State v. KocevarState v. Kocevar
OPINION
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee
CATHERINE H. BREAULT and JON PAUL RION, Attorneys for Appellant
WELBAUM, P.J.
{¶ 1} Defendant-Appellant Peyton Kocevar appeals from his convictions on three counts of rape and one count of gross
{¶ 2} According to Kocevar, the trial court erred in the following ways: (1) by refusing to sever the multiple sexually-oriented charges for trial; (2) by denying Kocevar‘s motion to dismiss the rape charge involving K.K. due to the State‘s delay in initiating prosecution; and (3) by sentencing Kocevar as an adult to mandatory terms of incarceration in violation of his right to equal protection and prohibitions against cruel and unusual punishment and ex post facto laws. In addition, Kocevar contends his convictions should be reversed and remanded due to cumulative error.
{¶ 3} After reviewing the record, we conclude that Kocevar‘s assignments of error lack merit. The trial court correctly found that the charges should not be severed for trial because the evidence was simple and direct. In addition, the State did not unjustifiably delay in prosecuting Kocevar. Instead, any delay was the result of the victims’ delay in reporting sexual assaults to the police. Furthermore, Kocevar was not deprived of any constitutional rights by being tried and sentenced as an adult. Under
I. Facts and Course of Proceedings
{¶ 5} On June 26, 2020, an indictment was filed charging Kocevar with seven counts of rape, first-degree felonies, and two counts of gross sexual imposition (by force), fourth-degree felonies. Five rape charges were alleged to have been by force or threat of force, two were alleged to have involved a substantially impaired victim, and the nine total charges involved six alleged victims. The listed dates of the offenses were various dates in 2012, 2013, 2014, and 2016, when Kocevar was a minor and was in high school. After Kocevar pled not guilty, bond was set at $100,000 C/S, which was posted, and he was placed on electronic home detention with instructions that he have no contact with victims or minors. Kocevar was represented by retained counsel and waived his speedy trial rights on August 12, 2020. {¶ 6} On September 24, 2020, Kocevar filed a motion for a bill of particulars,
{¶ 7} On October 27, 2020, Kocevar filed a motion asking the court to sever the counts pertaining to each complaining witness. On the same day, Kocevar also filed a motion to suppress any statements he may have made as the result of an alleged illegal arrest and interrogation and a motion to dismiss all counts of the indictment based on the State‘s undue delay in bringing the prosecution. After the State responded, the court held evidentiary hearings on December 21, 2020, and March 12, 2021. The parties then filed post-hearing memoranda addressing the issues.
{¶ 8} On June 17, 2021, the court denied Kocevar‘s suppression motion, finding that Kocevar had not been in custody when police interviewed him, that Miranda warnings had not been required, and that his statements had been knowingly and voluntarily made. The court then filed a decision on June 21, 2021, partly granting and partly denying Kocevar‘s motion to dismiss. In this decision, the court found that preindictment delay had prejudiced Kocevar with respect to only one complainant, K.K., due to credible evidence that Kocevar‘s father, Chad, had been present at the time of the October 2014 incident and had denied near that time that anything had happened. Chad had died in 2016, and Kocevar would not be able to obtain his testimony for trial. Decision, Entry and Order Granting in Part and Denying in Part Defendant‘s Motion to Dismiss (June 21, 2021), p. 2-3.
{¶ 9} On June 28, 2021, the State filed a motion for reconsideration of the court‘s ruling on the motion to dismiss. In support, the State argued that the trial court had failed to consider whether the State had had a justifiable basis for the delay. After Kocevar responded, the court issued a decision on July 19, 2021, concluding that the delay had been caused by K.K.‘s failure to disclose allegations of sexual assault at the time, rather than by the State‘s conduct. The court then overruled Kocevar‘s motion to sever on August 6, 2021, finding that the State‘s evidence was “simple and direct.” Decision, Order and Entry Denying Defendant‘s Motion to Sever (Aug. 6, 2021), p. 5.
{¶ 10} On August 9, 2021, Kocevar filed a response to the court‘s reversal of its decision on the motion to dismiss and asked for another hearing. On August 24, 2021, the court set the matter for a further evidentiary hearing on September 13, 2021. During the hearing, additional testimony from four witnesses was presented, and the parties again submitted memoranda. On October 14, 2021, the court filed another decision, affirming its prior order vacating the dismissal of Count One. Therefore, the claims of all six alleged victims were included in the trial.
{¶ 12} Before that trial, Kocevar filed another motion asking the court to sever the remaining counts. However, the court denied the motion on April 11, 2022, finding that the case was simple and direct, based on the jury‘s mixed verdicts. Order and Entry Denying Defendant‘s Motion to Sever (Apr. 11, 2022), p. 1. After the second trial, the jury found Kocevar guilty of the remaining three charges (rape as to K.K., and rape and gross sexual imposition as to A.H.). The trial court then sentenced Kocevar to a total of 11 years in prison and ordered that he be subject to registration as a Tier III sex offender. This timely appeal followed.
II. Denial of Severance
{¶ 13} Kocevar‘s first assignment of error states that:
The Trial Court Erred in Denying Severance of the Charges by Finding the Evidence Was Simple and Direct, Resulting in Prejudicing [sic] to Kocevar When Convicted Upon Retrial of the Indictment.
{¶ 14} Under this assignment of error, Kocevar contends the trial court was required to order separate trials of the charges because the cases were not simple and direct. He further argues that joinder impermissibly prejudiced him because the State “synced” the identities of the complaining witnesses. In particular, Kocevar focuses on the alleged prejudicial effect of the charges involving A.H. According to Kocevar, the State failed to prove the element of force, and the only reason the second jury found him guilty was due to the prejudicial effect of joining A.H.‘s case with that of K.K.
{¶ 15} As a preliminary point, we note that Kocevar failed to renew his objection to joinder either at the end of the State‘s case or at the conclusion of the evidence. See Transcript of Proceedings (Jury Trial) (“Trial Tr. 2“), p. 321 and 354-355. “* * * [I]f a motion for prejudicial misjoinder is not renewed at the close of the state‘s case or at the conclusion of the evidence, a defendant forfeits his ability to raise the issue on appeal and we review the matter only for plain error.” State v. McComb, 2017-Ohio-4010, 91 N.E.3d 255, ¶ 51 (2d Dist.), citing State v. Stargell, 2016-Ohio-5653, 70 N.E.3d 1126, ¶ 12 (2d Dist.). (Other citations omitted.) Therefore, we review this issue for plain error only.
