State v. GreshState v. Gresh
For Plaintiff-Appellee: DAVID A. YOST, DELAWARE COUNTY PROSECUTOR, BY: BRENDAN INSCHO, 140 North Sandusky Street, Delaware, OH 43015
For Defendant-Appellant: JOHN R. CORNELY, 21 Middle Street, P.O. Box 248, Galena, OH 43021-0248
{¶1} Defendant-appellant Shannon G. Gresh appeals from his conviction and sentence in the Delaware County Court of Common Pleas on two counts of raping a minor in violation of
STATEMENT OF THE CASE AND FACTS
{¶2} Nine-year-old H. S.1 testified that on April 27, 2008 appellant placed his finger inside her vagina and anus on two occasions while she was at the Gresh residence. She stated that on the first occasion he touched her in Ms. Gresh‘s bedroom, and the second time he touched her on his bed in the basement.
{¶3} H.S. was at the Gresh residence because appellant‘s sister, Sheryl Gresh, was babysitting. H.S. testified that appellant touched her only аfter Ms. Gresh left the residence.
{¶4} Eleven-year-old E.H. testified that the Gresh‘s used to live near her family. She testified that she would go over and play with Ms. Gresh‘s son. She testified that sometimes she played a “tickle game” with appellant on the couch at the residence. She testified that appellant would play the “tickle game” with her brother, Ms. Gresh‘s son and her. She testified that he touched her on her feet and armpits. Shе was unable to identify appellant in court.
{¶5} On April 29, 2008, the Delaware Ohio Police Department filed a complaint charging appellant with one count of rape in violation of
{¶7} Appellant filed a Written Plea of Not Guilty by Reason of Insanity and a Suggestion of Incompetency. On May 16, 2008, the Trial Court ordered evaluations of appellant to determine his competency to stand trial and the validity of his plea of not guilty by reason of insanity.
{¶8} On July 18, 2008, the Trial Court found appellant incompetent to stand trial and ordered that appellant undergo treatment at Twin Valley Behavioral Healthcare Center to be restored to competency.
{¶9} On January 15, 2009, the Trial Court held a hearing and found that appellant had been restored to competency. The Trial Court filed its Judgment Entry finding that appellant had been restored to competency on April 10, 2009.
{¶10} On April 8, 2009, the Trial Court held a hearing on the report regarding appellant‘s plea of not guilty by reason of insanity. On April 10, 2009, the Trial Court found that within a reasonable degree of psychological certainty that appellant was able to know the wrongfulness of his actions and that the defense of not guilty by reason of insanity was not available to him.
{¶11} Appellant filed a Motion to Suppress on April 14, 2009. The State of Ohio did not file a response. On April 21, 2009, the Trial Court conducted a hearing on
{¶12} On April 24, 2009, appellant renewed his motion for a competency evaluation. The Trial Court granted this request on May 29, 2009. On June 22, 2009, the Trial Court again found appellant competent to stand trial.
{¶13} Appellant in open court and in writing on June 22, 2009 waived his right to a jury trial. The Trial Court set a bench trial for August 24, 2009.
{¶14} On August 21, 2009, the Delaware County grand jury returned a secоnd indictment against appellant. This indictment charged him in Counts 1 through 4 with Rape in violation of
{¶15} Appellant was arraigned on August 21, 2009, and trial was set for August 24, 2009. Appellant entered а waiver of jury trial in this case on August 21, 2009.
{¶16} On August 24, 2009, a bench trial was held. The state proceeded on Counts 1 through 4 as charged in Case Number 09 CR I 08 0411, and Count 5 in Case Number 08 CR I 05 0234. The state proceeded in this manner because Count 5 as charged in Case Number 09 CR I 08 0411 contained a typographical error concerning the date of the offense.
{¶17} On August 24, 2009, the Trial Court found appellant guilty in Case Number 09 CR I 08 0411 on Counts 1 and 3 to the rape charges, and guilty of the
{¶18} The Trial Court sentenced appellant as to Count 1 to an indefinite prison term of fifteen years to life; Count 2 to a prison term of four years; Count 3 to an indefinite prison term of fifteen years to life, and Count 4 to a prison term of four years. Counts 1 and 3 were ordered to be served concurrent and Count 2 and 4 were ordered to be served consecutive to the other counts. This resulted in a total sentence of twenty-three years to life in prison.
