[Cite as State v. Short, 2015-Ohio-3183.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                         Plaintiff-Appellant   :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. 14CA67
CHRISTOPHER L. SHORT                           :
                                               :
                      Defendant-Appellee       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case No.
                                                   2012CR0429 R


JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            August 6, 2015



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant


JOHN NIEFT                                         RANDALL FRY
38 South Park Street                               10 West Newlon Place
Mansfield, OH 44902                                Mansfield, OH 44902
[Cite as State v. Short, 2015-Ohio-3183.]


Gwin, P.J.

        {¶1} Defendant-appellant            Christopher   Short   [“Short”]   appeals   from   his

convictions and sentences after a jury trial in the Richland County Court of Common

Pleas on one count of rape and four counts of domestic violence.

                                   FACTS AND PROCEDURAL HISTORY

        INTRODUCTION.

        {¶2} Short was indicted in two cases. Upon motion of the state,                 which the

defense did not oppose, on July 3, 2014 the Court ordered in the interest of Judicial

Economy, Case No; 2012-CR-0429 and Case No: 2014-CR-0200 be joined and tried

together.

        {¶3} On August 13, 2012, Short, was indicted by the Richland County Grand

Jury for his criminal acts against A.S. on July 1, 2012. In Case No: 2012-CR-0429,

Short was charged on two counts. The first count is Rape a felony of the second degree

pursuant to R.C. 2907.02(A)(2). In Count 2, Short was charged with Domestic Violence,

a felony of the fourth degree pursuant to R. C. 2919.25(A)(D)(3). The victim in this case

was A. S. The jury found Short guilty on both counts.

        {¶4} On April 4, 2014, Short was indicted by the Richland County Grand Jury for

criminal acts against B.S. In Case No: 2014-CR-0200, Short was charged with seven

counts of Domestic Violence.

        {¶5} For his acts on January 1 to January 31, 2013, Short was indicted in Count

1 or Domestic Violence in violation of R.C. 2919.25(A), with two prior Domestic Violence

convictions, a felony of the third degree. For his acts between June 1 and June 30,

2013, Short was indicted in Count 2 with Domestic Violence in violation of R.C.
Richland County, Case No. 14CA67                                                         3


2919.25(A), with two prior Domestic Violence convictions, a felony of the third degree.

For his acts on March 2, 2014, Short was indicted with three counts, Counts 3, 4, and 5

with Domestic Violence in violation of R.C. 2919.25(A), with two prior Domestic Violence

convictions, felonies of the third degree. Counts 6 and 7 Short was indicted with

Domestic Violence Threats in violation of R.C. 2919.25(C), with two prior offenses,

misdemeanors of the first degree. In Counts 8 and 9 Short was indicted with Rape in

violation of R.C. 2907.02(02), felonies of the first degree. In Count 10 Short was indicted

for Abduction in violation of R.C. 2905.02(A)(2), a felony of the third degree.

       {¶6} The jury found Short “Not Guilty” on Counts 1, 2, 3, and 4 all Domestic

Violence, felonies of the third degree. The jury found Short “Guilty” on Count 5,

Domestic Violence, a felony of the third degree. On Count 6, the jury found the Short

“Guilty” of Domestic Violence, a misdemeanor of the first degree. On Count 7, the jury

found Short “Guilty” of Domestic Violence a misdemeanor of the first degree. The jury

found Short “Not Guilty” on Counts 8 and 9, both counts being Rape, a felony of the first

degree. The jury found Short “Not Guilty” on Count 10, Abduction, a felony of the third

degree

       {¶7} The trial court sentenced Short on July 15, 2014. He was found to be a tier

III sex offender and ordered to serve a total of 13.5 years of incarceration.

       CASE NO. 2012-CR-0429 – JULY 1, 2012 – A.S.

       {¶8} Short was married to A.S. in 2008. In February 2010, Short had a domestic

violence incident with A.S. Short eventually pleaded guilty to this as a misdemeanor

domestic violence.
Richland County, Case No. 14CA67                                                       4


       {¶9}    During 2009 and 2010, B.S. worked with Short and A.S. at School

Specialty, a factory making school supplies. B.S. was friends with the couple during her

employment there. However, they grew apart when Short asked B.S. for nude photos

one night during drinking. Shortly after that, Short and B.S. were laid off and A.S. took

another job.

