[Cite as State v. Grubbs, 2016-Ohio-5147.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Craig R. Baldwin, J.
 -vs-                                           :
                                                :   Case No. 15CAA100080
                                                :
 MICHAEL F. GRUBBS                              :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Delaware County Court
                                                    of Common Pleas, Case No. 15 CR 1
                                                    01 0004



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             July 25, 2016




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 CAROL HAMILTON O’BRIEN                             WILLIAM T. CRAMER
 DELAWARE CO. PROSECUTOR                            470 Olde Worthington Road, Ste. 200
 CORY J. GOE                                        Westerville, OH 43082
 140 N. Sandusky St., 3rd Floor
 Delaware, OH 43015
Delaware County, Case No. 15CAA100080                                                   2

Delaney, J.

       {¶1} Appellant Michael F. Grubbs appeals from the September 29, 2015

Judgment Entry of Prison Sentence of the Delaware County Court of Common Pleas.

Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} “Jane Doe” was 9 years old at the time of the crimes described herein and

10 years old at the time of trial. “Mary Doe” was 5 years old. The girls have a 4-year-old

brother, “John Doe.” The children’s relatives other than appellant will be referred to as

“Mother” and “Grandmother” to preserve the anonymity of the child victims. Appellant is

Mother’s uncle and Grandmother is the children’s maternal great-grandmother.

       {¶3} The three children were frequently left in the care of relatives while Mother

worked. Appellant would watch all three children at Grandmother’s house because he

lived in a small apartment and Grandmother had more room to play. The children also

had their own rooms and duplicate toys at Grandmother’s house.

       {¶4} Appellant was often the only adult with the children because Grandmother

was at work during the day.      Appellant would shuttle the children between school,

preschool, and daycare as needed. Appellant would take the children to their favorite

restaurants including Taco Bell and Burger King and sometimes bought toys for them.

Appellant bought Jane Doe a Monster High doll she was particularly fond of.

       {¶5} On Monday, December 29, 2014, the children were on Christmas break

from school. Mother and Grandmother worked during the day so appellant watched all

three children at Grandmother’s house. Mother picked up Mary Doe and John Doe

around 12:30, but appellant asked if he could keep Jane Doe for the afternoon so they
Delaware County, Case No. 15CAA100080                                                     3


could spend time together before Jane Doe returned to school. Appellant returned Jane

Doe to Mother’s home around 5:30 p.m.

           {¶6} The next day, Tuesday, December 30, 2014, appellant again volunteered

to watch the children while Mother and Grandmother worked. This time, Mother picked

up Jane Doe and John Doe around 12:30 p.m. and appellant asked to spend the

afternoon alone with Mary Doe. Appellant brought Mary Doe home and dropped her off

around 5:30 p.m. The family ate dinner and Mother’s boyfriend, Robert Flores, came

over. The girls were playing upstairs and Jane Doe came down to tell Mother “something

bad was happening” and they needed to talk about it. Jane Doe said Mary Doe was afraid

to tell.

           {¶7} Mother found Mary Doe in her closet, crying and afraid. It took Mother

twenty minutes to coax Mary Doe from the closet and to ask her what was wrong. Mary

Doe was afraid she would be in trouble. Finally Mary Doe said, “Mommy, don’t make us

go with Uncle Michael anymore.” She told her mother appellant had been kissing her on

the lips and putting his hands down her pants, and she was afraid. At trial Mary Doe

testified appellant touched her on her “private part” under her clothes and indicated her

vagina. She said the last time it happened was the last time she saw appellant, i.e.

December 30.

           {¶8} Mother asked Jane Doe if this happened to her as well and Jane Doe said

yes. At trial, Jane Doe testified appellant touched her “boobs,” “pee-pee,” and “butt,” over

her clothes and under her clothes. Jane Doe also testified to digital penetration. Jane

Doe testified appellant told her not to tell anyone and bought her things if she allowed him
Delaware County, Case No. 15CAA100080                                                     4


to touch her, including the Monster High doll. When Jane Doe learned the same things

were happening to Mary Doe, she felt it was time to disclose to their mother.

       {¶9} Mary Doe testified the abuse was ongoing until the night she and Jane Doe

told their mother. She and Jane Doe had never discussed the abuse with each other or

with anyone else until the night of the disclosure.

       {¶10} That night, Mother told her boyfriend and also her Aunt, appellant’s sister.

