[Cite as State v. Patterson, 2017-Ohio-1444.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104266




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                      VAN PATTERSON
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-595183-A

        BEFORE: Laster Mays, J., Boyle, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: April 20, 2017
                               -i-
ATTORNEY FOR APPELLANT

Erin R. Flanagan
75 Public Square, Suite 1325
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Mary Weston
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant, Van Patterson (“Patterson”), appeals his convictions

and sentence, and asks this court to sustain the assignments of error and remand this case

for further proceedings.    We affirm.

       {¶2} Patterson was found guilty on four counts of a 13-count indictment. Those

four counts include Count 1, rape, first-degree felony, in violation of R.C. 2907.02(A)(2);

Count 3, kidnapping, first-degree felony, in violation of R.C. 2905.01(A)(4); and Counts

9 and 11, rape, first-degree felonies, in violation of R.C. 2907.02(A)(1)(c).   The sexual

motivation and sexually violent predator specifications, attached to Counts 9 and 11, were

tried to the bench.   Patterson was found to be a Tier III sex offender and sexual predator.

 Patterson was sentenced to consecutive 10-year prison sentences each on Counts 1 and

3, and concurrent 10 years to life sentences on Counts 9 and 11 to be served

consecutively. Patterson was sentenced to a term of 35 years to life imprisonment with

parole eligibility after serving 35 years.

I.     Facts

       {¶3} On December 28, 1995, a 16-year-old girl named T.T. was selling roses and

CDs at the M & M Lounge in Cleveland. As T.T. was leaving work, a man that she

recognized from the lounge offered her a ride.      She only knew him by his nickname,

“Apples.”    Apples drove T.T. to her friend’s house, and T.T. stated that when they

arrived in the driveway, Apples raped her by force.    After the attack, T.T. ran inside the
house and told her friend, L.H., what happened. T.T. also told her mother, who took

T.T. to the hospital, where a rape kit was collected.    In court, T.T. identified Patterson as

Apples.

       {¶4} L.H. testified that when T.T. arrived at her home on that day, L.H. saw T.T.

in a vehicle with a man who introduced himself as Apples. After the introduction, L.H.

went back into her home.    A short time later, T.T. came into the house and told L.H. that

Apples raped her. In court, L.H. identified Patterson as Apples.

       {¶5} Once T.T. was taken to the hospital, the staff performed a rape kit and

examination.   T.T. told the hospital staff that she had been raped by a man she did not

know, other than his nickname.        Detective Laura Parker (“Detective Parker”) was

assigned to T.T.’s case.    Detective Parker testified that she could not locate Apples

because T.T. did not know his real name.       Detective Parker also testified that she was

not aware there was a rape kit because it had not been collected from the hospital.         So

Detective Parker closed the case.     Once the rape kit was discovered in 2013, DNA

testing was conducted and the DNA matched the DNA of Patterson.

       {¶6} On the evening of February 7, 2009, M.J. testified that she and three other

people were at M.J.’s aunt’s home, where they consumed a large amount of alcohol, after

which the group went to Whitmore’s bar and consumed more alcoholic drinks. M.J.

estimated that she had two or three drinks at the bar.       She testified that she was very

intoxicated when she decided to walk back to her aunt’s home alone.          She remembered

getting into a car with a man she did not know.         The next thing she remembered was
waking up in an abandoned home. M.J. walked home and testified that she felt different

in her vaginal area so she decided to go to the hospital where she consented to a sexual

assault examination.

       {¶7} At the hospital, M.J. told the emergency room nurse that she had been

sexually assaulted.    The nurse testified that she performed a sexual assault examination

and collected samples from M.J. and personally sealed the rape kit. M.J.’s rape kit was

tested by a forensic scientist in 2014. The DNA from the rape kit matched Patterson’s

DNA.

       {¶8} On April 22, 2015, Patterson was indicted on 13 counts for raping and

kidnapping three women, T.T. (1995), M.J. (2009), and A.G. (1997), for which he was

found not guilty. Patterson was found guilty of the rape and kidnapping of T.T. and the

rape based on “substantial impairment” of M.J.

       {¶9} However, before Patterson’s trial commenced, he filed two pretrial motions.

He filed a motion to sever the 1995 and 1997 counts from the 2009 counts relating to M.J.

