State v. WilsonState v. Wilson
STATE OF OHIO PLAINTIFF-APPELLEE vs. ERIC WILSON DEFENDANT-APPELLANT
JUDGMENT: CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-518393
BEFORE: Rocco, P.J., McMonagle, J., and Dyke, J.
RELEASED AND JOURNALIZED: October 21, 2010
ATTORNEY FOR APPELLANT
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor BY: Richard J. Bombik Thorin Freeman Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
KENNETH A. ROCCO, P.J.:
{¶ 1} Defendant-appellant, Eric Wilson, appeals from his convictions and sentences for three counts of rape and two counts of kidnaping following a jury trial. He raises twelve assignments of error for our review. He contends that:
{¶ 2} (1) he was denied due process when he was convicted of one count of rape but acquitted of two other counts of rape that allegedly occurred on the same date;
{¶ 4} (3) the court erred by allowing the state to introduce evidence of other “bad acts” committed by the defendant;
{¶ 5} (4) the court erred by failing to give the jury a limiting instruction about this other acts evidence;
{¶ 6} (5) the court erred by allowing testimony of other sexual activity by the defendant;
{¶ 7} (6) the court erred by failing to instruct the jury that it was required to аgree about the kind of sexual conduct involved in each offense;
{¶ 8} (7) the court erred by denying appellant’s motion for a judgment of acquittal;
{¶ 9} (8) the court should have merged the two kidnaping counts into a single offense;
{¶ 10} (9) the court erred by imposing a sentence of life imprisonment;
{¶ 11} (10) the court erred by imposing consecutive sentences;
{¶ 12} (11) the sexually violent predator specification was inadequate; and
Procedural History
{¶ 14} Appellant was сharged in a seven-count indictment filed December 2, 2008 with five counts of rape and two counts of kidnaping. All of the charges carried firearm specifications and sexually violent predator specifications; in addition, the kidnaping counts included a sexual motivation specification. The court appointed the public defender to represent him. The public defender was given leave to withdraw, and John Carson was appointed to represent appellant. Appellant expressed some interest in representing himself, and the court indicated it was willing to revisit the issue.
{¶ 15} Appellant subsequently expressed concern that Mr. Carson was lying to him. Carson made an oral motion to withdraw as counsel. Appellant denied that he wanted to represent himself, and the court then appointed Rufus Sims as appellant’s counsel. On the day of trial, appellant objected to Sims’s representing him, although he again denied that he wanted to represent himself. The court ruled that “to the extent that you’ve asserted a motion to represent yourself, that motion is declined, based upon the evidence.” The court stated that it was “not persuaded * * * that you have
{¶ 16} At trial, the state presented the testimony of the victim, L.C.; K.H., who was with the victim and the appellant throughout the relevant time; Cleveland police officer Alencia Small-Smith; and Cleveland police detective Charlie McNeeley. The defense presented the testimony of appellant’s friends, Jose Rivera, James Woodruff, and Mary Keith.
{¶ 17} L.C. testified that she was 18 years old at the time of the events at issue. On the evening of June 23, 2007, she was walking down East 55th Street toward Kinsman to get on a bus. Appellant, who she knew only as “Big,” pulled up beside her in a silver, four-door car and ordered her to get in. She saw that he had a gun in his lap. K.H. was in the front seat and moved to the back. L.C. got into the front seat.
{¶ 18} Appellant drove the two women to a house on Holmden on the west side of Cleveland. It was approximately 6:00 or 7:00 p.m. A tall skinny man opened the door and they went inside. The tall, skinny man then went down to the basement. Appellant instructed both women to undress. He held a pair of pliers and asked L.C. which nipple she wanted him to cut and told her that “he was going to cut [hеr] clit[oris] off.” He raped her vaginally and anally. They were at that house for approximately 20 to 30 minutes. They were then allowed to dress and appellant drove them
{¶ 19} There were three other people at the house on Grand when they arrived: a girl named Kisha, “a guy,” and a woman appellant called his mom. Appellant took L.C. and K.H. upstairs to a room that contained two mattresses, locked the door, and made them undress. He made L.C. and K.H. “give him oral sex there and made [them] have sex with him.” Appellant fell asleep.
