STATE OF OHIO, Appellee v. DAVID GREATHOUSE, Appellant
C.A. No. 27782
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
July 19, 2017
[Cite as State v. Greathouse, 2017-Ohio-6870.]
SCHAFER, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2013 05 1382
SCHAFER, Judge.
{1} Defendant-Appellant, David Greathouse, appeals the judgment of the Summit County Court of Common Pleas convicting him of several sex-related crimes. For the reasons set forth below, we affirm.
I.
{2} In 2000, authorities investigated Greathouse for sexually abusing A.D., a nine-year-old foster child who was residing with Greathouse‘s mother at the time. The investigation began when A.D. told her school counselor that Greathouse was sexually abusing her. Matthew Hudak of the Barberton Police Department was the primary detective assigned to the case. Following an investigation into the matter, the State elected not to file criminal charges against Greathouse at that time.
{3} In March 2013, M.S., a 13-year-old girl, disclosed to her mother that she was being sexually abused by Greathouse, who was her mother‘s boyfriend at the time. M.S.‘s
{4} The detective bureau referred M.S.‘s case to Detective Joseph Storad, who subsequently interviewed Greathouse about M.S.‘s accusations. Greathouse denied ever sexually abusing M.S., but acknowledged that M.S. was an honest individual who did not lie. During the course of the interview, Greathouse informed Detective Storad that he was previously accused of sexually abusing another child, A.D., approximately 13 years prior. Following his interview with Greathouse, Detective Storad retrieved the old police report concerning A.D.‘s allegations against Greathouse. Detective Storad then met with A.D., who is now an adult, and listened as she described being sexually abused by Greathouse when she was a child. Detective Storad and A.D. later met with an assistant prosecutor with the Summit County Prosecutor‘s Office to discuss this incident.
{5} On April 9, 2013, the Summit County Grand Jury returned a no bill, refusing to indict Greathouse on one count of rape and one count of gross sexual imposition. However, the State resubmitted the case to the Grand Jury with additional charges. Consequently, on May 30, 2013, the Summit County Grand Jury returned a secret indictment charging Greathouse with
{6} On February 17, 2015, the first day of trial, Greathouse filed a “motion dismiss indictment or severe [sic] Count One from trial.” The trial court addressed and denied Greathouse‘s motion in a pretrial conference. The matter then proceeded to a jury trial, wherein the State called 12 witnesses to testify on its behalf and Greathouse called six witnesses on his behalf. At the close of evidence, the jury found Greathouse guilty of all counts. The trial court subsequently sentenced Greathouse according to law.
{7} Greathouse filed this timely appeal and raises three assignments of error for this Court‘s review.
II.
Assignment of Error I
The Appellant‘s due process rights were violated where the State of Ohio engaged in behavior that caused a prejudicial pre-indictment delay.
{9} We note at the outset that Greathouse neither raised the issue of pre-indictment delay, nor asserted a violation of his due process rights in the trial court. Thus, as Greathouse raises the issue of pre-indictment delay for the first time on appeal, he has forfeited all arguments with respect to this issue but for that of plain error. See State v. Wilson, 8th Dist. Cuyahoga No. 102921, 2016-Ohio-2718, ¶ 61, (“[A]s [appellant] raises the issue of preindictment delay for the first time on appeal, we review for plain error.“) citing State v. Berry, 10th Dist. Franklin Nos. 97AP-964, 98AP-256, 1999 WL 437217, *12 (June 29, 1999) and State v. Turner, 168 Ohio App.3d 176, 2006-Ohio-3786, ¶ 21 (5th Dist.). For an error to be a “plain error” under
{11} Accordingly, Greathouse‘s first assignment of error is overruled.
Assignment of Error II
The Appellant‘s due process rights were violated where the State failed to preserve evidence of Dr. McDonald‘s [medical] diagnosis finding no physical evidence of sexual abuse.
