against the defendant under section 2945.59 of the
Revised Code, and only to the extent that the court finds that
the evidence is material to a fact at issue in the case and that
its inflammatory or prejudicial nature does not outweigh its
probative value.
R.C. 2907.02(D); 2907.05(E).
No. 14AP-679 25
{¶ 79} The rape shield law creates a presumption that past sexual conduct by a
defendant or victim may not be admitted, but by its own language this exclusion is subject
to the same exceptions as any other evidence under Evid.R. 404(B) and R.C. 2945.59. For
the reasons given in our discussion of Evid.R. 404(B) above, the admission of evidence
regarding appellant's past sexual conduct did not violate the rape shield law.
3. Conclusion
{¶ 80} In summary, the admission of other-acts evidence did not constitute
reversible error in this case on any of the bases argued by appellant, and appellant's second
assignment of error is overruled.
C. Prosecutorial Misconduct
{¶ 81} Reserving appellant's third assignment of error for later discussion, we
next address appellant's fourth assignment of error. This asserts that prosecutorial
misconduct denied appellant his right to a fair trial and due process of law under the Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution and Ohio
Constitution, Article I, Sections 10 and 16. In reviewing a claim of prosecutorial
misconduct, we inquire first whether the prosecution's statements or actions were
improper, and, if so, whether they prejudiced the defendant's substantial rights. State v.
Treesh, 90 Ohio St.3d 460, 480 (2001). Otherwise stated, a prosecuting attorney's
conduct during a trial does not constitute grounds for error unless the conduct deprived
the defendant of a fair trial. State v. Keenan, 66 Ohio St.3d 402, 405 (1993). See also
Smith v. Phillips, 455 U.S. 209 (1982) ("the touchstone of a due process analysis in cases of
alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the
prosecutor"). The effect of the prosecutor's misconduct must be considered in light of the
whole trial. State v. Durr, 58 Ohio St.3d 86, 94 (1991).
{¶ 82} In this case, defense counsel did not object at trial to most of the alleged
misconduct described on appeal. We therefore review those aspects under a plain error
standard, and will not find plain error on appeal unless the outcome of the trial, but for the
error, clearly would have been different. Crim.R. 52(B); Biros, supra; Long, supra.
1. The "Doctrine of Chances"
{¶ 83} The improper conduct cited by appellant concerns the prosecutor's
misinterpretation and reliance on a rarely invoked legal theory known as the "doctrine of
No. 14AP-679 26
chances," telling the jury that under this theory they could conclude that cumulative
testimony as to multiple criminal acts would be probative, on the basis of sheer
probability, as to the occurrence of at least some of the acts. At closing, for example, the
prosecution repeatedly asked the jury "what are the odds?" (Tr. at 3756.) "[W]hen is this
no longer a coincidence, but the truth?" (Tr. at 3757.) "Again what are the odds, and when
does this stop being a coincidence and being the real thing?" (Tr. at 3758.) The
prosecution summed up closing by saying, "[n]ow that's the doctrine of chances and this
case is a classic example of it." (Tr. at 3758.) No objection was made to these comments.
{¶ 84} Appellant argues that the continual misstatement and misapplication of
the doctrine of chances allowed the prosecution in the course of closing to continuously
circumvent any prior limitation on the use of other-acts evidence, essentially nullifying any
cautions issued by the court during testimony or contained in the jury instructions. The
prosecution, appellant contends, repeatedly told the jury in closing that the doctrine of
chances allowed the jury to infer a "behavioral fingerprint" that established his guilt in
specifically charged offenses based upon his general conduct across all circumstances:
"[I]n this case they don't stand alone because the defendant's fingerprints are all over their
crime scenes. He has left a behavioral fingerprint stronger than any bloodstain, stronger
than any fiber the state could produce for you. That behavioral fingerprint is his modus
operandi, his MO." (Tr. at 3636.)
{¶ 85} We agree with appellant that the state both misstated the doctrine of
chances and asked the jury to misapply it to the evidence. The doctrine does not call for
the jury to apply the laws of probability in the manner invoked by the state here. Instead,
the doctrine, to the extent that it has been applied (and only rarely) in Ohio, goes to mens
rea and intent, when the defendant has admitted to certain conduct but defended on the
basis of innocent purpose or accidental involvement. For this purpose, the state may
present evidence of the frequency with which the defendant unaccountably blundered into
a criminal context: "Uncharged misconduct evidence is admissible to prove guilty
knowledge and disprove any assertion of being 'merely present' or an 'innocent dupe.'
Imwinkelried, Uncharged, Misconduct Evidence (1992) 51, Section 5:25. This is known as
the doctrine of chances." State v. Wright, 4th Dist. No. 00CA39 (Dec. 6, 2001), fn. 7.
Sometimes invoked to argue for the admission of evidence that might be excluded on
No. 14AP-679 27
grounds of relevancy under Evid.R. 403, the rule does not offer blanket exception to
relevance and other-acts restrictions, nor can such evidence be invoked to "tempt the jury
to decide the case on an improper basis." State v. McDaniels, 4th Dist. No. CA487 (Nov. 9,
1993).
{¶ 86} Although the state clearly misstated and improperly applied the doctrine of
chances here, under a plain error standard we can discern no grounds for reversal. The
verdicts indicate that the jury rejected the invitation to blend testimony regarding one
offense into its determination regarding another, and remained willing to consider each
accuser's testimony on its own merits as each offense, reaching an independent conclusion
on the various charges. There is no basis to conclude that, but for the state's comments in
this respect, the outcome of the trial would clearly have differed.
