2022 Ohio 4795
Ohio Ct. App.2022Background
- Defendant Edward Wymer was indicted on multiple counts of rape and gross sexual imposition involving three child victims; some counts included sexually violent predator specifications.
- The state moved to amend counts 9 and 10 (originally alleging victim <13 under R.C. 2907.05(A)(4)) to allege force/threat of force under R.C. 2907.05(A)(1); a bill of particulars filed the same day described force and the victim’s age.
- A superseding indictment formally changing counts 9 and 10 was filed the Friday before the Monday trial; two days later the jury trial began.
- The jury convicted Wymer on all counts; the trial court found him an SVP and imposed an aggregate sentence including two consecutive life terms without parole and additional prison terms.
- On appeal Wymer challenged (1) denial of a continuance after the superseding indictment, (2) sufficiency and weight of the evidence, (3) admission of a videotaped interview, and (4) ineffective assistance of counsel.
Issues
| Issue | State's Argument | Wymer's Argument | Held |
|---|---|---|---|
| Whether denial of a continuance after the superseding indictment (changing counts 9–10 to allege force) violated due process | The superseding indictment merely corrected a clerical error; defendant had prior notice via the state’s motion and bill of particulars and was not prejudiced | Denial deprived him of reasonable time to prepare to defend against a substantive change (force allegation) announced the business day before trial | Reversed as to counts 9–10: court abused discretion and a continuance should have been granted for those counts |
| Admissibility of videotaped police interview (Detective Weston) | Interview was relevant to charges involving L.F.; statements were probative and not unduly prejudicial | Admission was irrelevant because Miranda/statement issues not material | Admission affirmed: videotape relevant and properly admitted |
| Sufficiency and manifest weight of the evidence for remaining rape and GSI counts | Testimony of the child victims, forensic interviews, and medical testimony provided legally sufficient and credible evidence of sexual contact/conduct | Defense pointed to inconsistencies, delayed disclosures, and alternative perpetrators undermining credibility | Convictions (other than counts 9–10) affirmed: evidence sufficient and not against manifest weight |
| Ineffective assistance of counsel (pandemic continuance & failure to object to polygraph willingness) | Trial counsel sought continuance for pandemic concerns; failure to object to polygraph mention was not prejudicial | Counsel was deficient for proceeding with in-person jury during public health emergency and for failing to object to polygraph evidence | No ineffective assistance shown: counsel sought continuance re: pandemic; polygraph mention caused no demonstrable prejudice |
Key Cases Cited
- State v. Sowders, 4 Ohio St.3d 143 (Ohio 1983) (due-process/right to reasonable preparation by counsel)
- White v. Ragen, 324 U.S. 760 (1945) (right to counsel and fair opportunity to prepare)
- Hawk v. Olson, 326 U.S. 271 (1945) (right to counsel/preparation principles)
- Powell v. Alabama, 287 U.S. 45 (1932) (fundamental fairness in criminal trials)
- State v. O’Brien, 30 Ohio St.3d 122 (1987) (adding an essential element changes indictment)
- State v. Unger, 67 Ohio St.2d 65 (1981) (standard for continuance and abuse-of-discretion review)
- State v. Jenks, 61 Ohio St.3d 259 (1991) (legal-sufficiency standard for criminal convictions)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (manifest-weight review and distinction from sufficiency)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test)
- State v. Lynch, 98 Ohio St.3d 514 (2003) (cunnilingus constitutes sexual conduct for rape statutes)