State v. Garrett

[Cite as State v. Garrett, 2010-Ohio-1550.]
STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 08-BE-32
)
TOM JEFFERY GARRETT, ) OPINION
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Belmont County, Ohio
Case No. 08CR0145

JUDGMENT: Affirmed

APPEARANCES:
For Plaintiff-Appellee Attorney Helen Yonak
Assistant Prosecuting Attorney
Belmont County Prosecutor’s Office
147 West Main Street
St. Clairsville, Ohio 43950

For Defendant-Appellant Attorney Jeremy J. Masters
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215

JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite

Dated: March 30, 2010
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DONOFRIO, J.

{¶1} Defendant-appellant Tom Jeffery Garrett appeals his conviction and
sentence for rape, sexual battery, and three counts of gross sexual imposition.
Garrett was convicted following a jury trial and sentenced by the trial court to 30
years in prison. On appeal, he alleges error in: (1) his conviction on two of the three
gross sexual imposition counts because the evidence produced at trial insufficiently
differentiated among the three identically worded counts contained in the indictment
and (2) imposition of court costs without notifying him that failure to pay them could
result in the imposition of community service.
{¶2} A Belmont County grand jury indicted Garrett on three counts of gross
sexual imposition, three counts of rape, and one count of sexual battery in
connection with a pattern of sexual abuse he inflicted on his step-daughter from the
time she was just 5 years old until after she turned 13. Each of the gross sexual
imposition counts was worded identically:
{¶3} “On or about July 30, 1998 through March 2006 at Wheeling Township,
Belmont County, Ohio, Tom Jeffery Garrett did have sexual contact with another, to-
wit: [L.N.G.], not the spouse of the offender and said person being less than thirteen
years of age, whether or not the offender knows the age of said person. All in
violation of Ohio Revised Code Section 2907.05(A)(4).”
{¶4} In a subsequent bill of particulars, the state explained that the sexual
abuse began around July 30, 1998, when L.N.G. was 5 years old. Garrett would
enter the room wherever L.N.G. happened to be sleeping and would pull her pajamas
off and touch her breast area and vagina with his fingers. Before L.N.G.’s 10th
birthday, Garrett would also insert his fingers into her vagina and perform oral sex
upon her while he believed she was asleep. This abuse continued on a regular basis
and progressed to Garrett inserting his penis partway into L.N.G.’s vagina, stopping
when he felt resistance or when L.N.G. would open her eyes. After L.N.G. began to
menstruate at the age of 13, the abuse tapered off, occurring once or twice a month
with Garrett returning to oral sex and digital penetration. L.N.G. disclosed the abuse
 -3-