       {¶10} In May of 2012, Short found B.S. on Facebook and contacted her. Things

developed and they began to have an extramarital affair. This affair was discovered by

A.S. Short and A.S. separated in mid-June. The two began sharing the house on

alternating days. One night, A.S. would be home at night with their daughter, the next

night A.S. would leave and Short would be home with their daughter. During this period,

Short continued his affair with B.S.

       {¶11} On June 30, 2012, Short and B.S. devised a plan to see if A.S. had B.S.'s

car keyed. Short planned to text A.S. and eventually meet with her and convince A.S.

that he had broken up with B.S. After that, Short would attempt to get A.S. to admit to

having someone key B.S.'s vehicle.

       {¶12} On July 1, 2012, Short texted A.S. asking to come to the house. A.S. told

him not to come to their home. Nonetheless, after A.S. had put their child to bed, Short

arrived knocking at the back glass door. A.S. opened the door and spoke to Short. She

found him to be drunk but in a good mood, so she let him in to talk. Short stated that he

had broken up with B.S. and wanted to get back together with A.S. Short then called

B.S. and purported to break up with B.S. in front of A.S. A.S. took the phone from Short

and yelled at B.S. that she had succeeded in keeping her husband.
Richland County, Case No. 14CA67                                                        5


         {¶13} After hanging up the phone, A.S. told Short that she was not back with him

and she was not going to have sex with him. A.S. merely wanted to hurt B.S. and

wanted Short to choose her; she had no interest in patching up her relationship with

Short.

         {¶14} Short came over to the couch A.S. was sitting on and told her they would

have sex. A.S. refused and Short yanked off A.S.'s pajama pants and began to stick

fingers in her vagina. A.S. began to kick Short and tried to push him off, but he held her

down. Short then attempted to perform oral sex on A.S., but she pulled away and fell to

the floor. A.S. attempted to stand, but Short was behind her and put his arms around

her neck, choking her. A.S. began to black out and heard a popping sound in her neck.

Short stated that he would kill A.S. if she did not have sex with him. A.S. then stopped

fighting back, but still told Short to stop. Short forced A.S. to perform oral sex on him,

stated that he is raping A.S. and will ejaculate in her mouth to not leave any evidence.

A.S. was gagging and could not breathe. Short then vaginally penetrated A.S.

         {¶15} Short wanted to go to the bedroom and complete copulation. A.S. initially

denied but agreed to go for fear of her life. On the way there, A.S. asked to get a glass

of water from the kitchen. When A.S. had gotten far enough away from Short, she fled

out the sliding glass doors in only a shirt.

         {¶16} The next-door neighbor was not home, so A.S. fled to the next neighbor

over, David Willis. A.S. knocked on the door until Mr. Willis answered. A.S. was

hysterical and wearing nothing but a grey shirt. A.S.'s hair was messed up, she was

crying, and her face was red. A.S. requested that Mr. Willis call 9-1-1 because Short

had just hit her, choked her, and potentially raped her. He did so and gave her
Richland County, Case No. 14CA67                                                          6


sweatpants to wear. A.S. reported that she was abused and raped on the 9-1-1 call.

During this time, Short got into his vehicle and fled.

       {¶17} A.S. went back to her house accompanied by Mr. Willis. Officers Jeffrey

Gillis and Larry Schacherer from the Mansfield Police Department arrived on the scene

within 10 minutes. They took statements from A.S. and Mr. Willis. They collected a

domestic violence packet from A.S., which included an affidavit where A.S. told them

that Short choked her and raped her. They did not notice any visible injuries during this

interview.

       {¶18} A.S. reported to SANE Nurse Elaine Siewert similar information that she

had provided to the police officers. A SANE exam was performed and Nurse Siewert

noted injuries to A.S.'s neck and back. She further noted A.S. reported pain in her neck,

back, left wrist, and left cheek. Redness was seen in and around the vagina, which

showed blunt force trauma in that area. DNA swabs were collected from the vaginal

region of A.S. There were no bruises noted at the time. Officer Gillis took photographs

of the injuries of A.S. at the hospital.

       {¶19} Short was arrested by Lexington Police Department in the home of his

mother that night. When being transported to the jail Short commented to Officer

Schacherer that, "I [Short] read where a lot of people have been charged with rape but

nobody ever gets convicted with it.” Short initially told officers that he was not at A.S.'s

house that day, then he changed his story to having been there earlier in the day and no

sex occurred. Short then he changed his story to he and A.S. had consensual sex at

around 4:00 p.m. Short’s injuries were photographed by Office Schacherer. Short had
Richland County, Case No. 14CA67                                                         7


bite marks on his arm. Short explained these marks as rough play with his friends at the

lake. When Short ultimately testified at trial, he stated that all of these were lies.