2. Closing Arugments
{¶ 87} Also in connection with the state's closing statement, appellant argues on
appeal that the prosecution improperly expressed the belief that appellant had lied and
that his defense witnesses had lied on the stand. The attacks on appellant's veracity were
also combined with application of the supposed doctrine of chances: "[I]f that case is legit,
and I suggest to you that it is overwhelmingly, then they're all legit, because of the doctrine
of chances and because everything that he's told you in this courtroom is a lie." (Tr. at
3770.)
{¶ 88} "It is improper for an attorney to express his or her personal belief or
opinion as to the credibility of a witness or as to the guilt of the accused." State v.
Williams, 79 Ohio St.3d 1, 12 (1997). "It is improper for a prosecutor to state that the
defendant is a liar or that [the prosecutor] believes that the defendant is lying. State v.
Baldev, 12th Dist. No. CA2004-05-106, 2005-Ohio-2369, ¶ 20, citing State v. Rahman, 23
Ohio St.3d 146, 154 (1986). In Rahman, the prosecutor characterized the defendant
during closing as "the biggest liar that's taken the stand in a long time." Id. at 154.
Rahman was in part based on the Supreme Court's application of the former Ohio Code of
Professional Responsibility, which barred comments by an attorney or prosecutor
expressing a personal opinion as to credibility of a witness. The current language of the
Ohio Rules of Professional Conduct, which has replaced the former Ohio Code of
Professional Responsibility, maintained that prohibition at Prof.Cond.R. 3.4(E).
No. 14AP-679 28
{¶ 89} While appellant points to a number of statements that are allegedly
improper in this respect, most are not objectionable when taken in context. Three
comments by the state in closing arguments, however, merit specific discussion.
{¶ 90} In the first, appellant points to the prosecutor's purported endorsement of
L.M.'s credibility. Appellant argues that the state improperly vouched for the credibility of
L.M. by stating in closing, "I can't imagine how hard it would be to sit there and respond to
cross-examination and make up stories and lies when you can't even speak the [English]
language." (Tr. at 3757.) This remark, taken in context, amounted to an improper
assertion of personal opinion regarding the witness's credibility.
{¶ 91} The second and third comments regarding credibility also present serious
problems. The prosecutor's above-quoted comment "everything that he's told you in this
courtroom is a lie" was blatantly improper under Williams, 79 Oho St.3d 321, and
Rahman. Likewise, the prosecutor improperly referred to "fraud" when referring to
certain evidence describing appellant's prior disciplinary reprimand arising from his
conduct as an attorney in his practice. The prosecutor took the opportunity to state that
appellant's conduct in the disciplinary case "was perpetrating a fraud like he did [when
testifying] Friday and Monday in here." (Tr. at 3772.) The fraud comment was also
blatantly improper under Williams, 79 Ohio St.3d 321, and Rahman.
{¶ 92} Examining these improper statements by the prosecutor in light of the
whole trial, and focusing on the fairness of that trial, we conclude that they did not
prejudice appellant's substantial rights. Durr; Treesh; Keenan, supra. Given the volume
of evidence presented on the various points, the jury's rejection of much of the testimony
that was allegedly bolstered by the prosecution's remarks, and appellant's own
contradictory remarks during testimony, we again cannot conclude that expressed
prosecutorial opinions regarding the credibility of witnesses deprived appellant of a fair
trial .
{¶ 93} Finally, we note appellant's objection to the prosecutor's use of the term
"prey" repeatedly during closing when referring to the accusers in the case. We find that
"[w]hile certainly vivid, the words are not inflammatory or improper in the contexts
quoted." State v. Scharf, 6th Dist. No. OT-01-010 (Nov. 9, 2001). Appellant also objects
to remarks concerning appellant's expressed belief that he was the object of a conspiracy
No. 14AP-679 29
between the county prosecutor, the attorney general's office, and the police. In closing, the
prosecutor dismissively told the jury that she expected that appellant would have everyone
in the courtroom wearing "tinfoil hats, and the defendant was going to produce the second
shooter from the grassy knoll." (Tr. at 3644.) Again, while the prosecution succeeded in
casting appellant's suspicions in colloquial terms invoking a crackpot conspiracy theory,
vivid language is not necessarily improper language, and this did not constitute
misconduct, particularly when we consider the closing arguments in their entirety to
assess prejudice. See generally State v. Moritz, 63 Ohio St.2d 150, 157 (1980).
3. Conclusion
{¶ 94} In summary, reference to the doctrine of chances was improper in this case
because the prosecutor incorrectly presented this doctrine as a call to consider cumulative
propensity evidence as probative. We clarify that the doctrine does not operate in
derogation of Ohio's well-established rules against the improper use of other-acts
evidence. The evidence in question, however, was properly admitted to show motive,
opportunity, intent, or a pattern of conduct. The prosecution's language verged on the
excessive but did not cross the line with reference to the use of terms "prey," "tinfoil hats,"
and "grassy knoll shooter," and we do not find error in this particular terminology.
Finally, if at least three of the prosecution's remarks concerning veracity of witness
testimony were improper, we find no impairment of appellant's substantial rights, given
the volume of evidence presented on the various points and the jury's rejection of much of
the testimony that was allegedly bolstered by the prosecution's remarks. Appellant's
fourth assignment of error is overruled.
