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State v. Plott

Court of Appeals of Ohio, Third District, Seneca

January 9, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
RAYMOND F. PLOTT, DEFENDANT-APPELLANT. STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
RAYMOND F. PLOTT, DEFENDANT-APPELLANT.

         Appeals from Seneca County Common Pleas Court Trial Court Nos. 13-CR-0142, 15 CR 0097

         Judgments Affirmed

          Joseph C. Patituce for Appellant

          Derek W. DeVine for Appellee

          SHAW, J.

         {¶1} Defendant-appellant, Raymond Plott ("Plott"), brings these appeals from the October 30, 2015, judgments of the Seneca County Common Pleas Court sentencing him to an aggregate 10-year prison term after he was found guilty in a jury trial of one count of Rape in violation of R.C. 2907.02(A)(2), a felony of the first degree, one count of Domestic Violence in violation of R.C. 2919.25(A), (D)(4), a felony of the third degree due to Plott having two prior Domestic Violence convictions, and one count of Abduction in violation of R.C. 2905.02(A)(2), a felony of the third degree. On appeal, Plott argues that (1) the State improperly introduced evidence of his pre-arrest silence; (2) the trial court erred in denying his motions for acquittal; (3) the State improperly introduced opinion testimony; (4) the State improperly impeached its own witness; (5) the trial court erred in allowing a witness to testify as a strangulation expert; (6) the trial court improperly commented that his counsel was dishonest; (7) the trial court erred in granting the State's "Motion for Consolidation" and denying his motion to sever; (8) his convictions are against the manifest weight of the evidence; and (9) the State committed prosecutorial misconduct.

         Relevant Facts and Procedural History

         {¶2} On August 29, 2013, the Seneca County Grand Jury indicted Plott on two counts of Rape in violation of R.C. 2907.02(A)(2), both felonies of the first degree.[1] The charges stemmed from allegations that Plott had sexually assaulted K.D. at Plott's residence on or about July 6, 2013.

         {¶3} Following a mistrial on those charges, the Seneca County Grand Jury issued a second indictment against Plott alleging one count of Domestic Violence in violation of R.C. 2919.25(A), (D)(4), a felony of the third degree, and one count of Abduction in violation of R.C. 2905.02(A)(2), a felony of the third degree.[2] The charges stemmed from allegations that Plott had also assaulted his fiancé, Julia Mele, on the same night Plott had allegedly raped K.D.

         {¶4} On June 8, 2015, the State moved to consolidate the two cases for trial. That same day, after Plott was arraigned on the new charges, a hearing was held on the State's motion, where the following exchange occurred:

The Court: Now, there is also a motion for consolidation of cases for purposes of jury trial. That being 13 CR 0142 and 15 CR 0097. Court has your motion. Anything further?
[The Prosecutor]: No, Your Honor.
The Court: Any objection?
[Defense Counsel]: No, Your Honor.
The Court: Thank you. The Court grants the motion to consolidate for purposes of trial, and both cases will be tried on the same date and time * * *.

June 8, 2015 Hrg., p. 8-9.

         {¶5} On September 9, 2015, just five days before trial, Plott filed a motion to sever, arguing that joinder was improper under the Criminal Rules of Procedure and he was prejudiced thereby.

         {¶6} On the morning of trial, a hearing was held on Plott's motion to sever and Plott's motion was ultimately denied. The case then proceeded to trial, where the following relevant evidence was presented.

         {¶7} Lieutenant Jason Windsor of the Tiffin Police Department was the first witness to testify on behalf of the State. He testified that on July 7, 2013, he was called into work to investigate an alleged sexual assault at Lot 107 of the Highland Trailer Court ("the residence"). He stated that through his investigation, he learned that Plott, Mele, and K.D., the alleged victim, lived at the residence. He stated that he spoke with K.D. at the hospital, where he obtained her statement and photographed her injuries. He added that he later obtained a warrant to search the residence.

         {¶8} Lieutenant Windsor testified that he also interviewed Mele after learning that she had been assaulted by Plott that evening. He stated that he observed "some prominent bruising to [Mele's] neck." Trial Tr., p. 153. He stated that the bruising was on the left side of her neck, going slightly to the rear. Lieutenant Windsor testified that he photographed Mele's injuries and those photographs were later introduced into evidence.

          {¶9} Lieutenant Windsor testified that Mele was not cooperative with the investigation insofar as there was an allegation that she was trying to get K.D. to change her statement. He added that "victims of domestic violence are known to frequently recant their statements to protect their abusers." Trial Tr., p. 152.

