State v. Hess
2014 Ohio 3193
Ohio Ct. App.2014Background
- Daniel R. Hess was convicted by a jury of two counts of third-degree sexual battery for sexual acts with his then‑15‑year‑old daughter; sentenced to consecutive 54‑month terms (9 years), classified Tier III sex offender.
- Hess initially entered a written not guilty by reason of insanity (NGRI) plea and underwent competency evaluation; evaluator found him competent and noted PTSD symptoms and unconventional religious beliefs but did not conclude insanity at time of offenses.
- At trial Hess denied physical sexual contact, testifying he practiced “energy sex” as part of his shamanistic/pagan beliefs; the State presented the victim’s testimony and a recorded conversation in which sexual acts were discussed.
- Defense counsel stipulated to competency, did not pursue an insanity defense at trial, and did not request an insanity jury instruction; the jury was never informed of the NGRI plea.
- Two jurors (both teachers) acknowledged possibly knowing the victim during in‑chambers voir dire; the judge questioned them, both said they could be fair, and they remained on the panel; portions of the in‑chambers audio were poorly recorded producing inaudibles in the transcript.
- Hess appealed asserting four errors: (1) failure to instruct on NGRI (structural error); (2) ineffective assistance for failing to notify jury/request NGRI instruction and inadequate voir dire; (3) improper recording/transcript leading to inability to reconstruct the record; (4) trial court failed to state reasons supporting consecutive‑sentence findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to inform/instruct jury about NGRI plea was structural error requiring automatic reversal | State: No structural error where no evidence at trial supported an insanity defense; NGRI instruction not warranted | Hess: Trial court, counsel, and prosecution "forgot" the NGRI plea; jury should have been instructed — omission permeates trial | Court: No error — evidence did not raise insanity, NGRI instruction unnecessary; Cihonski distinguished |
| Whether trial counsel was ineffective for not pursuing NGRI instruction and for limited voir dire of jurors who knew victim | State: Counsel’s choices were reasonable given defense theory (denial of physical contact); limited voir dire can be strategic | Hess: Counsel should have informed jury of NGRI, requested instruction, and probed jurors further or struck them | Court: No ineffective assistance — counsel’s performance within reasonable strategy and no prejudice shown |
| Whether poor recording/incomplete transcript of in‑chambers voir dire prejudiced review | State: Recorded proceedings suffice; appellant failed to show material prejudice from inaudibles | Hess: Inaudibles prevent reconstruction under App.R. 9(C) and obstruct review of counsel’s effectiveness | Court: No reversible error — key voir dire substance was available; appellant failed to show material prejudice |
| Whether sentencing court had to state reasons supporting R.C. 2929.14(C)(4) findings when imposing consecutive sentences | State: Statute requires findings but not separate written reasons; following Fourth District precedent no reasons required | Hess: Court must state reasons supporting statutory findings for consecutive terms | Court: No error — court need only make the statutory findings (not separately state reasons); upheld under district precedent |
Key Cases Cited
- Dusky v. United States, 362 U.S. 402 (establishes competency to stand trial standard)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard: deficient performance and prejudice)
- State v. Cihonski, 178 Ohio App.3d 713 (3d Dist. 2008) (found failure to notify jury of NGRI plea could be structural error under unique facts)
- State v. Monford, 190 Ohio App.3d 35 (10th Dist. 2010) (refused to follow Cihonski where no insanity evidence; NGRI omission not structural)
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (appellant bears duty to provide transcript on appeal)
- State v. Perry, 101 Ohio St.3d 118 (2004) (discussion of structural error and harmless‑error framework)