[Cite as State v. Townsend, 2019-Ohio-1134.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                Plaintiff-Appellee,              :
                                                           No. 107186
                v.                               :

ALBERT TOWNSEND                                  :

                Defendant-Appellant.             :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED IN PART; REVERSED IN
                PART AND REMANDED
                RELEASED AND JOURNALIZED: March 28, 2019


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-17-614508-A


                                           Appearances:

                P. Andrew Baker, for appellant.

                Michael C. O’Malley, Prosecuting Attorney; Melissa Riley
                and Marcus A. Henry, Assistant Prosecuting Attorneys,
                for appellee.


LARRY A. JONES, SR., J.:

                  Defendant-appellant Albert Townsend (“Townsend”) appeals his

convictions for rape, kidnapping, complicity to commit rape, attempted rape, and
gross sexual imposition. For the reasons that follow, we affirm in part, reverse in

part, and remand.

                          Procedural History and Facts

                Townsend was charged in connection with three separate sexual

assaults.    The first incident occurred on or about January 20, 2003; the second

incident occurred between January 1 and February 13, 2005; and the third incident

occurred on or about November 27, 2006. He was charged as follows: Count 1, rape

(victim M.W.); Count 2, rape (victim M.W.); Count 3, complicity to commit rape

(victim M.W.); Count 7, kidnapping (victim M.W.); Count 8, aggravated burglary

(victim C.W.); Count 9, kidnapping (victim C.W.); Count 10, rape (victim C.W.);

Count 11, attempted rape (victim C.W.); Count 12, kidnapping (victim C.W.); Count

13, rape (victim B.G.); Count 14, rape (victim B.G.); Count 15, gross sexual

imposition (victim B.G.); Count 16, kidnapping (victim B.G.).1 Counts 1, 2, 3, 7, 9,

10, 11, 12, 13, 14, 15, and 16 each included a sexually violent predator specification

pursuant to R.C. 2941.148(A). Counts 7, 12, and 16 included a sexual motivation

specification pursuant to R.C. 2941.147(A). Counts 8, 9, 10, 11, 12 included one- and

three-year firearm specifications pursuant to R.C. 2941.141(A) and 2941.145(A).

                Townsend waived his right to an attorney and proceeded to a jury trial

representing himself. The following pertinent evidence was presented at trial.




      1   Counts 4-7 named Townsend’s codefendant, Kris Williams.
              On January 20, 2003, Townsend and codefendant Kris Williams

abducted M.W. on West 52nd Street in Cleveland. They drove M.W. to a house on

West 74th Street where Townsend lived with his wife. Both men sexually assaulted

her; Townsend forced M.W. to have oral and vaginal sexual intercourse and

attempted to have anal intercourse with her. M.W. called police and reported the

assault. She went to MetroHealth Hospital for a rape-kit examination.

              M.W. testified at trial that her attackers were unknown to her and she

was unable to identify them. The case was later investigated by the Cuyahoga

County Prosecutor’s Office Sexual Assault Kit Taskforce. DNA linked Townsend to

the DNA recovered in the rape kit ─ the Ohio Bureau of Criminal Investigation

(“BCI”) notified authorities that Townsend’s and Williams’s DNA were consistent

with two DNA profiles recovered from the rape kit. M.W. testified that she was

unable to identify Townsend as one of her rapists, but stated that she never had

consensual sex with Townsend and the only reason for his DNA to be present was

because he was one of her attackers.

              Townsend testified on his own behalf and denied ever meeting M.W.

Relative to M.W., the jury convicted Townsend of two counts of rape, one count of

complicity to commit rape, and one count of kidnapping with a sexual motivation

specification. The jury found Townsend to be a sexually violent predator on these

counts.

              C.W. testified that she was raped by Townsend in 2005. C.W., who

was only 13 years old at the time of the attack, knew Townsend through her mother.
Townsend told them his name was “Desmond Thomas.” According to C.W., one

night, Townsend broke into her mother’s house, said he had a gun, and forced C.W.

to have sexual intercourse with him. He also attempted another criminal sex act

upon her.

