*1 ADA appellant’s dismissed pleadings on the granted judgment when it erred claim. we sustain by appellant, advanced arguments found merit to the Having judgment reverse the Accordingly, of error. we sole
appellant’s matter and remand this of Ohio favor ODRC by the Court Claims granted decision. with law and consistent with this in accordance proceedings for further Judgment reversed remanded. and cause P.J., Tyack, J., Bryant, concur. Ohio, Appellee,
The STATE of
DAVIS, Appellant.
App.3d
[Cite State Ohio, Appeals of
Court of District, Eighth Cuyahoga County.
No. 91324. May
Decided *2 Mason, William D. Cuyahoga County Prosecuting Attorney, and Brent C. Kirvel and T. Allan Regas, Assistant Prosecuting Attorneys, for appellee. Defender, Katherine Young, Ohio Public Timothy Corrigan; F. John Defender, appellant. Public Szudy, A. Assistant Sweeney, Judge. J.
James
Court,
remand from the Ohio
this court on
is before
appeal
This
court to instruct
failure of a trial
that the
our determination
after it reversed
spouse
on the record
finding
and make
competency
spouse
Davis, 127
v.
error. State
reversible
testify
constitutes
voluntarily chose
“Once on the finding and make a competency on spousal the witness court must instruct to do so constitutes testify. to Failure voluntarily chose that he or she record error.” plain reversible case, Supreme the Ohio in the instant our determination reversing
{¶ 3}
of Evid.R.
in
that a violation
stated,
our statement
Brown
“Admittedly,
Court
to mean
601(B)
misunderstood
may
error’
have been
plain
‘constitutes reversible
requiring
structural error
testimony is
incompetent spousal
of
that the admission
testimony
prejudiced
of whether the
without consideration
automatic reversal
147,
{¶ 4} of on the admission error based not reverse a conviction may court 601(B) a plain-error unless it conducts in violation of Evid.R. spousal * * * admitting spouse’s the error in that but for and determines analysis and that reversal trial would have been different the outcome of the ¶at 26. justice.” of Id. miscarriage a manifest necessary prevent to to “conduct this court on remand instructed Supreme The Ohio {¶ 5} admitting spousal error in that but for the and determine analysis plain-error and that reversal is been different of the trial would have testimony, the outcome ¶ Id. at 29. miscarriage justice.” a manifest necessary prevent to Davis’s first overruled defendant William opinion, we previous In our 6}{¶ for a new convictions, this case error, and remanded reversed his assignment No. Cuyahoga App. above. State reasoning discussed trial based on the history of this case A procedural brief WL follows. 17, 2007, September charged On defendant was with 31 of rape counts
{¶ 7} nieces, gross sexual D.T.1 imposition, involving According his two and D.T.2. D.T.1, sexually defendant her from years molested when she was nine old, years D.T.2, until when she was 15 old. According began eight years molest her when she was or nine old. In the fall of D.T.1 told her mother defendant had sexually abused her for six A years. subsequent investigation of these allegations led to 7, 2008, defendant’s indictment. March jury On found defendant guilty six rape counts of of a child under years age violation of R.C. 2907.02(A)(1)(b), rape by 2907.02(A)(2), 13 counts of force violation of R.C. one count of gross imposition by 2907.05(A)(1), sexual force in violation of R.C. gross three counts of sexual imposition of a child under 13 years age 2907.05(A)(4). 12, 2008, violation of R.C. On March the court sentenced defen dant to in prison. life begin by error, analyzing spousal testimony We for plain as directed
by the
Court.
After reviewing the facts of this
we find that the outcome of
the trial would have been the same
regardless
the error
in admitting
defendant’s
testimony.
wife’s
Reversal
necessary
is not
prevent manifest
justice,
miscarriage
because
multiple rape
and gross sexual
imposition
supported
convictions are
of the two victims. See
State v.
