[Cite as State v. Wright, 2011-Ohio-3575.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 93068




                                     STATE OF OHIO
                                                   PLAINTIFF-APPELLEE


                                             vs.

                                   WESLEY WRIGHT
                                                   DEFENDANT-APPELLANT




                               JUDGMENT:
                            VACATED IN PART;
                         REVERSED AND REMANDED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-498291

        BEFORE: Keough, J., Boyle, P.J., and Jones, J.
     RELEASED AND JOURNALIZED: July 21, 2011

ATTORNEY FOR APPELLANT

R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
1370 Ontario Street
Cleveland, OH 44113

Wesley Wright, pro se
Inmate No. 563-038
Mansfield Correctional Institution
P.O. Box 788
Mansfield, OH 44901

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Scott Zarzycki
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

      {¶ 1} Defendant-appellant, Wesley Wright, appeals from the trial

court’s judgment, entered after a jury verdict, finding him guilty of rape and

sexual contact with a minor and sentencing him to 25 years in prison.

Finding merit to the appeal, we vacate in part and reverse and remand for a

new trial.

I.    Facts and Procedural Background

      {¶ 2} In July 2007, Wright was indicted for one count of rape, in

violation of R.C. 2907.02(A)(1)(b), and four counts of unlawful sexual conduct

with a minor, in violation of R.C. 2907.04(A), that had allegedly occurred

between May 29, 2002 and July 31, 2004. The court issued a capias and

Wright was arrested on March 25, 2008.

      {¶ 3} The court subsequently allowed Wright’s first and second

court-appointed lawyers to withdraw from the case; the court appointed a

third attorney on November 24, 2008. A jury trial commenced on February

10, 2009.

      {¶ 4} The victim, S.P., who was 19 years old at the time of trial,

testified that she was born on May 29, 1989. She stated that she first met

Wright when she was 12 years old and in the seventh grade, when her

mother, Cynthia Jackson, began dating him.       She recalled that she, her
mother, and her sister were living at the home of Jackson’s foster parents at

the time.

      {¶ 5} S.P. testified that she and her family moved from place to place

and lived with various people over the next several years, including a family

friend named Laroy; Jackson’s friend Miranda Graham; a shelter on the west

side of Cleveland; S.P.’s aunt; a townhouse on the east side of Cleveland; and

eventually, West Virginia.

      {¶ 6} S.P. testified that as the family moved from place to place, Wright

often stayed with them. S.P. stated that at first she thought of Wright as a

friend, but their relationship eventually changed. She said that when she

was “twelve going on thirteen,” she “started liking him like emotionally” and

that “he was like the first person I fell in love with.”

      {¶ 7} S.P. testified that she did not remember the exact date when she

first had intercourse with Wright, but recalled that it occurred a month or

two before her thirteenth birthday.        She stated that she knew when it

happened because she remembered her thirteenth birthday party and who

was present.    According to S.P., the party was given by a friend of her

mother’s and was a joint celebration of her birthday and another friend’s

birthday.

      {¶ 8} S.P. stated that her first sexual encounter with Wright occurred

while she and her family were living at Miranda Graham’s apartment. She
said that on the day in question, she and her sister were in Wright’s care

while her mother was working. Wright drove them to his friend Elizabeth

Burkhalter’s one-bedroom apartment to use her computer; Elizabeth was not

at home.

      {¶ 9} S.P. testified that she went into the bedroom, where Wright was

working on the computer, to lie down. Her sister stayed in the living room.

Wright left the bedroom briefly; when he returned he began touching S.P. and

removing her clothes. S.P. confirmed they had intercourse and testified that

“then from there, we just started having sex almost every day.”

      {¶ 10} Elizabeth Burkhalter, who said she began dating Wright in April

2002, verified that Wright had access to her apartment and would come over

during the day while she was at work. She recalled two different occasions

when she came home and found Wright alone with S.P.; on one occasion she

found them in her bedroom. She eventually told Wright to stop bringing S.P.

to her apartment if no other children were present. Burkhalter testified that

she learned of Wright’s relationship with Jackson approximately a year after

she started dating him.

      {¶ 11} S.P. stated that she and Wright had intercourse at various

locations over several years as the family moved from place to place.

