State v. Bonneau ( 2012 )

[Cite as State v. Bonneau, 2012-Ohio-3258.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97565
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PAUL BONNEAU
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-545066
BEFORE: Keough, J., Blackmon, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: July 19, 2012
ATTORNEY FOR APPELLANT
Thomas E. Conway
75 Public Square, Suite 700
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mark J. Mahoney
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Paul Bonneau, appeals from his convictions for gross
sexual imposition and kidnapping. Finding no merit to the appeal, we affirm.
I. Procedural and Factual History
{¶2} Appellant was indicted in an eight-count indictment. Counts 1, 2, and 3
charged gross sexual imposition in violation of R.C. 2907.05(A)(1) against victim M.S.;
Count 4 charged the kidnapping of M.S. with a sexual motivation specification in
violation of R.C. 2905.01(A)(4). The offenses were alleged to have occurred from June
1, 1993 to September 1, 1993. Counts 5, 6, and 7 of the indictment charged gross sexual
imposition in violation of R.C. 2907.05(A)(1) against victim A.F.; Count 4 charged the
kidnapping of A.F. with a sexual motivation specification in violation of R.C.
2905.01(A)(4). These offenses were alleged to have occurred from February 1, 2006 to
February 28, 2006.
{¶3} Prior to trial, the trial court granted the State’s motion to amend the dates of
the offenses in Count 1 through 4 to June 1, 1994 to August 31, 1994, and Counts 5
through 8 to February 1, 2005 to February 28, 2005. The trial court denied appellant’s
“motion for relief from prejudicial joinder.”
{¶4} The testimony at trial established that M.S. first met appellant, his wife,
Stacey, and their two children when she was 14 years old. M.S. lived across the street
from the Bonneaus and began babysitting for them in May of 1994. Stacey testified that
appellant was infatuated with M.S.; according to M.S., he would buy her things like
clothes and a pager. He also took her to bars, even though she was only 15 years old,
and after she got a job, would pick her up on his motorcycle and give her rides to work.
{¶5} M.S., who was 32 years old at the time of trial, testified that appellant told her
that he loved her and wanted to “ride off” on his motorcycle with her some day.
Appellant’s emotional attraction to M.S. eventually became physical. M.S. testified that
the first time appellant became physical with her, he came up to her as she sat in a chair in
the Bonneaus’ living room, ran his hand up her thigh, and French-kissed her multiple
times. M.S. testified that to get out of the situation, she stood up, pushed away, and went
into the kitchen with appellant’s wife. M.S. testified that there were many incidents like
this.
{¶6} She testified that another time when she was at the Bonneau home, appellant
came over, pushed her on the couch, grabbed her hands and held them behind her head,
and then French-kissed and “dry humped” her; M.S. stated that she could feel appellant’s
erection while he was doing this. M.S. said that she tried to get away and eventually
rolled in a way that forced appellant to roll off her. She testified that appellant’s friends,
who were in the room during this incident, watched and laughed.
{¶7} M.S. stated that another time, she, appellant, and appellant’s wife were riding
in the car. She was sitting in the back seat next to the baby in the car seat; appellant was
driving and his wife was sitting in the front passenger seat. M.S. testified that when the
baby dropped a toy, appellant turned around to pick it up, and “just ran his hand all up
[her] leg up to [her] thigh.”
{¶8} M.S. testified that another time appellant rubbed her legs as she rode on his
motorcycle with him, and when they got off the motorcyle, he grabbed her
“inappropriately in the butt.” She testified that she remembered other incidents when
appellant would take her hand and force her to rub his genital area while he would rub
her.
{¶9} M.S. testified that one day Bonneau handed her a letter in which he asked her
to lose her virginity to him. M.S. was uncomfortable telling her parents what had been
happening, so she left the letter where her parents would find it. After M.S.’s mother
found the letter, there was no more contact between appellant and M.S.
{¶10} A.F., who was 22 years old at trial, testified that her family, who lived on
the same street in Cleveland as the Bonneaus, moved to Columbia Station when she was
14 years old. The families stayed in contact, and A.F. would sometimes babysit for the
Bonneaus; she would usually spend the night and her mother would pick her up the next
morning.
{¶11} A.F. testified that she was babysitting for the Bonneaus one night in
February 2005 when she was 15 years old. Appellant and Stacey came home; Stacey
checked on the children and then went to bed.
