State v. Jeffries , 112 N.E.3d 417 ( 2018 )

[Cite as State v. Jeffries, 2018-Ohio-2160.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170182
TRIAL NOS. B-1602033
Plaintiff-Appellee, : B-1606068
vs. : O P I N I O N.
ROSCOE JEFFRIES, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 6, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} Defendant-appellant Roscoe Jeffries appeals from the judgment of the
Hamilton County Court of Common Pleas convicting him of aggravated trafficking in
drugs and multiple sex offenses, including rape, involving his minor daughter R.J.
Background Facts and Procedure
{¶2} The Colerain Township Police Department began investigating Jeffries
on April 12, 2016, based on allegations, made by his daughter M.J. to her high school
counselor, that Jeffries was not sending his son J.J. to high school. At the time,
Jeffries lived on Elkhorn Drive with J.J., R.J., M.J., and his girlfriend Elizabeth Mehl
(“Liz”). When Detective Sean Maher went to the home to speak to Jeffries about the
truancy, he left believing that something was “severely wrong,” after sensing fear in
J.J. and M.J., whom he met on the same visit.
{¶3} The police expanded the investigation due to allegations that Jeffries
was trafficking drugs out of the family home and sexually abusing his youngest
daughter, R.J. Later, Detective Joe Carter conducted surveillance on the home and
observed a large amount of vehicle traffic coming and going, with the visitors staying
no more than a few minutes.
{¶4} During a search of Jeffries’ home on April 14, the police recovered a
large quantity of blue Percocet pills containing oxycodone, a schedule II controlled
substance, in pill bottles not labeled with prescriptions. They found other evidence
of drug trafficking and drug abuse, but not a ledger of transactions or a large amount
of cash. And the police collected a towel and other items from R.J.’s bedroom for
DNA testing based on R.J.’s statements concerning the sexual abuse.
{¶5} When interviewed by the police, Jeffries stated that any drugs
recovered in the home belonged to him, and he made admissions concerning two cell
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phones the police recovered in the home. One cell phone was connected to text
messages that incriminated Jeffries in the trafficking of drugs, and the other was
connected to text messages that incriminated him in the sexual abuse of R.J.
{¶6} During the interview, Jeffries also made statements incriminating
himself in the sex offenses against his daughter, including admitting that his semen
would likely be found on the items from R.J.’s bedroom that were submitted for DNA
testing. But he denied having an inappropriate relationship with R.J.
{¶7} After his arrest, Jeffries had several conversations with Liz over the
telephone from the Hamilton County Justice Center that the police recorded. In
these conversations, Jeffries discussed his drug-trafficking operation, asking Liz if
the police had found the “blue caps,” and lamenting that they had so many pills in
the home at one time. In another conversation, he and Liz discussed that the reason
why the police did not seize much money during the search was because Liz had it on
her person.
{¶8} Ultimately, Jeffries was indicted in the case numbered B-1602033 on
seven counts. The first count charged aggravated drug trafficking on or about April
14, 2016. The second, third, and fifth counts charged the rapes of R.J., and the
fourth, sixth, and seventh charged gross sexual imposition (“GSI”) related to R.J.
The sex-offense counts involved conduct beginning in 2010 and ending on or about
April 13, 2016.
{¶9} Jeffries moved for a separate trial on the first count, claiming both that
the joinder of the drug-offense count in the same indictment as the sex-offense
counts was not permitted under Crim.R. 8(A) because the offenses were completely
unrelated, and that joinder was prejudicial under Crim.R. 14. The trial court denied
his motion. But the court granted, over Jeffries’ objection, the state’s motion to join
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the indictment with another indictment charging Jeffries with one count of GSI
involving another minor, K.P.
{¶10} At a single trial on both indictments, Jeffries tried to introduce
evidence that R.J. had been sexually abused by a different individual who had been
convicted for that conduct. The trial court found the evidence inadmissible under
Ohio’s rape-shield statute.
{¶11} Through various witnesses, the state presented substantial evidence of
the offenses in the first indictment. But the evidence in support of the sex offenses
related to R.J. did not include any DNA lab test results, even though the jury was
informed that items had been collected from R.J.’s bedroom and submitted for DNA
testing.
{¶12} Jeffries testified and denied sexually abusing R.J. In closing
argument, defense counsel argued the state failed to prove he committed the sex
offenses against R.J. because it did not present any DNA lab test results. The jury
found Jeffries guilty on all the counts set forth in the first indictment, but acquitted
him on the one count of GSI set forth in the second indictment. At sentencing, the
trial court imposed consecutive prison terms, for an aggregate prison term of life
without parole plus 37 years.
