State v. Short , 2011 Ohio 5245 ( 2011 )

[Cite as State v. Short, 2011-Ohio-5245.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-100552
TRIAL NO. B-1000481
Plaintiff-Appellee, :
O P I N I O N.
vs. :
PAUL SHORT, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 14, 2011
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Elizabeth E. Agar, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
Per curiam.
{¶1} Defendant-appellant Paul Short was indicted on eight counts for sexual-
abuse crimes that occurred approximately twenty years ago against M.M., who was, at
that time, a young boy entering his teenage years. The charges included single counts of
rape and corruption of a minor, two counts of sexual battery, and four counts of gross
sexual imposition.
{¶2} The state filed an intent to use evidence, and a hearing was held on June
7, 2010. A jury trial began on June 29, 2010. The jury found Short guilty of sexual
battery and two counts of gross sexual imposition. The jury was undecided on one count
of corruption of a minor, but it found Short not guilty of the remaining three charges.
{¶3} Short was sentenced under the law that existed at the time of the crimes
to a two-year prison term for each offense, to be served consecutively. On appeal, he
raises three assignments of error. Finding none of his assignments of error meritorious,
we affirm the judgment of the trial court.
I. Other-Acts Evidence
{¶4} In his first assignment of error, Short argues that the trial court erred
in permitting the state to introduce evidence of other bad acts wholly unrelated to the
indicted charges. The state argues, on the other hand, that testimony from D.E., J.R.,
and K.P. was admissible under R.C. 2907.02(D), R.C. 2945.59, and Evid.R. 404(B) to
show Short’s motive and intent as well as his modus operandi. We agree with the state.
{¶5} R.C. 2907.02(D) provides that evidence of specific instances of a
defendant’s sexual activity, otherwise inadmissible, may be properly admitted during a
rape trial when the court finds that “the evidence is material to a fact at issue in the case
and that the inflammatory or prejudicial nature does not outweigh its probative value.”
2
OHIO FIRST DISTRICT COURT OF APPEALS
We will not disturb “the evidentiary determination of a trial court under R.C.
2907.02(D)” absent a showing of an abuse of discretion which amounts to prejudicial
error. See State v. Love (June 4, 1997), 1st Dist. No. C-960499. We utilize the same
standard when reviewing the admissibility of evidence pursuant to R.C. 2945.59 and
Evid.R.404(B). Id.{¶6} Here, evidence of Short’s interactions with young athletic boys from
Cincinnati’s west side—by first befriending them at a school playground or a school
sporting event, then taking them to professional sporting events, buying them gifts,
inviting them to various homes where he lived and encouraging them to enjoy the hot
tub, video games, and large screen television in his basement, and then introducing
them to alcohol, pornography, and sexual devices—all showed a pattern or sequence of
events that Short used to gradually build trust with the boys before sexual abusing them.
The boys testified that after they became comfortable with Short, he would “playfully”
touch his penis and theirs, encourage them to engage in mutual masturbation, and then
move on to oral sex and/or anal sex with them.
{¶7} This evidence, which outlined a formula for grooming the young boys
into sexual partners, was relevant to show Short’s motive and intent, as well as his
modus operandi, and was, therefore, admissible under Evid.R. 404(B) and R.C. 2945.59.
See State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180, syllabus; State v.
Shedrick (1991), 61 Ohio St.3d 331, 338, 574 N.E.2d 1065; State v. Curry (1975), 43 Ohio
St.2d 66, 330 N.E.2d 720; State v. Love, supra; State v. Liddle, 9th Dist. No. 23287,
2007-Ohio-1820, ¶57; State v. Ristich, 9th Dist. No. 21701, 2004-Ohio-3086, ¶24.
{¶8} Furthermore, the trial court instructed the jury that this other-acts
evidence “was received only for a limited purpose.” The court told the jury that it could
not consider the evidence to prove character or that a person “acted in conformity with
3
OHIO FIRST DISTRICT COURT OF APPEALS
that character.” Thus, the jury was properly instructed in its use. The jury’s verdicts of
acquittal on three counts, and its failure to reach a verdict on the fourth count, also
undercuts Short’s argument that the jury was so inflamed by this other-acts evidence
that its verdicts were rendered solely upon passion or prejudice. As a result, we overrule
his first assignment of error.
