STATE OF OHIO, Plaintiff-Appellee, vs. GARY FREELAND, Defendant-Appellant.
Case No. 12CA3352
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
8-11-15
[Cite as State v. Freeland, 2015-Ohio-3410.]
ABELE, J.
DECISION AND JUDGMENT ENTRY
Timothy Young, Ohio Public Defender, and Valerie Kunze, Ohio Assistant Public Defender, Columbus, Ohio, for appellant.
Michael DeWine, Ohio Attorney General, and Jocelyn S. Kelly, Ohio Assistant Attorney General, Columbus, Ohio, for appellee.
CRIMINAL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 8-11-15
ABELE, J.
{¶ 1} This is an appeal from a Ross County Common Pleas Court judgment of conviction and sentence. The jury found Gary Freeland, defendant below and appellant herein, guilty of: (1) three counts of gross sexual imposition in violation of
{¶ 2} Appellant raises the following assignments of error for review:
FIRST ASSIGNMENT OF ERROR:
“TRIAL COUNSEL DENIED GARY FREELAND RELIEF FROM IMPROPER JOINDER, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, BY FAILING TO SEVER THE CHARGES INVOLVING DIFFERENT ALLEGED VICTIMS PURSUANT TO CRIMINAL RULE 14.”
SECOND ASSIGNMENT OF ERROR:
“GARY FREELAND WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION WHEN COUNSEL FAILED TO FAILED TO [SIC] FILE HIS PRE-TRIAL MOTION TO SEVER COUNTS BY THE MOTION DATE REQUIRED BY
CRIMINAL RULE 12(D) .”
{¶ 3} Between 2007 and 2009, law enforcement officers received reports that during the mid 1990s, appellant sexually abused J.B. and J.F., his step-children, and D.T., a young child whom appellant had tutored.
{¶ 4} On April 27, 2012, the Ross County Grand Jury returned an indictment that charged appellant with six counts of gross sexual imposition, three counts of felonious sexual penetration, and five counts of rape. On September 13, 2012, appellant filed a motion to sever the offenses. The trial court subsequently overruled the motion.
{¶ 5} From September 18, 2012 to September 21, 2012 the trial court held a jury trial. At the trial, J.B. testified that after appellant and his mother married, appellant frequently took care of him and his sister (J.F.) while their mother worked. J.B. stated that when he was around
{¶ 6} J.F. testified that appellant sexually abused her nearly every time she took a bath. She explained that appellant rubbed her clitoris and placed his fingers inside her vagina. J.F. stated that one time, he inserted a toilet plunger handle inside her vagina. J.F. further testified that on another occasion, appellant entered her bedroom, made her remove her clothes, and then placed his penis inside her vagina.
{¶ 7} D.T. testified that during the summer of 1994, appellant was his math tutor. D.T. stated that appellant forced him to perform fellatio on more than one occasion. D.T. explained that during one incident, D.T. scraped appellant with his teeth, and appellant told him not to do that. D.T. stated that appellant then inserted his penis in D.T.‘s rectum.
{¶ 8} After the three victims testified, appellant renewed his motion to sever the offenses. The court, however, agreed with the state that the joinder of the offenses did not prejudice appellant because the evidence is simple and direct. The court explained that “the evidence has been pretty discrete as to each alleged victim and I don‘t think it‘s going to be too hard to instruct the jury to say consider the evidence only as to each victim on the charges in which those victims are listed.”
{¶ 9} On September 25, 2012, the jury found appellant guilty of three counts of gross sexual imposition, two counts of felonious sexual penetration, and four counts of rape. The trial
I
{¶ 10} In his first assignment of error, appellant asserts that the trial court abused its discretion by overruling his motion to sever the offenses charged in the indictment.1
{¶ 11}
{¶ 13} The state may negate claims of prejudicial joinder in two ways. Fry at ¶ 198. Under the first method, known as the “other acts” test, joinder is not prejudicial if the joined offenses would be admissible in separate trials as “other acts” under
{¶ 15} In the case sub judice, we believe that the state satisfied the elements of the joinder test. In the case sub judice, the state presented simple and direct testimony from three different individuals who described distinct and separate acts that appellant allegedly committed against them. J.F., a twenty-two year old female, described sexual acts that occurred when she was a young child living with appellant, who was her step-father. She stated that appellant placed his fingers inside her vagina, rubbed the area surrounding her vagina, inserted a toilet plunger inside her vagina, and inserted his penis inside her vagina. J.B., J.F.‘s twenty-four year old brother, testified that when J.B. was around seven or eight years old, appellant rubbed his penis during bath-time. J.B. stated that on another occasion, appellant touched his penis. D.T., a twenty-nine year old male who was unrelated to the other two witnesses, stated that appellant, his math tutor, engaged in sexual acts with him when he was around ten or eleven years old.