According to S.P., they had intercourse a few times at Elizabeth Burkhalter’s

apartment, frequently at Miranda Graham’s apartment, twice at the home of
Wright’s sister, and a few times at the family’s townhouse. S.P. testified that

her mother continued to date Wright during this time, so S.P. did not tell her

or anyone else about her sexual relationship with Wright.

        {¶ 12} In 2004, when S.P. was 15 years old, she and her family relocated

to West Virginia to live with S.P.’s grandparents. Wright frequently traveled

to West Virginia to visit. S.P. testified that she and Wright had intercourse

during one of his visits, but after S.P. and her family moved to an apartment,

she and Wright resumed having intercourse “all the time basically” while

Jackson was at school or working. Their last sexual encounter occurred a

few days before S.P.’s sixteenth birthday, just before S.P. moved to live with

her father.

        {¶ 13} S.P. testified that a short time later she learned she was pregnant

and went to live with her uncle in Tennessee. S.P. told her mother, who had

moved back to Cleveland, that the father was someone from Atlanta.

        {¶ 14} S.P. gave birth to a son in November 2005.       She returned to

Cleveland in February 2006 to visit her mother, who had just given birth to a

baby fathered by Wright.        According to Cleveland police officer Richard

Sanders, on February 6, 2006, Jackson, accompanied by S.P., reported that

S.P. had been raped by Wright. Sanders’s written narrative of the interview

indicates that Jackson told him that she began dating Wright in February

2002.
      {¶ 15} S.P. returned to Tennessee after making the police report.   She

subsequently spoke with authorities from Montgomery County Children’s

Services in Clarksville, Tennessee. In a videotaped interview, S.P. revealed

that she believed Wright to be the father of her child.       Detective Ginger

Fitting testified that she collected DNA samples from S.P. and her baby and

sent the samples to officials in Cleveland and West Virginia. Subsequent

testing of the samples revealed a 99.99 percent possibility that Wright is the

father of S.P.’s child.

      {¶ 16} Jackson testified that she met Wright in late February or March,

2003 and began dating him two weeks later. She confirmed S.P.’s account of

the family’s many moves and stated that she did not learn that Wright was

the father of S.P.’s child until 2007, shortly before S.P. moved back to

Cleveland. Jackson testified that she confronted Wright, but he denied that

he had fathered S.P.’s child.

      {¶ 17} Jackson admitted that in April 2007, she spoke with Cuyahoga

County Department of Children and Family Services (“CCDCFS”) officials

regarding a matter involving S.P.’s sister; however, she denied telling anyone

at CCDCFS that Wright had admitted to a sexual relationship with S.P. and

that he might have fathered S.P.’s child. She admitted, however, that she

told CCDCFS personnel that Wright should not go to jail because S.P.

“wanted it [i.e., intercourse]” and “had feelings” for him.
      {¶ 18} Jackson admitted that Wright telephoned her repeatedly from

March 25, 2008, after he was arrested, to July 14, 2008. Jackson said that

most of the conversations were about their son, but admitted that she and

Wright discussed the date when they met. Jackson testified that one of the

conversations “might have” been a three-way conversation with her, Wright,

and Burkhalter in which they discussed when they met, a date Jackson

stated she knew was “important” to Wright’s defense of the charges.

      {¶ 19} Over defense counsel’s objection, the prosecutor played an audio

recording that contained excerpts of the phone conversations between Wright

and Jackson. In one conversation, Wright discussed marrying Jackson when

the case was over.     In another, Wright suggested that Jackson and S.P.

refuse to talk to the prosecutor and that S.P. should change her statement

about what happened.

      {¶ 20} No witnesses testified for the defense and the jury subsequently

convicted Wright of all counts as indicted.

II.   Unlawful Sexual Conduct With a Minor

      {¶ 21} R.C. 2907.04(A), regarding unlawful sexual conduct with a minor,

states that “[n]o person who is eighteen years of age or older shall engage in

sexual conduct with another, who is not the spouse of the offender, when the

offender knows the other person is thirteen years of age or older but less than

sixteen years of age * * *.”
      {¶ 22} Under R.C. 2907.04(B)(3), unlawful sexual conduct with a minor

is a fourth degree felony, but “if the offender is ten or more years older than

the other person, unlawful sexual conduct with a minor is a felony of the third

degree.” If the offender is less than four years older than the other person,

unlawful sexual conduct with a minor is a first degree misdemeanor.