  He argued that joinder of those counts were prejudicial and would deny him his due

process right to a fair trial. He also filed a motion to dismiss for preindictment delay

regarding the rape of T.T. in 1995.         He argued that he was prejudiced by the

unavailability of T.T.’s mother, who died before trial.      Patterson argued that T.T.’s

mother could have provided exculpatory testimony had the state brought charges against

him in a timely manner.     T.T.’s mother called the police after her daughter was attacked

and told the police that she believed T.T. was lying about not knowing Patterson and
lying about the attack itself. The trial court denied both motions. Patterson filed this

timely appeal and assigns four errors for our review:

       I.     The trial court erred when it denied Patterson’s pretrial motion to
              dismiss Counts 1, 2, and 3 for reasons of preindictment delay;

       II.    The trial court erred when it denied Patterson’s pretrial motion to
              sever the 1995 and 1997 allegations from those arising in 2009;

       III.   The evidence is insufficient to support convictions of rape in Counts
              9 and 11; and

       IV.    The trial court erred when it failed to merge Patterson’s rape and
              kidnapping convictions in Counts 1 and 3.

II.    Preindictment Delay

       A.     Standard of Review

       {¶10} “A trial court’s decision on a motion to dismiss for preindictment delay is

reviewed de novo as to the legal issues, but the court’s findings of fact are afforded great

deference.” State v. Richardson, 8th Dist. Cuyahoga No. 103925, 2016-Ohio-5843, ¶ 7,

citing State v. Dixon, 2015-Ohio-3144, 40 N.E.3d 601, ¶ 24 (8th Dist.).
        B.     Law and Analysis

        {¶11} In Patterson’s first assignment of error, he argues that the trial court erred

when it denied his pretrial motion to dismiss Counts 1, 2, and 3 for reasons of

preindictment delay.

        The statute of limitations for a criminal offense is a defendant’s primary
        protection against overly stale criminal charges. United States v. Marion,
        404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). However, both the
        Due Process Clause of the Fifth Amendment to the U.S. Constitution and
        Ohio Constitution Article I, Section 16, afford limited protection against
        preindictment delay. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954,
        45 N.E.3d 127, ¶ 97. “Preindictment delay violates due process only when it
        is unjustifiable and causes actual prejudice.” State v. Jones, 148 Ohio
        St.3d 167, 2016-Ohio-5105, ¶ 12.

Richardson at ¶ 8.

        {¶12} However,

        [T]he Ohio Supreme Court has “firmly established a burden-shifting
        framework for analyzing a due-process claim based on preindictment delay.
         Once a defendant presents evidence of actual prejudice, the burden shifts
        to the state to produce evidence of a justifiable reason for the delay.” State
        v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 13. A
        court must determine whether the defendant has established actual prejudice
        to his ability to defend himself before independently determining whether
        the state met its burden of establishing a justifiable reason for the delay in
        bringing charges. See Id. at ¶ 16-18, 29. When a defendant fails to
        establish prejudice, it is unnecessary to consider the reasons for the delay.
        See Adams at ¶ 107.

Id. at ¶ 9.

        {¶13} Patterson has failed to establish that he was prejudiced by the delay. “In

determining actual prejudice, ‘[a] court must consider the evidence as it exists when the

indictment is filed and the prejudice the defendant will suffer at trial due to the delay.’”
Id. at ¶ 10, quoting Jones at ¶ 20, quoting State v. Walls, 96 Ohio St.3d 437,

2002-Ohio-5059, 775 N.E.2d 829, ¶ 52. Patterson reasons that because the state delayed

in bringing charges against him, a crucial witness to his case died.   He claims that T.T.’s

mother’s testimony could have helped to show that he did not rape T.T. However, he

cannot speculate about the extent and effect of her testimony.          There is no way of

knowing what information would come from T.T.’s mother’s testimony or even that it

would be exculpatory. T.T.’s mom told the detective that her daughter knew Patterson.

T.T. never said that she did not know Patterson; she stated that she was familiar with her

rapist as Apples. T.T. did not know the true identity of Patterson, and DNA analysis

was not done because the detective was not aware that a rape kit was completed.

