COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73398 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : ADOLPH KEBE, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 12, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-346004 JUDGMENT : AFFIRMED IN PART, REVERSED : IN PART, AND REMANDED FOR : RESENTENCING. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: A. Steven Dever Darcy Moulin Assistant County Prosecutors The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Gerald S. Gold Susan L. Gragel GOLD, ROTATORI & SCHWARTZ 1500 Leader Building 526 Superior Avenue, East Cleveland, Ohio 44114 -2- NAHRA, J.: Appellant, Adolph Kebe, appeals his conviction of three separate counts of gross sexual imposition on grounds of hearsay testimony, allied offenses, jury instruction, expert testimony and severity of punishment. On December 16, 1996, appellant, Adolph Kebe, was indicted on one count of rape, one count of attempted rape, one count of kidnapping, and three separate counts of gross sexual imposition for incidents which occurred between November 1, 1996 and November 13, 1996. The alleged victim was Barbara Burton, age 38, whose ability to resist or consent was alleged to be substantially impaired because of a mental condition. After indictment, Kebe moved for a bill of particulars to obtain specification as to the nature of each of the three gross sexual imposition charges which appeared to be identical. The State responded with a bill of particulars that repeated verbatim the charges as they appeared in the indictment. Appellant further filed a motion to have the complainant evaluated by a psychological expert for the defense, which was overruled, with the court appointing an independent psychological expert, Dr. Nancy Huntsman, instead. The appellant also filed a motion in limine to bar the State from introducing hearsay testimony concerning the incidents in question. This motion was also overruled. The trial commenced on September 9, 1997, and on September 15, 1997, the jury returned verdicts of guilty on all three counts of -3- gross sexual imposition, and verdicts of not guilty on the counts of rape, attempted rape, and kidnapping. After proper evaluation, the appellant was sentenced to 18 months for each of the three counts, to be served consecutively. Appellant timely filed and assigns five errors for our review. Appellant's first assignment of error states: I. THE TRIAL COURT ERRONEOUSLY OVERRULED THE MOTION IN LIMINE AND, OVER REPEATED AND CONTINUING OBJECTIONS, ERRONEOUSLY ALLOWED THE PROSECUTION TO INTRODUCE EXTENSIVE AND PREJUDICIAL HEARSAY TESTIMONY BY THE ADULT COMPLAINANT'S MOTHER, CASEWORKERS AND OTHERS REGARDING HER DISCLOSURES ABOUT ALLEGED SEXUAL CONTACT WITH THE DEFENDANT. In this assignment of error appellant argues that the trial court failed to prohibit the introduction of out-of-court declarations. Appellant contends the court erred by allowing certain hearsay testimony and allowing the jury to consider this hearsay as substantive proof of the appellant's guilt. Hearsay is defined as a statement, other than one made by declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C). As mentioned by appellant, there are certain enumerated exceptions to this rule and those pertinent to this case are as follows: Ohio R.Evid. 803 provides in pertinent part: The following are not excluded by the hearsay rule, even though the declarant is available as a witness. (2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under stress of excitement caused by the event or condition. -4- *** (4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception of general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Further, Evid.R. 803(2) only permits the admission of out-of- court declarations by a complainant when the statements made concern some occurrence startling enough to produce a nervous excitement in declarant, which occurrence the declarant had an opportunity to observe, and made before there had been time for such nervous excitement to lose domination over his reflective faculties. State v. Smith (1997), 80 Ohio St.3d 89, 684 N.E.2d 668. In other words, the declarant's statements may only be admitted if the statements were made within such proximity to the event that the excitement and stress of the event had not had time to pass. Appellant maintains that throughout the trial the State was allowed to elicit from the victim's mother, caseworkers, neighbors, and law enforcement officers, multiple hearsay statements, provided to them by the victim, Barbara, that implicated Kebe and substantiated the story as relayed by Barbara during direct testimony. It is appellant's contention that had this testimony not been allowed, the confused and conflicted rendition of the incidents in question by Barbara would not have been sufficient to convict. -5- After a careful review of the transcripts and testimony in question, it is clear that the trial court allowed the State to introduce hearsay testimony that does not fall under either relevant enumerated exception and pertained directly to the appellant's guilt. However, the pertinent testimony elicited was merely a recitation of events already described by the complainant. The jury was free to assess Barbara's credibility, and although the elicited hearsay testimony gave more weight to her account, its introduction cannot be