Opinion
112875
01-08-2025
STATE OF OHIO, Plaintiff-Appellee, v. ALLEN BOYD, JR., Defendant-Appellant.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Sarah E. Hutnik, Assistant Prosecuting Attorney, for appellee. Law Offices of William B. Norman and William B. Norman, for appellant.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-670409-A Application for Reopening Motion No. 575341
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Sarah E. Hutnik, Assistant Prosecuting Attorney, for appellee.
Law Offices of William B. Norman and William B. Norman, for appellant.
JOURNAL ENTRY AND OPINION
MICHELLE J. SHEEHAN, JUDGE
{¶ 1} Appellant-applicant, Allen Boyd, Jr., timely seeks to reopen his appeal in State v. Boyd, 2024-Ohio-1059 (8th Dist.). He raises seven proposed assignments of error that he claims appellate counsel should have advanced, rendering counsel's performance constitutionally deficient:
Appellate counsel was ineffective for failing to object to the constructive amendment of the indictment which occurred under Article I, Section 10, of the Ohio Constitution, and Amendments V, VI, and XIV to the United State Constitution.
Appellate counsel was ineffective for failing to challenge the effectiveness of trial counsel for failing to challenge the legality of the trial court's exclusion of evidence showing bias, prejudice, and motive, on behalf of the father of the accused, under Ohio Evid.R. 611(B).
Appellate counsel was ineffective for failing to challenge the effectiveness of trial counsel, and the legality of multiple convictions for gross sexual imposition, under unit of prosecution precepts.
Appellate counsel was ineffective for failing to challenge the effectiveness of trial counsel for failing to challenge the legality of conviction for rape and the lesser-included offense of gross sexual imposition.
Appellate counsel was ineffective for failing to charge trial counsel with effective assistance for failing to detect and object to the complete failure of the trial court to instruct the jury on the essential elements of Count One.
Appellate counsel was ineffective for failing to challenge the effectiveness of trial counsel for failing to object to the failure of the trial court to instruct the jury to apply the beyond a reasonable doubt standard to the findings directed to be made after reaching the guilty verdict.
Appellate counsel was ineffective for failing to challenge the effectiveness of trial counsel for failing to challenge the constitutionality of the trial court's blanket policy of no note taking, and no transcript readbacks.
{¶ 2} After review of the briefing in this case, the record, and the pertinent law, we find no merit and deny the application.
I. Procedural History and Factual Background
{¶ 3} A detailed history of the case and underlying facts can be found in this court's opinion in the direct appeal. Boyd at ¶ 3-24. A summary of the overall facts follows.
{¶ 4} Boyd and the victim's mother started dating in 2015. The couple moved in together at a home on Cedar Avenue when the victim was approximately eight years old. This coincided with the birth of victim's half-sister in May 2017. The victim testified that she was subjected to sexual acts at Boyd's hands while they lived at the Cedar Avenue home and a few times after moving from that residence. In 2022, Boyd was indicted with several offenses after the victim disclosed the abuse. Boyd was found guilty of one count of rape of a child under the age of 13 and four counts of gross sexual imposition. The jury found Boyd not guilty of two other counts of rape. Ultimately Boyd was sentenced to life in prison with parole eligibility after 20 years.
{¶ 5} On June 16, 2024, Boyd appealed his convictions to this court. Appointed appellate counsel raised three assignments of error for review. Counsel argued Boyd's gross sexual imposition convictions were not supported by sufficient evidence and the trial court erred in limiting cross-examination of the victim and the victim's father.
{¶ 6} In an opinion issued March 21, 2024, this court overruled Boyd's three assignments of error and affirmed his convictions.
{¶ 7} On June 11, 2024, Boyd filed a timely application for reopening asserting that appellate counsel was ineffective for not arguing seven proposed assignments of error. The State timely opposed the motion.
II. Law and Analysis
A. Standard for reopening
{¶ 8} App.R. 26(B) provides a limited means for criminal defendants to assert claims of ineffective assistance of appeal counsel and have their appeal reopened. State v. Leyh, 2022-Ohio-292.