{¶13} Jeffries now appeals, raising six assignments of error. He argues the
trial court erred by applying the rape-shield statute to exclude evidence of R.J.’s
prior nonconsensual sexual activity. Further, he claims the trial court erred by
failing to sever the drug-offense count from the sex-offense counts, and by ordering
that his sentence on the drug offense be served consecutively to the sentences
imposed for the sex offenses. Finally, Jeffries contends that his convictions were not
supported by sufficient evidence and were against the manifest weight of the
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evidence, and that he was denied the effective assistance of counsel because counsel
did not present expert testimony about the DNA testing.
{¶14} Finding no merit to the errors assigned, we affirm the trial court’s
judgment.
Trial Evidence
{¶15} The state’s evidence at trial showed that Jeffries began sexually
abusing R.J., who was born in December 2001, in the spring of 2010. She was nine
years old, and the family was living in a house on Wenning Drive. R.J. had a “rash”
on her “butt” that she was treating with a prescription cream. R.J. testified that one
day, after Jeffries had applied the cream to the rash while she lay on her stomach on
his bed, “he had me lay on my back, and he put a pillow over my face. * * * He just
started rubbing me with a rag, and then he started rubbing me-rubbing his dick on
my vagina.”
{¶16} According to R.J., the sexual abuse continued through the years as the
family, including her younger brother and older sister, moved to different residences.
She specifically recalled for the jury an incident occurring one evening between June
and August 2012, when she was 11 years old and the family was living on DeSoto
Drive. She was in the living room alone with Jeffries, lying on the couch watching
television. Without saying anything to her, Jeffries pulled down her pants and
underwear and began licking her vagina and sticking his tongue in and out of it.
Jeffries then told her to kiss his penis and put it in her mouth.
{¶17} R.J. also specifically recounted abuse that occurred one evening in
December 2015 after a school concert. She was 14 years old, and had asked Jeffries
on the drive home from her school if she could spend the night with a friend. He
mentioned that it was a school night, and then pulled his car into the parking lot of
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the Towne Terrace Apartments on Pippen Road. There he reclined her seat and got
on top of her. He then pulled down her pants and underwear, unzipped his zipper,
rubbed his penis on her, and put his fingers inside her vagina. When finished, he
agreed that she could spend the night with her friend.
{¶18} With respect to the April 13, 2016 incident, R.J. stated that she was 16
years old, and she and her father had returned to their house on Elkhorn Drive from
a cheerleading meeting. Her brother and sister were not home, nor was Liz. When
R.J. was in her bedroom, Jeffries entered and commented on how much money he
would have to pay for her to participate in cheerleading. He then told her that for
him to pay for it she needed to “inspire” him. Subsequently, he had her remove her
clothes and lay on her back on her bed. After rubbing his penis on her vagina, he had
her turn over and rise onto her elbows and knees. He then penetrated her vagina
with his penis from the rear and had intercourse with her. Afterwards, he told her
that she was his “favorite” and if she needed anything he would find a way to do it,
but she would have to “inspire him for it.”
{¶19} R.J. explained that her father would often use the code word “inspire”
to indicate he wanted to touch her in exchange for something she wanted. The text
messages between the two of them showed that Jeffries required “inspiration” for a
variety of things, including keeping R.J.’s older sister out of her room and driving
R.J. to school. Jeffries texted R.J., “I’ll tell her to stay out of your room. * * * I’ll add
it to your inspirational list, ok,” and “Of course you know with a little inspiration I
can run you to school in 25 minutes, just [a] thought. Lol.” Another message from
Jeffries to R.J. provided, “Inspiration right when u wake up, ok. ;).” Additionally, in
one series of text messages, after referencing that Liz was not home, Jeffries texted to
R.J., “You should have inspired me in her absence. Missing it. Still have time.”
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{¶20} According to R.J., Jeffries also used the code word “air-dry” to relay to
R.J. when she “ha[d] to sleep with no pants or underwear on” because he would be
coming to her room to abuse her. For example, when Jeffries texted R.J. about
switching her cell phone to his account, he added, “If you want me to do it, it will cost
you though, you know! :-) Like air-dry visit late as needed.” The relevant text
messages showing Jeffries’ use of these code words were admitted into evidence.
{¶21} R.J. explained that she had not wanted to engage in any of the sexual
conduct with her father, but she feared him and did know how to say “no” to him.
He would get “very angry” when he did not get his way, and had punished her and
her siblings by beating them with a belt, striking their hands with spoons, and
forcing them to eat soap.
{¶22} R.J. testified that when she was younger she had told “Jackie,” a
former stepmother, about the abuse, but Jackie had not believed her. After Jeffries
forced her to have vaginal intercourse with him on April 13, 2016, R.J. for the first
time told her older sister M.J. about the abuse that had occurred earlier in the day.
This incident had been worse than the others and had “hurt.”