to a friend who in turn reported it to Children Services. Upon questioning by a
Belmont County Sheriff’s Department detective, Garrett admitted the abuse without
explanation.
{¶5} The case proceeded to a jury trial on August 28, 2008. The state
presented the testimony of persons who investigated the case and the victim herself,
L.N.G., who testified to abuse consistent with that already mentioned in the bill of
particulars. On the defense side, Garrett testified in his own behalf, denying the
abuse occurred and asserting that he confessed because he was scared by the
allegations and intimidated by the detective’s position of authority. The jury found
Garrett guilty of the three counts of gross sexual imposition, one of the three counts
of rape, and the one count of sexual battery. The jury found Garrett not guilty of two
of the three counts of rape. The trial court sentenced Garrett to 5 years in prison on
each of the gross sexual imposition counts, 5 years for sexual battery, and 10 years
for rape for an aggregate sentence of 30 years. This appeal followed.
{¶6} Garrett sets forth two assignments of error, the first of which states:
{¶7} “The trial court erred by convicting Mr. Garrett based upon multiple,
identical, and undifferentiated counts of a single offense, denying him due process of
law and violating the Double Jeopardy Clause. Fifth and Fourteenth Amendments,
United States Constitution; Section 10, Article I, Ohio Constitution. (September 26,
2008 Transcript, pp. 14-15); (September 29, 2008 Judgment Entry of Sentence, pp.
4-5).”
{¶8} The issue presented for review under this assignment of error states:
{¶9} “Did the trial court err by convicting Mr. Garrett of three counts of gross
sexual imposition, based upon three identically worded counts in his indictment, in
the absence of evidence produced at trial to differentiate those counts?”
{¶10} Garret argues that he was denied due process of law and his right to be
protected from double jeopardy because he was convicted of three identical and
undifferentiated counts of gross sexual imposition. Citing Valentine v. Konteh (C.A.6
2005), 395 F.3d 626.
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{¶11} The Sixth Amendment to the United States Constitution states in part
that “[i]n all criminal prosecutions, the accused shall * * * be informed of the nature
and cause of the accusation.” In order for an indictment to be constitutionally sound
it must contain “the elements of the offense charged and fairly inform a defendant of
the charge against which he must defend, and, second, enable him to plead an
acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v.
United States (1974), 418 U.S. 87, 117-118, 94 S.Ct. 2887, 41 L.Ed.2d 590; See,
also, State v. Childs (2000), 88 Ohio St.3d 558, 565, 728 N.E.2d 379.
{¶12} In Valentine, the federal Sixth Circuit Court of Appeals examined the
due process and double jeopardy implications of a conviction based on an indictment
that consisted of multiple, identical and undifferentiated counts. Valentine was
charged with twenty counts of rape and twenty counts of felonious sexual penetration
in connection with a pattern of sexual abuse against his eight-year-old stepdaughter.
Each of the twenty rape counts and each of the twenty felonious sexual penetration
counts were identically worded and identified the same approximate ten-month time
frame of occurrence. A bill of particulars offered no further differentiation among the
counts and identified the family home as the location of all forty offenses.
{¶13} According to the Sixth Circuit majority, the victim’s testimony provided
no further differentiation. “She testified that Valentine forced her to perform fellatio in
the family living room on ‘about twenty’ occasions and that Valentine digitally
penetrated her vagina in the family living room on ‘about fifteen’ occasions. The child
went on to testify generally as to further similar incidents occurring in her bedroom, in
her siblings’ bedroom, and in her mother and Valentine’s bedroom. She additionally
testified that Valentine achieved anal penetration with his penis on ‘about ten’
occasions. As the Petitioner points out, the victim altered her numbers somewhat
during cross-examination.” Valentine, 395 F.3d at 629.
{¶14} Valentine was tried and convicted on all counts and sentenced to forty
life sentences. The Ohio Court of Appeals affirmed the twenty rape convictions, but
only fifteen of the felonious sexual penetration convictions, reversing five of those
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counts based on insufficient evidence. The Ohio Supreme Court denied leave to
appeal and Valentine was unsuccessful in postconviction proceedings. The federal
district court for the Northern District of Ohio granted Valentine’s writ of habeas
corpus concluding that the indictment was constitutionally insufficient. The federal
Sixth Circuit Court of Appeals affirmed with respect to nineteen counts of rape and
nineteen counts of felonious sexual penetration, but reversed finding the
constitutional error harmless with respect to one count each of rape and felonious
sexual penetration.
{¶15} Citing Hamling, supra, and other cases, the Sixth Circuit succinctly
identified the three requirements of a sufficient indictment: (1) identification of the
elements of the offense; (2) notice of the charges; and (3) protection against double
jeopardy. There was no dispute that the indictment satisfied the first requirement by
setting out the elements of the offense. The problem arose with the second and third
requirements. Regarding the notice requirement applied to Valentine’s case, the
court observed:
{¶16} “The problem in this case is not the fact that the prosecution did not
provide the defendant with exact times and places. If there had been singular counts
of each offense, the lack of particularity would not have presented the same problem.
Instead, the problem is that within each set of 20 counts, there are absolutely no
distinctions made. Valentine was prosecuted for two criminal acts that occurred
twenty times each, rather than for forty separate criminal acts. In its charges and in
its evidence before the jury, the prosecution did not attempt to lay out the factual
bases of forty separate incidents that took place. Instead, the 8-year-old victim
described ‘typical’ abusive behavior by Valentine and then testified that the ‘typical’
abuse occurred twenty or fifteen times. Outside of the victim’s estimate, no evidence
as to the number of incidents was presented.
{¶17} “Given the way Valentine was indicted and tried, it would have been
incredibly difficult for the jury to consider each count on its own. The jury could not
have found Valentine guilty of Counts 1-5, but not Counts 6-20. Nor could the jury
 -6-