Claims of ineffective assistance of appellate counsel under App.R. 26(B) are subject to the two-pronged analysis enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See State v. Simpson, 164 Ohio St.3d 102, 2020-Ohio-6719, 172 N.E.3d 97, ¶ 14, id. at ¶ 23 (O'Connor, C.J., concurring), id. at ¶ 28 (Fischer, J., concurring); State v. Reed, 74 Ohio St.3d 534, 535, 1996-Ohio-21, 660 N.E.2d 456 (1996) . . . .
In accordance with the Strickland analysis, an applicant must show that (1) appellate counsel's performance was objectively unreasonable, id. at 687, and (2) there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See Smith v. Robbins, 528 U.S. 259, 285-286, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland at 694.Id. at ¶ 17-18. "The application for reopening 'shall be granted if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal.'" Id. at ¶ 21, quoting App.R. 26(B)(5). "The burden is on the applicant to demonstrate a 'genuine issue' as to whether there is a 'colorable claim' of ineffective assistance of appellate counsel." Id., quoting State v. Spivey, 84 Ohio St.3d 24, 25 (1998).
B. Amendment of the Indictment
{¶ 9} Boyd first claims that appellate counsel was ineffective for not challenging the trial court's decision to allow the State to amend the dates of offenses in the indictment to conform to the evidence.
{¶ 10} "[N]o person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury . . . ." Ohio Const, art. I, § 10. See also U.S. Const., amend. VI. This constitutional provision guarantees the accused that the essential facts constituting the offense for which he or she is tried will be found in the indictment of the grand jury. State v. Thompson, 2006-Ohio-3162, ¶ 14 (8th Dist.). However, an indictment may be amended to conform to the evidence under certain circumstances. Crim.R. 7(D) provides in part:
The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. If any amendment is made to the substance of the indictment, information, or complaint, or to cure a variance between the indictment, information, or complaint and the proof, the defendant is entitled to a discharge of the jury on the defendant's motion, if a jury has been impaneled, and to a reasonable continuance, unless it clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that the defendant's rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury.
{¶ 11} It is within the trial court's discretion to allow amendment. An appellate court reviews the decision for an abuse of that discretion. State v. Moore, 2016-Ohio-2836, ¶ 29 (8th Dist.).
The state may amend an indictment to provide the necessary information. "Under Crim.R. 7(D), a court may amend an indictment 'at any time' if the amendment does not change 'the name or identity of the crime charged.'" State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, ¶ 1. "As long as the state complies with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the original indictment omits an essential element of the offense with which the defendant is charged." State v. Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 15. "Courts cannot grant new trials based upon imperfection or inaccuracy in an indictment if the charge is sufficient to fairly and reasonably inform the defendant of the essential elements of the crime." State v. Landrum, 53 Ohio St.3d 107, 119, 559 N.E.2d 710 (1990), citing Crim.R. 33(E)(1).State v. Troisi, 2022-Ohio-3582, ¶ 25
{¶ 12} The indictment in this case listed the dates of the various offenses as occurring on or about July 23, 2017, to July 23, 2020. During trial, the testimony established that the victim's half-sister was a newborn at the time the family moved into a Cedar Avenue home where the victim testified the majority of the abuse occurred, and her half-sister's birthday was May 1, 2017. (Tr. 667.) Therefore, based on the testimony adduced at trial, the State moved to amend the indictment to change the dates of offenses to the period of time where the victim resided at the Cedar Avenue home, between May 1, 2017, to February 3, 2019.
{¶ 13} Unless it is detrimental to the defense, the precise time and date of an alleged offense are ordinarily not essential elements. State v. Sellards, 17 Ohio St.3d 169, 171 (1985) (absent material detriment to the preparation of a defense, the omission of specific dates and times is without prejudice, and without constitutional consequence). This court has recognized that "'specificity as to the time and date of an offense is not required in an indictment.'" State v. Gibson, 2016-Ohio-7778, ¶ 28 (8th Dist.), quoting State v. Bogan, 2005-Ohio-3412, ¶ 10 (8th Dist.). We have also recognized that when the indictment charges offenses against children, "reasonable allowances for inexact dates and times must be made." State v. Williams, 2013-Ohio-4471, ¶ 13 (8th Dist.).