      {¶ 23} In addition to his rape conviction, Wright was convicted of four

counts of unlawful sexual conduct with a minor, with a furthermore clause

alleging that he was ten years older than S.P., which elevated the offenses to

third degree felonies. In his first assignment of error, Wright contends that

the State produced no evidence of his age at trial and no evidence

demonstrating that he was ten years older than S.P. and, hence, because age

is an element of the offense, there was insufficient evidence to support his

convictions, requiring they be vacated. At the least, he argues, the matter

should be remanded for resentencing on misdemeanors of the first degree.

      {¶ 24} When a defendant challenges the sufficiency of the evidence, he is

arguing that the State presented inadequate evidence on each element of the

offense to sustain the verdict as a matter of law. State v. Hawn (2000), 138

Ohio App.3d 449, 471, 741 N.E.2d 594. On review for sufficiency, courts are

to assess not whether the State’s evidence is to be believed, but whether, if

believed, the evidence against a defendant would support a conviction. State

v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541.             The
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 (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the

syllabus.

       {¶ 25} We note at the outset that Wright raises this argument for the

first time on appeal. Our review of the record demonstrates that he made no

objection at trial to the sufficiency of the evidence regarding his age. 1                      A

failure to assert an alleged error in the trial court waives all but plain error.

State v. Awan (1986), 22 Ohio St.3d 120, 489 N.E.2d 277; Crim.R. 52(B).

Plain error exists “if the trial outcome would clearly have been different,

absent the alleged error in the trial court proceedings.”                    State v. Rollins,

Clark App. No. 2005-CA-10, 2006-Ohio-5399.                    To prevail under the plain

error standard, the substantial rights of the accused must be so adversely

affected that the error undermines the fairness of the guilt determining

process. State v. Bahns, 185 Ohio App.3d 805, 2009-Ohio-5525, 925 N.E.2d

1025, ¶25. We find such plain error here.



         Defense counsel moved for a judgment of acquittal under Crim.R. 29 at the close of the
       1


State’s case. With respect to the rape charge, counsel argued that the evidence was insufficient to
show that S.P. was under the age of 13. With respect to the charges of unlawful sexual conduct with
a minor, counsel argued that the State had not presented sufficient evidence of the time and place
where the alleged acts had occurred.
      {¶ 26} When age is an essential element of an offense, it must be proved

beyond a reasonable doubt. State v. Price (1992), 80 Ohio App.3d 35, 43, 608

N.E.2d 818. Age may be proved by circumstantial evidence, but the jury’s

observations of the defendant alone are not sufficient.    Id.; State v. Dula

(Jan. 27, 1999), Wayne App. No. 98CA0030; State v. McNeese (Oct. 23, 1995),

Warren App. No. CA93-12-108.

      {¶ 27} The State concedes that it presented no direct evidence of

Wright’s age at trial, but argues that the record reflects sufficient

circumstantial evidence of his age to support his convictions beyond a

reasonable doubt. It argues that the evidence showed that Wright was over

age 18 at the time of the offense because there was testimony that S.P. met

Wright in 2001 or 2002 when she was 11 or 12 years old, and testimony that

around the same time, Wright “was old enough to go to a drinking

establishment.” The State further contends that Burkhalter’s testimony that

Wright had already fathered a child when she met him in 2002 established

that Wright was ten years older than S.P. Finally, the State contends that

the jury observed Wright, as well as Jackson and Burkhalter (the women he

dated), during the trial and could have reasonably inferred that he was more

than 18 years of age and at least ten years older than S.P. Price, supra.

      {¶ 28} We are not persuaded.   Jackson’s testimony that she met Wright

in a bar in 2003 does not demonstrate that Wright was 18 years of age or
older, or ten years older than S.P. Further, the fact that Wright had already

fathered a child by 2002 proves nothing about Wright’s age at the time and

does not demonstrate that he was ten years older than S.P.           Therefore,

because there was no other evidence relating to Wright’s age, any conclusions

about his age based solely upon the jury’s observations of him at trial would

be insufficient to establish this element of the offense.

