State v. Torres, 80-1178
| Decision Date | 10 June 1981 |
| Docket Number | No. 80-1178,80-1178 |
| Citation | 20 O.O.3d 313,421 N.E.2d 1288,66 Ohio St.2d 340 |
| Parties | , 20 O.O.3d 313 The STATE of Ohio, Appellee and Cross-Appellant, v. TORRES, Appellant and Cross-Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
A defendant claiming error in the trial court's refusal to allow separate trials of multiple charges under Crim.R. 14 has the burden of affirmatively showing that his rights were prejudiced; he must furnish the trial court with sufficient information so that it can weigh the considerations favoring joinder against the defendant's right to a fair trial, and he must demonstrate that the court abused its discretion in refusing to separate the charges for trial.
On April 23, 1979, an undercover investigator of the Ohio Bureau of Criminal Investigation, Dennis DiRienzo, met the defendant, Paul Torres, at a fast-food restaurant in Port Clinton, Ottawa County, pursuant to arrangements made earlier with the defendant by a paid informant, for the purpose of purchasing heroin. The defendant offered to sell DiRienzo one-quarter ounce of heroin for $500, but no transaction took place because the defendant did not have any heroin in his possession and the investigator was unwilling to pay the defendant in advance. Based on the foregoing, the defendant was eventually indicted for offering to sell a controlled substance, in violation of R. C. 2925.03(A)(1), in Count I of Indictment 3101-A.
On April 27, 1979, investigator DiRienzo and the defendant met again at the restaurant, pursuant to a telephone call initiated by the investigator. The defendant had given the investigator his telephone number at their first meeting. At the second meeting, the defendant had 5.46 grams of heroin which he sold to the investigator for $500 in cash. Based on the foregoing, the defendant was later charged in Count II of Indictment 3101-A with selling a controlled substance in an amount less than the minimum bulk amount, in violation of R. C. 2925.03(A)(1).
On June 25, 1979, investigator DiRienzo again called the defendant about another purchase, pursuant to the defendant's earlier suggestion. The next day, a second sale was consummated in the restaurant parking lot with the defendant being paid $2,000 in cash for 26.22 grams of heroin. He was arrested immediately after the transaction was completed. The foregoing formed the basis for Indictment 3109-A containing a single count in which the defendant was charged with selling a controlled substance in an amount exceeding the bulk amount but less than three times that amount, in violation of R. C. 2925.03(A) (5).
The two cases were tried together. The trial court joined the two indictments for trial because it found that under Crim. R. 13, the offenses could have been joined in a single indictment. The court overruled the defendant's motion for separate trials of the two indictments, based on the claim that the defendant would be prejudiced by the joinder because he intended to raise the defense of entrapment against the two counts in Indictment 3101-A, but not in defending against Indictment 3109-A. He argued that the defense of entrapment is in the nature of a confession and avoidance and that asserting this defense to both indictments would be prejudicial.
At the close of the state's case, the court granted defendant's motion for a directed verdict of acquittal of the charge of offering to sell heroin as alleged in Count I of Indictment 3101-A, and the trial proceeded on the two charges of sale of heroin. The defendant was found guilty of both offenses and the court imposed consecutive sentences.
Upon appeal, the Court of Appeals found that the trial court abused its discretion in refusing to grant separate trials and that the defendant's "right to a fair trial has been prejudiced by the joinder as to count two in indictment 3101-A." The trial court's judgment for that offense was reversed and the case was remanded for further proceedings "as to count two of No 3101-A." The judgment under Indictment 3109-A was affirmed and that case was remanded for execution of sentence.
The cause is now before this court pursuant to the allowance of a motion and cross-motion for leave to appeal.
Lowell S. Petersen, Pros. Atty., and Barbara Peterson, Marblehead, for appellee and cross-appellant.
Stephen E. Cottrell, Toledo, for appellant and cross-appellee.
The principal question is whether defendant Paul Torres was prejudiced, as he claims and as the Court of Appeals agreed, by the refusal of the trial court to grant him separate trials of the two indictments, under Crim. R. 14. 1 He implicitly concedes that the trial court could in the first instance join the two indictments for trial under Crim. R. 13 because the charges could have been originally joined in one indictment under Crim. R. 8(A) 2 as offenses of the same or similar character or offenses based on two transactions connected together. As we stated in State v. Thomas (1980), 61 Ohio St.2d 223, 225, 400 N.E.2d 401, joinder and the avoidance of multiple trials is favored for many reasons, among which are conserving time and expense, diminishing the inconvenience to witnesses and minimizing the possibility of incongruous results in successive trials before different juries. The defendant, however, alleges that the joinder in his case was prejudicial, under Crim. R. 14, and that he should have had two separate trials.
A defendant claiming error in the trial court's refusal to allow separate trials of multiple charges has the burden of affirmatively showing that his rights were prejudiced. State v. Roberts (1980), 62 Ohio St.2d 170, 175, 405, N.E.2d 247; State v. Thomas, supra, at 225. He must demonstrate that the trial court abused its discretion in refusing to separate the charges for trial. Opper v. United States (1954), 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101; Wright, Federal Practice and Procedure 468, Section 227. More specifically, he has the burden of furnishing the trial court with sufficient...
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