[Cite as State v. Triona, 2017-Ohio-2948.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-

ANTHONY B. TRIONA                                 Case No. 16-CA-78

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Licking County Court of
                                               Common Pleas, Case No. 2015CR804


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                         May 22, 2017

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

PAULA SAWYERS                                  ROBERT C. BANNERMAN
Chief Assistant Prosecuting Attorney           P.O. Box 77466
Licking County Prosecutor's Office             Columbus, Ohio 43207
20 S. Second St, 4th Floor
Newark, Ohio 43055
Licking County, Case No. 16-CA-78                                                            2

Hoffman, J.



       {¶1}      Defendant-appellant Anthony B. Triona appeals his conviction and

sentence entered by the Licking County Court of Common Pleas. Plaintiff-appellee is the

state of Ohio.

                             STATEMENT OF THE FACTS AND CASE

       {¶2}      Two victims are involved in this case, A.I. and J.K. On January 5, 2015,

Appellant contacted A.I. through Facebook, and asked her to come to his residence.

Appellant and A.I. had a previous relationship, but had not been in contact for some time

prior to January 5, 2015. A.I. arrived at Appellant’s residence sometime after midnight on

January 6, 2015, and they went to Appellant’s bedroom.

       {¶3}      The parties talked for a while. When A.I. attempted to leave the room, she

maintains Appellant pushed her backwards onto the bed. Appellant then held her arms

above her head, removed her leggings and proceeded to engage in vaginal intercourse

with A.I. A.I. claims she repeatedly told Appellant to stop, and tried to get up, but Appellant

held her down. Tr. at 134. Appellant bit A.I’s breast during the encounter. Tr. at 139. A.I.

cried, making small noises and struggled during the encounter. Tr. at 135-136. Appellant

placed a pillow on A.I.’s face, and held her wrist down. Id. Appellant told A.I. he would

not stop “until he was done.” Tr. at 138. Immediately after the incident, A.I. left the

residence.

       {¶4}      In a controlled phone call by law enforcement the next day, Appellant stated

he had never done such a thing before, hoped they could remain friends, and believed
Licking County, Case No. 16-CA-78                                                             3


his “power and control” just took over the situation. Appellant admitted to engaging in

“pretend rape” with other girlfriends, and believing Appellant would enjoy it. Tr. at 379.

         {¶5}   At trial, Appellant admitted to engaging in rough sex with A.I., as he thought

she would “enjoy it.” Tr. at 359. He told her before the encounter he was “better at sex”

and “had learned some new things.” He did not tell her specifically what he would do to

her. Tr. at 358. He maintains A.I. never told him to stop, did not struggle and consented

to the encounter despite having a boyfriend.

         {¶6}   J.K. dated Appellant during the summer months of 2012. J.K. attended

bonfires at Appellant’s mother’s house. During a bonfire, Appellant asked J.K to look at

something in the barn with him, and locked the door. J.K. maintains she told Appellant

she would not have sex with him that night as his parents were sleeping inside the

residence. Tr. at 289. Appellant then pushed J.K. downward onto the cement floor,

placing one arm on her upper back to hold her down while he pulled down the leggings

she was wearing.1 Tr. at 290. J.K. maintains she struggled to get up, and told Appellant

“no” and to “stop.” Tr. at 291-292. Appellant attempted anal penetration; subsequently,

engaging in vaginal intercourse with J.K. J.K. repeatedly told Appellant to stop and

shouted at him. Appellant’s mother pounded on the man door to the barn, and Appellant

stopped.

         {¶7}   Appellant testified at trial he had a sexual relationship with J.K. at the time,

and they had sexual intercourse in the barn on several occasions. However, Appellant

denied recollection of the specific encounter with J.K.




1
    Amended Bill of Particulars, June 24, 2016.
Licking County, Case No. 16-CA-78                                                           4


        {¶8}   Appellant admits to engaging in rape role play, or pretend rape as a sexual

activity.

        {¶9}   On April 21, 2016, the Licking County Grand Jury indicted Appellant on two

counts of rape (Counts One and Three), in violation of R.C. 2907.02(A)(2), felonies of the

first degree; and one count of resisting arrest (Count Two)2, in violation of R.C.

2921.33(A), a misdemeanor of the second degree.3

        {¶10} On June 24, 2016, the trial court conducted a rape shield hearing, wherein

the parties stipulated to Appellant having a prior relationship with the alleged victims. The

parties agreed they would not inquire as to specific instances of any prior relationships,

particularly any acts of sexual activity predating the offenses charged.

        {¶11} On June 27, 2016, Appellant filed a request for relief from prejudicial joinder.

