State v. Wagner, 2004 Ohio 3941 (OH 7/26/2004)
| Decision Date | 26 July 2004 |
| Docket Number | Case No. 03 CA 82. |
| Citation | 2004 Ohio 3941 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Scott Wagner, Defendant-Appellant. |
| Court | Ohio Supreme Court |
Christopher Strefelt, Assistant Prosecutor, 20 South Second Street, Fourth Floor, Newark, Ohio 43055, for Plaintiff-Appellee.
R. William Meeks, David H. Thomas, Lisa M. Tome, 511 South High Street, Columbus, Ohio 43215, for Defendant-Appellant.
JUDGMENT ENTRY
{¶1} Appellant Scott Wagner appeals the decision of the Licking County Court of Common Pleas that found him guilty of twenty-seven counts of rape; thirty-five counts of gross sexual imposition; eight counts of unlawful sexual conduct with a minor; fourteen counts of pandering sexually oriented material involving a minor; three counts of illegal use of a minor in nudity-oriented material or performance; and one count of corruption of a minor. The following facts give rise to this appeal.
{¶2} On September 13, 2002, the Licking County Grand Jury indicted appellant on twenty-four counts of rape, twenty-seven counts of gross sexual imposition, one count of corruption of a minor and five counts of unlawful sexual conduct with a minor. On September 26, 2002, the grand jury indicted appellant on an additional six counts of rape, ten counts of gross sexual imposition and three counts of unlawful sexual conduct with a minor.
{¶3} The state moved to consolidate the two cases for trial. The trial court granted the state's motion on October 23, 2002. Thereafter, on January 31, 2003, the grand jury indicted appellant on four counts of illegal use of a minor in nudity-oriented material or performance and fourteen counts of pandering sexually oriented material involving a minor. The indictment was consolidated with the previous two indictments.
{¶4} All three indictments were the result of sexual offenses appellant committed against eleven boys between June 1, 1996 and August 31, 2002. Prior to the commencement of trial on July 8, 2003, the state moved to dismiss three counts of rape and one count of illegal use of a minor in nudity-oriented material or performance. Following deliberations, the jury convicted appellant of eighty-nine counts.
{¶5} On August 14, 2003, the trial court conducted a classification hearing and classified appellant as a sexual predator. On this same date, the trial court sentenced appellant to an eighty-nine year term of imprisonment.
{¶6} Appellant timely filed a notice of appeal and sets forth the following assignments of error for our consideration:
{¶7} "I. The trial court erred in denying appellant's motion for a continuance based on the unavailability of counsel, thereby depriving appellant of his rights as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and comparable provisions of the Ohio Constitution.
{¶8} "II. The trial court abused its discretion in denying appellant's request for state funds to hire a child psychologist, thereby depriving appellant of due process of law as guaranteed by the fourteenth amendment to the United States Constitution and comparable provisions of the Ohio Constitution.
{¶9} "III. The trial court committed plain error in consolidating all of appellant's separate counts and indictments for trial, thereby depriving him of due process of law as guaranteed by the fourteenth amendment to the United States Constitution and comparable provisions of the Ohio Constitution.
{¶10} "IV. The trial court erroneously admitted evidence of post-traumatic stress disorder in the absence of any expert testimony in violation of the rules of evidence and thus deprived appellant of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and comparable provisions of the Ohio Constitution.
{¶11} "V. The trial court committed plain error in permitting hearsay testimony of interviews conducted of the alleged victims in this case, thereby depriving appellant of his right of confrontation as guaranteed by the Sixth Amendment to the United States Constitution and comparable provisions of the Ohio Constitution.
{¶12} "VI. The trial court committed plain error in admitting irrelevant and inadmissible evidence about pornography and other materials seized from appellant's residence, thereby depriving appellant of his right to a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and comparable provisions of the Ohio Constitution.
{¶13} "VII. The prosecuting attorney's remarks during closing arguments constituted prosecutorial misconduct and plain error which deprived appellant of a fair trial in violation of the Fourteenth Amendment to the United States Constitution and comparable provisions of the Ohio Constitution.
{¶14} "VIII. The failures of appellant's trial counsel constituted ineffective assistance, thereby depriving appellant of his rights as guaranteed by the Sixth Amendment to the United States Constitution and comparable provisions of the Ohio Constitution.
{¶15} "IX. The trial court erred in relying on unreliable testimony in classifying appellant as a sexual predator pursuant to R.C. 2950.09, thereby depriving him of his right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and comparable provisions of the Ohio Constitution.
{¶16}
{¶17} In his First Assignment of Error, appellant maintains the trial court abused its discretion when it denied his request for a continuance. We disagree.
{¶18} On the morning of trial, Attorney Blaise Baker requested a continuance due to his co-counsel, Attorney Todd Drown's illness. Attorney Baker provided the trial court with a letter from Attorney Drown's physician that described Attorney Drown's treatment and prognosis. The letter also indicated Attorney Drown should not work for a period of two to four weeks.
{¶19} The grant or denial of a continuance is a matter entrusted to the broad, sound discretion of the trial court. State v. Unger (1981), 67 Ohio St.2d 65, 67. In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶20} In determining whether a trial court abused its discretion in denying a motion for a continuance, an appellate court should consider the following factors: (1) the length of the delay requested; (2) whether other continuances have been requested and received; (3) the inconveniences to witnesses, opposing counsel and the court; (4) whether there is a legitimate reason for the continuance; (5) whether the defendant contributed to the circumstances giving rise to the need for the continuance; and other relevant factors, depending on the unique facts of each case. Unger at 67-68.
{¶21} Appellant claims the trial court abused its discretion when it denied his request for a continuance for the following reasons. First, appellant did not seek a lengthy delay of the proceedings. Second, appellant had not previously sought an unreasonable number of continuances from the trial court. Third, there is no indication that rescheduling the trial would have presented a substantial inconvenience to the litigants, witnesses or opposing counsel. Fourth, appellant's request for a continuance was for a legitimate reason. Fifth, appellant did not contribute to the circumstances that gave rise to the request for a continuance. Sixth, a continuance was necessary because Attorney Drown prepared the areas of the case involving forensic computer analysis, DNA analysis and defense character witnesses.
{¶22} In denying the motion for a continuance, the trial court noted that it delayed the trial a day in order to accommodate Attorney Drown and had previously granted two continuances, in this matter, at the defense's request. Tr. Vol. I at 33, 35-36. The trial court also noted that the letter from Attorney Drown's physician was not dated. Id. at 36. Further, Attorney Drown's assistant was present, in the courtroom, and would be able to assist Attorney Baker. Id. at 37.
{¶23} On appeal, appellant has not established that that he was prejudiced by Attorney Drown's absence. In fact, Attorney Drown appeared, on the third day of trial, and fully participated in the portions of the case that he prepared. Upon consideration of the factors contained in Unger, we do not find the trial court abused its discretion when it denied appellant's motion. Although Attorney Drown's illness may have been a legitimate reason for a request for a continuance, other factors supported the trial court's decision. First, Attorney Baker did not indicate the length of the delay requested. Second, defense counsel previously requested and received two continuances. Third, and most importantly, due to the number of victims and witnesses involved in this case, continuing and rescheduling this matter for trial would have been inconvenient.
{¶24} Appellant's First Assignment of Error is overruled.
{¶25} Appellant contends, in his Second Assignment of Error, the trial court abused its discretion when it denied his request, for state funds, to hire a child psychologist. We disagree.
{¶26} The trial court denied appellant's request for funds, for a child psychologist, and stated on the record:
{¶27} "The Court would find, based upon the representations of the State, that they're going to call these witnesses to...
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