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State v. Hannah

Court of Appeals of Ohio, Fourth District, Highland

March 27, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
LEONARD HANNAH JR., Defendant-Appellant.

          Adam J. King, Hillsboro, Ohio, for Appellant.

          Anneka P. Collins, Highland County Prosecutor, and Molly Bolek, Highland County Assistant Prosecutor, Hillsboro, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          MATTHEW W. McFARLAND, JUDGE.

         {¶1} This is an appeal from a Highland County Common Pleas Court conviction and sentence imposed upon Appellant, Leonard Hannah, Jr., after a jury found him guilty of two counts of gross sexual imposition, both third degree felonies in violation of R.C. 2907.05(A)(4). On appeal, Appellant contends that 1) the trial court improperly amended the date of the offense in count two of the indictment to include a time frame outside of the time frame originally contemplated by the grand jury; and 2) his convictions are against the manifest weight of the evidence. Because we find no error or abuse of discretion on the part of the trial court in amending count two of the indictment, we find no merit to Appellant's first assignment of error and it is overruled. Further, as we cannot conclude that Appellant's convictions are against the manifest weight of the evidence, his second assignment of error is without merit and is also overruled. Accordingly, the judgment of the trial court is affirmed.

         FACTS

         {¶2} Appellant was indicted on two counts of gross sexual imposition, both third degree felonies in violation of R.C. 2907.05(A)(4), on May 3, 2016. The indictment alleged Appellant committed these offenses against A.W. and M.W., both daughters of a close friend of Appellant's, at a time when both of the children were under the age of thirteen years old. A review of the record reveals that Appellant had known the children's father for ten to fifteen years, frequently worked on vehicles with him at his house and regularly stayed the night at his house, usually sleeping in the living room recliner. A.W., M.W. and their two other siblings often watched movies with Appellant in the living room on those nights and sometimes fell asleep there.

         {¶3} The indictment specified that the date of the offense on count one of the indictment, which involved M.W., was "[b]eginning on or about January 1, 2010 and continuing through January 1, 2013[.]" The indictment specified that the date of the offense on count two, which involved A.W., was "[b]eginning on or about January 1, 2007 and continuing through January 1, 2008[.]" A bill of particulars was later filed, alleging as follows with regard to count one of the indictment:

"Date of Offense: Beginning on or about January 1, 2010 and continuing through January 1, 2013 * * *
M.W. reported that while living with her parents * * *, Defendant would come visit as he and M.W.'s father were good friends. M.W. reported that she fell asleep on the couch and woke up to Defendant touching her on the outside of [her] vagina. M.W. advised that Defendant then stopped touching her and went to her sister. M.W. advised that the last incident occurred when her and her sisters were watching a movie in the living room and they fell asleep. M.W. advised she was on the love seat and Defendant touched her on the outside of her vagina with his hand. M.W. advised this began when she was younger than 10 years old and the last time it occurred she was 11 or 12 years * * *. M. W. advised that her vagina hurt and stung when Defendant touched her. * * *."

         The bill of particulars further alleged as follows with respect to count two of the indictment:

"Date of Offense: Beginning on or about January 1, 2007 and continuing through January 1, 2008 * * *
A. W. reported that while living with her parents * * *, Defendant would come visit as he and A.W.'s father were good friends. A. W. advised that she was 10 or 11 years old when Defendant touched her. A. W. advised that Defendant came over with a movie to watch. A. W. and her sisters fell asleep in the living room; Defendant was also in the living room with the girls. A. W. advised she woke up because she felt pressure on her vagina. A. W. advised Defendant touched her vagina. A.W. advised she told her parents the next morning, but her father did not believe her."

         {¶4} Appellant pleaded not guilty to the charges and the matter proceeded to a jury trial on August 18, 2016. At trial, the State presented several witnesses, including A.W. and M.W. and both of their parents, Cecilia Freihofer, a forensic interviewer from Cincinnati Children's Hospital, and Detective Jennifer Swackhamer.[1] Appellant testified on his own behalf. The details of the testimony presented will be fully discussed below. At the close of the State's case, Appellant's counsel moved for acquittal on count two, arguing that the evidence presented by the State was not in accordance with the time period set forth in the indictment. The trial court discussed the testimony with counsel and then amended the date range in count two to "[beginning on or about January 1, 2007 and continuing to December 31, 2010, " to conform to the evidence presented. Appellant did not object to the amendment, request a continuance or subsequently request a new trial.

         {¶5} The jury ultimately found Appellant guilty of both counts of gross sexual imposition as charged in the indictment and Appellant was convicted and sentenced to fifty-four months on each count, to be served consecutively. It is from these convictions and sentences that Appellant now brings his appeal, setting forth two assignments of error for our review.

ASSIGNMENTS OF ERROR
"I. THE TRIAL COURT IMPROPERLY AMENDED THE DATE OF THE OFFENSE IN COUNT TWO OF THE INDICTMENT TO INCLUDE A TIME FRAME OUTSIDE OF THE TIME FRAME ORIGINALLY CONTEMPLATED BY THE GRAND JURY, AS COUNT TWO OF THE INDICTMENT INITIALLY ALLEGED THAT THE OFFENSE BEGAN ON OR ABOUT JANUARY 1, 2007 AND CONTINUED THROUGH JANUARY 1, 2008, HOWEVER, AFTER HEARING A.W.'S TESTIMONY, WHICH ALLEGED THAT THE OFFENSE OCCURRED BETWEEN 2008 AND 2010, THE TRIAL COURT AMENDED COUNT TWO OF THE INDICTMENT TO READ THAT THE OFFENSE BEGAN ON OR ABOUT JANUARY 1, 2007 AND CONTINUED THROUGH DECEMBER 31, 2010.
II. APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AS THE GREATER AMOUNT OF EVIDENCE PRESENTED AT TRIAL TENDED TO ESTABLISH THAT APPELLANT DID NOT HAVE ANY TYPE OF ...

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