Appellant moved the trial court for relief from joinder of the three counts relating to two

different victims in a single indictment. Appellant argued joinder in a single indictment

would prejudice his opportunity to have a fair trial, citing Criminal Rule 14 governing relief

from joinder in a single indictment. Specifically, Appellant moved the trial court to sever

Count Three, pertaining to J.K., from Counts One and Two, pertaining to A.I., from the

indictment “for the purposes of any further proceedings herein.”4 The State filed a




2
  As Appellant has not assigned as error his conviction or sentence for resisting arrest, we
have not set forth a statement of the facts pertinent to the charge.
3
  The April 21, 2016 Indictment is a superseding indictment following a dismissal of the
indictment of December 3, 2015, charging one count of rape and one count of resisting
arrest.
4
  Defendant’s Request for Relief from Prejudicial Joinder, June 27, 2016.
Licking County, Case No. 16-CA-78                                                          5


memorandum contra Appellant’s motion to sever on June 29, 2016. The trial court

overruled the motion on the record prior to trial.5

         {¶12} Following a jury trial, Appellant was convicted on all counts. The trial court

conducted a sentencing hearing, and imposed sentence via August 22, 2016 Judgment

Entry.

         {¶13} Appellant appeals, assigning as error,



                I. THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S

         MOTION FOR RELIEF FROM PREJUDICIAL JOINDER.

                II. THE TRIAL COURT ERRED BY FAILING TO GIVE JURY

         INSTRUCTIONS AND VERDICT FORMS FOR LESSER-INCLUDED

         OFFENSES.



                                                  I.

         {¶14} In the first assignment of error, Appellant argues the trial court erred in

overruling his motion for relief from joinder.

         {¶15} Joinder of offenses is governed by Crim. R. 8(A), which states 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 resources, reduce the chance of incongruous results in successive




5
 Appellant entered a “continuing objection” to the trial court’s denial of the motion to
sever on the record.
Licking County, Case No. 16-CA-78                                                         6

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).

       {¶16} 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).

       {¶17} As set forth in the Statement of the Facts and Case, Appellant moved the

trial court to sever Count Three, relating to J.K., from Counts One and Two of the

indictment, relating to A.I., claiming joinder of the offenses in a single indictment to be

prejudicial.

       {¶18} A Crim.R. 14 motion for severance of counts due to prejudicial misjoinder is

waived unless it is renewed at the close of the state's case or at the conclusion of all the

evidence. State v. Strobel (1988), 51 Ohio App.3d 31, 554 N.E.2d 916, paragraph two of

the syllabus; State v. Owens (1975), 51 Ohio App.2d 132, 5 O.O.3d 290, 366 N.E.2d

1367, paragraph two of the syllabus. Simpson, 9th Dist. 12CA010147, 12CA010148,

2013-Ohio-4276; State v. Vu, 9th Dist. No. 11CA0042-M, 2012-Ohio-746.

       {¶19} Prior to the commencement of trial herein, the trial court addressed the

motion for relief from joinder on the record. The trial court found the charges involved

separate victims and the evidence not subject to confusion. Tr. at 12. The court overruled

the motion to sever prior to the commencement of trial, and Appellant’s counsel placed

“a continuing objection to the case proceeding in that manner at this time.” Tr. at 13.
Licking County, Case No. 16-CA-78                                                            7


       {¶20} At the close of the State’s case, Appellant’s counsel moved the trial court

for acquittal, pursuant to Criminal Rule 29. Counsel did not renew the motion for relief

from joinder at the close of the State’s case.

       {¶21} Nonetheless, if it appears a defendant is prejudiced by joinder, a trial court

may grant a severance. State v. Brinkley 105 Ohio St.3d 231, 824 N.E.2d 959, 2005-

Ohio-1507. The defendant bears the burden of proving the trial court abused its discretion

in denying severance. Id.

       {¶22} To prevail on a claim to sever counts, 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).

       {¶23} 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. “If the evidence of other crimes would be admissible at

separate trials, any ‘prejudice that 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
Licking County, Case No. 16-CA-78                                                         8

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.

       {¶24} We recognize the admission of other-acts evidence is limited because of

the substantial danger a jury will convict the defendant solely because it assumes 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. 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.

       {¶25} Evid.R. 404(B), 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. ***



       {¶26} In the case at bar, no dispute exists as to whether Appellant was the person

involved in the two sex acts with two separate victims. In other words, no dispute exists
Licking County, Case No. 16-CA-78                                                         9

as to identity. State v. Slaven, 191 Ohio App.3d 340, 945 N.E.2d 1142, 2010-Ohio-6400.

Appellant concedes he engaged in sexual intercourse with both A.I. and J.K., but claims

the acts were consensual.

       {¶27} As the identity of the person who committed the crime was not an issue at

trial, the other acts would not have been properly admitted to prove Appellant’s scheme,

plan, or system in committing the offenses. Id. citing State v. Ross, Stark App. No.