       {¶20} The following day, A.S. texted B.S. In these texts, A.S. told B.S. what had

occurred, namely that the Short had choked her until she blacked out and forced her to

have sex with him with threats of death.

       {¶21} The DNA collected for the SANE exam was analyzed. There was no

semen present on the oral, anal, or vaginal swab. However, on the swab of A.S.'s right

breast, there was DNA of Short and A.S.

       {¶22} Short was released on bond and began living at his mother's house in

Lexington, Ohio. He continued to see B.S. Short was divorced from A.S. and he

became engaged to B.S. on December 4, 2012.

       CASE NO. 2014-CR-0200 – JANUARY 2013 THROUGH MARCH 2014 – B.S.

       {¶23} In January 2013, Short became violent with B.S. during a sexual encounter

in his vehicle. B.S. was performing oral sex on Short when he struck her in the back of

her head and he grabbed her hair very roughly, stating that she would be bald when he

was done with her. He eventually threw her glasses out of the vehicle. B.S. did not

originally report this incident because she loved Short at the time and believed him

when he apologized later.

       {¶24} In June 2013, Short again became abusive with B.S. Short requested sex

from B.S. and she declined. Short took her glasses and started hitting her. B.S. ran to

the kitchen and she grabbed what she thought was a knife, but was really an icing

spatula. Short came at her, took the spatula, and began hitting her on the top of the

head with a closed fist. Short’s mother then came downstairs and told Short to stop.
Richland County, Case No. 14CA67                                                       8


B.S. fled to a gas station. B.S. did not report this incident because of Short’s pending

charge involving A.S.

       {¶25} B.S. testified that the abusive relationship with Short grew over time and

she became more and more afraid of him. She stated that she made three statements

over the pendency of the 2012 case to attempt to assist Short in his defense. Each of

these statements were at Short’s direction and were made to appease him. These

statements were largely based solely on what Short told B.S. and were untrue as far as

she knew.

       {¶26} On March 1, 2014, B.S. was driving to Wal-Mart with Short. Short became

angry with B.S., took out the car keys, and began sawing at her fingers with the keys.

Later that night, while B.S. was staying the night with Short, Short wanted sex from B.S.

and she refused. Short, grabbed her stomach and twisted it painfully. Both then fell

asleep for a short time. About two hours later, Short awakened B.S. demanding sex.

B.S. again refused and Short wrenched B.S.'s legs apart and stated she was his wife

and he could have sex with her whether she wanted to or not. B.S. began crying but

decided to allow the intercourse. Short went from vaginal sex to penetrating B.S. anally.

When he did so, B.S. screamed out in pain. Short covered B.S.'s mouth and began

choking her to gag her screams so his mother would not hear. Short told B.S. that she

was dead when he was choking her. Short eventually ejaculated in B.S.'s anus and then

went to sleep. B.S. lay awake crying, but eventually fell asleep.

       {¶27} The next morning, B.S. wanted to leave but could not find a time to escape.

Short requested sex from B.S. again, which she again denied. Short then proceeded to

hit her on the hip five to seven times, causing injuries to B.S. Short claimed he would
Richland County, Case No. 14CA67                                                        9


stop hitting B.S. when she is right. Short then went to the bathroom. B.S. took the

opportunity to flee the house. She initially went to the Lexington Police Department, but

decided not to wait to be helped for fear that Short would find her, so she left.

       {¶28} Short proceeded over the next two days to text and call B.S. He was

begging B.S. to talk to him and that he was very sorry. B.S. met with Short in public.

She spoke to Short from her vehicle with the doors locked and the window cracked.

B.S. recorded the conversation with her phone, which was played for the jury. That

conversation had Short apologize profusely and guaranteeing that he will change.

       {¶29} On Monday morning, B.S. went to get a civil protection order, which she

secured by noon. B.S. then went to Lexington Police Station, met with officers, and

reported the recent incident. B.S. saw a doctor because her organs were tender, and he

noted some injuries. B.S. was not informed to do a SANE exam until later, which she

completed that Wednesday.