{¶23} Consistent with R.J.’s testimony, M.J. stated that when she returned
home from work on the evening of April 13, R.J. disclosed the abuse to her and told
her it “hurt.” They both cried about it. Although M.J. was previously unaware of the
abuse, she said that it made sense to her when thinking about certain circumstances
over the years. The night of the disclosure, M.J. slept in R.J.’s room due to fear of
her father. The next day she reported the sex abuse to a counselor at the high school
they both attended.
{¶24} After M.J. reported the abuse, R.J. was taken from her school to the
Mayerson Center at Children’s Hospital, where Tracy Collier, a social worker
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performed a forensic interview. Collier observed that R.J. discussed the sexual abuse
in a matter-of-fact manner and looked down to the floor, a presentation and
demeanor that, based on the social worker’s experience, was not inconsistent with a
victim of sexual abuse.
{¶25} Although the state did not present any DNA evidence, it did present
several incriminating statements Jeffries had made when interviewed by Detective
Mike Stockmeier about the sex-abuse allegations. This included Jeffries’ statement
that his semen would likely be found on a towel in R.J.’s bedroom. Jeffries had
qualified the statement by stating that he had sex in R.J.’s bedroom with several
women, and that he wanted to hide this conduct from Liz.
{¶26} The state’s evidence at trial also demonstrated that Jeffries was
trafficking the drug oxycodone in an amount far more than bulk out of the family’s
home. Detective Carter had observed a high amount of vehicle traffic outside the
home, consistent with drug trafficking, before obtaining and executing a search
warrant for the residence. During the search on April 14, 2016, the police recovered
over 85 Percocet pills containing oxycodone that Jeffries claimed to own in an
interview with the police.
{¶27} According to Detective Stockmeier, the amount of the drugs recovered
was consistent with drug trafficking but not personal use, and exceeded the bulk
amount by five times. The pills were contained in three bottles without prescription
labels that were discovered in a basket of laundry along with a package of miniature
plastic bags that zipped and drug paraphernalia. This included a pill crusher and a
handful of cut plastic sipping straws, each labeled with a different name and
containing residue from a white powder, to be used to snort crushed narcotic pills
such as Percocet.
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{¶28} The state also offered into evidence a printout of the many text
messages downloaded from a black cell phone belonging to Jeffries that incriminated
him in drug trafficking, and recorded telephone calls Jeffries made from jail that
implicated him in the sale of the pills.
{¶29} Finally, both R.J. and M.J. testified that when they were under the age
of 18 they had observed their father conduct sales of drugs in the home. According to
these witnesses, Jeffries had used code names, and the drugs were exchanged for
cash.
{¶30} Jeffries testified in his defense. He denied ever sexually abusing his
daughter R.J. Jeffries further claimed he had learned the word “inspire” when he
served in the Marine Corps, and he used the term with all his children, including
R.J., to encourage them. Specifically, he said he used the word in his text messages
with R.J. to encourage her to practice her cheerleading. But he acknowledged on
cross-examination that when he used the word with R.J. the context was to inspire
him—not her.
{¶31} Contrary to R.J.’s testimony, Jeffries stated that when he used the
phrase “air-dry,” he was communicating with R.J. to leave her bedroom door
unlocked so he could dry some wet clothes with the ceiling fan in the room. He also
suggested the reference to “air dry” in the text messages meant that she was not to
wear any tight clothing because she had a boil or cyst on her vaginal area.
{¶32} Jeffries admitted that he had rubbed a prescription cream to “warts”
on R.J.’s “vaginal” and “anal” areas when they lived on Wenning Road, explaining
that her mother was not around to do it. He also confirmed R.J.’s testimony that
years earlier R.J. had told his former wife “Jackie” that he was sexually abusing her.
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{¶33} With respect to the drug-trafficking count, Jeffries testified that all of
the illegally obtained Percocet pills recovered in the home were his. He admitted
that some of the pills were intended to be sold, and contended that most were for his
and Liz’s personal use. But of the three bottles recovered, only one bottle was
marked “personal,” and that bottle contained just a few pills.
{¶34} Although Jeffries acknowledged that some pills were to be sold, and
that he had sold illegally obtained prescription drugs in the past, he insinuated that
Liz was running the drug-trafficking operation in his home.
Analysis
{¶35} Rape-Shield Statute. Jeffries’ first assignment of error involves
Ohio’s rape-shield statute, R.C. 2907.02(D), which provides in relevant part:
Evidence of specific instances of the victim's sexual activity, opinion
evidence of the victim's sexual activity, and reputation evidence of the
victim's sexual activity shall not be admitted under this section.
The statute then provides certain exceptions.
