State v. Addison

[Cite as State v. Addison, 2020-Ohio-3500.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Appellee, : CASE NOS. CA2019-07-058
CA2019-07-059
:
- vs - OPINION
: 6/29/2020

JOSEPH S. ADDISON, :

Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case Nos. 2017CR823 and 2018CR721

D. Vincent Faris, Clermont County Prosecuting Attorney, Nick Norton, 76 South Riverside
Drive, 2nd Floor, Batavia, Ohio 45103, for appellee

Law Offices of William J. Rapp, Joseph R. Crousey, One East Main Street, Amelia, Ohio
45102, for appellant

S. POWELL, J.

{¶ 1} Appellant, Joseph S. Addison, appeals from his convictions and sentence in

the Clermont County Court of Common Pleas for rape and gross sexual imposition. For

the reasons stated below, we affirm.

{¶ 2} Following accusations of sexual abuse by three of Addison's children, M.A.,

K.K., and A.A., charges were brought against Addison. On December 21, 2017, Addison
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was indicted in Case No. 2017-CR-00823, on seven counts of rape and one count of gross

sexual imposition. Two of the rape counts included a specification that the victim was less

than 13 years of age, while the remaining five rape counts included a specification that the

victim was less than 10 years of age. The charges arose out of allegations that between

February 2013 and November 2017, Addison engaged in digital penetration and

cunnilingus with K.K. several times, and forced K.K. to touch his penis. K.K. was 11 years

old at the time of the indictment.

{¶ 3} On August 16, 2018, Addison was indicted a second time in Case No. 2018-

CR-00721, on two counts of rape, with the specification that the victim was less than 13

years of age, and three counts of gross sexual imposition. The charges arose out of

allegations that in 2007, Addison touched M.A.'s vagina on two occasions and in 2015,

Addison touched M.A.'s thigh near her vagina. With regard to the rape charges, the state

alleged that in August 2005, Addison digitally penetrated the vagina of A.A. on two

occasions. Despite the timing of the indictment, the charges relating to M.A. stemmed from

allegations she made against Addison in 2016. At the time of the indictment, M.A. was 16

years old and A.A. was 21 years old.

{¶ 4} On January 10, 2019, the state moved the trial court to consolidate the two

cases as the victims were biological siblings and the degree of manipulation and grooming

Addison engaged in with all the victims could be characterized as a "behavioral fingerprint."

The state further argued that because all of the counts in the indictments were simple and

direct, each offense should be joined. Addison opposed the consolidation and further

moved the trial court to sever counts four and five in case 2018-CR-00721. Addison argued

the two cases involved sexual assaults allegedly committed against three separate

individuals, and that the probative value of consolidating the two cases did not outweigh

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the prejudice to Addison. Under this same reasoning, Addison argued counts four and five

in case 2018-CR-00721 should be tried separately from the first three counts of the same

case. After a hearing, the trial court granted the state's motion to consolidate the two cases

and denied Addison's motion to sever counts four and five.

{¶ 5} On May 6, 2019, Addison's case proceeded to a jury trial. During the six-day

jury trial, the state presented testimony from 22 witnesses, including the three victims.

Relevant to this appeal, the following testimony was produced at trial:

Testimony Regarding K.K.

{¶ 6} The state first presented testimony and evidence focused on K.K.'s

allegations. Toni Marshall, whose relationship with K.K. began when K.K. was 13 months

old, testified that she considered herself K.K.'s "mom." According to Marshall, K.K. lived

off-and-on with her biological father, Addison, until 2014. At that point, K.K. began spending

more time with Marshall and her family. In 2016, Addison granted temporary guardianship

and legal custody of K.K. and M.A. to Marshall and her mother, Audrey Caldwell. When

K.K. was in fourth grade, she moved in with Marshall and Caldwell and would occasionally

visit with Addison on the weekends. Marshall indicated they would allow Addison to visit

with K.K. on the weekends to appease Addison, as he would threaten to take K.K. and M.A.

from them "all the time."

{¶ 7} K.K. testified that when she was around six years old Addison began touching

her inappropriately. She indicated Addison put his fingers inside her vagina more than 50

times and would touch her breasts. K.K. further indicated that Addison would make her

"jerk him off" sometimes, which she described as grabbing Addison's penis and "go up and

down." When K.K. would "go up and down" the "wet, silky-ish, white stuff" would come out.

K.K. indicated she touched Addison's penis on approximately 15 occasions. K.K. also

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testified that before she lived with Caldwell, Addison inserted his penis into her vagina, into

her mouth, and onto her leg. K.K. estimated Addison inserted his penis in her vagina

approximately five times. K.K. also recalled Addison attempting to put his penis into her

"back part" twice.

{¶ 8} According to K.K., the abuse occurred every weekend she visited with

Addison. The abuse began when K.K. was in second grade and occurred every year until

she was 11 years old. K.K. further testified that most of the abuse occurred in Addison's

bed, as she slept in his bed when she visited, but indicated it also occurred on the couch

and in her bedroom. K.K. indicated she was afraid to tell anyone because Addison

threatened that she would not see Marshall or Caldwell if she told.