         {¶10} Finally, Lieutenant Windsor testified that he spoke with Plott over the phone the day after the alleged assaults. He stated, "[Plott] said he was coming to turn himself in and that he wasn't going to talk to me without his attorney." Id. at p. 158. He added that he later obtained a warrant to collect Plott's DNA. At this point in the trial the stipulations were read to the jury that had been reached between the parties. It was stipulated to a reasonable degree of scientific certainty that a semen sample taken from a vaginal swab of K.D. matched Plott's DNA. It was also stipulated that Plott had two prior convictions for Domestic Violence.

         {¶11} On cross-examination, Lieutenant Windsor was asked about the evidence linking Plott to Mele's injuries. Defense counsel asked whether Lieutenant Windsor had any evidence that Plott attempted to strangle Mele and he responded that he had Mele's statement and the injuries to K.D.'s neck.

         {¶12} Detective Rachel Nye of the Tiffin Police Department was the second witness to testify on behalf of the State. Detective Nye testified that on July 7, 2013, she was called into work to assist Lieutenant Windsor with his investigation of an alleged rape. She stated that she spoke with K.D. at the hospital and took photographs of K.D.'s bruised arms and legs. She added that she also picked up K.D.'s rape kit from the hospital and took it to the police station.

         {¶13} Megan Homan, a Registered Nurse and Sexual Assault Nurse Examiner, was the third witness to testify on behalf of the State. She testified that on July 7, 2013, she performed a sexual assault examination of K.D., which included documenting the bruises on K.D.'s body, specifically on K.D.'s arms and legs, and swabbing K.D.'s body for possible DNA. Homan testified that during the examination K.D. was "quiet, " and "[a]t times she was tearful." Trial Tr., p. 197. Homan's report was introduced into evidence.

         {¶14} On cross-examination, Homan testified that K.D. informed her during the examination that Plott had penetrated her once with his genitals. The statement that Homan took from K.D. indicated that Plott had initially digitally penetrated K.D. and then later turned her on her side and penetrated her with his genitals.

         {¶15} Jody Noon, a friend of Mele's, was the fourth witness to testify on behalf of the State. Noon testified that she was with Mele and Plott at the Eagles, a local bar, on July 6, 2013. Noon testified that Plott was told to leave the bar that evening because he was getting loud. Noon testified that before Mele and Plott left the bar, Noon did not observe any marks on Mele's neck.

         {¶16} Noon testified that Mele called her later in the evening, "crying and upset, " stating that Mele needed a ride from Plott's residence because Plott had "hurt her, " and that it was "urgen[t]." Trial Tr., p. 241. Noon testified that she went and picked up Mele and that when she did, she noticed marks on Mele's neck that she had not seen earlier that night.

         {¶17} On cross-examination, Noon testified that Mele told her that she and Plott had been at the Eagles earlier that day for approximately 12 hours. Noon testified that she left Mele at the Eagles around 11:45 p.m. but met Mele back at the Eagles the following afternoon and Noon eventually took Mele to the police station.

         {¶18} On re-direct, Noon testified that she had offered to take Mele to the police station when she picked Mele up from the residence on the night of the alleged incident, but Mele declined.

         {¶19} On re-cross, Noon stated that Mele told her the following afternoon that the police were calling her, but she was not going to answer.

         {¶20} On re-direct, she stated that Mele had found out that Plott had done something wrong.

         {¶21} K.D. was the fifth witness to testify on behalf of the State. K.D. testified that she was originally from Carey, Ohio but had been living in Kentucky with her fiancé. She stated that in May of 2013 she left Kentucky and moved in with Mele, and Mele's fiancé, Plott. K.D. testified that Mele was a "real good" friend of hers and that she had been for "a few years." Trial Tr., p. 257.

         {¶22} K.D. testified that on the evening of July 6, 2013, she was alone at the residence she shared with Plott and Mele. K.D. testified that she had taken medication for sleep and anxiety when Plott and Mele arrived back at the residence. She stated that Plott appeared "very aggravated, agitated. Just raging." Id. at p. 259. She stated that as Plott and Mele entered the residence, Plott kicked, pushed, or shoved Mele through the doorway. She explained, "[Plott] kept telling her to get up and he kept kicking her and telling her to get up. And she was saying she couldn't." Id. She testified specifically that Plott choked Mele and pulled her hair. K.D. added that when she picked up her phone, Plott threatened "to get [her], too" and eventually took her phone. Id.