               A month later, C.W. discovered she was pregnant and disclosed to her

mother what had happened.         They reported the assault to the police.      C.W.

terminated her pregnancy and the police were able to get a DNA match by matching

Townsend’s DNA to that of the fetus.

               C.W. and her mother identified Townsend at trial as the person they

knew as Desmond Thomas.

               Townsend testified that he knew C.W. and her mother, but he never

had sexual intercourse with C.W.        He claimed that the DNA samples were

contaminated.

               Relative to C.W., the jury found Townsend guilty of one count of rape,

one count of attempted rape, and one count of kidnapping with a sexual motivation

specification. The jury found that Townsend was a sexually violent predator for

these counts. The jury acquitted Townsend of aggravated burglary, one count of

rape, and all of the firearm specifications regarding this incident.

               On or about November 27, 2006, Townsend assaulted 17-year-old

B.G. and forced her to have sexual intercourse with him and criminally touched her.

               B.G., who lived with Townsend and his wife at the time, underwent a

sexual assault examination and reported to both the police and the examining nurse
that Townsend was her attacker. B.G. did not testify at trial. Townsend testified

that he never touched B.G. In connection with the assault on B.G., the jury convicted

Townsend of two counts of rape and one count of gross sexual imposition, but

acquitted him of kidnapping. The jury further found Townsend to be a sexually

violent predator.

              In sum, the jury convicted Townsend of five counts of rape, two

counts of kidnapping with sexual motivation specifications, and one count each of

complicity to commit rape, attempted rape, and gross sexual imposition. The rape,

complicity, attempted rape and gross sexual imposition convictions were

accompanied by findings that Townsend is a sexually violent predator.

              At the sentencing hearing, the court merged Count 12 with Count 9

and sentenced Townsend as follows: Counts 1, 2, 3, 7, and 11, five years to life in

prison; Counts 9, 13, and 14, 10 years to life in prison; and Count 15, one year in

prison. The court ordered all sentences to run consecutive for a total of 56 years to

life in prison and classified Townsend as a sexual predator.

              Townsend raises eight assignments of error for our review. Further

facts will be discussed under the appropriate assignments of error:

      I.     Defendant-Appellant’s conviction must be reversed because he
             did not knowingly waive his right to counsel.

      II.    The Trial Court erred when it improperly convicted Defendant-
             Appellant when there was judicial bias against him.

      III.   The Trial Court erred when it convicted Defendant-Appellant
             while he was deprived of his right to self-representation.
      IV.    The Trial Court erred when it violated Defendant-Appellant’s
             right to compulsory process.

      V.     The Trial Court erred in convicting Defendant-Appellant when
             convictions as to all allegations involving victim B.G. were
             against the manifest weight of the evidence.

      VI.    The Trial Court erred when it convicted Defendant-Appellant
             on count three when there was a faulty jury instruction.

      VII.   The sexually violent predator specifications as to Counts 1, 2, 3,
             7, 9, 10, and 11 all must be vacated.

      VIII. The convictions for Counts 1 and 2, for Counts 9 and 11, and for
            Counts 13 and 14 should be merged.

                                Law and Analysis

Self-Representation

              In the first assignment of error, Townsend claims that he did not

knowingly waive his right to counsel.

              The Sixth Amendment of the United States Constitution guarantees a

criminal defendant a right to self-representation. State v. Gibson, 45 Ohio St.2d

366, 345 N.E.2d 399 (1976), paragraph one of the syllabus, citing Faretta v.

California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The right of self-

representation, however, is not absolute. Indiana v. Edwards, 554 U.S. 164, 171,

128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). A criminal defendant may proceed pro se

only when the defendant voluntarily, knowingly, and intelligently elects to do so.