{¶19} Appellant timely appealed and raises the following two assignments of error for our consideration:
{¶20} “I. THE TRIAL COURT ERRED IN HEARING INADMISSIBLE TESTIMONY OVER THE OBJECTION OF APPELLANT.
{¶21} “II. APPELLANT WAS DENIED THE RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION, BY THE INEFFECTIVE REPRESENTATION OF HIS TRIAL COUNSEL.”
I.
{¶22} In his first assignment of error, appellant contends that he was prejudiced by the admission of Officer Parker‘s testimony concerning what HS told him when he responded to her home. The Trial Court ruled that Officer Parker‘s testimony was not offered for the truth of the matter asserted, but to explain his investigative steps.
{¶24} “Ordinarily, a trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discrеtion is exercised in line with the rules of procedure and evidence. The admission of relevant evidence pursuant to
Evid.R. 401 rests within the sound discretion of the trial court. E.g., State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus. An appellate court that reviews the trial court‘s admission or exclusion of evidence must limit its review to whether the lower court abused its discretion. State v. Finnerty (1989), 45 Ohio St.3d 104, 107, 543 N.E.2d 1233, 1237. As this court has noted many times, the term ‘abuse of discretion’ connotes more than an error of law; it implies that the court acted unreasonably, arbitrarily or unconscionably. E.g., Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142.”
{¶25} A reviewing court should be slow to interfere unless the court has clearly abused its discretion and a party has been materially prejudiced thereby. State v. Maurer (1984), 15 Ohio St.3d 239, 264, 473 N.E.2d 768, 791. The trial court must determine whether the probative value of the evidence and/or testimony is substantially outweighed by the danger of unfair prejudice, or of confusing or misleading the jury. See State v. Lyles (1989), 42 Ohio St.3d 98, 537 N.E.2d 221.
{¶26} In the case at bar Officer Matthew Parker testified that H. S. said, “...Shannon asked her to come over and sit next to him, then he proceeded to insert his hand down her shirt.” (T. at 35). Counsel for appellant objected to the testimony and
{¶27} Officer Parker then went on to testify that, “[H.S.] еxplained that Shannon inserted his hand down her shirt, she told him to stop at least one time. She commented to me that what he did to her was wrong and it was inappropriate.” (T. at 35).
{¶28} “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
{¶29} “The hearsay rule...is premised on the theory that out-of-court statements are subject to particular hazards. The declarant might be lying; he might have misperceived the events which he relates; he might have faulty memory; his words might be misunderstood or taken out of context by the listener. And the ways in which these dangers are minimized for in-court statements-the oath, the witness’ awareness of the gravity of the proceedings, the jury‘s ability to observe the witness’ demeanor, and, most importantly, the right of the opponent to cross-examine-are generally absent for things said out of court.” Williamson v. United States (1994), 512 U.S. 594, 598, 114 S. Ct. 2431, 2434.
{¶30} Generally, a law enforcement officer is permitted to testify as to the underlying reasons for his conduct, even if that testimony includes statements made by a third party. State v. Thomas (1980), 61 Ohio St.2d 223, 232, 400 N.E.2d 401. In Statev. Blevins (1987), 36 Ohio App.3d 147, 521 N.E.2d 1105, the Tenth Appellate District set forth the test for the admissibility of such testimony: “[t]he cоnduct to be explained should be relevant, equivocal and contemporaneous with the statements. * * * Additionally, such statements must meet the standard of
{¶31} That is precisely what occurred in the case at bar. Upon consideration of the above law and the facts in the case sub judice, this Court finds that in this instance the prosecution elicited statеments that went beyond what was necessary to establish a foundation for the officer‘s subsequent actions. As in Blevins, the statement of which appellant complains “clearly [went] to an element of the offense, and * * * should have been excluded.” Therefore, we agree with appellant that the statements of H.S. as testified to by Officer Parker were improperly admitted into evidence. State v. Turner(Nov. 2, 2001), 11th Dist. No. 2000-T-0074; State v. Oliver (June 5, 1998), 6th Dist. No. L-96-298.