Aunt is a nurse and told Mother to take the girls to the hospital right away. Mother took

them to a hospital the next morning.

       {¶11} In the meantime, Aunt, appellant, and their spouses went to Delaware

County Children’s Services and reported that the girls were being molested.1

       {¶12} A pediatric SANE nurse examined both children at Nationwide Children’s

Hospital and collected rape kits. The nurse testified both exams were “normal” and she

did not observe any genital trauma to either victim. She testified these findings were

neither unusual nor unexpected in light of the allegations of touching and digital

penetration.

       {¶13} A forensic analyst from B.C.I. testified about examination of the rape kits for

D.N.A. evidence. No semen was found and no foreign D.N.A. was located on either

victim. The analyst noted a tiny amount of male D.N.A. was found on a swab taken from

Jane Doe’s breasts and a tiny amount of male D.N.A. was found on a swab of amylase

found in Mary Doe’s underwear. The presence of the male chromosome was noted but

the sample was too miniscule to provide any basis for comparison.




1The relatives named the perpetrator as Mother’s boyfriend Robert Flores, an allegation
which was alluded to at trial.
Delaware County, Case No. 15CAA100080                                                   5


       {¶14} A forensic interviewer from Nationwide Children’s Hospital spoke to both

girls and testified at trial. She said Jane Doe reported sexual abuse by appellant at

Grandmother’s house: appellant touched her breasts more than once, rubbed his penis

on her vagina with clothes on more than once, and put his finger inside her vagina. Jane

Doe said the last incident occurred the last time she saw appellant, or Monday, December

29, 2014.

       {¶15} Mary Doe also disclosed sexual abuse by appellant to the forensic

interviewer: appellant touched, rubbed, and hurt her vagina, on top of clothes and with

bare skin, and put his finger inside her vagina. It happened many times but the most

recent occurrence was the last time she saw appellant, or Tuesday, December 30, 2014.

       {¶16} Detective Daniel Madden of the Delaware City Police Department

investigated the allegations which were reported to him via Grady Memorial Hospital.

Madden instructed Mother to take the girls to Nationwide Children’s Hospital and she

complied. Madden advised Children’s Services of the allegations and learned appellant

and his family had come to Children’s Services earlier the same day to report the abuse,

although they named a different perpetrator.

       {¶17} Madden called appellant and appellant volunteered to come in to speak to

him. Madden testified appellant said he played a “grandfatherly” role with the girls.

Madden asked why the girls would make up sexual abuse allegations and appellant said

maybe someone else did it. Madden noted appellant made a strange comment about

telling “her” that if it was a boy and had a penis, it “leaked.” Madden observed appellant

had a very dry mouth throughout the interview which the detective interpreted as an

indication appellant was lying. Appellant told Madden he and Aunt went to Children’s
Delaware County, Case No. 15CAA100080                                                    6


Services to start an investigation because his sister (Aunt) thinks something else was

going on.

       {¶18} When Madden asked directly if he ever touched the girls’ breasts, vaginal

areas, or buttocks, appellant denied the abuse and said if those touches happened they

were unintentional in the bathtub or when the girls would jump on him. Madden also

confronted appellant with the specific allegation that he kissed Mary Doe on the lips.

Appellant said Mary Doe always kisses him on the lips; he said he has tried to stop her

from doing it but she persisted.

       {¶19} Madden testified he found it strange that although appellant has children of

his own, the desktop photograph on his cell phone screen was of Jane and Mary Doe.

       {¶20} Appellant testified on his own behalf at trial. He described many photos and

videos of Jane, Mary, and John Doe on his cell phone; in some of the photos the girls are

dressed up in costumes or makeup, and in some the children are sleeping. Appellant

said the children did not ask to have their photos taken but did not object. In one video,

he described Mary Doe “shaking [her] behind” and said it made him very uncomfortable

and he had to correct the behavior. He said he observed this type of behavior “frequently.”

       {¶21} Several of appellant’s friends and family members testified on his behalf at

trial, including Aunt and Grandmother, among others. The witnesses testified they did

not believe appellant had the propensity to molest children and described various

developmental issues with the children and problems with Mother’s parenting. The

witnesses insinuated that the children’s behavioral problems were consistent with sexual

abuse but that Mother’s boyfriend was the perpetrator instead of appellant.
Delaware County, Case No. 15CAA100080                                                     7


         {¶22} Appellant was charged by indictment as follows: Count I, rape of a child

under the age of 13 [Jane Doe], a felony of the first degree pursuant to R.C.

