      [Cite as State v. Hornschemeier, 2012-Ohio-2860.]

                            IN THE COURT OF APPEALS
                     FIRST APPELLATE DISTRICT OF OHIO
                             HAMILTON COUNTY, OHIO



   STATE OF OHIO,                                  :      APPEAL NO. C-110466
                                                          TRIAL NO. B-1002411
            Plaintiff-Appellee,                    :

      vs.                                          :          O P I N I O N.

   MARTHA HORNSCHEMEIER,                           :
            Defendant-Appellant.                   :




Criminal Appeal From: Hamilton County Common Pleas Court

Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: June 27, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,

Michaela M. Stagnaro, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                           OHIO FIRST DISTRICT COURT OF APPEALS




S YLVIA S IEVE H ENDON , Judge.

       {¶1}   Defendant-appellant Martha Hornschemeier was indicted for abduction,

unlawful restraint, and two counts of kidnapping. A jury acquitted her of the kidnapping

offenses, but found her guilty of abduction and unlawful restraint. The trial court sentenced

her to five years of community control for each offense. She now appeals.


                                            Sentencing


       {¶2}   Before we consider Mrs. Hornschemeier’s assignments of error, we address

an issue with respect to her sentence. The record reveals that the trial court stated at Mrs.

Hornshemeier’s sentencing hearing that it was merging the abduction offense with the

unlawful-restraint offense because they were allied offenses of similar import. But in its

sentencing entry, the trial court, nonetheless, imposed sentences of community control for

both offenses. As a result, the trial court committed plain error in separately sentencing her

for the offenses, when it had previously stated that it was merging the unlawful-restraint

offense with the abduction offense. See State v. Warner, 1st Dist. No. C-110198, 2012-Ohio-

716; State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 26 and 31.

       {¶3}   Consequently, we sua sponte vacate the sentence for the unlawful-restraint

offense and remand this case to the trial court to correct the mistake in the judgment entry

by nunc pro tunc entry to reflect what it had actually decided at the sentencing hearing. See

State ex el. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶ 14;

Crim.R. 36. We affirm the trial court’s judgment in all other respects.




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                                       The Background Facts


       {¶4}    This is a difficult case. Mrs. Hornschemeier is the mother of three adult

children. At the time of the trial in this case, her daughters, Christina Seabolt and Jennifer

Hudgens, were 32 and approximately 42 years old, respectively. This case involves Mrs.

Hornschemeier’s multi-handicapped son, John, who was 41 at the time of trial.

       {¶5}    On April 7, 2010, Mrs. Hornschemeier’s dispute with a neighbor resulted in

her arrest. While she was being taken into custody, City of Montgomery Police Officer Dan

Long learned that John, who was unable to care for himself, was inside her house. Officer

Long went through the house’s back door and called for John. He heard noises from inside

the home. He continued to call for John and followed the sounds that John was making.

       {¶6}    Officer Long described the house as being very dark inside, with no

ventilation. He noted that the outside temperature was about 75 degrees, and that the

inside temperature was “quite a bit hotter.”

       {¶7}    Officer Long could hear John upstairs, so he proceeded up the stairs to the

second floor. The stairs led to a hallway that ran the length of the house. The hall was very

dark, there were no windows or ventilation, and the doors to the adjoining rooms were

locked.

       {¶8}    Officer Long could see a male figure on the floor at the end of the hall. As he

got closer, he discovered John sitting on the floor with a chain shackled to his ankle by a

padlock.   The chain led under a padlocked door, where it was attached to an iron,

“immovable bed.” A portable toilet sat in the hall.

       {¶9}    Officer Long did not attempt to pull the shackle off of John’s ankle. The

officer testified that “[i]t was obvious to me at the time that there were not enough extra

links to remove it and also I figured with a padlock on it[, ] that it was on there to stay. * * *

[C]learly there was not enough slack to remove it and I didn’t know if there would be any



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damage to his leg.      So I did not attempt to remove it.”     When members of the fire

department arrived, the shackle was removed with bolt cutters. Officer Long did not notice

any marks on John, but noted that he appeared to be emaciated.

       {¶10} Once John was freed from the chain, he was evaluated by a medical team and

released into his father’s care.

       {¶11} Jenny Flowers of the Hamilton County Developmental Disabilities Services

(“HCDDS”) met John at his father’s home the following day. John allowed Ms. Flowers to

look at his legs and ankles. She testified that she saw a “red and purplish area, ring around

each of his ankles.”