{¶ 16} “To prevail under the plain-error standard, a defendant must show that an error occurred, that it was obvious, and that it affected his substantial rights.” State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 62. An error affecting substantial rights “must have affected the outcome of the trial.” State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). The law is well-established that “[n]otice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus. No such error occurred here.
{¶ 18} “A defendant claiming error in the trial court‘s refusal to allow separate trials of multiple charges under
{¶ 19} “When a defendant claims that he was prejudiced by the joinder of multiple offenses, a 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, 65 Ohio St.3d 51, 59, 600 N.E.2d 661 (1992), citing Hamblin at 158-159. “If the evidence of other crimes would be admissible at separate trials, any ‘prejudice that might result from the jury‘s hearing the evidence of the other crime in a joint trial would be no different from that possible in separate trials,’ and a court need not inquire further.” Id., quoting Drew v. United States, 331 F.2d 85, 90 (D.C. Cir.1964).
{¶ 20} Here, Kocevar included discussion of the “other acts test” in his brief but conceded it was not satisfied here. Appellant‘s Brief, p. 13-14. We note that Kocevar did go on to discuss this test in the context of the retrial, contending that the jury convicted him of charges involving A.H. not because A.H.‘s allegations had any merit, but because the charges were combined with the rape charge involving K.K. Id. at p. 21. However, the trial court did not rely on the other acts test in denying either of Kocevar‘s motions to sever. Instead, the court relied on the second part of the test. As a result, we need not consider whether the “other acts” test would be satisfied here.
{¶ 21} “Under the second method, the ‘joinder’ test, the state is not required to meet the stricter ‘other acts’ admissibility test, but is merely required to show that evidence of each crime joined at trial is simple and direct.” Lott, 51 Ohio St.3d at 163, citing State v. Roberts, 62 Ohio St.2d 170, 175, 405 N.E.2d 247 (1980). (Other citations omitted.) “Thus, 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 Evid.R. 404(B).” Id.
{¶ 22} The Supreme Court of Ohio has said that evidence is “simple and direct,” where (1) proof of each offense is “separate and distinct” or could be “readily separated“; (2) the jury is unlikely to be confused; and (3) “the evidence of each crime is uncomplicated.” State v. Coley, 93 Ohio St.3d 253, 260, 754 N.E.2d 1129 (2001); State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 52; and State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 52.
{¶ 23} An additional point to consider is the trial court‘s cautionary jury instructions. E.g., Clinton at ¶ 52. Furthermore, the simple and direct test “focuses on whether the trier of fact is likely to consider ‘evidence of one [offense] as corroborative of the other * * *.’ ” State v. Wiles, 59 Ohio St.3d 71, 77, 571 N.E.2d 97 (1991), quoting Dunaway v. United States, 205 F.2d 23, 27 (D.C. Cir.1953). Joinder may be prejudicial when the offenses are unrelated and the evidence as to each is very weak, * * * but it is otherwise when the evidence is direct and uncomplicated and can reasonably be separated as to each offense.” (Citations omitted.) Torres, 66 Ohio St.2d at 343-344.
{¶ 24} “For an appellate court to reverse a trial court ruling denying severance, the defendant must demonstrate that the trial court abused its discretion.” Id. Accord State v. Barksdale, 2d Dist. Montgomery No. 21848, 2008-Ohio-182, ¶ 22. An abuse of discretion ” ‘implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.’ ” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “[M]ost instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A decision is unreasonable if there is no sound reasoning process that would support that decision.” Id. However, “courts lack the discretion to make errors of law.” Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 39.
{¶ 25} In denying Kocevar‘s motion to sever, the trial court found before the first trial that the evidence was simple and direct. This was based on the court‘s consideration of the bill of particulars and the evidence presented at the hearing on the motion to sever. Decision, Order, and Entry Denying Defendant‘s Motion to Sever (Aug. 6, 2021), p. 5. The defense renewed the motion to sever on the record at the first trial, and the court again denied it. Transcript of Proceedings (Jury Trial) (“Trial Tr. 1“), p. 14-15.
{¶ 26} As indicated, the first trial resulted in conviction on one rape count (J.T.), not guilty findings on five counts, and a hung jury with respect to two rape counts (A.H. and K.K.) and one count of gross sexual imposition (A.H.). Consequently, the second jury trial involved only two victims and three sexual assault charges.
{¶ 27} Before the second trial, Kocevar again filed a motion seeking to sever the trial of the offenses related to the two remaining victims. The trial court denied this motion for the same reasons it had previously expressed. See Decision, Order, and Entry Denying Defendant‘s Motion to Sever (Apr. 11, 2022), p. 1. The court added that, given the reduction of witnesses and counts for the second trial, “the evidence will be even easier for the jury to follow.” Id.
{¶ 28} Having reviewed the record, we agree with the trial court and find no error, let alone plain error. The first trial involved six victims and nine alleged sexual offenses, but the evidence concerning each alleged victim was not complicated, nor was it difficult to understand. The jury was able to separate the evidence and acquit Kocevar of the rapes of three victims and to find him guilty of only the rape of one victim. During the second trial, the jury found Kocevar guilty of the three remaining charges involving K.K. and A.H.
{¶ 30} Five victims alleged sexual offenses that occurred on only one occasion; the other victim‘s (R.O.‘s) complaint involved offenses that took place on two separate occasions. All the offenses also occurred primarily in one location -- the apartment or house where Kocevar lived at the time -- and there were not many witnesses other than the victims.
{¶ 31} No victim reported a sexual offense until June 2020. Reporting only occurred after a June 4, 2020 “tweet” appeared on Twitter. The author of the tweet stated that, “I know a rapist who is now a cop. He went to my high school actually. System is so f*cked.” Trial Tr. 1 at p. 62-63 and State‘s Ex. 1A. At the time of the tweet, Kocevar was employed as a police officer in Waynesville, Ohio. A subsequent tweet identified Kocevar by name, and victims began reporting sexual offenses to the Centerville Police Department (“CPD“), which then investigated. Id. at 64, 232, 281, 283, 317-318, 374-375, and 499, and State‘s Ex. 1B. Ultimately, Kocevar was charged with nine offenses involving six victims.
{¶ 32} In challenging the court‘s decision on the motion to sever, Kocevar argues that the State made multiple remarks during closing argument of the second trial that “looped together and synced the identities of the complaining witnesses,” and that joinder prejudicially allowed the jury to consider “other acts” evidence and to convict on the charges involving A.H. Appellant‘s Brief at p. 24. According to Kocevar, this was particularly troubling because the evidence of force in A.H.‘s case was ” ‘at best thin,’ ” and the State never demonstrated that A.H. had communicated a lack of consent. Id. at p. 36-37. Having reviewed the evidence, we disagree.
