State v. Bowling

[Cite as State v. Bowling, 2015-Ohio-360.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2014-01-017

: OPINION
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:

WALTER D. BOWLING, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2013-05-0770

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant

HENDRICKSON, J.

{¶ 1} Defendant-appellant, Walter D. Bowling, appeals from his conviction in the

Butler County Court of Common Pleas for gross sexual imposition. For the reasons outlined

below, we affirm the decision of the trial court.

{¶ 2} On May 22, 2013, a grand jury indicted Bowling. Relevant to this appeal,

Bowling was charged with committing gross sexual imposition and rape against D.K. who is

now 37 years of age. The abuse allegedly occurred when the victim was under 13 years of
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age. Bowling was charged with gross sexual imposition as an ongoing and continuing course

of criminal conduct that occurred on or about 1982 through 1986. Bowling was also charged

with rape as an ongoing and continuing course of criminal conduct that occurred on or about

1988 through May 12, 1989.

{¶ 3} Bowling filed two motions to dismiss the indictment because it was duplicitous

and the statute of limitations had expired. At the hearing on Bowling's motions, the victim

testified that when she was about nine or ten years old an investigation was conducted by

children services into allegations made by the victim's sister regarding sexual contact by

Bowling. A social worker interviewed the victim as a part of the investigation into Bowling's

conduct with her sister. When interviewed, the victim denied that anything inappropriate had

happened between her and Bowling. The victim testified that Bowling had threatened to kill

her if she said anything to the social worker about his conduct.

{¶ 4} Regarding Bowling's sexual contact with the victim, the victim testified that she

told her grandmother about Bowling's conduct, who in turn made her tell her mother, but

children services was never contacted. The victim testified she did not mention the

allegations to anyone else until she talked to a detective in 2012. The trial court overruled

both motions to dismiss. The trial court found that the Twelfth District had clearly held that

indictments involving child sex abuse cases are not duplicitous. Furthermore, the trial court

found that the statute of limitations had not expired.

{¶ 5} The case proceeded to a jury trial. At trial, the victim testified that Bowling, her

adoptive father, inappropriately touched her a couple times per week beginning when she

was approximately six years old. The victim further testified that that the inappropriate

touching of her private areas, including her breasts and vagina, progressed to intercourse

when she was nine or ten years old. The victim testified that the intercourse occurred in a

tent at an Ohio state park and also in her bedroom at their Hamilton, Ohio, residence.
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{¶ 6} After hearing the evidence, the trial court instructed the jury that they must

consider each count and evidence separately. Specifically, the trial court stated: "This being

a criminal case, before it can be said that you reached a verdict, it is necessary for all 12

jurors to agree – all 12 member of the jury to agree upon a verdict * * *." The court then went

through the requirement for all 12 jurors to sign the verdict form for each count.

{¶ 7} The jury found Bowling guilty of gross sexual imposition as charged in the

indictment and not guilty of rape as charged in the indictment, but guilty of the lesser included

offense of gross sexual imposition. Bowling was deemed a sexually oriented offender and

sentenced to three years in prison on each count to be served consecutively.

{¶ 8} Bowling now appeals and asserts three assignments of error for review.

{¶ 9} Assignment of Error No. 1:

{¶ 10} PROSECUTION OF [BOWLING] FOR THE VIOLATIONS ALLEGED IN

COUNTS ONE AND TWO WAS BARRED BY THE STATUTE OF LIMITATIONS, R.C.

2901.13.

{¶ 11} Bowling argues that his convictions should be vacated because the applicable

statute of limitations for his charges had passed. Bowling asserts that because the victim

talked to a children services worker and told several adults, including her grandmother and

mother, when she was a child about the abuse by Bowling, the statute of limitations began to

run prior to when the victim reached the age of majority.

{¶ 12} Effective March 9, 1999, the General Assembly amended R.C. 2901.13 to

provide a 20-year time period within which to prosecute an offender for certain felony

offenses, including gross sexual imposition. R.C. 2901.13(A)(3)(a). An offender is subject to

prosecution under the amended version of R.C. 2901.13 if the six-year statute of limitations

pursuant to the previous version of R.C. 2901.13 had not expired as of March 9, 1999. State

v. Rogers, 12th Dist. Butler No. CA2006-03-055, 2007-Ohio-1890, ¶ 8-9. "With respect to
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sex offenses involving children, the statute of limitations is tolled until the victim reaches the

age of majority, where the corpus delicti of the offenses has not previously been discovered

by a responsible adult as listed in R.C. 2151.421." State v. Ashcraft, 12th Dist. Butler No.