said to be either unreasonable, arbitrary or unconscionable. Furthermore, the testimony of the complainant alone was sufficient enough to convict. As a result, admission of such testimony does not rise to the level of an abuse of discretion. State v. Smith (1986), 34 Ohio App.3d 180, 517 N.E.2d 933. Accordingly, this assignment of error is overruled. II. BY OVERRULING THE MOTIONS FOR JUDGMENT OF ACQUITTAL AND MISTRIAL, THE TRIAL COURT ERRONEOUSLY PERMITTED THE JURY TO RETURN A SPECULATIVE VERDICT WHERE THE THREE IDENTICAL COUNTS OF GROSS SEXUAL IMPOSITION WERE NOT DIFFERENTIATED IN THE INDICTMENT, BILL OF PARTICULARS OR JURY INSTRUCTIONS. In this assignment of error, the appellant contends that the three charges concerning gross sexual imposition, as stated in the bill of particulars, were not specific enough in nature to warrant three separate convictions. Further, the appellant believes that the jury was allowed far to much leeway in interpreting each count of gross sexual imposition, and as a result, each juror was left to their own speculative and subjective understanding as to the basis -6- for their convictions. Appellant maintains that even after the jury posed this question to the court: What is the difference between counts 4, 5, and 6?, and received an answer from the court, over an objection and a motion for a mistrial from the appellant, advising them that: Counts 4, 5, and 6, relate to separate instances of sexual contact, the jury was still not sufficiently informed that count 4 related to mouth on breast , count 5 related to touching of the vaginal area and count 6 related to the touching of the breast. In the bill of particulars each count charged the following: Between November 1, 1996, and November 13, 1996 *** defendant on or about the date of the offense *** unlawfully had sexual contact with Barbara Burton, not his spouse, knowing or having reasonable cause to believe that the ability to resist or consent of Barbara Burton was substantially impaired because of mental condition. Although the validity of an indictment is usually upheld without containing specific details, State v. Petro (1947), 148 Ohio St. 473, 76 N.E.2d 355, a written request by a defendant for a bill of particulars is governed by Crim.R. 7(E). Crim.R. 7(E) provides in pertinent part: When the defendant makes a written request *** the prosecuting attorney shall furnish the defendant with a bill of particulars setting up specifically the nature of the offense charged and of the conduct of the defendant alleged to constitute the offense. Further, a defendant is entitled to be given fair notice of the charges against him and to assure that he is protected against double jeopardy. State v. Gingell (1982), 7 Ohio App.3d 364, 455 -7- N.E.2d 1066. A bill of particulars is designed to provide the accused, upon proper demand, with greater detail concerning the nature of the offense charged and of the criminal conduct alleged to constitute the offense, and is appropriately supplied where the indictment, although legally sufficient in describing the elements of the charged offense, is so general in nature that the accused is not given a fair and reasonable opportunity to prepare his defense. Id. Moreover, when the facts of a particular case require greater specification in order to aid the defense, the bill of particulars need only be directed toward the conduct of the accused as it is understood by the state to have occurred. Id. When an indictment contains multiple charges stemming from one incident and animus, R.C. 2941.25 controls. R.C. 2941.25 states: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. In the instant case, the state erred in not presenting the appellant or the jury with a more specific bill of particulars, as the jury and the defense needed to know the nature of each count to properly consider and weigh all the evidence, and present a thorough defense. -8- The appellant was charged with three separate counts of gross sexual imposition, arising out of what Barbara, on direct testimony, admitted were only two incidents of intimate contact. Sexual acts such as these have been held to constitute a separate animus only where the evidence demonstrates the passage of time or intervening conduct by the appellant between each offense. State v. Delvalles (April 25, 1991), Cuyahoga App. No. 58659, unreported. See, also, State v. Burgos (Dec. 13, 1984), Cuyahoga App. No. 48249, unreported. Further, we have held that the touching of two different areas of the victim's body in an uninterrupted sequence constitutes the commission of allied offenses of similar import committed with a single animus. State v. Delvalles, supra; State v. Burgos, supra. Thus, since the evidence presented in this case clearly shows only two separate intimate sequences, each of which were uninterrupted and of relative short duration, the appellant can only be convicted and sentenced on two counts of gross sexual imposition. Accordingly, appellant's second assignment of error is well taken. It is therefore ordered that one count of the convictions of gross sexual imposition be vacated. III. THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY ABOUT THE DEFINITION OF SUBSTANTIAL IMPAIRMENT. This court's review of a trial court's instructions to the jury is governed by an abuse of discretion standard. State v. Wollons (1989), 44 Ohio