2907.02(A)(1)(b); Count II, forcible rape of Jane Doe pursuant to R.C. 2907.02(A)(2), a

felony of the first degree; Count III, gross sexual imposition against a child under the age

of 13 [Jane Doe], a felony of the third degree pursuant to R.C. 2907.05(A)(4); Count IV,

forcible gross sexual imposition against Jane Doe, a felony of the fourth degree pursuant

to R.C. 2907.05(A)(1); Count V, rape of a child under the age of 13 [Mary Doe], noting

Mary Doe was under the age of 10, a felony of the first degree pursuant to R.C.

2907.02(A)(1)(b), a felony of the first degree; Count VI, forcible rape of Mary Doe pursuant

to R.C. 2907.02(A)(2), a felony of the first degree; Count VII, gross sexual imposition

against a child under the age of 13 [Mary Doe], a felony of the third degree pursuant to

R.C. 2907.05(A)(4); and Count VIII, forcible gross sexual imposition against Mary Doe, a

felony of the fourth degree pursuant to R.C. 2907.05(A)(1).

         {¶23} The indictment states that Counts I through IV arose on or around

December 29, 2014, and Counts V through VIII arose on or around December 30, 2014.

         {¶24} Appellant entered pleas of not guilty. He moved to sever trial of the counts

relative to each of the two victims; appellee responded in opposition. The motion to sever

proceeded to oral argument and was denied by judgment entry dated March 27, 2015.2

         {¶25} On July 23, 2015, appellant moved the trial court to call Robert Flores,

Mother’s boyfriend, as a court’s witness pursuant to Evid.R. 614.          Appellee filed a

response in opposition.




2   A number of other motions not relevant to this appeal were filed by both parties.
Delaware County, Case No. 15CAA100080                                                         8


       {¶26} On August 5, 2015, the trial court overruled appellant’s motion to call Robert

Flores as a court’s witness, noting “[t]he defense has no good faith basis to believe Mr.

Flores is involved in any way with molesting the girls except for the allegations coming

forth after he entered their lives” and “[t]he Court does not feel it is necessary * * * to call

Mr. Flores because there has been no showing he has any information material to the

offenses.”

       {¶27} Appellee also filed a motion in limine asking the trial court to prohibit

appellant from introducing evidence of Flores’ rape conviction involving a victim described

as an “adult ex-girlfriend.”

       {¶28} The case proceeded to trial by jury. Appellant moved for judgment of

acquittal pursuant to Crim.R. 29(A) at the conclusion of appellee’s evidence and at the

conclusion of all of the evidence; the motions were overruled. On August 31, 2015,

appellant was found not guilty upon Counts I and II [rape of Jane Doe]; guilty upon Counts

III and IV [gross sexual imposition against Jane Doe]; and guilty of Counts VII and VIII

[gross sexual imposition against Mary Doe]. The jury was unable to reach a unanimous

verdict upon Counts V and VI [rape of Mary Doe].

       {¶29} On September 15, 2015, appellant filed a motion to set aside the verdicts

and enter judgments of acquittal or in the alternative a motion for new trial. Appellee

responded with a motion in opposition.         On September 25, 2015, appellant filed a

“Defendant’s Proffer of Evidence” excluded at trial.

       {¶30} Following a sentencing hearing, the trial court found Counts IV and VIII to

be allied offenses of similar import and thus proceeded to sentence appellant upon
Delaware County, Case No. 15CAA100080                                                  9


Counts III and VII. The trial court imposed two concurrent terms of 24 months in prison.

Appellant was found to be a Tier II sex offender.

       {¶31} On October 1, 2015, by judgment entry, the trial court sustained appellant’s

motion for acquittal as to Counts V and VI [rape of Mary Doe] but otherwise overruled the

motion to set aside the verdict and motion for new trial.

       {¶32} Appellant now appeals from the judgment entry of sentence and from the

judgment entry denying the motion to set aside the verdict and for new trial.

       {¶33} Appellant raises six assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶34} “I. THE TRIAL COURT VIOLATED APPELLANT’S FEDERAL AND STATE

CONSTITUTIONAL RIGHTS TO A FAIR TRIAL, AND CRIM.R. 14, BY REUSING TO

SEVER THE COUNTS RELATING TO SEPARATE VICTIMS.”