{¶12} A.F. testified that appellant put on some music, gave her a beer and later
Jagermeister, and then started getting “flirty” and “grabby” with her. According to A.F.,
he grabbed her buttocks and pinched her thighs. A.F. said that she went upstairs to go to
the bathroom and appellant followed her. When she came out of the bathroom, he
grabbed her and pushed her down on a wooden chest. A.F. testified that appellant put his
hands on her legs, spread her legs open, and then bit her in her vaginal area. A.F. stated
that she pushed appellant out of the way and ran down the stairs. According to A.F., as
she was running down the stairs, appellant made comments about her virginity and told
her that he wanted to be her “first.”
{¶13} Appellant’s nephew, Dale Leonard, who was living with the Bonneaus,
testified that he was in the basement when he heard A.F. yelling “get off me.” He
walked upstairs and saw appellant grabbing A.F.’s buttocks. Leonard told appellant to
stop what he was doing and pulled him away from A.F., who then ran down the stairs.
According to A.F., appellant followed her into the family room and, as he sat on the
couch, began touching his penis and looking at her. A.F. stated that Dale came in the
room and told appellant to go upstairs, which he finally did.
{¶14} A.F.’s mother picked her up the next morning; about a month after the
incident, A.F. finally told her mother what had happened. A.F.’s mother testified that the
two families met and appellant apologized, although he never specified exactly what he
was sorry for. The families agreed that in lieu of reporting the incident to the police,
appellant would attend counseling. The families did not stay in contact after this
meeting.
{¶15} Stacey Bonneau testified that after this incident, her marriage to appellant
fell apart. In May 2010, in an effort to find character witnesses for a custody hearing
regarding the couple’s two daughters, she contacted A.F. and her mother, who told Stacey
the extent of what had happened to A.F. Stacey convinced A.F. to report the incident to
the police.
{¶16} Detective Kenneth Vagase testified that during his investigation of the
incident, Stacey told him about the incident involving M.S. Detective Vagase contacted
M.S., who told him what had happened to her.
{¶17} The jury found appellant guilty of Counts 1, 2, 3, and 4, which charged
gross sexual imposition and kidnapping relating to M.S., and not guilty of Counts 5, 6, 7,
and 8, the counts relating to the incident with A.F. The trial court sentenced appellant to
three years incarceration and classified him as a sexually oriented offender.1 This appeal
followed.
II. Analysis
A. Joinder
{¶18} In his first assignment of error, appellant contends that the trial court erred
in denying his “motion for relief from prejudicial joinder.” Appellant contends that this
The original sentencing was held on October 17, 2011; appellant filed a notice of appeal on
1
November 16, 2011. On December 1, 2011, the trial court held another sentencing hearing and
resentenced appellant. However, the trial court was without jurisdiction to resentence appellant after
the notice of appeal was filed and, therefore, the new sentencing judgment is void. The resentencing
does not affect our consideration of appellant’s appeal, however, because none of the assignments of
error relate to sentencing.
case involved separate victims and separate incidents separated by almost 11 years. He
asserts that he was prejudiced by the joinder of the counts relating to the two victims
because “there was no way that a jury could reasonably segregate the respective evidence
from the two separate sets of allegations.”
{¶19} Multiple offenses may be charged in the same indictment “if the offenses
charged * * * 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.” Crim.R. 8(A). Generally, the law favors joining multiple offenses of the
same or similar character in a single trial, unless joinder would prejudice the defendant.
State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990); Crim.R. 14. The
defendant bears the burden of proving prejudice and that the trial court abused its
discretion in denying severance. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507,
824 N.E.2d 959, ¶ 29.
{¶20} Joinder was proper in this case because the crimes were related in character
and manner. And appellant has failed to demonstrate any prejudice by the joinder. A
defendant is not prejudiced by joinder if simple and direct evidence of each of the crimes
joined at trial exists, such that a jury is capable of segregating the proof required for each
offense, or if evidence of one offense would be admissible at a separate trial of the other
offense as “other acts” evidence under Evid.R. 404(B). Brinkley at ¶ 30.
{¶21} Evid.R. 404(B) permits the admission of “other acts” evidence if the
evidence is “related to and shares common features with the crime in questions,” as long
as it is used for purposes other than proving that the accused acted in conformity with a
particular character trait. State v. Lowe, 69 Ohio St.3d 527, 1994-Ohio-345, 634 N.E.2d
616, paragraph one of the syllabus. In this regard, appellant contends that the facts
relating to the separate incidents with the alleged victims are too unrelated in time to
support their joinder.