Lewis
(“There
624, 638,
70 Ohio App.3d
{¶ 11} wife’s testified that defendant repeatedly molested them. Most of the abuse occurred at defendant’s girls home when the visiting were and helping his wife on the weekends. around, Defendant’s wife has getting trouble and defendant would take advantage of this sexually abusing the girls when his wife was or sleeping occupied elsewhere in the house. D.T.l that testified the abuse started in when she was nine years
{¶ 12} old. D.T.l detailed multiple incidents of sexual abuse at four happened different houses that defendant and his wife a six-year lived over span. The last time D.T.l recalled raping her was late in when she 15 was years old. D.T.l recalled various details of the abuse. For example, after it first
{¶ 13} started, there was blood in her mom, underwear. D.T.l showed her thought who that D.T.l had begun menstruate. Most of the abuse at night, occurred when D.T.l sleeping was in a dining-room makeshift bed on the floor. D.T.l testified told defendant she several times that “did not want anymore” she to do this her, but that he to rape continued that “it saying will be over soon.” D.T.l had sleeping trouble and frequently cried. D.T.2 testified defendant touched her inappropriately when or eight
she was nine years old. This on happened two occasions when D.T.2 was staying weekend, her aunt and defendant’s house for the she while was on sleeping blankets on the dining-room floor. In September 2006, abuse, D.T.l told her mother about the her
{¶ 15} mother contacted police. Cuyahoga County Department Children and Family Services conducted an investigation, and subsequently defendant was indicted for the offenses. light D.T.l’s and specific D.T.2’s
{¶ 16} consistent regard- ing them, defendant’s molesting say we cannot that defendant would have been acquitted had his not wife testified. The court’s failure inform defendant’s wife that she could choose to testify against her husband and failure to find that voluntarily testify elected not prejudicial were to defendant. determination, this Given turn we assignments
{¶ 17} of error In our appeal. previous opinion, we overruled assignment defendant’s first error,1 and hereby we incorporate analysis into opinion. ¶ 13-27. Additionally, previous our opinion rendered defen ¶
dant’s second and third assignments Id., of error However, moot. at 31. our determination that defendant’s convictions should not be reversed for error based on the admission of spousal testimony necessitates that now we review remaining these assignments of error. Defendant’s second of error as states follows: appellant “The was denied a fair trial when evidence was admitted that
appellant general propensity to young molest females when he on trial for rape GSI two of his nieces.” 404(B) states, Evid.R. crimes, “Evidence of other wrongs, or acts is not prove
admissible to the character a person in order to show action conformity however, It therewith. may, be admissible other purposes, such motive, proof intent, opportunity, preparation, plan, knowledge, identity, or absence mistake or accident.” See also R.C. 2945.59. *5 Defendant’s first of error: "The put jeopardy defendant was twice in for the contrary I, same offenses to the Fifth Amendment to the U.S. and Constitution Article Section the having 10 of jeopardy Constitution when after appellant's attached the court denied eleven, request try jury to his a case to panel, impanelled dismissed the sworn and a second jury.” motion to pretrial the state’s the court denied January On
{¶ 21} 404(B) trial, testimony of specifically, into the evidence other-acts allow Evid.R. sister-in-law, regarding comments mother, is also defendant’s victims’ who the years family approximately female members young made to that defendant stated, inadmissible, the “[T]he court the evidence ruling In ago. in the act. This not engage the to plan act rather than to the itself go would to impossible It’s identity. to establish operandi of modus as evidence needed highly prejudicial.” being as well as against, defend state, for the and the trial, the mother testified During victims’ victims’ out with defendant. The falling her if she ever had asked prosecutor “Now, answered, asked, relationship has your The state then mother “No.” victims’ mother answered with this defendant?” The always been wonderful cross-examination, victims’ confirmed with the had. defense counsel During it prior to this with defendant any disagreements mother that she never along prior to “everyone family getting perfectly generally, [was] and that examination, probed the state During redirect allegations coming light.” these Eventually, family disagreements. of no the victims’ mother’s following: mother testified victims’ defendant, who was she walked on Approximately years ago, towel; sister, not have on but “right up anything on” her who did
standing
if
sink
person
you
you’re
at the
“always
type
has been this
defendant
—if
dishes,
you
getting something
and act like he’s
up
he would come
behind
washing
there,
rubbing
grinding
you
on
up
cabinets
and he’d be
top,
off
old,
like,
”;
walking
victims’ mother was
years
when she was 14
you be
‘Move’
said,
big
in a
“Look at those
passed
when defendant
car
from the store
time,
them”; and,
family
function around Christmas
titties.
I can suck
him in the face.
lips
slapped
her on the
and she
defendant
kissed
inappropriately
fact,
object
testimony.
to this line
recross-
Defendant did
examination,
on the inconsistencies in
victims’ mother’s
defendant focused
a disagreement
said that she never had
with
initially
that she
over
incidents with defendant
subsequently
improper
but
testified
defendant
many
slapped
asked how
times she
years.
Defense counsel
testimony from the
than once.” Defendant also elicited
responded,
she
“More
people
was one of the
that was drunk all
time and
she
victims’ mother
he
asked her
past. Finally,
defense counsel
up against
had rubbed
he
conduct.
history
inappropriate
of sexually
about defendant’s
why
kept quiet
sister;
always
drunk.
say, ‘[defendant is]
would
wife]
“Because [her
just
drunk,’
ordinary.
you try
of the
So
things
when he do
out
[Defendant is]
that he’s drunk.”
on,
you
just go
can’t
with
things
he’s drunk. But some
go
*6
object
Since defendant failed
to this
he
all
plain
25}
waived
but
{¶
103(A).
52(B)
on
error
appeal.
states,
Evid.R.
