State v. Birt
2013 Ohio 1379
Ohio Ct. App.2013Background
- Birt is convicted of five counts of rape, one count of attempted rape, one count of intimidation of a witness, and one count of reckless operation arising from sexual abuse of his daughter TG from 2005–2011.
- The abuse occurred in Germantown and Middletown (Butler and Montgomery counties) and ended when a houseguest observed TG with Birt in a compromising position on March 6, 2011.
- TG reported weekly sexual abuse involving Fellatio, vaginal, and anal intercourse; Morningstar testified to seeing Birt in TG's bedroom and to Birt's threats afterward.
- Birt moved to sever duplicitous charges; trial court denied; jury found Birt guilty on all counts except OVI and a separate venue/dates issue was raised.
- Rape/attempted rape occurred across multiple years for the same victim, with the indictment detailing timeframes and locations for each count; Morningstar and Gehlauf corroborated some details.
- Verdicts: conviction for intimidation of a witness reversed and vacated; other convictions and sentences largely affirmed with adjustments to sentencing and a Note on venue as to Counts 1 and 2.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duplicitous indictment and charges | Birt contends duplicitous indictment/charging grouped acts into single counts. | Birt argues trial prejudiced by merged acts and improper charging. | Duplicitous indictment/charging not error; no prejudice. |
| Sufficiency of evidence for intimidation of a witness | State asserts sufficient evidence under R.C. 2921.04(B). | Birt claims no witness-related proceeding existed at the time of threats. | Insufficient evidence; conviction for intimidation of a witness vacated. |
| Venue and dates of offenses | State proves venue by course of conduct across counties and timeframes. | Birt contends venue and dates not properly established. | Venue proper in Butler and Montgomery; dates not essential; Crim.R.29 denied. |
| Manifest weight of the evidence | State’s evidence supports multiple rape/attempted rape convictions. | Credibility issues and lack of physical corroboration undermine weight. | Convictions not against manifest weight; credibility jury determinations upheld. |
| Admission of cocaine-use testimony and sentencing impact | Cocaine use evidence relevant to OVI and overall case. | Evidence was unfairly prejudicial and minimally probative. | Admission not an abuse of discretion; substantial evidence supporting convictions; sentencing largely affirmed with Count 7 vacated. |
Key Cases Cited
- State v. Blankenburg, 197 Ohio App.3d 201 (12th Dist., 2012-Ohio-1289) (duplicitous-indictment and course-of-conduct framing limited to venue)
- State v. Davis, 132 Ohio St.3d 25 (Supreme Court of Ohio, 2012) (witness-intimidation requires proceeding in court)
- State v. Behanan, 12th Dist. No. CA2009-10-266 (2010-Ohio-4403) (course of conduct considerations in venue)
- State v. Wagers, 2010-Ohio-2311 (12th Dist.) (time/date elements in sex-offense cases; inexactitude permissible)
- State v. Barnes, 2011-Ohio-5226 (12th Dist., 2011) (essentiality of dates when age element implicated)