have found him guilty of Counts 1, 3, 5 and 7, but not the rest. Such a result would
be unintelligible, because the criminal counts were not connected to distinguishable
incidents. The jury could have found him ‘not guilty’ of some of the counts only if they
reached the conclusion that the child victim had overestimated the number of abusive
acts. Just as courts should not permit abuse prosecutions to be defeated due to the
limited ability of child victims to remember precise temporal details, they should for
similar reasons not permit multiple convictions to stand based solely on a child's
numerical estimate.
{¶18} “As the forty criminal counts were not anchored to forty distinguishable
criminal offenses, Valentine had little ability to defend himself.” Valentine, 395 F.3d at
632-633.
{¶19} The court had similar concerns with Valentine’s ability to protect himself
from double jeopardy:
{¶20} “In this case, there was no specificity regarding the factual offenses
Valentine allegedly committed. If Valentine had been acquitted of these 40 charges,
it is unclear what limitations would have been imposed on his re-indictment. Would
double jeopardy preclude any prosecution concerning the abuse of this child victim,
the abuse of this victim during the stated time period, the abuse of this victim at their
residence, the stated sexual offenses in the indictment, the offenses offered into
evidence at trial, or some group of forty specific offenses? We cannot be sure what
double jeopardy would prohibit because we cannot be sure what factual incidents
were presented and decided by this jury. If Valentine had been found not guilty, it is
not clear to what extent he could ably assert that his acquittal barred prosecution for
other similar incidents.” Valentine, 395 F.3d at 635.
{¶21} Following Valentine, in cases involving multiple undifferentiated counts
of sexual assault and abuse, various Ohio Courts of Appeals decisions either
distinguished or analogized it to the case at hand depending on the evidence
presented. The Eighth District Court of Appeals has had numerous occasions to
address the import of Valentine. Garrett and the state each cite to different Eighth
 -7-

District cases in support of their respective positions. Garrett analogizes his case to
the Eighth District Court of Appeal’s case where all but one conviction for gross
sexual imposition was vacated based upon an application of Valentine. State v.
Hemphill, 8th Dist. No. 85431, 2005-Ohio-3726. Hemphill was indicted on 33 counts
of gross sexual imposition, along with multiple counts of other offenses. Concerning
the gross sexual imposition counts, the state presented the testimony of the victim
who stated that Hemphill rubbed her chest “[a]ny chance he got.” As for actual
numbers or specific testimony, the only additional testimony was when the state
asked her, “Would he – did he touch your breast at least 33 times?” and she replied,
“Yes.”
{¶22} The Eighth District concluded that this testimony alone was insufficient
to support the multiple counts indicted, explaining:
{¶23} “Although we can appreciate the difficulty of prosecuting a case
involving a reticent victim who appears to be unsupported by her family, this cannot
lessen the state’s burden of proof as to each individual offense. Accordingly,
inasmuch as our analysis is governed by the Court’s holding in Valentine, supra, we
cannot accept the numerical estimate which is unconnected to individual,
distinguishable incidents. We therefore find that there is an insufficient factual basis
for defendant's convictions on these unspecified offenses.
{¶24} “Our further review of the record establishes, however, that a rational
trier of fact could have found the essential elements of gross sexual imposition
beyond a reasonable doubt, from the first incident (involving defendant's request to
get him socks).
{¶25} “* * *
{¶26} “Accordingly, defendant’s conviction for one count of gross sexual
imposition, one count of rape of a girl under thirteen with the furthermore clause
alleging force, and one count of rape with the furthermore clause alleging force, are
all supported by sufficient evidence. We hereby vacate defendant’s convictions for
the remaining offenses.” Id. at ¶¶88-89, 93.
 -8-