{¶ 9} Marshall also testified regarding M.A.'s similar disclosure in November 2016

and explained why she and Caldwell continued to take K.K. to Addison's after hearing

M.A.'s claims. According to Marshall, at the time M.A. made her disclosure, Addison had

recently taken away her phone, and Marshall viewed her claims "more as, like, she was

upset trying to get [Addison] in trouble." In light of Marshall and Caldwell's reaction to M.A.'s

disclosure, K.K. was "more afraid to tell," and was afraid no one would believe her.

{¶ 10} In November 2017, when K.K. was 11 years old, K.K. disclosed the abuse to

Caldwell and Marshall. According to K.K., she elected to tell someone at that point because

Addison indicated he was going to "put his penis in [her]" the next time she came over,

which scared her. Marshall testified that during the disclosure, K.K. indicated that that

inappropriate "things" had been happening for "a long time," including that Addison would

make K.K. do "things" until "white stuff" came out; Addison attempted to "stick his thing" in

the different "holes" she had; and that Addison would stick his fingers inside of her and

touch her inappropriately. K.K. indicated the most recent incident had occurred a few days

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prior.

{¶ 11} After K.K.'s disclosure, Caldwell called the police and took K.K. to Children's

Hospital. When K.K. arrived at Children's Hospital, she was interviewed by a social worker.

At trial, the social worker testified that the purpose of the interview was to determine

whether the last instance of sexual assault occurred recent enough to require more than a

basic medical exam. During the interview, K.K. stated that her dad had been touching her

for the past six years. Specifically, K.K. indicated Addison had "fingered her," licked her

"woo-ha," and made her "rub his 'thing,' until 'white stuff'" came out. K.K. clarified in the

interview that her "woo-ha" was her vagina and that Addison's "thing" was his penis. K.K.

further stated there were times where Addison attempted to insert his penis in her "butt"

and vagina, but it did not go in because it "hurt too bad." K.K. also described Addison

making her "finger herself." According to K.K., the last instance of sexual assault occurred

on November 11, 2017. As a result of the interview, the social worker referred K.K. to the

Mayerson Center.

{¶ 12} Due to the timing of the last instance of sexual assault, a doctor with

Children's Hospital conducted a genital examination of K.K. At the same time, a SANE

nurse completed a sexual assault kit on K.K. The doctor testified that the results of K.K.'s

examination were neither normal nor abnormal. According to the doctor, K.K. did not exhibit

any signs of physical injury, such as bruising, however, the doctor indicated normal findings

could also be suggestive of sexual assault. Specifically, in the majority of children's sexual

abuse cases there are no findings of injury. The doctor also explained that although K.K.

exhibited skin tags in her perianal area, which could be a result of abuse, such a fact did

not necessarily mean that abuse occurred. With regard to the genital examination, the

doctor testified K.K. had a hymenal notch with a slight bit of discoloration. The doctor

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concluded this also was not a definitive finding of sexual assault, however, sexual assault

could not be precluded either.

{¶ 13} On November 16, 2017, K.K. met with Cecilia Freihofer, a social worker at

the Mayerson Center. That day, Freihofer conducted a forensic interview of K.K. Freihofer

testified at trial that K.K. indicated multiple incidents of inappropriate contact during the

interview, including incidents like:

[F]ondling of the vagina with the hand by her father; digital
vaginal penetration by her father; being forced to in - - for a lack
of better word, masturbate her father's penis until ejaculation.
There were incidents of oral/vaginal contact where he would lick
her vagina. She had to lick his penis. He put his penis in her
vagina, although he also - - it was - - she was not - - in her
words, like, he told her that she had to get it bigger or get it
stretched out because it wouldn't go all the way in.
Penile/anal contact; penile/anal penetration; oral/penile
penetration where she had to lick his penis and that she had to
play with his nuts, as she called them. She had to masturbate
herself in front of him and that he used a tampon on her - - in
her vagina one time.

K.K. then told Freihofer one or multiple of the above acts occurred every time she visited

Addison. Freihofer testified that although K.K. indicated the abuse began when she was

six years old, and continued for six years, it was consistent in her experience that dates

and times are unknown to children.

{¶ 14} As a result of the interview, the Mayerson Center referred K.K. to seek

additional therapy or treatment. After her interview, K.K. engaged in trauma-based

counseling with the Mayerson Center for six or eight weeks, and remained in outside

counseling at the time of trial.

{¶ 15} The state also presented testimony from Detective Erin Williams with the

Union Township Police Department. The detective testified that after she was assigned

the case, she reviewed the reports from the Mayerson Center and Children's Hospital

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regarding the allegations. As a part of the investigation, the detective facilitated a controlled

call between K.K. and Addison. A recording of the call was played for the jury and admitted

into evidence. During the call, K.K. said that she has been sick lately because she had

been having a hard time dealing with their "little secret" and that she wanted to talk "serious"

about their secret. Addison responded that she did not have to come over to the house

anymore. Addison further indicated that their secret was "done" and that K.K. "didn't have

to worry about it anymore." K.K. stated she needed him to promise that he would not touch

her "who-ha" anymore, to which Addison responded "okay." Addison then began

discussing Christmas, and asked if K.K. wanted any "big ticket items." K.K. told him he

could not buy her off, and that she wanted him to promise her "this stuff." Addison

responded, "okay, it's done and over with" and "I already said fine."

