         [Cite as State v. Sellers, 2015-Ohio-4843.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                         :   APPEAL NO. C-140655
                                                           TRIAL NO. B-1100989
        Plaintiff-Appellee,                            :

  vs.                                                  :      O P I N I O N.

TIMOTHY SELLERS,                                       :

    Defendant-Appellant.                               :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 25, 2015


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna for Defendant-Appellant.




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



S TAUTBERG , Judge.

       {¶1}    Following a bench trial, defendant-appellant Timothy Sellers was

found guilty of the 1990 aggravated murder of Lillian Curtis.         The trial court

sentenced him to life in prison, with parole eligibility after 20 years. This appeal

followed.

                               The Lillian Curtis Murder

       {¶2}    In 1990, 51-year-old Curtis was found dead on the fifth floor of an

abandoned building that was located in the Over-the-Rhine neighborhood of

Cincinnati. Police officer Kerry Rowland was one of the officers who had responded

to the scene of Curtis’s death in 1990. At Sellers’s 2014 trial, Rowland testified that

Curtis’s body was found lying on the floor of a gutted room in an abandoned

building, and that it appeared as if Curtis’s pants had been forcibly removed, because

one of her pant legs was off, and the other still on. The lower half of Curtis’s body

was partially exposed, and her underwear was blood-soaked.          Rowland recalled

seeing two cigarette butts lying close to Curtis’s body. Rowland testified that the

cigarette butts were collected as evidence.

       {¶3}    Rowland further testified that in 1990 Sellers had been the primary

suspect in this case. Rowland interviewed Sellers at that time. Sellers denied any

involvement, and offered police an alibi. Rowland testified that Sellers’s alibi proved

to be false.

       {¶4}    An autopsy later revealed that Curtis had been raped before dying

from injuries she sustained from blunt force trauma to her head. Curtis’s death was

ruled a homicide. The deputy coroner who conducted the autopsy, Amy Martin, was

unable to detect the presence of any semen on Curtis, but vaginal swabs were taken




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from Curtis’s body and saved as evidence in a freezer at the Hamilton County

Coroner’s lab.

       {¶5}      No one was charged in 1990 in connection with Curtis’s death.

                               The Pauline Dunkman Case

       {¶6}      Approximately six weeks after Curtis was found dead, Rowland

became involved in the investigation of the death of a 63-year-old woman named

Pauline Dunkman. Dunkman was found by police early one morning, unclothed and

wandering down a street. She had feces smeared on her, and she was bleeding.

Dunkman had been anally and vaginally raped. She suffered extensive physical

trauma as a result. Dunkman subsequently died of an infection stemming from the

wounds that she had sustained from the rape.

       {¶7}      Sellers was questioned regarding the incident and initially denied

involvement and denied knowing who Dunkman was. He offered police a false alibi.

However, after being confronted with fingerprint evidence placing him at the scene,

Sellers confessed to police that he had had sexual intercourse with Dunkman, but

that he had become frightened and left when she had started bleeding. Sellers was

eventually convicted of rape and involuntary manslaughter in connection with

Dunkman’s death.

                                 A Cold Case is Reopened

       {¶8}      Due to advances in technology, Joan Burke, a serologist and DNA

analyst from the Hamilton County Coroner’s Office, was able to extract a DNA

sample from sperm cells found on Curtis’s vaginal swabs in 2002. She entered the

profile into the Combined DNA Indexing System (“CODIS”). In 2010, in connection

with a different matter, Burke received and processed a DNA sample from Sellers. It

matched the DNA found on Curtis’s vaginal swabs. It also matched DNA found on



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one of the cigarette butts recovered from the scene of the crime.        Sellers was

subsequently indicted for aggravated murder.

                                          The 2014 Trial

       {¶9}    At Sellers’s trial, Rowland testified in great detail concerning the

Dunkman case over defense counsel’s objection.         The state also presented the

testimony of Burke, who testified the DNA from the sperm cells found on Curtis’s

vaginal swabs matched Sellers’s DNA sample, as did DNA that Burke extracted off of

one of the cigarette butts that had been found close to Curtis’s body at the scene of

the crime in 1990.

       {¶10} The state also submitted to the trial court the deposition testimony of

Amy Martin, the Assistant Hamilton County Coroner who had pronounced Curtis

dead at the scene, and who had performed Curtis’s autopsy. Martin testified that

Curtis had been raped and then died from injuries sustained by blunt force trauma to

the head. She provided the court with graphic details concerning the wounds that

Curtis had sustained. Martin had also performed an autopsy on Dunkman, and

testified in graphic detail concerning wounds to Dunkman’s vaginal and anal regions.

According to Martin, Dunkman died from an infection resulting from her wounds.