{¶ 20} The following morning, appellant told L.C. to take a shower. She pretended to get in the shower, but she climbed out the window and went to a shopping center nearby where she called the police. The police took a statement from her and took her to a hospital, but a rape kit was not done.
{¶ 21} L.C. saw appellant on a television news program in September 2007. She called Cleveland police detective McNeeley to inform him. She chose appellant’s photograph from a photo array.
{¶ 22} Officer Alencia Small-Smith testified that she and her partner responded to L.C.’s call. L.C. showed them the house on Grand where the events took place. The police knocked on the door, but got no answer. They also looked for appellant’s car, but did not find it. They then took L.C. home, then to Lutheran Hospital.
{¶ 23} K.H. testified that she had been friends with appellant for a few
{¶ 24} Late that afternoon, appellant made a U-turn. He grabbed a woman and made her get in the front seat of the car while K.H. moved to the back. Appellant took the two women to a house on Hоlmden, off West 25th Street. Appellant made the two women undress. He made K.H. lie on the floor and perform oral sex on L.C. while L.C. performed oral sex on appellant. Appellant said L.C. owed him money. Appellant also penetrated L.C. anally. Appellant then instructed them to get dressed, and drove them to his house on Grand Avenue.
{¶ 25} At the Grand Avenue house, appellant gave both L.C. and K.H. a T-shirt and panties to sleep in and left them alone in a room upstairs. They talked about how to get away. Appellant came into the room with Kisha. Kisha went to sleep while appellant made both women perform oral sex on
{¶ 26} Detective McNeeley testified that he determined that Mary Keith lived in the house on Grand Avenue. Keith was also the owner of a house on Holmden.
{¶ 27} At the conclusion of the trial, the jury returned verdicts finding appellant guilty of three counts of rape with sexually violent predator specifications, but not guilty of the attached three-year firearm specifications. The jury also found appellant guilty of kidnaping with a sexual motivation specification and a sexually violent predator specification, but not guilty of the attached three-year firearm specifications. The jury was unable to reach a verdict as to two of the rape counts and the one year firearm specifications. The state dismissed those charges and specifications, with prejudice.
{¶ 28} The court sentenced appellant to a term of 20 years’ imprisonment on each of the kidnaping charges, to be served concurrently with one another and consecutive to a term of life imprisonment on each of the rape counts. All terms of imprisonment were to be served consecutively to the sentences appellant was already serving in three other cases.
Law and Analysis
{¶ 29} In his first assignment of error, appellant contends that his
{¶ 30} In connection with his first assignment of error, appellant refers to case law concerning the sufficiency of the indictment. Appellаnt did not raise this issue in the trial court, so we will review it for plain error. Although neither the indictment nor the bill of particulars distinguished the three rape charges from one another, the state presented testimony at trial that would have supported multiple convictions of rape. See, e.g., State v. Salahuddin, Cuyahoga App. No. 90874, 2009-Ohio-466; State v. Cunningham, Cuyahoga App. No. 89043, 2008-Ohio-803. Therefore, we overrule the first assignment of error.
{¶ 31} Second, appellant asserts that the court failed to conduct an
{¶ 32} The third assignment of error claims the court erred by allowing K.H. to testify about appellant’s other “bad acts.” K.H. testified that appellant struck her and forced her into his car, and she did not feel free to leave because he had a gun in the car. The state urges that this evidence was relevant to demonstrate appellant’s “plan, scheme, or system.”
{¶ 33} The decision to admit or exclude relevant evidence is within the sound discretion of the trial court. State v. Bey (1999), 85 Ohio St.3d 487,
{¶ 34} K.H. and L.C. gave similar testimony about how they came to be in appellant’s car and how appellant treated them thereafter. They both testified that they met appellant when he drove up next to them in his car, that they been with appellant casually before this incident, and appellant gave them clothing. We find the court did not abuse its discretion by allowing this testimony to demonstrate that appellant had used the same methods to acquire both victims.
{¶ 35} Appellant next complains that the court failed to give the jury a
{¶ 36} Appellant also complains that the court allowed evidence of his other sexual activity. K.H. testified that she heard appellant and Kisha “having sex” when she was at his house. The court struck this testimony and instructed the jury to disregard it. K.H. also testified that appellant made her perform oral sex on L.C. while L.C. was performing oral sex on appellant. This testimony concerned the events that were the basis of the crime charged. It cannot be characterized as evidence of “other sexual activity.” Therefore, the fifth assignment of error is overruled.