D. Ineffective Assistance of Counsel
{¶ 95} Appellant's fifth assignment of error asserts that errors committed by his
counsel at trial deprived him of his constitutional right to effective assistance of counsel
under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and
Article I, Sections 10 and 16, Ohio Constitution. To establish a claim of ineffective
assistance of counsel, a criminal defendant must show that counsel's performance was
deficient and that counsel's deficient performance prejudiced him. State v. Jackson, 107
Ohio St.3d 53, 2005-Ohio-5981, ¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687
(1984). The failure to make either showing defeats a claim of ineffective assistance of
No. 14AP-679 30
counsel. State v. Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697.
("[T]here is no reason for a court deciding an ineffective assistance claim to approach the
inquiry in the same order or even to address both components of the inquiry if the
defendant makes an insufficient showing on one.") In order to show that trial counsel's
performance was deficient, the defendant must prove that counsel's performance fell
below an objective standard of reasonable representation. Jackson at ¶ 133. The defendant
must overcome the strong presumption that defense counsel's conduct falls within a wide
range of reasonable professional assistance. Strickland at 689. To show prejudice, the
defendant must establish that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. State v.
Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 204.
1. Failure to Request Severance of Charges
{¶ 96} The basis for appellant's claim of ineffective assistance of trial counsel is
trial counsel's failure to move pretrial to sever the charges in relation to each victim.
Appellant argues that, had trial been severed for the different victims, the cumulative and
duplicative evidence that aided his conviction would not have been heard by the jury. This
proposition is founded on the assumption that each victim would have been limited to
testifying in her own trial, the other-acts witnesses would not have been heard, and thus
each juror would have heard a far lesser volume of evidence regarding appellant's other
acts.
{¶ 97} Crim.R. 14 governs severance in a criminal matter:
If it appears that a defendant or the state is prejudiced by a
joinder of offenses or of defendants in an indictment,
information, or complaint, or by such joinder for trial
together of indictments, informations or complaints, the
court shall order an election or separate trial of counts, grant
a severance of defendants, or provide such other relief as
justice requires.
{¶ 98} Joinder, presenting the equal and opposite proposition, is governed by
Crim.R. 8(A):
Two or more offenses may be charged in the same
indictment, information or complaint in a separate count for
each offense if the offenses charged, whether felonies or
No. 14AP-679 31
misdemeanors or both, are of the same or similar character,
or are based on the same act or transaction, or are based on
two or more acts or transactions connected together or
constituting parts of a common scheme or plan, or are part
of a course of criminal conduct.
{¶ 99} "Joinder is liberally permitted to conserve judicial resources, reduce the
chance of in incongruous results and excessive trials, and diminish inconvenience to
witnesses. State v. Schaim, 65 Ohio St.3d 51, 58 (1992), citing State v. Torres, 66 Ohio
St.2d 340, 343 (1981). Nonetheless, the Supreme Court acknowledged in the same
discussion that joinder of offenses of the same or similar character "creates a greater risk
of prejudice to the defendant," especially where the benefits from consolidation are
reduced because the otherwise-unrelated offenses involved different times, locations,
victims, and witnesses. Schaim at 58, fn. 6. In determining whether the offenses are best
joined or tried separately, the court must consider first, whether the evidence of the other
crimes would be admissible if the counts were severed, and, secondly, whether the
evidence of each crime is distinct and specific to that crime. Schaim at 59, citing State v.
Hamblin, 37 Ohio St.3d 153, 158-59 (1988), and Drew v. United States, 331 F.2d 85, 91
(D.C.Cir.1964).
{¶ 100} When the allegations of ineffective assistance are based on trial counsel's
failure to file a motion for severance or to oppose joinder, the defendant must show that
(1) the motion was meritorious or likely to be granted, and (2) that there was a reasonable
probability that the verdict would have been different had the motion been made. State v.
Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 63 (failure to oppose joinder did not
support ineffective assistance claim), citing State v. Santana, 90 Ohio St.3d 513 (2001),
and State v. Lott, 51 Ohio St.3d 160 (1990).
{¶ 101} The first consideration here is that there is no sound reason to believe that
the trial court would have granted a motion to sever under the considerations set forth by
the Supreme Court in Schaim. Furthermore, as we determined above, the trial court did
not err in admitting the testimony of witnesses who were not the object of unindicted
crimes. It is not immediately apparent, therefore, that testimony of witnesses who had
been the victims of indicted crimes would not have been presented, along with those other
"other acts" witnesses, had trial been severed as to the counts against each victim.
No. 14AP-679 32
{¶ 102} Moreover, counsel's strategy in refusing to request severance may have been
founded, first, on the likelihood that each victim's testimony would actually have been
persuasive in its own right, and the risk associated with multiple trials outweighed the
benefits of isolating the testimony for a given victim. Second, trial counsel could have
considered that the cumulative lack of credibility from all the accusers might outweigh the
cumulative impact of testimony, an assessment that seems at least partly fulfilled by the
ultimate verdicts.
2. Conclusion
{¶ 103} We find that the outcome of the trial would not clearly have been different
had counsel moved to sever the claims. There is no guarantee that the trial court would
have allowed severance, and insufficient reason to believe that the outcome would have
been different as to each accuser had the cases been tried separately. See generally State
v. Dantzler, 10th Dist. No. 14AP-907, 2015-Ohio-3641. Appellant's fifth assignment of
error is accordingly overruled.
E. Venue
{¶ 104} Appellant's sixth assignment of error asserts that appellant's convictions
under Counts 8, 10, 14, 15, 17, and 18 of the indictment must be reversed because the state
failed to present evidence to support venue for those crimes as charged in the indictment,
and the trial court accordingly erred in denying appellant's Crim.R. 29 motion made after
the state rested. We disagree.