Gibson at id., citing Faretta. Thus, when a defendant invokes the right to self-

representation, the trial court must ensure that the defendant knowingly and

intelligently waives his or her right to counsel. Gibson at 377.
                A criminal defendant must also “unequivocally and explicitly invoke”

his or her right to self-representation and the request must be timely made. State v.

Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 38. In Cassano, the

court held that the defendant’s request for self-representation three days before the

trial was untimely. Id. at ¶ 40, citing United States v. Mackovich, 209 F.3d 1227,

1237 (10th Cir.2000) (requests made six to ten days before trial are untimely), and

United States v. George, 56 F.3d 1078, 1084 (9th Cir.1995) (request made on the eve

of trial was untimely).

                The trial court has the discretion to deny a request for self-

representation when it is not unequivocally and timely made. State v. Halder, 8th

Dist. Cuyahoga No. 87974, 2007-Ohio-5940, ¶ 50. A defendant need not have the

skill and experience of a lawyer but he or she must be “made aware of the dangers

and disadvantages of self-representation” so that the record shows that his or her

choice was made “with eyes open.” State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-

5471, 816 N.E.2d 227, ¶ 35. In addition, to be a knowing and intelligent waiver, “such

waiver must be made with an apprehension of the nature of the charges, the

statutory offenses included within them, the range of allowable punishments

thereunder, possible defenses to the charges and circumstances in mitigation

thereof, and all other facts essential to a broad understanding of the whole matter.”

Gibson at id.

                Crim.R. 44 provides that “[w]aiver of counsel shall be in open court

and the advice and waiver shall be recorded as provided in Rule 22. In addition, in
serious offense cases the waiver shall be in writing.” But there is no prescribed

colloquy to establish an effective waiver; the information a defendant must possess

to make an intelligent election ‘“depend[s] on a range of case-specific factors,

including the defendant’s education or sophistication, the complex or easily grasped

nature of the charge, and the stage of the proceeding.’” State v. Johnson, 112 Ohio

St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 101, quoting Iowa v. Tovar, 541

U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004).

               Townsend was initially represented by appointed counsel.        At a

pretrial hearing held on August 18, 2017, Townsend told the court that he was

unhappy that he was not allowed access to discovery that had been marked “counsel

only” and wanted to represent himself. The trial court discussed, at length, what it

would mean for Townsend to proceed pro se and the benefits of having an attorney

represent him. In an abundance of caution, the court referred Townsend to the court

psychiatric clinic to be evaluated “in regards to representing himself pro se for

upcoming trial.” In a report dated October 20, 2017, the evaluating doctor, Jeffrey

Khan, M.D., opined that Townsend “does not have a present mental condition that

causes him to be unable to understand the nature and objectives of the proceedings

against him” and “does not have a present mental condition that interferes with his

ability to represent himself in his case.”

               Dr. Khan based his opinion, in part, on finding that Townsend: (1)

demonstrated an ability to testify relevantly by providing a clear and coherent

account of the alleged offenses and how he would represent himself; (2) could
rationally make decisions about potential pleas; (3) did not possess any delusional

beliefs about self-representation; (4) did not have any self-defeating motivations or

apathy about the outcome of his case; (5) understood the legal resources available

to him; (6) demonstrated he could maintain appropriate courtroom behavior; (7)

had speech and thought processes that were goal directed and easy to follow; and

(8) was able to apprise the likely outcome of his trial, weigh the risks and benefits of

self-representation, and present rational reasoning for his continued desire to

represent himself.

               At a subsequent pretrial hearing, held on October 30, 2017,

Townsend again indicated he wanted to represent himself. Townsend told the court

that he did not want to get “railroaded” by a court-appointed attorney. When asked,

Townsend told the court that he could think of two attorneys he would allow to

represent him but he could not afford to hire either attorney. The court and

Townsend entered into a lengthy colloquy about the serious nature of the criminal

allegations against him, the fact that DNA evidence was involved, and that he was

facing a maximum life sentence.

