State v. Bryant

[Cite as State v. Bryant, 2021-Ohio-2806.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )

STATE OF OHIO C.A. No. 20AP0039

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANTHONY BRYANT COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2018 CRC-I 000226

DECISION AND JOURNAL ENTRY

Dated: August 16, 2021

SUTTON, Judge.

{¶1} Defendant-Appellant Anthony Bryant appeals the judgment of the Wayne

County Court of Common Pleas. For the reasons that follow, this Court affirms.

I.

Relevant Background Information

{¶2} By way of this Court’s decision in State v. Bryant, 9th Dist. Wayne No.

19AP0017, 2020-Ohio-1175, ¶ 2, (“Bryant I”), the relevant facts are:

Five-year-old R.S. reported to her grandmother that Mr. Bryant had touched
her private areas with his private area. R.S.’s mother took her to the Wayne
County Child Advocacy Center for an interview the next day. Subsequent to
that interview, the Grand Jury indicted Mr. Bryant for four counts of rape
with sexually violent predator specifications, two counts of sexual battery
with sexually violent predator specifications, and two counts of [gross sexual
imposition] GSI with sexually violent predator specifications. The case
proceeded to a trial before the bench. After R.S. did not testify to any
penetration, the trial court dismissed the rape and sexual battery counts. It
found Mr. Bryant guilty of the GSI counts, however, as well as the sexually
 2

violent predator specifications. The court sentenced Mr. Bryant to five years
of imprisonment for each count, which it ordered to run consecutively.1

In our resolution of Bryant I, this Court sustained Mr. Bryant’s sixth assignment of error

regarding insufficient evidence to prove two GSI counts against him. In so doing, we

reasoned that the trial court erred in determining the act of spitting on R.S.’s vagina

constituted “touching” pursuant to R.C. 2907.01(B). Id. at ¶ 8. Further, we sustained Mr.

Bryant’s first assignment of error which challenged the exclusion of R.S.’s mother’s

testimony that R.S. “told her that the sexual contact never happened and that R.S.’s

grandmother had told R.S. to say that it had happened.” Id. at ¶ 12. This Court explained:

[Mr. Bryant] notes that the trial court initially allowed [R.S.’s mother’s]
testimony over the objection of the State. The next day, however, when the
State attempted to present evidence to bolster R.S.’s testimony, the court told
the State that the testimony about R.S.’s grandmother telling R.S. to fabricate
the allegations was not in the case. The trial court recounted that, after the
State objected, it had allowed Mr. Bryant’s counsel to proceed a little while
and then started examining the witness on its own before finally sustaining
the objection and not allowing the accusation that R.S. had made up her
testimony or that the grandmother had told her to accuse Mr. Bryant.

Id. The State conceded, “the trial court mistakenly interchanged the ruling it had made the

previous day regarding whether R.S. fabricated the allegations with a ruling it had made

regarding whether R.S.’s grandmother knew that Mr. Bryant was a registered sexual

offender.” Id. at ¶ 13. As such, this Court concluded Mr. Bryant “may have been

1
The sexually violent predator specifications enhanced Mr. Bryant’s consecutive sentence
from ten years to ten years to life.
 3

prejudiced by the trial court’s error” in excluding the testimony and remanded to the trial

court for further proceedings. 2 Id. at ¶ 18.

Remand to Trial Court

{¶3} Upon remand, Mr. Bryant filed a motion to dismiss the indictment alleging

a new trial would violate his Fifth Amendment right to double jeopardy protection and the

indictment was insufficient to uphold the tenets of due process because it failed to provide

him adequate notice about the charges against him. In making these arguments, Mr. Bryant

primarily relied upon a Sixth Circuit Court of Appeals decision, Valentine v. Konteh, 395

F.3d 626 (6th Cir.2005), to challenge the sufficiency of the indictment, as well as two

Eighth District Court of Appeals decisions, State v. Ogle, 8th Dist. Cuyahoga No. 87695,

2007-Ohio-5066, and State v. Apanovitch, 8th Dist. Cuyahoga Nos. 102618, 102698, 2016-

Ohio-2831. Notably, Mr. Bryant alleged in his motion that, in spite of his request, the State

“refused” to provide him with a bill of particulars.