       {¶12} According to Ms. Flowers, the agency had received a complaint in late 2009

from Mrs. Hornschemeier’s daughter, Christina Seabolt. Ms. Flowers had been unable to

reach Mrs. Hornschemeier by telephone, so she had gone to her home. Ms. Flowers had

explained to Mrs. Hornschemeier that they had received a complaint, and that her role was

simply to verify John’s health and safety. Mrs. Hornschemeier had refused to allow Ms.

Flowers to meet John.

       {¶13} On cross-examination, defense counsel asked Ms. Flowers if she was aware

that other allegations had been made to her agency about Mrs. Hornschemeier in the past.

When counsel asked her about a complaint made in 1992, the state objected on the basis

that an allegation made 18 years earlier was not relevant. After the court overruled the

state’s objection, Ms. Flowers testified that “Christy Hornschemeier” (who was 14 years old

at the time and later became known as Christina Seabolt) had made an allegation to police

about her mother.

       {¶14} Defense counsel asked Ms. Flowers who had made allegations against Mrs.

Hornschemeier in 2002 and in 2009, and she responded that it had been Ms. Seabolt.




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Following the 2009 complaint, Ms. Flowers had advised Ms. Seabolt that HCDDS services

were voluntary, so Ms. Flowers could not force her way into her mother’s home.

       {¶15} Christina Seabolt testified that her brother John was nine years older than she

was. She did not recall making a report to HCDDS in 1992. She recalled that she had been

visited by social workers from the time she was nine years old until she was 15 years old.

She testified that on several occasions during that period, her mother had physically

restrained her by her hands, or by both her hands and ankles, for ten to 12 hours at a time.

Ms. Seabolt said that at the time, her mother had bolted her and John in her mother’s room

on a regular basis when she went to work or was gone from the home.

       {¶16} Ms. Seabolt indicated that when she had called HCDDS in 2002, she had

hoped that it would offer services to her mother to help her in her care for John. She

admitted that no action, criminal or otherwise, had been taken against her mother at the

time. Ms. Seabolt had called HCDDS in 2009 after noticing redness and chafing around

John’s wrists. She had been concerned that John was being restrained.

       {¶17} Ms. Seabolt testified that until she was about six years old, her mother would

lock her, her brother, and their older sister, Jennifer, in the basement while their mother

went to work.        The basement had doors that led outside to an enclosed courtyard.

According to Ms. Seabolt, the door was bolted closed, so they would have had to climb over

a wall to get out.

       {¶18} Ms. Seabolt’s older sister, Jennifer Hudgens, testified that she is 11 months

older than John. According to Ms. Hudgens, when she was about ten years old and her

sister Christina was about six months old, her mother had worked long hours to support the

family. While her mother was at work from early morning until evening, she would lock

Jennifer and her siblings in the basement. The children were not allowed to leave the

basement or to leave the house. Their mother provided food for them to eat during the day.




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                             OHIO FIRST DISTRICT COURT OF APPEALS



According to Ms. Hudgens, their mother would not allow the children to have their shoes in

the basement because she did not want them to leave.


                                             The Defense


          {¶19} During her trial testimony, Mrs. Hornschemeier described John as being

multi-handicapped with special needs.        John has slow gross motor functions, severe

communication delays, and borderline autism. Mrs. Hornschemeier said that he has been

brain damaged since birth.

          {¶20} Until her arrest in April 2010, John had lived with his mother. She and his

father had divorced in 1982.       According to Mrs. Hornschemeier, she was John’s “sole

consistent caregiver.”

          {¶21} She testified that one day, she had asked John to sit and watch a television

show until she returned in about 15 minutes. She had begun to clean the gutters on the

house. When she went back into the house, John was not there. She frantically searched

and found John about four blocks away from the house, standing in the middle of the street.

          {¶22} After that incident, Mrs. Hornschemeier testified, “I started using the loop.”

She said that she had constructed the “loop” herself. She had wrapped plastic grocery bags

around a chain for cushioning. She would fit the chain around John’s ankle, and would then

place a padlock on it. Whenever she padlocked the chain on John’s ankle, he wore a sock

under the chain.