St.3d 64, 68, 541 N.E.2d 443. -9- In this assignment of error appellant maintains that the trial court erred in giving the jury the standard instruction of impairment because such an instruction leaves little room for acquittal when a mentally retarded person is found to have engaged in sexual activity. In the alternative, the appellant believes the trial court should have adopted his recommendation which provided: A person's ability to resist or consent is substantially impaired when it has become significantly weakened. In this case the State alleges that Barbara Burton was substantially impaired because of a mental condition. However, the jury may not infer substantial impairment from proof of general incapacity or retardation or an IQ range or mental age. Rather, substantial impairment, may only be found if it is determined by proof beyond a reasonable doubt that Ms. Burton was unable to understand: (1) the physical nature of the sexual act or (2) the future physical, emotional or social consequences of the sexual act. Unless you have made this determination by proof beyond a reasonable doubt, your verdict should be for the defendant. The instruction given by the trial court concerning substantial impairment was: A person's ability to resist or consent is substantially impaired when it has become significantly weakened. Knowledge of substantial impairment. You must also determine, from proof beyond a reasonable doubt, if the defendant, Mr. Kebe, knew that Miss Burton was substantially impaired because of mental condition. To know means a person is aware of the existence of the facts *** knowledge is determined from all the facts and circumstances in evidence. You will determine from these facts and circumstances whether there existed at the time in the mind of the defendant, Adolph Kebe, an awareness of fact that Miss Burton's ability to consent or resist was substantially impaired because of mental condition. -10- Unless you make such a finding beyond a reasonable doubt, you shall return a verdict of not guilty on the charge under deliberation. The instructions to the jury as provided by the trial court followed the mandates and form which are provided by 4 Ohio Jury Instruction S507.02, 507.05, and were also consistent with R.C. 2907.02(A)(1)(c) and R.C. 2905.05(A)(5). Furthermore, the term substantially impaired, although not defined in the Ohio Criminal Code, has been defined by the Supreme Court as a present reduction, diminution or decrease in the victim's ability, either to appraise the nature of his conduct or to control his conduct. State v. Zeh (1987), 31 Ohio St.3d 99, 509 N.E.2d 414. The trial court's definition of substantially impaired in its instruction as a significantly weakened ability to resist or consent clearly falls within the parameters of the definition as provided above. As a result, the trial court's denial of the appellant's requested charge did not amount to an abuse of discretion. Accordingly, this assignment of error is overruled. IV. THE TRIAL COURT ERRONEOUSLY FAILED TO GRANT THE MOTION TO HAVE THE COMPLAINANT EVALUATED BY A PSYCHOLOGICAL EXPERT FOR THE DEFENSE, DUE TO THE SPECIAL CIRCUMSTANCES PRESENTED BY THE COMPLAINANT'S PRIOR HISTORY, HER SUGGESTIBILITY AND BY HER REPEATED QUESTIONING FROM SOCIAL WORKERS, FAMILY MEMBERS AND LAW ENFORCEMENT REPRESENTATIVES. The trial court in State v. Zeh (1987), 31 Ohio St.3d 99, 509 N.E.2d 414, second paragraph of the syllabus, addressed the current method enforced in Ohio regarding the interview of a witness and any potential mental limitations when it stated: -11- When the mental condition of the victim-potential witness is a contested, essential element of the crime charged, the defense may move the court that the state be barred from utilizing evidence of such mental condition obtained in a clinical interview of the witness prior to trial, unless such witness voluntarily agrees to a court-appointed, independent examination with the results being made available to both sides. In Zeh, the trial court denied a defendant's motion to independentlyexamine the victims in order to determine the degree of their mental impairment and to appropriately assess their ability to appraise or control the nature of their conduct. As here, the charged crime and ultimate conviction turned on the degree to which his victims were substantially impaired. The trial court denied this motion; however, the Court of Appeals reversed the judgment on the grounds that the victims' states of mind was an essential element of the alleged offense. On review, the Supreme Court stated that a court-appointed independent examination is sufficient in cases where the victims' mental capacity is at issue, and, therefore, it was not improper for the trial court to deny the defense's motion for an expert, selected by them, for the same purpose. Id. As a result, the trial court in the present case did not err when it denied appellant's motion for his own expert examination of Barbara, and instead appointed an independent psychologist, made available to both sides, to perform the same duties. Accordingly, appellant's fourth assignment of error is overruled. V. -12- THE TRIAL COURT ERRONEOUSLY IMPOSED THE LONGEST CONSECUTIVE SENTENCE TOTALING 54 MONTHS ON THE THREE COUNTS OF GROSS SEXUAL IMPOSITION IN VIOLATION OF REVISED CODE 2929.14. Here the appellant argues that the