{¶36} At trial, Jeffries sought to introduce evidence that R.J. had been
sexually abused by another person who had been convicted for that conduct. First,
he tried to cross-examine R.J. on the issue, claiming it was relevant to show her
knowledge of sexual terms used in her testimony, an argument he has abandoned on
appeal. Later, he tried to present his own testimony on the topic, requesting to
testify that he was rubbing a prescription cream on R.J.’s vaginal and anal areas
because she had “a medical condition caused by the prior abuse.” The trial court
allowed Jeffries to testify that he was rubbing the cream on R.J.’s genital area due to
“warts,” but it did not allow Jeffries to testify that the warts were caused by the prior
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abuse. Jeffries argues this was error that violated his constitutional rights to
confront witnesses and to present a defense.
{¶37} Initially, Jeffries argues, as he did before the trial court, that the rape-
shield statute does not apply when the evidence sought to be introduced involves
nonconsensual sexual activity of the victim. Because R.J.’s prior sexual abuse was
nonconsensual, he contends testimony on the topic was not protected by the statute.
In support of his argument, he cites State v. Stoffer, 7th Dist. Columbiana No. 09-
CO-1, 2011-Ohio-5133. In Stoffer, the Seventh District Court of Appeals held that the
rape-shield statute does not apply to prior sexual abuse suffered by the victim. Id. at
¶ 98. The interpretation of a statute is an issue of law that this court reviews de
novo. State v. Lamke, 2013-Ohio-925, 988 N.E.2d 913, ¶ 8 (1st Dist.).
{¶38} The state contends the rape-shield statute applies to both consensual
and nonconsensual sexual activity, and argues the Ohio Supreme Court decided this
issue in State v. Boggs, 63 Ohio St. 3d 418, 588 N.E.2d 813 (1992). In Boggs, the
alleged rape victim was alleged to have made prior false rape accusations against a
person other than the defendant, and Boggs sought to cross-examine her on the
issue. The court examined whether the rape-shield provisions of R.C. 2907.02(D)
prohibited such cross-examination. The court stated
R.C. 2907.02 prohibits only evidence of “sexual activity” of the victim.
Because prior false accusations of rape do not constitute “sexual
activity” of the victim, the rape shield law does not exclude such
evidence. A great number of courts from other jurisdictions have also
reached this conclusion.
***
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OHIO FIRST DISTRICT COURT OF APPEALS
When the defense seeks to cross-examine on prior false accusations of
rape the burden is upon the defense to demonstrate that the
accusations were totally false and unfounded. Hence the initial inquiry
must be whether the accusations were actually made by the
prosecutrix. Moreover, the trial court must also be satisfied that the
prior allegations of sexual misconduct were actually false or fabricated.
That is, the trial court must ascertain whether any sexual activity took
place, i.e., an actual rape or consensual sex. If it is established
that either type of activity took place, the rape shield statute prohibits
any further inquiry into this area. Only if it is determined that the
prior accusations were false because no sexual activity took place
would the rape shield law not bar further cross-examination.
(Emphasis added.) Id. at 423.
{¶39} Of importance, the Boggs court interpreted “sexual activity” to include
“an actual rape.” The Eighth District Court of Appeals in State v. Jeffries, 8th Dist.
Cuyahoga No. 105379, 2018-Ohio-162, appeal accepted, Slip Copy No. 2018-Ohio-
1989, relying on this same language in Boggs, disagreed with the Stoffer court’s
restrictive reading of the rape-shield statute and found the statute protected a child
victim of sexual abuse. Id. at ¶ 17-20.
{¶40} We agree with the Eighth District’s interpretation of the statute, and
disagree with the appellant’s and the Seventh District’s interpretation, which
undermines one of the recognized intentions of the law—“guarding the complainant’s
sexual privacy.” State v. Gardner, 59 Ohio St. 2d 14, 17, 391 N.E.2d 337 (1979).
Thus, we hold the trial court properly determined that the rape-shield statute applies
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to testimony involving nonconsensual sexual activity, including R.J.’s prior sexual
abuse.
{¶41} However, the rape-shield statute provides exceptions. Evidence of a
victim’s sexual activity that is generally excluded under the rape-shield statute may
be admissible if it falls under one of the specifically delineated exclusions, including
to show the origin of disease. R.C. 2907.02(D). But even then, it is only admissible
“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.” Id.
{¶42} Jeffries maintains that the evidence would have been admissible under
the statutory exception to show why his daughter had genital medical issues. But
Jeffries fails to explain how this evidence was material to a fact at issue in the case.
How R.J. contracted the genital medical condition was not at issue. Further, the fact
that R.J. had a medical condition that required the application of the prescribed
cream was undisputed at trial, and both R.J. and Jeffries testified about it. Thus, we
conclude that the trial court did not err by excluding the testimony Jeffries sought to
elicit about R.J.’s prior sexual abuse.
