The State Of Ohio v. Kaufman, 08 MA 57.
| Decision Date | 31 March 2010 |
| Docket Number | No. 08 MA 57.,08 MA 57. |
| Parties | The STATE of Ohio, Appellee, v. KAUFMAN, Appellant. |
| Court | Ohio Court of Appeals |
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Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M. Rivera, Assistant Prosecuting Attorney, for appellee.
Lynn Maro, Boardman, OH, for appellant.
{¶ 1} This timely appeal comes for consideration upon the record in the trial court, the parties' briefs, and their oral arguments before this court. Appellant, Michael Kaufman, appeals the March 25, 2008 decision of the Mahoning County Court of Common Pleas that sentenced him to five consecutive life sentences and four consecutive five-year sentences, subsequent to a jury finding him guilty of four counts of rape, four counts of gross sexual imposition, and one count of felonious sexual penetration.
{¶ 2} Kaufman argues on appeal that his convictions were against the manifest weight of the evidence and that the force specifications for his rape convictions were based on insufficient evidence. Kaufman also contends that the trial court provided improper jury instructions, erroneously allowed irrelevant expert testimony, improperly provided assistance to the state, and limited Kaufman's right to cross-examine a witness. Kaufman further contends that the trial court abused its discretion by denying his motion to continue, that he received ineffective assistance of counsel at trial, and that the state committed prosecutorial misconduct. Finally, Kaufman argues that the trial court erroneously allowed the improper joinder of victims and offenses.
{¶ 3} The force specifications for Kaufman's rape convictions were based on sufficient evidence under State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304. Although the evidence supporting Kaufman's convictions was not terribly strong given the weakened credibility of one of the victims, his convictions were not against the manifest weight of the evidence. The trial court's decisions
regarding jury instructions, admission of expert testimony, and limitation of cross-examination were proper. Kaufman did not demonstrate that the state's objectionable statements deprived him of his right to a fair trial. Finally, the trial court's decision not to sever the charges against Kaufman for the two separate victims was an abuse of discretion, where the testimony of each victim would not have been admissible in separate trials under Evid.R. 404(B), and the offenses committed against each victim were too similar and inflammatory to realistically avoid fostering the erroneous belief that the distinct offenses corroborated one another. Kaufman's remaining assignments of error regarding assistance to the state, denial of motions to continue, and ineffective assistance of counsel are moot.
{¶ 4} Accordingly, the trial court's decision will be reversed and remanded for new trials.
{¶ 5} On November 1, 2007, a grand jury indicted Kaufman on eight counts of rape, in violation of R.C. 2907.02(A)(1)(b); five counts of gross sexual imposition, in violation of R.C. 2907.05(A)(4); and one count of felonious sexual penetration, in violation of R.C. 2907.12(A)(1)(b). The counts encompassed offenses against three different victims, JB, DC, and KC. JB was born on October 4, 1987, DC was born on April 22, 1991, and KC was born on December 21, 1992, and all victims were minors under the age of 13 at the time of the indicted offenses.
{¶ 6} Kaufman was charged with committing offenses against the three victims as follows: For offenses against victim JB between October 4, 1995, and October 3, 1998, Kaufman was charged with three of the counts of rape, three counts of gross sexual imposition, and one count of felonious sexual penetration. For offenses against victim DC between January 1, 2002, and September 7, 2002, Kaufman was charged with one count of rape and one count of gross sexual imposition. For offenses against victim KC between January 1, 2001, and August 31, 2003, Kaufman was charged with the remaining four counts of rape and one count of gross sexual imposition.
{¶ 7} On November 7, 2007, Kaufman entered a plea of not guilty, and the trial court appointed John B. Juhasz as counsel after finding Kaufman to be indigent. The trial court scheduled the trial for December 17, 2007. On December 6, 2007, Kaufman filed a motion to continue, noting that counsel had sustained a back injury on November 13, 2007, and that counsel for the state had failed to complete its responses to discovery requests. The trial court granted Kaufman's motion and the trial was rescheduled to take place on January 7, 2008. On December 20, 2007, Kaufman filed another motion to continue due to a conflict with another trial. The trial court rescheduled the trial to January 22, 2008. On
January 9, 2008, the parties filed a joint motion for continuance due to scheduling conflicts, which the trial court overruled. On January 16, 2008, Kaufman filed another motion to continue, stating that counsel's back injury, untimely discovery responses from the state, and investigation difficulties rendered counsel unable to provide effective assistance of counsel at such a close trial date. During a January 18, 2008 hearing on Kaufman's motion, the trial court asked defense counsel to pick a continuance date well in the future in order to ensure that such time constraints would not cause any further problems with this trial. The trial court granted Kaufman's motion and continued the trial to March 17, 2008.