         {¶23} K.D. testified that she went to her bedroom, but Plott followed her and cornered her between her nightstand and her dresser. She explained, "[Plott] was telling me that he was going to kill me and that he was going to wrap my body in plastic and throw it in the river." Id. at p. 262. She testified that Plott asked her to come up with reasons why she deserved to live and she told him that she had children and grandchildren and had taken care of her dying mother. She added that Plott hit her face and arms and knocked her glasses off of her face.

         {¶24} K.D. testified that Mele eventually came into the bedroom too but dropped her purse, causing its contents to fall out. K.D. testified that Plott "made [Mele] get down on all fours and made her crawl." Id. at p. 262. K.D. added that Plott was also "making [Mele] like kiss [her] feet and things * * *." Id. at p. 263.

         {¶25} K.D. testified that Plott eventually calmed down and went into the living room, but she did not leave the residence because she had taken medications that prevented her from driving and Mele could not drive because she had been drinking all day. K.D. added that she also did not want to let Plott see her because she "was scared of what he would do." Id. at p. 264.

         {¶26} K.D. testified that she went to bed but later awoke to Plott standing next to her. She testified that Plott told her that Mele had left the residence and that they were alone. K.D. explained that Plott came in and out of her room "three or four" times, trying to convince her to engage in sexual activities. Trial Tr., p. 267. She stated that Plott told her that he would leave if she let him do it once. K.D. testified that she told Plott no. K.D. stated that after the third or fourth time, Plott said "I guess I'll have to rape you." Id. at p. 268.

         {¶27} K.D. testified that Plott pulled the covers off of her, climbed on top of her, penetrated her with his genitals, and ejaculated. K.D. testified that she "plead[ed] over and over to please stop." Id. at p. 269. She stated that when he finished, he left her bedroom and went back to the living room. She added that Plott came back to her room later and stated that he wanted to have sex with her again. She stated, "I still asked him not to, and he pulled my body to the side of the bed and penetrated me that way with me on my side." Id. at p. 270. K.D. testified that Plott told her not to say anything so that when Mele was not home they could "continue to do things." Id. . at p. 271.

         {¶28} On cross-examination, K.D. testified that the night before the alleged rapes she had gone to a bar with Mele and Noon. She stated that Mele and Noon wanted to stay until the bar closed, but she did not want to so she left and stayed the night at her friend's house. She added that she went back to the residence the next morning after going to the Eagles and picking up a house key from Mele.

         {¶29} K.D. reiterated that she took several sleeping medications around 9:00 p.m. on the night of the alleged sexual assaults. She added that the medications prevent her from driving but do not impair her overall ability to function. K.D. stated that the rapes occurred in the early morning hours within 30 minutes of each other and that Plott ejaculated both times. She added that she allowed Plott to kiss and touch her when he was in her room because he told her that he would leave if she did.

         {¶30} Mele was the sixth witness to testify on behalf of the State. She testified that she and Plott were engaged and the two lived together at the residence, along with K.D. She testified that she remembered leaving the bar with Plott at some point on the evening of July 6, 2013 and going back to the residence, where K.D. was. She added, however, that she did not remember how she got the marks on her neck. She stated, "I, I know I fell the day before, but I don't know if it was from that or if anything happened to me that night. I don't know." Id. at p. 368. Mele indicated that she had fallen on her knees into a "bush thing, " and it was possible that she received the injuries to her neck that way on the day prior to the alleged incident. Id. at p. 368-369.

         {¶31} Mele initially testified that she did not remember her interview with Lieutenant Windsor. She explained, "I remember being there. I don't remember our conversation. I know he was asking me questions, but what I was saying, I don't know. Like I said, I was still drunk then, too." Id. at p. 369. Then, the following colloquy took place:

[The Prosecutor]: If you had an opportunity to view the conversation today, would that refresh your recollection?
[Mele]: It probably will not because it's just showing me what I said. I'm not going to remember without seeing it, I'm not going to remember it. I don't think it's going to bring back my memory of what I said. What I said is what I said. It might have happened at that point, but as time goes by, two years later, I'm thinking I don't remember what actually happened.
[The Prosecutor]: And that's not, that's okay, [Mele]. That's not what I'm asking you. I'm asking you, you indicated you don't remember what you said?
[Mele]: I don't remember what I said. I don't remember.
[The Prosecutor]: To Lieutenant Windsor?
[Mele]: No.
[The Prosecutor]: Okay. You're testifying in front of the jury that actually viewing your conversation and a video recording of your conversation with Lieutenant Windsor, seeing that, that would not help you remember what you said to Lieutenant Windsor?
[Mele]: It would probably help me - - I would see what I said, but I don't know if it's what I remember what I said. You know what I'm - - I'm trying to explain this better. But showing me the video is only going to show me what I said. But without the video, I'm not going to, I wouldn't remember what I said.
[The Prosecutor]: Right. So the video will help you know what you said? I just want to make sure we're clear.
[Mele]: Sure would, seeing it.

Id. at p. 369-371.

         {¶32} Thereafter, the jury was excused, and the State played the video of Mele's interview with Lieutenant Windsor. After the video was played, the jury returned, and the prosecutor asked whether Mele's recollection was refreshed. Mele equivocated, first stating that she still did not "remember our interview[.]" Id. at p. 410. However, she would go on to waver between saying she did not remember the interview or what happened and saying that she remembered certain "parts of it" and certain events from the night in question, just nothing related to whether Plott actually harmed her. Id.

         {¶33} As to the incident in question, Mele testified that she remembered some things, such as being on the floor of the residence and K.D. "giggling" on the couch at one point. Id. at p. 415. Mele emphasized that she did not know how she got the marks on her neck. She testified, "I know I fell, so I can't, I can't say 100 percent [Plott] did it and I can't say 100 percent he didn't do it." Id. at p. 416.

         {¶34} On cross-examination, Mele testified that the day before the incident she had gone out to a bar with K.D. and Noon. She stated that K.D. and Noon eventually left the bar, but she stayed until closing. She added that she stayed at her friends' house that night and met Plott the following morning at the Eagles where she drank all day.

         {¶35} She testified that she did not remember whether she and Plott were arguing about K.D., but she remembered wanting to leave the residence. She added that K.D. must have known that she was leaving the residence because Mele was getting ready to go. Mele stated that Plott never prevented her from leaving the residence or told her that she had to stay.

         {¶36} Mele testified that she did not remember whether Plott said he was going to kill her or whether he choked her. She further testified that she did not remember Plott hitting K.D. She stated that she thought she saw Plott hit K.D. but it was only a shadow, so Mele did not directly observe any actual strikes. She stated that Plott was very upset with K.D. and was yelling at her to leave, but K.D. was on the couch giggling and laughing with Plott later that night before Mele left.

         {¶37} On re-direct Mele testified that she did remember Plott asking K.D. what "good" she had done in life. Id. at p. 429.

         {¶38} Ruth Downing was the final witness to testify on behalf of the State. After being recognized as an expert on the identification and effects of strangulation, she testified that Mele's injuries to her neck were consistent with a strangulation injury to a reasonable degree of scientific certainty.

         {¶39} Upon the conclusion of Downing's testimony, the State rested. At that time, Plott renewed all previous motions and objections, which the trial court denied and overruled, respectively. Plott also moved for an acquittal on all charges pursuant to Crim.R. 29, which the trial court denied.

         {¶40} Plott then testified as the defense's sole witness. He testified that he and Mele were not engaged and had not recently had any sexual relationship. He stated that they were in a relationship more than one year ago, but they were now just friends.

         {¶41} Plott testified that the night before the alleged assaults occurred, Mele and Noon went out to a bar. He stated that at 3:00 a.m., Mele called him and asked him to come pick her up because K.D. had left her at a bar. He stated that he told Mele that he could not pick her up until later that morning.

         {¶42} Plott testified that when he saw Mele the next day, he noticed a few marks on her neck. He stated that he and Mele got into an argument about what had happened to her but Mele could not remember. He added that he was upset with K.D. for abandoning Mele.

          {¶43} Plott testified that he and Mele eventually went to the Eagles where they stayed until about 8:30 p.m. He added that he "had a buzz on." Id. at p. 482. He testified that when they got back to the residence, he and Mele continued to argue. He stated that Mele was concerned that he was going to make K.D. leave the residence immediately. He added that during their argument, he never pushed, kicked, or choked Mele. He testified that after they finished arguing, Mele left. He added that around this time, K.D. was seated on the couch "just making jokes and kidding around." Id. . at p. 486.