{¶27} In this case, Garrett’s reliance on Valentine is misplaced. Indeed, in
many important respects, Garrett’s case is the very antithesis of Valentine for four
reasons: (1) how the indictment was framed; (2) the bill of particulars; (3) how the
case was presented to the jury; and (4) the evidence presented at trial.
{¶28} First, unlike in Valentine where the defendant was indicted for forty
offenses for a time period spanning only ten and half months, Garrett was indicted for
only seven offenses spanning a time period of over eight years. Given L.N.G.’s
allegation that Garrett began touching her when she was four or five years old and
continued this type of sexual abuse once or twice a month until the abuse changed
when she was ten or eleven, the state could have easily charged anywhere from 60
to 168 counts of gross sexual imposition. Instead, the state charged Garrett with only
three counts of gross sexual imposition. The family had moved from California to
Belmont County in 1997, when L.N.G. was four or five years old. (Tr. 183-184.) The
family moved again in 2000 to another house in Belmont County. (Tr. 184.) The
three counts of gross sexual imposition appear to have been divided between the two
different locales in Belmont County (e.g., one count for the abuse when it began at
the first home and the remaining two counts for the abuse that continued at the
second home).
{¶29} Second, unlike in Valentine, there was a bill of particulars in this case
that further differentiated the counts in the indictment. On July 30, 1998, the state
filed a of bill of particulars that read:
{¶30} “On or about July 30, 1998, starting when the victim, [L.N.G.], was 5
years old, the Defendant would enter her bedroom or wherever she was sleeping;
and pull her pajamas off and touch her breast area and vagina with his fingers. Prior
to victim’s 10th birthday, he would insert his fingers into her vagina and perform oral
sex upon her while he believed she was asleep.
{¶31} “This continued on a regular basis, and progresses to the Defendant
inserting his penis partway into the victim’s vagina, stopping when he felt any
resistance, of [sic] if the victim opened her eyes.
 -9-