Crim.R.
“Plain errors or defects
affecting substantial rights may be noticed although they
brought
were not
to the
attention of the court.” The
Ohio
on
identified “three limitations
a reviewing court’s decision to correct an
despite
timely
error
of a
the absence
First,
objection at
error, ie.,
trial.
there must be an
from a legal
deviation
Second,
rule.
the error must
To
plain.
‘plain’
be
be
within
meaning
52(B),
Crim.R.
an error must
an
be
‘obvious’ defect
the trial proceedings.
Third, the error must have affected ‘substantial rights.’
interpreted
We have
aspect
the rule to mean that the trial
error
court’s
must
have affected
(Citations omitted.)
outcome
trial.”
State v. Barnes
21, 27,
{¶26}
evidence of past
or
wrongs
acts “is not
to prove
admissible
character of
person in order to
action
conformity therewith,”
show
we need not discuss this
404(A)(1)
because we
find
under
falls
the Evid.R.
exception
the inadmissibility
404(A)(1)
of character
general.
evidence in
Evid.R.
states that
character evidence is
accused,
admissible if
by
“offered
an
by
prosecution
or
to rebut the
This
same.”
court has
held
will
error
not be found when the
opens
defense
the door to
Clemence,
otherwise inadmissible evidence. State v.
Cuyahoga
{¶ the above law, rules and case we cannot say that it a was and obvious error to it. allow Although the victims’ mother state, testified for the initially she said that problems no with defendant. this, Defense counsel expanded on possibly because it may have been favorable him. opened This the door for the state to present rebuttal did, fact, that the witness problems with defendant. Defense counsel then expanded on this line of questioning, presumably impeach the by state’s witness pointing out her inconsistencies. criminal may “[A] defendant affirmative, make an apparently
strategic decision at trial and then complain
appeal
that the result of that
Doss,
decision constitutes reversible
error.” State v.
Cuyahoga
No.
App.
{¶
assistance of counsel.”
ineffective
prejudiced
“Appellant
counsel, a
a claim of ineffective assistance
substantiate
To
(1)
seriously
counsel was
of defense
performance
must demonstrate
*7
(2)
legal proceeding
trial or
result of defendant’s
the
flawed and deficient
provided proper representation.
counsel
different
defense
would have been
674;
(1984),
668, 104
80 L.Ed.2d
466
S.Ct.
Washington
v.
U.S.
Strickland
In
144, 25 OBR
{¶ (1) object to to inadmissible other-acts following ways: failing tive the (2) his as a failing object calling to to the state’s wife witness testimony and her and calls between her her a letter D.T.l wrote to questioning about jail. was in defendant when defendant thoroughly analyzed was defendant’s The other-acts reasons, find For the same we admission
second of error. assignment it because attacked credibil strategy evidence was defense counsel’s this (allowing prior Evid.R. 607 ity impeachment of the state’s witness. See statements). inconsistent of counsel con- second of ineffective assistance allegation Defendant’s 35}
{¶ incompetent testify was to argues his Defendant that she testimony. cerns wife’s 601(B), to be “Every person competent which states follows: under Evid.R. * * * spouse charged the other except spouse testifying against [a] witness * * * (2) testifying testify.” elects to spouse with a crime when except to find that defendant’s opinion, in this the court failed As stated earlier 36} {¶ Furthermore, object did not to defen- testify. to defense counsel wife elected state, testify by called to but testimony. Defendant’s wife was dant’s wife’s 611(C) and the stand under Evid.R. she was a hostile witness on declared to her was at times favorable subjected questions to because leading However, assuming to without at times favorable defendant. state and object wife’s failing ineffective for deciding that counsel was Strickland, whether result of prong we turn to the second objected. have had counsel would been different proceeding Court, we earlier from the Ohio determined Under direction 37} {¶ regardless same of the trial would been the opinion the outcome reasoning, testimony. Using same admitting defendant’s wife’s error we likewise determine that the outcome of defendant’s trial would have been the same regardless object of counsel’s failure to testimony. to defendant’s wife’s v. Holloway See State (“The 239, 244, N.E.2d failure object error, alone, is not enough to sustain a claim of ineffective assistance claim, To prevail counsel. such a defendant must show that first there was a any substantial violation of defense counsel’s essential duties to his client second, and, ineffectiveness”). that he materially prejudiced by counsel’s Accordingly, defendant’s overruled, third of error is his convictions are affirmed.
Judgment affirmed. Stewart, P.J., concurs. J.,
Boyle, in part concurs and in part. dissents
Boyle, Judge, concurring in part and in dissenting part. I from respectfully dissent majority’s resolution assign-
{¶ of the first 39} ment of error because the record fails to demonstrate a necessity” “manifest for sua sponte a ordering mistrial. outset, At the I must emphasize that
{¶
constitutional protection
40}
under
afforded
the Double Jeopardy Clause also “embraces the defendant’s
”
right
‘valued
to have his
completed by
trial
a particular tribunal.’ Arizona v.