{¶ 16} After the controlled call, the detective contacted the prosecutor's office and a

search warrant was executed on Addison's apartment in Clermont County on November

27, 2017. While executing the search warrant, several items were collected from Addison's

apartment and submitted for DNA testing including fingernail clippings, a mattress cover, a

fitted sheet, a flat sheet, a section of fabric from the couch, and a DNA comparison for

Addison. Those items were submitted to the Bureau of Criminal Investigations ("BCI") for

DNA testing on April 27, 2018.

{¶ 17} The BCI forensic scientist who examined the items submitted by Detective

Williams also testified at trial. During his testimony, the forensic scientist indicated he

tested the fitted bedsheet for semen, and that the results were positive. At that point, the

fitted bedsheet was stored for subsequent DNA testing and the remaining items were not

tested. Thereafter, a DNA analyst with BCI testified regarding the DNA results from K.K.'s

rape kit and the bedsheet. With regard to K.K.'s rape kit, the analyst testified no semen or

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DNA foreign to K.K. was discovered in any of the samples included in the kit. However,

the bedsheet contained two stains, each determined to contain semen. When testing the

first stain, the analyst concluded that the stain contained a mixture of DNA which included

the DNA of Addison, K.K., and an unknown female. K.K. was included in the mixture as

one in one hundred thousand non-sperm fraction. The analyst testified his findings were

consistent with K.K.'s allegation that she was forced to masturbate Addison until completion

on that sheet, however, he further testified there were "numerous ways" that could explain

K.K.'s DNA presence in the mixture. With regard to the second stain, the analyst concluded

that while Addison's DNA and an unknown female DNA were present in the mixture, K.K.

was excluded from the comparisons the analyst could make.

Testimony Regarding M.A.

{¶ 18} At trial, M.A. testified that when she was young, her father, Addison, touched

her inappropriately. M.A. specified that in 2007 Addison touched the outside of her vagina

area with his hands. M.A. also described a time when she and Addison were sleeping on

the floor at Addison's residence. While M.A. was sleeping, she awoke to find Addison

touching her leg and "trying to go * * * between [her] legs and up [her] thighs." M.A. got up

and told Addison not to touch her again.

{¶ 19} At trial, M.A. also stated that Addison asked her to "sit on [his] face" through

a Facebook message, and consistently made comments about her body, including that she

had "nice thighs" and a "nice butt." According to M.A., she did not tell anyone about the

incidents because she did not want to be separated from K.K. Ultimately, M.A. disclosed

the abuse to her friend and sister in November 2016.

{¶ 20} The state also presented testimony from Sergeant Bernard Boerger with the

Clermont County Sheriff's Office. The sergeant testified that he was the road sergeant who

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responded to M.A.'s allegations. The sergeant spoke with M.A.'s sister, A.A., and ultimately

made contact with M.A. at Addison's residence. Due to the allegations, the sergeant

removed M.A. from the residence, took her to her grandmother's home, and contacted

children's protective services regarding the situation. Thereafter, the sergeant was not

involved in any additional investigation into M.A.'s allegations, however, he confirmed it

was not unusual for a case to remain open while additional evidence was collected. After

the sergeant's initial investigation into the allegations, the case was assigned to Investigator

Lori Saylor with the Clermont County Sheriff's Office. The investigator testified at trial, and

stated that because Addison was aware of the allegations, the investigation was limited.

According to the investigator, she advised M.A. to go to the Mayerson Center.

{¶ 21} On November 23, 2016, approximately one year prior to interviewing K.K.,

Cecilia Freihofer, the social worker with the Mayerson Center, interviewed M.A. regarding

her allegations. At trial, Freihofer testified that at the time of the interview, M.A. was 14

years old. M.A. described the first instance of sexual assault, which occurred when she

was around six years old, but she could not recall specifically what had happened. M.A.

knew Addison had touched her vagina and that she did not have clothes on. M.A. recalled

a second incident where Addison began rubbing her stomach on top of her clothing and

attempted to put his hands down her pants. At that point, M.A. left the room.

{¶ 22} Freihofer indicated that M.A. was afraid to disclose the abuse sooner, as

Addison had threatened to move her away from her family, siblings, and friends if she told.

M.A. also disclosed to Freihofer that she had developed suicidal thoughts in the last week.

As a result of the interview, Freihofer recommended a physical exam be completed,

however, M.A. declined. Freihofer further recommended that M.A. engage in consistent

ongoing therapy.