{¶ 105} Under Crim.R. 29(A), a court "shall order the entry of a judgment of
acquittal of one or more offenses * * * if the evidence is insufficient to sustain a conviction
of such offense or offenses." Because a Crim.R. 29 motion questions the sufficiency of the
evidence, "[w]e apply the same standard of review to Crim.R. 29 motions as we use in
reviewing the sufficiency of the evidence." State v. Hernandez, 10th Dist. No. 09AP-125,
2009-Ohio-5128, ¶ 6; State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37; State v.
Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 16. "Sufficiency of the evidence is a
legal standard that tests whether the evidence introduced at trial is legally sufficient to
support a verdict." State v. Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 36, citing
State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In reviewing a challenge to the
sufficiency of the evidence, an appellate court must determine "whether, after viewing the
No. 14AP-679 33
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 (1991), paragraph two of the syllabus. Where the evidence, "if
believed, would convince the average mind of the defendant's guilt beyond a reasonable
doubt," it is sufficient to sustain a conviction. Id.; see also State v. Neil, 10th Dist. No.
14AP-981, 2016-Ohio-4762, ¶ 94; State v. Crosky, 10th Dist. No. 06AP-655, 2008-Ohio-
145, ¶ 43.
1. Legal Standards
{¶ 106} Venue commonly refers to the appropriate place of trial for a criminal
prosecution within a state. "[J]urisdiction and venue are not the same, as the former
denotes the power of the court to hear the case and the latter denotes the situs of trial."
State v. Giffin, 62 Ohio App.3d 396, 403 (10th Dist.1991), citing State v. Loucks, 28 Ohio
App.2d 77 (4th Dist.1971). Proper venue insures that "the state [does not] indiscriminately
[seek] a favorable location for trial or [select] a site that might be an inconvenience or
disadvantage to the defendant." State v. Meridy, 12th Dist. No. CA2003-11-091, 2005-
Ohio-241, ¶ 12, quoting State v. Gentry, 61 Ohio Misc.2d 31, 34 (1990). The fact that
venue is not a restriction on territorial jurisdiction is underscored by the provisions of
Crim. R. 18(B) and R.C. 2901.12(K), which provide for a change of venue if the trial court
finds that a fair and impartial jury cannot be seated in the court where the action is
pending.
{¶ 107} Because venue is neither a jurisdictional nor a material element of a
criminal offense, the indictment is only required to contain an allegation that the offense
was committed within the jurisdiction of the court. State v. Andrews, 148 Ohio App.3d 92(10th Dist.2002). Even when multiple offenses are alleged in an indictment, an
indictment is not rendered invalid where the "place has been stated once therein." State v.
Williams, 53 Ohio App.3d 1 (10th Dist.1988). While venue is not a material element of the
offense as charged, it is a fact that the state must prove beyond a reasonable doubt unless
waived by a criminal defendant. State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688,
¶ 22; State v. Birt, 12th Dist. No. CA2012-02-031, 2013-Ohio-1379, ¶ 27. "Venue need not
be proven in express terms; it may be established either directly or indirectly by all the
No. 14AP-679 34
facts and circumstances of the case." State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-
3707, ¶ 144.
{¶ 108} The indictment in the present case alleged for each count that the criminal
conduct occurred "within the county of Franklin." (May 20, 2013 Indictment, Counts 1
through 18.) Appellant argues that for all but three of the counts for which he was
convicted, the state failed to prove venue because it introduced no evidence at all that the
crimes occurred in Franklin County: for Counts 8 (gross sexual imposition, K.R.), 10 (rape,
L.M.), 14 (kidnapping, L.M.), and 15, 17, and 18 (sexual battery, L.M.), the only evidence
heard placed the offenses in Marion County. In contrast, for Counts 2 and 3 (public
indecency and gross sexual imposition, C.C.), and Count 16 (sexual battery, L.M.),
appellant concedes on appeal that the evidence supported venue in Franklin County. At
the close of the state's case, the defense moved, unsuccessfully, for a Crim.R. 29 acquittal
for those incidents for which the evidence established the location as Marion County.
Appellant argues that the trial court erred when it denied his Crim.R. 29 motion.
{¶ 109} The state responds that any deficiency in the indictment was cured by
subsequent amendment of either the indictment or the bill of particulars. We disagree. It
is the language of the indictment that defines the venue for which the state bears the
burden of proof. Hampton, supra, at ¶ 23. As stated above, the original indictment
specified Franklin County as venue for all crimes. The state never amended the venue
allegation in the indictment. Therefore, the state had to prove that venue was proper in
Franklin County.
{¶ 110} The state also argues that all crimes took place as part of a course of
criminal conduct across several jurisdictions, including Franklin County, establishing
venue in Franklin County under the course of criminal conduct terms of R.C. 2901.12(H).
We conclude that the state presented sufficient evidence to prove venue under the course
of criminal conduct provisions in R.C. 2901.12(H).
2. Venue and Course of Criminal Conduct–R.C. 2901.12(H)
{¶ 111} When an offender, as part of a course of criminal conduct, commits offenses
in different jurisdictions, the offender may be tried for all of those offenses in any
jurisdiction in which one of those offenses or any element of one of those offenses
No. 14AP-679 35
occurred. R.C. 2901.12(H). To establish a course of criminal conduct, the statute provides
in relevant part:
(H) * * * Without limitation on the evidence that may be
used to establish the course of criminal conduct, any of the
following is prima-facie evidence of a course of criminal
conduct:
(1) The offenses involved the same victim, or victims of the
same type or from the same group.
(2) The offenses were committed by the offender in the
offender’s same employment, or capacity, or relationship to
another.