2009CA00253, 2010-Ohio-5096; State v. Gresh, Delaware App. No. 09-CAA-012-0102;

2010-Ohio-5814. There was no dispute Appellant’s intent and motive was to have sex.

There was no claim by the Appellant as to lack of opportunity.

       {¶28} In that it is arguable, the evidence is admissible to demonstrate absence of

mistake, i.e. consent to rape role play or pretend rape, the trial court would not have

abused its discretion in admitting the evidence. Evidence as to the rape of each victim

may well have been admissible to demonstrate the absence of mistake given Appellant’s

claim in each instance he mistakenly assumed each victim consented to the conduct.

       {¶29} Furthermore, we find the evidence of each crime is simple, distinct and

direct. 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). In the case at bar, the counts were committed against two

different victims, at two different locations. The acts occurred more than two years apart.

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

crime. The separate offenses, involving the two separate victims, separate dates, and

separate locations, were clearly laid out for the jury and the jury was instructed that each

count and victim should be considered from its own evidence. The trial court instructed
Licking County, Case No. 16-CA-78                                                                10


the jury each charge set forth in each count in the indictment constitutes a separate and

distinct matter. The jury was instructed to consider each count and the evidence

applicable to each count separately, and to state findings as to each count uninfluenced

by a verdict as to any other count. Tr. at 435-436.

       {¶30} We find Appellant has not demonstrated the trial court abused its discretion

in denying his motion for relief from joinder of the offenses.

       {¶31} Appellant's first assignment of error is overruled.

                                                    II.

       {¶32} In the second assignment of error, Appellant argues the trial court erred in

not instructing the jury on the lesser included offenses of sexual imposition and sexual

battery.

       {¶33} Initially, we note, Appellant did not object to the instructions given to the jury

herein; therefore, Appellant has waived all but plain error on appeal. “Notice of plain error

* * * is to be taken with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91, 372

N.E.2d 804.

       {¶34} An instruction on a lesser included offense is required only where the

evidence presented at trial would reasonably support both an acquittal on the crime

charged and a conviction upon the lesser included offense. State v. Thomas (1988), 40

Ohio St.3d 213, 533 N.E.2d 286. Id. The trial court must instruct the jury on the lesser

included offense if it is possible for the trier of fact to find the defendant guilty of the lesser-

included offense and not guilty of the charged offense under “any reasonable view of the

evidence.” State v. Wilkins (1980), 64 Ohio St.2d 382, 415 N.E.2d 303.
Licking County, Case No. 16-CA-78                                                           11




      {¶35} Here, Appellant was convicted of Rape, in violation of R.C. 2907.02(A),

which reads, “(2) No person shall engage in sexual conduct with another when the

offender purposely compels the other person to submit by force or threat of force.”

      {¶36} Appellant argues the trial court erred in failing to instruct the jury as to sexual

imposition, in violation of R.C. 2907.06 and sexual battery, in violation of R.C. 2907.03.

Those statutes read, respectively,

      {¶37} R.C. 2907.06 (Sexual Imposition):



             (A) No person shall have sexual contact with another, not the spouse

      of the offender; cause another, not the spouse of the offender, to have

      sexual contact with the offender; or cause two or more other persons to

      have sexual contact when any of the following applies:

             (1) The offender knows that the sexual contact is offensive to the

      other person, or one of the other persons, or is reckless in that regard.



      {¶38} R.C. 2907.03 (Sexual Battery):



             (A) No person shall engage in sexual conduct with another, not the

      spouse of the offender, when any of the following apply:

             (1) The offender knowingly coerces the other person to submit by

      any means that would prevent resistance by a person of ordinary resolution.
Licking County, Case No. 16-CA-78                                                          12




       {¶39} The jury was properly instructed as to rape. Appellant’s theory of the case

asserts the parties engaged in consensual, rough, intercourse. Appellant admits to

engaging in intercourse, amounting to “pretend rape,” with both A.I. and J.K. He did not

discuss the “pretend rape” with either victim prior to engaging in sexual intercourse. In

addition, both victims testified they told Appellant no, and asked him to stop. Both

described a struggle with Appellant, during which he held them down and proceeded to

engage in vaginal intercourse, against their consent. Appellant has not offered evidence

either victim knew of the “role play” or consented to “pretend rape” prior to the encounter.

       {¶40} Under the facts of this case, we find the trial court did not commit plain error

in failing to instruct the jury on the lesser included offenses of sexual imposition or sexual

battery. It is far from clear the outcome of the trial would have been different had the jury

been instructed on lesser-included offenses.

       {¶41} The second assignment of error is overruled.
Licking County, Case No. 16-CA-78                                             13


      {¶42} Appellant’s convictions entered by the Licking County Court of Common

Pleas are affirmed.

By: Hoffman, J.

Delaney, P.J. and

Wise, Earle, J. concur