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{¶ 23} At the close of the state's case-in-chief, the defense moved for an acquittal

pursuant to Crim.R. 29. The trial court denied the motion. Addison did not testify on his

behalf, and presented two witnesses in his defense. Both witnesses testified they had

never seen Addison behave inappropriately with his daughters.

{¶ 24} Thereafter, the jury found Addison guilty of four counts of rape and three

counts of gross sexual imposition. Notably, Addison was acquitted of both charges relating

to A.A. After a hearing, the trial court sentenced Addison to a prison term of life without

parole, which was to be served consecutively with a mandatory ten years to life prison

sentence.

{¶ 25} Addison now appeals, raising five assignments of error for our review.

{¶ 26} Assignment of Error No. 1:

{¶ 27} THE TRIAL COURT ERRED BY REFUSING TO CONSIDER APPELLANT'S

REQUEST TO REPRESENT HIMSELF IN THE PROCEEDINGS.

{¶ 28} In his first assignment of error, Addison argues the trial court improperly

denied him the right to self-representation.

{¶ 29} According to the Sixth Amendment, a criminal has a right of self-

representation and may defend himself or herself without counsel when he or she

voluntarily, knowingly, and intelligently elects to do so. State v. Neyland, 139 Ohio St.3d

353, 2014-Ohio-1914, ¶ 71. "The assertion of the right to self-representation must be clear

and unequivocal." Id. at ¶ 72. A request for self-representation is not unequivocal if it is a

"momentary caprice or the result of thinking out loud, or the result of frustration." Id. at ¶

73. Nor is a request unequivocal if it is "an emotional response." State v. Steele, 155 Ohio

App.3d 659, 2003-Ohio-7103, ¶ 13 (1st Dist.); see also State v. Frost, 12th Dist. Fayette

No. CA2018-11-023, 2019-Ohio-3540.

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{¶ 30} After being indicted, Addison was appointed counsel. Due to a conflict,

Addison's appointed counsel withdrew from the case, and Addison was appointed new

counsel, Brian Goldberg. Thereafter, Goldberg filed a motion to withdraw as counsel, as

he felt the relationship had deteriorated to the point where he was unable to provide

effective representation for Addison. The trial court granted Goldberg's motion, and

appointed a third attorney.

{¶ 31} In September 2018, Addison's new attorney filed a motion to withdraw as

counsel, wherein she indicated Addison had requested, via letter, for her to remove herself

as counsel. A few days later, the trial court held a hearing regarding the matter. At the

hearing, the attorney explained that Addison was dissatisfied with her representation.

Addison stated he was unhappy with his attorney because he felt she was working with the

prosecutor and laughed at Addison for electing to go to trial rather than accepting a plea

deal. Addison also claimed his attorney would not address allegedly exonerating witnesses

and would not file various motions Addison felt were necessary to his defense.

{¶ 32} Addison's mother and aunt also spoke at the hearing. Both indicated

Addison's stubbornness and disabilities were difficult for an attorney to handle. However,

according to Addison's aunt, Addison just wanted an attorney that would listen to him and

research the case. The trial court proceeded to ask Addison whether he had a specific

attorney in mind, and Addison asked to see the list of available attorneys. At that point, the

following discussion ensued:

THE COURT: [G]ive me my list.

ADDISON: If I can only pick from the list, I'll pick from that list.

THE COURT: Well, I'm not certain that I'm going to let you pick.
I want to know if you had somebody in mind.

ADDISON: At this point - - I'd take Goldberg back.

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***

ADDISON: If he'll take me back, I'll take Goldberg.

{¶ 33} The trial court then expressed its concern to Addison, and indicated, "You're

articulate. You're no dummy. You speak for yourself. But there's a limit to how far you

need to go to get what you want. That's all. And sometimes you don't understand your

limitations. That's why you have to have a lawyer." In response, Addison indicated that "if

[he] had a lawyer that came and [saw him], [he] wouldn't have to worry about it." According

to Addison, he was upset that his attorneys were not handling the case the way he wanted

and that "the one thing that [he's] asked for from the very beginning * * * is [he] want[s] an

attorney to come see [him]." The trial court then explained to Addison that "it's not for

[Addison] to decide what [his attorneys] do" and that Addison did not understand his

attorney's decisions.

{¶ 34} At that point, Addison requested to appoint himself as his own attorney. The

trial court denied his request and the two continued to discuss which attorney to appoint.

Addison then stated "I've asked him to appoint myself. You've already seen I'm competent

enough to do it. You've denied me." The trial court responded, "[y]eah, he's just angry."

The trial court and Addison then continued to discuss the attorneys who could handle the

case, and ultimately reached an agreement as to several attorneys, including Goldberg,

whom Addison indicated he would be comfortable proceeding with. The trial court

reiterated, "Okay, you're saying that on your own?" To which Addison responded, yes.

{¶ 35} After a review of the record, we find that Addison's right to self-representation

was not violated because he did not unequivocally and explicitly invoke his right. Rather,

a review of the entire record reveals that Addison's reference to self-representation was the

result of frustration and was an emotional response to the statements made at the hearing.