{¶32} However, this does not end our inquiry. We find the admission of this evidence under the facts of the case at bar did not affect appellant‘s substantial rights.
{¶33} In State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, the Ohio Supreme Court recognized that “[i]n Arizona v. Fulminante (1991), 499 U.S. 279, 306-312, 111 S. Ct. 1246, 113 L. Ed. 2d 302, the United States Supreme Court denominated the two types of constitutional errors that may occur in the course of a criminal proceeding--‘trial errors,’ which are reviewable for harmless error, and structural errors, which are per se cause for reversal. * * * Trial error is errоr which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt. * * * Structural errors, on the other hand, defy analysis by ‘harmless error’ standards because they affect the framework within which the trial proceeds, rather than simply [being] an error in the trial process itself. [Fulminante] at 309 and 310, 111 S.Ct. 1246, 113 L.Ed.2d 302. Consequently, a structural error mandates a finding of per se prejudice.” Fisher at ¶ 9. (Internal quotation marks omitted). See, also, State v. Wamsley, 117 Ohio St.3d 388, 884 N.E.2d 45, 2008-Ohio-1195 at ¶ 15. In Wamsley, the Ohio Supreme Court noted,
{¶34} “We have previously held that if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other constitutional[l] errors that may have occurred are subject to harmless-error analysis. State v. Hill (2001), 92 Ohio St.3d 191, 197, 749 N.E.2d 274), quoting Rose v. Clark (1986), 478
{¶35} In Wamsley, supra, the Ohio Supreme Court further noted, “this court has rejected the concept that structural error exists in every situation in which even serious error occurred. See State v. Hill, 92 Ohio St.3d at 199, 749 N.E.2d 274, quoting Johnson v. United States, 520 U.S. at 466, 117 S.Ct. 1544, 137 L.Ed.2d 718.
{¶36} In Ohio,
{¶37} The application of the harmless error rule is simple if, in the absence of all erroneously admitted evidence, there remains “overwhelming” evidence of guilt. State v. Morris, Medina App. No. 09CA0022-M, 2010-Ohio-4282 at ¶36. Where evidence has been improperly admitted in derogation of a criminal defendant‘s constitutional rights, the admission is harmless “beyond a reasonable doubt” if the remaining evidence alone comprises “overwhelming” proof of defendant‘s guilt. State v. Williams, 6 Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983) (quoting Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
{¶38} In the case at bar, appellаnt admitted to the conduct forming the basis of the indictment against him. Specifically, the following conversation took place during appellant‘s interview:
{¶39} “Interviewer: Tell me what happened.
{¶40} “[Appellant]: I don‘t know. She leaned up against me and then, um, and then I put my hands on her legs and then it just didn‘t feel right and I got up, walked out of the room . . . And then I was downstairs watching’ television. She came down ...and then it was just like I put my hand on her leg again and she told me no and then I stоod up and I walked out. And then it just got to a point where it was like the voice in my head said, “Do it; do it.”
{¶42} “[Appellant]: No; I never when up her shirt. No.
{¶43} “Interviewer: What about down the back of her pants?
{¶44} “[Appellant]: Yeah; one time.” State‘s Exhibit 32 at 15.
{¶45} Later in the interview, appellant specifically mentioned each room in the house where the sexual abuse occurred.
{¶46} “Interviewee: There was, yeah, once upstairs, once in the kitchen, and once in the living room.
{¶47} “[Appellant]: Was there any more times than that?
{¶48} “Interviewee: Or and there was once in the basement.
{¶49} “[Appellant]: The basement, living room, kitchen and bedroom.
{¶50} “Interviewee: Yeah.” State‘s Exhibit 32 at 18.
{¶51} Further, HS testified at trial in detail as to how and where the appellant touched her.
{¶52} We have reviewed the record and we find there is no reasonable probability that the improperly admitted evidence actually contributed to the accused conviction. Accordingly, appellant‘s substantial rights were not violated by the admission of H.S. statement‘s during the testimony of Officer Parker.
{¶53} Appellant‘s first assignment of error is overruled.
