State v. Nesser
2014 Ohio 1978
Ohio Ct. App.2014Background
- Defendant Robert L. Nesser was tried by jury and convicted on multiple counts stemming from May 10–11, 2012: domestic violence, felonious assault, kidnapping, rape (anal and vaginal), and robbery; acquitted of one aggravated robbery count. Aggregate sentence: 65 years; one felonious-assault count merged for sentencing.
- Victim T.Y. testified Nesser assaulted, choked (rendering her unconscious repeatedly), whipped with a belt, dragged, and raped her at multiple locations (an abandoned Broadway house, Maiden Lane residence, CVS, and an Executive Inn). Hospital exam and SANE found extensive bruising and vaginal findings; a vaginal swab matched Nesser’s DNA.
- Procedural history: indicted May 21, 2012; arrest May 22. Counsel change and discovery motions in summer 2012; competency evaluation ordered and completed. Trial originally set for Nov. 6, 2012; State obtained continuance due to Superstorm Sandy interfering with production of the witness (T.Y.) from a Pennsylvania prison; trial commenced Jan. 7, 2013.
- Defendant raised five appellate assignments: speedy-trial violation; insufficiency/manifest-weight challenge to two Broadway rape convictions and to felony degree of domestic-violence counts; allied-offense/merger claims (location-based grouping); and claimed vindictive/abusive sentencing.
- Trial court and appellate court rejected all challenges: concluded continuance was reasonable; evidence supported Broadway rapes; prior domestic-violence convictions supported felony elevation; offenses did not merge as allied offenses; no basis to find vindictive or abusive sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Speedy trial | State: continuance for unavailable witness (Sandy) was reasonable; trial reset to earliest docket date | Nesser: continuance from Nov. 6 to Jan. 7 violated speedy-trial rights | Court: continuance reasonable; speedy-time tolled by defendant motions and State continuance; trial timely under R.C. rules |
| Sufficiency/manifest weight of Broadway rape convictions | State: testimony, medical exam, SANE findings, DNA, corroborating physical evidence support forcible and impairment-based rape | Nesser: no evidence that rapes occurred at Broadway; convictions against weight and insufficient | Court: testimony and medical/DNA evidence sufficient; jury did not lose its way—convictions affirmed |
| Degree of domestic-violence felonies (prior convictions) | State: certified entries and clerk testimony show prior pleas/convictions sufficient to elevate offense under R.C. 2919.25(D)(4) | Nesser: one municipal entry lacked journal stamp/time‑stamp; under Crim.R.32 and Lester it is not a valid judgment for enhancement | Court: even if one municipal entry wasn’t journalized, evidence (plea entry plus clerk testimony and the other valid conviction) sufficed to show prior offenses; elevation sustained |
| Allied-offense merger (location-based grouping) | N/A for State (opposed merger); State: many acts were separate in time, place, and animus so counts may be separately punished | Nesser: offenses at Broadway, CVS, and Executive Inn should merge into single sentences per location | Court: examined conduct, timing, movement, and animus; kidnappings and multiple assaults involved separate conduct/animus and movement that increased risk—no merger except the two felonious-assault counts that trial court already merged |
| Sentencing/vindictiveness | State: offered argument for substantial consecutive terms given severity and multiplicity of convictions | Nesser: sentence (65 years, largely consecutive) was vindictive because he rejected a plea offer | Court: no record evidence of vindictiveness; defendant did not show sentence contrary to law or that findings for consecutive terms were unsupported—sentence affirmed |
Key Cases Cited
- State v. Adams, 43 Ohio St.3d 67 (speedy-trial constitutional guarantee) (Ohio) (establishes constitutional right to speedy trial)
- Brecksville v. Cook, 75 Ohio St.3d 53 (statutory speedy-trial construction strictly against the State) (Ohio)
- State v. Thompkins, 78 Ohio St.3d 380 (distinguishing sufficiency and manifest-weight review) (Ohio)
- State v. Lester, 130 Ohio St.3d 303 (Crim.R.32 requirements for judgment entry to be final and appealable) (Ohio)
- State v. Johnson, 128 Ohio St.3d 153 (allied-offense test: compare conduct and whether offenses can be committed by same conduct) (Ohio)
- State v. Logan, 60 Ohio St.2d 126 (kidnapping separate when movement/resraint increases risk beyond underlying offense) (Ohio)
- State v. Dennis, 79 Ohio St.3d 421 (standard for sufficiency review: evidence viewed in light most favorable to prosecution) (Ohio)