         {¶44} Plott testified that after Mele left, he went to bed but later awoke to make some dinner. He explained that after he finished eating, K.D. "came up behind [him] and put her arms around [him] and started kissing on [his] neck and stuff." Id. at p. 491. He stated that they ended up back in her bedroom where they had consensual sex. He added that he never forced himself on her or threatened her in any way.

         {¶45} Plott admitted that he had previously pleaded guilty to two domestic violence charges because he was guilty of those offenses but stated that he did not enter pleas of guilty in these cases because he did not commit the offenses, "plain and simple." Id. . at p. 477.

          {¶46} On cross-examination, Plott stated that Mele was his girlfriend insofar as he had not been with anyone since her, and he cared for her. He added that they did not have a sexual relationship and did not sleep in the same bed.

         {¶47} Upon the conclusion of Plott's testimony, the defense rested, and Plott renewed all previous motions and objections, which the trial court denied and overruled, respectively. The case was then submitted to the jury.

         {¶48} Ultimately the jury found Plott guilty of one count of Rape, Domestic Violence, and Abduction. He was acquitted of the second count of Rape.

         {¶49} On October 26, 2015, Plott's sentencing hearing was held. At the hearing it was determined that the Domestic Violence and Abduction charges should merge for purposes of sentencing, and the State elected to proceed to sentence on the Domestic Violence charge. Plott was ultimately ordered to serve 8 years in prison on the Rape conviction and 24 months in prison on the Domestic Violence conviction, consecutive to each other, for an aggregate 10-year prison term. Judgment Entries memorializing Plott's sentences were filed on October 30, 2015. It is from these judgments that Plott appeals, presenting the following assignments of error for our review.

Assignment of Error No. I
THE STATE OF OHIO IMPROPERLY INTRODUCED APPELLANT'S PRE-ARREST SILENCE AS SUBSTANTIVE EVIDENCE OF GUILT IN VIOLATION OF APPELLANT'S RIGHT TO REMAIN SILENT UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATE'S CONSTITUTION.
Assignment of Error No. II
THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIM.R. 29 WHEN THE STATE OF OHIO FAILED TO PRESENT SUFFICIENT EVIDENCE THAT APPELLANT WAS GUILTY OF DOMESTIC VIOLENCE AND ABDUCTION.
Assignment of Error No. III
THE STATE OF OHIO IMPROPERLY, OVER THE OBJECTION OF COUNSEL, INTRODUCED OPINION TESTIMONY FROM DETECTIVE JASON WINDSOR TO THE PREJUDICE OF APPELLANT AND DEPRIVED HIM OF HIS RIGHT TO A FAIR TRIAL.
Assignment of Error No. IV
THE STATE OF OHIO IMPROPERLY IMPEACHED ITS OWN WITNESS WITH A PRIOR OUT OF COURT STATEMENT TO THE PREJUDICE OF APPELLANT DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL.
Assignment of Error No. V
THE TRIAL COURT IMPROPERLY PERMITTED A WITNESS TO TESTIFY AS A STRANGULATION EXPERT IN VIOLATION OF EVID. R. 702.
Assignment of Error No. VI
THE TRIAL COURT IMPROPERLY INTERJECTED ITS OPINION THAT APPELLANT'S COUNSEL WAS NOT HONEST.
Assignment of Error No. VII
THE TRIAL COURT COMMITTED ERROR WHEN IT GRANTED THE STATE OF OHIO'S MOTION TO JOIN THE TWO SEPARATE CASES TOGETHER, AND IN THE ALTERNATIVE ERRED WHEN IT DENIED THE MOTION TO SEVER THE TWO CASES.
Assignment of Error No. VIII
APPELLANT'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. IX
THE STATE OF OHIO COMMITTED PROSECUTORIAL MISCONDUCT WHEN IT INTRODUCED TESTIMONY RELATING TO APPELLANT'S PRE-ARREST SILENCE.
Assignment of Error No. X
THE STATE OF OHIO COMMITTED PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENTS BY DENIGRATING OPPOSING COUNSEL AND THE DEFENSE.

         {¶50} For ease of discussion we elect to address some of Plott's assignments of error together, and out of the order in which they were raised.

         Assignment of Error No. VII

         {¶51} In his seventh assignment of error, Plott argues that the trial court erred in granting the State's "Motion for Consolidation" or, in the alternative, denying his motion to sever. Specifically, Plott argues that (1) joinder was improper under the Rules of Criminal Procedure and that (2) he was prejudiced insofar as the jury got to consider evidence of his prior domestic violence convictions when considering whether he raped K.D. We disagree.

