Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-616467-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Jeffrey Schnatter, Jennifer Meyer, and Lindsay
Raskin, Assistant Prosecuting Attorneys, for appellee.
Charles Ruiz-Bueno Co., L.PA., and J. Charles Ruiz-Bueno, for
JOURNAL ENTRY AND OPINION
C. GALLAGHER, PRESIDING JUDGE.
1} Appellant Terrell Reddix appeals his convictions on
multiple counts. Upon review, we affirm.
2} Appellant was indicted under a seven-count indictment with
four counts of gross sexual imposition, two counts of
kidnapping with sexual motivation specifications, and one
count of abduction. Counts 1 to 5 charged offenses occurring
in April 2016 and included allegations of sexual contact
committed against Jane Doe I. Counts 6 and 7 charged offenses
occurring from August 2012 to June 2013 and included
allegations of sexual contact committed against Jane Doe II.
Appellant entered a plea of not guilty to the charges.
3} During the course of proceedings, the state filed a notice
of intent to use Evid.R. 404(B) evidence, which the trial
court considered as a motion and denied. Also, appellant
filed a motion to sever that was denied by the trial court.
4} Appellant waived his right to a jury trial, and the case
proceeded to a bench trial. The trial court found appellant
guilty of gross sexual imposition as charged in Counts 1, 2,
3, and 6 of the indictment; guilty of abduction, the lesser
included offense under Counts 4 and 7 of the indictment, but
not guilty of the sexual motivation specifications charged in
those counts; and guilty of abduction as charged in Count 5
of the indictment. At sentencing, the trial court merged
Count 4 with Counts 1, 2, and 3, and Count 7 with Count 6.
The trial court imposed a total aggregate prison term of 24
months, advised appellant of postrelease control, and found
appellant to be a Tier I sex offender.
5} Appellant timely filed this appeal. Under his sole
assignment of error, appellant raises several challenges to
the trial court's denial of his motion to sever counts
pursuant to Crim.R. 14.
6} Crim.R. 8(A) provides that "two or more offenses may
be charged in the same indictment" if the offenses
"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." Ohio law generally favors joinder under
Crim.R. 8(A) if the offenses charged are of the same or
similar character; however, a defendant may be entitled to
severance under Crim.R. 14 if he can establish prejudice.
State v. McKelton, 148 Ohio St.3d 261,
2016-Ohio-5735, 70 N.E.3d 508, ¶ 299, citing State
v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990).
When a defendant claims prejudice by the joinder of multiple
offenses, a court must determine whether evidence of the
other crimes would be admissible even if the counts were
severed; and if not, whether the evidence of each crime is
simple and distinct. State v. Schaim, 65 Ohio St.3d
51, 59, 1992-Ohio-31, 600 N.E.2d 661, citing State v.
Hamblin, 37 Ohio St.3d 153, 158-159, 524 N.E.2d 476
7} Ordinarily, a trial court's ruling on a Crim.R. 14
motion is reviewed for an abuse of discretion. State v.
Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d
554, ¶ 63, citing State v. Hand, 107 Ohio St.3d
378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 166. However, where
a defendant fails to renew a Crim.R. 14 motion for severance
at the close of the state's case or at the close of all
evidence, the defendant waives all but plain error on appeal.
State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135,
¶ 90 (8th Dist). To establish plain error, the defendant
must establish that an error occurred, that the error was
obvious, and that the error affected his or her substantial
rights. Spaulding at ¶ 64. In order for an
error to have affected a defendant's substantial rights,
the error "must have affected the outcome of
trial." State v. Barnes, 94 Ohio St.3d 21, 27,
2002-Ohio-68, 759 N.E.2d 1240. "'Notice of plain
error * * * is to be taken with the utmost caution, under
exceptional circumstances, and only to prevent a manifest
miscarriage of justice.'" State v. Gordon,
152 Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 23,
quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d
804 (1978), paragraph three of the syllabus.
8} Appellant raises a number of issues with regard to the
trial court's ruling. He claims that the trial court
erred in denying his motion to sever without holding a
hearing on the record and that the trial court denied the
state's request to use Evid.R. 404(B) evidence at trial,
yet allowed impermissible "other acts evidence" at
trial when it heard and considered evidence of the sexual
conduct testified to by the separate victims. Appellant
argues that this was plain error and in contravention of R.C.
2907.05(E), which prescribes limits in which evidence of
specific instances of a defendant's sexual activity may
be admitted against a defendant charged with gross sexual
imposition. Appellant also claims that the evidence of the
crimes against both victims was not simple and direct, and he
points to contradictory evidence in the record with regard to
incidents involving each of the victims. Appellant asserts
that he was prejudiced by the denial of severance and that he
was compelled to waive a jury trial as a result.
9} Appellant moved to sever the counts with respect to each
victim pursuant to Crim.R. 14 and Schaim, 65 Ohio
St.3d 51, 1992-Ohio-31, 600 N.E.2d 661. In Schaim,
the Supreme Court of Ohio recognized the limits placed upon
the admissibility of other acts evidence because of the
substantial danger that a jury will convict a defendant
solely because it assumes that the defendant has a propensity
to commit criminal acts, or deserves punishment regardless of
whether the charged offenses were actually committed.
Id. at 59. The court observed that the legislature
has recognized the problems raised by the admission of other
acts evidence in prosecutions for sexual offenses, and that
the statutes for forcible rape, R.C. 2907.02, and gross
sexual imposition, R.C. 2907.05, carefully limit the
circumstances in which evidence of the defendant's other
sexual activity is admissible. Id. at
59-60. Under the circumstances presented in
Schaim, the court determined that the joinder of
counts charging rape committed against one daughter and gross
sexual imposition against the other had allowed the jury to
consider significant amounts of other acts evidence that
would not have been admissible in separate trials.
Id. at 60-62.2 The court found that the defendant
was prejudiced by the trial court's refusal to sever
charges where the evidence supporting a conviction for gross
sexual imposition with one victim was "at best
thin," the record reflected confusion of the testimony,
and the case had been tried to a jury. Id. at 62-63.
Upon the record therein, the court concluded that the
defendant was prejudiced by the consolidated trial
"[g]iven the highly inflammatory nature of the offenses
[involved], the similarities between portions of [two of the
victims'] testimony, and the fact that joinder allowed
the state to circumvent the prohibition on other acts
testimony[.]" Id. at 62.
10} On appeal, appellant claims that permitting joinder
herein violates the mandatory prohibition in R.C. 2907.05(E)
and that the state was permitted to "backdoor" the
admission of other acts regarding specific instances of the
defendant's sexual activity that would not have ...