      {¶ 29} Further, although not relevant to our finding regarding the

sufficiency of the evidence and not raised as error by Wright, we are troubled

by the jury instructions in this case.       Despite the lack of any evidence

whatsoever at trial regarding Wright’s birthdate, the judge instructed the

jury as follows regarding the counts of unlawful sexual conduct with a minor:

      {¶ 30} “Before you can find the defendant guilty, you must find beyond a

reasonable doubt that between May 29th of 2002 and July 31st of 2004, in

Cuyahoga county, the defendant engaged in sexual conduct with [S.P.], not

his spouse, and Wesley Wright being 18 years of age or older, to wit, date of

birth July 24th of 1972, knowing that [S.P.] was 13 years of age or older, but

less than 16 years of age, to wit, date of birth May 29th, 1989, or was reckless

in that regard.”     Continuing, the judge then instructed the jury that

“[f]urthermore, Wesley Wright is ten or more years older than [S.P.].”

(Emphasis added.)
       {¶ 31} Thus, the judge told the jury Wright’s birthdate, even though

there was no evidence whatsoever presented at trial as to his birthdate. The

judge also told the jury that Wright was ten years older than S.P., a fact the

jury was supposed to determine. That in itself is plain error.

       {¶ 32} Appellant’s first assignment of error is sustained.   Even viewing

the evidence in a light most favorable to the prosecution, it is apparent the

State did not present sufficient evidence of Wright’s age to sustain his

convictions for unlawful sexual conduct with a minor. Because the evidence

as to an element of the charges was insufficient, the judge should have

dismissed the charges. See Crim.R. 29(A).

       {¶ 33} Appellant’s convictions for unlawful sexual conduct with a minor

are therefore vacated.

III.   Rape

       {¶ 34} Wright     was   convicted   of   rape,   in   violation   of   R.C.

2907.02(A)(1)(b), which states that “No person shall engage in sexual conduct

with another who is not the spouse of the offender * * * when * * * the other

person is less than thirteen years of age, whether or not the offender knows

the age of the other person.”      In his second assignment of error, Wright

contends that his rape conviction was against the manifest weight of the

evidence because the evidence indicated that S.P. was over 13 years of age

when she first had intercourse with him.
      {¶ 35} In light of our holding that other acts testimony was improperly

admitted, necessitating a new trial on Wright’s rape conviction (see

discussion below regarding Wright’s fourth assignment of error), this

assignment of error is moot and we need not address it.            See App.R.

12(A)(1)(c).

IV.   Speedy Trial

      {¶ 36} In his third assignment of error, Wright argues that the trial

court erred in denying his motion to dismiss for violation of his right to a

speedy trial.

      {¶ 37} When reviewing a speedy trial question, the appellate court must

count the number of delays chargeable to each side and then determine

whether the number of days not tolled exceed the time limits under R.C.

2945.71. State v. Borrero, Cuyahoga App. No. 82595, 2005-Ohio-4488, ¶10.

Whether the trial court’s ruling on the speedy trial question was correct is a

mixed question of law and fact. Id. We “apply a de novo standard of review

to the legal issues but afford great deference to any findings of fact made by

the trial court.” State v. Barnes, Cuyahoga App. No. 90847, 2008-Ohio-5472,

¶17. This court must construe the statutes strictly against the State when

reviewing the legal issues in a speedy trial claim. Brecksville v. Cook (1996),

75 Ohio St.3d 53, 1991-Ohio-171, 661 N.E.2d 706. If the State has violated a
defendant’s right to a speedy trial, then the court must dismiss the charges

against the defendant. R.C. 2945.73(B).

      {¶ 38} R.C. 2945.71 requires the State to bring a felony defendant to

trial within 270 days of arrest. Each day a defendant is held in jail in lieu of

bond on a pending charge is counted as three days.       R.C. 2945.71(E). The

time constraints of R.C. 2945.71 may be extended for various reasons,

including motions filed by the accused, continuances requested by the

accused, the time required to secure counsel for the accused, and reasonable

continuances granted other than upon the accused’s motion. R.C. 2945.72;

see, also, State v. Byrd, Cuyahoga App. No. 91433, 2009-Ohio-3283 (a

defendant’s demand for discovery or bill of particulars tolls the speedy trial

period for a “reasonable time”); State v. Sanchez, 110 Ohio St.3d 274,

2006-Ohio-4478, 853 N.E.2d 283 (motions filed by the defendant toll the

speedy trial period for a “reasonable period” to allow the State an opportunity

to respond and the court an opportunity to rule); State v. Pirkel, Cuyahoga

App. No. 93305, 2010-Ohio-1858 (sua sponte continuances by the court that

are reasonable in necessity or purpose toll the speedy trial period).