{¶ 33} At the time of the alleged sexual assault, A.H. was 15 years old. She and Kocevar had mutual friends even though they had attended different Catholic grade schools. A.H. first met Kocevar at a junior high dance that took place with other Catholic schools, but they did not become friends until their freshman or sophomore year of high school. Trial Tr. 2 at p. 56-57 and 59. A.H. indicated that they had attended different high schools, that she had never been romantically involved with Kocevar, that she never considered him a romantic interest, and that she did not believe he ever had a romantic interest in her. Id. at p. 57.
{¶ 34} A.H. lived north of downtown Dayton, about 25 minutes away from where Kocevar lived. In the summer of 2014, A.H., Kocevar, and a mutual friend, Sean Pauley, arranged to hang out together, and A.H.‘s mother drove her to Kocevar‘s apartment. It was around 8:00 p.m. Id. at p. 57-59 and 71. A.H. had known Pauley since seventh or eighth grade, and they had had a middle-school relationship for a few months, during which they had kissed a few times. However, they were just friends in 2014. Id. at p. 60-61 and 335. Pauley and Kocevar went to school together at Alter during their freshman year of high school and were best friends. Id. at p. 334-335.
{¶ 35} When A.H. got to the apartment, Kocevar‘s father, Chad, was there, watching TV in the living room. Chad was in a wheelchair. Id. at p. 61-62. A.H. spoke briefly to Chad and then she and Kocevar went out to a fenced-in patio area, where they and Pauley sat for about an hour. A.H. then asked Kocevar if she could use the restroom and asked him show her
{¶ 36} When A.H. left the bathroom, she could see Chad watching TV, but she could not see him from the bedroom. Id. at p. 63. Kocevar sat down on the bed while still holding A.H.‘s hand and pulled her to sit down on the bed. A.H. did not know what was happening and did not want to be in Kocevar‘s room. Id. at p. 64. She had never been in there before and did not want or expect that to happen. Id. at p. 65. Kocevar kissed A.H. and she stated that she did not return his kiss. A.H. did testify at the first trial that she had kissed Kocevar back ” ’ [m]aybe once.’ ” Id. at p. 79 and 83.
{¶ 37} After Kocevar kissed her, A.H. pulled away and said, “I don‘t think this is a good idea. We should go back outside.” Id. at p. 84. Kocevar then said, “No, it‘s okay. Just don‘t be too loud so my dad doesn‘t hear you.” Id. Kocevar‘s hand was still holding A.H., and Kocevar then unbuttoned the button on A.H.‘s pants, unzipped her pants, and put his hand into her pants under her underwear. Kocevar then put his fingers into A.H.‘s vagina. A.H. did not want that to happen. Id. at p. 66.
{¶ 38} Kocevar took his hand out of A.H.‘s pants, grabbed her other hand that he was not holding, and slipped A.H.‘s hand into the waistband of his pants and into his pants. Id. at p. 68. Kocevar‘s penis was erect, and A.H. was not able to remove her hand. Kocevar had A.H.‘s hand on his penis and “was moving it up and down over his penis.” Id. at p. 68-69. This ultimately stopped. A.H. testified that:
I remember at that point I don‘t believe that I was saying anything anymore. I just felt defeated. I had -- I mean I had said things slightly, it feels like five to ten phrases of I don‘t want to do this or we should go back outside or we should stop.
And so by that point, I had just stopped speaking because it wasn‘t -- didn‘t feel like it as [sic] making a difference anyways. And then he had stopped moving my hand onto his penis and he had gotten up and he said, okay, let‘s go back outside.
Trial Tr. 2 at p. 69.
{¶ 39} A.H. further testified that Kocevar was bigger and stronger than she was. Id. at p. 78. After stopping, Kocevar left his bedroom and went back outside. A.H. then got up, zipped and buttoned her pants, and went outside, as her phone was outside on the patio. As soon as she got back to the patio, A.H. texted her mother and asked her to come and pick her up. Id. at p. 70.
{¶ 40} A.H.‘s mother also testified at the second trial. She said that when A.H. texted asking to be picked up, this was kind of unusual because the visit had been unusually short. In fact, A.H.‘s mother was not quite home when she received the text. Id. at p. 94. Additionally, A.H. was completely quiet on the way home, which was also unusual. Id. at p. 97. A.H. testified that she did not tell anyone and definitely did not tell her mother, because she was afraid that people would view her as a “slut,” felt uncomfortable talking about it, and did not think people would believe her. Id. at p. 72. Immediately after that night, A.H. blocked Kocevar on Instagram and deleted his phone number. She never talked to Kocevar again after that evening. Id.
{¶ 41} The charges involving A.H. were contained in counts five and six of the indictment, which alleged “sexual conduct” in violation of
{¶ 42} “Force” is defined under
{¶ 43} Furthermore, contrary to Kocevar‘s contention, “Ohio‘s rape statute does not require proof of the victim‘s lack of consent.” State v. Hartman, 2016-Ohio-2883, 64 N.E.3d 519, ¶ 27 (2d Dist.). Nonetheless, based on the above facts, lack of consent could have reasonably been found.
{¶ 44} We note that very recently, a federal district court granted a conditional writ of habeas corpus to Hartman based on a finding that he “was denied effective assistance of counsel when his attorney repeatedly elicited facts concerning the use of force that were not elicited by the prosecutor on direct examination.” Hartman v. Ohio Adult Parole Auth., S.D.Ohio No. 3:19-CV-003, 2023 WL 2746209, *25 (Mar. 31, 2023).
{¶ 45} This decision, however, has no bearing on Hartman‘s observation that Ohio‘s rape statute does not require proof of lack of a victim‘s consent. Our district and others have made this comment. E.g., State v. Roberson, 6th Dist. Lucas No. L-16-1131, 2017-Ohio-4339, ¶ 67 (“[a] victim‘s non-consent to sexual conduct is not required to prove forcible rape; rather, evidence of consent -- or lack thereof -- goes to the state‘s ability to prove whether the defendant purposefully forced or compelled the victim. * * * Courts have found sufficient force to support a conviction under
{¶ 46} We also note that Kocevar has not challenged his convictions based on insufficiency of the evidence nor has he argued that they were against the manifest weight of the evidence. Instead, he has simply said that the evidence about force with respect to A.H. was “thin” and was improperly buttressed by joinder of those charges with the rape charge involving K.K. Again, we disagree.
