State v. HensleyState v. Hensley
Thomas R. Koustmer, 125 East Court Street, Suite 1000, Cincinnati, Ohio 45202, for defendant-appellant
O P I N I O N
YOUNG, P.J.
{¶1} Defendant-appellant, Brandon Hensley, appeals his conviction and sentence in the Warren County Common Pleas Court for gross sexual imposition.
{¶2} The charges in this case arose from separate allegations of improper sexual contact between appellant and his former girlfriend‘s 11-year-old daughter, “S.W.” and S.W.‘s 11-year-old best friend, “E.M.” The prosecution presented the
{¶3} E.M. testified that the incident with appellant occurred after S.W.‘s mother, Elizabeth L.W. (Elizabeth), took the girls swimming on June 27, 2009. Upon return to S.W.‘s house, E.M. and S.W. fell asleep on the living room couch, wearing only their bathing suits. E.M. testified she awoke at 5:30 a.m. because she felt someone‘s hand beneath her bathing suit “squeezing” her buttocks. E.M. testified that Elizabeth subsequently entered the living room and asked appellant what he was “doing to her.” At that point, E.M. testified she discovered appellant sitting beside her and that he “jerked his hand away when [Elizabeth] came in.” E.M. testified that a short while later, appellant and Elizabeth began to argue, at which time appellant flipped a television and a coffee table, kicked an air conditioning unit and threw a bucket.
{¶4} Detective Brandi Carter of the Warren County Sheriff‘s Office testified she interviewed E.M. and S.W. separately regarding their allegations against appellant. Carter interviewed E.M. first, who appeared “obviously upset” and “confused as to why this happened.” The next day, Carter interviewed S.W. in the presence of a Warren County Children‘s Services employee, Allison Handy. During the interview, S.W. stated that two incidents with appellant occurred in October 2008, when he babysat S.W. and her siblings while her mother, Elizabeth, was incarcerated. Handy testified as follows:
{¶5} “The first incident [S.W.] discussed that she had woken up to [appellant] carrying her from her brother‘s bedroom, where she had fallen asleep, into another bedroom in the home. She said that he touched her bare breasts and her bare butt and that she was able to escape from him and she had run into the living room
{¶6} S.W. also testified at trial, but recanted her statements to Carter and Handy. S.W. testified that she lied throughout the investigation because she wanted her mother, Elizabeth, and appellant to “break up.” S.W. also testified that she set the allegations in October 2008 because she knew her mother was incarcerated during that time.
{¶7} At the close of the state‘s evidence, appellant moved for a dismissal of Counts One and Two pursuant to
{¶8} Appellant now appeals his conviction, raising four assignments of error. For ease of discussion, appellant‘s third and fourth assignments of error will be addressed out of order.
Assignment of Error No. 1:
{¶10} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT BY ALLOWING THE STATE TO AMEND THE INDICTMENT AFTER THE TRIAL IN VIOLATION OF CRIMINAL RULE 7(D) AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
{¶11} In his first assignment of error, appellant argues that the trial court should not have amended the indictment because it changed the degree of the charged offense, thus altering its identity. We find no merit in appellant‘s argument.
{¶12} Pursuant to
{¶13} As a general rule, where the “name” of the offense remains the same, even after amendment, there is no violation of
{¶14} In the case at bar, it is obvious that the name of the offense was not changed, as both the original and amended indictments charged appellant with gross sexual imposition under
{¶15} We first note that the Supreme Court of Ohio held that
{¶16} We find that the general rule espoused in Davis has no application to the case at bar. Here, the amendment did not alter the substantive activities or the potential penalties associated with appellant‘s charge. Rather, both the original and amended indictments charged appellant with the exact same crime, a violation of
{¶17} Having established that the amendment did not change the name or identity of the offense charged, we must now review the trial court‘s decision to allow the amendment under an abuse-of-discretion standard. Craft, 2008-Ohio-675 at ¶27. To constitute reversible error, appellant must show not only that the trial court abused its discretion, but also that the amendment hampered or otherwise prejudiced appellant‘s defense. Id.
{¶18} We find that the trial court did not abuse its discretion by permitting the amendment because appellant was not prejudiced by it. First, the statutory language quoted in the original indictment put appellant on notice that he was charged under
{¶19} Therefore, appellant‘s first assignment of error is overruled.