{¶ 37} Sixth, appellant asserts that he was deprived of his right to a
{¶ 38} Seventh, appellant contends that the court erred by denying his motion for acquittal. He questions L.C.’s credibility because she omitted facts from her police statements. He also claims there was no physical evidence of a gun or knife or the pliers that appellant used, or of the injuries L.C. suffered. These arguments challenge not the sufficiency of the evidence but the weight of it. They do not demonstrate that the court erred by denying his motion for аcquittal.
{¶ 39} Appellant next claims the court erred by failing to merge the kidnaping and rape charges because the kidnaping was incidental to the rape. The restraint here was clearly not incidental to the rape. L.C. was forced into a vehicle and driven to two different houses where she was raped. She was kept in a locked room overnight afterward. A separate animus exists for
{¶ 40} In his ninth assignment of error, appellant argues that the court erred by sentencing him to a term of life imprisonment rather than an indefinite prison term. We must agreе with appellant that the court incorrectly sentenced him to a term of life imprisonment on each of the rape charges. Having been found guilty of rape in violation of
{¶ 41} We also note that the court plainly erred by sentencing appellant to twenty years imprisonment on the two kidnaping charges. On these charges, the court was also required to impose an indefinite term of imprisonment, consisting of a minimum fixed term of not less than ten years and a maximum term of life.
{¶ 42} Appellant’s tenth assigned error challenges the court’s imposition of consecutive sentences. This assignment of error has been rendered moot by our disposition of the ninth assignment of error.
{¶ 43} The final two assignments of error contend that appellant was deprived of due process by his conviction and sentences for sexually violent predator specifications. First, he claims the indictment was insufficient because it did not allege any of the elements the state had to prove to convict him of that specification.
{¶ 44} Appellant finally claims the evidence was insufficient to support the sexually violent predator specification. He argues that there was no evidence relating to some of the faсtors the jury was told they could consider in determining whether appellant was likely to engage in the future in one or
{¶ 45} Appellant’s convictions are affirmed. The sentences are vacated and this case is remanded for resentencing on all charges, consistent with this opinion.
It is ordered that appellant recover from appеllee 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. The defendant’s conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, PRESIDING JUDGE
ANN DYKE, J., CONCURS;
CHRISTINE T. McMONAGLE, J., CONCURS IN JUDGMENT ONLY IN PART, and DISSENTS IN PART
CHRISTINE T. McMONAGLE, J., DISSENTING IN PART:
{¶ 46} Respectfully, I dissent from the majority opinion on the first
{¶ 47} Valentine v. Konteh (C.A.6, 2005), 395 F.3d 626, originated in the Eighth District as State v. Valentine (July 17, 1997), Cuyahoga App. No. 71301. Michael Valentine was charged in an indictment containing identical and undifferentiated counts, and, like Wilson, was convicted of all counts and sentenced to multiple consecutive life sentences. He first raised the issue of the undifferentiated counts before the Eighth District;1 the Eighth District held that the law did not rеquire any more in an indictment than a recitation of the statute itself. Specifically, this appellate court said:
{¶ 48} “Regarding the state’s failure to specify the type of sexual conduct, the Ohio Supreme Court has determined that * * *
{¶ 49} Valentine attempted to get this issue before the Ohio Supreme Court; they declinеd jurisdiction, declaring there was “no substantial constitutional question.” State v. Valentine (1997), 80 Ohio St.3d 1466, 687 N.E.2d 295. However, pursuant to a writ of habeas corpus filed in the United States District Court, Valentine obtained review of the issue. The district court found that the Eighth District’s “application of clearly established federal law was not only incorrect, but unreasonable.” Valentine v. Huffman (N.D.Ohio 2003), 285 F.Supp.2d 1011, 1027. In reaching this conclusion, the district court cited the controlling law contained in Russell v. United States (1962), 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240. Russell requires that an indictment (1) contain the elements of the offense charged (not an issue in this case — the indictment did in fact charge each and every essential element of the crime), (2) provide the defendant adequate notice of the charges against which he must defend (the seminal issue in the case before us), and (3) provide protection against double jeopardy by enabling the defendant to plead an acquittal or conviction to bar future prosecutions for the same offense. Id. See, also, Isaac v. Grider (C.A.6, 2000), 211 F.3d 1269.