{¶ 16} Courts have held that any prejudice that results from the joinder of offenses is minimized when a trial court cautions a jury before deliberations to consider each count, and the evidence applicable to each count separately, and to state its findings as to each count uninfluenced by its verdict on any other counts. State v. Gibson, 6th Dist. Lucas No. L-13-1223 and L-13-1222, 2015-Ohio-1679, ¶ 30; Meeks at ¶ 99; Hillman at ¶ 40. In the case at bar, the trial court instructed the jury to consider each count and the evidence applicable to each count separately. Specifically, the trial court stated:
“The charges set forth in each count in the indictment constitute a separate and distinct matter. You must consider each count and the evidence applicable to each count separately, and you must state your finding as to each count uninfluenced by your verdict as to any other count[;] evidence applicable to one count may not be considered by you as establishing a propensity on the part of the defendant to commit the crime charged in any other count.”
{¶ 17} Appellant nevertheless asserts that the state failed to satisfy the “other acts” test, and, thus, joinder of the offenses prejudiced him. We determined, however, that the state negated appellant‘s claimed prejudice by showing that the evidence regarding each offense is simple and direct. The Ohio Supreme Court held that “when simple and direct evidence exists, an accused is not prejudiced by joinder regardless of the nonadmissibility of evidence of these crimes as ‘other acts’ under
{¶ 18} Accordingly, based upon the foregoing reasons, we hereby overrule appellant‘s first assignment of error.
II
{¶ 19} In his second assignment of error, appellant asserts that his trial counsel rendered ineffective assistance of counsel by failing to timely request severance of the offenses.
{¶ 20} The
{¶ 21} To establish constitutionally ineffective assistance of counsel, a defendant must show (1) that his counsel‘s performance was deficient and (2) that the deficient performance prejudiced the defense and deprived him of a fair trial. Strickland, 466 U.S. at 687; State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 85. “In order to show deficient performance, the defendant must prove that counsel‘s performance fell below an objective level of reasonable representation. To show prejudice, the defendant must show a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95 (citations omitted); accord State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 81. “Failure to establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14. Therefore, if one element is dispositive, a court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a defendant‘s failure to satisfy one of the elements “negates a court‘s need to consider the other“).
{¶ 22} When considering whether trial counsel‘s representation amounts to deficient performance, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Thus, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. “A properly licensed attorney is presumed to
{¶ 23} To establish prejudice, a defendant must demonstrate that a reasonable probability exists that but for counsel‘s errors, the result of the trial would have been different. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus. Furthermore, courts may not simply assume the existence of prejudice, but must require the defendant to affirmatively establish prejudice. State v. Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. Ross No. 01CA2592 (Apr. 2, 2002).
{¶ 24} In the case at bar, appellant‘s trial counsel did file a motion to sever the offenses, but, according to the trial court, counsel did not file it in accordance with the correct time limits. The trial court nonetheless considered the merits of appellant‘s motion to sever and cited trial counsel‘s failure to timely file the motion as one reason, in addition to others, for denying the motion. We, however, determined in our discussion of appellant‘s first assignment of error that the trial court did not abuse its discretion by overruling the motion to sever. Thus, because the trial court ultimately ruled on the merits of appellant‘s motion, we fail to see how appellant suffered prejudice as a result of any deficiency associated with trial counsel‘s failure to timely
{¶ 25} Accordingly, based upon the foregoing reasons, we hereby overrule appellant‘s second assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J. & Harsha, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.