          {¶23} Mrs. Hornschemeier described the “loop” as “a communication device, and a

teaching device, to help John to monitor his own behavior and to think first before he

acted.”




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                           OHIO FIRST DISTRICT COURT OF APPEALS



       {¶24} According to Mrs. Hornschemeier, John either waited for her to take the

padlock off or he would slip the loop off of his foot. She said that “John was able to contort

his feet. He’s double jointed.”

       {¶25} Mrs. Hornschemeier denied that she had ever restrained her daughter

Christina or John. She denied that she had ever put them in a room and bolted the door.

She said that she had locked her children in the basement because her ex-husband had

“tried to rape [her] in the kitchen while he was choking [her] to death.”

       {¶26} According to Mrs. Hornschemeier:

       If the – my children were in the kitchen, and my ex-husband also would

       threaten the children, I – whether they had shoes on or not, I would quickly

       tell them to go in the basement, and I would lock the door for their protection,

       and I didn’t want them to see me being raped. And I did not – if he did kill

       me, I did not want them to be witnesses, because it might help him spare

       them later.

       {¶27} She denied that her children had been in the basement for long hours while

she was at work.


                                       Other Acts Evidence


       {¶28} In her first assignment of error, Mrs. Hornschemeier argues that the trial

court erred by permitting testimony regarding other acts into evidence. Specifically, she

challenges the court’s admission of testimony by her daughters that she had locked them up

and had restrained them during their childhood.

       {¶29} Mrs. Hornschemeier did not object to this testimony, thereby waiving all but

plain error. Crim.R. 52(B); State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

“Plain errors or defects affecting substantial rights may be noticed although they were not




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                           OHIO FIRST DISTRICT COURT OF APPEALS



brought to the attention of the court.” Crim.R. 52(B). To notice plain error, we must first

find that an error occurred, that the error was an obvious defect in the trial proceedings, and

that the error affected the outcome of the trial. State v. Payne, 114 Ohio St.3d 502, 2007-

Ohio-4642, 873 N.E.2d 306, ¶ 16; State v. Eafford, ___ Ohio St.3d ___, 2012-Ohio-2224,

___ N.E.2d ___, ¶ 11.

       {¶30} Generally, in a criminal prosecution, the state is not permitted to present

evidence of other crimes or acts to prove that the defendant acted in conformity with her

bad character. But Evid.R. 404(B) and R.C. 2945.59 allow evidence of other bad acts as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake.

       {¶31} In this case, the daughters’ testimony, while inadmissible to show their

mother’s propensity to restrain her children, was nonetheless admissible for another

purpose.   To prove the kidnapping charge for which she was acquitted, the state was

required to prove that Mrs. Hornschemeier had purposely, by any means, restrained John of

his liberty. The testimony by her daughters was permissible as proof of her intent to

restrain John, and to rebut the defense claim that her intent had not been to restrain him,

but to simply communicate with him. Moreover, in opening statement, defense counsel had

opened the door to the testimony when he referred to complaints made to HCDDS from

1992 to 2009 by Mrs. Hornschemeier’s youngest daughter about her mother’s abusive

treatment of John. Consequently, the trial court did not commit plain error in admitting the

testimony. And in any event, the evidence of restraint in this case was overwhelming, thus

rendering any error harmless. We overrule the first assignment of error.




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                          OHIO FIRST DISTRICT COURT OF APPEALS



                               Exclusion of Voluminous Records


       {¶32} In her second assignment of error, Mrs. Hornschemeier argues that the trial

court erred by not admitting into evidence records from HCDDS that pertained to John. At

trial, the state argued that the records should not be admitted because, of the hundreds of

pages in the HCDDS records spanning nearly 20 years, only about six pages were relevant to

the trial issues. The state maintained that the jury would be confused by the evidence.

       {¶33} “ ‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” Evid.R. 401. However, Evid.R.

403(A) states, “Although relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury.”

       {¶34} “[T]he admission of evidence lies within the broad discretion of the trial

court, and a reviewing court should not disturb evidentiary decisions in the absence of an

abuse of discretion that has created material prejudice. Thus, our inquiry is confined to

determining whether the trial court acted unreasonably, arbitrarily, or unconscionably in

deciding the evidentiary issues about which [the appellant] complains.” (Citations omitted.)

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62.