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Addison's statement about representing himself came immediately after he expressed his

frustrations with defense counsel's decisions and strategies, as well as his belief that his

attorney was working in collusion with the prosecutor.

{¶ 36} Furthermore, Addison's statement regarding self-representation directly

conflicted with his clear intention to obtain a new lawyer just minutes before at the same

hearing. According to the record, before and after stating he wished to appoint himself as

his own attorney, Addison and the trial court discussed in detail who was competent to

represent Addison and what Addison expected from his new attorney. In fact, Addison had

already requested the trial court to re-appoint Brian Goldberg, the attorney he previously

terminated, at the point he indicated he wished to represent himself. Moreover, by the

conclusion of the hearing, Addison had identified a number of attorneys he would be

comfortable with handling his defense. Such facts are indicative that Addison's request

was not clear and unequivocal. Frost, 2019-Ohio-3540, ¶ 30 (finding a request for self-

representation was the product of an emotional response to the situation where the

defendant acquiesced to his assigned counsel representing him at trial just ten minutes

later). Rather, the record indicates Addison's statement was made out of frustration with

the situation, as the trial court had just informed Addison that, although he could be involved

in his defense, he could not decide what his attorneys did or how they conduct his defense.

{¶ 37} Lastly, aside from an additional comment near the end of the hearing,

Addison did not renew his request at a later date. We are not saying that he has to do so,

but we conclude that this fact is helpful in evaluating Addison's intended use of the request,

i.e., was it a sincere desire to proceed pro se or manipulative in nature. Ultimately, we find

the record supports the trial court's decision to deny Addison's request to proceed pro se.

Accordingly, finding no merit to Addison's claims, his first assignment of error lacks merit

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and is overruled.

{¶ 38} Assignment of Error No. 2:

{¶ 39} THE TRIAL COURT ERRED AS A MATTER OF LAW NOT GIVING A JURY

UNANIMITY INSTRUCTION WHEN REQUESTED BY COUNSEL AND WHEN THE

VICTIM WAS THIRTEEN YEARS OLD WHILE TESTIFYING.

{¶ 40} In his second assignment of error, Addison argues the trial court erred in

denying his request to give a specific unanimity instruction to the jury. Addison asserts that

in refusing to give the instruction, it created the potential for piecemeal verdicts, which is

"especially true given the fact that some guilty and some not-guilty verdicts were returned

for the same charges and the same victim."

{¶ 41} Jury instructions are matters left to the sound discretion of the trial court.

State v. Warman, 12th Dist. Butler No. CA2016-02-029, 2017-Ohio-244, ¶ 35. Therefore,

this court reviews the trial court's decision refusing to provide the jury with a requested jury

instruction for an abuse of discretion. An abuse of discretion implies that the court's

decision was unreasonable, arbitrary, or unconscionable. Id.

{¶ 42} This court has previously rejected similar arguments to those Addison raises

on appeal. See State v. Bowling, 12th Dist. Butler No. CA2014-01-017, 2015-Ohio-360, ¶

29-32; State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 22 (12th Dist.). In

Bowling, we recognized that "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

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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.

{¶ 43} In the instant matter, K.K. testified that between the ages of six and eleven,

Addison sexually abused her on numerous occasions. Addison argues that, in order to find

him guilty, the jury was required to agree unanimously on the specific act that constituted

each offense of the indictment. However, like in Blankenburg, we find the jury was only

required to believe or disbelieve a pattern of conduct of sexual abuse occurred. Thus, the

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

specific incidents they believed established rape or gross sexual imposition for the years

indicated in the indictment. Bowling at ¶ 32, citing 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,

and 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, the specific jury instruction requested by

Addison was not necessary.

{¶ 44} We also find it immaterial that the jury decided to convict on some of the

charges and to acquit of others. It is well established that "[e]ach count in an indictment

charges a distinct offense and is independent of all other counts; a jury's decision as to one

count is independent of and unaffected by the jury's finding on another count." State v.

Davis, 12th Dist. Butler No. CA2010-06-143, 2011-Ohio-2207, ¶ 37, citing State v. Brown,

12 Ohio St.3d 147, 149 (1984). Consequently, we find the jury's decision to convict Addison

of some of the charges, and to acquit on others, is not evidence of a piecemeal verdict.

{¶ 45} As a result, the trial court did not abuse its discretion in giving a general

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unanimity jury instruction. Addison's second assignment of error is overruled.

{¶ 46} Assignment of Error No. 3:

{¶ 47} THE COURT ERRED BY CONSOLIDATING CASES 2017 CR 00823 AND

2018 CR 00721.

{¶ 48} Next, Addison challenges the trial court's decision to consolidate cases 2017-

CR-00823 and 2018-CR-00721. Addison contends the joinder was in error because the

offenses were not of the same or similar character, and even if they were, such a fact is not

an appropriate basis for joinder because joinder highly prejudiced Addison.

{¶ 49} It is well settled that "[t]he law favors joining multiple offenses in a single trial

under Crim.R. 8(A) if the offenses charged 'are of the same or similar character.'" State v.