II. The Indictment
{¶9} In his second assignment of error, Short contends that the trial court
erred to his prejudice when it permitted the state to allege multiple undifferentiated acts
in a single charge in the indictment. We disagree.
{¶10} In State v. Lukacs, 188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d
506, ¶42, this court recognized the unique nature of child sex abuse cases by holding
that “[p]recise dates and times are not essential elements of offenses, and the failure to
provide them is not fatal to the indictment. ‘[L]arge time windows in the context of child
abuse prosecutions are not in conflict with constitutional notice requirements.’ ” We
stated that when a child is victimized over an extended period of time, an indictment
may allege criminal conduct that extends over a range of dates. This is particularly so
when the defendant does “not raise a date-specific defense, such as an alibi defense.” Id.
at ¶50. Because Lukac’s defense was that the abuse had never occurred, “Lukacs was not
prejudiced by the state’s failure to allege more specific dates.” Id.
{¶11} In this case, the separate counts of Short’s indictment involved separate
acts, not multiple counts involving the same act. The wording of each charge was
different and described distinguishable behavior that occurred during two different
spans of time. Furthermore, the state provided a bill of particulars that identified
specific sexual acts that had occurred over a period of time beginning when M.M. was 12
years old. Based upon our review of the record, we conclude that Short had notice of the
4
OHIO FIRST DISTRICT COURT OF APPEALS
acts alleged, the locations where they occurred, and the context in which they were
carried out.
{¶12} At trial, M.M. testified to the details of multiple sexual acts that occurred
in the bedroom at M.M.’s home and at various locations in Short’s homes—including the
basement, Short’s bedroom, and a hot tub—over specific time periods. M.M.
distinguished between various scenarios where Short had performed oral sex on him
and had asked him to reciprocate, where Short had masturbated M.M. and had asked
M.M. to reciprocate, and where Short had attempted anal sex. M.M. testified to being
intoxicated from alcohol supplied by Short on numerous occasions, after which they had
engaged in various sexual acts.
{¶13} Short never denied spending time with M.M. Instead, he confirmed
many of the details M.M. had testified to, with the exception of any sexual encounters
prior to M.M.’s nineteenth birthday. Because the record reveals that Short had notice of
the specific allegations against him, we cannot conclude that he was denied due process
through a duplicitous indictment. As a result, we overrule his second assignment of
error.
III. Sufficiency and Manifest Weight of the Evidence
{¶14} In his third assignment of error, Short argues the evidence supporting
his convictions was insufficient, as a matter of law, to establish his guilt beyond a
reasonable doubt, and, therefore, the trial court should have granted his Crim.R. 29
motions for acquittal. He further contends that his convictions were not supported
by the weight of the evidence.
{¶15} But after reviewing the evidence presented at trial, in a light most
favorable to the prosecution, we conclude that a rational trier of fact could have found
that all the essential elements of sexual battery and gross sexual imposition had been
5
OHIO FIRST DISTRICT COURT OF APPEALS
proven beyond a reasonable doubt. See State v. Jenks (1991), 61 Ohio St.3d 259, 259-
260, 574 N.E.2d 492, paragraph two of the syllabus. Furthermore, we conclude that the
trial court did not err in denying Short’s motions for judgment of acquittal on the
charges, where the evidence was such that reasonable minds could have reached
differing conclusions about whether Short had committed each offense. See State v.
Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d 184, syllabus.
{¶16} Moreover, after reviewing the entire record, weighing the evidence and
all reasonable inferences, and considering the credibility of the witnesses, we cannot
conclude that the jury lost its way and created such a manifest miscarriage of justice that
we must reverse Short’s convictions and order a new trial. See State v. Thompkins, 78
Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. As a result, we overrule his third
assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
DINKELACKER, P.J., Sundermann and HENDON, J., concur.
Please Note:
The court has recorded its own entry this date.
6