               The court gave Townsend numerous warnings and asked that he

reconsider before granting his motion to represent himself. After outlining each

charge and potential sentences to Townsend, the trial court stated that it would

allow Townsend to represent himself with the assistance of appointed standby

counsel. Townsend also executed a written waiver form at the October pretrial
hearing, well before trial commenced in April 2018. Thus, Townsend’s request was

timely and clearly made.

               The trial court engaged in an extensive colloquy with Townsend on

more than one occasion and advised him of the nature of the charges, the range of

allowable punishment, possible defenses to the charge and circumstances in

mitigation thereof, and other essential facts. The court explained trial procedures

to Townsend, questioned him regarding his understanding of those procedures, and

advised him that he would be held to the same standards as an attorney. The court

referred Townsend to the court psychiatric clinic, where Townsend underwent a

thorough evaluation and was found to not have a mental condition that would

interfere with his ability to represent himself.

               The court reviewed the written waiver of counsel and intent to

proceed pro se form with Townsend, reading it aloud and asking if he understood it.

Throughout these conversations, Townsend was adamant that he wanted to

represent himself and repeatedly told the judge that he understood the ramifications

of his decision. Based on the record before us, Townsend’s decision was knowingly,

voluntarily, and intelligently made.

               In light of the above, the trial court did not err in granting Townsend’s

request to represent himself. The first assignment of error is overruled.

Trial Court Bias

               In the second assignment of error, Townsend claims that his

convictions should be vacated because the trial court was biased against him.
Specifically, Townsend claims that the trial court sua sponte sustained objections to

his questions and berated Townsend in the presence of the jury.

               In Litecky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127

L.Ed.2d 474 (1994), the United States Supreme Court held that opinions formed by

the judge on the basis of facts introduced or events occurring in the course of the

current proceedings, or of prior proceedings, do not constitute a basis for a bias or

partiality motion unless they display a deep-seated favoritism or antagonism that

would make fair judgment impossible. Thus, judicial remarks during the course of

a trial that are critical or disproving of, or even hostile to, counsel, the parties, or

their cases, ordinarily do not support a bias or partiality challenge. Id. Instead, one

must examine whether the remarks reveal such a high degree of favoritism or

antagonism as to make fair judgment impossible. Id.

               A review of the record shows that the questions the trial court did not

allow or sua sponte sustained objections to were either inadmissible or

inappropriate questions Townsend posed to witnesses.            The court repeatedly

warned Townsend that he could not make statements in front of the jury while

questioning witnesses and repeatedly assisted Townsend in rephrasing questions or

offered suggestions to assist him with presenting his case. Townsend chose to

proceed pro se; before doing so, he acknowledged that he had been warned of the

perils of proceeding pro se and dangers of self-representation.

               The second assignment of error is without merit and is overruled.
Courtroom Procedure

              In the third assignment of error, Townsend claims that he was denied

his right to self-representation because the trial court allowed standby counsel to

address issues on the record.

              Before trial, the court explained its courtroom procedure on the

record. As an example, during the trial court’s explanation of its voir dire process,

the court explained that challenges for cause or peremptory challenges would be

done at sidebar outside the hearing of the jury in order to protect prospective jurors

from improper influence. The trial court determined that Townsend would not be

allowed to approach the bench for these sidebar conversations due to security

concerns.   Instead, the court would allow standby counsel to communicate

Townsend’s wishes at sidebar.

              Evid.R. 611 empowers a trial court with broad discretion to conduct

its courtroom in its own fashion. A review of the record shows that the trial court

followed its outlined procedure during the trial ─ standby counsel relayed

Townsend’s arguments to the court during the appropriate time.             Moreover,

Townsend was allowed to personally address the court and argue his position when

the jury was not present.

              We find no error in the court’s stated procedure. Accordingly, the

third assignment of error is overruled.
Compulsory Process

              In the fourth assignment of error, Townsend claims that his

convictions should be reversed because the trial court failed to enforce a subpoena

and thereby violated his right to compulsory process.