      {¶ 39} Wright was arrested on March 24, 2008 and held without bond

until his trial commenced on February 10, 2009. Applying the principles set

forth above, we find no violation of his speedy trial rights.           The record
reflects that Wright’s own actions repeatedly tolled the speedy trial date and

he was brought to trial within the 270-day statutory limit.

      {¶ 40} Wright was arrested on March 24, 2008 on this case and on a

probation violation in Case No. CR-431916.        On April 14, 2008, he was

sentenced to six months incarceration on Case No. CR-431916. Accordingly,

from the time of his arrest until October 14, 2008, the triple-count provisions

of R.C. 2945.71 did not apply and time ran one for one.

      {¶ 41} During this period of time, Wright filed numerous motions that

tolled the time. In addition, Wright’s first attorney withdrew, so the court

appointed another lawyer for him. After October 14, 2008, the trial court

continued trial until November 19, 2008 on its own motion because it was

involved in another criminal trial.     Wright then filed another series of

motions, fired his second lawyer, and filed a grievance against the sitting

judge. The case was transferred to another judge and a third lawyer was

appointed for Wright. New counsel then filed more motions and requested

more continuances in order to prepare for trial. Our calculations show that

construing the tolling provisions strictly against the State, and accounting for

several periods when the triple-count provision applied, at most only 132 days

of the 270-day statutory limit had been exhausted by trial. Accordingly, the

trial court properly denied Wright’s motion to dismiss the indictment based

on speedy trial grounds.
      {¶ 42} Wright’s third assignment of error is therefore overruled.

V.    Other Acts Evidence

      {¶ 43} As a general rule, evidence of previous or subsequent criminal

acts, wholly independent of the criminal offense for which a defendant is on

trial, is inadmissible. State v. Wilkinson (1980), 64 Ohio St.2d 308, 314, 415

N.E.2d 261. Evid.R. 404(B) and R.C. 2945.59 provide exceptions to this rule.

      {¶ 44} Evid.R. 404(B) states that “[e]vidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show

action in conformity therewith.    It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.”

      {¶ 45} Similarly, R.C. 2945.59 provides: “In any criminal case in which *

* * the defendant’s scheme, plan or system in doing an act is material, any

acts of the defendant which tend to show * * * the defendant’s scheme, plan or

system in doing the act in question may be proved, whether they are

contemporaneous with or prior or subsequent thereto, notwithstanding that

such proof may show or tend to show the commission of another crime by the

defendant.”   Such evidence is never admissible, however, when its sole

purpose is to establish that the defendant committed the act alleged of him in

the indictment. State v. Flonnory (1972), 31 Ohio St.2d 124, 285 N.E.2d 726,

superseded by statute on other grounds, as stated in State v. Hill (Apr. 3,
1980), Cuyahoga App. No. 40429; State v. Lytle (1976), 48 Ohio St.2d 391, 358

N.E.2d 623.

     {¶ 46} In his fourth assignment of error, Wright contends that the trial

court erred in admitting other acts evidence. Specifically, he complains that

the trial court erred in allowing evidence of events that occurred in West

Virginia and Tennessee, including evidence of S.P.’s continued sexual

relationship with Wright, her pregnancy, the birth of her child, and DNA

testing confirming a 99.99 percent    probability that Wright is the child’s

father. Wright contends that these events occurred outside the time frame of

the charges, as well as outside the jurisdiction of the court.    He further

contends the evidence was not relevant and highly inflammatory.

     {¶ 47} The State argues that this evidence shows Wright’s “common

scheme by continuing to have sex with the victim even when she moved out of

the state.” It contends that the events in West Virginia and Tennessee are

“inextricably related” to the offenses charged because they are an “immediate

continuation” of Wright’s conduct in Cleveland.    The State argues further

that the out-of-state encounters between S.P. and Wright and the DNA

evidence demonstrate Wright’s identity as the perpetrator.

     {¶ 48} The Ohio Supreme Court has explained that “‘[s]cheme, plan or

system’ evidence is relevant in two general factual situations. First, those

situations in which the ‘other acts’ form part of the immediate background of
the alleged act which forms the foundation of the crime charged in the

indictment. In such cases, it would be virtually impossible to prove that the

accused committed the crime charged without also introducing evidence of the

other acts. To be admissible pursuant to this sub-category of ‘scheme, plan

or system’ evidence, the ‘other acts’ testimony must concern events [that] are

inextricably related to the alleged criminal act.