Therefore, the state was unable to charge Patterson with the rape of T.T. until the DNA

from T.T.’s rape kit was located and tested.       “A claim of actual prejudice should be

scrutinized ‘vis-à-vis the particular evidence that was lost or unavailable as a result of the

delay’ and ‘the relevance of the lost evidence and its purported effect on the defense.’”

Id., quoting Jones at ¶ 23.

       {¶14} Patterson’s argument that T.T.’s mother could have testified on his behalf is

speculative and does not show actual prejudice.      “Actual prejudice is not demonstrated

by the ‘possibility’ of faded memories, inaccessible witnesses, and lost evidence, which

are inherent in any extended delay and are sufficiently protected against by the statute of

limitations.” Id. at ¶ 11, citing Jones at ¶ 21.    “[A] defendant cannot rely upon broad

assertions of missing evidence or an unavailable witness to establish prejudice. A
defendant must demonstrate a viable, tangible connection between the missing evidence

or the unavailable witness to the defense of the case.” Id. at ¶ 13. Patterson does not

demonstrate a viable, tangible connection between what T.T.’s mother could testify to and

his defense. We find that the trial court did not err in denying Patterson’s motion to

dismiss for preindictment delay. Patterson’s first assignment of error is overruled.

III.   Motion to Sever

       A.     Standard of Review

       {¶15} We review the trial court’s denial of a motion to sever for abuse of

discretion.

       To prevail on a claim that the trial court erred in denying a motion to sever,
       the defendant must affirmatively demonstrate (1) that his or her rights were
       prejudiced; (2) that at the time of the motion to sever, the defendant
       provided the trial court with sufficient information so that it could weigh
       the considerations favoring joinder against the defendant’s right to a fair
       trial; and (3) that given the information provided to the court, it abused its
       discretion in refusing to separate the charges for trial. State v. Johnson,
       Cuyahoga App. No. 88372, 2007-Ohio-2501, ¶ 38. To constitute an abuse
       of discretion, the ruling must be unreasonable, arbitrary, or unconscionable.
       Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

State v. Huber, 8th Dist. Cuyahoga No. 94382, 2010-Ohio-5598, ¶ 11.

       B.     Law and Analysis

       {¶16} In Patterson’s second assignment of error, he argues that the trial court erred

when it denied Patterson’s pretrial motion to sever the 1995 and 1997 allegations from

those arising in 2009. Crim.R. 8(A) provides that,

       [T]wo or more offenses may be charged in the same indictment if they are
       of the same or similar character, or are based on the same act or transaction,
       or are based on two or more acts or transactions connected together or
       constituting parts of a common scheme or plan, or are part of a course of
       criminal conduct.

Id. at ¶ 10.

       {¶17} Patterson claims that the state’s decision to conduct one trial with all three

sexual assault allegations prejudiced him.

       If a defendant makes a case for prejudicial joinder, [t]he state may rebut a
       defendant’s claim * * * in two ways. (Citation omitted.) First, if in
       separate trials the state could introduce evidence of the joined offenses as
       other acts under Evid.R. 404(B), a defendant cannot claim prejudice from
       the joinder — the other acts test. (Citation omitted.) Evid.R. 404(B)
       recognizes that evidence of other crimes may be admissible for purposes
       such as proof of motive, opportunity, intent, preparation, plan, knowledge,
       identity, or absence of mistake or accident. If one offense could be
       introduced under Evid.R. 404(B) at the trial of the other offense, had the
       offenses been tried separately, any prejudice that might result from the
       jury’s hearing the evidence of the other crime in a joint trial would be no
       different from that possible in separate trials, and a court need not inquire
       further. (Citation omitted.) Second, the state can refute prejudice by
       showing that evidence of each crime joined at trial is simple and direct —
       the joinder test.      (Citation omitted.) Where evidence of the joined
       offenses is uncomplicated, such that the jury is capable of segregating the
       proof required to prove each offense, a defendant is not prejudiced by
       joinder.     (Citation omitted.) A trier of fact is believed capable of
       segregating the proof on multiple charges when the evidence as to each of
       the charges is uncomplicated.); State v. Ferren, 8th Dist. Cuyahoga No.
       95094, 2011-Ohio-3382, ¶ 40 ( A trial court does not abuse its discretion in
       denying a motion for severance of trials when the state presents evidence
       that is direct, uncomplicated, and the jury demonstrates its ability to
       segregate the proof on each charge.) The object of the simple and distinct
       test is to prevent the jury from improperly considering evidence of various
       crimes as corroborative of each other. The very essence of the rule is that
       the evidence be such that the jury is unlikely to be confused by it or misuse
       it. Echols, [2015-Ohio-5138, at ¶ 16], quoting State v. Echols, 128 Ohio
       App.3d 677, 694, 716 N.E.2d 728 (1st Dist. 1998).