       {¶35} “II. THE TRIAL COURT VIOLATED APPELLANT’S FEDERAL AND STATE

CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO PRESENT A COMPLETE

DEFENSE BY EXCLUDING EVIDENCE OF ROBERT FLORES’ PRIOR SEX

OFFENSE.”

       {¶36} “III.   THE TRIAL COURT VIOLATED APPELLANT’S FEDERAL AND

STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO PRESENT A

COMPLETE DEFENSE BY EXCLUDING EVIDENCE THAT ROBERT FLORES WAS

ABUSING THE GIRLS.”

       {¶37} “IV. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO THE EFFECTIVE

ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION,
Delaware County, Case No. 15CAA100080                                                 10


ARTICLE I, SECTION 10, BY COUNSEL’S FAILURE TO RENEW THE SEVERANCE

ARGUMENT.”

       {¶38} “V. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO THE EFFECTIVE

ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION,

ARTICLE I, SECTION 10, BY COUNSEL’S FAILURE TO TIMELY OFFER RELEVANT

EVIDENCE.”

       {¶39} “VI. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS

AND A FAIR TRIAL UNDER THE FEDERAL AND STATE CONSTITUTIONS BY THE

CUMULATIVE EFFECT OF THE NUMEROUS ERRORS IN THIS CASE.”

                                       ANALYSIS

                                            I.

       {¶40} In his first assignment of error, appellant asserts the trial court erred in

failing to sever the counts pertaining to each of the two victims. We disagree.

       {¶41} We examined joinder and severance in the context of sexual assault

allegations in State v. Meeks, 5th Dist. Stark No. 2014CA00017, 2015-Ohio-1527, 34

N.E.3d 382, appeal not allowed, 143 Ohio St.3d 1543, 2015-Ohio-4633, 40 N.E.3d 1180,

and a similar analysis is applicable here. In both cases, defendants faced a single trial

upon multiple sexual-assault-related charges against two victims.

       {¶42} Joinder of offenses is governed by Crim. R. 8(A); offenses may be joined if

they are of the same or similar character, are based on the same act or transaction, or

are based on two or more acts or transactions connected together or part of a common

scheme or course of criminal conduct. Joinder is liberally permitted to conserve judicial
Delaware County, Case No. 15CAA100080                                                       11


resources, reduce the chance of incongruous results in successive trials, and diminish

inconvenience to witnesses. See, State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d

1288 (1981). Joinder is appropriate where the evidence is interlocking and the jury is

capable of segregating the proof required for each offense. State v. Czajka, 101 Ohio

App.3d 564, 577–578, 656 N.E.2d 9 (8th Dist.1995).

       {¶43} If similar offenses are properly joined pursuant to Crim. R. 8(A), the accused

may move to sever the charges pursuant to Crim. R. 14, wherein the burden is on the

defendant to demonstrate his rights would be prejudiced by joinder. State v. Strobel, 51

Ohio App.3d 31, 33, 554 N.E.2d 916 (3rd Dist.1988). Appellant argues the trial court erred

in overruling his motion to sever. To prevail on such a claim, the defendant has the burden

of demonstrating: 1) his rights were actually prejudiced; 2) 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 potential prejudice the defendant's

right to a fair trial; and 3) given the information provided to the court, the court abused its

discretion in refusing to sever the charges. State v. Schaim, 65 Ohio St.3d 51, 59, 600

N.E.2d 661 (1992), citing State v. Hamblin, 37 Ohio St.3d 153, 158–159, 524 N.E.2d 476

(1988) and Drew v. United States, 331 F.2d 85 (D.C.Cir.1964). A defendant has not

demonstrated prejudice where: (1) if the counts were severed, evidence of alleged

misconduct from each count would be admissible in separate trials, and (2) if such

evidence would not be admissible, the evidence of each count is simple and distinct. Id.

       {¶44} If evidence of the offenses against Jane Doe is admissible at trial of the

offenses against Mary Doe, and vice-versa, appellant has not demonstrated prejudice.

“If the evidence of other crimes would be admissible at separate trials, any ‘prejudice that
Delaware County, Case No. 15CAA100080                                                      12


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.”

Schaim, supra, 65 Ohio St.3d at 59, 600 N.E.2d 661, internal citation omitted.

Accordingly, we must determine the extent to which evidence of each of these crimes

would be admissible in other trials if the counts were severed. State v. Markwell, 5th Dist.