(3) The offenses were committed as part of the same
transaction or chain of events, or in furtherance of the same
purpose or objective.
(4) The offenses were committed in furtherance of the same
conspiracy.
(5) The offenses involved the same or a similar modus
operandi.
(6) The offenses were committed along the offender’s line of
travel in this state, regardless of the offender’s point of origin
or destination.
R.C. 2901.12(H).
{¶ 112} "R.C. 2901.12(G) and (H) are statutory reflections of the modern mobility of
criminals to perform unlawful deeds over vast geographical boundaries." State v. Draggo,
65 Ohio St.2d 88, 90 (1981). Consistent with this multi-county venue, "a grand jury of one
county has authority to indict on offenses occurring in other counties provided that those
offenses are part of a course of criminal conduct." State v. Ahmed, 8th Dist. No. 84220,
2005-Ohio-2999, ¶ 11. The Supreme Court of Ohio confirmed the law as stated in Ahmed
when it decided Jackson at ¶ 131:
There is no constitutional or statutory provision that
prohibited the Cuyahoga County Grand Jury from indicting
Jackson for offenses that occurred in Erie and Lorain
Counties as part of a course of criminal conduct that included
crimes within Cuyahoga County. R.C. 2901.11 and 2901.12
permit a grand jury to indict an offender for offenses that
No. 14AP-679 36
occurred outside the county, provided that the offenses are
part of the same course of criminal conduct that took place in
the county in which the grand jury resides.
{¶ 113} The present case involves a series of offenses that fit four of the criteria
enumerated in R.C. 2901.12(H). The victims were "of the same type, or from the same
group" under R.C. 2901.12(H)(1), because they are associated with appellant's law practice
as clients, relatives of clients, or employees. The offenses were committed "in the
offender's same employment, or capacity, or relationship to another" under R.C.
2901.12(H)(2), again based on the centrality of appellant's law practice in his selection of
victims. The offenses involved "the same or similar modus operandi" under R.C.
2901.12(H)(5), based on the grooming and exploitation of vulnerable female clients or
relatives of clients. Finally, the offenses were committed in furtherance of the same
purpose or objective (sexual gratification). R.C. 2901.12(H)(3).
{¶ 114} A similar case involving abuse of clients in a professional practice is
persuasively on point. In Ahmed, the defendant, a licensed obstetrician and gynecologist,
operated medical offices in several counties. The grand jury in Cuyahoga County returned
an indictment charging him with multiple counts of rape, sexual imposition, and sexual
battery involving 37 former patients. The indictment specified that the offenses occurred at
Ahmed's offices in Cuyahoga, Summit, and Geauga counties. After disposing of the
preliminary question of whether the grand jury could return an indictment addressing the
out-of-county crimes, the Eighth District Court of Appeals found that trial venue in
Cuyahoga County for all offenses was appropriate: "The evidence at trial revealed that all
of the victims were Ahmed's patients, all of the offenses occurred at his medical offices
while the victims were seeking medical care from him, and while situated in a vulnerable
position. Further, each victim identified the office location where the offense(s) occurred.
Based on this evidence, we find that the State adequately proved that venue was proper."
Ahmed at ¶ 18.
{¶ 115} Ahmed presented the same type of course of criminal conduct that the state
alleges here. Based on this precedent and analysis of the applicable statutes governing
venue, we conclude that the state proved venue was proper in Franklin County for Counts
8, 10, 14, 15, 17, and 18 of the indictment.
No. 14AP-679 37
{¶ 116} Citing Hampton, appellant argues that because the indictment alleged the
conduct associated with Counts 8, 10, 14, 15, 17, and 18 occurred in Franklin County, the
state could only establish venue by proving that the alleged conduct occurred in Franklin
County. We do not read Hampton so restrictively. Hampton involved a situation where
all of the alleged criminal conduct occurred outside the county where the case was venued.
Therefore, R.C. 2901.12(H) was not applicable. Moreover, the Hampton court noted that
"[t]he General Assembly has given the state considerable flexibility with respect to
establishing venue," citing R.C. 2901.12(G) as an example. Hampton at ¶ 23. See also
State v. Young, 9th Dist. No. 15CA010803, 2017-Ohio-1400, ¶ 15-16 (finding no authority
for proposition that an indictment must include "course of conduct" language when the
state intends to proceed under R.C. 2901.12(H)). Lastly, appellant was on notice that the
state would establish venue by proving the conduct occurred in Franklin County "or
otherwise properly venued under R.C. 2901.12, the defendant, as part of a criminal course
of conduct as defined in R.C. 2901.12(H)(1), which encompassed at least, Franklin and
Marion Counties, Ohio." (June 1, 2014 Bill of Particulars at 6.) As previously noted, the
indictment alleged and the state proved, that some of the alleged criminal conduct
occurred in Franklin County and that the other offenses in Counts 8, 10, 14, 15, 17, and 18
were committed pursuant to a course of criminal conduct as defined in R.C. 2901.12(H).
3. Conclusion
{¶ 117} For all of these reasons, we overrule appellant's sixth assignment of error.
F. Sufficiency of the Evidence
{¶ 118} Appellant's seventh assignment of error asserts that there was insufficient
evidence to convict him on Count 3, gross sexual imposition involving C.C., and Count 8,
gross sexual imposition involving K.R. Appellant argues that there was not sufficient force
depicted during the victims' account of the incidents to establish violence, compulsion, or
constraint "sufficient to compel" the victims to "submit" to the sexual contact. R.C.
2901.01(A)(1) and 2907.05(A)(1).