       {¶ 49} “Identity of the perpetrator of a crime is the second factual

situation in which ‘scheme, plan or system’ evidence is admissible.       One

recognized method of establishing that the accused committed the offense set

forth in the indictment is to show that he has committed similar crimes

within a period of time reasonably near to the offense on trial, and that a

similar scheme, plan or system was utilized to commit both the offense at

issue and the other crimes.” State v. Curry (1975), 43 Ohio St.2d 66, 73, 330

N.E.2d 720.

       {¶ 50} Where the other acts are chronologically and factually separate

occurrences, they are generally not inextricably related to the acts alleged in

the indictment. See State v. Eubank (1979), 60 Ohio St.2d 183, 398 N.E.2d

567.    Here, the events that occurred in West Virginia and Tennessee

happened several months to several years after the alleged events in

Cuyahoga County. Hence, they are not “inextricably related” to the crimes

charged. They were chronologically and factually separate events from the
alleged rape and sexual misconduct offenses in Ohio and were not part of the

immediate background of the crimes charged. Further, it would have been

possible to prove that Wright committed the crimes with S.P. in Cuyahoga

County without necessitating the introduction of evidence regarding what

happened in West Virginia and Tennessee.       Accordingly, the other acts

testimony was not admissible under the common scheme, plan, or system

exception.

     {¶ 51} Nor was it admissible to prove Wright’s identity as the

perpetrator.   “Identity is in issue when the fact of the crime is open and

evident but the perpetrator is unknown and the accused denies that he

committed the crime. In that event[,] other act evidence tends to show the

defendant’s identity as the perpetrator by showing that he committed crimes

of a similar methodology within a period of time reasonably near to the

offense on trial, which itself would constitute probative evidence of the

probability that the same person, whoever he or she may be, committed both

crimes.” State v. Smith (1992), 84 Ohio App.3d 647, 666, 617 N.E.2d 1160,

citing Curry, supra. “However, the identity of the perpetrator must be in

dispute to permit use of other act evidence for this purpose.” Smith, supra.

Identity is not a material issue when the defendant admits to having been

with the victim, but denies engaging in sexual conduct with the victim.

Curry, supra at 73.
      {¶ 52} Here, Wright, through counsel, admitted knowing S.P. but denied

any sexual conduct with her.         Wright’s denial did not raise an identity

question; it created a factual dispute regarding Wright’s conduct with S.P.

Id. Therefore, the other acts evidence was not properly admitted under the

identity exception.

      {¶ 53} This case is squarely on point with State v. Thompson (1981), 66

Ohio St.3d 496, 422 N.E.2d 855, in which the defendant was charged with

gross sexual imposition involving his daughter when she was under 13 years

of age. During trial, the victim testified that the defendant had fondled her

breasts and pubic region prior to her thirteenth birthday. The State then

elicited testimony concerning sexual incidents with the defendant that

occurred subsequent to the victim’s thirteenth birthday.

      {¶ 54} The Supreme Court held that evidence of the defendant’s

subsequent sexual contact with his daughter after she turned 13 was

improperly admitted as other acts evidence.         The Court found that the

defendant’s subsequent acts had occurred anywhere from ten days to two

years after the events alleged in the indictment and, hence, were

“chronologically   and   factually    separate   occurrences”   that   were   not

“inextricably related” to the alleged acts.      Further, the Court found that

identity was not at issue in the case because the only contested issue at trial

was the timing of the defendant’s first sexual contact with his daughter.
Accordingly, the Court held that the testimony regarding the defendant’s

subsequent sexual activity had been improperly admitted.           Id. at 498.

Further, the Supreme Court concluded the error was not harmless because of

“the real possibility that defendant was convicted of gross sexual imposition

because of the improper admission of testimony that he committed sexual

imposition herein subsequent to his daughter becoming 13 years of age.” Id.

at 499. The Court affirmed the appeals court’s decision that had reversed

the defendant’s conviction and remanded the matter for a new trial.

      {¶ 55} As in Thompson, we conclude that the improper admission of the

other acts testimony cannot be considered harmless error in this case.

Before an error can be considered harmless, we must be able to “‘declare a

belief that it was harmless beyond a reasonable doubt.’” State v. Craig,

Cuyahoga App. No. 93137, 2010-Ohio-1857, ¶32, quoting Chapman v.