II.
{¶55} A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry is whether counsel‘s performance fell belоw an objective standard of reasonable representation involving a substantial violation of any of defense counsel‘s essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel‘s ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.
{¶56} To prevail on this claim, appellant must meet both the deficient performance and prejudice prongs of Strickland and Bradley. Knowles v. Mirzayance (2009), --- U.S. ----, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251.
{¶57} To show deficient performance, appellant must establish that “counsel‘s representation fell below an objective standard of reasonableness.” Strickland, at 688. In light of “the variety of circumstances faced by defense counsel [and] the range of legitimate decisions regarding how best to represent a criminal defendant,” the performance inquiry necessarily turns on “whether counsel‘s assistance was reasonable cоnsidering all the circumstances.” Id., at 688-689. At all points, “[j]udicial scrutiny of counsel‘s performance must be highly deferential.” Id., at 689.
{¶58} Appellant must further demonstrate that he suffered prejudice from his counsel‘s performance. See Strickland, 466 U.S., at 691 (“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal
{¶59} The United States Supreme Court and the Ohio Supreme Court have held a reviewing court “need not determine whether counsel‘s performancе was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Bradley at 143, quoting Strickland at 697.
{¶60}
{¶61} “If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, information or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires.”
{¶62}
{¶63} “Two 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 оf 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.”
{¶65} When a defendant claims that he or she was prejudiced by the joinder of multiple offenses, the court must determine (1) whether evidence of the other crimes would be admissible even if the counts were severed; and (2) if not, whether the evidence of each crime is simple and distinct. State v. Schaim (1992), 65 Ohio St.3d 51, 59, 600 N.E.2d 661, citing State v. Hamblin (1988), 37 Ohio St.3d 153, 158-159, 524 N.E.2d 476 and Drew v. United States (C.A.D.C., 1964), 331 F.2d 85. See also, State v. Pryor, Stark App. No. 2007-CA-00166, 2008-Ohio-1249 at ¶ 61.
{¶66} Assuming, arguendo, that the evidence did not fit the “other acts” exception, it nevertheless fits the second prong of the Schaim test which requires the evidence of the crime under each indictment to be simple and distinct, 65 Ohio St.3d at 59. In State v. Decker (1993), 88 Ohio App.3d 544, the court found that the evidence was simple and distinct. The evidence achieved these characteristics in part because the crimes involved contained different victims and different witnesses, and therefore, the jury was able to segregate the facts that constituted each crime. Decker, 88 Ohio App.3d at 549; State v. Pryor, supra, ¶67.
{¶67} In examining the record to determine this issue, we may give weight to the fact that the error occurred in a trial to the court, rather than in a jury trial. State v. White (1968), 15 Ohio St.2d 146, 151, 239 N.E.2d 65; State v. Austin (1976), 52 Ohio App.2d 59, 70, 368 N.E.2d 59. Indeed, a judge is presumed to consider only the relevant, material and competent evidence in arriving at a judgment, unless the contrary affirmatively appears from the record. State v. White, supra, 15 Ohio St.2d at page 151, 239 N.E.2d 65; State v. Eubank, 60 Ohio St.2d 183, 187, 398 N.E.2d 567, 569-570; Columbus v. Guthmann (1963), 175 Ohio St. 282, 194 N.E.2d 143, paragraph three of the syllabus.
{¶68} There is no showing in the record that the trial court relied upon the fact that appellant had been charged in two separate cases involving two different victims in arriving at its verdicts. Indeed in the case at bar, E.H. failed to disclose any sexual abuse at trial and the court dismissed her count pursuant to
{¶70} For the foregoing reasons, the judgment of the Delaware County Court of Common Pleas, Ohio, is affirmed.
By Gwin, J.,
Edwards, P.J., and
Hoffman, J., concur
HON. W. SCOTT GWIN
HON. JULIE A. EDWARDS
HON. WILLIAM B. HOFFMAN
WSG:clw 1018
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Delaware County Court of Common Pleas, Ohio, is affirmed. Costs to appellant.
HON. W. SCOTT GWIN
HON. JULIE A. EDWARDS
HON. WILLIAM B. HOFFMAN