{¶ 47} In arguing that joinder should not have been allowed, Kocevar relies heavily on State v. Kaufman, 187 Ohio App.3d 50, 2010-Ohio-1536, 931 N.E.2d 143 (7th Dist.), where the court of appeals reversed the convictions of a defendant who had allegedly sexually abused two minor children. The majority opinion in Kaufman noted that because the offenses
Such “precision in speech and action” was not conducted here and is most clearly exemplified by the state‘s following remarks during closing arguments: “There are no eyewitnesses to these types of crimes. They happen in private with the defendant or any other defendant, and the victim. But what you have here is even stronger than if there were eyewitnesses, because you have two independent victims, separate and apart. * * * That is stronger than an eyewitness. That is independent corroboration. They both said what happened to them, and they corroborate each other‘s stories, because what happened to one is essentially the mirror image of what happened to the other.” (Emphasis added). This statement elucidates the risk of prejudice from erroneously considering the separate evidence of JB and KC cumulatively, especially in light of the weakness of the evidence regarding victim JB.
{¶ 49} The dissenting judge concluded that reversal should not be granted “simply because sexual offenses against two child victims were joined at trial.” Id. at ¶ 197 (Vukovich, P.J., dissenting). Judge Vukovich emphasized that joinder is favored and that “[t]he joinder test is ‘less stringent’ than the ‘stricter’ other-acts test.” Id. at ¶ 198, quoting State v. Johnson, 88 Ohio St.3d 95, 109, 723 N.E.2d 1054 (2000). “Thus, policy reasons for the other-acts test should not seep into the application of the joinder test.” Id. Judge Vukovich further noted that “[a] claim of prejudice can be negated if the evidence of each joined offense is simple and direct.” Id. at 199, citing LaMar, 95 Ohio St.3d 181, 767 N.E.2d 166, at ¶ 50 and 52.
{¶ 50} As indicated, the evidence here concerning A.H. was not weak. Furthermore, our review of the State‘s closing argument reveals no attempt to claim that the testimony of one alleged victim independently corroborated that of the other. See Trial Tr. 2 at p. 356-362 and 381-396. Instead, the State focused on the evidence as it pertained to each victim. Of course, there were similarities, like the fact that both A.H. and K.K. did not report the alleged sexual assaults to the police until years later. However, that had nothing to do with an improper assertion that the alleged victims independently corroborated each other‘s stories. Accordingly, we disagree with any claim that joinder was prejudicial. We also note that the jury in the prior trial, which involved six victims and nine sexual assault charges, was able to distinguish among victims and found Kocevar not guilty of assaulting three victims. This case, involving only two victims, was even simpler.
III. Delay in Prosecution
{¶ 52} Kocevar‘s second assignment of error states that:
The Trial Court Erred in Denying Kocevar‘s Motion to Dismiss by Finding that the State‘s Delay in Prosecution Was Justifiable, Resulting in Kocevar Suffering Prejudicial [sic], Thereby Warranting Reversal of the Convictions.
{¶ 53} Under this assignment of error, Kocevar contends that he established actual prejudice due to the State‘s delay in initiating prosecution on the charge involving K.K., and that the trial court incorrectly found that the State had provided justifiable reasons for the delay. In this regard, Kocevar states that K.K. and her mother told the Centerville Police Department in October 2014 about the alleged sexual assault, and that all sexual assault allegations concerning a minor warranted further action. Kocevar further contends that K.K.‘s mother also informed her brother-in-law, who was a sheriff‘s deputy, about the sexual assault and that the incident was reported to the school principal. According to Kocevar, the officers and the principal were mandated reporters for sexual assault, their delay in disclosure further prejudiced him, and the State failed to establish justifiable reasons for failing to act until 2020, when the police investigated several complaints, including K.K.‘s, against him.
{¶ 54} Before addressing Kocevar‘s arguments, we will outline the law that applies to preindictment delay and the review standard in such cases.
A. Preindictment Delay
{¶ 55}
{¶ 56} The due process standard that Ohio applies in this situation involves actual prejudice and unjustifiable delay. Jones at ¶ 12. The Supreme Court of Ohio has “firmly established a burden-shifting framework for analyzing a due-process claim based on preindictment delay. Once a defendant presents evidence of actual prejudice, the burden shifts to the state to produce evidence of a justifiable reason for the delay.” Id. at ¶ 13, citing State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). (Other citation omitted.)
{¶ 57} Determining ” ‘actual prejudice’ involves ‘a delicate judgment based on the circumstances of each case.’ ” State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting Marion at 325. “In making
{¶ 58} “The death of a potential witness during the preindictment period can constitute prejudice, but only if the defendant can identify exculpatory evidence that was lost and show that the exculpatory evidence could not be obtained by other means.” Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 103.
{¶ 59} Concerning the justification for delay, “a delay in the commencement of prosecution can be found to be unjustifiable when the state‘s reason for the delay is to intentionally gain a tactical advantage over the defendant, * * * or when the state, through negligence or error in judgment, effectively ceases the active investigation of a case, but later decides to commence prosecution upon the same evidence that was available to it at the time that its active investigation was ceased.” Luck, 15 Ohio St.3d at 158, 472 N.E.2d 1097. “The length of delay will normally be the key factor in determining whether a delay caused by negligence or error in judgment is justifiable.” Id.
{¶ 60} “Ohio appellate courts have held that decisions on motions to dismiss for pre-indictment delay should be reviewed on the following basis: legal issues are reviewed de novo, but ‘the court‘s findings of fact are afforded great deference.’ ” State v. Hawkins, 2d Dist. Montgomery No. 27019, 2018-Ohio-867, ¶ 37, quoting State v. Powell, 2016-Ohio-1220, 61 N.E.3d 789, ¶ 11 (8th Dist.).
{¶ 61} With these principles and standards in mind, we will consider Kocevar‘s arguments.
B. Decision on the Motion to Dismiss
{¶ 62} As noted, the trial court initially granted the motion to dismiss the charge involving K.K. based on actual prejudice to Kocevar. The court‘s decision was based on the death of Kocevar‘s father, Chad, who was in the apartment when Kocevar allegedly raped K.K. The court then reconsidered its decision and found that while actual prejudice occurred, the State had proved that the delay in bringing charges was justifiable. The court heard evidence about this issue during two separate sets of hearings.