Lott, 51 Ohio St.3d 160, 163 (1990), quoting State v. Torres, 66 Ohio St.2d 340 (1981).

"Joinder is liberally permitted to conserve judicial resources, reduce the chance of

incongruous results in successive trials, and diminish inconvenience to the witnesses."

State v. Schaim, 65 Ohio St.3d 51, 58 (1992). Nonetheless, pursuant to Crim.R. 14, if it

appears that the defendant would be prejudiced by joinder of the charged offenses, the trial

court may grant a severance. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 95.

{¶ 50} While the defendant bears the burden of proving prejudicial joinder, the state

may rebut a defendant's claim of prejudice by utilizing one of two methods. State v.

Moshos, 12th Dist. Clinton No. CA2009-06-008, 2010-Ohio-735, ¶ 79. Initially, pursuant to

the "other acts test," the state may rebut the defendant's claim of prejudice by

demonstrating it could have introduced evidence of the joined offenses at separate trials

pursuant to the "other acts" provision found in Evid.R. 404(B). State v. Coley, 93 Ohio

St.3d 253, 259, 2001-Ohio-1340; State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507,

¶ 30. On the other hand, the state may separately negate a claim of prejudice by satisfying

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the less stringent "joinder test," which requires the state to merely demonstrate "that

evidence of each crime joined at trial is simple and direct." Moshos at ¶ 79, quoting Coley

at 260. Simply stated, "[t]he joinder test only requires that the evidence of each joined

offense is simple and distinct and ensures that a jury would be capable of segregating the

proof required for each offense." State v. Kaufman, 187 Ohio App.3d 50, 2010-Ohio-1536,

¶ 180 (7th Dist.).

{¶ 51} On appeal, Addison focuses much of his argument on claims that the joinder

fails the "other acts" test set forth above. However, "[i]f the state can meet the joinder test,

it need not meet the stricter 'other acts' test." Moshos at ¶ 79, quoting State v. Johnson,

88 Ohio St.3d 95, 109, 2000-Ohio-276. That is, "[a] showing by the state that the evidence

relating to each crime is simple and direct negates any claims of prejudice and renders

joinder proper." State v. Bice, 12th Dist. Clermont No. CA2008-10-098, 2009-Ohio-4672,

¶ 53. Thus, "an accused is not prejudiced by joinder when simple and direct evidence

exists, regardless of the admissibility of evidence of other crimes under Evid.R. 404(B)."

State v. Franklin, 62 Ohio St.3d 118, 122 (1991).

{¶ 52} As an initial note, we disagree with Addison's argument that M.A.'s claims

were not credible enough to charge on their own and that the state only indicted Addison

for the "purpose of the prejudicial nature." Rather, the record reflects that it is not unusual

to have cases open and pending while additional information comes forward. Additionally,

the investigator of M.A.'s case testified that new information had come forward that would

have bolstered the investigation in 2016; however, it was ultimately up to the prosecutor

whether or not to bring charges against Addison sooner than 2018. Despite the delay in

indicting Addison for his alleged inappropriate contact with M.A., we find the allegations

were sufficient to charge on their own.

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{¶ 53} Furthermore, after a thorough review of the record, we find no error in the trial

court's decision to consolidate cases 2017-CR-00823 and 2018-CR-00721. In this case,

the state presented an organized overview of the facts and charges alleged against

Addison by his three daughters. The witnesses were all "victim specific" in their testimony,

including testimony from each of the alleged victims detailing her own alleged sexual

encounters with Addison, as well as testimony from the detectives regarding their

investigation into each girl's allegations. The state also kept each victim's allegations and

the supporting evidence separate in its opening and closing statements, and avoided

blurring one instance of abuse into another throughout the trial. Thus, despite Addison's

claims to the contrary, we find the evidence pertaining to each victim and each offense

could easily be segregated. This is further evidenced by the jury's ability to sort through

the evidence in order to find Addison not guilty of four counts of rape. Consequently, we

find the record presents clear and direct evidence as to each separate victim such that the

jury was readily able to segregate the proof on each charge. Therefore, due to the separate

and distinct nature of the evidence of each crime, we find Addison was not prejudiced by

the joinder of the charged offenses.

{¶ 54} Assignment of Error No. 4:

{¶ 55} THE EVIDENCE WAS INSUFFICIENT FOR A FINDING OF GUILTY.

{¶ 56} Assignment of Error No. 5:

{¶ 57} THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

{¶ 58} In his remaining assignments of error, Addison argues that his convictions

are against the manifest weight and are not supported by sufficient evidence.

{¶ 59} When reviewing the sufficiency of the evidence underlying a criminal

conviction, an appellate court examines the evidence in order to determine whether such

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evidence, if believed, would convince the average mind of the defendant's guilt beyond a

reasonable doubt. State v. Intihar, 12th Dist. Warren No. CA2015-05-046, 2015-Ohio-

5507, ¶ 9. The relevant inquiry is "whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d

259 (1991), paragraph two of the syllabus.