CA2008-12-305, 2009-Ohio-5281, ¶ 31, citing State v. Hughes, 92 Ohio App.3d 26, 29 (12th

Dist.1994); R.C. 2901.13(F). Notably, the Ohio Supreme Court has specifically declined to

add parents to the list of responsible adults set forth in R.C. 2151.421 to trigger the statute of

limitations. State v. Hensley, 59 Ohio St.3d 136, 141 (1991).

{¶ 13} Bowling contends that his prosecution for rape and gross sexual imposition are

time-barred because the statute of limitations was triggered when children services became

involved in the mid-1980s. In State v. Ritchie, 95 Ohio App.3d 569 (12th Dist.1994), we

found that a responsible adult was informed of sexual abuse that triggered the start of the

statute of limitations when a babysitter reported to children services graphic and specific

allegations of sexual abuse made by a five-year-old child against his father. As a result,

children services interviewed the five-year-old victim and two siblings who all denied any

abuse. Id. at 570. Subsequently, children services found the abuse unsubstantiated. Id.

When a case was brought more than seven years later, we found that the charges of sexual

abuse were time-barred as the six-year statute of limitations had expired prior to the

amendment changing the applicable statute of limitations to 20 years based on the

babysitter's graphic report of abuse of the victim to children services. Id. at 571.

{¶ 14} In the case at bar, the victim was born on May 12, 1976, and reached the age

of majority on May 12, 1994. The victim testified that she never told anyone about the sexual

abuse, except for her grandmother who made her tell her mother, until she spoke to a
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detective in 2012. Neither a grandparent nor a parent is listed as a responsible adult for the

1. When the victim was 15 years of age, she moved out of the residence she shared with her mother and
Bowling and moved in with her older sister. There is some discrepancy as to when the older sister knew about
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purpose of reporting child abuse or neglect in R.C. 2151.421.

{¶ 15} Regarding a previous investigation by children services, the investigation was

prompted by an allegation against Bowling regarding the victim's sister. While children

services interviewed the victim as a part of the investigation into the sister's alleged abuse,

the victim denied that she was abused by Bowling. At the time, children services had no

reason to believe that the victim had actually been abused. Consequently, no responsible

adult had been informed of the abuse prior to the victim reaching the age of majority. As

such, the six-year statute of limitations began to run when the victim reached the age of

majority in 1994 and did not expire prior to the 1999 amendment changing the applicable

time period to 20 years. Bowling was indicted on May 22, 2013, which is within 20 years of

the victim attaining the age of majority. Accordingly, the charges were timely filed. As his

prosecution was not barred by the statute of limitations, Bowling's first assignment of error is

overruled.

{¶ 16} Assignment of Error No. 2:

{¶ 17} COUNTS ONE AND TWO CONTAINED DUPLICITOUS CHARGING IN

VIOLATION OF CRIM.R. 8(A), IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION AND ART.1, SECTION 5 AND 10 OF THE

OHIO CONSTITUTION.

{¶ 18} In his second assignment of error, Bowling argues that the charges were

duplicitous because single, multiple acts were charged as one offense committed as a

continuing course of conduct. Specifically, Bowling asserts that because the charges were

duplicitous his rights, including notice, jury unanimity, and protection against double jeopardy,

the situation. In any event, a sibling is not a responsible adult for the purpose of reporting child abuse or neglect
under R.C. 2151.421.
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were violated.2

{¶ 19} We addressed almost identical arguments in previous cases. See State v. Birt,

12th Dist. Butler No. CA2012-02-031, 2013-Ohio-1379, appeal not accepted, 136 Ohio St.3d

1476, 2013-Ohio-3790; and State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289

(12th Dist.), appeal not accepted, 132 Ohio St.3d 1514, 2012-Ohio-4021.

{¶ 20} In Birt, the defendant argued both the indictment and charging were duplicitous

such that several of his constitutional rights were violated. Birt at ¶ 10. The defendant

asserted that the indictment against him was duplicitous because it charged him with

committing "multiple, separate alleged sexual acts under a single count." Id. The defendant

contended that duplicitous charging occurred at trial because the state presented evidence of

"multiple alleged acts of sexual conduct, spanning approximately six to seven years, two

counties, and three separate residences" to prove single counts. Id.

