State v. Palmer
| Decision Date | 29 September 2021 |
| Docket Number | 19 MA 0108 |
| Citation | 2021 Ohio 4639 |
| Court | Ohio Court of Appeals |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. JEFFREY PALMER, Defendant-Appellant. |
2021-Ohio-4639
STATE OF OHIO, Plaintiff-Appellee,
v.
JEFFREY PALMER, Defendant-Appellant.
No. 19 MA 0108
Court of Appeals of Ohio, Seventh District, Mahoning
September 29, 2021
Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2018 CR 660
JUDGMENT: Affirmed
Atty. Paul Gains, Prosecutor and Atty. Ralph Rivera, Assistant Prosecutor, Mahoning County Prosecutor's Office, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee and
Atty. Atty. John Juhasz, 7081 West Boulevard, Suite 4, Youngstown, Ohio 44512, for Defendant-Appellant.
BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
OPINION AND JUDGMENT ENTRY
Donofrio, J.
{¶1} Defendant-appellant, Jeffrey Palmer, appeals from a Mahoning County Common Pleas Court judgment after a jury trial convicting him of 12 counts of rape of A.B., a child under the age of 13, and 1 count of gross sexual imposition (GSI) of A.B., a minor under the age of 13. Appellant was sentenced to a total of 40 years to life in prison.
{¶2} Appellant was indicted by direct presentment to the Mahoning County Grand Jury for 12 counts of rape of a minor under the age of 13, and 1 count of GSI. Each of the rape charges stated identical findings. Appellant was arraigned and his counsel filed a request for a bill of particulars.
{¶3} On July 17, 2019, counsel for appellant filed a motion to withdraw as counsel. It was filed five days before the July 22, 2019 jury trial. The State filed the bill of particulars on July 18, 2019. On July 22, 2019, the trial court overruled the motion and rescheduled the trial to September 3, 2019.
{¶4} On September 3, 2019, the jury trial began. The State's witnesses included: A.B.; her mother; a neighbor; Boardman police officers; Andrea Miller, a social worker employed by Akron Children's Hospital (ACH) who interviewed A.B. and her mother; Janet Gorsuch, a Nurse Practitioner (NP) at ACH in the Child Advocacy Center (CAC); and Courtney Wilson, the social worker who conducted the interview of A.B. at CAC. Appellant was the only person who testified for the defense.
{¶5} After closing arguments, the trial court issued jury instructions and distributed verdict forms, one for each count. The jury began deliberating and after approximately one hour, they returned guilty verdicts on all counts. Counsel for appellant filed a motion for a new trial and the court overruled it. The trial court sentenced appellant to 10 years to life on each of the 12 rape convictions and 5 years on the GSI conviction. The court ran: Counts 1, 2, and 3 for rape concurrently to each other; Counts 4, 5, and 6 for rape concurrently to each other but consecutively with Counts 1, 2, and 3; Counts 7, 8, and 9 for rape concurrently to each other but consecutively with Counts 1, 2, and 3, and Counts 4, 5, and 6; Counts 10, 11, and 12 for rape concurrently to each other, but
consecutively with Counts 1, 2, and 3, 4, 5, and 6, and 7, 8, and 9; and Count 13 for GSI concurrently with all sentences. The total sentence was 40 years to life in prison.
{¶6} Appellant filed the instant appeal alleging nine assignments of error. His first assignment of error states:
Appellant Was Denied Due Process Because the Indictment, Bill of Particulars, Jury Instructions, and Verdict Failed to Differentiate Between the Different Types of Conduct Said to Constitute Rape
{¶7} Appellant asserts that his due process and double jeopardy protections were violated by having 12 identical counts presented in the indictment. He contends that this denied him a fair opportunity to defend against those charges and to avoid double jeopardy because there was no way to determine the evidence that the jury relied upon to convict him on all rape counts. He asserts that the jurors therefore had no idea which count they were considering or whether each of them were considering the same type of sexual conduct for each particular count.
{¶8} Appellant relies on Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005) for support. There, Valentine was indicted on 20 identical counts of child rape and 20 identical counts of felonious sexual penetration of a child. The indictment alleged that the offenses occurred between March 1, 1995 and January 16, 1996, mimicked the language of the statutes, and identified the victim's birthdate. The bill of particulars stated that the offenses occurred at the family home. The minor was the only witness to testify and she stated that Valentine forced her to perform fellatio on "about" 20 occasions, he digitally penetrated her vagina on "about" 15 occasions, and he anally penetrated her on "about" 10 occasions. The minor altered the numbers during cross-examination. The jury convicted Valentine on all counts and he was sentenced to 40 consecutive life terms.