{¶ 60} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue

rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-

2372, ¶ 14. To determine whether a conviction is against the manifest weight of the

evidence, this court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. State

v. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶

34.

{¶ 61} Because sufficiency is required to take a case to the jury, a finding that a

conviction is supported by the weight of the evidence must necessarily include a finding of

sufficiency. Stringer, 2013-Ohio-988 at ¶ 30. Therefore, a determination that a conviction

is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.

Id. For ease of discussion, we will analyze the convictions as they relate to each child.

K.K.

{¶ 62} In regards to K.K., Addison was convicted of four counts of rape in violation

of R.C. 2907.02(A)(1)(b), which provides in relevant part that "[n]o person shall engage in

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sexual conduct with another who is not the spouse of the offender * * * when * * * [t]he other

person is less than thirteen years of age, whether or not the offender knows the age of the

other person."

{¶ 63} As pertinent to this appeal, sexual conduct means "without privilege to do so,

the insertion, however slight, of any part of the body * * * into the vaginal or anal opening

of another. Penetration, however slight, is sufficient to complete vaginal or anal

intercourse." R.C. 2907.01(A); State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-

Ohio-5202, ¶ 38 (sexual conduct includes digital penetration).

{¶ 64} Addison was also convicted of gross sexual imposition in violation of R.C.

2907.05(A)(4), which provides:

No person shall have sexual contact with another, not the
spouse of the offender; cause another, not the spouse of the
offender, to have sexual contact with the offender; or cause two
or more other persons to have sexual contact when any of the
following applies:

***

(4) The other person, or one of the other persons, is less than
thirteen years of age, whether or not the offender knows the age
of that person."

{¶ 65} The Revised Code defines "sexual contact" as "any touching of an erogenous

zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if

the person is a female, a breast, for the purpose of sexually arousing or gratifying either

person." R.C. 2907.01(B).

{¶ 66} Addison argues his convictions are against the manifest weight and

supported by insufficient evidence because K.K.'s allegations were so "generic" that the

state could not allege specific acts that constituted the offenses alleged and because K.K.

only disclosed the abuse after M.A.'s disclosure.

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{¶ 67} As discussed above, K.K. testified that Addison sexually assaulted her every

weekend she visited with Addison. K.K. indicated the abuse began when she was around

six or seven years old, in second grade, and occurred every year until she was 11 years

old. K.K. described the various forms of assault, and stated Addison would put his fingers

in her vagina, touch her breasts, make her masturbate him, insert his penis into her mouth,

vagina, and onto her leg, and attempted to insert his penis into her "back part." K.K.'s

testimony describing the sexual conduct was consistent with the statements she gave to

the Mayerson Center, the social worker from Children's Hospital, and in making her

disclosure to Marshall and Caldwell. Moreover, while "[t]here is nothing in the law that

requires that a sexual assault victim's testimony be corroborated as a condition precedent

to conviction[,]" we find K.K.'s allegations were further corroborated by additional evidence

presented at trial. State v. West, 10th Dist. Franklin No. 06AP-111, 2006-Ohio-6259, ¶ 16.

Specifically, the DNA mixture found on Addison's sheet contained Addison's semen and

K.K.'s DNA, which the DNA analyst testified was consistent with K.K.'s allegation that

Addison forced her to masturbate him to completion. Furthermore, when confronted with

K.K.'s allegations during the controlled call, Addison did not deny the allegations. Rather,

Addison indicated K.K. did not have to come over anymore and that "their little secret" was

done.

{¶ 68} While Addison argues K.K.'s allegations were too vague to be credible, "[a]

jury is in the best position to take into account the witnesses' demeanor and thus to assess

their credibility, and therefore is entitled to believe or disbelieve all, part, or none of the

testimony of a witness." State v. Freeze, 12th Dist. Butler No. CA2011-11-209, 2012-Ohio-

5840, ¶ 90. K.K.'s testimony, if believed, is sufficient to prove that Addison engaged in

sexual conduct with K.K. when she was under the age of thirteen at least four times. K.K.'s

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testimony also sufficiently established that Addison engaged in sexual contact with K.K. by

touching an erogenous zone of K.K.'s, her breasts specifically, and by forcing K.K. to touch

his penis. The jury could have reasonably concluded that Addison acted as he did for the

purpose of sexual gratification.

{¶ 69} We also reject Addison's argument that K.K.'s disclosure is somehow less

believable because it was prompted by M.A. or Caldwell. Rather, the record reflects K.K.

disclosed the abuse in response to Addison's threat to engage in vaginal intercourse the

next time she visited. Additionally, due to the reaction to M.A.'s disclosure, K.K. was

discouraged from disclosing her abuse sooner, as she was unsure if anyone would believe

her. Thus, we find a reasonable jury could have concluded that K.K.'s disclosure was

genuine.

{¶ 70} Accordingly, when viewing the evidence in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a reasonable

doubt that Addison committed the crimes of gross sexual imposition and rape. We similarly

conclude the jury, in resolving the conflicts in the evidence, did not create a manifest

miscarriage of justice so as to require a new trial and that Addison's convictions are not

against the manifest weight of the evidence.