{¶ 21} Similarly, in Blankenburg, the defendant argued that he faced a duplicitous

indictment as "[m]ultiple acts of sexual misconduct were conflated into single counts" and

that duplicitous charging occurred as the state "introduced evidence of multiple acts of sexual

misconduct to prove single counts." Blankenburg at ¶ 7. We disagreed with the defendants

in both Birt and Blankenburg and found that the indictments were not duplicitous and that the

manner in which the evidence was presented at trial did not prejudice them. Id. at ¶ 33; Birt

at ¶ 12.

{¶ 22} In line with our Birt and Blankenburg decisions, we find that the indictment and

the charging in Bowling's case were not duplicitous. Each count contained only one offense.

2. While not specifically identified, it appears that Bowling is arguing both duplicity in the indictment and duplicity
in the charge. Duplicity in the indictment, the more common form of duplicity, occurs when two or more distinct
offenses are joined in a single count. State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289 (12th Dist.),
appeal not accepted, 132 Ohio St.3d 1514, 2012-Ohio-4021 (Ringland, R., concurring in part and dissenting in
part). Duplicity in the charge, on the other hand, exists when an indictment refers to but one criminal act when
multiple acts are then introduced at trial to prove the charged offense. Id.
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Count One alleged gross sexual imposition and Count Two alleged rape. Moreover, the

victim described the approximate time frame, location, and sex act for each incident as

described in the bill of particulars. In reviewing the indictment and the record at trial, we are

not convinced that the manner in which Bowling was indicted or the evidence that was

presented prejudiced him in any way.

{¶ 23} With regards to Bowling's specific arguments related to notice, we note that in

Birt we found that the state adequately delineated between counts such that the defendant

was provided adequate notice of the charges against him. Birt at ¶ 12. Likewise, in this

instance, the state delineated between the count of gross sexual imposition and rape such

that Bowling was provided adequate notice of the charges against him. The indictment

included the specific and separate time frame in which the sex offense allegedly occurred.

Thereafter, the bill of particulars contained a detailed basis for each count in the indictment.

The bill of particulars outlined the specific location, the sex act that occurred, and the victim's

name.

{¶ 24} In Blankenburg, we stated that we did not have concerns with juror unanimity.

Blankenburg at ¶ 22. There, we held that when an indictment alleges that a child victim was

molested intermittently within a specified time period even when the exact date of each

molestation is unknown, the jury must believe or disbelieve testimony regarding a pattern of

conduct. Id. As in Blankenburg, in this instance, juror unanimity was reached regarding a

pattern of conduct involving sexual abuse of a child.

{¶ 25} Additionally, we rejected arguments concerning double jeopardy in

Blankenburg. We found no double-jeopardy issues when an indictment "differentiated the

counts by the type of offense alleged and the time period, and therefore the accused [is]

protected against a subsequent prosecution for the same conduct." Blankenburg at ¶ 28. In

the case at bar, Count One of Bowling's indictment alleged gross sexual imposition occurred
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on or about 1982 through 1986 and Count Two of Bowling's indictment alleged rape occurred

on or about 1988 through 1989. Consequently, the indictment differentiated the counts by

type of the offense and time period, and thus Bowling is protected from subsequent

prosecution on the same conduct.

{¶ 26} In light of the foregoing, we continue to follow our precedent established in Birt

and Blankenburg and find that the indictment and the manner which the evidence was

presented in Bowling's case were not in error.

{¶ 27} Assignment of Error No. 3:

{¶ 28} THE TRIAL COURT ERRED IN FAILING TO PROVIDE A MORE SPECIFIC

UNANIMITY INSTRUCTION TO JURORS.

{¶ 29} Bowling asserts that the trial court erred by only giving a general jury instruction.

Bowling argues that specific instructions should have been given advising the jurors that they

must reach unanimous agreement that he committed one act among multiple acts as alleged

in the indictment and testified to at trial in order to convict him. Bowling argues that he was

prejudiced without such specific instructions because it is impossible to determine the act

upon which the jurors reached unanimity to convict him of two counts of gross sexual

imposition.