{¶43} Next we address Jeffries’ argument that the application of the rape-
shield statute unconstitutionally infringed on his rights to confront witnesses and to
present a defense. The rape-shield law may not be applied in violation of a
defendant’s constitutional rights. Gardner, 59 Ohio St. 3d at 17, 391 N.E.2d 337;
State v. Williams, 21 Ohio St. 3d 33, 35, 487 N.E.2d 560 (1986). In determining
whether the rape-shield statute has been unconstitutionally applied, the court must
balance the interest of the state that the statute is designed to protect against the
probative value of the excluded evidence. Gardner at 17.
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{¶44} As recognized by the Ohio Supreme Court, the rape-shield statute
advances several legitimate state interests:
First, by guarding the complainant’s sexual privacy and protecting her
from undue harassment, the law discourages the tendency in rape
cases to try the victim rather than the defendant. In line with this, the
law may encourage the reporting of rape, thus aiding crime
prevention. Finally, by excluding evidence that is unduly
inflammatory and prejudicial, while being only marginally probative,
the statute is intended to aid in the truth-finding process.
Id. at 17-18.
{¶45} When balancing these interests with the probative value of the
excluded evidence, we focus on the relevancy of the excluded evidence to the matters
of proof of which it is offered. Id. at 18. We note also that a defendant has no
constitutional right to use irrelevant evidence to confront a witness. State v. Leslie,
14 Ohio App. 3d 343, 346, 471 N.E.2d 503 (2d Dist.1984), citing Logan v. Marshall,
540 F. Supp. 3 (N.D.Ohio 1981).
{¶46} We have already determined that information about how R.J. acquired
her medical condition was not relevant to any material fact. But Jeffries contends
also that the excluded evidence was relevant to his defense because it “could” have
“raise[d] doubts as to the recall and memory of the accuser.” At best, this purpose is
merely a general impeachment purpose that has no probative value with respect to
the charged sexual abuse. Therefore, the challenged evidence was not admissible in
furtherance of Jeffries’ constitutional rights. See State v. Ferguson, 5 Ohio St. 3d
160, 165, 450 N.E.2d 265 (1983); Williams, 21 Ohio St. 3d at 36, 487 N.E.2d 560,
citing Gardner and Ferguson.
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{¶47} Because the prejudicial and inflammatory nature of the excluded
testimony outweighed the probative value, if any, it may have had, we conclude that
the application of the rape-shield statute did not violate Jeffries’ constitutional
rights. Accordingly, we overrule the first assignment of error.
{¶48} Misjoinder and Prejudicial Joinder. In his second assignment of
error, Jeffries argues the trial court erred when it failed to order a separate trial for
the drug-offense count. Jeffries asserts claims of misjoinder and prejudicial joinder,
citing Ohio’s criminal rules. He timely filed his motion to sever before trial in
accordance with Crim.R. 12(G), and he later renewed it at the close of the state’s case.
{¶49} “Joinder is liberally permitted to conserve judicial resources, reduce
the chance of incongruous results in successive trials, and diminish inconvenience to
the witnesses.” State v. Schaim, 65 Ohio St. 3d 51, 58, 600 N.E.2d 661 (1992). See
State v. Hamblin, 37 Ohio St. 3d 153, 157-158, 524 N.E.2d 476 (1998). But there are
limits governing the charging of multiple offenses in the same indictment. See State
v. Mata, 6th Dist. Sandusky No. S-80-18, 1981 WL 5600 (May 22, 1981) (holding
that aggravated-riot and receiving-stolen property charges were misjoined under
Crim.R. 8(A).)
{¶50} Crim.R. 8(A) provides four conditions allowing joinder:
Two or more offenses may be charged in the same indictment * * * if
the offenses charged * * *[1] are of the same or similar character, [2]
are based on the same act or transaction, [3] are based on two or more
acts or transactions connected together or constituting parts of a
common scheme or plan, or [4] are part of a course of criminal
conduct.
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{¶51} Jeffries maintains that none of the conditions of Crim.R. 8(A) apply to
justify the joinder in this case. Specifically, he contends that the “drug and the sex
charges” are “completely independent,” “neither inextricably interwoven or related,
and in fact had nothing to do with each other.” Whether charges were misjoined in a
single indictment in contravention of Crim.R. 8(A) is an issue of law that this court
reviews de novo. State v. Kennedy, 2013-Ohio-4221, 998 N.E.2d 1189, ¶ 24 (1st
Dist.).
{¶52} The state has never specifically identified which of the four conditions
listed in Crim.R. 8(A) authorized the joinder. But at the hearing on Jeffries’ motion,
the prosecutor argued that joinder was proper because all the counts in the
indictment resulted “from the same investigation” and the offenses “all happened
together.” The reasons the state offered for the joinder suggest the “continuing
course of conduct” justification.