{¶ 8} On February 19, 2008, the state filed a supplemental disclosure of evidence regarding a fourth victim, RT, not included in the indictment. On March 3, 2008, Kaufman filed a motion for relief from prejudicial joinder, asking for three separate trials for the three separate victims. Kaufman also filed another motion to continue the trial. The trial court overruled the motion to continue and set a hearing for the motion for relief from prejudicial joinder. Additionally, Kaufman filed a motion to dismiss charges 7, 8, and 11 for lack of jurisdiction, because the offenses were alleged to have occurred outside of Mahoning County. The state filed a motion to introduce evidence of other acts, requesting that the trial court allow testimony from RT, the victim not included in the indictment.
{¶ 9} Subsequent to a hearing on March 11, 2008, the trial court denied Kaufman's request to sever trials and denied the state's motion to admit other acts evidence regarding the fourth victim. The trial court sustained Kaufman's motion to dismiss three of the charges, which left 11 charges against two victims remaining on the indictment. Kaufman repeated his request for severance throughout his trial, but each request was overruled.
{¶ 10} On March 12, 2008, the state filed a motion in limine, asking the trial court to allow KC to testify about acts that had occurred outside the trial court's jurisdiction. On March 13, 2008, Kaufman filed a supplemental motion to continue, repeating his request for an enlarged amount of time to prepare. The trial court overruled both motions.
{¶ 11} On March 17, 2008, the state filed a second motion in limine, asking the trial court to disallow any reference to a 1993 report by JB's mother of suspected sexual abuse of JB by an unspecified person and a 2000 report that JB had molested his little brother, RT, which the trial court sustained. The state filed a third motion in limine, asking to admit the testimony of DC (the third victim in the dismissed counts) as other-acts evidence and asking that KC be permitted to testify about acts not included in the indictment for the purpose of explaining the background behind the offenses actually charged. The trial court disallowed the other-acts evidence of DC, but sustained the state's motion regarding KC.
{¶ 12} During the course of the proceedings, the trial court dismissed Counts 1 and 13, due to errors in the indictment. Pursuant to Kaufman's motion, the indictment was amended to renumber the remaining nine counts. The counts remaining were as follows: For offenses against victim JB between October 4, 1995, and October 3, 1998, Kaufman was charged with two of the counts of rape, three counts of gross sexual imposition, and one count of felonious sexual penetration (Counts 1 through 5 and 9); and for offenses against victim KC between January 1, 2002, and August 31, 2003, Kaufman was charged with two counts of rape and one count of gross sexual imposition (Counts 6 through 8). During proceedings, the state successfully moved the trial court to provide an Eskridge definition of force in the jury instructions and to include the additional finding of force or threat of force for each of the rape and felonious-sexual-penetration charges. See Eskridge, 38 Ohio St.3d at 58, 526 N.E.2d 304.
{¶ 13} At trial, the state presented the testimony of KC, Karen, JB, Officer Suzanne Doni-Ellis, and Dr. Paul McPherson. Kaufman presented his own testimony and the testimony of Officer Doug Flara, Donna, and Tracey. An initial explanation of the parties' relationships with each other will clarify the parties' testimony.
{¶ 14} Tracey was married to Frederick from approximately 1987 to 1991. The couple had a son, JB, on October 4, 1987. Tracey was married to Reginald from approximately 1995 to 1999, though they gave birth to a son, RT, in 1994. Reginald worked at Long Bar Trucking (“LBT”). Kaufman also worked at LBT, starting in 1991. Tracey and Kaufman were married in 2001 and had a son in 2005. Kaufman's mother, Donna, lives in Boardman. Donna's sister, Karen, lives in Wisconsin, but visited Donna in Boardman during most summers. On...
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