{¶ 14} Boyd argues that this amendment changed the offenses and created a situation where Boyd was convicted of offenses that were not presented to a grand jury. He cites to two cases in support, State v. Vitale, 96 Ohio App.3d 695 (8th Dist.1994), and State v. Ketchum, 2021-Ohio-1583 (8th Dist.).
{¶ 15} In Ketchum, the grand jury indicted the defendant on two counts of menacing by stalking, alleging that the offenses occurred "on or about October 26, 2018." Id. at ¶ 4. The State also provided a bill of particulars to the defendant, alleging that the offenses occurred "on or about October 26, 2018." Id. at ¶ 5. Prior to trial, the trial court permitted the State to amend the indictment from "on or about October 26, 2018," to a range of "October 26, 2018 to December 24, 2018." Id. at ¶ 6. The defendant argued on appeal that the trial court erred when it permitted the State to amend the indictment. We agreed.
{¶ 16} The Ketchem Court held that the grand jury found, and the bill of particulars confirmed, that the date of the offense was on or about October 26, 2018. We noted that "for the jury to find Ketchum guilty of menacing by stalking it would have had to have found that he committed two or more qualifying actions or incidents closely related in time on or about October 26, 2018." However, the victim in the case testified and "was unequivocal: '[h]e did not threaten me on that day.'" Id. at ¶ 28. We concluded that it was irrelevant if the State proved the December 24, 2018 incident (or a 2015 incident but the State did not amend the indictment to include the 2015 incident) because the fact that it was not "presented to the grand jury in the first place was fatal." Id. at ¶ 31.
{¶ 17} In Vitale, 96 Ohio App.3d 695 (8th Dist.1994), the indictment alleged that a theft had occurred on June 14, 1991. The bill of particulars further specified that the offense occurred "on or about June 14, 1991 at approximately 12:00 p.m., at the location of 1869 East 79th Street, in the City of Cleveland, Ohio." The evidence at trial, however, indicated that the theft occurred on a different date, June 21, 1991, at a different location (the alleged victim's house, not the victim's place of business). At the conclusion of the State's case, the trial court permitted the State to amend the indictment to show the theft offense was committed from "June 14, 1991 through June 21, 1991 inclusive." This court reversed, explaining:
Under Crim.R. 7(D), the trial court had discretion to amend the indictment "provided no change is made in the name or identity of the crime charged." Obviously, if the identity of the crime moves from events on June 14 to different events on June 21, at a different time and place, the identity of the crime has been improperly changed.Id. at 700-701.
{¶ 18} This court concluded in Vitale that the issue was not whether the defendant was prejudiced. Id. at 701. Rather, "the issue [was] whether [the defendant] was convicted on the same evidence on which he was indicted." Id. We explained, "If no evidence is presented that the alleged offenses occurred within the bracketed time frames specified in the indictment, the counts in the indictment relating to those offenses should be dismissed. Any variance of proof outside the parameters of time established by the indictment may constitute a separate offense." Id. Accord State v. Hale, 2024-Ohio-1587, ¶ 85-88 (8th Dist.).
{¶ 19} These cases are easily distinguishable from the present one. In Vitale, the State amended the indictment after presenting its case to the jury to include a new theft offense that occurred at a different place and time than what was set forth in the original indictment. That is not the case here. The State moved to amend the indictment to align with the testimony of the victim in relation to the period of time the victim lived in the Cedar Avenue home. There is no indication that this amendment created a situation where the name or identity of the crime changed or that Boyd was hampered in his defense. The defense at trial was that these offenses never occurred and including the disputed period of time would not change that defense. See State v. Williams, 2013-Ohio-4471, ¶ 15 (8th Dist.) ("Williams outright denied any sexual contact with J.H. Therefore, amending the indictment to include conduct that occurred in September and October 2008 cannot be said to have improperly prejudiced him.").