{¶53} The Supreme Court examined when offenses are part of a continuing
course of conduct in Hamblin, 37 Ohio St. 3d at 153, 524 N.E.2d 476. That case
involved the murder by blunt force and the aggravated robbery of Lillian Merrick in a
grocery store parking lot by the defendant, and the defendant’s attempted murder by
shooting of a park ranger in a park near the grocery store, about 20 minutes before
Merrick was discovered. The park ranger had noticed Hamblin’s blue green car in
the park before the shooting. When the police searched Hamblin’s car after his
arrest for the shooting, they discovered evidence connecting Hamblin to the offenses
against both victims. Id. at 153-154.
{¶54} When discussing these facts, the Hamblin court stated that
[t]he crimes of attempted murder and having a weapon while under a
disability and aggravated murder and aggravated robbery took place at
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two locations one-eighth of a mile apart. The two criminal acts
occurred less than twenty minutes of one another. The evidence
relating to the two crimes was interrelated. * * * The interlocked
evidence and the proximity in location and time of the two crimes
confirm that the offenses were part of a continuing course of criminal
conduct and joinder was proper under Crim.R. 8(A).
Id. at 158.
{¶55} In this case, the drug offense and the April 2016 sex offense against
R.J. occurred around the same time and at the same location—Jeffries’ house. In
addition to this link, the evidence of these two offenses was interrelated. The state
had to prove, to establish the elements of aggravated drug trafficking, that Jeffries
committed the trafficking offense “in the vicinity of a juvenile.” R.C. 2925.03(A)(2).
R.J. was a juvenile living in the home and a witness to the drug trafficking, and she
provided testimony to establish the aggravating element of the trafficking offense in
addition to testifying about the sex offenses.
{¶56} Further, the offenses were investigated at the same time, resulting in
additional overlapping witnesses. Having these shared witnesses testify at the same
trial resulted in a savings of judicial resources and diminished inconvenience to the
witnesses, two goals of joinder. See Schaim, 65 Ohio St. 3d at 58, 600 N.E.2d 476.
Considering the specific facts of this case, in light of the liberal rules of criminal
joinder, we hold that the initial joinder was proper under Crim.R. 8(A) because the
offenses were part of a course of criminal conduct. See Hamblin, 37 Ohio St. 3d at
158, 524 N.E.2d 476.
{¶57} Even if offenses are correctly joined under Crim.R. 8(A), a trial court
should order separate trials under Crim.R. 14 if it appears the failure to do so will
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prejudice the defendant’s rights. See State v. Gordon, Slip Opinion No. 2018-Ohio-
259, ¶ 20-21; Schaim at 58. To prevail on a claim of prejudicial joinder, the
defendant must affirmatively demonstrate that (1) his rights were prejudiced by the
failure to sever, (2) he provided the trial court with sufficient information to allow it
to weigh the benefits of joinder against the defendant’s right to a fair trial, and (3)
the trial court abused its discretion by refusing to sever the charges for trial. Schaim
at 59.
{¶58} Jeffries argues that he was unduly prejudiced by having the drug
offense tried with the sex offenses, claiming that the evidence of drug trafficking was
weak and the jury must have inferred guilt based on the evidence presented for the
sex offenses.
{¶59} When offenses are correctly joined, a defendant is not prejudiced by
the trial court’s denial of a motion for separate trials where the evidence for each
count would be admissible as evidence of “other acts” with respect to the other
counts, or where the evidence for each count is sufficiently separate and distinct so as
not to lead the jury into treating it as evidence of another. Schiam at 59; State v.
Roberts, 62 Ohio St. 2d 170, 175, 405 N.E.2d 247 (1980), cited in State v. Lott, 51
Ohio St. 3d 160, 163, 555 N.E.2d 293 (1990).
{¶60} To that end, the state argues that Jeffries was not prejudiced because
the evidence of each offense was separate and distinct, such that the jury could
separate and analyze the proof as to each and consider each offense independently,
as specifically instructed to do. The jury’s capability in this regard was reflected in
the acquittal on the sex offense involving K.P.
{¶61} Here, the evidence was simple, direct, and substantial, undermining
Jeffries’ assertion that the jury cumulated the evidence submitted against him and
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OHIO FIRST DISTRICT COURT OF APPEALS
did not base its finding of guilt upon evidence tied to the drug offense. Thus, we
hold that where the drug offense and the sex offenses were part of a course of
criminal conduct, and that the evidence of each offense was sufficiently separate and
distinct, the trial court did not err by denying Jeffries’ motion to sever. Accordingly,
we overrule the second assignment of error.
{¶62} Sufficiency and Weight of the Evidence. In his third and fourth
assignments of error, Jeffries argues that his convictions were not supported by
sufficient evidence and were against the manifest weight of the evidence.