{¶32} “After the victim started to menstruate, at age 13, the Defendant
returned to oral sex and digital penetration, and tapered off to once or twice a month.
{¶33} “The victim disclosed the abuse to a friend, who reported it to Children
Services.
{¶34} “Defendant was questioned by Belmont Count [sic] Sheriff’s
Department Detective Ryan Allar, and admitted he did these things to his step-
daughter, but didn’t know why.
{¶35} “On June 4, 2008, the Defendant was indicted by the Belmont County
Grand Jury.
{¶36} “State incorporates all other evidence from discovery previously
provided.”
{¶37} Unlike the indictment in Valentine, the bill of particulars here did not
“merely restate” the allegations contained in the indictment. Valentine v. Konteh
(C.A.6 2005), 395 F.3d 629. The bill of particulars in this case explicitly detailed the
type of sexual contact and conduct involved, how it started, when it changed at
different ages, and how long it continued.
{¶38} Third, the case was presented to the jury consistent with how the case
was indicted. In its opening statement to the jury, the state conveyed the
conservative approach it had taken to the case:
{¶39} “There are seven counts in the Indictment spanning 1998 to -- until
2006. Eight years. I believe it’s helpful for me now to explain to you why the State
indicted the defendant in this time frame, from [L.N.G.’s] birthday at age 5 until 12
years old.
{¶40} “[L.N.G.] is going to testify today that the abuse started when she was
around 4 or 5. So we took the latter date of age 5. [L.N.G.] is going to testify that this
abuse went on from the time she was 5 years old until she was 12 or 13. Again, we
took the lower date.
{¶41} “* * *
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{¶42} “Counts I, II, and III are the gross sexual imposition, the touching of a
person’s private parts -- in this case her vagina and her breasts -- of a child. [L.N.G.]
will tell you that this went on, on a periodic basis, you know, roughly once or twice a
month, maybe, from the time she was 5 until she was around 10 or 11.
{¶43} “* * *
{¶44} “There’s three counts for gross sexual imposition. The touching of
[L.N.G.] from age 5 to 12. There’s three counts of rape of a child less than 13, when
[L.N.G.] was 10 or 11. And there’s one count of sexual battery for the defendant
having sex with his stepdaughter. Seven counts for eight years of continuous abuse.
Some states like to indict for everything ever committed. We have not done that in
this case. Those are for -- they make great news. They make great TV copy. They
make great headlines. We’re not interested in news or headlines. We’re interested
in justice for [L.N.G.]” (Tr. 148, 149, 152.)
{¶45} Garrett’s trial counsel acknowledged, “[T]he government has been very
judicious. They’ve only indicted seven counts when they could have indicted 700.”
(Tr. 153.)
{¶46} Fourth, the evidence the state presented at trial was consistent with the
indictment and bill of particulars. L.N.G. testified that Garrett began touching her
when she was four or five years old at their first home in Belmont County, Ohio after
they moved from California. (Tr. 184, 188.) The abuse continued when they moved
into their second home in Belmont County in 2000. (Tr. 184, 188.)
{¶47} In sum, Garrett was not denied due process of law and was protected
from double jeopardy. The three counts of gross sexual imposition he was convicted
of were not identical and undifferentiated. Garrett was indicted for only a small
fraction of the offenses for which he could have been, based on the victim’s
allegation of a sustained and continual pattern of sexual abuse. The bill of particulars
further differentiated those counts by explicitly detailing the type of sexual contact
and conduct and describing at what ages which type of abuse occurred. At trial, the
victim differentiated those counts further by explaining that the abuse had occurred in
 - 11 -

