State v. Baer, 2009 Ohio 3248 (Ohio App. 6/23/2009)
| Decision Date | 23 June 2009 |
| Docket Number | No. 07 HA 8.,07 HA 8. |
| Citation | 2009 Ohio 3248 |
| Parties | State of Ohio, Plaintiff-Appellee, v. William H. Baer, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
T. Shawn Hervey, Prosecuting Attorney, P.O. Box 248, 111 W. Warren Avenue, Cadiz, OH 43907, for Plaintiff-Appellee.
Gerald A. Latanich, 201 North Main Street, P.O. Box 272, Uhrichsville, OH 44683, for Defendant-Appellant.
Judges: Hon. Mary DeGenaro, Hon. Joseph J. Vukovich, Hon. Cheryl L. Waite.
{¶1} This timely appeal comes for consideration upon the record in the trial court, the parties' briefs, and their oral arguments before this court. Appellant, William Baer, appeals the October 31, 2007 decision of the Harrison County Court of Common Pleas that found him guilty on two counts of Rape, in violation of R.C. 2907.02(A)(1)(b), with specifications that both victims were under ten years old and that Baer used force or threat of force. Baer was also found guilty on two counts each of Sexual Battery and Gross Sexual Imposition, in violation of R.C. 2907.03(A)(5) and R.C. 2907.05(A)(1).
{¶2} On appeal, Baer argues that the trial court erroneously allowed the indictment to be amended, that his speedy trial waiver did not apply to the indictment as amended, and that the inclusion of hearsay testimony of the children from counselors violated his right to confrontation. Baer also claims ineffective assistance of counsel for failure to object to the above errors, and claims that the overall prejudicial effect of all assigned errors mandates reversal. Additionally, Baer argues that there was insufficient evidence to support his conviction, and that the State violated Baer's due process rights by the peremptory challenge of a juror solely based on race.
{¶3} The trial court's amendment of Baer's indictment did not change the name or identity of the crimes charged, and thus did not require a new grand jury submission or renewed waiver of speedy trial. The inclusion of counselor testimony was done with the explicit agreement of Baer, the children actually testified at trial and were subject to cross-examination, and Baer's failure to object to the inclusion of the counselors' testimony waives such argument on appeal. Baer's trial attorney's failure to object to the above issues was within the realm of sound trial strategy. The State presented evidence which, if believed, satisfied all elements of the crimes charged against Baer. The challenge of one juror from the panel may have been suspect due to his being the only member of that race in the jury pool. However, the trial court appropriately determined that the State had valid alternative reasons for excluding said juror. Given that the above claims did not involve errors by the trial court, their cumulative effect was not of prejudicial error.
{¶4} Accordingly, the trial court's decision is affirmed.
{¶5} On June 26, 2006, AB told her mother that Baer, ABs' father, had sexually abused her. Her mother, Christina, called her family physician and was told to bring AB in the following day. Christina later asked another daughter, SB, if anything bad had happened to her, and SB made similar allegations. AB and SB were taken to their family physician, referred to emergency services at the Harrison Community Hospital, and reported to the Harrison County Department of Job & Family Services. Demitrius Carrothers of the Harrison County Department of Job & Family Services interviewed AB and SB on June 27 and 28. The interviews were documented on video tape and formalized in a written "Investigative Report." AB and SB were referred to another emergency services facility with specialists in sexual assault, and underwent examinations on June 28, 2006.
{¶6} The trial court held a preliminary hearing to determine the competency of AB and SB on July 3, 2006. On July 7, 2006, Baer was indicted by a Grand Jury on two counts of rape, in violation of R.C. 2907.02(A)(1)(b), and two counts each of Sexual Battery and Gross Sexual Imposition, in violation of R.C. 2907.03(A)(5) and R.C. 2907.05(A)(1). The indictment identified the two victims as being under the age of ten. Baer entered a plea of not guilty.
{¶7} On September 20, 2006, Baer submitted a statutory time waiver for a period of sixty days in connection with motions for discovery and to modify bond. At Baer's request, the State filed a Bill of Particulars on October 4, 2006 which stated that Baer was charged with rape in violation of R.C. 2907.02(A)(2), prohibiting sexual conduct with another person "when the offender purposely compels the other person to submit by force or threat of force." The bill of particulars identified the offense as a special first degree felony. The description of the charges included specifics as to the sexual conduct involved, the age of the victims, and the threats of force involved.