       {¶30} At the SANE exam, some bruising was noted and recorded. There was

diffuse redness on her cervical os and scant bloody drainage noted. Following the

SANE exam, B.S. met with another Lexington Police Officer to report the rape, as they

had not noticed she complained of both domestic violence and rape previously.

       SHORT TESTIFIES AT TRIAL.

       {¶31} Short testified in this case. He admitted to both of his prior domestic

violence convictions in 2004 and 2010. Short claimed, regarding the 2012 incident with

A.S., that A.S. let him in the front door and that they had consensual sex after the phone

call with B.S. During the sex, when they were going to the bedroom, A.S. went to the

glass door, smiled at him mischievously, and left. Smith then drove to his mother's
Richland County, Case No. 14CA67                                                        10


house. Short denied the allegations of domestic violence and rape that night. Short did

state that he was scared when he was arrested that night, so he lied in his statement to

officers.

       {¶32} Short denied the allegations of physical and sexual abuse against B.S.

Short denied that he and B.S. had sex the night of March 1 to March 2, 2014. Short

stated that she smacked B.S.'s thigh playfully on March 2, 2014.

       {¶33} Generally, Short testified at trial that both A.S. and B.S. injured themselves

so that they could create false charges of domestic violence and rape against him.

       SENTENCE.

       {¶34} On July 15, 2014, Short was sentenced in Case No: 2012-CR-0429, to the

Ohio State prison system on Count 1 for a mandatory nine years and Count 2, eighteen

months. The trial court ordered the sentences to be served consecutive to each other

and also consecutive to his sentence in Case No. 2014-CR-0200. Short was also found

to be a tier three sex offender.

       {¶35} In Case No. 2014-CR-0200, Short was sentenced to the Ohio State prison

system on Count 5 for three years, and on Count 6 for 6 months in the Richland County

Jail, the Court merged Count 7 with Count 6.

       {¶36} The Court in the Sentencing Entry shows that Counts 5 and 6 are to run

concurrent to each other. Count 5 is to run consecutively with Case No: 2012-CR-0429

for a total sentence of thirteen and one-half years in prison. This Sentencing includes

three years of mandatory post release control.

                                      Assignment of Error

       {¶37} Short raises one assignment of error,
Richland County, Case No. 14CA67                                                          11


       {¶38} “I. THE APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS THE TRIAL COUNSEL DID

NOT OBJECT TO THE MOTION OF JOINDER FILED BY THE APPELLEE.”

                                             Analysis

       {¶39} In his sole assignment of error, Short argues that his trial counsel was

ineffective for failing to object to the state's motion for joinder of Case No. 2012-CR-

0429 involving A.S. that had occurred in 2012 and Case No. 2014-CR-0200 that

involved B.S. and had occurred in 2013-2014.

       {¶40} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122

L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).

       {¶41} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both the deficient performance and prejudice prongs of Strickland and

Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d

251(2009).

       {¶42} Recently, the United States Supreme Court discussed the prejudice prong

of the Strickland test,

             With respect to prejudice, a challenger must demonstrate “a

       reasonable probability that, but for counsel’s unprofessional errors, the
Richland County, Case No. 14CA67                                                          12


      result of the proceeding would have been different. A reasonable

      probability is a probability sufficient to undermine confidence in the

      outcome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that the

      errors had some conceivable effect on the outcome of the proceeding.”

      Id., at 693, 104 S.Ct. 2052. Counsel’s errors must be “so serious as to

      deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at

      687, 104 S.Ct. 2052.

            “Surmounting Strickland’s high bar is never an easy task.” Padilla v.

      Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284

      (2010). An ineffective-assistance claim can function as a way to escape

      rules of waiver and forfeiture and raise issues not presented at trial, and

      so the Strickland standard must be applied with scrupulous care, lest

      “intrusive post-trial inquiry” threaten the integrity of the very adversary

      process the right to counsel is meant to serve. Strickland, 466 U.S., at

      689–690, 104 S.Ct. 2052. Even under de novo review, the standard for

      judging counsel’s representation is a most deferential one. Unlike a later

      reviewing court, the attorney observed the relevant proceedings, knew of

      materials outside the record, and interacted with the client, with opposing

      counsel, and with the judge. It is “all too tempting” to “second-guess

      counsel’s assistance after conviction or adverse sentence.” Id., at 689,

      104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843,

      152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113

      S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney’s
Richland County, Case No. 14CA67                                                        13


       representation amounted to incompetence under “prevailing professional

       norms,” not whether it deviated from best practices or most common

       custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.