“[S]ufficiency is a test of adequacy” and “is a question of law.” State v. Thompkins,
78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997). Evidence is sufficient to support a
conviction when it permits a reasonable trier of fact to conclude, when viewing the
evidence in the light most favorable to the state, that all the elements of the offense
have been proved beyond a reasonable doubt. See State v. Jenks, 61 Ohio St. 3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
{¶63} In deciding whether the conviction is against the manifest weight of
the evidence, this “court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether
in resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.” State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983),
quoted in Thompkins at 387.
{¶64} We note that issues concerning the weight given to the evidence and
the credibility of the witnesses are primarily for the finder of fact. State v. DeHass,
10 Ohio St. 2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
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OHIO FIRST DISTRICT COURT OF APPEALS
Aggravated Drug Trafficking
{¶65} The state proceeded against Jeffries on the aggravated-drug-trafficking
charge (count 1) on the theory that on or about April 14, 2016, Jeffries knowingly
prepared for distribution oxycodone, when he knew or had reasonable cause to
believe that the controlled substance was intended for sale or resale by himself or
another, in an amount equaling or exceeding bulk, and that he did so in the vicinity
of a school or a juvenile. See R.C. 2925.03(A)(2). The bulk amount for the Percocet
pills belonging to Jeffries and containing oxycodone was less than 16 pills. The state
proceeded against Jeffries as the principal of the offense or as a complicitor to Liz.
{¶66} Jeffries argues the state did not present any evidence that he had
prepared the pills for distribution. We disagree. The evidence presented by the
state, if believed, indicated that Jeffries obtained at least 85 Percocet pills, put a few
in a container marked “personal” to keep for his own use, and put the rest aside in
two other containers with the intent that those pills would be sold. Once sold, the
pills would be either crushed for regular customers who kept snorting straws in
Jeffries’ home, or placed in a miniature zip-lock like bag.
{¶67} The evidence also showed that Jeffries was engaged in and regularly
dealt in the business of drug sales for profit. This included testimony from Detective
Carter concerning the pattern of vehicle traffic outside the home, R.J.’s and M.J.’s
testimony concerning drug transactions in the home, Jeffries’ text messages and
recorded phone call conversations, and Jeffries’ testimony at trial that he sold drugs.
{¶68} From this set of facts, the jury reasonably could have inferred that
Jeffries was preparing the pills in an amount equaling or exceeding bulk for
distribution and sale, or that he was complicit in Liz’s commission of the offense.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶69} Our review of the record convinces us that the evidence was not just
sufficient, but overwhelming, and that the jury did not lose its way in its assessment
of the weight and credibility of this evidence when finding Jeffries guilty of
aggravated drug trafficking.
Sex Offenses
{¶70} Jeffries was convicted of several sex offenses related to his daughter
R.J. This included rape in violation of R.C. 2907.02(A)(2), occurring when she was
14 years old (count 2), rape in violation of R.C. 2907.02(A)(2), occurring when she
was 13 years old (count 3), GSI in violation of R.C. 2907.05(A)(1), occurring when
she was 13 years old (count 4), rape in violation of R.C. 2907.02(A)(1)(b), occurring
when she was 11 years old (count 5), GSI in violation of R.C. 2907.05(A)(4),
occurring when she was 11 years old (count 6), and GSI in violation of R.C.
2907.05(A)(5), occurring when she was 9 years old (count 7).
{¶71} R.J. testified to the detailed incidents of rape and GSI that occurred on
four separate occasions between 2010 and 2016. Her unequivocal testimony was
corroborated by other evidence, including incriminating text messages sent to her
from Jeffries, as well as Jeffries’ statements to the police and M.J.’s testimony.
{¶72} Jeffries generally challenges the state’s proof with respect to all the
sex offenses, citing the lack of “physical” evidence such as DNA test results to
corroborate R.J.’s testimony. But the state is not required to present corroborating
DNA test results or other corroborating physical evidence to meet its burden of
proof, even in a rape case. See State v. Lukacs, 188 Ohio App. 3d 597, 2010-Ohio-
2364, 936 N.E.2d 506, ¶ 39 (1st Dist.). See also State v. Nix, 1st Dist. Hamilton No.
C-030696, 2004-Ohio-5502, ¶ 67. Our review of the record shows the state easily
met the test of sufficiency with respect to the sex offenses.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶73} Jeffries argues also that his testimony denying the conduct was more
credible than the accusatory testimony of R.J. and M.J. In support of his conclusory
attack on the credibility of these witnesses, he cites only one instance involving their
testimony. This related to circumstances surrounding R.J.’s disclosure of the abuse
to M.J. on April 13. M.J. testified that when she walked into R.J.’s room that
evening, R.J. was unusually withdrawn and “upset,” “just staring at her phone,”
which caused M.J. to ask her what was wrong. According to M.J., R.J. then wrote
down what her father had done to her and then they talked about it. R.J., however,
testified that she disclosed the abuse by showing M.J. the text messages from her
father on her cell phone.