State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 87 (8th Dist.).

       {¶18} Patterson argues that he was prejudiced by the state trying all three cases
together.   However, he does not demonstrate in what way he was prejudiced.

Patterson’s argument is without merit because the jury found him not guilty of the alleged

offense that took place in 1997.    This demonstrates that the evidence presented to the

jury was simple and direct.      Additionally, the evidence of the joined offenses were

uncomplicated, such that the jury was able to segregate the proof required to prove each

offense resulting in the defendant not being prejudiced by the joinder.         Patterson’s

second assignment of error is overruled.

IV.    Sufficiency of Evidence

       A.     Standard of Review

       {¶19} Claiming insufficient evidence,

       [R]aises the question whether the evidence is legally sufficient to support
       the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386,
       1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge, “[t]he
       relevant inquiry is whether, after viewing the evidence in a light most
       favorable to the prosecution, any rational trier of fact could have found the
       essential elements of the crime proven beyond a reasonable doubt.” State
       v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
       syllabus.

State v. Herring, 8th Dist. Cuyahoga No. 104441, 2017-Ohio-743, ¶ 16.

       B.     Law and Analysis

       {¶20} In Patterson’s third assignment of error, he argues that there was insufficient

evidence to support the rape convictions in Counts 9 and 11.

       The test for sufficiency requires a determination of whether the prosecution
       met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga
       No. 92266, 2009-Ohio-3598, ¶ 13. An appellate court’s function when
       reviewing the sufficiency of the evidence to support a criminal conviction is
       to examine the evidence admitted at trial to determine whether such
        evidence, if believed, would convince the average mind of the defendant’s
        guilt beyond a reasonable doubt. Id. at ¶ 12. State v. Jenks, 61 Ohio
        St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus (1991).

State v. Pridgett, 8th Dist. Cuyahoga No. 101823, 2016-Ohio-687, ¶ 15.

        {¶21} Patterson was convicted of two counts of rape in violation of

R.C. 2907.02(A)(1)(c).     Count 9 was for the vaginal rape of M.J. while she was

substantially impaired by alcohol. Count 11 was for the anal rape of M.J. while she was

substantially impaired by alcohol. The statute reads as follows:

        (1) No person shall engage in sexual conduct with another who is not the
        spouse of the offender or who is the spouse of the offender but is living
        separate and apart from the offender, when any of the following applies:

        (c) The other person’s ability to resist or consent is substantially impaired
        because of a mental or physical condition or because of advanced age, and
        the offender knows or has reasonable cause to believe that the other
        person’s ability to resist or consent is substantially impaired because of a
        mental or physical condition or because of advanced age.

R.C. 2907.02(A)(1)(c).

        {¶22} M.J. testified that she consumed a large amount of alcohol and described

herself as very intoxicated.   “The consumption of a large amount of alcohol over the

course of just a few hours is sufficient evidence to find that the victim was substantially

impaired.” State v. Kuck, 2d Dist. Darke No. 2015-CA-13, 2016-Ohio-8512, ¶ 95. She

remembered getting into the car with a male stranger and waking up in an abandoned

home.     She testified that she felt as if she had sexual intercourse, but had no memory of

the interaction.   “Evidence of substantial impairment can also come from a victim’s

inability to remember the events of the incident due to alcohol consumption.” Id. at ¶
45.   She decided to go to the hospital where she consented to a collection of a sexual

assault kit.   The nurse collected samples from M.J.’s vagina and her rectum.          The

semen collected from M.J.’s body was matched to the DNA of Patterson. M.J. testified

that she did not consent to having sexual intercourse with Patterson.

       {¶23} Given M.J.’s testimony and the physical evidence linked to Patterson, there

was sufficient evidence to support his rape convictions. “Ohio courts have consistently

held that a victim’s testimony, if believed, is sufficient

to support a rape conviction.    ‘There is no requirement that a rape victim’s testimony be

corroborated as a condition precedent to conviction.’”       State v. Williams, 8th Dist.