{¶ 63} On December 21, 2020, the court heard testimony from the following witnesses: (1) Kathryn Gerspacher, a detective with CPD; and (2) Regina Kocevar, the defendant‘s mother. On March 12, 2021, the court heard testimony from Nadia Dexter, another CPD police officer. Then, on September 13, 2021, the court heard testimony from the following witnesses: (1) Jeffrey Kaercher, a CPD officer for 13 years; (2) R.K., the mother of K.K.; (3) Faupo Lauofo, a CPD officer for 24 years; and (4) Kathryn Gerspacher.
{¶ 64} As indicated, the trial court found that Kocevar had been prejudiced because
1. 2014 Investigation
{¶ 65} Concerning K.K., the allegation was that she had been at Kocevar‘s apartment (where he and his father, Chad, lived) on October 18, 2014. At that time, K.K. was in Kocevar‘s bedroom and he tried to kiss her. However, K.K. “pushed him off, told him no, and [told him] that she had a boyfriend.” Transcript of Proceedings (Motion to Suppress/Motion to Dismiss/Motion to Sever (Dec. 21, 2020) (“Motion Tr. 1“), p. 19. However, Kocevar “kept insisting until he was on top of her. When he got on top of her, he pulled her leggings down and then inserted his penis into her vagina after she repeatedly told him no.” Id. After Kocevar finished, he took a picture of K.K.‘s breasts, and K.K. then left the apartment. Id.
{¶ 66} K.K. immediately told her family about the rape and also discussed the incident with a friend, M.M. Id. at p. 53. The night of the incident, K.K.‘s mother, R.K., brought K.K. to CPD to file a police report. At the time, Officer Kaercher was on duty and took the report. Transcript of Proceedings (Motion to Dismiss) (Sept. 13, 2021) (“Motion Tr. 2“), p. 8-9.
{¶ 67} According to Kaercher, R.K. reported that she had picked up K.K. at Bill‘s Donuts after K.K. had called to complain that she had been at Kocevar‘s apartment and that he had given her alcohol. In order to obtain a warrant, Kaercher would have had to talk to K.K. and get direct information from her. During their discussion, Kaercher told R.K. that K.K. could potentially be charged with underage consumption if she had been drinking. Id. at p. 9. After hearing this, R.K. said that she did not want Kaercher to talk directly to K.K. or to check any further. Kaercher did tell R.K. that he would go to Kocevar‘s apartment and see if underage drinking, in fact, had occurred. Id. at p. 10.
{¶ 68} About 20 minutes later, Kaercher and CPD Officer Lauofo went to Kocevar‘s apartment and tried to make contact. However, most of the lights were off and no one appeared to be either awake or at home. Subsequently, around 5:30 a.m., Chad Kocevar called Kaercher and said that a neighbor had said the police had knocked at the door. When Kaercher explained that they had a complaint about underage drinking, Chad stated that he was not aware of any underage drinking. He also said that his son had gone to a football game with friends, had come home, and had watched a college football game with friends. Chad further said that he had gone to bed around 10:30 or 11:00 p.m. Id. at p. 10-11.
{¶ 69} According to Officer Lauofo, his understanding was that he was accompanying Kaercher to the apartment to investigate an underage drinking party. During the investigation, Kaercher never mentioned anything to Lauofo about a sexual assault. Id. at p. 41-42.
{¶ 70} According to Officer Kaercher, K.K.‘s mother did not talk to him about a sexual assault. He said that if someone alleged a sexual assault, it would be documented in his report. However, no such allegation was in his report in this case. Motion Tr. 2 at p. 13 and Motion Tr. 1 at p. 119. Kaercher further said that even if people say they want to tell the police
{¶ 71} In addition, Officer Kaercher stated that he is a mandated reporter and that nothing in his October 2014 conversation with R.K. gave him any sense that his mandated reporter protocols should start. Id. at p. 14. During this interview, Kaercher and K.K. also never exchanged any words with each other. Id. at p. 16.
{¶ 72} R.K. testified that her daughter, K.K., had issues with depression and had been recently hospitalized for a suicide attempt at the time of the assault. As a result, R.K. was on top of K.K.‘s activities; in fact, October 18, 2014, was the first night K.K. had been allowed out of the house. Id. at p. 20-21. When R.K. picked up K.K. that evening, K.K. told her everything about the sexual assault and said they had some alcohol. R.K. decided to report the underage drinking but not to report the assault due to her husband‘s health problems and K.K.‘s recent hospitalization. Id. at p. 22-24.
{¶ 73} While talking with Officer Kaercher, R.K. asked a hypothetical question about what would happen if alcohol were involved and there was a sexual assault. R.K. did not say who the victim was or that it was K.K., did not tell Kaercher where this hypothetical event took place, and did not provide any details. Tr. 2 at p. 24 and 30.
{¶ 74} R.K. subsequently called her brother-in-law, who was a captain with the Montgomery County Sheriff‘s Department. She asked him whether, hypothetically, if someone were raped, would it be detrimental to the victim if it was a “he said/she said” situation. The brother-in-law did not know K.K. was involved, nor did R.K. give him any details about the event, she did not want to put him in a position to have to report it. During this conversation, R.K.‘s brother-in-law just gave her an opinion. Id. at p. 25-26 and 27. As recently as a week before the September 13, 2021 hearing, the brother-in-law was still unaware that K.K. had been sexually assaulted. Id. at p. 37.
{¶ 75} In speaking with CPD Officer Nadia Dexter in 2020 (after the sexual assault was reported), R.K. stated that she thought she had told Officer Kaercher in October 2014 about the situation with K.K.‘s mental health, and Kearcher said she could report the sexual assault whenever she was ready. Motion Tr. 2 at p. 33-34. Again, however, R.K. stressed that she spoke hypothetically with Kaercher and did not identify K.K. as the victim. Id. at p. 35-36. At the time of the 2014 investigation, there were reports that underage drinking was common at Kocevar‘s apartment. The Centerville Police had received a number of callouts to the apartment, and the police and Alter High School administrators were aware of the prevalence of the underage drinking. Motion Tr. 1 at p. 55-56.
{¶ 76} Detective Gaspacher was the lead investigator when the sexual assault complaints were lodged in June 2020 with CPD. Id. at 7-8. Gaspacher was not involved in the October 2014 investigation. Motion Tr. 2 at p. 48-49. According to Gaspacher, K.K. and her mother had discussed the sexual assault incident in October 2014 with Lourdes Lambert, who was then the principal at Alter High School. Motion Tr. 1 at p. 22, 27-28, and 53. CPD Officer Dexter, who did many interviews in 2020, including with K.K. and R.K., said that R.K. asked Lambert not to let K.K. be in classes with Kocevar or have any contact with him. Id. at p. 85-86, 108-109. However. Lambert did not testify at any pretrial hearings or at any trials.