{¶ 20} Further, in Ketchum, 2021-Ohio-1583 (8th Dist), the State did not present any evidence that the victim was stalked on or around the original date that it had alleged in the indictment. Here, the victim testified that the offenses occurred over a period of time that significantly fell within the duration alleged in the indictment. We find the present facts different from those in Ketchum and Vitale, and more closely align with the following cases.
{¶ 21} This court reviewed an assignment of error for ineffective assistance of counsel for failure to object to the amendment of an indictment and found no error. State v. Sayles, 2020-Ohio-5508 (8th Dist.). There, an amendment to the date range of an offense to conform to the evidence was allowed by the trial court. The State was permitted to amend the dates of sexual offenses of child victims by a year, among others. Id. at ¶ 24. We found that the amendment of the date ranges did not change the name or identity of the offense and was not error. Id.
{¶ 22} In another case, we found that a similar amendment of the date range in the indictment did not change the name or identity of the offense. Moore, 2016-Ohio-2836, ¶ 30 (8th Dist.) ("Here, changing the dates did not change the name or identity of the offenses. This case was also not a case where the change in the dates prevented the defendant from presenting an alibi defense."). Accord State v. Ramsey, 2023-Ohio-807, ¶ 35-39 (8th Dist.) (amendment of the date of offense in the indictment from November 1, 2012, to between October 9, 2018, and November 19, 2018, was not error); Gibson, 2016-Ohio-7778, ¶ 28 (8th Dist.) (amendment of the date of offense from "on or about July 20, 2023" to "on or about May 1, 2013 to July 20, 2013," was found not to constitute reversible error); State v. Bennett, 2011-Ohio-6679, ¶ 11 (9th Dist), quoting State v. Quivey, 2005-Ohio-5540, ¶ 28 (4th Dist.) ("Amendments that change 'only the date on which the offense occurred . . . [do] not charge a new or different offense, nor . . . change the substance of the offense.'"); and State v. Landrum, 2017-Ohio-7240, ¶ 12 (8th Dist.) (finding no error to amendment to the indictment that changed the date of offense by approximately one month).
{¶ 23} There is no indication that amendment of the date range in the indictment in the present case caused Boyd to be convicted of crimes not presented to the grand jury. Contrary to Boyd's argument, Vitale and Ketchum did not hold that any amendment of a date in an indictment constitutes a constitutionally prohibited constructive amendment. The amendment of the indictment in this case did not change the name or identity of the crime and was not an abuse of discretion. Therefore, Boyd's first proposed assignment of error does not present a colorable claim of ineffective assistance of appellate counsel.
C. Cross-Examination of the Victim's Father
{¶ 24} In his second proposed assignment of error, Boyd argues that appellate counsel was ineffective for "failing to challenge the legality of the trial court's exclusion of evidence showing bias, prejudice, and motive, on behalf of the father of the accused, under Ohio Evid.R. 611(B)."
{¶ 25} In the direct appeal, we addressed an assignment of error regarding the right to confront witnesses in relation to the testimony of the victim's father and whether appellant should have been allowed to cross-examine him about allegedly fabricated testimony in order to gain an advantage in a custody dispute. Boyd, 2024-Ohio-1059, at ¶ 55-60 (8th Dist.). Boyd now claims that counsel should have argued that Evid.R. 611 should have been employed in arguments on appeal.
{¶ 26} Evid.R. 611(B) provides that "[c]ross-examination shall be permitted on all relevant matters and matters affecting credibility." However, we already determined that the questioning Boyd now claims should have been allowed was not relevant. Boyd at ¶ 58. There was no contemporaneous custody litigation in the present case as there was in the case cited by Boyd in support of this proposed assignment of error, State v. Huebner, 2023-Ohio-2803 (6th Dist.). We previously addressed the trial court's decision to limit irrelevant questioning in the context of Boyd's right to confront witnesses. We found the proposed questioning Boyd now claims was necessary was irrelevant:
After review, we conclude that the trial court did not abuse its discretion when it limited Boyd's cross-examination of the victim's father regarding prior allegations that he made with respect to mother's 17-year-old relative. We agree that the evidence is not relevant here. There had not been a custody case pending in nearly ten years, and there was no testimony that the victim's parents did not agree on their current custody arrangement.Boyd at ¶ 58.
