State v. Wagers, 2010 Ohio 2311 (Ohio App. 5/24/2010), CA2009-06-018.

Citation2010 Ohio 2311
Decision Date24 May 2010
Docket NumberNo. CA2009-06-018.,CA2009-06-018.
PartiesState of Ohio, Plaintiff-Appellee, v. Gene Wagers, Jr., Defendant-Appellant.
CourtUnited States Court of Appeals (Ohio)

Martin P. Votel, Preble County Prosecuting Attorney, Eric E. Marit, 101 East Main Street, Eaton, Ohio 45320, for plaintiff-appellee.

Keith L. O'Korn, 440 Polaris Parkway, Suite 150, Westerville, Ohio 43082, for defendant-appellant.

OPINION

POWELL, J.

{¶1} Defendant-appellant, Gene Wagers, Jr., appeals his conviction and sentence from the Preble County Court of Common Pleas for multiple sexual offenses.

{¶2} During the period between June 12, 2001, and June 11, 2005, appellant sexually abused his biological daughter, J.W., who was six years old when the abuse began. The abuse ended when J.W. went to live with her aunt, Delora Mullins ("Aunt Dotty"), who lived in Scioto County. After J.W. told Aunt Dotty about the abuse in July 2005, Aunt Dotty contacted Scioto County Children's Services, and children's services notified the Preble County Sheriff's Office of the abuse. The sheriff's office, however, did not investigate the case until November 2008.

{¶3} On March 2, 2009, appellant was indicted on four counts of rape, pursuant to R.C. 2907.02(A)(1)(b), one count of rape, pursuant to R.C. 2907.02(A)(2), four counts of sexual battery, pursuant to R.C. 2907.03(A)(5), and one count of disseminating harmful material to juveniles pursuant to R.C. 2907.31(A)(3). The first nine counts in the indictment also contained a sexually violent predator (SVP) specification.

{¶4} Following a trial, a Preble County jury found appellant guilty on all counts in the indictment. Additionally, the jury made the finding that J.W. was under the age of ten at the time the offenses occurred. Finally, the jury convicted appellant on all SVP specifications contained in the indictment. At the sentencing hearing, the trial court merged the sexual battery and rape counts and sentenced appellant to five concurrent terms of life imprisonment without parole. The court also sentenced appellant to 18 months in prison for the disseminating harmful materials conviction and classified him as a tier III sex offender under Ohio's Adam Walsh Act. From his conviction and sentence, appellant timely appeals, asserting eight assignments of error.

{¶5} Assignment of Error No. 1:

{¶6} "APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION BY STRUCTURAL AND CONSTITUTIONAL ERROR THAT OCCURRED WHEN HE WAS CONVICTED UPON AN INSUFFICIENT AND DEFECTIVE INDICTMENT THAT INCLUDED CARBON COPY COUNTS WITH FOUR YEAR OFFENSE DATE RANGES, IMPROPER SEXUALLY

VIOLENT PREDATOR SPECIFICATIONS AND NO SPECIFIC UNDER 10-YEAR OLD [sic] VICTIM OFFENDER SPECIFICATIONS. THE INDICTMENT ALSO VIOLATED R.C. §2971.01 AS IT EXISTED DURING THE ALLEGED OFFENSE RANGE."

{¶7} Appellant argues the indictment was defective, and because of the alleged deficiencies, he was denied due process and a fair trial. The record reflects, however, that appellant failed to challenge the sufficiency of this indictment at any time before or during his trial. Where a defendant fails to object to the form of the indictment prior to trial, as required by Crim.R. 12(C), he waives all but plain error. State v. Carnes, Brown App. No. CA2005-01-001, 2006-Ohio-2134, ¶21; State v. Persinger, Morrow App. No. 08-CA-14, 2009-Ohio-5849, ¶21.

{¶8} Crim.R. 52 governs harmless and plain error, stating that "plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Ohio law recognizes that plain error does not exist unless, but for the error, the outcome of the trial would have been different. State v. Cox, Butler App. No. CA2005-12-513, 2006-Ohio-6075, at ¶21, citing State v. Haney, Clermont App. No. CA2005-07-068, 2006-Ohio-3899, ¶50. Further, "notice of plain error is to be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id.

{¶9} For ease of discussion, we will separately address each of appellant's issues regarding the indictment.