{12} In his second assignment of error, Greathouse argues that his conviction on Count One for the rape of A.D. must be reversed and dismissed since the State violated his due process rights by failing to preserve potentially useful evidence. Specifically, Greathouse argues that the State violated his due process rights by failing to preserve a prescription dated September 30,
{13} “The Due Process Clause of the
{14} To begin, Greathouse has framed this assignment of error as one concerning “preservation” of evidence. There is no question that the doctor‘s prescription was preserved, as the original script was discovered amongst Greathouse‘s mother‘s personal effects and a copy of the script was located within the case file stored with the Barberton Police Department. Rather, the crux of Greathouse‘s argument concerns the fact that the investigating detectives never forwarded the prescription to the prosecutor‘s office and that it was never disclosed to the defense prior to trial. The prescription only came to light when Greathouse discovered the original by chance while sifting through his deceased mother‘s journal just six weeks before trial. Thus, we conclude the facts of this case implicate suppression or disclosure of potentially useful evidence rather than preservation. However, this Court does not review this assignment of error
{15} To the extent that Greathouse argues that the State failed to preserve the doctor‘s prescription in violation of his due process rights, we disagree. It is undisputed that the prosecution was unaware of the existence of the doctor‘s prescription until defense counsel brought it to their attention on the first day of trial. In his appellate brief, Greathouse contends that certain law enforcement personnel acted in bad faith in this matter. Namely, Greathouse asserts that:
either Detective Hudak removed the copy of the prescription sheet with [the doctor‘s] diagnosis before faxing [the contents of the case file] to Detective Storad or that Detective Storad removed [the prescription] before turning the report over to the prosecutor‘s office. In any event, it is evident that one of those two police officers engaged in behavior that was designed to prevent [Greathouse] from gaining access to very useful information.
However, when the parties addressed this issue below, Greathouse‘s trial counsel emphasized that the defense was not accusing Detective Storad, Detective Hudak, or the prosecuting attorneys of “anything improper.” Rather, the defense was only questioning Detective Hudak‘s “thoroughness in submitting the entire file to Detective Storad.” Thus, on this basis alone, we reject Greathouse‘s argument on appeal that Detective Storad and/or Detective Hudak acted in bad faith. See State v. Dunn, 9th Dist. Wayne No. 03CA0037, 2004-Ohio-2249, ¶ 63 (“Bad faith implies more than bad judgment or negligence: instead, it ‘imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.‘“) (internal citation omitted), citing Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 276 (1983). Accordingly, we conclude that Greathouse‘s due process rights were not violated on the basis that potentially useful evidence was not preserved.
Assignment of Error III
The trial court committed reversible error by failing to sever Count One of the indictment from the remaining counts in the indictment.
{17} In his third assignment of error, Greathouse argues that the trial court erred by denying his motion to sever. Specifically, Greathouse contends that it was erroneous for the trial court not to sever the rape charge corresponding to A.D., which occurred in 2000, from the remaining counts which all pertain to M.S. and occurred several years later. Since Greathouse forfeited this issue for appellate review and has failed to argue plain error in the trial court‘s denial of his motion, we disagree.
{18}
[t]wo or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct.
{19} Initially, we must consider whether Greathouse forfeited his challenge to the trial court‘s ruling on his motion to sever. This Court has held that if a defendant seeks to challenge his indictment pursuant to
{20} Here, Greathouse argued at the hearing on his motion to sever that he would face “insurmountable” prejudice at trial if the charges were not severed. Specifically, Greathouse argued that rather than considering the merits of each individual case, the jury would feel compelled to convict him on all counts merely because two young victims were accusing him of similar crimes. Thus, Greathouse contested his indictment pursuant to
{21} Although Greathouse has only preserved plain error under
{22} Greathouse‘s third assignment of error is overruled.
III.
{23} With all of Greathouse‘s assignments of error having been overruled, the judgment of the Summit County Court of Common Pleas is affirmed.
There were reasonable grounds for this appeal.
Judgment affirmed.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
CARR, P. J.
CONCURS.
HENSAL, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
WILLIAM A. VASILIOU II, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.