              This court has held that a defendant is not denied compulsory process

by reason of a trial court’s decision not to enforce the subpoena of a witness. In the

Matter of Timothy Reynolds, 8th Dist. Cuyahoga No. 46585, 1983 Ohio App. LEXIS

12312, 7 (Nov. 3, 1983). Pursuant to R.C. 2317.21, in order to obtain the issuance of

a writ of attachment from the court and secure the attendance of an absent witness,

it is necessary for the disobeying witness to have been personally served with a prior

subpoena. See State v. Hardy, 8th Dist. Cuyahoga No. 86722, 2007-Ohio-1159,

¶ 68-69, citing State v. Wilcox, 8th Dist. Cuyahoga Nos. 60851 and 60886, 1992

Ohio App. LEXIS 3043 (Jun. 11, 1992).

              During trial, Townsend told the court who he wanted to testify on his

behalf. Townsend never demonstrated that any of his purported witnesses were

personally served with a subpoena.

              This court has held that “[i]t is incumbent upon a party moving for a

continuance to secure the attendance of witnesses to demonstrate that substantial

favorable testimony will be forthcoming and that the witnesses are willing and

available as well.” In the Matter of Timothy Reynolds at id., citing United States v.

Boyd, 620 F.2d 129 (6th Cir.1980); see also State v. Makin, 8th Dist. Cuyahoga No.

104545, 2017-Ohio-7882, ¶ 21. Here, in addition to failing to demonstrate personal
service upon any witnesses, Townsend did not proffer the favorable testimony that

he claims the absent witnesses would have given. Thus, Townsend cannot now argue

that he suffered reversible prejudice.

              The fourth assignment of error is overruled.

Manifest Weight of the Evidence

              In the fifth assignment of error, Townsend alleges that his convictions

with respect to B.G. were against the manifest weight of the evidence.2

              A weight of the evidence argument challenges the believability of the

evidence; which of the competing inferences suggested by the evidence is more

believable or persuasive. State v. Whiteside, 2d Dist. Montgomery No. 19482, 2003-

Ohio-3030, ¶ 21. “[W]eight of the evidence involves the inclination of the greater

amount of credible evidence.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). It “addresses the evidence’s effect of inducing belief.” State v.

Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing

Thompkins at 386-387. “In other words, a reviewing court asks whose evidence is

more persuasive — the state’s or the defendant’s?” Wilson at id. The reviewing court

must consider all the evidence in the record, the reasonable inferences, and the

credibility of the witnesses to determine ‘“whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of




      2Townsend    makes his claims with regard to B.G. only; therefore, we do not
consider his manifest weight argument as to the other victims.
justice that the conviction must be reversed and a new trial ordered.”’ Thompkins

at id., quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

                 In this case, the jury convicted Townsend of two counts of rape and

one count of gross sexual imposition, but acquitted him of kidnapping in relation to

his crimes against B.G. Townsend contends that these convictions were against the

manifest weight of the evidence because B.G. did not testify at trial, her family

members did not testify at trial, and there was no DNA evidence linking Townsend

to the crime.3

                 While it is true that B.G. did not testify at trial, Townsend has not

provided any authority showing that a victim is required to testify in a rape case.

Circumstantial and direct evidence “possess the same probative value.” State v.

Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991). Here, the state relied on other

evidence in presenting its case and it was up to the trier of fact to determine whether

Townsend was guilty of the crimes with which he was charged.

                 James Ogletree (“Ogletree”) testified that he worked for the Maple

Heights Police Department in 2006 and was the responding officer relative to this

incident. Ogletree learned through his investigation that B.G. lived at her aunt’s

house. Townsend, who was married to the aunt, and their son also lived in this

house; B.G. shared a bedroom with her young cousin. The aunt confirmed that B.G.

was living with her, her son, and Townsend at the time in question.