{¶ 27} Nothing in the present proposed assignment of error leads to a colorable claim of ineffective assistance of appellate counsel if the assignment of error had been raised in the manner Boyd now asserts was required.
D. Allied Offenses
i. Multiple Convictions for Gross Sexual Imposition
{¶ 28} Boyd also claims that appellate counsel was ineffective for failing to argue that trial counsel was ineffective for not objecting to the imposition of sentence on multiple counts because the counts of gross sexual imposition were allied offenses. He asserts these offenses should have merged into one count for purposes of sentencing. He claims that violations of R.C. 2907.05 may result in conviction only once per interaction, not for each touching of an erogenous zone.[
Boyd was charged with four counts of gross sexual imposition, defined in R.C. 2907.05(A)(4) in part as having sexual contact with another or causing another to have sexual contact with the offender, when the other person is less than 13 years of age.
{¶ 29} Ineffective assistance of trial counsel is judged using the Strickland standard announced above. Strickland, 466 U.S. 668, 687, 694 (1984).
{¶ 30} According to R.C. 2941.25(A), "[w]here the same conduct by [a] 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." But a defendant may be convicted of multiple counts
[w]here 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.R.C. 2941.25(B).
{¶ 31} Contrary to Boyd's arguments, each action that constitutes an act of gross sexual imposition may be separately charged and punishment imposed under the following circumstances:
"(1) where the evidence demonstrates either the passage of time or intervening conduct by the defendant between each incident; and (2) where the evidence demonstrates the defendant's touching of two different areas of the victim's body occurred in an interrupted sequence." State v. Cole, 6th Dist. Erie No. E-18-061, 2019-Ohio-5425, ¶ 20, quoting State v. DeGarmo, 5th Dist. Muskingum No. CT2018-0061, 2019-Ohio-4050, ¶ 26. Accordingly, if appellant "committed acts separated by the passage of time or engaged in sexual contact involving more than one erogenous zone, even if in one brief episode, each instance may form the basis for separate counts and are not allied offenses." Id.State v. Knight, 2022-Ohio-1787, ¶ 55 (6th Dist.).
{¶ 32} In that case, the Sixth District found that multiple acts that constituted gross sexual imposition that occurred within a single interaction constituted separate acts that were individually punishable. The Knight Court held:
"The evidence at trial established that appellant committed multiple acts of gross sexual imposition against G.A. by forcing her to kiss him, by grabbing and squeezing her butt, by picking her up, putting her on his lap and grinding her against him, and by grabbing her hips to pull down her shorts. Because the evidence demonstrates that appellant's touching of more than one area of the victim's body occurred in an interrupted sequence, they were separate and distinct acts of gross sexual imposition that were dissimilar in import and significance. Thus, the trial court did not err in refusing to merge the two counts of gross sexual imposition."Id. at ¶ 56. Accord State v. J.M., 2015-Ohio-5574, ¶ 55 (10th Dist.).
{¶ 33} This court recently cited approvingly and applied the analysis from Knight in analyzing whether multiple counts of gross sexual imposition were allied offenses. State v. Sims, 2024-Ohio-250 (8th Dist.). We found that the offenses were not allied where "the Child Victim testified that the first instance occurred when Sims positioned himself next to the Child Victim on the living room couch and placed his penis on her arm. After Sims left the room and the Child Victim fell asleep, Sims later returned to the living room and touched the Child Victim's buttocks with his penis." Id. at ¶ 41.
{¶ 34} Here, Boyd was charged with four counts of gross sexual imposition, Count 4: buttocks, Count 5: penis, Count 6: vaginal area, and Count 7: breasts. The victim testified to multiple acts of touching that constitute acts of gross sexual imposition that occurred frequently during the time the victim lived with Boyd at the Cedar Avenue home. These were not incidents that were part of a single interaction as Boyd alleges but separated in time, location in the home, and area of the body.
