State v. Barnes

• Decision Date: 27 June 2008
• Docket Number: No. 2007 CR 0417.,No. 2007 CR 0327.,2007 CR 0327.,2007 CR 0417.
• Parties: The STATE of Ohio, Plaintiff, v. BARNES, Defendant.
• Court: Ohio Court of Common Pleas

896 N.E.2d 1033

149 Ohio Misc.2d 1

2008-Ohio-5609

The STATE of Ohio, Plaintiff, v. BARNES, Defendant.

No. 2007 CR 0327.

No. 2007 CR 0417.

Court of Common Pleas of Ohio, Clermont County.

Decided June 27, 2008.

Donald White, Clermont County Prosecuting Attorney, and Scott Smith, Assistant Prosecuting Attorney, for plaintiff.

Gary Rosenhoffer, Batavia and Patrick Gregory, for defendant.

HADDAD, Judge.

{¶ 1} This matter was before the court on January 29, 2008, pursuant to a motion to consolidate filed by the state of Ohio, a motion to sever filed by the defendant, Clarence W. Barnes, and a motion for more specific bill of particulars filed by the defendant. A hearing was held on those motions and was continued in progress until March 7, 2008. On that date, the court heard three separate motions in limine filed by the defendant and a motion to compel filed by the defendant. The court then conducted a hearing on its own motion to clarify on May 20, 2008, and the state responded at a hearing on May 27, 2008. Upon hearing oral arguments on the motions, the court took the matter under advisement and now renders the following decision.

FINDINGS OF FACT

{¶ 2} The defendant, Clarence W. Barnes, was indicted on April 18, 2007, in case No. 2007 CR 0327, on nine counts of gross sexual imposition, a violation of R.C. 2907.05(A)(4). It is alleged that the defendant, on separate occasions during the time period of March 2006 through January 20, 2007, had sexual contact with another, not the spouse of the defendant, when the other person was less than 13 years of age, whether or not the defendant knew the person's age. Specifically, the defendant is alleged to have touched the vaginal area of S.B., the 12-year-old granddaughter of the defendant. The following facts are alleged in the bill of particulars. It is alleged that two of these incidents occurred while the defendant and S.B. were playing darts at the defendant's home. Another incident allegedly occurred while the defendant and S.B. were in the upstairs of the defendant's home. It is further alleged that the fourth incident occurred when the defendant was at S.B.'s residence, where he touched her vaginal area over her underwear. The fifth incident is alleged to have occurred while the defendant was babysitting S.B., whose parents were at the hospital tending to their newborn twins. It is alleged that the defendant, on this fifth occasion, touched S.B.'s vaginal area over her underwear from the backside. The sixth incident allegedly involved the defendant's touching of S.B.'s breasts. The seventh incident allegedly occurred when the defendant touched S.B.'s vaginal area over her underwear while she was attempting to show him her schoolwork. The eighth incident involves the alleged touching of S.B.'s vaginal area while she attempted to show the defendant her video game. The ninth and final incident was allegedly witnessed by S.B.'s mother on January 20, 2007. It is alleged that the defendant placed his hand under S.B.'s shorts and touched her vaginal area over her underwear.

{¶ 3} The defendant was then indicted on May 16, 2007, in case No. 2007 CR 0417, on one count of gross sexual imposition, a violation of R.C. 2907.05(A)(4). It is alleged that the defendant, sometime during the period of 1998 through 1999, had sexual contact with another, not the spouse of the defendant, when the other person was less than 13 years of age, whether or not the defendant knew that person's age. More specifically, it is alleged that the defendant touched the pelvic area of E.M., who was five years old at the time. It is alleged that the defendant had undone E.M.'s pants and underwear and rubbed her front pelvic area, claiming that he was looking for ticks.