{¶ 30} We first note that Bowling did not object to the jury instructions at the time they

were given. As such, plain error is the proper standard of review. Plain error exists where

there is an obvious deviation from a legal rule which affected the defendant's substantial

rights, or influenced the outcome of the proceeding. State v. Craycraft, 12th Dist. Clermont

Nos. CA2009-02-013 and CA2009-02-014, 2010-Ohio-596, ¶ 23. Notice of plain error is

taken with the utmost caution, under exceptional circumstances, and only to prevent a

manifest miscarriage of justice. State v. Grisham, 12th Dist. Warren No. CA2013-12-118,

2014-Ohio-3558, ¶ 38. Therefore, we will not reverse the trial court's decision unless the
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outcome of trial would have been different but for the alleged error. State v. Dougherty, 12th

Dist. Preble No. CA2013-12-014, 2014-Ohio-4760, ¶ 53.

{¶ 31} "[A] general unanimity instruction will ensure that the jury is unanimous on the

factual basis for a conviction, even where an indictment alleges numerous factual bases for

criminal liability." State v. Johnson, 46 Ohio St.3d 96, 104 (1989). "[W]hen a jury returns a

guilty verdict on an indictment charging several acts in the conjunctive * * * the verdict stands

if the evidence is sufficient with respect to any one of the acts charged." Id. While there are

exceptions to this general rule as outlined in Johnson and in State v. Gardner, 118 Ohio

St.3d 420, 2008-Ohio-2787, we found in Blankenburg that juror unanimity is not a concern

when a case involves sexual abuse perpetrated against a minor and the jury believes that a

pattern of conduct of sexual abuse occurred.

{¶ 32} In this instance, a general juror unanimity instruction was given. As the jury

was only required to believe or disbelieve a pattern of conduct of sexual abuse occurred, the

trial court was not required to provide instructions compelling the jury to agree on the specific

incidents they believed established gross sexual imposition for the years indicated in the

indictment. See State v. Ambrosia, 67 Ohio App.3d 552, 561 (6th Dist.1990) (finding an

instruction compelling the jury to agree as to the date, time, or events in child rape case

would have been erroneous as the jury was only required to find the victim's testimony true to

find defendant guilty of raping the victim over a period of years as alleged in the indictment).

As such, a specific jury instruction was not necessary. Consequently, the trial court did not

err, let alone commit plain error, in giving a general unanimity jury instruction. Bowling's third

assignment of error is overruled.

{¶ 33} Judgment affirmed.

PIPER, J., concurs.

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RINGLAND, P.J., concurs in part and dissents in part.

RINGLAND, P.J., concurring in part and dissenting in part.

{¶ 34} I concur in the majority's analysis and resolution of Bowling's first assignment of

error. I dissent, however, with the majority's decision regarding Bowling's second and third

assignments of error. I dissent because the majority does not follow the Ohio Supreme Court

case State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, to ensure the jury returned a

unanimous verdict. Furthermore, I dissent because the majority improperly allows a

continuing course of conduct as an element in the indictments involving sex crimes.

{¶ 35} The principles discussed by the Ohio Supreme Court in Gardner regarding jury

unanimity in the context of a burglary charge are similar in theory to issues in the case at bar

regarding duplicity and jury instructions. In Gardner, the court provided substantial guidance

as to the standard needed to ensure jury unanimity based on whether the offense charged is
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classified as being committed through alternative means or multiple acts. In a case

involving alternative means, when a single offense may be committed in more than one way,

jury unanimity is not required as to the means by which the crime was committed so long as

substantial evidence supports each alternative means. Gardner at ¶ 49. Conversely, in

multiple acts cases, where several acts are alleged and any one of them could constitute the

crime charged, jury unanimity is required as to which act or incident constitutes the crime. Id.

at ¶ 50. The Court stated:

To ensure jury unanimity in multiple acts cases, we require that
either the state elect the particular criminal act upon which it will
rely for conviction, or that the trial court instruct the jury that all of

3. I recognize that while Gardner sheds light on how the Ohio Supreme Court may address the issues of juror
unanimity and duplicity in multiple acts cases in the future, it is not binding as Gardner dealt with a crime
committed by alternative means and is a plurality opinion. See State v. Ward, 9th Dist. Lorain No. 09CA009720,
2011-Ohio-518, ¶ 6. Consequently, I urge the Ohio Supreme Court to reexamine how it wishes to consider juror
unanimity and duplicity in regard to multiple acts cases.
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them must agree that the same underlying criminal act has been
proved beyond a reasonable doubt.