{¶ 35} The victim testified that shortly after they moved into the Cedar Avenue home, Boyd began touching her. She described incidents where he touched her chest, her "private part," and her buttocks. This occurred both over and under her clothes. She testified that once, she awoke from sleep to Boyd touching her in this manner. She also described an incident where Boyd forced her to touch his penis and demonstrated the manner to the jury.
{¶ 36} Boyd's allegation that appellate counsel was ineffective for not challenging the gross sexual imposition convictions as allied offenses does not advance a colorable claim of ineffective assistance of appellate counsel.
ii. Rape and Gross Sexual Imposition
{¶ 37} Next, Boyd claims that the counts of gross sexual imposition should have merged with his conviction for rape and again argues that appellate counsel was ineffective for not arguing that trial counsel was ineffective.
{¶ 38} Boyd was convicted of one count of rape under R.C. 2907.02(A)(1) related to fellatio and four counts of gross sexual imposition.
{¶ 39} "Gross sexual imposition is a lesser included offense of rape. State v. Johnson (1988), 36 Ohio St.3d 224, 522 N.E.2d 1082, paragraph one of the syllabus. Consequently, a defendant may not be convicted of both gross sexual imposition and rape when the counts arise out of the same conduct." State v. Foust, 2004-Ohio-7006, ¶ 143.
{¶ 40} Where the conduct that constitutes rape "was accomplished literally with the same gesture, during the same moment, with the same animus as the gross sexual imposition and to the same harmful effect" the acts should merge. J.M., 2015-Ohio-5574, at ¶ 56 (10th Dist.). However, where those acts are committed separately or represent dissimilar import or significance, they are not allied offenses and may be punished separately. In re D.H., 2020-Ohio-5003, ¶ 33 (8th Dist.), quoting State v. Bonner, 2019-Ohio-5243, ¶ 6 (8th Dist.), citing State v. Ruff, 2015-Ohio-995, ¶ 25.
{¶ 41} Here, none of the conduct that constituted the crimes of gross sexual imposition related to the conduct that constituted the act of rape by fellatio. The victim testified that shortly after they moved into the Cedar Avenue home, Boyd began touching her and described the acts that constituted the crimes of gross sexual imposition. She further testified that closer in time to when they moved out of the Cedar Avenue home, Boyd made her put her mouth on his penis, which was the act that constituted Boyd's conviction for rape in this case. The conduct that underpinned the crimes of gross sexual imposition was not the same conduct that constituted the crime for which Boyd was found guilty of rape. They occurred separately. Accord in re D.H. at ¶ 36.
{¶ 42} This proposed assignment of error does not present a colorable claim of ineffective assistance of appellate counsel because trial testimony established that the acts that constituted rape were separate from those that constituted the acts of gross sexual imposition.
E. Jury Instructions
{¶ 43} Boyd raises two proposed assignments of error dealing with jury instructions, claiming trial counsel was ineffective for failing to object to the given instructions. He claims the trial court failed to properly instruct the jury on the count of rape by fellatio and that the instructions on this offense allowed the jury to find Boyd guilty of an element of the offense without applying the beyond-a-reasonable-doubt standard.
{¶ 44} Generally, the failure to object to jury instructions waives all but plain error. State v. Cunningham, 2004-Ohio-7007, ¶ 56; Crim.R. 30(A). Here, Boyd is raising this assignment of error under an ineffective assistance of trial counsel claim, which, again, is judged under the Strickland standard set forth above.
{¶ 45} The content of jury instructions is within the discretion of the trial court. State v. Dunn, 2015-Ohio-3138, ¶ 48 (8th Dist), citing State v. Howard, 2014-Ohio-2176, ¶ 35 (8th Dist.).