{¶ 50} The United States Supreme Court further stated that “[t]he object of the indictment is to furnish the accused with such a description of the charge
{¶ 51} The United States Supreme Court further noted that under the second mandate of Russell, “[u]ndoubtedly, the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the description, with which he is charged.” United States v. Hess (1888), 124 U.S. 483, 487, 8 S.Ct. 571, 31 L.Ed. 5126; see, also, Valentine v. Huffman, at 1024-1025. Apropos of this mandate, the district court in Valentine v. Huffman discussed how the carbon-copy indictments gave no notice to the defendant sufficient to present an alibi (if one was to be established) or an alternative theory to one of guilt (if such was to be the case), or any other specific defense or defenses. Significantly, however, the district court did not decide Valentine on this second mandate.
{¶ 52} Valentine was decided on the third mandate of Russell, that of
{¶ 53} In short, while commenting on the lack of notice, Valentine at the district court level was decided on the double jeopardy portion of the due process clause of the Fоurteenth Amendment. Valentine was granted his writ of habeas corpus and ordered released. Id. at 1027.
{¶ 54} The government appealed to the Sixth Circuit Court of Appeals, which upheld the decision of the district court, but modified the writ to exclude all but one of the carbon-copy counts. (A single count cannot be carbon copy.)
{¶ 55} In Wilson’s case, there were two sets of rape charges. Counts 1, 2, and 3 were identical to each other, all occurring on June 23, 2007. Counts 5 and 6 were identical to each other, but occurred on June 24, 2007.2 The majority contends that the state delineated the factual bases for the multiple counts of
{¶ 56} It is true that some differentiation of the counts was made at trial; however, this impacts only the third factor discussed in Russell, that is, “[i]n case any 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.” Id. at 764. See, also, Ogle, supra.
{¶ 57} However, in-trial or post-trial differentiation is not sufficient to satisfy the due process requirement of notice. This is not a case where a child is unable to testify to exact dates or times; courts have great tolerance and understanding of that difficulty. This is a case where the available differentiating information, e.g., cunnilingus, fellatio, vaginal penetration, anal penetration, etc., was in fact available, but specifically and purposefully omitted from the indictment and bill of particulars prior to trial.3
{¶ 58} The state has offered no explanation why such information was not included in the indictment, or at the very least, in a pre-trial bill of particulars. If the evidence submitted at trial of differentiation between the counts had been
{¶ 59} The majority in this case concludes that “although neither the indictment nor the bill of particulars distinguished the three rape charges from one another, the state presented testimony at triаl which would have supported multiple convictions of rape.” Contrary to the assertion of the majority, I believe that the Sixth Circuit ruling is that carbon-copy indictments violate both the double jeopardy and the notice provisions of the due process clause of the Fourteenth Amendment: “For the reasons stated above, we affirm the District Court’s ruling that the indictment charging Valentine with multiple, identical and undifferentiated counts violated the constitutional requirements imposed by due process. We agree with the District Court’s determination that ‘the Ohio Court оf Appeals’ application of clearly established federal law was not only incorrect, but unreasonable.’ When prosecutors opt to use such carbon-copy indictments, the defendant has neither adequate notice to defend himself, nor sufficient protection from double jeopardy.” (Emphasis added.) Valentine v. Konteh, at 636.
{¶ 60} In sum, this case is identical to the Valentine matter, save some evidence here of differentiation at trial that might impact an analysis on double
{¶ 61} In Cruikshank, Russell, and Valentine, the United States Supreme Court and the Sixth Circuit Court of Appeals have ruled that facts must be included in an indictment in order to differentiate the allegations of one count from another, and that this is a matter of constitutional due process. While Valentine may hint in dicta that the error in failing to differentiate counts in an indictment might be harmless if differentiation was afforded in a bill of particulars, or in the case of the double jeopardy issue only, with evidence during or at the conclusion of trial, the seminal holding in all these cases is that the indictment itself must contain the differentiating language.
{¶ 62} In the five years since the Eighth District was told that our application of clearly established federal law was both “incorrect and unreasonable,” we continue to affirm convictions based upon carbon-copy indictments. I would follow the clearly established federal law made applicable to us in Valentine, and would vacate one of the rapes in either Counts 5 or 6.4