       3From   the record, we gather that B.G. had moved outside of Ohio and, although
the state tried to secure B.G.’s appearance at trial, she did not return to Ohio to testify.
              Ogletree testified that he recovered evidence from the scene. The

evidence included Townsend’s pajama bottoms, which the officer located on the

floor of the bedroom where B.G. slept. Ogletree accompanied B.G. and her aunt to

Marymount Hospital where SANE nurse Michelle Schreiber (“Nurse Schreiber”)

performed the rape-kit examination on B.G.

              The police subsequently submitted the following for DNA

examination: B.G.’s rape kit, Townsend’s DNA standard, a washcloth B.G. had used,

B.G.’s underwear, and Townsend’s underwear. BCI scientists did not locate any

identifying DNA on the objects it tested. But BCI scientist Heather Bizub (“Bizub”)

found amylase, which is a component of saliva and other body fluids, on the skin

stain swabs taken from B.G.’s left breast and right thigh. Bizub opined that the

amylase was foreign to B.G., which meant that it did not come from her.

              Nurse Schreiber testified that she performed the rape kit examination

on B.G. and took a narrative as part of her examination. The SANE report4 noted

that Townsend had forcible oral and vaginal intercourse with B.G. B.G. told the

nurse that she had urinated, defecated, used a genital wash, changed clothes, drank,

ate, brushed her teeth, and chewed gum after the assault but before the rape-kit

exam. Nurse Schreiber testified that evidence can be wiped away by these actions.




      4Townsend   does not argue that the trial court erred in allowing B.G.’s medical
records into evidence under Evid.R. 803; Townsend solely argues that his convictions
were against the manifest weight of the evidence.
She further testified that even though there were no noticeable injuries to B.G.’s

vagina, that fact did not indicate that a sexual assault did not occur.

               According to the narrative part of the exam, B.G. told Schreiber the

following:


      He came in and started pulling my pants down and stuff. I said get off
      me or I’ll tell my aunt. I didn’t want to tell her. It’s happened before
      but not like this. He was licking my privates. * * * He tried to put his
      privates in me. * * * I didn’t let him. I moved out of the way. He did
      get it in for a little a few times, but I kept moving. He kept trying to
      lick me. I was moving and hitting him. He had his hand over my
      mouth. After he took my aunt to work he came back and tried licking
      me. I didn’t let him so then he just kept talking to me.


               Townsend testified that he did not forcibly have sexual intercourse

with B.G. B.G.’s aunt testified that the rape did not occur. But “[a] conviction is not

against the manifest weight of the evidence because the [trier of fact] chose to believe

the state’s version of events over the defendant’s version.” State v. Abdullahi, 10th

Dist. Franklin No. 18AP-222, 2018-Ohio-5146, ¶ 30, citing State v. Hawk, 10th Dist.

Franklin No. 12AP-895, 2013-Ohio-5794, ¶ 59.

               B.G. consistently reported to the police and Schreiber that she was

orally and vaginally raped by Townsend. The jury heard the testimony from the

witnesses regarding the rape kit findings and DNA testing and heard testimony from

Townsend and B.G.’s aunt that Townsend did not rape B.G. It is clear that the jury

rejected Townsend’s testimony; that decision was within the jury’s province as the

trier of fact. As explained above, weight and credibility issues are left to the trier of
fact, who is free to believe all, part, or none of the testimony of any witness, and we

defer to the jury on evidentiary weight and credibility issues because it was in the

best position to gauge the witnesses’ demeanor, gestures, and voice inflections, and

to use these observations to weigh witness credibility.

               Accordingly, the fifth assignment of error is overruled.

Jury Instructions

               In the sixth assignment of error, Townsend claims that the trial court

erred in giving a complicity instruction to the jury. Townsend did not object to the

jury instruction; therefore, he has waived all but plain error. Crim.R. 52 (B).