{¶8} On December 12, 2006, Baer submitted a Motion to Determine Competency of Witnesses and an additional statutory time waiver for a period of one hundred twenty days. On February 22, 2007, the trial court held another competency hearing and found AB and SB competent to testify. On April 30, 2007 Baer's attorney moved for a continuance of at least sixty days from the May 14, 2007 trial date and waived "all statutory time limitations with respect to this case."
{¶9} Subsequent to a phone conference with the trial court and all attorneys involved, the State filed a Motion to Amend Indictment, which the trial court granted on May 24, 2007. The amended indictment identified the rape offenses as special first degree felonies in violation of R.C. 2907.02(A)(1)(b), moved the description of the victims' ages to a separate "specification" section, and included a specification that the offense was committed with force or threats of force.
{¶10} The trial commenced on September 24, 2007. During voir dire of the jury, counsel for Baer made a Batson challenge regarding the State's third peremptive challenge, which the court overruled. For the State's case in chief, the following witnesses testified: AB; SB; Karen Roberts, a nurse who saw the girls on June 27, 2006 and contacted Carrothers; Dr. David Shaffer, a Harrison Community Hospital ER physician who saw the girls on June 27, 2006; Pam Hivnor, a sexual assault nurse examiner who examined AB on June 28, 2006; Lucinda Fay Hill, a sexual assault nurse examiner who examined SB on June 28, 2006; Dr. Michelle Dayton, an emergency physician who oversaw the June 28, 2006 examinations; Margaret DeLillo-Storey, a professional clinical counselor who performed counseling sessions with AB and SB from March, 2007 up to the time of trial; Demitrius Carrothers, the child abuse and neglect investigator who interviewed the girls on June 27 and 28; Sarah Book, a licensed professional counselor who performed counseling sessions with AB and SB from approximately July, 2006 to January, 2007; Gwen Wheeler, maternal grandmother of AB and SB; and Christina Baer, wife of Baer and mother of AB and SB.
{¶11} Baer stipulated to the admission of the video-taped interview performed by Carrothers. Baer also entered a joint motion to admit the counseling notes of DeLillo-Storey and Sara Book, and stipulated to the admission of Carrothers' written investigative report. At the close of the State's case, Baer made a Rule 29 motion for acquittal for failure to meet the burden of proof, which the court overruled.
{¶12} For Baer's case in chief, the following witnesses testified: Steve Duke, an acquaintance of Baer and Christina; Garry Brown, the mother of a girl who may have had a relationship with Baer; Harold Burton, who lived with the Baers in June of 2006, and Jessica Baer, a daughter of Baer from another marriage.
{¶13} At the end of trial, the trial court granted an additional amendment to the indictment to clarify the identity of the victims for each offense. Baer renewed his motion for acquittal, which the trial court denied. The jury returned a verdict of guilty on all six counts against Baer. The trial court held a sentencing hearing on October 19, 2007. In its October 31, 2007 Judgment Entry, the court merged the sexual battery and gross sexual imposition charges with the rape charges, and imposed two life sentences with parole eligibility after ten years, to be served consecutively.
{¶14} Baer retained alternative counsel, who filed a Notice of Appeal on November 8, 2007. A supplemental statement pursuant to App.R. 9 was filed with this court describing an unrecorded sidebar conversation that occurred during Baer's Batson challenge. For clarity of analysis, we will address Baer's seven assignments of error out of the order they were presented to the court.
{¶15} In his second of seven assignments of error, Baer argues:
{¶16} "The trial court committed plain error by allowing the indictment to be amended to involve force which added an element elevating the charge to a life count rape without proper consideration by the grand jury and allowing the "specification" of rape of a child younger than ten years of age."
{¶17} Baer claims that the indictment as amended increased the penalty for the rape charges and included two new substantive specifications: force, and that the victims were under ten years of age. Baer further claims that the penalty for the rape charges was erroneously enhanced due to the correction of the rape charge as a special first degree felony rather than a first degree felony.
{¶18} Baer correctly limits his argument to a plain error analysis, as he did not object to the amendment of the indictment at trial. An appellate court does not have to resolve an alleged error if it was never brought to the attention of the trial court "at a time when such error could have been avoided or corrected by the trial court." State...
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