sentences imposed by the trial court should be vacated because of their severity, and a new sentence should be imposed which complies with the provisions of R.C. 2929.14. When determining the appropriate term of sentence, this court is guided by R.C. 2929.14 which states in pertinent part: (B) Except as provided in division (C), (D)(2), (D)(3), or (G) of this section ***, if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender and if the offender previously has not served a prison term, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless the court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others. (C) Except as provided in division (G) of this section or in Chapter 2925. of the Revised Code, the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders ***. Gross sexual imposition is a fourth degree felony which carries a sentence of anywhere from six to eighteen months. In the instant case the trial court, in establishing a sentence, erroneously mandated that Kebe be sentenced to the maximum of eighteen months on each of three counts. After a careful review of the record, it appears that Kebe had no prior prison term, had not -13- committed the worst form of the offense, was not deemed to be violent and was not likely to commit a crime in the future. As a result, the maximum sentence was not authorized under the statute. The appellant also argues that due to his prior record and service to the community, his sentences should have been ordered to be served concurrently, and not consecutively. In considering whether to have the terms of the sentence be served concurrently or consecutively, the controlling statute is R.C. 2929.14. R.C. 2929.14 provides in pertinent part: (E)(3) If multiple prison terms are imposed on an offender for convictions of multiple offense, the court may require the offender to serve the prison terms consecutively if the court finds that consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and the danger the offender poses to the public, and if the court also finds any of the following: (a) the offender committed multiple offenses while the offender was awaiting trial or sentence *** or was under post release control for a prior offense. (b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as a single course of conduct adequately reflects the seriousness of the offenders conduct. (c) the offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. Again, the trial court erred in determining that Kebe should serve the terms of his sentence consecutively. Multiple prison terms are appropriate only if the convicted offender, while awaiting trial or sentence, or on probation, caused severe and debilitating harm, or had a history of recidivism and multiple -14- terms are necessary to protect the public from future harm. Here, Kebe, a former policeman, does not meet any of these conditions, and thus imposition of consecutive sentences was inappropriate. His sentences should have been ordered to be served concurrently. Accordingly, appellant's fifth assignment of error is well taken. It is ordered that in accordance with this opinion appellant be convicted of two counts of gross sexual imposition, that he be resentenced on each count to less than the maximum under the statute, and that the sentences be ordered to run concurrently. Conviction affirmed in part, reversed in part, and remanded for resentencing. -15- This cause is affirmed in part, reversed in part, and remanded for resentencing for proceedings consistent with this opinion. Costs to be divided equally between plaintiff-appellee and defendant-appellant. It is ordered that a special mandate be sent to said 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. JOSEPH J. NAHRA JUDGE KARPINSKI, J., CONCURS. DYKE, P.J., CONCURS IN PART AND DISSENTS IN PART. (See attached concurring and dissenting opinion.) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R.22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73398 STATE OF OHIO : : C O N C U R R I N G Plaintiff-Appellee : A N D : D I S S E N T I N G -vs- : O P I N I O N : ADOLPH KEBE : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 12, 1998 DYKE, P.J., CONCURRING IN PART AND DISSENTING IN PART: As to the first assignment of error, I feel that some of the out of court statements are admissible under Evid. R. 803(2), the excited utterance exception. The victim's mother testified that she spoke with the victim on the telephone about two weeks after the victim was molested. The victim was hysterical and crying. Barbara repeatedly said, He's coming back. She told her mother about some of the details of the crime. Caseworker Lori Findling testified that a few weeks after the crime, she saw appellant at the victim's door. Barbara was upset and shaking. Without objection, Findling testified that Barbara said that the appellant put his hands in her shirt and pants and showed her his penis. (Tr. at 148). Appellant did not deny the accusations. -2- The excited utterance exception allows for the admission of hearsay testimony if (1) the statement relates to a startling event, and (2) the statement is made under the stress of that event. Evid. R. 803(2), State v. Taylor (1993), 66 Ohio St.3d 295. The statement does not have to be made within a certain time after the event in order to be an excited utterance. See Taylor, supra, State v. Duncan (1978), 53 Ohio