{¶ 78} After speaking with Lambert, Regina Kocevar called her ex-husband, Chad, who said he had been home the entire time and that the alleged incident never happened. Chad‘s account was that he talked to K.K. briefly when she arrived; K.K. and Kocevar then went into Kocevar‘s room to visit. During this visit, the door was open and Chad sat in his usual spot in his wheelchair, where he had a line of sight into the room. Chad also said that after the two teenagers left the bedroom, K.K. stayed for dinner and had pizza. Id. at p. 67-68.
{¶ 79} After speaking with Chad, Regina called Lambert and told her what Chad had said. At that point, K.K.‘s mother said she was not going to do anything about it because K.K. had issues. Id. at p. 69. A vice-principal was listening in during this conversation. Id. The school did not report the incident to the police. Id. at p. 109. In addition, CPD did not have a school resource officer at Alter. Id. at 119.
2. 2020 Investigation
{¶ 80} After that point, nothing ever came up again about sexual assault until the allegations were made against Kocevar in June 2020. CPD first became aware of the sexual assault allegations against Kocevar on June 9, 2020, when K.K. and R.O. (another alleged victim) came to CPD, made written statements, and brought in a written statement from M.M., a third alleged victim. CPD immediately began an investigation. Motion Tr. 1 at p. 115-116 and 122-123. CPD did not delay in investigating the case. While the case took a significant amount of time to investigate due to the number of victims and allegations, CPD did not delay in proceeding. In fact, the indictment was filed shortly thereafter, on June 24, 2020. Id. at p. 122-123.
{¶ 81} After reviewing the record and giving due deference to the trial court‘s factual findings, we find no basis for reversing the court‘s judgment. There is no evidence that any delay was for purposes of gaining a tactical advantage over Kocevar, nor is there evidence that the State negligently ceased active investigation (or erred in judgment) and then later commenced action based on evidence it had available when it stopped actively investigating. Luck, 15 Ohio St.3d at 158, 472 N.E.2d 1097.
{¶ 82} In his brief, Kocevar relies heavily on
{¶ 83}
No person described in division (A)(1)(b) of this section who is acting in an official or professional capacity and knows, or has reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect, that a child under eighteen years of age, or a person under twenty-one years of age with a developmental disability or physical impairment, has suffered or faces a threat of suffering any physical or mental wound, injury,
disability, or condition of a nature that reasonably indicates abuse or neglect of the child shall fail to immediately report that knowledge or reasonable cause to suspect to the entity or persons specified in this division.
{¶ 84} The individuals described in
{¶ 85} In his brief, Kocevar fails to cite any authority on the applicability of
{¶ 86} There is no authority discussing failure to report child abuse in the specific context of whether it requires a finding of unjustifiable preindictment delay. The only two Ohio cases involving the terms “preindictment” and “R.C. 2151.421” discuss the statute in the context of whether a duty to report abuse might affect the tolling of a statute of limitations. See State v. Jensen, 6th Dist. Lucas No. L-20-1042, 2021-Ohio-3505, ¶ 14 (statute of limitations did not begin to run due to mother‘s knowledge of sexual abuse and failure to report it; parents of victims were “specifically exempted by the state legislature from the reporting requirements under
{¶ 87} Jensen involved a 25-year delay, and the delay in Warren was 16 years. Jensen at ¶11; Warren at ¶ 2. In both cases, a six-year statute of limitations applied at the time of the offenses but was later increased. However, since the victims were below the age of majority when the amendment took effect, the original statute did not apply, and the criminal actions were timely brought under the increased limitations period. Jensen at ¶ 13-14; Warren at ¶ 13-14.
{¶ 88} The defendant in Jensen did raise the issue of preindictment delay, claiming that the police had intentionally delayed the indictment. This was not related to the reporting issue because there was no discussion in the case about the police having prior knowledge of the alleged sexual abuse. The court also did not dwell on preindictment delay because the defendant‘s guilty pleas waived this claim. Jensen at ¶ 15.
{¶ 89} In the case before us, there was no issue about whether the statute of limitations had expired. In October 2014, K.K. was 16 years old and was under the age of majority. Motion Tr. 1 at p. 90. At that point, the applicable statute of limitations was 20 years. In July 2015, the limitations period for rape was increased to 25 years. See Sub. H.B. 6, 2015 Ohio Laws 19, extending the rape statute of limitations in
{¶ 90} We do note that in Warren, the court remarked (not in the context of
{¶ 91} It is true that ”
{¶ 92} In Jackson, the court went on to hold that “a social worker‘s statutory duty to cooperate and share information with law enforcement with respect to a child abuse investigation does not render the social worker an agent of law enforcement for purposes of the
{¶ 93} For purposes of its analysis, the court stressed that ” ‘[w]hether someone is acting as an agent of law enforcement is dependent upon the unique circumstances of each case.’ ” Id. at ¶ 17, quoting State v. Bernard, 31 So.3d 1025, 1033 (La.2010). As in Jackson, no evidence was presented that Alter was acting as CPD‘s agent or as an agent of the State. Accordingly, even if
{¶ 94} Based on the preceding discussion, the second assignment of error has no merit and is overruled.
IV. Imposing Sentence on Kocevar as an Adult
{¶ 95} Kocevar‘s third assignment of error states as follows:
The Trial Court Errored in Sentencing Kocevar as an Adult[:] Giving Him a Mandatory Term of Incarceration[ ] Violated His Right to Equal Protection, and
the Principals [sic] Against Imposition of Cruel and Unusual Punishment.
{¶ 96} Under this assignment of error, Kocevar contends that being sentenced as an adult for crimes he committed as a juvenile violated his right to equal protection and constituted cruel and unusual punishment. The crux of this argument is that if the offenses in question had been prosecuted when Kocevar was a minor, he would have been subject only to discretionary bindover and not the mandatory minimum punishment for rape under
{¶ 97} In response, the State argues that Kocevar forfeited any error other than plain error by failing to raise constitutional challenges in the trial court. The State further asserts that none of Kocevar‘s constitutional rights were violated when he was sentenced as an adult for crimes he committed as a child.
{¶ 98} Concerning the State‘s waiver argument, we find that Kocevar adequately raised the constitutional issues in a motion for a hearing on juvenile sanctions that he filed on April 6, 2022 (after his first rape conviction and prior to the second trial) and in his supplemental sentencing memorandum, which was filed on May 13, 2022. The State also had a chance to respond to Kocevar‘s arguments and did file a response in the trial court on May 16, 2022. Thus, we can consider the constitutional issues without resorting to plain error. Before we do so, however, we will outline the pertinent constitutional standards.