{¶22} Assuming, without deciding, that the “other acts” evidence would have been
inadmissible on this basis, we find that the evidence as to each victim was simple, direct,
and capable of being segregated. There is no indication from the record that the jury
confused the evidence as to the different counts or that the jury was influenced by the
cumulative effect of the joinder. In fact, the jury’s not guilty verdicts as to the counts
relating to A.F. and its guilty verdicts as to the counts relating to M.S. demonstrate that
the jury considered each victim separately. Contrary to appellant’s argument, the jury
was able to separate the evidence relating to each victim to reach its verdict. Appellant’s
first assignment of error is therefore overruled.
B. Sufficiency and Manifest Weight of the Evidence
{¶23} In his second and third assignments of error, appellant contends that his
convictions were not supported by sufficient evidence and were against the manifest
weight of the evidence.
{¶24} The test for sufficiency requires a determination of whether the prosecution
met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266,
2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing the sufficiency of
the evidence to support a criminal conviction 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 doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.
State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
{¶25} A manifest weight challenge, on the other hand, questions whether the
prosecution met its burden of persuasion. State v. Ponce, 8th Dist. No. 91329,
2010-Ohio-1741, ¶ 17, citing State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356(1982). A reviewing court may reverse the judgment of conviction if it appears that the
trier of fact “clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” Thompkins at 387. A finding that
a conviction was supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency. Id.{¶26} Appellant was convicted of gross sexual imposition in violation of R.C.
2907.05(A)(1) and kidnapping in violation of R.C. 2905.01(A)(4). R.C. 2907.05(A)(1),
governing gross sexual imposition, provides that “[n]o person shall have sexual contact
with another, not the spouse of the offender * * * when * * * the offender purposely
compels the other person * * * to submit by force or threat of force.” R.C.
2905.01(A)(4), regarding kidnapping with a sexual motivation specification, provides that
“[n]o person, by force * * * shall * * * restrain the liberty of the other person * * * to
engage in sexual activity * * * with the victim against the victim’s will.”
{¶27} Appellant argues that his convictions were not supported by sufficient
evidence and were against the manifest weight of the evidence because there was no
evidence that he purposely compelled M.S. to submit by force or threat of force and that,
in actuality, the relationship was consensual. His argument is without merit.
{¶28} M.S. testified to multiple incidents when appellant forced her to submit to
his advances against her will. She testified that in one incident, appellant pushed her on
the couch, French-kissed her, and “dry humped” her as he was holding her hands behind
her head. M.S. specifically testifed that during this incident, she “was trying to get
away” and finally managed to roll in a way that forced appellant to roll off her. She
testified that in another incident when appellant approached her and kissed her, she had to
push him away in order to get out of the situation. And she testified that there were
many incidents such as this one.
{¶29} In light of this testimony, the jury did not lose its way in concluding that
appellant compelled M.S. by force to submit to his sexual advances, and that he restrained
her by force to engage in sexual activity with her against her will. Appellant’s argument
that the relationship was consensual is specious. Although there was testimony that
appellant bought M.S. things and gave her motorcycle rides, M.S. specifically testified
that appellant’s advances were unwanted but because she was only 15 years old, while
appellant was an adult, she did not know how to simply say no.
{¶30} Appellant also argues that the jury lost its way in convicting him because of
M.S.’s statement on cross-examination that although she was initially reluctant to
prosecute appellant, “it came to [her] knowledge that many other young girls had been
violated and hurt and [she] knew that [she] had to come forward to prevent it from ever
happening again.” Appellant contends that although the court immediately informed the
jury the statement was stricken from the record, he was unfairly prejudiced by M.S.’s
mention of other victims.
{¶31} But appellant again fails to demonstrate any prejudice. The trial judge
immediately issued a curative instruction to the jury after M.S.’s remark. The jury can be
presumed to have followed the instructions, including curative instructions, given by a
trial judge. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 93.
Furthermore, the jury’s verdict finding appellant guilty of the charges relating to M.S. but
not guilty of the charges relating to A.F., demonstrates that the jury disregarded M.S.’s
comment about other victims, as instructed.
{¶32} On this record, the jury did not lose its way and create a manifest
miscarriage of justice in finding appellant guilty of gross sexual imposition and
kidnapping relating to M.S. His convictions are not against the manifest weight of the
evidence; thus, they are supported by sufficient evidence. Appellant’s second and third
assignments of error are therefore overruled.
{¶33} Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA A. BLACKMON, A.J., and
MARY J. BOYLE, J., CONCUR