California (1967), 386 U.S. 18, 24, 876 S.Ct. 824, 17 L.Ed.2d 705. “Where

there is no reasonable possibility that the unlawful testimony contributed to a

conviction, the error is harmless and therefore will not be grounds for

reversal.” Id., citing State v. Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d 623,

paragraph three of the syllabus, vacated on other grounds in (1978), 438 U.S.

910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.
       {¶ 56} Here, as in Thompson, there is a real possibility that Wright was

convicted of raping 2 S.P. before her thirteenth birthday because of the

improper admission of evidence regarding events that occurred after her

birthday, including her sexual activity with Wright, her pregnancy, and the

fact that he fathered her child. Further, like the victim in Thompson, who

testified that she “had trouble remembering dates,” S.P. was very imprecise

about dates and times. Accordingly, we cannot conclude that the admission of

the other acts testimony was harmless beyond a reasonable doubt.

       {¶ 57} Furthermore, we note that even if the other acts evidence were

properly admitted, the trial court’s jury instructions did not give the jury the

“limited purpose” instruction required by Flonnory, supra. “Where evidence

has been admitted for a limited purpose which the State claims shows the

defendant did certain ‘other acts’ which show the motive or intent of the

accused, the absence of mistake or accident on his part, or the defendant’s

scheme, plan[,] or system in doing the act in question [that] is alleged in the

indictment, the jury should be instructed that such evidence must not be

considered by them as any proof whatsoever that the accused did any act

alleged in the indictment.” Id. at 129. In this case, the “other acts” were

purportedly admitted for the limited purposes of demonstrating Wright’s



        We need not consider whether the improperly admitted evidence contributed to Wright’s
       2


convictions for unlawful sexual conduct with a minor in light of our holding that the charges should
common scheme and identity, but no limited purpose instruction was given to

the jury.

       {¶ 58} Appellant’s fourth assignment of error is sustained. 3                     Wright’s

rape conviction is reversed and the matter is remanded for further

proceedings.

VI.    Wright’s Pro Se Supplemental Assignments of Error

       {¶ 59} This court granted Wright leave to file pro se supplemental

assignments of error.

       {¶ 60} In his first assignment, Wright claims that the verdict form with

respect to his convictions for unlawful sexual conduct with a minor, third

degree felonies, did not comply with R.C. 2945.75(A)(2), which states that

“[w]hen the presence of one or more additional elements makes an offense one

of more serious degree * * * the guilty verdict shall state either the degree of

the offense of which the offender is found guilty, or that such additional


have been dismissed for insufficiency of the evidence.

         Wright also argues in this assignment of error that the trial court abused its discretion in
       3


allowing the taped phone calls between him and Jackson to be played for the jury. In the
conversations, Wright suggests that Jackson and S.P. refuse to talk to the prosecutor and that S.P.
should change her story about what happened. In another conversation, Wright and Jackson discuss
being married upon resolution of the case. Because this evidence was relevant to Jackson’s
credibility, the trial court did not abuse its discretion in allowing the tapes to be played.
Furthermore, although Wright now contends that the trial court should have admitted the tapes as an
exhibit, the record reflects that the State moved for their admission and defense counsel objected.
Under the invited error doctrine, a party cannot take advantage of an error he invited or induced.
State v. Seiber (1990), 56 Ohio St.3d 4, 17, 564 N.E.2d 408.
element or elements are present.” Wright made no objection to the verdict

form in the trial court and, accordingly, has waived this error on appeal. In

any event, this assignment of error is rendered moot by our conclusion that

the trial court should have dismissed the unlawful sexual conduct with a

minor charges because the evidence was insufficient to support them.

      {¶ 61} In his second assignment of error, Wright claims that the trial

court failed to comply with Crim.R. 44, which provides that “[w]here a

defendant charged with a serious offense is unable to obtain counsel, counsel

shall be assigned to represent him at every stage of the proceedings * * *

unless the defendant, after being fully advised of his right to assigned

counsel, knowingly, intelligently, and voluntarily waives his right to counsel.”

 Wright contends that the trial court erred because it appointed three

lawyers for him, despite his “crystal-clear intent to proceed pro se and

represent himself.”

