State v. Trotter, 2012 Ohio 2760

Defendant David Trotter was convicted by bench trial of two forcible rapes, two substantially impaired rapes, and two kidnappings; he received a 60-year aggregate sentence, with a verdict on child-pornography counts in the defendant’s favor.
The charged incident involved a 14-year-old victim, B.B., who attended a party at defendant’s home, became intoxicated, was moved to upstairs bedroom, and allegedly was orally and vaginally raped as well as restrained.
Trial court initially suppressed computer-related evidence; the state appealed and this court reversed, leading to a resumed trial in February 2011 where the defendant was convicted on six counts and acquitted of the child-pornography counts.
The court sentenced the defendant to ten years on each count, for a total of 60 years to be served consecutively; the defendant timely appealed raising four assignments of error.
The Eighth District ultimately affirmed in part, reversed in part, and remanded for allied-offense merger and a new sentencing hearing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the convictions are against the manifest weight of the evidence	Trotter argues testimony timing inconsistencies show weight of evidence against verdict	Trotter contends the record shows misalignment of witness recollections	Not against weight; evidence supports convictions
Whether Wood’s hearsay statements were admissible under Evid.R. 612/803(5)	Defense claims refreshment procedure violated evidentiary rules	State asserts proper use and corroboration by other witnesses	Harmless error; convictions sustained without prejudicial impact
Whether the four rape and two kidnapping convictions were allied offenses requiring merger	State contends separate counts; multiple convictions appropriate	Defense argues some offenses should merge under Johnson framework	Rape offenses merged; kidnapping merged with rape; remand for new sentencing after election of allied offense
Whether the trial court abused its discretion in sentencing factors (recidivism)	State urges proper weighting of statutory factors	Trotter argues misweighing factors	Moot due to remand for merger and new sentencing hearing

State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (manifest weighting and due process standard for review of verdicts)
State v. Scott, 31 Ohio St.2d 1 (1972) (refreshing recollection; prohibition on reading statements to jury)
State v. Bailey, 2003-Ohio-1834 (Ohio Ct. App.) (803(5) past recollection recorded limitations)
State v. Johnson, 128 Ohio St.3d 153 (2010) (allied offenses of similar import; Johnson framework)
State v. Logan, 60 Ohio St.2d 126 (1979) (kidnapping not allied where detentions incidental to rape)
State v. Williams, 2011-Ohio-925 (Ohio App. 8th Dist.) (kidnapping merged with rape where same conduct and single state of mind)
State v. Whitfield, 124 Ohio St.3d 319 (2010) (remand for sentencing when allied-offense merger applies)
State v. DeMarco, (1987) (Ohio) (harmless error standard for evidentiary error)