               R.C. 2923.03 provides that “[n]o person shall be convicted of

complicity under this section unless an offense is actually committed.” According to

Townsend, there was no proof that Townsend was complicit because the jury did not

find that Williams raped M.W. But Williams and Townsend were not tried together;

Williams entered into a plea agreement with the state and did not proceed to trial.

See State v. Williams, Cuyahoga C.P. No. CR-17-614508-B.

               Here, the trial court instructed the jury that in order to convict

Townsend of complicity by aiding and abetting, the jury would have to find “beyond

a reasonable doubt that the defendant supported, assisted, encouraged, cooperated

with, advised, or incited the principal offender in the commission of the offense and

that the defendant shared the criminal intent of the principal offender.”

               The evidence presented at trial was that M.W. was sexually assaulted

by two men who forced her into their vehicle and took her to a house on W. 74th
Street in Cleveland. The men took turns forcing M.W. to have sex with them. DNA

linked both men to the attack ─ Townsend’s DNA was found on M.W.’s vaginal

swabs and Williams’s DNA was located on M.W.’s anal swabs. The men worked in

concert to kidnap and rape M.W. Thus, there was sufficient evidence that Townsend

was complicit in Williams’s rape of M.W. and the trial court did not err in instructing

the jury on complicity.

               The sixth assignment of error is overruled.

Sexually Violent Predator Specifications

               In the seventh assignment of error, Townsend claims that his

convictions on the sexually violent predator specifications should be vacated for the

crimes he committed prior to April 29, 2005. We find merit to this assignment of

error.

               Townsend did not challenge the sexually violent predator

specifications with the trial court. “Failure to raise at the trial court level the issue

of the constitutionality of a statute or its application, which issue is apparent at the

time of trial, constitutes waiver of such issue and * * * therefore need not be heard

for the first time on appeal.” State v. Frierson, 8th Dist. Cuyahoga No. 106841,

2019-Ohio-317, ¶ 6, citing State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986),

syllabus.   “However, the waiver doctrine of Awan has been ruled to be

discretionary.” Frierson at id., citing State v. Bruce, 8th Dist. Cuyahoga No. 89641,

2008-Ohio-926, ¶ 9. Finding plain error in this instance, we exercise our discretion

and consider Townsend’s argument.
               Prior to April 29, 2005, R.C. 2971.01(H)(1) defined a “sexually violent

predator” as “a person who has been convicted of or pleaded guilty to committing,

on or after January 1, 1997, a sexually violent offense and is likely to engage in the

future in one or more sexually violent offenses.”

               In State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d

283, the Ohio Supreme Court held that the conviction of a sexually violent offense

cannot support the specification that the offender is a sexually violent predator as

defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction and the

sexually violent predator specification are charged in the same indictment. In

response to the Smith case, the General Assembly revised R.C. 2971.01(H)(1) to

allow for the inclusion of a sexually violent predator specification in the indictment

of one being charged for the first time with a sexually violent offense. State v. Green,

8th Dist. Cuyahoga No. 96966, 2012-Ohio-1941, ¶ 25; see also State v. Stansell,

2014-Ohio-1633, 10 N.E.3d 795 (8th Dist.). The current version of the statute

provides that a “sexually violent predator” is “a person who, on or after January 1,

1997, commits a sexually violent offense and is likely to engage in the future in one

or more sexually violent offenses.” R.C. 2971.01(H)(1).

               In this case, Townsend committed the crimes against M.W. and C.W.

prior to the amendment of R.C. 2971.01(H)(1). Townsend contends that he cannot

be found to be a sexually violent predator on those counts because those crimes were

committed prior the law’s amendment.
               This court recently decided this issue.       In Frierson, 8th Dist.

Cuyahoga No. 106841, 2019-Ohio-317, this court considered whether the

application of R.C. 2971.01(H)(1) to the defendant violated the Ex Post Facto Clause

of the United States Constitution. In Frierson, as in this case, the state argued that

the statute applied retroactively because amendment to the statute clarified, but did

not change, the statute. This court disagreed:

      Retroactive changes in the measure of punishment are impermissibly
      ex post facto if they subject a defendant to a more severe sentence than
      was available at the time of the offense. The Ex Post Facto Clause
      found in Section 10, Article I of the United States Constitution, bars
      “[e]very law that changes the punishment, and inflicts a greater
      punishment, than the law annexed to the crime, when committed.”