1. Standard of Review
{¶ 119} Again, an appellate court's function when reviewing the sufficiency of the
evidence is to examine the evidence admitted at trial to determine whether such evidence,
if believed, would convince the average mind of the defendant's guilt beyond a reasonable
No. 14AP-679 38
doubt. Crosky and Jenks, supra. Otherwise put, " '[s]ufficiency' is a term of art meaning
that legal standard which is applied to determine whether the case may go to the jury or
whether the evidence is legally sufficient to support the jury verdict as a matter of law."
Thompkins, supra, at 386, citing Black's Law Dictionary 1433 (6th Ed.1990). As a result,
when we review the sufficiency of the evidence, we do not on appeal reweigh the credibility
of the witnesses. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79.
2. Analysis
{¶ 120} The crime of gross sexual imposition, as charged here, involves sexual
contact with another, not the spouse of the offender, compelled by force or threat of force.
R.C. 2907.05(A)(1). The testimony presented by the victims was sufficient to establish the
elements of the offense. C.C. testified that appellant firmly grabbed her with one arm and
put his hands down her shirt and groped her breast. She was unable to move because
appellant was holding her tightly. K.R. testified that, while in appellant's office, appellant
closed the door, pulled her to the couch, and then touched her breasts without permission.
Either description is sufficient to establish force necessary to prove gross sexual
imposition. See generally State v. Riggs, 10th Dist. No. 04AP-1279, 2005-Ohio-5244;
State v. Birkman, 86 Ohio App.3d 784, 788 (12th Dist.1983) (Physical force was
established when the defendant backed the victim against the wall of an office and the
defendant placed his arms in such a way that she could not move away from him.).
Appellant's seventh assignment of error is overruled.
G. Merger
{¶ 121} In his third assignment of error, appellant argues that the trial court erred
by not merging certain convictions for purposes of sentencing. Specifically, appellant
asserts that the court should have merged Count 10, rape, with Count 14, kidnapping.
Appellant also asserts, and the state concedes, that the trial court merged the wrong sexual
battery count with the rape count.
1. Legal Standards
{¶ 122} Ohio's multiple-counts statute provides that "[w]here the same conduct by
defendant can be construed to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses, but the defendant may
be convicted of only one." R.C. 2941.25(A). The statute further provides that "[w]here the
No. 14AP-679 39
defendant's conduct constitutes two or more offenses of dissimilar import, or where his
conduct results in two or more offenses of the same or similar kind committed separately
or with a separate animus as to each, the indictment or information may contain counts
for all such offenses, and the defendant may be convicted of all of them." R.C. 2941.25(B).
{¶ 123} When it is determined that the defendant has been found guilty of allied
offenses of similar import, " 'the trial court must accept the state's choice among allied
offenses, "merge the crimes into a single conviction for sentencing, and impose a sentence
that is appropriate for the merged offense." ' " (Emphasis sic.) State v. Bayer, 10th Dist.
No. 11AP-733, 2012-Ohio-5469, ¶ 21, quoting State v. Wilson, 129 Ohio St.3d 214, 2011-
Ohio-2669, ¶ 13. "An appellate court should apply a de novo standard of review in
reviewing a trial court's R.C. 2941.25 merger determination." State v. Williams, 134 Ohio
St.3d 482, 2012-Ohio-5699, ¶ 28.
{¶ 124} State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, sets forth the standard
to apply to merger determinations under R.C. 2941.25:
1. In determining whether offenses are allied offenses of
similar import within the meaning of R.C. 2941.25, courts
must evaluate three separate factors—the conduct, the
animus, and the import.
2. Two or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant's conduct
constitutes offenses involving separate victims or if the harm
that results from each offense is separate and identifiable.
3. Under R.C. 2941.25(B), a defendant whose conduct
supports multiple offenses may be convicted of all the offenses
if any one of the following is true: (1) the conduct constitutes
offenses of dissimilar import, (2) the conduct shows that the
offenses were committed separately, or (3) the conduct shows
that the offenses were committed with separate animus.
Id. at paragraphs one through three of the syllabus. Ruff provides that:
As a practical matter, when determining whether offenses are
allied offenses of similar import within the meaning of R.C.
2941.25, courts must ask three questions when defendant's
conduct supports multiple offenses: (1) Were the offenses
dissimilar in import or significance? (2) Were they committed
separately? and (3) Were they committed with separate
animus or motivation? An affirmative answer to any of the
No. 14AP-679 40
above will permit separate convictions. The conduct, the
animus, and the import must all be considered.
Id. at ¶ 31; State v. Williams, 7th Dist. No. 13 MA 125, 2015-Ohio-4100, ¶ 17.
{¶ 125} Additionally, the Supreme Court of Ohio has acknowledged that "implicit
within every forcible rape * * * is a kidnapping" because the victim's liberty is restrained
during the act of forcible rape. State v. Logan, 60 Ohio St.2d 126, 130 (1979). In Logan,
the court provided the following guidelines for determining whether kidnapping and
another offense of the same or similar kind were committed with a separate animus:
(a) Where the restraint or movement of the victim is merely
incidental to a separate underlying crime, there exists no
separate animus sufficient to sustain separate convictions;
however, where the restraint is prolonged, the confinement is
secretive, or the movement is substantial so as to demonstrate
a significance independent of the other offense, there exists a
separate animus as to each offense sufficient to support
separate convictions; (b) Where the asportation or restraint of
the victim subjects the victim to a substantial increase in risk
of harm separate and apart from that involved in the
underlying crime, there exists a separate animus as to each
offense sufficient to support separate convictions.
