State v. Kocevar
| Decision Date | 05 May 2023 |
| Docket Number | 29483 |
| Citation | 2023 Ohio 1513 |
| Parties | STATE OF OHIO Appellee v. PEYTON J. KOCEVAR Appellant |
| Court | Ohio Court of Appeals |
Criminal Appeal from Common Pleas Court Trial Court Case No 2020 CR 01833
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee
CATHERINE H. BREAULT and JON PAUL RION, Attorneys for Appellant
{¶ 1} Defendant-Appellant Peyton Kocevar appeals from his convictions on three counts of rape and one count of gross sexual imposition. The convictions involved sexual offenses against three victims: K.K., A.H., and J.T., who were among six victims Kocevar allegedly raped. Following two jury trials and these convictions, the court sentenced Kocevar to 11 years on each rape charge and one year on the gross sexual imposition charge, with the terms to be served concurrently for a total prison term of 11 years.
{¶ 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 R.C. 2152.02(C)(3), R.C. 2152.12(J), and 2151.23(I), the juvenile court lacked jurisdiction over Kocevar because he was 22 years old when the indictment was filed. These statutes remove juvenile jurisdiction over persons who are not taken into custody or apprehended until after they attain 21 years of age. Thus, no equal protection violation can exist because Kocevar was not similarly situated to persons who were subject to the juvenile court's jurisdiction.
{¶ 4} Kocevar also was not subjected to cruel and unusual punishment by losing an opportunity to participate in juvenile court proceedings. Both before and after Kocevar's alleged crimes, there was no change in any relevant statutes defining children over whom a juvenile court could exercise jurisdiction. As a result, when Kocevar allegedly committed the crimes, he had notice that he could be tried in adult court rather than remaining in juvenile court. Kocevar's sentence also did not shock the conscience. Moreover, because no pertinent statutory changes occurred after the alleged crimes were committed, no laws imposed additional punishment on Kocevar for purposes of ex post facto prohibitions against increased punishment, Finally, because no error occurred, no cumulative error could exist. Accordingly, the judgment of the trial court will be affirmed.
{¶ 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, which the State provided on October 6, 2020. This revealed that the alleged victims were as follows: Count One, rape by force or threat of force of K.K., on October 18, 2014; Count Two, rape by force or threat of force of R.O. between January 1, 2016 and December 31, 2016; Count Three, rape involving a substantially impaired victim, R.O., between January 1, 2016 and December 31, 2016; Count Four, rape by force or threat of force of M.M. between January 1, 2013 and December 31, 2014; Count Five, rape by force or threat of force of A.H. between January 1, 2013 and December 31, 2014; Count Six, gross sexual imposition involving A.H. between January 1, 2013 and December 31, 2014; Count Seven, rape by force or threat of force of J.T. between April 1, 2014 and April 30, 2014; Count Eight, rape involving a substantially impaired victim, M.C., between December 31, 2012 and January 1, 2013; and Count Nine, gross sexual imposition involving M.C., between December 31, 2012 and January 1, 2013.
{¶ 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.
{¶ 11} The case was initially tried to a jury on November 29 and 30 and Dec. 1-3, 2021. After deliberating, the jury found Kocevar guilty of the rape charge concerning J.T. and not guilty of the rape and gross sexual imposition charges involving M.C., the rape charge involving M.M., and the two rape charges involving R.O. The jury was unable to reach a verdict on the rape charge involving K.K. and the rape and gross sexual imposition charges involving A.H. The court, therefore, declared a mistrial with respect to the latter three charges. A new jury trial on the remaining charges was scheduled to begin on April 27, 2022.
{¶ 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.
{¶ 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....
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