      We find the Ex Post Facto Clause to be applicable in this instance.
      Under the plain language in R.C. 2971.01(H)(1) as it existed at the time
      of Frierson’s offenses, he was not eligible for the enhanced, indefinite
      sentencing under R.C. 2971.03 because he did not qualify as a sexually
      violent predator. As the Ohio Supreme Court stated in Smith, the
      words of R.C. 2971.01(H)(1) as it existed during the relevant periods
      clearly indicated that at the time of indictment, the person must have
      already been convicted of a sexually violent offense in order to be
      eligible for the specification.         The legislature’s subsequent
      amendment of the statute following Smith was not mere
      “clarification” as the state argues, but a significant and substantive
      change to the definition of “sexually violent predator,” allowing, for
      the first time, the underlying conduct in an indictment to satisfy the
      specification without a prior conviction. As applied to Frierson, this
      amendment greatly enhanced his potential punishment by subjecting
      him to the indefinite sentencing found in R.C. 2971.03 whereas he was
      not subject to an enhanced sentence prior to the amendment.
      Therefore, we find that amended R.C. 2971.01(H)(1), as applied to
      Frierson, violates the Ex Post Facto Clause of the United States
      Constitution.

(Citations omitted.) Id. at ¶ 11-12.
                Thus, this court found that the legislature’s subsequent amendment

of the statute following Smith was not a mere “clarification,” but a significant and

substantive change to the definition of “sexually violent predator,” allowing, for the

first time, the underlying conduct in an indictment to satisfy the specification

without a prior conviction. Frierson at id.

                Based on the authority as set forth in Frierson, we vacate Townsend’s

convictions on the sexually violent predator specifications as well as his underlying

sentences on Counts 1, 2, 3, 7, 9, 10, 11, and 12.

                The case is remanded to the trial court for resentencing on Counts 1,

2, 3, 7, 9, 10, 11, and 12.

                The seventh assignment of error is sustained.

Allied Offenses

                In the eighth assignment of error, Townsend contends that the trial

court should have merged Counts 1 and 2, Counts 9 and 11, and Counts 13 and 14.

                This court has consistently held rape involving different types of

sexual activity, such as vaginal intercourse, digital penetration, and oral intercourse,

arise from distinct conduct and are not considered allied offenses, even when

committed during the same sexual assault. State v. Nunez, 8th Dist. Cuyahoga No.

102946, 2016-Ohio-812, ¶ 20, citing State v. Williams, 1st Dist. Hamilton No.

140199, 2015-Ohio-3968, ¶ 59-60; State v. Farrell, 8th Dist. Cuyahoga No. 100659,

2014-Ohio-4377, ¶ 33.
                 Townsend contends that Counts 1 and 2 involving M.W., Counts 9

and 11 involving C.W., and Counts 13 and 14 involving B.G. should merge even

though each act constituted separate, distinct acts of sexual activity. Count 1 charged

forced vaginal intercourse and Count 2 involved forced oral intercourse against

M.W. Count 9 involved forced vaginal intercourse and Count 11 involved attempted

forced anal intercourse against C.W.          Finally, Count 13 involved forced oral

intercourse and Count 14 involved forced vaginal intercourse against B.G.

                 In light of the aforementioned authority, Townsend’s claim has no

merit.

                 The eighth assignment of error is overruled.

                 Judgment affirmed in part, reversed in part. The sexually violent

predator specifications on Counts 1, 2, 3, 7, 9, 10, 11, and 12 are vacated; case

remanded for resentencing on only those counts.

         It is ordered that appellant and appellee split costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

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

pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

SEAN C. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