      {¶ 62} The record reflects that although Wright filed numerous pro se

motions, he never expressed an intent to waive his right to counsel. At the

hearing regarding the first attorney’s request to withdraw, Wright did not ask

to represent himself and, in fact, he thanked the judge when he told Wright

that he was appointing another lawyer to represent him. At the hearing

regarding the withdrawal of Wright’s second lawyer, Wright requested two

specific attorneys to represent him. Further, Wright complained that he did
not have money to hire the lawyer of his choice and told the judge, “I have a

right to counsel.” Wright’s argument that he wanted to represent himself is

obviously without merit; his second supplemental assignment of error is

therefore overruled.

      {¶ 63} In his third assignment of error, Wright claims that his conviction

should be reversed because the verdict forms were not filed and made part of

the record. Crim.R. 55 states that “the clerk shall chronologically note in the

appearance docket all: process issued and returns, pleas and motions, papers

filed in the action, orders, verdicts and judgments. The notations shall be

brief but shall show the date of filing and the substance of each order, verdict

and judgment.”

      {¶ 64} Although the verdict forms were not filed, they are in the record.

Further, the docket reflects that the verdict and Wright’s conviction and

sentence were properly journalized. Accordingly, we find no reversible error.

 “The filing of such forms is a ministerial act and, however important, it does

not affect a substantial right when the otherwise perfect record of the

proceedings at trial and the final judgment fully disclose the delivery and

acceptance without objection of valid verdicts by the jury.” State v. Clark

(Jan. 6, 1987), Montgomery App. No. CA 9722. Wright’s third supplemental

assignment of error is overruled.
      {¶ 65} In his fourth assignment of error, Wright contends that he was

denied effective assistance of counsel. Specifically, Wright contends that the

indictment specified that the rape occurred between May 1, 2008 and May 1,

2009, but S.P. testified at trial that Wright first had intercourse with her in

April or May, 2002, before her thirteenth birthday. Wright contends that the

State “certainly withheld that information” and, accordingly, counsel should

have moved for a mistrial.

      {¶ 66} Wright’s argument is without merit.       His assertion that the

State purposely withheld information is not supported by the record.

Further, any failure by the State to allege more specific dates could not have

prejudiced Wright because his defense strategy was that he never engaged in

sexual conduct with S.P., at any time or place. In the absence of prejudice,

there was no basis for counsel to move for a mistrial.          Wright’s fourth

assignment of error is therefore overruled.

      {¶ 67} In his fifth assignment of error, Wright contends that the trial

court erred in assessing court costs after the judge told him at sentencing that

he would consider waiving those costs.

      {¶ 68} R.C. 2947.23 states: “In all criminal cases, including violations of

ordinances, the judge or magistrate shall include in the sentence the costs of

prosecution and render a judgment against the defendant for such costs.”

Thus, imposition of court costs as part of a defendant’s sentence in criminal
cases is mandatory absent a finding of indigency.         State v. Lockwood,

Cuyahoga App. No. 83165, 2004-Ohio-2349, ¶12. Court costs may be waived

in the discretion of the court if the court first determines that the defendant

is indigent. State v. Masterson, Cuyahoga App. No. 90505, 2008-Ohio-4704,

¶17.   The court may only grant a waiver of court costs if the defendant

makes a motion at the time of sentencing. Id.

       {¶ 69} Despite Wright’s argument, the record reflects that Wright asked

the judge to consider waiving costs until after he was released from prison; he

did not ask the judge to suspend the imposition of all costs because he was

indigent. In the absence of a finding of indigency, the trial court properly

imposed costs. Wright’s fifth supplemental assignment of error is therefore

overruled.

       {¶ 70} Last, Wright contends that the trial court lacked jurisdiction

because an affidavit charging the offense committed was not filed with the

court, in violation of R.C. 2935.05. What Wright fails to appreciate is that he

was charged under an indictment, which is a different charging instrument

than a complaint.        State v. Hess, Jefferson App. No. 02 JE 36,

2003-Ohio-6721, ¶16. The requirements of R.C. 2935.05 refer to the filing of

criminal complaints, not to indictments, and hence are not applicable to this

case. Wright’s sixth assignment of error is therefore overruled.
      {¶ 71} Wright’s convictions for unlawful sexual conduct with a minor are

vacated. The case is remanded to the trial court to enter a judgment entry

vacating the convictions; his conviction for rape is reversed and the matter is

remanded for further proceedings.

      It is ordered that appellant recover from appellee 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. Case remanded to

the trial court for proceedings consistent with this opinion.

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

Rule 27 of the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, J., CONCUR