{¶9} On appeal, the Eighth District Court of Appeals affirmed all of the rape convictions, but only 15 of 20 of the felonious sexual penetration counts. Valentine, 395 F.3d 626. The court found no evidence to support five of the latter counts. Id.
{¶10} Valentine filed a federal habeas corpus petition asserting that he was denied due process because he was tried and convicted on an indictment that did not specify dates and did not distinguish between conduct on any specific date. The district
court granted the petition and found that the indictment violated due process because its identical language in each count failed to notify Valentine of the crimes with reasonable certainty so that he could protect himself against double jeopardy. Id. at 630-631. The district court relied upon Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), where the United States Supreme Court outlined the criteria that an indictment must contain in order to be found sufficient. Valentine, 395 F.3d at 630-631. The Russell Court determined that an indictment is sufficient if it (1) contains the elements of the charged offenses, (2) gives the defendant adequate notice of the charges, and (3) protects the defendant against double jeopardy. Russell, 369 U.S. at 763-764. While acknowledging that the federal right to a grand jury indictment has never been found to apply to the states, the Sixth Circuit cited cases applying the due process rights of the indictment elements in Russell to state criminal indictments. Valentine, 395 F.3d at 631 (citations omitted).
{¶11} Applying Russell in Valentine, the Sixth Circuit held that Valentine's rights to due process and double jeopardy were violated. Valentine, 395 F.3d at 632. The Court explained that the wide date range set forth in the indictment was sufficient, but there were no distinctions between each set of 20 counts for each offense because Valentine was charged for 2 criminal acts that each occurred 20 times, rather than for 40 separate criminal acts. Id. The Court found that the prosecution did not present the factual bases for 40 separate acts in either the indictment or in evidence at trial. Id. at 633. The Court noted that at trial, the child victim described "typical" abusive behavior by Valentine and testified that the "typical" abuse occurred 15 or 20 times. Id. The Court found that the jury would not be able to consider each count on its own and could not have found Valentine guilty of counts 1-5, but not counts 6-20, because there was no differentiation between these sets of counts. Id. The Sixth Circuit held that Valentine would therefore not be able to adequately defend against some of the charges without defending against all of the charges and could not distinguish between the charges. Id. The Court also held that Valentine would be unable to protect himself against double jeopardy because he could be punished multiple times for the same offense. Id. at 634.
{¶12} Here, appellant acknowledges that this Court does not follow Valentine. However, he asserts that our reasons for rejecting Valentine are "less than persuasive."
He posits that Valentine was not based on a direct challenge under the United States or Ohio Constitutions, but was based upon the much higher standard delineated in federal habeas corpus law. Appellant contends that in State v. Billman, 7th Dist. Monroe Nos. 12 MO 3, 12 MO 5, 2013-Ohio-5774, we "misperceived" Valentine's constitutional analysis because we held that it applied the Fifth Amendment provisions regarding grand jury indictments, which did not apply to the Ohio Grand Jury indictment requirement. He asserts that Valentine relied upon the double jeopardy clause of the Fifth and Fourteenth Amendments, and no case has rejected Valentine's constitutional reasoning.
{¶13} Appellant adds that his right to present a defense is also hindered by allowing "such vague and duplicative allegations" with no corroborative evidence. He reasons that A.B. testified that she was sexually assaulted multiple times a day when her mother was at work, but no daycare records, mother's employment records, or A.B.'s school records were offered. Appellant asserts that since all 12 counts against him were identical, he was left without the ability to determine when, where, or what allegations were alleged against him and he could not offer evidence showing A.B. was in school or daycare when the alleged assaults occurred, or that her mother worked more or different hours than she testified.
{¶14} A person accused of a felony in Ohio is "entitled to an indictment setting forth the 'nature and cause of the accusation' pursuant to Section 10, Article I of the Ohio Constitution." State v. Moats, 7th. Dist. Monroe No. 14 MO 0006, 2016-Ohio-7019, quoting State v. Sellards, 17 Ohio St.3d 169, 170, 478 N.E.2d 781 (1985). The Ohio General Assembly has defined a sufficient indictment as one:
(A) [t]hat is entitled in a court having authority to receive it, though the name of the court is not stated; * * *
(B) * * *that it was found...
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