two different homes. Garrett was not prosecuted for one criminal act that occurred
three times each; rather, he was convicted for three separate criminal acts.
{¶48} Accordingly, Garrett’s first assignment of error is without merit.
{¶49} Garrett’s second assignment of error states:
{¶50} “The trial court erred by imposing court costs without notifying Tom
Garrett that failure to pay court costs may result in the court’s ordering him to perform
community service. (September 26, 2008 Transcript, pp. 17-18); (September 29,
2008 Judgment Entry of Sentence, p. 7).”
{¶51} The issue presented for review under this assignment of error states:
{¶52} “Did the trial court err by failing to notify Mr. Garrett that failure to pay
court costs could result in the court’s ordering him to perform community service, up
to forty hours per month, at a specified hourly credit rate per hour of community
service, until the court is satisfied that he is in compliance with an approved payment
schedule or his court costs have been satisfied through his community service?”
{¶53} A trial court may order an indigent defendant to pay court costs as part
of his sentence. State v. Roux, 154 Ohio App.3d 296, 2003-Ohio-4876, 797 N.E.2d
112. In criminal cases, court costs and the imposition of community service upon
default are governed by R.C. 2947.23, which provides as follows:
{¶54} “(A)(1) In all criminal cases, including violations of ordinances, the judge
or magistrate shall include in the sentence the costs of prosecution and render a
judgment against the defendant for such costs. At the time the judge or magistrate
imposes sentence, the judge or magistrate shall notify the defendant of both of the
following:
{¶55} “(a) If the defendant fails to pay that judgment or fails to timely make
payments towards that judgment under a payment schedule approved by the court,
the court may order the defendant to perform community service in an amount of not
more than forty hours per month until the judgment is paid or until the court is
satisfied that the defendant is in compliance with the approved payment schedule.
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{¶56} “(b) If the court orders the defendant to perform the community service,
the defendant will receive credit upon the judgment at the specified hourly credit rate
per hour of community service performed, and each hour of community service
performed will reduce the judgment by that amount.” (Emphasis added.)
{¶57} A review of the transcript and judgment entry confirms that the trial
court ordered Garrett to pay costs. However, it did not notify him that failure to do so
could result in the imposition of community service, as provided by R.C.
2947.23(A)(1)(a).
{¶58} Garrett relies on State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-
4006, 871 N.E.2d 589, in which the Ohio Supreme Court acknowledged that the trial
court must notify the defendant, at the time of sentencing, that a failure to pay
judgment costs may result in the imposition of community service. In Clevenger, the
trial court chose to suspend properly imposed court costs because of the defendant’s
financial status. The Court held that the trial court had no authority to suspend the
payment of court costs previously imposed by it on a criminal defendant.
{¶59} Here, unlike the facts in Clevenger, supra, the trial court did not
suspend Garrett’s court costs. Instead, the trial court imposed court costs, but did so
in a manner inconsistent with R.C. 2947.23(A)(1)(a).
{¶60} In State v. Boice, 4th Dist. No. 08CA24, 2009-Ohio-1755, the Fourth
District faced an argument similar to the one raised here. In Boice, the trial court
imposed court costs on a defendant who pled guilty to aggravated burglary. Id. at ¶1.
The defendant asserted the trial court erred when it imposed court costs without
notifying him that failure to pay court costs could result in the imposition of community
service. Id. The defendant raised this issue for the first time on appeal, even before
he failed to make his first payment of court costs. Id. The court concluded that
although they “agree with Appellant that R.C. 2947.23 makes it mandatory for the
Judge to inform a defendant that he could be ordered to perform community service,
at [the time the appeal was brought], Appellant has not suffered any prejudice from
the trial court’s failure to inform him that it may, in the future, require him to perform
 - 13 -

community service to fulfill his obligation to pay costs.” Id. at ¶11. The court held the
issue is not ripe for adjudication. Boice at ¶11. See, also, State v. Slonaker, 4th Dist.
No. 08CA21, 2008-Ohio-7009, at ¶7 (concluding an identical appeal was not ripe for
adjudication), State v. Ward, 168 Ohio App.3d 701, 714, 2006-Ohio-4847, 861
N.E.2d 823 (4th Dist.) (declining to address an identical issue because it was not
properly raised, and because the appellant had suffered no prejudice because of
error and, therefore, the matter was not ripe for adjudication). This court has also
held that the issue is not ripe for adjudication. State v. Walters, 7th Dist. No. 08-CO-
34, 2009-Ohio-6762.
{¶61} Here, similar to Boice, Garrett raises this issue on appeal and has yet to
default on his payment of court costs or fines. Like Boice, Garrett has not yet
suffered any prejudice because of the error and, therefore, the issue is not ripe for
adjudication. Further, as in Boice and Slonaker, should Garrett, at some point in the
future, fail to pay costs as ordered; the trial court should not have the option of
imposing community service because it did not inform the appellant of this possibility
at his sentencing hearing. See State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746,
814 N.E.2d 837 (addressing an issue, ripe for adjudication, and remanding the case
to the trial court because the required notifications were not supplied at sentencing).
In Brooks, during sentencing, the trial court did not notify the defendant that a prison
term might be imposed if he violated the terms of his community control sanction, as
required by R.C. 2929.19. Id. at ¶1. The appeal was brought after Brooks pled guilty
to violating the terms of his community control and was sentenced to eight months in
prison. Id. Here, in contrast, Garrett has yet to default on his payments and,
therefore, has not been ordered to perform community service, thus not making this
issue ripe for adjudication. Walters, supra.
{¶62} Accordingly, Garrett’s second assignment of error is without merit.
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{¶63} The judgment of the trial court is affirmed.

Vukovich, P.J., concurs.

Waite, J., concurs.