{¶74} Although the sisters’ testimony was not identical on the issue of the
disclosure, it was generally consistent, as both R.J. and M.J. recalled that the initial
disclosure was nonverbal. The jury was free to judge the credibility of R.J. and M.J.,
and we cannot say that it lost its way in its assessment of the weight and credibility of
the evidence. This evidence included Jeffries’ implausible explanation for the text
messages he sent to R.J. containing the words “inspire me” and “air dry.” Ultimately,
Jeffries’ sufficiency and weight-of-the-evidence challenges are unfounded, and his
third and fourth assignments of error are overruled.
{¶75} Ineffective Assistance of Counsel. In his fifth assignment of error,
Jeffries claims he was denied the effective assistance of counsel because counsel did
not call a DNA expert to testify as to the results of the DNA testing on items
recovered from R.J.’s room. At trial, the evidence showed that items were taken for
testing, but no test results were offered or admitted into evidence.
{¶76} To establish a claim of ineffective assistance of counsel, Jeffries must
show that counsel’s performance was deficient and that the deficient performance
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OHIO FIRST DISTRICT COURT OF APPEALS
prejudiced him. State v. Jackson, 107 Ohio St. 3d 53, 2005-Ohio-5981, 836 N.E.2d
1173, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). Prejudice to the defendant results when there is a reasonable probability
that, but for counsel’s unprofessional error, the result of the trial would have been
different. State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989), paragraph
three of the syllabus.
{¶77} When reviewing an ineffective-assistance-of-counsel claim, “a court
need not determine whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged deficiencies.”
Bradley at 143, citing Strickland at 697. Here, Jeffries has failed to show any
prejudice.
{¶78} Jeffries claims counsel was ineffective for not presenting an expert
witness to testify as to the DNA test results, but there is nothing in the record from
which we can determine that such testimony would have been favorable to Jeffries
and caused the outcome of the trial to be different. The prosecutor suggested that
the laboratory technician who performed the testing would have testified, based on
the results, “[I] can’t say it’s his [DNA] and [I] can’t say its not his [DNA].” But we
do not know what any expert would have said about the test results.
{¶79} Similarly, Jeffries’ claim fails to the extent he is additionally arguing
counsel was ineffective for not hiring an expert to “separately examine” the items
recovered from R.J.’s room. Nothing in our record shows that additional testing
would have been favorable to Jeffries and would have altered the outcome of the
trial. Accordingly, we overrule the fifth assignment of error.
{¶80} Consecutive Sentence for Drug Offense. Jeffries sixth assignment of
error challenges his sentence. Jeffries does not attack the length of any sentence
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OHIO FIRST DISTRICT COURT OF APPEALS
imposed. He argues only the trial court erred by ordering that he serve the sentence
for the drug offense consecutively to the sex-offense sentences.
{¶81} When, as here, the trial court exercises its discretion to impose
consecutive sentences, it must make the consecutive-sentences findings set out in
R.C. 2929.14(C)(4), and those findings must be made at the sentencing hearing and
incorporated into the sentencing entry. State v. Bonnell, 140 Ohio St. 3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, syllabus. Jeffries first contends that the trial court failed
to comply with the requirements of R.C. 2929.14(C)(4) because it failed to make
findings with respect to the drug offense. But our review of the record shows the trial
court made the requisite consecutive-sentencing findings for “all” the offenses at the
sentencing hearing and then incorporated those findings into the sentencing entry,
as required by Bonnell.
{¶82} Next Jeffries contends that the record could not support a finding that
consecutive sentences were proportionate to the seriousness of the offender’s
conduct, the finding set forth in R.C. 2929.14(C)(4). According to Jeffries, there was
no evidence of a “high-budget” drug-trafficking operation, as the police did not
recover “large stacks of cash” or “flashy jewelry.” But these facts were only part of
the facts the trial court considered in determining whether to impose a consecutive
sentence for the drug-trafficking operation that Jeffries ran out of the family
residence.
{¶83} Under these circumstances, we cannot clearly and convincingly find
that the record does not support the court’s consecutive-sentencing findings or that
the imposition of the consecutive sentence was contrary to law. See R.C.
2953.08(G)(2); State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).
Thus, we overrule the sixth assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶84} Accordingly, the judgment of the trial court is affirmed.
Judgment affirmed.
M OCK , P.J., and Z AYAS , J., concur.
Please note:
The court has recorded its own entry this date.
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