Muskingum No. CT2011–0056, 2012-Ohio-3096, 2012 WL 2613903, ¶ 46.

       {¶45} The admission of other-acts evidence is limited because of the substantial

danger a jury will convict the defendant solely because it assumes that the defendant has

a propensity to commit criminal acts, or deserves punishment regardless of whether he

or she committed the crime charged in the indictment, and this danger is especially high

in a case “of an inflammatory nature” such as this one. Schaim, supra, 65 Ohio St.3d at

59, 600 N.E.2d 661, citing State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975).

However, “[a]s long as used for purposes other than proving that the accused acted in

conformity with a particular character trait, Evid.R. 404(B) permits the admission of ‘other

acts' evidence if it is ‘related to and share[s] common features with the crime in question.’

” State v. Markwell, supra, 2012-Ohio-3096, 2012 WL 2613903, at ¶ 45, citing State v.

Lowe, 69 Ohio St.3d 527, 634 N.E.2d 616 (1994), paragraph one of the syllabus.

       {¶46} In this case, the other-acts evidence pertaining to each victim is related to

and shares common features with the crimes committed against the other victim.

Appellant has access to both victims because he babysits them; the victims are sisters

and appellant is their great-uncle. Each victim was isolated by appellant and kept by him

for an afternoon alone when the abuse occurred. The charged acts of abuse occurred

within two days of each other, although ongoing continuous abuse was alleged.
Delaware County, Case No. 15CAA100080                                                   13


          {¶47} Appellee argues the evidence of each offense would have been admissible

at separate trials pursuant to Evid.R. 404(B), which states in pertinent part: “Evidence 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. * * * *.” The Rule is in accord with R.C. 2945.59, which

states:

                      In any criminal case in which the defendant's motive or intent,

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

                scheme, plan, or system in doing an act is material, any acts of the

                defendant which tend to show his motive or intent, the absence of

                mistake or accident on his part, or 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.

          {¶48} In State v. Curry, 43 Ohio St.2d 66, 330 N.E.2d 720 (1975), the Ohio

Supreme Court held “other acts” testimony, in order to be admissible under the scheme

or plan exception, must: (1) illustrate the immediate background of the crime charged,

such that without this testimony it would be virtually impossible to prove that the accused

committed the crime; or (2) establish the identity of the perpetrator. The Court has

subsequently limited its holding in Curry: “Pursuant to Evid.R. 404(B), * * * evidence of

other crimes, wrongs, or acts of an accused may be admissible to prove intent or plan,
Delaware County, Case No. 15CAA100080                                                   14


even if the identity of an accused or the immediate background of a crime is not at issue.”

State v. Williams, 134 Ohio St.3d 521, 522, 2012-Ohio-5695, 983 N.E.2d 1278, 1280, ¶

2 (2012).

       {¶49} Williams gives us a framework within which to evaluate the other-acts

evidence:

                     The first step is to consider whether the other acts evidence

              is relevant to making any fact that is of consequence to the

              determination of the action more or less probable than it would be

              without the evidence. Evid.R. 401. The next step is to consider

              whether evidence of the other crimes, wrongs, or acts is presented

              to prove the character of the accused in order to show activity in

              conformity therewith or whether the other acts evidence is presented

              for a legitimate purpose, such as those stated in Evid.R. 404(B). The

              third step is to consider whether the probative value of the other acts

              evidence is substantially outweighed by the danger of unfair

              prejudice. See Evid.R. 403.

                     State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983

              N.E.2d 1278, ¶ 20.

       {¶50} In the instant case, the evidence pertaining to each offense does have the

tendency to prove appellant engaged in a similar plan or method of conduct with both

victims and to prove his motive, intent, or plan. The nature of the allegations is similar:

touching over and under the clothing over time. The final incidents occurred within 24

hours of each other, with each victim isolated by appellant and kept alone with him.
Delaware County, Case No. 15CAA100080                                                     15


Appellant took each victim to a favorite restaurant consistent with allegations he groomed

and rewarded the victims for acts of abuse.

       {¶51} Having reviewed the substantial record of this case, we are convinced the

evidence against both victims was not presented to prove appellant’s character in order

to show activity in conformity therewith. Appellant told Madden he may have touched the

girls accidentally in the bathtub or when they climbed on him to play; the similar

circumstances of the offenses against both victims defeats this explanation and points to

appellant’s motive and intent. Appellant and his witnesses implied the girls’ behavioral

problems were consistent with sexual abuse but pointed to a different perpetrator; the

related allegations involving two victims point to appellant’s identity as the perpetrator.