Washington
(1978),
497,
824,
434
717,
U.S.
98 S.Ct.
quoting United
54 L.Ed.2d
States v. Jorn
470,
(1971),
484,
400
547,
543,
U.S.
v.Wade
91 S.Ct.
27 L.Ed.2d
and
Hunter
684, 689,
834,
336
69
U.S.
S.Ct.
{¶ to sua 41} declare a mistrial consent, without the defendant’s “the power ought to be used with the greatest caution, circumstances, under urgent and for very and obvious causes.” United States v. Perez 579, 580, (the 22 579, U.S. 9 6 Wheat. L.Ed. 165 case wherein the United Supreme initially States phrase used the “mani fest necessity”); United Toribio-Lugo States (C.A.1, 2004), 33, 376 F.3d 38-39. Indeed, that a recognizing constitutionally protected by interest is a affected sponte court’s sua a mistrial, declaration of the Supreme Court has trial cautioned courts to exercise its authority a only “scrupulous after judicial exercise of discretion.” Jorn 485. at As stated by Court: therefore, trial judge, “[A] always ‘must temper the decision or whether not to by abort trial considering importance to the defendant of being able, all, once to conclude his "with society confrontation through the to his fate.”’ favorably disposed to be might of a tribunal he believe
verdict Jorn, at 486. at U.S. Washington, quoting U.S. is mind, necessity” in the “manifest standard these considerations With 54 L.Ed.2d Washington, 434 at 98 S.Ct.
a
U.S.
heavy burden.
a
no
formula
determine whether
precise,
And
is
mechanical
although there
court must be satisfied
necessity,
reviewing
a
by
mistrial
manifest
supported
a mistrial.
Id.
declaring
trial court exercised “sound discretion”
2008),
506, 514;
(C.A.6,
judge
declaring
discretion
mistrial.
exercised sound
proceeding
alternative to mistrial:
properly excused
there was
clear
Juror
Indeed,
state
have the case heard
jurors.
agreed
with 11
both the
and defense
Thus, they
shared the same
jurors
ready
proceed.
position,
and were
i.e.,
jury
judge
sworn. And
the trial
proceed
impaneled
although
with the
proceeding
jurors,
with 11
possibility
heard from both sides
discussed the
to sua
declare a mistrial.
opted
sponte
nevertheless
a mistrial was
on the trial
judge’s
part
The
decision to declare
based
week,
judge
most
over to the next
which the
believed would
likely carrying
hardship
jury.
judge inquired
a severe
for some members
The
created
*9
members,
that
if
case
they
the
two indicated
had a conflict
the
proceeded
(But,
Monday
by
judge,
jurors
week.
as noted
the trial
past
following
they
duty
appear
stated
voir
would fulfill their
for service
during
dire
if a juror
The
concern that
failed
despite any hardship.)
judge
expressed
further
a mistrial.
appear Monday,
the defense would then move for
however,
concerns,
All of
trial
fail to demonstrate
judge’s
stated
a
stated
declaring
Notably,
judge’s
for
mistrial.
concerns
necessity
manifest
arose,
if in fact
them
court
have
any
were
And
could
speculative.
moving
As for
concern of the defense later
addressed them at
time.
jurors, such motion
a mistrial if
were insufficient number of
a
would
there
I
Simply
in this
do
double-jeopardy
present
put,
have
issues
case.
implicated
“
right
court
Davis’s Valued
adequately
not find that
trial
considered
”
503,
Washington,
a
tribunal.’
See
434 U.S.
completed by particular
his trial
689,
(1949),
684,
824,
717,
v.
U.S.
quoting
54 L.Ed.2d
Hunter
336
98 S.Ct.
Wade
598321 (finding an abuse of discretion
the court
because
failed to consider less
alternatives);
drastic
Morgan
State v.
Ohio App.3d
102 (finding an abuse of discretion because
court failed to cure or
evidence).
otherwise determine the effect of the purportedly tainted
Here, the trial court could have
with 11
proceeded
jurors, as
consented
both the state and
sponte
its sua
of a
ordering
mistrial
an
Therefore,
constitutes
abuse of discretion.
Davis’s retrial was barred by
double
and his
jeopardy,
first
error should be sustained. See State
v. Glover
GEORGOPOULOS, Appellant, PARTNERS, INC., HUMILITY OF MARY HEALTH d.b.a. Center, al., Appellees.
St. Elizabeth Health
et
Partners,
Georgopoulos
Humility Mary
[Cite
Health
Inc.,
App.3d
195 Ohio
No. 2010-T-0071.
Decided June