Id. at syllabus. Even though Logan predates Ruff, this court and others continue to apply
the guidelines set forth in Logan in determining whether kidnapping and another offense
were committed with a separate animus, in accordance with the third prong of the Ruff
test. State v. Jones, 10th Dist. No. 15AP-670, 2017-Ohio-1168, ¶ 34; State v. D.E.M., 10th
Dist. No. 15AP-589, 2016-Ohio-5638, ¶ 143; Williams, 7th Dist. No. 13 MA 125, 2015-
Ohio-4100, at ¶ 18; State v. Stinnett, 5th Dist. No. 15-CA-24, 2016-Ohio-2711, ¶ 53.
2. Legal Analysis
{¶ 126} As indicted, Count 10 alleged oral rape. R.C. 2907.02(A)(2) defines the
crime of rape, and provides that "[n]o person shall engage in sexual conduct with another
when the offender purposely compels the other person to submit by force or threat of
force." "Sexual conduct" is defined in R.C. 2907.01(A) as vaginal intercourse between a
male and female, anal intercourse, fellatio, and cunnilingus.
{¶ 127} Count 14 alleged kidnapping. R.C. 2905.01(A) defines the offense of
kidnapping in part as follows: "No person, by force, threat, or deception, * * * shall remove
No. 14AP-679 41
another from the place where the other person is found or restrain the liberty of the other
person, for any of the following purposes: * * * (4) [t]o engage in sexual activity * * *
against the victim's will."
{¶ 128} L.M. testified that coerced fellatio occurred frequently over the time in
question. She described only one incident, however, in which appellant acted through
force or threat of force: the first incident of oral sex in appellant's Marion office. As
described earlier, L.M.'s trial testimony for this incident was that appellant threatened a
poor result in her legal matters if she did not perform oral sex, placed his hands behind her
head, thereby "restraining [her] head against his penis," told her to "do it," and forced his
penis into her mouth. (Tr. at 1483.) Based on these facts and an application of the law set
forth above, we conclude that the offenses were of similar import and were not committed
separately or with a separate animus, and therefore, should have merged. The record does
not show that appellant's restraint of L.M. was prolonged or secretive, or that the restraint
caused a separate and identifiable harm to L.M. or subjected her to a substantial increase
in the risk of harm separate and apart from that involved in the rape offense. Absent such
evidence in the record, the trial court erred by not merging these two offenses pursuant to
the Ruff analysis.
{¶ 129} With respect to the merger of one of the sexual battery counts with the
rape count, the trial court merged Count 15 with Count 10. Count 15 was identified in the
final bill of particulars as based on the facts surrounding one of the rapes involving
transportation to an unidentified rural area in a white truck. Count 17 was the sexual
battery count based on the events identified with the Count 10 rape. The state concedes
error in this respect, and that instead of Count 15, it is Count 17 that must merge with
Count 10. We agree.
3. Conclusion
{¶ 130} Based on the foregoing, we sustain appellant's third assignment of error.
H. Sex Offender Classification
{¶ 131} Appellant's eighth assignment of error also asserts error in sentencing.
Appellant contends that the trial court improperly classified him as a Tier III sex offender
at sentencing. (Tr. at 4063-64.) He asserts that this violates Section 28, Article II of the
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Ohio Constitution, prohibiting the application of retroactive laws, as discussed and applied
in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374.
{¶ 132} The General Assembly enacted H.B. No. 180, known as Megan's Law, in
1996. This created a comprehensive system of registration and classification for sex
offenders. See generally State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424. Megan's
Law was significantly amended in 2003 by S.B. No. 5. Further changes came in 2007,
when the legislature enacted S.B. No. 10, known as the Adam Walsh Act, creating
additional reporting and registration requirements for sex offenders. Williams, 129 Ohio
St.3d 344, 2011-Ohio-3374 at ¶ 7. S.B. No. 10 also replaced Megan's Law's classification
system and requirement for classification hearings with a new classification system that
divides offenders into Tier I, Tier II, and Tier III offenders based solely on their offense.
Bodyke at ¶ 20-21.
{¶ 133} Appellant's convictions included crimes through a period preceding and
postdating enactment of S.B. No. 10. The state concedes that pursuant to the Supreme
Court's holding in Williams, offenses prior to the effective date of S.B. No. 10 can support
only a classification under the law in effect at the time of commission.
{¶ 134} As the verdicts stood at the time the court entered the sex offender
classification, the convictions that would support a Tier III classification under S.B. No. 10
were Count 10, rape of L.M., and Counts 15, 16, 17, and 18, sexual battery of L.M. See
generally R.C. 2950.01(G)(1), listing offenses supporting Tiers I through III. Although the
date range of the indictment for these offenses extended to 2008 after amendment, L.M.'s
testimony established that the last sexual assault by appellant occurred in 2003, well
before the effective date of S.B. No. 10. Despite the state's assertion on appeal that the
dates specified in the indictment should govern S.B. No. 10 applicability, the operative
date must be the date of the conduct constituting the offense for which appellant was
convicted. Appellant's eighth assignment of error is sustained and the trial court will
vacate his Tier III classification on remand and classify appellant according to the law in
effect at the time of the offenses for which he was convicted.
I. Cumulative Error
{¶ 135} Appellant's ninth assignment of error asserts that cumulative error, as set
forth in his first eight assignments of error, had the affect of depriving appellant of his
No. 14AP-679 43
constitutional right to a fair trial, even if each of the particular incidences of error did not
support reversal. See generally State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 32.
"There can be no such thing as an error-free, perfect trial, and the constitution does not
guarantee such a trial." United States v. Hasting, 461 U.S. 499, 508-09 (1983).