       {¶52} From our review of the evidence, we find: 1) the acts were against family

members, 2) the acts occurred when the children were isolated with appellant after he

asked to be alone with them and 3) the allegations of touching over and under the clothing

were similar. State v. Markwell, 5th Dist. Muskingum No. CT2011-0056, 2012-Ohio-3096,

¶ 48, citing State v. Ickes, 5th Dist. No.1999AP080052, 2000 WL 874728 (June 13, 2000).

“These facts clearly indicate a ‘scheme, plan or system’ negating any claim of accident.”

Id. Further, the acts were consecutive in nature, and each victim testified separately. Id.

The issues were clearly laid out for the jury, and the jury was instructed that each count

and victim should be considered from its own evidence. Id.

       {¶53} The third step in the Williams analysis is whether the probative value of

each incident is outweighed by the prejudice risked in its admission. Williams, supra, 2-

2012-Ohio-5695 at ¶ 20. Unfair prejudice is that quality of evidence which might result in

an improper basis for a jury decision. State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-
Delaware County, Case No. 15CAA100080                                                       16


6550, 820 N.E.2d 302 ¶ 24. Because fairness is subjective, the determination whether

evidence is unfairly prejudicial is left to the sound discretion of the trial court and will be

overturned only if the discretion is abused. Id., citing State v. Robb, 88 Ohio St.3d 59, 68,

723 N.E.2d 1019 (2000). In light of our conclusions above, we find the probative value of

admitting the evidence in a single trial outweighs any prejudice to appellant.

       {¶54} Consequently, evidence that appellant molested both sisters under similar

circumstances was admissible in a single trial. Williams, supra, 134 Ohio St.3d 521, 2012-

Ohio-5695, 983 N.E.2d 1278, at ¶ 2; see also, State v. Musgrave, 5th Dist. Stark No. 97–

CA–0135, 1998 WL 818067, *3 (Oct. 26, 1998); State v. Markwell, 5th Dist. Muskingum

No. CT2011–0056, 2012-Ohio-3096, 2012 WL 2613903, supra; State v. Brown, 5th Dist.

Delaware No. 2005CAA010002, 2005-Ohio-5639, 2005 WL 2727129.

       {¶55} We find the trial court did not abuse its discretion in denying appellant's

motion to sever.

       {¶56} We further note evidence of each crime is simple and distinct. The jury was

capable of separating the proof of multiple charges where, as here, the evidence of each

crime is uncomplicated. State v. Hamblin, 37 Ohio St.3d 153, 159, 524 N.E.2d 476 (1988).

Each victim testified separately and the prosecution introduced evidence of each distinct

crime. The jury was evidently able to separate the evidence against each victim upon

each count because appellant was found not guilty of the rape offenses against Jane Doe

and was unable to reach a verdict upon the rape counts against Mary Doe.

       {¶57} We conclude the trial court did not abuse its discretion in overruling the

motion to sever. Appellant's first assignment of error is overruled.


                                            II., III.
Delaware County, Case No. 15CAA100080                                                    17


       {¶58} Appellant’s second and third assignments of error are related and will be

considered together. Appellant argues the trial court erred in excluding evidence of

Robert Flores’ prior conviction and in excluding purported “evidence * * * Flores was

abusing the girls.” We disagree.

       {¶59} The admission or exclusion of relevant evidence is a matter left to the sound

discretion of the trial court. Absent an abuse of discretion resulting in material prejudice

to the defendant, a reviewing court should be reluctant to interfere with a trial court’s

decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).

       {¶60} Appellant argues the trial court erred in several ways with respect to rulings

regarding Flores and his criminal history. We will address each in turn, but we begin by

noting there is no evidence in this record Flores committed the offenses appellant was

charged with. The evidence appellant points to consists of the testimony of his family

members which premised upon rumor, supposition, and innuendo. The sole established

fact against Flores is that he has a 2004 conviction for attempted rape against an adult

female victim described by appellee as an ex-girlfriend.