Assignment of Error No. 2:
{¶21} “THE TRIAL COURT ERRONEOUSLY ADMITTED CERTAIN HEARSAY TESTIMONY IN VIOLATION OF EVIDENCE RULE 807, DENYING THE DEFENDANT HIS RIGHT TO CONFRONTATION AS GUARANTEED BY THE 6TH AND 14TH AMENDMENTS OF THE U.S. CONSTITUTION AND SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION RESULTING IN UNDUE PREJUDICE.”
{¶22} In his second assignment of error, appellant challenges portions of Detective Carter‘s testimony as inadmissible hearsay. Appellant argues that the trial court erroneously admitted Carter‘s testimony regarding statements E.M. made to her, describing her alleged unwanted sexual encounter with appellant. Appellant argues that Carter‘s testimony was highly prejudicial and “heavily influenced the verdict.”
{¶23} In light of E.M.‘s extensive testimony regarding her encounter with appellant, Detective Carter‘s testimony was merely cumulative. Thus, even if Carter‘s testimony was improper, we find such alleged hearsay error did not affect appellant‘s substantial rights and therefore constitutes harmless error. See
{¶24} Therefore, appellant‘s second assignment of error is overruled.
Assignment of Error No. 4:
{¶26} “THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ADMITTED OTHER-ACTS EVIDENCE IN VIOLATION OF
{¶27} In his fourth assignment of error, appellant argues that the trial court committed plain error in admitting photographs and testimony regarding an alleged domestic violence incident on June 28, 2009. The evidence showed that on this date, appellant became violent and threw furniture around S.W.‘s mother‘s living room during an argument. Appellant argues this evidence was admitted to show that because he was “previously charged with domestic violence, he has a violent character and a propensity to commit violent acts.” On the other hand, the state argues the evidence was offered “for the purpose of showing that E.M. and S.W. may have had reason to fear the Appellant and as a possible explanation for S.W.‘s recantation.”
{¶28} The record shows that at the outset of trial, the court overruled appellant‘s motion in limine and admitted State‘s Exhibits 1-3, depicting an overturned coffee table and television set, and damage to an air conditioning unit and door hinges. The trial court also admitted, without objection from appellant, testimony from E.M., S.W., Elizabeth, Deputy Randy Asencio, and Detective Carter regarding appellant‘s alleged violence toward these household items.
{¶29} At the outset, we note that a motion in limine, if granted, “is a tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory treatment of the evidentiary issue.” State v. Baldev, Butler App. No. CA2004-05-106, 2005-Ohio-2369, ¶11, quoting State v. Grubb (1986), 28 Ohio St.3d 199, 201-203. A motion in limine is “directed to the inherent discretion of the trial judge, about an evidentiary issue that is anticipated, but has not yet been presented in full context.” State v. Harris, Butler App. No. CA2007-11-280, 2008-Ohio-4504, ¶27; Grubb at 201. The trial court‘s ruling on a motion in limine does not preserve the record on appeal. Harris at ¶27. Instead, “any claimed error regarding a trial court‘s decision on a motion in limine must be preserved at trial by an objection, proffer, or ruling on the record[.]” Id.
{¶30} Appellant‘s failure to object to the admissibility of this evidence at trial waived any error except plain error. Id.;
{¶31} In the case at bar, appellant has not established that the outcome of trial would have been different but for the alleged error. As previously discussed, the jury heard ample evidence of appellant‘s guilt, including extensive testimony from
{¶32} Based on the evidence presented, the court‘s limiting instruction, and the jury‘s ability to determine the witnesses’ credibility, there was ample evidence to support appellant‘s conviction, such that testimony regarding the alleged domestic violence incident did not taint or undermine the jury‘s determinations. Cf. State v. Rankin, Clinton App. No. CA2004-06-015, 2005-Ohio-6165, ¶42-52; State v. Dubose, Mahoning App. No. 00-C.A.-60, 2002-Ohio-3020, ¶43 (evidence that appellant beat up his girlfriend after learning of her affair with appellant‘s shooting victim was “relevant to show why [the victim] may have been afraid of Appellant and why [the victim] could have briefly recanted his identification of Appellant as the shooter“). We decline to recognize any plain error.
{¶33} Accordingly, appellant‘s fourth assignment of error is overruled.