"A reviewing court may not reverse a conviction in a criminal case due to jury instructions unless it is clear that the jury instructions constituted prejudicial error." State v. McKibbon, 1st Dist. Hamilton No. C-010145, 2002-Ohio-2041, ¶ 27, citing State v. Adams, 62 Ohio St.2d 151, 154, 404 N.E.2d 144 (1980). In order to determine whether an erroneous jury instruction was prejudicial, a reviewing court must examine the jury instructions as a whole. State v. Harry, 12th Dist. Butler No. CA2008-01-013, 2008-Ohio-6380, ¶ 36, citing State v. Van Gundy, 64 Ohio St.3d 230, 233-234, 1992-Ohio-108, 594 N.E.2d 604 (1992). "A jury instruction constitutes prejudicial error where it results in a manifest miscarriage of justice." State v. Hancock, 12th Dist. Warren No. CA2007-03-042, 2008-Ohio-5419, ¶ 13. Conversely, "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." Crim.R. 52(A).Id. at ¶ 55
i. Rape
{¶ 46} The jury instruction Boyd first claims was in error relates to the sole count of rape of which Boyd was convicted. This was originally charged as Count 2 of the indictment but was later amended to Count 1. The transcript indicates that the jury was instructed in part as follows:
Before you can find the Defendant guilty of rape, you must find beyond a reasonable doubt that on or about March 1, 2017 to February 3, 2019, and in Cuyahoga County, Ohio, the Defendant did engage in sexual conduct, to-wit:
In count 1: Fellatio.
In count 2: Anal intercourse, with [the victim], date of birth 7/23/2008, who was not the spouse of the offender, and [the victim], date of birth 7/23/2008, whose age at the time of the said sexual conduct was less
than 13 years of age, to-wit: date of birth 7/23/2008, whether or not the offender knew the age of [the victim].
{¶ 47} Boyd argues that the trial court did not instruct the jury on three of the five required elements of the offense of rape for Count 1. He views the instruction on Count 1 in isolation as if unrelated to the language that comes after "In count 2:" in the above passage. He claims that the jury was instructed to find "fellatio" without any of the attendant facts that followed.
{¶ 48} However, the written instructions clarify any perceived issue argued by Boyd. The written instructions include the following:
Before you can find the Defendant guilty of rape, you must find beyond a reasonable doubt that on or about March 1, 2017 to February 3, 2019, and in Cuyahoga County, Ohio, the Defendant did engage in sexual conduct, to-wit:
In count 1: Fellatio
In count 2: Anal intercourse
With [the victim], date of birth 7/23/2008, who was not the spouse of the offender, and [the victim], date of birth 7/23/2008, whose age at the time of the said sexual conduct was less than 13 years of age, to-wit: date of birth 7/23/2008, whether or not the offender knew the age of [the victim].
{¶ 49} It is clear from the written instructions and the transcript that the court properly instructed the jury on all the elements for the offenses of rape as charged in Counts 1 and 2. Boyd's argument rests on a misreading of the transcript and jury instructions. It is clear from the context of the jury instructions that both acts of rape included the date of offense listed before each physical act, which was followed by the other elements for both offenses. The instructions went on to define each term and included other appropriate definitions. Therefore, there is no colorable claim of ineffective assistance of counsel for not arguing this issue on appeal.
ii. Beyond-a-Reasonable-Doubt Standard
{¶ 50} Boyd also argues that the jury instructions did not require the jury to find beyond a reasonable doubt that the victim was under the age of 13 at the time of the offense. Boyd relies on the following passage from the transcript for this claim:
If your verdict is guilty of rape as charged in any one or all of Counts 1 and 2 of the indictment, you will continue your deliberations and make an additional finding as to whether at the time of the offense, the said [the victim] "was" or "was not" under the age of 13 years, to-wit: date of birth 10 July 23, 2008, and indicate such finding in the further finding of the verdict form.(Tr. 912.) Boyd's argument also requires this court to view that passage in isolation and ignores the portion of the jury instructions quoted above where the court instructed the jury that it must find beyond a reasonable doubt all the elements of the offense of rape, including that the victim was under the age of 13 at the time of the offense.