       {¶61} First, appellant argues the trial court should have called Flores as a court’s

witness “so that the defense could impeach Flores with his prior conviction for attempted

rape and status as a registered sex offender.” (Brief, 24). Ohio Evid. R. 614(A) states

“[t]he court may, on its own motion or at the suggestion of a party, call witnesses, and all

parties are entitled to cross-examine witnesses thus called.”

       {¶62} At the hearing on appellant’s motion, appellant presented evidence Flores

was convicted of attempted rape in 2004 and is a registered sex offender. (Appellee

stated at the hearing that the rape offense involved an adult ex-girlfriend and had no
Delaware County, Case No. 15CAA100080                                                     18


connection at all with the instant case.) Defense trial counsel stated he “assumed” Mother

would have explained Flores’ status as a sex offender to her children and told them to

“mind [ ] themselves” around him. (T. 8/4/2015, 6-7). Counsel argued this assumption is

relevant as follows:

                              One of the questions the jury is likely to ask themselves

                       is why would girls of this age have knowledge of these

                       subjects but for the fact that they engaged in this behavior.

                              This goes to a source of knowledge, your Honor. That

                       conversation would have provided them information about the

                       importance of telling somebody if somebody—if you’re being

                       touched and what the consequences of that are.

                       T. 8/4/2015, 7.

       {¶63} The trial court questioned counsel whether the true purpose of calling Flores

as a court’s witness was to accuse him of being the perpetrator of the abuse against the

girls and pointed out that calling Flores as a witness bore no relationship to the girls’

“knowledge of sex abuse.” The following conversation took place:

                              [DEFENSE COUNSEL:] * * * *.

                              We’ll be able to essentially impeach his testimony

              extrinsically just through knowledge of other people, and that goes

              to his believability when I do ask him that ultimate question.

                              Are you the person that did this and he says, no, if he’s

              lied about six other things, Judge, the jury’s going to have the

              opportunity to weigh that.
Delaware County, Case No. 15CAA100080                                                    19


                            And I think that’s an important factor for them to weigh

              when there’s a man who’s been sleeping in the same house, taking

              care of these girls for at least six weeks, and really longer than that,

              he’s been a part of their lives for 11 months, he was their primary

              caregiver for six weeks.

                            With that much interaction with the girls immediately

              before these allegations, I think that’s an important piece for the jury

              to know.

                            * * * *.

              THE COURT: So do you have any good-faith basis to believe that he

     molested these girls or are you just putting him on the stand as a strawman out

     there?

              [DEFENSE COUNSEL:] He’s not a strawman, sir. But he has—he’s—he

     is the change in the girls’ lives.       That’s my good-faith basis is that almost

     immediately prior to these allegations coming out is when he’s the person that

     starts babysitting them.

              [Appellant] had been part of their life for two years, and then six weeks we

     have this happen.

              I have other—I have other witnesses who will testify to change in their

     behavior during that six weeks.

              Do I have any—do I have a video or a confession or statement that says

     he’s the one that did this? No, sir.
Delaware County, Case No. 15CAA100080                                                     20


              But I have—I have quite a bit of other information that really raises some

       red flags, and I think those are red flags that the jury’s entitled to hear and judge

       for themselves.

              * * * *.

       T. 8/4/2015, 16-18.

       {¶64} The trial court deferred ruling upon the motion to call Flores as a court’s

witness but later denied the motion. The trial court also provisionally granted appellee’s

motion in limine prohibiting mention of the attempted rape conviction. (T. I., 19-21.)

       {¶65} Flores’ criminal conviction is not relevant and cross-examination of him in

an attempt to paint him as the perpetrator of the crimes is not within the parameters of

Evid.R. 614(A). “A trial court possesses the authority in the exercise of sound discretion

to call individuals as witnesses of the court.” State v. Arnold, 189 Ohio App.3d 507, 2010-

Ohio-5379, 939 N.E.2d 218, ¶ 44 (2nd Dist.), citing State v. Adams, 62 Ohio St.2d 151,

404 N.E.2d 144 (1980), paragraph four of the syllabus. “[L]imitations on the application

of a rule like Evid.R. 614 reflect a concern that its cross-examination provision not swallow

up the fundamental requirement imposed by Evid.R. 402 that in order to be admissible,

evidence of a court's witness must be relevant; that is, the evidence must have ‘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.’” Id.

at ¶ 47, citing Evid.R. 401.