                                   Assignments of Error

       {¶11} Sellers raises six assignments of error, several of which were argued

together.

                     Other Acts Evidence and the Dunkman Case

       {¶12} In his first assignment of error, Sellers claims that the trial court

abused its discretion and prejudiced him when it allowed the facts of the Dunkman

case into evidence. Sellers is correct.




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       {¶13} “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.” Evid.R.

404(B); see State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975). There are

multiple reasons for this prohibition. Among them is the concern that an accused

will be convicted of a charge “ ‘merely because he is a person likely to do such acts.’ ”

Curry at 68, quoting Whitty v. State, 34 Wis.2d 278, 292, 149 N.W.2d 557 (1967).

Another concern is “ ‘the confusion of issues which might result from bringing in

evidence of other crimes.’ ” Id.

       {¶14} Under limited circumstances, such evidence may be admissible “as

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

absence of mistake or accident.” Evid.R. 404(B); see R.C. 2945.59. These exceptions

are to be construed against admissibility, and the standard for determining

admissibility is strict. State v. Broom, 40 Ohio St.3d 277, 282, 533 N.E.2d 682

(1988). We review the trial court’s decision to allow “other acts” into evidence under

an abuse-of-discretion standard. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-

2407, 972 N.E.2d 528, syllabus.

       {¶15} Here, the state contends that evidence of Sellers’s other crimes served

as proof of his identity as Curtis’s killer. “ ‘Other acts’ may be introduced to establish

the identity of a perpetrator by showing that he has committed similar crimes and

that a distinct, identifiable scheme, plan, or system was used in the commission of

the charged offense.” State v. Smith, 49 Ohio St.3d 137, 141, 551 N.E.2d 190 (1990).

The “other acts” must be “ ‘so similar to the crime charged and sufficiently

idiosyncratic that it tends to prove the same person committed both acts.’ ” State v.

Kelley, 1st Dist. Hamilton No. C-140112, 2014-Ohio-5565, ¶ 5, quoting State v.

Morris, 2012-Ohio-6151, 985 N.E.2d 274, ¶ 18 (9th Dist.), aff'd, State v. Morris, 141



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Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153; see State v. Lowe, 69 Ohio St.3d

527, 530-31, 634 N.E.2d 616 (1994); State v. Cobia, 1st Dist. Hamilton No. C-

140058, 2015-Ohio-331, ¶ 15-18.

       {¶16} The state argues that the facts of the Dunkman case were properly

admitted to show that Sellers was the perpetrator in the Curtis case, because (1) both

Dunkman and Curtis were substantially older than Sellers, (2) Dunkman and Curtis

were “homeless types” and each frequented bars in the same neighborhood, (3) both

women were viciously raped in vacant buildings a few blocks from each other, (4)

Sellers initially denied involvement in both cases and tried to establish alibis that

later proved false, and (5) each victim died from injuries inflicted by Sellers.

       {¶17} We are not persuaded that the facts are sufficient to fit the exception in

Evid.R. 404(B). First, the record reflects that these women were not both found in

vacant buildings. Curtis was found, dead, in a vacant building. Dunkman was found,

alive, walking down the street after having been raped in an alleyway.             While

Rowland initially testified that the crime scenes were a few blocks apart, upon

further questioning he stated that they were approximately one mile apart. Second,

an element of the crimes at issue—here a death caused by the defendant—in no way

tends to establish identity.     The manner in which each victim died was not

sufficiently idiosyncratic and similar for admissibility under Evid.R. 404(B).

       {¶18} In regard to the nature of the rapes, Martin testified that both Curtis

and Dunkman suffered extensive damage to their vaginas, but Martin also testified

that there was nothing else that would tend to connect the two rapes. Dunkman was

anally and vaginally raped. Curtis was vaginally raped, only. And Martin testified

that there were “differences in the overall patterns of the injuries.”




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       {¶19} Considering the remaining similarities advanced by the state, i.e., that

both women were significantly older than Sellers, that both frequented bars in the

same area, that both were “homeless types,” and that Sellers initially attempted to

establish an alibi in each case, we hold that this is insufficient to establish “a distinct,

identifiable scheme, plan, or system” tending to show identity. Compare State v.

Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 105. In this case,

there was simply nothing sufficiently idiosyncratic about these cases that would tend

to show that the same person was the perpetrator in each.

       {¶20} We therefore hold that the trial court abused its discretion when it

allowed “other acts” testimony concerning the Dunkman case into evidence.

However, given the other evidence of record in the case, we find this error to be

harmless.

       {¶21}    “In determining whether to grant a new trial as a result of the

erroneous admission of evidence under Evid.R. 404(B), an appellate court must

consider both the impact of the offending evidence on the verdict and the strength of

the remaining evidence after the tainted evidence is removed from the record.” State

v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, syllabus.