M.A.

{¶ 71} With regard to M.A., Addison was convicted of gross sexual imposition in

violation of R.C. 2907.05(A)(1) and (4), which state:

No person shall have sexual contact with another, not the
spouse of the offender; cause another, not the spouse of the
offender, to have sexual contact with the offender; or cause two
or more other persons to have sexual contact when any of the
following applies:

(1) The offender purposely compels the other person * * * to

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submit by force or threat of force.

***

(4) The other person, or one of the other persons, is less than
thirteen years of age, whether or not the offender knows the age
of that person."

The Revised Code defines "sexual contact" as "any touching of an erogenous zone of

another, including without limitation the thigh [and] pubic region, * * * for the purpose of

sexually arousing or gratifying either person." R.C. 2907.01(B).

{¶ 72} "Force" is defined as "any violence, compulsion, or constraint physically

exerted by any means upon or against a person or thing." R.C. 2901.01(A)(1). Additionally,

a victim "need not prove physical resistance to the offender." R.C. 2907.05(D). This court

has specifically recognized that the "force" requirement "need not be overt and physically

brutal, but can be subtle and psychological." State v. Rankin, 12th Dist. Clinton No.

CA2004-06-015, 2005-Ohio-6165, ¶ 47.

{¶ 73} Addison argues his convictions related to M.A. are against the manifest

weight of the evidence and are not supported by sufficient evidence because M.A. only

reported the abuse out of anger with Addison. Addison further claims the allegations by

M.A. were insufficient to prosecute until they were inappropriately bolstered by the claims

in Case No. 2017-CR-00823.

{¶ 74} At trial, M.A. testified to two specific instances of sexual assault. First, M.A.

indicated that in 2007 Addison touched the outside of her vagina area with his hands. M.A.

also described a time when she and Addison were sleeping on the floor at Addison's

residence and she awoke to find Addison touching her leg and "trying to go * * * between

[her] legs and up [her] thighs." At that point, M.A. got up, went to the bathroom, and laid

down on the opposite side of Addison's residence. M.A. also described receiving

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inappropriate messages from her father asking M.A. to "sit on [his] face" and further noted

that Addison frequently made suggestive comments regarding her body. M.A. also

indicated Addison would watch her take showers when she was at his residence.

{¶ 75} M.A. described Addison as angry and mean, and indicated he smashed her

phone with a hammer the night she disclosed the abuse. M.A. testified that was not the

only occasion Addison had smashed a device of hers and that she had witnessed him

angrier on other occasions. M.A. indicated Addison exhibited an overall angry and hostile

attitude, and that she feared the consequences of disclosing the abuse sooner.

Specifically, the testimony at trial revealed that M.A. was fearful of retribution if she

disclosed the abuse, as Addison had indicated he would move her away from her family,

siblings, and friends if she told anyone what happened. This led to M.A.'s fear that if she

told, she would "get taken away" and that she would be separated from K.K. According to

M.A., she "kn[e]w how he [wa]s and [she] didn't want [K.K.] to get hurt."

{¶ 76} After reviewing the entire record, we do not find that the jury clearly lost its

way and created a miscarriage of justice. The testimony of M.A., if believed, weighed in

favor of Addison's guilt. Although brief, M.A.'s testimony was sufficient to show that illegal

sexual contact occurred. R.C. 2907.01(B) (defining "sexual contact" as "any touching of

an erogenous zone of another, including without limitation the thigh [and] pubic region" for

the purpose of sexual gratification). While Addison denies the offenses took place, and

claims that M.A. had ulterior motives for disclosing the alleged abuse, the jury was in the

best position to assess M.A.'s credibility, and therefore was entitled to believe M.A. With

regard to the force element in R.C. 2907.05(A)(1), we find there is evidence in the record

indicating that Addison compelled M.A. to submit to the sexual contact by force or threat of

force. The record reflects that Addison, as M.A.'s father, held a position of authority over

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M.A. at the time of the abuse. This fact, coupled with Addison's threats to "take M.A. away"

if she told, and M.A.'s desire to protect K.K. from experiencing similar injury, establishes

that Addison used subtle and psychological degrees of force to facilitate the inappropriate

contact. Furthermore, Addison initiated the contact with M.A. while she was sleeping.

When she awoke, Addison was physically attempting to get between her legs and proceed

up her up her thighs. As a result, we find a reasonable jury could conclude Addison

compelled M.A. to submit to the sexual contact by force or threat of force.

{¶ 77} Based on the above, we find that Addison's convictions are supported by

sufficient evidence and are not against the manifest weight of the evidence. The state

presented evidence which, if believed by the jury, would allow it to conclude that all of the

elements of each gross sexual imposition conviction were proven beyond a reasonable

doubt.

{¶ 78} Accordingly, Addison's remaining assignments of error are overruled.

{¶ 79} Judgment affirmed

HENDRICKSON, P.J., and RINGLAND, J., concur.

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