State v. Armengau, 2017 Ohio 4452

Background

Appellant Javier Armengau, a licensed Ohio attorney, was indicted on 18 counts alleging sexual offenses and related crimes against multiple women who were clients, relatives of clients, or employees; trials chiefly relied on accusers' testimony and three "other-acts" witnesses.
The State amended its bill of particulars multiple times (including orally at trial) as the evidence developed, producing shifting descriptions and date ranges for several counts involving one victim (L.M.).
The jury convicted Armengau of multiple counts including rape, kidnapping, sexual battery, gross sexual imposition, and public indecency; total sentence aggregated to 13 years.
On appeal Armengau raised nine assignments of error, focusing on indictment/bill-of-particulars amendments and specificity, admission of other-acts evidence, prosecutorial misconduct, ineffective assistance (failure to sever), venue, sufficiency, merger under R.C. 2941.25, and sex-offender classification under S.B. No. 10.
The appellate court affirmed most convictions but (1) found error in failing to merge a rape count with a related kidnapping and in merging the wrong sexual-battery count, and (2) held the Tier III sex-offender classification improper as applied to offenses that occurred before S.B. No. 10; remanded for resentencing and reclassification.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Armengau)	Held
1) Amendments to indictment/bill of particulars and jury unanimity	Amendments allowed as trial developed; no prejudice; verdicts show juror discrimination among counts	Amendments and shifting theories deprived him of specificity, due process, jury unanimity, and protection against double jeopardy	No reversible error; amendments and instructions did not materially prejudice defendant; unanimity challenge rejected under plain-error review
2) Admission of other-acts evidence	Other-acts evidence admissible to prove motive, plan, modus operandi, intent; limiting instructions given	Admission was propensity evidence violating Evid.R.404(B) and rape-shield statutes and unduly prejudicial	Admission was within trial court's discretion under Williams three-step test; probative value not substantially outweighed prejudice; no reversible error
3) Prosecutorial misconduct (doctrine of chances, vouching)	Closing argument permissibly tied cumulative evidence to pattern; critiques of defense credibility were fair argument	Prosecutor misapplied "doctrine of chances," vouched for witnesses, and made improper credibility assertions	Prosecutor misstated doctrine of chances and made some improper credibility remarks, but under plain-error/fair-trial standards defendant's substantial rights were not prejudiced; no reversal
4) Merger of allied offenses & sex-offender tier	State chose convictions to merge; crimes were not allied or were committed with separate animus; S.B. No.10 applies	Several convictions (rape and kidnapping; sexual-battery pairing) merged/overlapped; some conduct predated S.B. No.10 so Tier III classification is retroactive	Court found trial error: rape and kidnapping should have merged (no separate animus); State merged wrong sexual-battery count — remand for resentencing; Tier III classification vacated and reclassification required under law in effect when offenses occurred

Key Cases Cited

State v. Headley, 6 Ohio St.3d 475 (Ohio 1983) (indictment must contain essential facts constituting the offense)
State v. Sellards, 17 Ohio St.3d 169 (Ohio 1985) (purpose of bill of particulars is to particularize accused's conduct; not a substitute for discovery)
State v. Williams, 134 Ohio St.3d 521 (Ohio 2012) (three-step test for admissibility of other-acts evidence under Evid.R.404(B))
State v. Morris, 132 Ohio St.3d 337 (Ohio 2012) (admissibility of other-acts evidence reviewed for abuse of discretion)
State v. Broom, 40 Ohio St.3d 277 (Ohio 1988) (Evid.R.404(B) and R.C.2945.59 read together regarding other-acts evidence)
State v. Loza, 71 Ohio St.3d 61 (Ohio 1994) (presumption that juries follow limiting instructions)
State v. Rahman, 23 Ohio St.3d 146 (Ohio 1986) (prosecutor may not express personal belief as to witness credibility)
State v. Ruff, 143 Ohio St.3d 114 (Ohio 2015) (framework for R.C.2941.25 merger: conduct, animus, import)
State v. Logan, 60 Ohio St.2d 126 (Ohio 1979) (kidnapping often implicit in forcible rape; guidelines for separate animus analysis)
State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for sufficiency review)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)