       {¶22} In this case, the trial court spoke in detail concerning the gruesome

nature of the Dunkman case and compared it to this case immediately before it

announced that it had found Sellers guilty of aggravated murder. We therefore find

that the “other acts” evidence impacted the court’s guilty finding. However, the

balance of the remaining evidence, discussed below, is strong enough to uphold

Sellers’s conviction. Thus, the abuse of discretion in allowing testimony concerning

the Dunkman case is harmless error, and Sellers’s first assignment of error is

overruled.



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          {¶23} In his second assignment of error, Sellers contends that the trial court

abused its discretion when it allowed “other acts” into evidence because, even if this

court were to determine that the evidence was properly admitted, it was unfairly

prejudicial and should have been excluded under Evid.R. 403(A). Resolution of the

first assignment of error renders this one moot. We therefore decline to address it.

See App.R. 12(A)(1)(c).

                        Sufficiency and Weight of the Evidence

          {¶24} In his third and fourth assignments of error, Sellers challenges the

sufficiency and the weight of the evidence, respectively.

          {¶25} In a challenge to the sufficiency of the evidence, the question is

whether after reviewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of the crime

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. In regard to the weight of the evidence, we

review the entire record, weigh the evidence, consider the credibility of the witnesses,

and determine whether the trier of fact clearly lost its way and created a manifest

miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997).

          {¶26} In this case, Burke testified that Sellers’s DNA profile matched the

DNA profile created from semen found on Curtis’s vaginal swabs, and that Sellers’s

DNA also matched DNA extracted from a cigarette butt that had been discovered at

the scene of Curtis’s death, lying close to her body. Martin testified that Curtis had

been raped, and that she had been killed by blunt force trauma to her head. Martin

stated that Curtis had been killed in the abandoned building where her body was

found. This was sufficient evidence to convict Sellers of aggravated murder.



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       {¶27} In regard to the manifest weight of the evidence, Sellers’s defense

centered on a theory that he had had consensual sexual intercourse with Curtis some

time before her death, and that his semen had remained in her body for several days.

Upon a review of the entire record, weighing the evidence presented, and considering

the credibility of the witnesses, we hold that the trial court did not lose its way in

weighing the evidence presented so as to create a manifest miscarriage of justice.

       {¶28} Sellers’s third and fourth assignments of error are overruled.

                                    Motion to Suppress

       {¶29} In his fifth assignment of error, Sellers claims that the trial court erred

when it overruled his motion to suppress statements that he made to Detective

Rowland, because Sellers had not waived his Miranda rights prior to being

questioned.

       {¶30} Sellers was questioned by police multiple times in connection with

Curtis’s death. The only custodial interrogation that occurred without any indication

that Sellers had waived his Miranda rights happened on May 9, 1990. During the

May 9, 1990 interview, Sellers denied involvement in the Curtis case. Sellers told

Rowland that he was willing to give a blood sample and to take a polygraph test to

exonerate himself if necessary.

       {¶31} Before the trial court ruled on Sellers’s motion to suppress, defense

counsel stated on the record that Sellers was not seeking to suppress any statements

that he had made denying involvement. Consequently, any error in the trial court’s

ruling has been waived. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38

N.E.3d 860, ¶ 20.

       {¶32} We overrule Sellers’s fifth assignment of error.




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                                       Jail-Time Credit

       {¶33} In his sixth and final assignment of error, Sellers claims that the trial

court violated his constitutional right to be free from cruel and unusual punishment

when it did not award him days of jail-time credit in this case starting from his

incarceration in 1990 when he was being held on charges in the Dunkman case.

Sellers argues that he would have been indicted in 1990 had the technology existed to

link him to the Curtis murder. He further surmises that the Dunkman and Curtis

cases would have been tried together, and that Sellers would have been sentenced at

the same time for both crimes. Sellers argues that he therefore should receive jail-

time credit starting from the time he was incarcerated on the Dunkman case. In

support of this argument against “cruel and unusual punishment,” Sellers also cites

the Equal Protection Clause “and a sense of fairness through equity.”

       {¶34} Sellers’s argument concerning what may or may not have happened

had Sellers been indicted in 1990 is highly speculative. We cannot decide a case

based upon facts that never occurred. And it is well-settled that jail-time credit

applies only to the time that a defendant was confined arising out of the offense for

which the defendant was convicted and sentenced. See R.C. 2967.191.

       {¶35} Sellers’s sixth assignment of error is overruled.      The trial court’s

judgment is affirmed.

                                                                 Judgment affirmed.
CUNNINGHAM, P.J., and FISCHER, J., concur.


Please note:
       The court has recorded its own entry this date.




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