"Carbon copy" indictment

{¶10} Appellant first argues the indictment was defective because it contained five carbon copy rape counts and four carbon copy sexual battery counts that alleged sexual abuse upon J.W. during a four-year time period ranging from June 12, 2001June 11, 2005. Appellant asserts the carbon copy counts violated his due process rights, as he was not effectively put on notice of and could not defend against the individual charges against him.

{¶11} In general, an indictment is constitutionally adequate if it (1) "contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend," and (2) "enables him to plea an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States (1974), 418 U.S. 87, 117, 94 S.Ct. 2887. "It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as `those words of themselves fully, directly, and expressly, without uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.'" Id., quoting United States v. Carll (1882), 105 U.S. 611, 612.

{¶12} Appellant relies upon Valentine v. Konteh (C.A.6, 2005), 395 F.3d 626, to support his argument that his constitutional due process rights were violated when he was convicted of five counts of rape and four counts of sexual battery. In Valentine, the defendant was convicted of 20 counts of rape of a child and 20 counts of felonious sexual penetration, and the counts of each crime were identically worded. The appellate court ruled that the identical indictments violated the Constitution because there were no distinctions made at any time before or during trial to differentiate one incident of sexual abuse from another in order to match each charge with a specific incident. The failure to do this violated the ordinary rules of notice, jury unanimity, double jeopardy, and sufficiency of the evidence. The court also noted that the prosecution could cure such identical indictments by delineating the factual bases for each count either before or during the trial, so that the judge, defendant, and jury could distinguish one count from another.

{¶13} In the case at bar, the indictment contained five counts of rape, identically worded to one another, and four counts of sexual battery, also identically worded. Prior to and during trial, however, the state adequately differentiated between the counts of rape and sexual battery that involved J.W. such that appellant's due process rights were not violated.

{¶14} Appellant requested a bill of particulars, which the state filed with the court on March 11, 2009. The bill of particulars contained a detailed basis for each of the counts contained in the indictment. Furthermore, the state provided appellant with discovery containing the taped forensic/medical interview with J.W., wherein she discussed the offenses described in the bill of particulars. Finally, J.W. testified at trial where she clearly described each incident as set forth in the bill of particulars.

{¶15} If, as alleged, the bill of particulars was insufficient to clarify the indictment, appellant could have requested amendment by the state. His failure to do so precludes him from establishing prejudice. State v. Bennett, Brown App. No. CA2004-09-028, 2005-Ohio-5898, ¶34 (reversed on other grounds). Thus, appellant's constitutional right to due process was not violated. See State v. Bell, 176 Ohio App.3d 378, 2008-Ohio-2578, ¶106-111; State v. Rice, Cuyahoga App. No. 82547, 2005-Ohio-3393, ¶24; State v. Kring, Franklin App. No. 07AP-610, 2008-Ohio-3290, ¶52;

Time of the alleged offenses

{¶16} Appellant also argues for the first time on appeal that the indictment was defective because it did not "sufficiently specify the time of the alleged offenses."

{¶17} Specificity as to the time and date of an offense is ordinarily not required in an indictment. State v. Collinsworth, Brown App. No. CA2003-10-012, 2004-Ohio-5902, ¶22, citing State v. Sellards (1985), 17 Ohio St.3d 169, 171. See, also, Tesca v. State (1923), 108 Ohio St. 287 (holding exact date and time are immaterial unless exactness of time is an essential element of offense). An indictment is sufficient if it states that the offense occurred at some time prior to the filing of the indictment. R.C. 2941.03; Sellards at ¶171.

{¶18} In addition, where the crimes alleged in the indictment constitute sexual offenses against children, indictments need not state with specificity the dates of alleged abuse, so long as the state establishes that the offense was committed within the time frame alleged. Persinger at ¶31 (citations omitted). Not only are the specific dates and times not elements of these crimes, but the exact times and dates of the alleged offenses cannot always be determined, as many child victims are unable to remember exact dates over extended periods of time. Id.; Bennett at ¶31.

{¶19} We recognize that an exception to this general rule exists when the failure to allege a specific date results in material detriment to a defendant's ability to fairly defend himself, as would be the case where an accused asserts an alibi. State v. Mundy (1994), 99 Ohio App.3d 275; Bell at ¶96.

{¶20} In the case at bar, however, appellant does not assert an alibi, instead claiming that such abuse never occurred. Because the dates and times are not essential elements of the charging statutes as provided in the indictment, and because the failure to allege specific dates did not prejudice appellant's ability to defend himself,...

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