Id.

{¶ 36} The case at bar is a multiple acts case as the facts reveal a number of sexual

acts occurred over a period of time and any one of them could have constituted the crimes

charged in two separate counts. Accordingly, Gardner either required the state to elect a

particular criminal act to pursue or a specific jury instruction. By electing one criminal act to

pursue, multiple acts would not have been used to prove a single offense, and as such,

issues surrounding duplicity in the charge would have been prevented. By giving a specific

jury instruction, issues surrounding a general jury instruction would have been resolved. With

either scenario, jury unanimity would have been guaranteed.

{¶ 37} Moreover, due process requires that the state prove each element of an

offense beyond a reasonable doubt. See, e.g., Patterson v. New York, 432 U.S. 197, 210,

97 S.Ct. 2319 (1977). I wrote separately in a similar case, State v. Blankenburg, 197 Ohio

App.3d 201, 2012-Ohio-1289 (12th Dist.), appeal not accepted, 132 Ohio St.3d 1514, 2012-

Ohio-4021. In Blankenburg, the defendant was charged with multiple counts of a variety of

sex offenses allegedly committed against several minor children. Blankenburg at ¶ 10-13.

The offenses were charged as a continuing course of conduct. Id. In my separate opinion

concurring with the majority, I stated that no rational trier of fact could have entertained

reasonable doubt as to which of the alleged sex acts actually occurred based on the non-

conflicting general testimony of the victims. Id. at ¶ 141. In the case at bar, however, there

was specific testimony from the victim regarding the approximate time and location of

multiple sex acts that require a unanimous verdict as to each count. By the state failing to

elect which offense to pursue and the failure of the trial court to give specific jury unanimity

instructions, it is impossible to determine for which crime the state proved each element

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beyond a reasonable doubt.

{¶ 38} Furthermore, I dissent with the majority because I disagree with their premise

that sex offenses against children include a continuing course of conduct as an element of

the charge. As I stated in Blankenburg, "[t]his premise is contrary to the law in Ohio, detracts

from the analysis of duplicity, and minimizes, if not compounds, the potentially deleterious

effect of duplicity and multiple offenses within each charge." Blankenburg at ¶ 144.

{¶ 39} It is generally recognized that sex offenses are not permitted to be charged as a

continuing course of conduct. See Lafave, Isreal, King & Kerr, Criminal Procedure, Section

19.3(c) (3d Ed.2007). Nearly every state that has addressed this issue has ruled that sex

offenses by their very nature are single-act crimes and to pursue such offenses as a

continuing course of conduct requires the legislature to amend the statutory framework. See

Cooksey v. State, 359 Md. 1, 752 A.2d 606 (2000); State v. Saluter, 715 A.2d 1250

(R.I.1998); State v. Patch, 135 N.H. 127, 599 A.2d 1243 (1991); People v. Keindl, 68 N.Y.2d

410, 509 N.Y.S.2d 790 (1986).

{¶ 40} In Ohio, the General Assembly has expressly provided for numerous

continuing-course-of-conduct crimes. E.g., R.C. 2913.61 (theft offenses); R.C. 2923.32(A)

(engaging in "pattern of corrupt activity"); R.C. 2903.15(A) (permitting child abuse "for a

prolonged period"); R.C. 2903.211(A) (menacing by stalking by "engaging in a pattern of

conduct"); and R.C. 2919.22(B) (endangering children by parties who "repeatedly administer

unwarranted disciplinary measures"). The General Assembly has specifically stated that no

conduct constitutes a criminal offense against the state unless it is defined as an offense in

the Ohio Revised Code. R.C. 2901.03(A). There is no language contained in R.C. 2907.02

for rape or for other sex offenses that expressly or implicitly indicates that these offenses can

be charged as a continuing course of conduct. As such, I disagree with the majority's opinion

allowing sex offenses against children to be charged as a continuing course of conduct and
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defer to the General Assembly to make changes to the statutory framework to permit such

charging.

{¶ 41} In light of the foregoing considerations, I would have sustained Bowling's

second assignment of error regarding duplicity. I also would have sustained Bowling's third

assignment of error regarding jury instructions. Accordingly, I dissent with the majority's

opinion overruling Bowling's second and third assignments of error.

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