State v. Barnes
| Decision Date | 11 October 2011 |
| Docket Number | CASE NO. CA2010-06-009 |
| Citation | 2011 Ohio 5226 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. CLARENCE BARNES, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
Jessica A. Little, Brown County Prosecuting Attorney, Mary McMullen, 200 East Cherry Street, Georgetown, Ohio 45121, for plaintiff-appellee
Michael K. Allen, 810 Sycamore Street, 4th Fl., Cincinnati, Ohio 45202, for defendant-appellant
{¶1} Defendant-appellant, Clarence W. Barnes, appeals from his conviction and sentence in the Brown County Court of Common Pleas on one count of gross sexual imposition.
{¶2} Appellant was indicted on June 21, 2007 on seven counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), felonies of the third degree. The charges stemmed from allegations that appellant sexually abused his granddaughters, E.M. and R.M.,when the children visited appellant at his home in Brown County.1 After playing outdoors, the children would take turns showering. While E.M. showered, appellant would enter the bathroom, claiming he had to check E.M. for ticks. According to E.M., appellant would briefly check her hair and behind her ears, but would then spend 45 to 60 seconds rubbing her vaginal area.
{¶3} During a bench trial, the trial court dismissed Count Six for lack of evidence. At the conclusion of trial, the court found Barnes guilty on Count Seven. Having been found guilty on Count Seven, appellant pleaded guilty to Count One relating to R.M., which the state reduced to gross sexual imposition in violation of R.C. 2907.05(A)(5), a fourth-degree felony.
{¶4} Appellant was sentenced to prison terms of 18 months on Count One and five years on Count Seven, to be served concurrently. The trial court also classified appellant as a Tier I and Tier II sex offender for registration purposes.
{¶5} Appellant timely appeals, raising nine assignments of error.
{¶6} Assignment of Error No. 1:
{¶7} "DEFENDANT-APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED DUE TO THE OVERBROAD AND UNSPECIFIC TIME FRAME FOR THE ALLEGED OFFENSE SET FORTH IN THE INDICTMENT."
{¶8} Assignment of Error No. 2:
{¶9} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY ALLOWING THE STATE OF OHIO TO AMEND THE INDICTMENT BY EXPANDING THE TIME FRAME OF THE ALLEGED CRIMINAL ACTIVITY BEYOND THAT DETERMINED BY THE GRAND JURY."
{¶10} In his first assignment of error, appellant argues he was deprived of due process with respect to the lack of specificity in the indictment and bill of particulars. Appellant argues the time range stated in the indictment was too broad to permit him to prepare a defense. This alleged failure also gives rise to appellant's second assignment of error that claims the trial court erroneously permitted the state to extend the time frame of the alleged offense to include an additional three months not specified in the original indictment. Because these assignments of error are based upon the same argument, we will address them concurrently.
{¶11} The precise date and time of the alleged sexual activity are not essential elements of gross sexual imposition. See State v. Wagers, Preble App. No. CA2009-06-018, 2010-Ohio-2311, ¶17-18 (). Thus, a certain degree of inexactitude in averring the date of the alleged offense is not per se impermissible or fatal to the prosecution. State v. Sellards (1985), 17 Ohio St.3d 169, 171. Nevertheless, where an accused requests a bill of particulars, the state must supply specific dates and times for the alleged offense if it possesses that information. Id.
{¶12} In many cases involving child sexual abuse, child victims are simply unable to remember exact dates and times, particularly where the crimes involved a repeated course of conduct over an extended period of time. See Wagers at ¶17; State v. Mundy (1994), 99 Ohio App.3d 275. State v. Elkins, Licking App. No. 2010-CA-104, 2011 -Ohio-3611, ¶26.
{¶13} In the case at bar, the record reveals the state disclosed information regarding the dates and times of the present offense to the best of its ability. Originally, the indictment alleged the offense occurred between June 14, 1999 and June 13, 2000.2 However, through a series of amendments, the state finally narrowed the time range for the offense between March 22, 2000 and September 22, 2000. Given the record before this court, there is no indication that the state was not forthcoming with the dates as known to it.
{¶14} The only question remaining is whether the state's inability to provide more specific dates and times resulted in a material detriment to appellant's ability to defend himself. Appellant argues that even the six-month time period between March and September 2000 was overbroad, and that with a more specific time frame, he would "likely" have found witnesses to establish he was on vacation during the time of the offense. We disagree.
{¶15} The state's failure to provide specific dates and times in an indictment is more likely to prejudice an accused in cases where the age of the victim is an element of the crime charged and the victim bordered on the age required to make the conduct criminal. See Sellards, 17 Ohio St.3d at 172. A second common situation resulting in prejudice is where "the defendant had been imprisoned or was indisputably elsewhere during part but not all of the intervals of time set out in the indictment." Id. In the case at bar, we are confronted with neither situation, where E.M. was approximately seven years old when the offenses occurred, and appellant was not imprisoned during this time.
{¶16} We find the six-month time period did not prejudice appellant's ability to prepare a defense. While appellant claims the inexactitude of the indictment and bill of particularsdenied him the ability to present an alibi defense, appellant never filed a notice of intent to rely on an alibi as is required by Crim.R. 12.1. See id. Instead, appellant's defense centered on his claims that E.M.'s allegations were the result of "false memory," and that he never engaged in sexual activity with E.M, regardless of the dates the alleged abuse took place. Cf. State v. Yaacov, Cuyahoga App. No. 86674, 2006-Ohio-5321. Because appellant has failed to show how he was prejudiced by the time range, his first and second assignments of error are overruled.
{¶17} Assignment of Error No. 3:
{¶18} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY ADMITTING INSTANCES OF OTHER BAD ACT EVIDENCE."
{¶19} In his third assignment of error, appellant argues the trial court erred in permitting the state to introduce evidence of other sexual activity that occurred during the same time period covered by the indictment. This argument concerns the admission of evidence about sexual activity between appellant and E.M. at appellant's Clermont County residence, in addition to evidence that appellant entered the bathroom while his other grandchildren showered at the Brown County residence. Over defense counsel's objection, E.M. was permitted to testify about her "unpleasant feelings" regarding sexual activity on a couch in appellant's Clermont County residence. In addition, E.M.'s childhood companion, G.C., was permitted to testify that E.M. felt "hateful" toward the same couch. The trial court also admitted a recording of E.M.'s interview with a social worker that related solely to sexual activity in the Clermont County residence. Appellant also challenges the trial court's decision to permit E.M.'s sister, R.M., and E.M.'s cousin, D.M., to testify that appellant entered the bathroom while they showered at the Brown County residence.
{¶20} The state argues such evidence is admissible to negate appellant's contention that he was checking E.M.'s vaginal area for ticks, and instead engaged in the contact for thepurpose of sexual arousal or gratification. See R.C. 2907.05(A)(4). Conversely, appellant argues this evidence served no legitimate purpose and only tarnished his character in the eyes of the court. Additionally, appellant argues the testimony of R.M. and D.M. was not related to the charges before the court and was thus unfairly prejudicial.
{¶21} Evid.R. 404(B) provides: Likewise, R.C. 2945.59 provides: "[i]In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tends to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant."
{¶22} Such evidence is admissible if it meets one of the above requirements and there is substantial proof that the alleged other acts were committed by the defendant. See State v. Miley, Richland App. Nos. 2005-CA-67, 2006-CA-14, 2006-Ohio-4670, ¶60. Further, the prior...
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