         {¶52} Issues of joinder and severance are generally reviewed under an abuse of discretion standard. State v. Shook, 3d Dist. Logan No. 8-14-01, 2014-Ohio-3987, ¶ 22; State v. Bell, 3d Dist. Seneca No. 13-12-39, 2013-Ohio-1299, ¶ 27. A trial court will be found to have abused its discretion when its decision is contrary to law, unreasonable, not supported by the evidence, or grossly unsound. State v. Boles, 2d Dist. Montgomery No. 23037, 2010-Ohio-278, ¶ 18. When applying the abuse of discretion standard, a reviewing court may not simply substitute its judgment for that of the trial court. State v. Slappey, 3d Dist. Marion No. 9-12-58, 2013-Ohio-1939, ¶ 12.

         {¶53} However, as to the issue of joinder, Plott initially failed to object to the State's "Motion for Consolidation, " and therefore, he waived all but plain error. State v. Bump, 3d Dist. Logan No. 8-12-04, 2013-Ohio-1006, ¶ 81. To have plain error under Crim.R. 52(B), the error must be an "obvious" defect in the trial proceedings that affected the defendant's "substantial rights." State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Plain error is to be used "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. Further, plain error only exists where "but for the error, the outcome of the trial would clearly have been otherwise." State v. Biros, 78 Ohio St.3d 426, 436 (1997).

         {¶54} Under Crim.R. 13, a trial court may order two or more indictments to be tried together "if the offenses or the defendants could have been joined in a single indictment or information." Two or more offenses may be charged in the same indictment if they 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).

         {¶55} Nonetheless, a defendant may move to sever the indictments joined for trial if it appears that their joinder is prejudicial. Crim.R. 14. To prevail on a motion to sever, a defendant has the burden of demonstrating that

(1) his rights were prejudiced, (2) that at the time of the motion to sever he provided the trial court with sufficient information so that it could weigh the considerations favoring joinder against the defendant's right to a fair trial, and (3) that given the information provided to the court, it abused its discretion in refusing to separate the charges for trial.

State v. Schaim, 65 Ohio St.3d 51, 59 (1992). "When a defendant claims that he was prejudiced by the joinder of multiple offenses, a court must determine (1) whether evidence of the other crimes would be admissible even if the counts were severed, and (2) if not, whether the evidence of each crime is simple and distinct." Id.

         {¶56} A motion to sever is a pre-trial motion and subject to the time limitation contained in Crim.R. 12(D). Crim.R. 12(C)(5). Crim.R. 12(D) provides, "All pretrial motions * * * shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier" unless the court extends the time for pretrial motions based on the "interest of justice."

         {¶57} Courts have affirmed denials of motions to sever where defendants failed to file them in a timely fashion. See, e.g., State v. Bell, 3d Dist. Seneca No. 13-12-39, 2013-Ohio-1299, ¶ 30 (finding no abuse of discretion where motion to sever was untimely and defendant offered no legitimate reason for its untimeliness); State v. Montgomery, 2d Dist. Montgomery No. 22193, 2009-Ohio-1415, ¶ 17 (affirming denial of motion to sever where it was filed outside the time constraints of Crim.R. 12(D)); State v. Segines, 8th Dist. Cuyahoga No. 89915, 2008-Ohio-2041, ¶ 57.

         {¶58} Here, we cannot say that the trial court abused its discretion in denying Plott's motion to sever. Plott was arraigned on the charges of Domestic Violence and Abduction on June 8, 2015, at which time the trial court also granted the State's "Motion to Consolidate." Plott made no objection to joinder at that time. Rather, Plott filed his motion to sever on September 9, 2015, three months after the indictments were joined and five days before trial and offered no reason as to why his motion was untimely.

         {¶59} Likewise, we cannot say that the trial court erred in granting the State's "Motion to Consolidate." The State alleged that Plott assaulted Mele and K.D. at the residence on July 6, 2013. The assaults allegedly occurred within a few hours of each other, and K.D. witnessed Plott's assault on Mele. This could support a conclusion that the offenses were 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). Alternatively, the evidence related to each crime was separate and distinct and easily discernible by a jury.

         {¶60} For these reasons, we find that the trial court did not err in granting the State's "Motion to Consolidate" and denying Plott's motion to sever.[3] Accordingly, we overrule Plott's seventh assignment of error.

         Assignment ...


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