A. Constitutional Standards
1. Equal Protection
{¶ 99} “The
{¶ 100} “Under the Equal Protection Clause, a legislative distinction need only be created in such a manner as to bear a rational relationship to a legitimate state interest.” Id., citing Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982). “These distinctions are invalidated only where ‘they are based solely on reasons totally unrelated to the pursuit of the State‘s goals and only if no grounds can be conceived to justify them.’ ” Id., quoting Clements at 963. “This rational basis analysis is discarded for a higher level of scrutiny only where the challenged statute involves a suspect class or a fundamental constitutional right.” Id.
{¶ 101} Kocevar has not supplied authority indicating juveniles are a suspect class. In fact, he indicates they are not treated as such. Appellant‘s Brief at p. 44, quoting In re Cundiff, 10th Dist. Franklin No. 99AP-364, 2000 WL 28845 (Jan. 13, 2020). However, Kocevar does contend (without citing authority) that he should be treated as part of a suspect class because he is a former juvenile who was later subjected to common pleas court jurisdiction.
2. Cruel and Unusual Punishment
{¶ 102} “The
{¶ 103} Even in Anderson, which involved a juvenile who was bound over and tried as an adult while still a juvenile, the court held that an aggregate 19-year sentence did not “constitute cruel and unusual punishment because there is no national consensus against mandatory sentencing for juveniles, the sentence is proportional to the crimes he committed, and it is not one of the harshest possible penalties for juvenile offenders tried as adults.” Id. at ¶ 45. In that case, the defendant was 16 years old and was convicted of three counts of aggravated robbery, firearm specifications attached to those felonies, and one count of kidnapping with a firearm specification. He was originally sentenced to 28 years in prison (including consecutive sentences). After the sentence was reversed, the trial court resentenced the defendant to a total of 19 years in prison, with the 11-year terms on each robbery conviction to run concurrently with each other and consecutive to the eight-year prison term for the kidnapping and its firearm specification. Id. at ¶ 12-15.
3. Ex Post Facto Laws
{¶ 104} ”
{¶ 105} The “touchstone inquiry” of this particular aspect of ex post facto law “is whether a given change in law presents a ’ “sufficient risk of increasing the measure of punishment attached to the covered crimes.” ’ ” Peugh v. United States, 569 U.S. 530, 539, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), quoting Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). ” ‘Critical to relief under the Ex Post Facto Clause is not an individual‘s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.’ ” Townsend at ¶ 16, quoting Weaver at 30.
{¶ 106}
{¶ 107} “Further, where statutes are challenged on the ground that they are unconstitutional as applied to a particular set of facts, the party making the challenge bears the burden of presenting clear and convincing evidence of a presently existing set of facts that make the statutes unconstitutional and void when applied to those facts.” Id., citing Belden at paragraph six of the syllabus.
{¶ 108} Bearing all the above principles in mind, we will consider Kocevar‘s arguments.
B. Discussion
{¶ 109} As a preliminary point, we note that
Kocevar‘s offenses were committed, but the definition of “child” has not been substantively changed in any way. Under
(2) Subject to division (C)(3) of this section, any person who violates a federal or state law or a municipal ordinance prior to attaining eighteen years of age shall be deemed a “child” irrespective of that person‘s age at the time the complaint with respect to that violation is filed or the hearing on the complaint is held.
(3) Any person who, while under eighteen years of age, commits an act that would be a felony if committed by an adult and who is not taken into custody or apprehended for that act until after the person attains twenty-one years of age is not a child in relation to that act.
(Emphasis added.)
{¶ 110} Similarly,
If a person under eighteen years of age allegedly commits an act that would be a felony if committed by an adult and if the person is not taken into custody or apprehended for that act until after the person attains twenty-one years of age, the juvenile court does not have jurisdiction to hear or determine any portion of the case charging the person with committing that act. In those circumstances, divisions (A) and (B) of section
2152.12 of the Revised Code do not apply regarding the act, and the case charging the person with committing the act shall be a criminal prosecution commenced and heard in the appropriate court having jurisdiction of the offense as if the person had been eighteen years of age or older when the person committed the act. All proceedings pertaining to the act shall be within the jurisdiction of the court having jurisdiction of the offense, and that court has all the authority andduties in the case that it has in other criminal cases in that court.
{¶ 111}
{¶ 112} The Supreme Court of Ohio has held that ”
{¶ 113} All the listed factors are present here, and the juvenile court could not have possibly exercised jurisdiction over Kocevar when the indictment was filed in June 2020, since Kocevar was 22 years old at that time. Instead, Kocevar was subject to prosecution in adult court, with the attendant penalties, including the mandatory minimum prison requirements that can be imposed on adult person.
{¶ 114} Understandably, Kocevar contends that this is inappropriate and that he should receive lesser penalties because he was a juvenile when he committed the offenses. However, that is not the law. Moreover, while Kocevar argues that transfer to adult court was discretionary in his situation, discretion means just that. If complaints had been filed in juvenile court when Kocevar was a minor, the court may have elected to transfer him to adult court. Kocevar would, therefore, be in the same situation he is now, with adult penalties.
{¶ 115} This point was made in Walls, which rejected a defendant‘s claim that 1997 changes to
Although the 1997 amendments to the juvenile statutes allowed criminal prosecution without the bindover proceeding required under the 1985 law, we cannot characterize this change as anything other than remedial. Even under the law in effect in 1985, Walls was subject to criminal prosecution in the general division of a court of common pleas if the juvenile court made certain determinations specified by statute. See former R.C. 2151.26(A) and (E), 140 Ohio Laws, Part I, 585-586. Thus, under either the 1985 law or the 1997 law, Walls was on notice that the offense he allegedly committed could subject him to criminal prosecution as an adult in the general division of the court of common pleas.
(Emphasis added.) Id. at ¶ 7.
{¶ 116} Likewise, Kocevar would have had notice before his crimes were committed that he could be subject to prosecution in adult court. Furthermore, the arguments Kocevar is making have been previously
{¶ 117} For example, in State v. Warren, 118 Ohio St.3d 200, 2008-Ohio-2011, 887 N.E.2d 1145, the Supreme Court of Ohio held that due process is not “violated when the defendant receives a mandatory term of life imprisonment for forcible rape of a victim under age 13 when the defendant was 15 years of age at the time of the offense but not prosecuted until he had passed the age of 21.” Id. at ¶ 1. The defendant in Warren was 31 years old when the rape charges were filed in 2004. Id. at ¶ 2 and 16. When the offenses occurred, 1988 laws were in effect. Id. at ¶ 3.