Assignment of Error No. 3:
{¶35} “DEFENDANT-APPELLANT WAS DENIED HIS RIGHTS OF DUE PROCESS AND ASSISTANCE OF COUNSEL AS GUARANTEED BY THE 6TH AND 14TH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1
{¶36} In his third assignment of error, appellant argues that his counsel‘s failure to (1) move for severance pursuant to
Ineffective Assistance of Counsel: Severance
{¶37} Appellant first argues his trial counsel was ineffective for failing to move to sever Counts One and Two, involving S.W., from Count Three, involving E.M. As a result, appellant believes he suffered prejudice and would not have been convicted, but for the evidence of other criminal acts introduced as a result of the joinder. We find no merit in appellant‘s argument.
{¶38} In an ineffective assistance of counsel claim, a defendant must (1) demonstrate that his counsel‘s performance fell below an objective standard of reasonable representation, and if so (2) show that he was prejudiced by such deficient performance, i.e., that there was a “reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington (1984), 466 U.S. 668, 687-694, 104 S.Ct. 2052; State v. Raleigh, Clermont App. No.CA2009-08-046, CA2009-08-047, 2010-Ohio-2966, ¶13.
{¶39} In order to prevail on a claim of ineffective assistance of counsel in a case involving a failure to make a motion on behalf of a defendant, the defendant must show “(1) that the motion * * * was meritorious, and (2) that there was a reasonable probability that the verdict would have been different had the motion been made[.]” Raleigh at ¶14, quoting State v. Kring, Franklin App. No. 07AP-610, 2008-Ohio-3290, ¶55.
{¶40} Upon a demonstration of prejudice, a defendant may move to sever the offenses within an indictment, pursuant to
{¶41} After a thorough review of the record, which includes a lengthy transcript of the two-day jury trial, we believe that the evidence relating to each crime was simple and direct under the “joinder test.” At trial, the state elicited victim specific testimony from each witness, ensuring that discussions regarding each victim‘s unwanted sexual encounters with appellant remained separate.3 Moreover,
{¶42} In sum, the state made it clear that each victim‘s alleged encounters with appellant were separate, distinct incidents. As a result, we find that the evidence pertaining to each victim and each offense could easily be segregated and was unlikely to confuse the jury.
{¶43} In light of the foregoing, we find that, had appellant‘s trial counsel moved to sever, the court would have denied the motion. Because the evidence of each crime was simple and direct, a motion to sever would not have been meritorious. Therefore, appellant cannot succeed on this ineffective assistance of counsel claim. See Raleigh, 2010-Ohio-2966.
Ineffective Assistance of Counsel: Domestic Violence Evidence
{¶44} Appellant next argues that his trial counsel‘s failure to object to evidence pertaining to the alleged domestic violence incident in June 2009 constituted ineffective assistance of counsel.
{¶45} As discussed above, appellant must first show that his counsel‘s performance fell below an objective standard of reasonable representation. Strickland, 466 U.S. at 687. Second, appellant must show that he was prejudiced by such deficient performance. Id. An appellant is prejudiced by his trial counsel‘s performance if there is a “reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
{¶46} Just as appellant could not demonstrate plain error, appellant cannot show that a reasonable probability exists that, but for his trial counsel‘s failure to object to this evidence, the outcome of his trial would have been different. See State v. Phelps, Warren App. No. CA2009-04-035, 2010-Ohio-1105, ¶36-37. Accordingly, appellant‘s final assignment of error is overruled.
{¶47} Judgment affirmed.
BRESSLER and POWELL, JJ., concur.
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Notes
{¶a} For example, during Detective Carter‘s testimony, the state avoided intermingling Carter‘s testimony regarding her interview with each victim. First, Carter testified that she interviewed E.M. on July 6, 2009, and carefully relayed E.M.‘s description of her encounter with appellant. Carter then testified that she interviewed S.W. “the next day,” depicting only S.W.‘s version of the events. Further, E.M. and S.W.‘s testimony remained victim-specific. The state effectively separated each victim‘s encounters by making the following statements:
{¶b} MR. SIEVERS [prosecuting attorney]: “Now, have you ever talked to S.W. about anything that may have happened to her?”
{¶c} E.M.: “No.”
{¶d} Additionally, during S.W.‘s direct testimony, the state asked the following questions:
{¶e} MR. SIEVERS [prosecuting attorney]: “Okay. And now, the night when all this happened, did you and [E.M.] talk about what happened to her at all?”
{¶f} S.W.: “No.”
{¶g} MR. SIEVERS: “Did you and [E.M.] talk at all about what she says [appellant] did to her?”
{¶h} S.W.: “No.”
{¶i} MR. SIEVERS: “Okay. Have you talked to [E.M.] about what you told the police he did to you?”
{¶j} S.W.: “No.”