LEGAL ANALYSIS

Motion to Consolidate

{¶ 4} "The court may order two or more indictments or informations or both to be tried together, if the offenses or the defendants could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information." Crim.R. 13. "Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct." Crim.R. 8(A). However, a trial court must order separate trials if a defendant would be prejudiced by the joinder. Crim.R. 14. See also State v. Wilkins, Clinton App. No. CA2007-03-007, 2008-Ohio-2739, 2008 WL 2331367, ¶ 13.

{¶ 5} "Joinder and the avoidance of multiple trials are favored to conserve judicial resources, including time and expense, reduce the chance of incongruous results in successive trials before different juries, and diminish inconvenience to the witnesses." State v. Clifford (1999), 135 Ohio App.3d 207, 211, 733 N.E.2d 621, citing State v. Thomas (1980), 61 Ohio St.2d 223, 15 O.O.3d 234, 400 N.E.2d 401. See also Wilkins, 2008-Ohio-2739, 2008 WL 2331367, ¶ 13. Therefore, joinder is favored unless it causes prejudice to the defendant. To determine whether the defendant will be prejudiced by joinder of multiple offenses, the court must consider "(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." Clifford, 135 Ohio App.3d at 212, 733 N.E.2d 621, citing State v. Schaim (1992), 65 Ohio St.3d 51, 600 N.E.2d 661. See also State v. Van Sickle (1993), 90 Ohio App.3d 301, 304-305, 629 N.E.2d 39. "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." Schaim at 59, 600 N.E.2d 661, quoting Drew v. United States (C.A.D.C.1964), 331 F.2d 85, 90 and citing United States v. Riley (C.A.8, 1976), 530 F.2d 767. It is the defendant's burden to show prejudice by furnishing the court with sufficient information so that it can balance the considerations favoring joinder against the defendant's right to a fair trial. State v. Torres (1981), 66 Ohio St.2d 340, 343, 20 O.O.3d 313, 421 N.E.2d 1288. See also Wilkins at ¶ 13-15.

{¶ 6} The state argues that case Nos. 2007 CR 0327 and 2007 CR 0417 should be consolidated for purposes of trial since the offenses charged in the separate indictments are of the same or similar character, constitute part of a common scheme or plan, and are all part of a continuing course of criminal conduct. The defendant argues that the offenses are alleged to have occurred on different dates and with separate victims, and that the testimony of one victim would not be admissible in a separate trial as similar evidence. The defendant argues that, as a result, he will be prejudiced if the two separate indictments are joined.

{¶ 7} In determining whether the two cases should be consolidated, the court must first determine whether the offenses could have been joined in a single indictment. Pursuant to the Ohio Rules of Criminal Procedure, as stated earlier, offenses may be joined in a single indictment if they are of the same or similar character, are based on the same act or transaction, are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct. Crim.R. 8(A).

{¶ 8} The court finds that in both indictments, the defendant is charged with gross sexual imposition; therefore, the offenses charged are of the same or similar character. The court further finds that the alleged offenses are not based upon the same act or transaction. They occurred approximately seven to nine years apart and involve different victims. The state argues that these offenses are based upon two or more acts that constitute a common scheme or plan. The court agrees that the alleged incidences involving S.B. and E.M., when looked at together, constitute a common scheme, i.e., sexual contact between the defendant and his granddaughters for the purpose of sexual gratification. Finally, the court finds that the two separate offenses are part of a course of criminal conduct, i.e., touching his grandchildren inappropriately for the purpose of sexual gratification. The court therefore finds that three of the four possible reasons for joinder of the two separate indictments are present in this case; thus, the court finds that this case is one in which joinder is favored.

{¶ 9} However, although joinder is favored under the facts of this case, the court cannot consolidate the cases if such consolidation would result in prejudice to the defendant. In making this determination, the court must first consider the extent to which evidence of the crimes alleged in each case would be admissible in the other case even if the indictments were severed. R.C. 2945.59, which is a codification of Evid.R. 404(B), provides:

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 tend 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.

Evid.R. 404(B) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may,...