       {¶66} In this case, the trial court’s decision to disallow Flores as a court’s witness

is not an abuse of discretion. The attenuated reason appellant cited for calling Flores as

a witness (that Mother may have spoken to the girls about his past, thereby explaining
Delaware County, Case No. 15CAA100080                                                   21


how the girls are aware of sexual abuse terms) has no “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.” Arnold, supra, 2010-Ohio-5379 at ¶ 47.

The trial court noted appellant’s underlying purpose was to cast Flores as a “strawman”

alternate suspect, and counsel could cite no reason supporting a good-faith belief that

Flores was a credible alternate suspect. Appellant argues the defense theory was that

the victims were afraid to go home to Mother’s house because they were alone with Flores

there and he abused them, “like Mother’s previous boyfriends,” but Mother would not

believe them. Thus they made false allegations against appellant to gain Mother’s

“attention, sympathy, and protection.” This theory is not supported by the evidence at

trial.

         {¶67} Appellant further argues he should have been permitted to introduce

“evidence Flores was abusing the girls.” In support of this unsubstantiated allegation,

appellant points to his proffer of evidence at sentencing which consists of an affidavit of

an adult trial witness stating she was sexually assaulted by Flores; an affidavit by

Grandmother stating Jane Doe told her Flores spanked her and Mother lies; and an

affidavit of Aunt stating she told D.J.F.S. she believed Flores “was the perpetrator

because he is a convicted sex offender, another young lady had disclosed a sexual

assault to me in which he was the perpetrator and the children’s behavior around him

appears frightened.”

         {¶68} This “evidence” does not support appellant’s allegation Flores perpetrated

the acts of abuse appellant was charged with committing, nor is such “evidence”

admissible at appellant’s trial. We note appellant cites no evidentiary basis upon which
Delaware County, Case No. 15CAA100080                                                      22


the information contained in the affidavits would be admissible. The trial court did not

abuse its discretion in disallowing any of the cited “evidence” at trial.

       {¶69} Appellant’s second and third assignments of error are overruled.

                                               IV., V.

       {¶70} In his fourth and fifth assignments of error, appellant argues he received

ineffective assistance of trial counsel. We disagree.

       {¶71} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,

“a court must indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158

(1955).

       {¶72} “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

       {¶73} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.
Delaware County, Case No. 15CAA100080                                                    23


       {¶74} Appellant argues trial counsel was ineffective in failing to renew the

argument to sever the counts at the close of all of the evidence. Appellant moved to sever

prior to trial but did not renew the motion at the close of the appellee’s case and at the

conclusion of all evidence. Some Ohio courts have held a failure to renew a motion to

sever constitutes a waiver. State v. Musgrave, 5th Dist. Stark No. 97-CA-0135, 1998 WL

818067, *2 (Oct. 26, 1998). However, we generally prefer to address this claim on its

merits as we have done here. Id. Appellant has thus failed to demonstrate that he was

prejudiced by counsel’s failure to renew the motion. See, State v. Hamblin, 37 Ohio St.3d

153, 524 N.E.2d 476 (1988).

       {¶75} Appellant further argues trial counsel was ineffective in failing to raise the

“evidence” described in the proffer earlier in the trial, particularly the claim that Flores

allegedly sexually assaulted an adult. Appellant offers no explanation how this evidence

would have been admissible during the adult witness’ testimony. As we discussed supra,

this “evidence” is not relevant or admissible. We thus fail to see how counsel could have

approached introduction of the claims any differently.

       {¶76} Appellant has not demonstrated ineffective assistance of trial counsel.

Assignments of error numbers four and five are overruled.

                                              VI.

       {¶77} In his sixth assignment of error, appellant claims cumulative errors in his

trial deprived him of a fair trial. We disagree.

       {¶78} In State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995), the Ohio

Supreme Court held pursuant to the cumulative error doctrine “a conviction will be

reversed where the cumulative effect of errors in a trial deprives a defendant of the
Delaware County, Case No. 15CAA100080                                                  24


constitutional right to a fair trial even though each of numerous instances of trial court

error does not individually constitute cause for reversal.”

       {¶79} In the instant case, we do not find multiple instances of harmless error

triggering the cumulative error doctrine, and appellant's sixth assignment of error is

therefore overruled. State v. Scott, 5th Dist. Richland No. 11CA80, 2012-Ohio-3482, ¶

76.

                                      CONCLUSION

       {¶80} Appellant’s six assignments of error are overruled and the judgment of the

Delaware County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J.

Baldwin, J., concur.