       {¶35} In this case, the trial court noted its concern that the jury would have felt

compelled to review the entire HCDDS record, even though much of the record was

irrelevant and would confuse the issues before the jury. We cannot say that the trial court

abused its discretion in refusing to admit the voluminous HCDDS records. Consequently,

we overrule the second assignment of error.




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                           OHIO FIRST DISTRICT COURT OF APPEALS



                                      Assistance of Counsel


       {¶36} In her third assignment of error, Mrs. Hornschemeier argues that she was

denied the effective assistance of trial counsel. Specifically, she contends that she was

prejudiced by counsel’s failure to object to the other-acts testimony.

       {¶37} The failure to make objections is not, by itself, enough to sustain a claim of

ineffective assistance of counsel. State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842

N.E.2d 996, ¶ 168; State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988).

Reversal of a conviction for ineffective assistance requires that the defendant show that

counsel’s performance was deficient and that the deficient performance prejudiced the

defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the

syllabus. To show that a defendant has been prejudiced by counsel’s deficient performance,

the defendant must prove that there exists a reasonable probability that, were it not for

counsel’s errors, the result of the proceeding would have been different. Strickland at 694;

Bradley at paragraph three of the syllabus.

       {¶38} Trial counsel’s representation is presumed effective, Strickland at 690, and

this presumption is not overcome here. Because the other-acts testimony was properly

admitted, there was no basis for counsel to object. Consequently, Mrs. Hornschemeier

cannot demonstrate that counsel was deficient for failing to object to the other-acts

testimony. Accordingly, we overrule the third assignment of error.


                             Weight and Sufficiency of the Evidence


       {¶39} In her fourth assignment of error, Mrs. Hornschemeier challenges the weight

and sufficiency of the evidence upon which her conviction was based. In a challenge to the

sufficiency of the evidence, the question is whether after viewing the evidence in the light



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                           OHIO FIRST DISTRICT COURT OF APPEALS



most favorable to the prosecution, any rational trier of fact could have found all the essential

elements of the crime beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus. In reviewing a challenge to the weight of

the evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997). We must review the entire record, weigh the evidence, consider the

credibility of the witnesses, and determine whether the trier of fact clearly lost its way and

created a manifest miscarriage of justice. Id.

       {¶40} To find Mrs. Hornschemeier guilty of abduction, in violation of R.C.

2905.02(A)(2), the jury had to find that, without privilege to do so, she knowingly, by force

or threat of force, restrained John’s liberty under circumstances which created a risk of

physical harm to him.

       {¶41} “ ‘Privilege’ means an immunity, license, or right conferred by law, bestowed

by express or implied grant, arising out of status, position, office, or relationship, or growing

out of necessity. R.C. 2901.01(A)(12). Force is defined as “any violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing.”              R.C.

2901.01(A)(1). Physical harm includes any injury, “regardless of its gravity or duration.”

R.C. 2901.01(A)(3).

       {¶42} In this case, the jury considered evidence that Mrs. Hornschemeier had

shackled her adult son by the ankle in a second-floor hallway while she was outside of the

home, causing redness around his ankle.          The jury’s apparent determination that the

restraint in this case exceeded any privilege that Mrs. Hornschemeier may have had by

virtue of being John’s mother was supported by the evidence. We hold that a rational juror,

viewing the evidence in a light most favorable to the state, could have found that the state

had proved beyond a reasonable doubt that Mrs. Hornschemeier had committed the offense




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                            OHIO FIRST DISTRICT COURT OF APPEALS



of abduction.    Therefore, the evidence presented was legally sufficient to sustain her

conviction.

       {¶43} Although Mrs. Hornschemeier explained that the shackle was simply a

communication loop that her son could easily escape, the weight to be given the evidence

and the credibility of the witnesses were primarily for the jury to determine. State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Moreover, our review of the record does

not persuade us that the jury clearly lost its way and created a manifest miscarriage of

justice in finding Mrs. Hornschemeier guilty of the offense. Accordingly, we overrule the

fourth assignment of error.


                                              Conclusion

       {¶44} Consequently, we sua sponte vacate the sentence for the unlawful-restraint

offense and remand this case to the trial court to correct the mistake in the judgment entry

by nunc pro tunc entry to reflect what it had actually decided at the sentencing hearing. We

affirm the trial court’s judgment in all other respects.

                                                                          Judgment accordingly.

SUNDERMANN, P.J., and FISCHER, J., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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