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State v. Todd

Court of Appeals of Ohio, Third District, Hardin

June 19, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
THOMAS JOSEPH TODD, DEFENDANT-APPELLANT.

         Appeal from Hardin County Common Pleas Court Trial Court No. CRI 2016 2083

          Michael J. Short for Appellant

          Jason M. Miller for Appellee

          OPINION

          SHAW, J.

         {¶1} Defendant-appellant, Thomas Joseph Todd, appeals the November 8, 2016 judgment of the Hardin County Court of Common Pleas journalizing his conviction by a jury for four counts of Gross Sexual Imposition, in violation of R.C. 2907.05(A)(4), each a felony of the third degree, and one count of Disseminating Matter Harmful to Juveniles, in violation of R.C. 2907.31(A)(1), (F), a felony of the fourth degree, and sentencing him to a non-mandatory aggregate prison term of twelve years. On appeal, Todd assigns as error his claim that the jury's verdict convicting him of the offenses is against the manifest weight of the evidence, and his claim that the broad range of dates used by the prosecutor in the indictment and bill of particulars prejudiced the preparation of his defense.

         Procedural History

         {¶2} On June 20, 2016, the Hardin County Grand Jury returned a sixteen count indictment against Todd alleging that he committed nine counts of Gross Sexual Imposition involving sexual contact with a person less than thirteen years of age, in violation of R.C. 2907.05(A)(4), each a felony of the third degree, three counts of Attempted Rape of a person less than thirteen years old, in violation of R.C. 2923.02(A) and 2907.02(A)(1)(b), each a felony of the second degree and with the specification that Todd "was sixteen years of age or older at the time of the commission of the offense and that, had the offender completed the rape that was attempted, the offender would have been guilty of a violation of Division (A)(1)(b) of § 2907.02 of the Revised Code." See R.C. 2941.1418. The indictment also alleged that Todd committed one count of Contributing to the Unruliness of a Child, in violation of R.C. 2919.24(A)(2), a misdemeanor of the first degree, two counts of Disseminating Matter Harmful to Juveniles, in violation of R.C. 2907.31(A)(1), (F), both felonies of the fourth degree, and one count of Rape of a person less than thirteen years of age, in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. Todd subsequently pled not guilty to the charges in the indictment.

         {¶3} On July 11, 2016, the prosecution filed a bill of particulars upon Todd's request.

         {¶4} On September 29 and 30, 2016, the trial court conducted a two-day jury trial. The State presented the testimony of six witnesses including the testimony of twelve-year-old A.D., the alleged victim in the case. After the presentation of the State's case-in-chief, Todd moved for acquittal on all counts pursuant to Crim.R. 29 and raised an issue regarding the lack of specificity of the dates for when the charged offenses allegedly took place in the indictment and bill of particulars. The trial court granted Todd's Crim.R. 29 motion on Count One of the indictment, second degree Attempted Rape, and dismissed the charge. The State also moved to dismiss Count Three, Gross Sexual Imposition, Count Six, Gross Sexual Imposition, and Count 11, Attempted Rape.

         {¶5} The remaining twelve counts listed in the indictment proceeded to the jury for deliberation. The jury found Todd guilty of four counts of Gross Sexual Imposition and one count of Disseminating Matter Harmful to Juveniles. The jury returned a verdict of not guilty on the other seven counts. The trial court subsequently imposed a non-mandatory aggregate prison term of twelve years.

         {¶6} Todd filed this appeal, asserting the following assignments of error.

         ASSIGNMENT OF ERROR NO. 1

         THE CONVICTIONS ARE NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.

         ASSIGNMENT OF ERROR NO. 2

         THE DEFENDANT WAS DENIED DUE PROCESS BECAUSE THE INDICTMENT AND BILL OF PARTICULARS WAS [SIC] INSUFFICIENTLY SPECIFIC AS TO DATES OF THE ALLEGED OFFENSES.

         First Assignment of Error

         {¶7} In his first assignment of error, Todd argues that the jury's convictions are against the manifest weight of the evidence. Specifically, Todd claims that the jury lost its way in finding A.D.'s testimony credible to convict him of four counts of Gross Sexual Imposition and one count of Disseminating Matter Harmful to Juveniles.

         Standard of Review

         {¶8} In reviewing whether the trial court's judgment was against the manifest weight of the evidence, the appellate court sits as a "thirteenth juror" and examines the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In doing so, this Court must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder "clearly lost its way and created such ...


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