Cuyahoga No. 92714, 2010-Ohio-70, ¶ 32. Therefore, Patterson’s third assignment of

error is overruled.

V.     Merger and Allied Offenses

       A.      Standard of Review

       {¶24} “An appellate court applies a de novo standard of review when reviewing

whether two offenses are allied offenses of similar import.” State v. Boczek, 8th Dist.

Cuyahoga No. 103811, 2016-Ohio-5708, ¶ 4.

       B.      Law and Analysis

       {¶25}    In Patterson’s fourth assignment of error, he contends that the trial court

erred when it failed to merge his rape and kidnapping convictions in Counts 1 and 3.

R.C. 2941.25 provides:

       (A) Where the same conduct by defendant can be construed to constitute
       two or more allied offenses of similar import, the indictment or information
        may contain counts for all such offenses, but the defendant may be
        convicted of only one.

        (B) Where the defendant’s conduct constitutes two or more offenses of
        dissimilar import, or where his conduct results in two or more offenses of
        the same or similar kind committed separately or with a separate animus as
        to each, the indictment or information may contain counts for all such
        offenses, and the defendant may be convicted of all of them.

        {¶26} When determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25,

        [C]ourts must ask three questions when defendant’s conduct supports
        multiple offenses: (1) Were the offenses dissimilar in import or significance
        — in other words, did each offense cause separate, identifiable harm? (2)
        Were they committed separately? and (3) Were they committed with
        separate animus or motivation? “An affirmative answer to any of the above
        will permit separate convictions. The conduct, the animus, and the import
        must all be considered.”         State v. Ruff, 143 Ohio St.3d 114,
        2015-Ohio-995, 34 N.E.3d 892, ¶ 31.

Boczek at ¶ 6.

        {¶27} First, we must determine that each offense of rape and kidnapping caused a

separate, identifiable harm.    Patterson committed rape against T.T. when he forcibly

engaged in sexual intercourse with her.        “The kidnapping statute ‘punishes certain

removal or restraint done with a certain purpose and the eventual success or failure of the

goal is irrelevant.’” State v. Price, 8th Dist. Cuyahoga No. 99058, 2013-Ohio-3912, ¶

28; State v. Smith, 9th Dist. Summit Nos. 23468 and 23464, 2007-Ohio-5524, ¶ 41,

quoting State v. Matthieu, 3d Dist. Mercer Nos. 10-02-04 and 10-02-05, 2003-Ohio-3430,

¶ 17.
       {¶28} Patterson kidnapped T.T. when he deceptively offered to give her a ride to

L.H.’s home. Patterson traveled from the M & M Lounge at E. 131 Street to L.H.’s

home on E. 71 Street. Through Patterson’s deception, he lead T.T. to believe that his

only purpose was to drive her to L.H.’s home. Patterson then did not allow T.T. to leave

his vehicle.   T.T. testified that she was unable to exit the vehicle because Patterson

choked her and restrained her.     After arriving, Patterson then restrained her liberty to

commit the rape.    The restraining of her liberty to commit the actual rape was separate

from Patterson’s deception and restraint of T.T. from leaving the vehicle.          These acts

were separate and identifiable harm.

       {¶29} Second, Patterson was not charged with restraining T.T. while raping her.

The two types of kidnapping are distinguishable. Deception and restraining T.T. from

leaving the vehicle is different from holding T.T. down to penetrate her.                 The

kidnapping occurred before the rape.      The rape and the kidnapping were committed

separately.

       {¶30} Third, both acts were committed with a separate animus and motivation.

Patterson deceived and restrained T.T. to prevent her from escaping.                However,

Patterson raped T.T. for his sexual gratification.    Therefore, the rape and kidnapping

were not allied offenses and should not merge. Patterson’s fourth assignment of error is

overruled.

       {¶31} Judgment is affirmed.

       It is ordered that the appellee recover from appellant costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



___________________________________________
ANITA LASTER MAYS, JUDGE

MARY J. BOYLE, P.J., CONCURS;
FRANK D. CELEBREZZE, JR., J., CONCURS IN JUDGMENT ONLY
