STATE OF OHIO, PLAINTIFF-APPELLEE vs. RICHARD HLAVSA, II, DEFENDANT-APPELLANT
No. 93810
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 7, 2011
2011-Ohio-3379
BEFORE: Cooney, J., Boyle, P.J., and E. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-521746
ATTORNEYS FOR APPELLANT
Timothy Young
By: Claire R. Cahoon Assistant State Public Defender Office of the Ohio Public Defender 250 East Broad St., Suite 1400 Columbus, Ohio 43215-1400
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
By: Matthew E. Meyer Jennifer A. Driscoll T. Allan Regas Assistant County Prosecutors 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶ 1} Defendant-appellant, Richard Hlavsa, II (“Hlavsa“), appeals his convictions following a jury trial on multiple counts of rape, gross sexual imposition, and kidnapping. We find some merit to the appeal and, therefore, affirm in part and reverse in part.
{¶ 3} In his sole assignment of error, Hlavsa contends the indictment violated his constitutional right to due process because it contained numerous undifferentiated counts of rape and GSI. He claims these “carbon-copy” undifferentiated counts failed to sufficiently describe the charges to allow him to prepare his defense.
{¶ 5} The United States Supreme Court described the criteria by which the sufficiency of an indictment is to be evaluated:
“These criteria are, first, whether the indictment contains the elements of the offense intended to be charged, ‘and sufficiently apprises the defendant of what he must be prepared to meet,’ and, secondly, ‘in case any other proceedings are taken against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.‘”
Russell v. U.S. (1962), 369 U.S. 749, 764, 82 S.Ct. 1038, 8 L.Ed.2d 240, quoting Cochran and Sayre v. U.S. (1895), 157 U.S. 286, 290, 15 S.Ct. 628, 39 L.Ed. 704.
{¶ 6} Thus, to be sufficient, the indictment must: (1) contain the elements of the charged offense, (2) give the defendant adequate notice of the charges, and (3) protect the defendant against double jeopardy. Valentine v. Konteh (C.A. 6, 2005), 395 F.3d 626, 631. Although the
{¶ 7} With regard to notice of the charges, “specificity as to the time and date of the offense is not required in an indictment.” State v. Bogan, Cuyahoga App. No. 84468, 2005-Ohio-3412, ¶10. This is because, particularly in cases involving sexual misconduct with a child, the precise times and dates of the alleged offense or offenses oftentimes cannot be determined with specificity. State v. Hemphill, Cuyahoga App. No. 85431, 2005-Ohio-3726, citing State v. Daniel (1994), 97 Ohio App.3d 548, 647 N.E.2d 174. In such cases, the prosecution must set forth a time frame in the indictment and charge the accused with offenses that reasonably fall within that period. Daniel at 556.
{¶ 8} Hlavsa relies on Valentine in support of his assertion that the carbon copy counts in the indictment failed to provide him adequate notice because they did not connect each rape and GSI count to a distinct and differentiated incident. In Valentine, the United States Sixth Circuit Court
{¶ 9} A.H. estimated that fellatio and vaginal intercourse occurred “[m]aybe about 40 [times],” and that digital penetration occurred “thirty times.” She estimated that Hlavsa performed oral sex on her “maybe seven or eight times” and that he touched her in the hot tub “[m]aybe like 30 times.” These estimates do not provide adequate notice of the alleged offenses or
{¶ 10} Hlavsa was convicted of 17 counts of rape of a child over 13 years old during the period between June 1, 2008 and February 1, 2009 (Counts 15-31).
“vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body * * * into the vaginal or anal opening of another.”
{¶ 11} A.H. testified that at least one rape involving vaginal intercourse occurred in the guest bedroom in Hlavsa‘s house. Using photographs, A.H. was able to distinguish several separate acts of vaginal intercourse, fellatio, cunnilingus, and digital penetration that occurred on the floor in different areas of the basement. At least one act of vaginal intercourse occurred on the floor in an area depicted in a photo marked as State‘s Exhibit 19, which shows an area near a table. At least one act of oral sex occurred in another area near a television depicted in a photo. Additionally, Hlavsa vaginally, digitally, and orally raped her and forced her to perform fellatio on him on the couch in the basement.
“It would happen starting off with touching and then it would lead to intercourse * * * his penis would just go inside of the bikini bottom. * * * He would take his penis out of his bathing suit.”
{¶ 13} Although her testimony suggests that vaginal intercourse occurred more than once in the hot tub, only one instance is counted because there is no evidence to distinguish the other occurrences. Although A.H. testified that Hlavsa digitally penetrated her in the hot tub in January 2008, the jury found him not guilty of all rape charges of a child under the age of 13. Since A.H. reached age 13 on June 1, 2008, the jury did not convict Hlavsa of rape based on this testimony. Thus, the evidence supported a conviction for only one rape in the hot tub.
{¶ 14} Using her journal to refresh her recollection, A.H. testified that Hlavsa had sexual intercourse with her at her father‘s house on top of the comforter on her bed while her father was attending class on January 10, 2008. However, because the jury acquitted Hlavsa of all rape charges that allegedly occurred before June 1, 2008, this incident may not be “counted” to affirm a separate rape conviction. She also recalled that Hlavsa had sexual
{¶ 15} A.H. remembered the last instance of vaginal intercourse occurred on January 18, 2009. On that day, Hlavsa picked her up from her mother‘s house and went shopping at Lowe‘s before going to Hlavsa‘s house where they had vaginal intercourse.
{¶ 16} Finally, A.H. testified that Hlavsa raped her anally twice. Although A.H. did not provide details of the anal intercourse, two is a definite number as opposed to an estimate.
{¶ 17} We therefore vacate two of the rape convictions and affirm the remaining convictions for 15 counts of rape.
{¶ 18} The separate acts of GSI are not as clear. Hlavsa was convicted of three counts of GSI of a child under the age of 13 during the period from November 7 to December 31, 2007. He was also convicted of GSI of a child under the age of 13 during the period between January 8 and May 31, 2008 and GSI of a child older than 13 during the period between June 1, 2008 and February 1, 2009.
{¶ 19} The evidence at trial supports a finding of only two distinct acts of GSI of a child under the age of 13 during the period between November 7 and December 31, 2007.
{¶ 20} A.H. testified that Hlavsa first began molesting her shortly before Thanksgiving in November 2007. On the first occasion, Hlavsa laid down next to her, put his hand in her underpants and rubbed her vagina. A.H. remembered that Hlavsa molested her a second time during her next regular weekend visitation with her mother. Both of these acts of GSI occurred when she was 12 years old.
{¶ 21} Although A.H. testified that Hlavsa touched her “every other weekend” during her visitations with her mother and that he touched her in his hot tub “maybe like 30 times,” these estimates do not provide sufficient specificity to identify the acts that would support the remaining GSI convictions. Hlavsa‘s counsel concedes that a third instance was described as occurring on February 1, 2009 when A.H. was age 13. Furthermore, the acts of rape do not constitute acts of gross sexual imposition because gross sexual imposition is a lesser included offense of rape. State v. Johnson
{¶ 22} The sole assignment of error is sustained in part.
{¶ 23} Accordingly, judgment is affirmed in part as to 15 rape convictions and three GSI convictions but reversed as to two rape convictions and the remainder of the GSI convictions. Case remanded for correction of the sentencing entry consistent with this opinion.
It is ordered that appellant and appellee share 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 common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
COLLEEN CONWAY COONEY, JUDGE
MARY J. BOYLE, P.J., and EILEEN A. GALLAGHER, J., CONCUR