Summarizing our disposition of the allegations in this case, where we have not reversed
conviction, we have found no additional error with the exception of the items discussed
under the fourth assignment of error. Viewing the totality of the events at trial, we find no
cumulative basis on which to support further reversal of the remaining counts. Appellant's
ninth assignment of error is overruled.
IV. CONCLUSION
{¶ 136} In summary, appellant's first, second, fourth, fifth, sixth, seventh, and ninth
assignments of error are overruled. Appellant's third and eighth assignments of error are
sustained. The judgment of the Franklin County Court of Common Pleas is affirmed in
part and reversed in part, and the matter is remanded for resentencing as to Counts 10, 14,
15, and 17. The court will vacate appellant's Tier III sex offender classification and apply
the sex offender classification under the law in effect at the time of the offenses for which
he was convicted.
Judgment affirmed in part; reversed in part;
cause remanded with instructions.
SADLER, J., concurs.
TYACK, P.J., dissents.
TYACK, P.J., dissenting.
{¶ 137} The Ohio Constitution contains an Ohio Bill of Rights. Article I, Section 10,
provides:
Except in cases of impeachment, cases arising in the army and
navy, or in the militia when in actual service in time of war or
public danger, and cases involving offenses for which the
penalty provided is less than imprisonment in the
penitentiary, no person shall be held to answer for a capital, or
otherwise infamous, crime, unless on presentment or
indictment of a grand jury and the number of persons
necessary to constitute such grand jury and the number
thereof necessary to concur in finding such indictment shall
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be determined by law. In any trial, in any court, the party
accused shall be allowed to appear and defend in person and
with counsel; to demand the nature and cause of the
accusation against him, and to have a copy thereof; to meet
witnesses face to face, and to have compulsory process to
procure the attendance of witnesses in his behalf, and speedy
public trial by an impartial jury of the county in which the
offense is alleged to have been committed; but provision may
be made by law for the taking of the deposition by the accused
or by the state, to be used for or against the accused, of any
witness whose attendance can not be had at the trial, always
securing to the accused means and the opportunity to be
present in person and with counsel at the taking of such
deposition, and to examine the witness face to face as fully
and in the same manner as if in court. No person shall be
compelled, in any criminal case, to be a witness against
himself; but his failure to testify may be considered by the
court and jury and may be the subject of comment by counsel.
No person shall be twice put in jeopardy for the same offense.
{¶ 138} I draw attention to the right set forth in the Ohio Constitution that requires
that an accused have a "speedy public trial by an impartial jury of the county in which the
offense is alleged to have been committed." All judges, prosecutors, and legislators swear
an oath to uphold the Ohio Constitution, including the provisions in Article I, Section 10,
Ohio Constitution.
{¶ 139} The legislature has enacted R.C. 2901.12, Venue. R.C. 2901.12(H) reads:
When an offender, as part of a course of criminal conduct,
commits offenses in different jurisdictions, the offender may
be tried for all of those offenses in any jurisdiction in which
one of those offenses or any element of one of those offenses
occurred. Without limitation on the evidence that may be
used to establish the course of criminal conduct, any of the
following is prima-facie evidence of a course of criminal
conduct:
(1) The offenses involved the same victim, or victims of the
same type or from the same group.
(2) The offenses were committed by the offender in the
offender’s same employment, or capacity, or relationship to
another.
No. 14AP-679 45
(3) The offenses were committed as part of the same
transaction or chain of events, or in furtherance of the same
purpose or objective.
(4) The offenses were committed in furtherance of the same
conspiracy.
(5) The offenses involved the same or a similar modus
operandi.
(6) The offenses were committed along the offender’s line of
travel in this state, regardless of the offender’s point of origin
or destination.
{¶ 140} R.C. 2901.12(H) clearly conflicts with the requirement of Article I, Section
10, Ohio Constitution that an offense be tried in the county in which it is alleged to have
been committed. A statute does not undo a provision of the Ohio Constitution and does
not take precedence over it. However, Article I, Section 10, Ohio Constitution clearly
places an inconvenient burden on prosecuting attorneys and assistant prosecuting
attorneys. In Armengau's case, Article I, Section 10 means that there should have been
two trials, one in Marion County, Ohio and one in Franklin County. The majority opinion
goes to some length to explain why the Ohio Constitution did not need to be followed. I
would uphold the Ohio Constitution.
{¶ 141} My second concern about the proceedings against Armengau is the fact
that a great deal of prejudicial evidence was placed before the jury and then the
prosecution was permitted to argue that even though some of the evidence was utterly
incredible, there was so much of it that Armengau must be guilty of something.
{¶ 142} A third concern is related. The prosecution presented evidence which
indicated that part of what Armengau did was immoral, as opposed to being illegal or
proof of a crime. Criminal trials in Ohio are supposed to be proceedings which fairly
determine if a person has violated a provision of the Ohio Revised Code. Criminal trials
should not become a game in which the prosecution or defense is trying to "win." Viewing
trials as a game risks having one side or the other trying to insert allegations which have
nothing to do with the guilt or innocence of the crime charged in the indictment. For
instance, having consensual sexual contact with another is not a crime in Ohio and is not
proof of a crime.
No. 14AP-679 46
{¶ 143} I believe the second assignment of error should be sustained and the
charges against Armengau be tried again in a truly fair proceeding.
{¶ 144} If the second assignment of error were sustained, the other assignments of
error become moot. Since I would sustain the second assignment of error, I dissent from
all of the majority opinion except part of the analysis of the so-called merger issue, R.C.
2941.25.