{¶ 118} The defendant‘s due process claim was that ”
{¶ 119} Notably, the content of the statutes in question (
{¶ 120} In Warren, the court acknowledged that ” ‘[a] juvenile typically lacks sufficient maturity and good judgment to make good decisions consistently and [to] sufficiently foresee the consequences of his actions.’ ” Warren, 118 Ohio St.3d 200, 2008-Ohio-2011, 887 N.E.2d 1145, at ¶ 38, quoting In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 82. Nonetheless, the court found that its prior decision in Walls “so essentially undermines Warren‘s position that he cannot prevail on his claim that his mandatory life sentence violates due process principles of fundamental fairness.” Id. at ¶ 39. The court admitted that Walls was not precisely on point but found that “the similarities between the situation in this case and in Walls are substantial, and the essential principles that emerge from Walls make it impossible for Warren to prevail on his due process argument.” Id. at ¶ 48.
{¶ 121} Like Walls, the court stressed in Warren that the defendant was put on notice that he could be prosecuted as an adult. Id. And, relevant to the case before us, the court stated that:
Warren does not explicitly argue that he was prejudiced by the absence of a bindover hearing or that the juvenile court should have retained jurisdiction over his case. Instead, he claims to have been prejudiced by the trial court‘s inability to consider his age at the time of the offenses in sentencing him for rape. Warren argues that he would have received more favorable treatment if he had been charged with rape while still a juvenile and that that favorable treatment should extend to the rape conviction in this case. Those arguments are significantly undercut by Walls, in which this court held that no substantive rights are affected in this situation.
Id. at ¶ 51, citing Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, at ¶ 19.
{¶ 123} Three justices concurred in the judgment only, because they were troubled by the fact that “[t]he current version of
{¶ 124} Concerning cruel and unusual punishment, Kocevar mentions it but does not make a specific argument about it or cite any cases to support his position. In certain situations, punishments for juveniles who have been tried as adults have been found to be unconstitutional as cruel and unusual punishment. See In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 28 (referencing Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which “prohibited the death penalty for defendants who committed their crimes before the age of 18,” and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which prohibited “imposition of a life-without-parole sentence on a juvenile offender who did not commit homicide“). {¶ 125} “A punishment does not violate the constitutional prohibition against cruel and unusual punishments, if it be not so greatly disproportionate to the offense as to shock the sense of justice of the community.” State v. Chaffin, 30 Ohio St.2d 13, 282 N.E.2d 46 (1972), paragraph three of the syllabus. Imposing a total of 11 years for three rape convictions (involving three different victims) and a gross sexual imposition conviction for one of those victims does not shock one‘s sense of justice. Compare State v. Wiesenborn, 2019-Ohio-4487, 135 N.E.3d 812, ¶ 7, 9, 11-12 and 24-51 (2d Dist.) (rejecting an Eighth Amendment claim where defendant was sentenced to a total of 78.5 years in prison for rapes committed both while as a juvenile and when he was 19 and a senior in high school).
{¶ 126} In Wiesenborn, the defendant was bound over from juvenile court and was sentenced for both juvenile and adult convictions. Id. See also State v. Strowder, 2019-Ohio-4573, 147 N.E.3d 1253, ¶ 3 and 14 (8th Dist.) (sentence for 17-year old defendant who was bound over for various crimes including rape, was not cruel and unusual punishment because defendant “will be eligible at age 61 in relation to” these offenses and another offense in a different case); State v. Watkins, 2018-Ohio-5137, 126 N.E.3d 381, ¶ 4 (10th Dist.) (defendant who was bound over for various non-homicidal offenses committed at age 16 was not subjected to cruel and unusual punishment by being sentenced to 67 years
{¶ 127} The point here is that Kocevar‘s sentence could have been much worse. However, as noted, the reality also is that Kocevar‘s status never changed due to any alterations in the law.
{¶ 128} We also note that in sentencing Kocevar, the trial judge expressly stated that she had considered his youth in deciding the sentence. Trial Tr. 2 at p. 438-439. The court noted that statutory grounds for imposing consecutive sentences were met and that the sentencing range could be a minimum of three years to a maximum of 34.5 years. Id. at p. 439. However, in light of Kocevar‘s youth at the time of the offenses, the judge elected not to impose consecutive sentences. Id. The judge imposed concurrent 11-year sentences on the three rape counts and a one-year concurrent sentence for the gross sexual imposition charge, for a total sentence of 11 years. Id. at p. 444-445. As a result, contrary to Kocevar‘s belief, the trial court did consider his youth at the time of the offenses, and he received the benefit of that consideration.
{¶ 129} As a final matter, there is no viable ex post facto claim here. As noted, the laws at the time of Kocevar‘s offenses never changed, and there is no possibility that his “punishment” was later increased. The only reason Kocevar was tried as an adult rather than in juvenile court is because the victims delayed in reporting crimes. This is frequently the case with sexual assault, where many victims delay reporting sexual assault for a variety of reasons, such as “fear of the offender. It could be fear that they would have to go through with the offense again several times in front of strangers. It might be fear that nothing could be done by the system that the case wouldn‘t be strong enough for example.” State v. Solether, 6th Dist. Wood No. WD-07-053, 2008-Ohio-4738, ¶ 53.
{¶ 130} Based on the preceding discussion, the third assignment of error is overruled.
V. Cumulative Error
{¶ 131} Kocevar‘s final assignment of error states that:
As a Result of the Cumulative Errors, Appellant Requests that the Conviction Be Reversed and Remanded.
{¶ 132} According to Kocevar, the effect of cumulative errors (primarily about the motion to dismiss and the motion to sever) require reversal of his convictions. Allegedly compounding these alleged errors is the prejudice caused by Kocevar‘s inability to be tried in juvenile court, where imprisonment would not be mandatory.
{¶ 133} The Supreme Court of Ohio has stressed many times that under the cumulative error doctrine, “a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the numerous instances of trial court error does not individually constitute cause for reversal.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 132, citing State v. DeMarco, 31 Ohio St.3d 191, 196-197, 509 N.E.2d 1256 (1987). This doctrine does not apply here, because there was no error. The fourth assignment of error therefore is overruled.
VI. Conclusion
{¶ 134} All of Kocevar‘s assignments of error having been overruled, the judgment of the trial court is affirmed.
. . . . . . . . . . . . .
EPLEY, J. and LEWIS, J., concur.