St.2d. 215. The question is whether the declarant was still under the stress of the event. Id. The trial court has wide discretion in determining whether the declarant was under the stress of the event when the out of court statement was made. State v. Fowler (1985), 27 Ohio App.3d 149, 151, Dunca n, supra. A child is likely to remain in a state of nervous excitement longer than an adult. See Taylor, Boston, supra. A child also has less ability to reflect upon events, so their statements are less likely to be the result of reflective thought. See Id. A child could still be under the stress of the incident days or weeks after the event. See Boston, Fowler, supra. In this case, the victim had the mental capacity of an eight year old child. The trial judge could find, in his discretion, that the victim was still under the stress of the event. The court did not err in finding that above discussed statements were excited utterances. Granted, not all of the hearsay statements fall under the excited utterance exception. Neither were these statements admissible under Evid. R. 801(D)(1)(b). Evid. R. 801(D)(1)(b) states that a declarant's prior consistent statements are non- -3- hearsay if (1) the declarant testifies at trial and is subject to cross-examination, (2) the statement is consistent with her prior testimony, and (3) it is offered to rebut an express or implied charge of recent fabrication. See State v. Nichols (1993), 85 Ohio App.3d 65, 70. In this case, the victim's motive to testify falsely occurred before the prior consistent statements, so the prior consistent statements were not admissible to rebut a charge of recent fabrication. See Nichols, supra, State v. Smith (1986), 34 Ohio App.3d 180. As to the hearsay which was not admissible under any exception, I agree with the majority that admitting this testimony was harmless error. Error is harmless when there is no reasonable possibility that the jury would have acquitted the defendant had the evidence not been admitted. See State v. Brown (1992), 65 Ohio St.3d 482. Admitting improper evidence is harmless error if the remaining evidence constituted overwhelming proof of guilt. See State v. Williams (1983), 6 Ohio St.3d 281. While the victim's testimony was confused and contradictory, other witnesses testified that the victim had difficulty communicating because she has a mental handicap. The victim lied and manipulated people in the past, but there was testimony her behavior has improved. The victim's excited utterances, discussed above, supported the victim's accusations. Other supporting testimony included: Cynthia Kinnie, a neighbor, frequently saw appellant's car parked outside the victim's apartment building and saw the appellant -4- outside the victim's door. A 911 call made by the victim was played for the jury. The victim's treating physician testified the victim told her that someone had touched her private parts. The hearsay statements were merely cumulative of the testimony of other witnesses, so the error in admitting the statements was harmless. State v. Williams (1988), 38 Ohio St.3d 346, 350. There is no reasonable possibility that the appellant would not have been convicted had the hearsay statements not been admitted. For the above reasons, I would overrule appellant's first assignment of error. As to the appellant's second assignment of error, the majority finds that the dismissal of one count of gross sexual imposition cures the inadequate bill of particulars and inadequate jury instructions. The majority fails to address the question of whether the jury actually found two separate sequences of sexual contact, or found that three sexual contacts occurred on one occasion. I believe that there is no reasonable possibility that the jury could have believed that sexual contact occurred on one of the visits, but not the other. The victim contradicted herself as to sexual contact which occurred during both visits. There were no facts from which the jury could determine that the sexual contact occurred on one occasion, but not on the other. The error of failing to furnish an adequate bill of particulars and adequate jury instructions is cured by vacating one count of gross sexual imposition. -5- Accordingly, I agree with the majority's disposition of the second assignment of error. I also agree with the majority's disposition of the third and fourth assignments of error. As to the fifth assignments of error, I agree with the majority that the trial court erred in imposing the maximum and consecutive sentences because the trial court did not make the findings mandated by R.C. 2929.14. I believe that the trial judge could find, in his or her discretion, that the appellant was among the offenders who committed the worst forms of the offense , authorizing the maximum sentence. The appellant used his position as a police officer to take advantage of a person with a mental handicap. The trial court could also find that: The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as a single course of conduct adequately reflects the seriousness of the offender's conduct. R.C. 2929.14(E). The trial judge found that physical and mental harm was done to the victim, and the harm was worsened by the mental condition of the victim. The trial court could impose consecutive sentences upon remand. I agree that the fifth assignment of error should be .