{¶ 51} Further, at trial there was no dispute that the victim was under the age of 13 at the time of the incidents described in her testimony. She testified that she was eight years old when these sexual assaults occurred. In rejecting a similar argument raised in relation to jury verdict forms, the Ninth District found that any error was harmless beyond a reasonable doubt because there was uncontested testimony about the age of the victims. State v. McGuire, 1994 Ohio App. LEXIS 5670, 32-33 (9th Dist. Dec. 14, 1994). Accord State v. Chaney, 2006-Ohio-6489, ¶ 35 (3d Dist.). The same is true here. The instruction contained the birth date of the victim and the date range of offenses, all of which were when the victim was under the age of 13.
{¶ 52} The Supreme Court of Ohio has cautioned that "[a] jury instruction must be viewed in the context of the overall charge rather than in isolation." State v. Lewis, 67 Ohio St.3d 200, 203 (1993), citing State v. Price, 60 Ohio St.2d 136 (1979), paragraph four of the syllabus. Viewing the instructions as a whole, there is no arguable claim of ineffective assistance of appellate counsel evidenced by the arguments raised in this proposed assignment of error.
{¶ 53} Boyd's contorted reading of the jury instructions does not establish a colorable claim of ineffective assistance of appellate counsel in this case.
F. The Taking of Notes and Reading Back Portions of Trial Testimony
{¶ 54} Finally, Boyd claims that appellate counsel should have argued that trial counsel was ineffective for not assigning error to the trial court's decision to not allow the jury to take notes or be read portions of the trial testimony during deliberations. He argues that the trial court's blanket policy regarding these issues was clearly an abuse of discretion.
{¶ 55} The Supreme Court of Ohio has held that the adoption of a blanket policy by a judge in refusing to accept no contest pleas constitutes an abuse of discretion because the court is not exercising its discretion. State v. Beasley, 2018-Ohio-16. The Court characterized such blanket policies as arbitrary and an abuse of discretion:
We have defined an abuse of discretion as conduct that is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). And an "arbitrary" decision is one made "without consideration of or regard for facts [or] circumstances." Black's Law Dictionary 125 (10th Ed.2014). See also Dayton ex rel Scandrick v. McGee, 67 Ohio St.2d 356, 359, 423 N.E.2d 1095 (1981), quoting Black's Law Dictionary 96 (5th Ed.1979) ("arbitrary" means "'without adequate determining principle; . . . not governed by any fixed rules or standard'").Id. at ¶ 12. From this case, it is apparent that when a trial judge has discretion to decide an issue or procedure, a blanket policy to always act in a certain way may constitute an abuse of discretion because the court does not take into account the present facts or needs of the individual case and arbitrarily predetermines the issue.
{¶ 56} In the present case, however, there is no indication in the record that the court held a blanket policy that was applied in this case. Boyd's argument is not supported in the record in the places he identified.
{¶ 57} The sole citation in support of the alleged error does not evidence a blanket policy of the court to prohibit the taking of notes or reading back portions of trial testimony to the jury during deliberations.[ For the proposition that the trial court had a blanket policy, Boyd only points to a single page in the transcript at page 922. This page includes the following jury instruction related to the issue raised by Boyd: "During your deliberations, the court reporter will not be permitted to read back to you any portion of any of the testimony which you heard during the course of trial."
Although not cited by Boyd, the trial court did discuss with the jury whether they could take notes. (Tr. 552.) This exchange also does not evidence a blanket policy of the trial judge to not allow the taking of notes. The trial court stated that it does not "allow note-taking normally. It's really not necessary." And then went on to explain why the judge made that decision in the case. This does not evidence a blanket policy.
{¶ 58} This was part of an agreed on jury instruction. Nowhere in this language is there any indication that this is a blanket policy of the court that is imposed without variation or thoughtful consideration. Simply put, there is nothing in the application that supports the proposition that the court had adopted a blanket policy and failed to exercise its discretion. Boyd has not established a colorable claim of ineffective assistance of appellate counsel regarding this alleged assignment of error.
{¶ 59} Boyd's application for reopening does not present a colorable claim of ineffective assistance of appellate counsel and is therefore denied.
{¶ 60} Application denied.
KATHLEEN ANN KEOUGH, P.J. and LISA B. FORBES, J., CONCUR.