Harrington v. Richter, __U.S.__, 131 S.Ct. 770, 777-778, 178 L.Ed.2d 624(2011).

       {¶43} In cases involving a failure to make a motion on behalf of the defendant or

oppose a motion by the state, a defendant is required to: (1) show that the motion or

opposition thereto was meritorious, and (2) show that there was a reasonable

probability that the verdict would have been different had the motion been made or

opposed. State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798(2001); State v. Lott, 51

Ohio St.3d 160, 555 N.E.2d 293(1990).

       Joinder.

       {¶44} 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). Nonetheless, if it appears that a

criminal defendant would be prejudiced by such joinder, then the trial court is required to

order separate trials. Crim.R. 14.

       {¶45} When a defendant claims that he or she was prejudiced by the joinder of

multiple offenses, the court must determine (1) whether evidence of the other crimes

would be admissible even if the counts were severed; and (2) if not, whether the

evidence of each crime is simple and distinct. 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). "If the evidence of

other crimes would be admissible at separate trials, any 'prejudice that might result from
Richland County, Case No. 14CA67                                                       14


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, quoting Drew v. United States, 331 F.2d at 90.

       {¶46} In the case at bar, the state argues the evidence of each offense would

have been admissible at separate trials pursuant to Evid.R. 404(B). 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.

       Other Acts.

       {¶47} In discussing the dangers associated with admitting other acts evidence in

a case where the offenses included several counts of rape and gross sexual imposition,

the Schaim court stated:

             The admissibility of other acts evidence is carefully limited because

       of the substantial danger that the 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. * * * This danger is

       particularly high when the other acts are very similar to the charged

       offense, or of an inflammatory nature, as is certainly true in this case. The

       legislature has recognized the problems raised by the admission of other

       acts evidence in prosecutions for sexual offenses, and has carefully

       limited the circumstances in which evidence of the defendant's other

       sexual activity is admissible. The forcible rape statute and the gross

       sexual imposition statute both contain subsections that address the
Richland County, Case No. 14CA67                                                        15


      admissibility of evidence of other sexual activity by either the victim or the

      defendant. * * *

65 Ohio St.3d at 59-60, 600 N.E.2d 661.

      {¶48} The legislature has recognized the problems raised by the admission of

other acts evidence in prosecutions for sexual offenses, and has carefully limited the

circumstances in which evidence of the defendant's other sexual activity is admissible.

The rape statute and the gross sexual imposition statute both contain subsections that

address the admissibility of evidence of other sexual activity by either the victim or the

defendant. Schaim, supra. (Footnotes omitted). Because of the severe social stigma

attached to crimes of sexual assault and child molestation, evidence of these past acts

poses a higher risk, on the whole, of influencing the jury to punish the defendant for the

similar act rather than the charged act. Accordingly, the state may not “parade past the

jury a litany of potentially prejudicial similar acts that have been established or

connected to the defendant only by unsubstantiated innuendo.” Huddleston v. United

States, 485 U.S. 681, 689, 108 S.Ct. 1496, 99 L.Ed.2d 771(1988).

      {¶49} Evidence of other acts is admissible if (1) there is substantial proof that the

alleged other acts were committed by the defendant, and (2) the evidence tends to

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

mistake or accident. State v. Carter, 26 Ohio St.2d 79, 83, 269 N.E.2d 115, 117(1971);

State v. Lowe, 69 Ohio St.3d 527, 530, 1994-Ohio-345, 634 N.E.2d 616, 619. (Citing

State v. Broom, 40 Ohio St.3d 277, 282-283, 533 N.E.2d 682, 690-691(1988); Evid.R.

404(B); R.C. 2945.59.
Richland County, Case No. 14CA67                                                        16


       {¶50} Further, the prior act must not be too remote and must be closely related in

nature, time, and place to the offense charged. Schaim, 65 Ohio St.3d at 60, 600

N.E.2d at 669. A prior act which is “ * * * too distant in time or too removed in method or

type has no permissible probative value.” State v. Snowden, 49 Ohio App.2d 7, 10, 359

N.E.2d 87, 91(1st Dist. 1976); State v. Burson, 38 Ohio St.2d 157, 159, 67 O.O.2d 174,

175, 311 N.E.2d 526, 529(1974).

