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State v. Reddix

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 20, 2019

STATE OF OHIO, Plaintiff-Appellee,
TERRELL REDDIX, Defendant-Appellant.

          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 appellant.



         {¶ 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 (1988).

         {¶ 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.[1] 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 ...

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