       {¶51} Whether Short committed a crime is the crux of the dispute. If a crime did in

fact occur, no dispute exists that Short was the perpetrator. In other words, no dispute

exists as to identity. As the identity of the person who raped and abused A.S. and B.S.

was not an issue at trial, the other acts are not properly admitted to prove the Short’s

scheme, plan, or system in committing the crimes charged. See, State v. Curry, 43 Ohio

St.2d 66, 330 N.E.2d 720(1975); State v. Miley, 5th Dist. Richland Nos. 2005-CA-67,

2006-CA-14, 2006-Ohio-4670, ¶73. However, the Supreme Court has subsequently

limited this holding,

             Pursuant to Evid.R. 404(B), * * * evidence of other crimes, wrongs,

       or acts of an accused may be admissible to prove intent or plan, 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).

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

evidence:
Richland County, Case No. 14CA67                                                        17


         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, 526, 2012-Ohio-5695, 983 N.E.2d 1278, 1283, ¶

20 (2012).

      {¶53} The circumstances surrounding each rape and each incident of domestic

violence in this case are relevant in making it more likely Short had sex with an unwilling

victim by using physical violence and or threats. The evidence pertaining to each

offense does have the tendency to prove Short engaged in a similar plan or method of

conduct with both victims and to prove his motive, intent, or plan. The immediate

similarity between the charges in both cases is a request for sex that is denied,

violence, threats of violence and forced sexual conduct. Both assaults have further

similarities: Short held his hand over the victims’ mouths, chocked them and later

apologized to them.

      {¶54} The third step in the analysis is whether the probative value of each

incident is outweighed by the prejudice risked in its admission. Unfair prejudice is that
Richland County, Case No. 14CA67                                                         18

quality of evidence that might result in an improper basis for a jury decision. State v.

Crotts, 104 Ohio St.3d 432, 2004-Ohio-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).

      {¶55} We note the trial court gave a limiting instruction that each of the offenses

charged in this case constitutes a separate and distinct matter and that the jury must

consider each charge and the evidence applicable to each charge separately, and then

state their finding as to each charge uninfluenced by your verdict as to any other charge

We presume the jury followed those instructions. See, Williams, supra, 134 Ohio St.3d

521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 23, citing State v. Garner, 74 Ohio St.3d

49, 59, 656 N.E.2d 623 (1995) and Pang v. Minch, 53 Ohio St.3d 186, 195, 559 N.E.2d

1313 (1990). Indeed, in B.S.’s case, Case No 2014-CR-0200, the jury found Short “Not

Guility” on Counts 1, 2, 3, and 4 all Domestic Violence, felonies of the third degree; “Not

Guilty” on Counts 8 and 9, both counts being Rape, a felony of the first degree. The jury

further found Short “Not Guilty” on Count 10, Abduction, a felony of the third degree.

       {¶56} Assuming, arguendo, that the evidence did not fit the "other acts"

exception, it nevertheless fits the second prong of the Schaim test which requires the

evidence of the crime under each indictment to be simple and distinct. 65 Ohio St.3d at

59. In State v. Decker, 88 Ohio App.3d 544, 624 N.E.2d 350(1st Dist. 1993), the court

found that the evidence was simple and distinct. The evidence achieved these

characteristics in part because the crimes involved contained different victims and
Richland County, Case No. 14CA67                                                         19


different witnesses, and therefore, the jury was able to segregate the facts that

constituted each crime. Decker, 88 Ohio App.3d at 549.

       {¶57} In this case, the prosecution introduced evidence of each distinct crime.

Both A.S. and B.S. testified at length and in specific detail about how the abuse

occurred, when it began, and how long it continued. 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. As previously noted, the jury found Short “Not Guility” of seven

counts in the case involving B.S.

       {¶58} Thus, as in Decker, the evidence was simple and distinct because the facts

surrounding each crime were capable of segregation.

       {¶59} Accordingly, because Short was not able to demonstrate that he was

prejudiced by the joinder of the cases, he cannot meet the first element of the Schaim

test. Therefore, we do not need to address the remaining elements of the test.

       {¶60} Given the facts sub judice, we find that counsel was not ineffective in failing

to file a motion to sever the cases.

       {¶61} Short’s sole assignment of error is overruled.
Richland County, Case No. 14CA67                                                 20


      {¶62} The judgment of the Richland County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Wise, J., and

Delaney, J., concur