{¶4} The State, however, revealed that while Mr. Bryant requested a bill of

particulars on July 9, 2018, he later communicated through counsel, on August 30, 2018,

after receiving the State’s discovery responses, the bill of particulars was “[n]ot necessary.”

Further, the State distinguished this matter from the cases cited by Mr. Bryant and argued

the reasoning in Valentine, supra, has been discredited by subsequent Sixth Circuit

decisions and the Supreme Court of the United States in Renico v. Lett, 559 U.S. 766

2
Mr. Bryant’s second, third, fourth, and fifth assignments of error regarding ineffective
assistance of trial counsel, separate punishments for each GSI count, denial of due process based
upon “carbon-copy” GSI counts in the indictment, and manifest weight of the evidence were
deemed moot.
 4

(2010). Finally, the State urged the trial court to deny Mr. Bryant’s motion because “one

viable count of [g]ross [s]exual [i]mposition,” supported by evidence of either vaginal or

anal contact, remained without violating Mr. Bryant’s constitutional protection against

double jeopardy.

The Judgment Entry

{¶5} On October 20, 2020, the trial court issued a judgment entry granting in-part,

and denying in-part, Mr. Bryant’s motion to dismiss the indictment. In so doing, the trial

court reasoned:

***

It is undisputed that [Mr. Bryant] cannot be retried on the rape and sexual
battery counts (Counts I-VI) as he has been acquitted of these charges.

The [c]ourt reaches a similar conclusion with respect to one of the two GSI
counts. The Ninth District’s opinion reversed one of the counts following an
insufficient evidence review. * * * Such a finding is determinative for double
jeopardy purposes. * * * The State’s attempt to proceed on an alternate
theory of criminal culpability (anal contact), which the [c]ourt implicitly
rejected during the prior bench trial, is not persuasive. * * *

The sole remaining GSI count relates to the allegation of vaginal contact (that
[Mr. Bryant] caused his penis to make contact with R.S.’s vagina). The Ninth
District did not address the sufficiency of proof for this count but instead
found there to be a procedural error regarding the admission of evidence
that necessitated a new hearing.

***

As an initial matter, the [c]ourt notes that [Mr. Bryant’s] concerns regarding
the indictment’s lack of specificity between the carbon-copy counts could
have been addressed through a bill of particulars. * * * The record reflects
that while [Mr. Bryant] initially made such a request, he ultimately withdrew
it after receiving discovery[.] * * * In doing so, [Mr. Bryant] waived any
objections regarding the allegedly defective indictment. * * *
 5

In sum, the [c]ourt previously determined that the State failed to prove
beyond a reasonable doubt any form of anal contact as well as any form of
vaginal or anal intercourse during the January 13, 2018 [] incident. “The
Double Jeopardy Clause forbids a second trial for the purpose of affording
the prosecution another opportunity to supply evidence which it failed to
muster in the first proceeding” regarding these factual occurrences. * * *
These determinations resulted in an acquittal of Counts I-VI and, in
conjunction with the Ninth District’s ruling that spitting does not amount to
sexual contact, an acquittal of one of the two GSI counts. The sole remaining
GSI count, the factual basis for which was clearly delineated during all parts
of the prior proceeding (that [Mr. Bryant] contacted R.S.’s vagina with his
penis), was remanded by the Ninth District in light of a trial error during the
prior proceeding. There are no double jeopardy concerns with allowing the
State to proceed with a retrial on this remaining count.

***
(Internal citation omitted.) (Emphasis added.) The trial court also distinguished the present

matter from Valentine, supra, in that the “[c]ourt based its judgment as to each count on

separate factual allegations regarding this single incident.” Thus, unlike Valentine, where

the carbon copy indictments were indistinguishable based upon the entirety of the record,

“there was some minimal differentiation between the counts at some point in the

proceeding.” (Internal quotations and citations omitted.)

{¶6} It is from this judgment entry Mr. Bryant appeals raising five assignments of

error. To facilitate our analysis, we have re-ordered and grouped certain assignments of

error.

II.

ASSIGNMENT OF ERROR V

BECAUSE THE TRIAL COURT DID NOT AMEND THE
INDICTMENT PURSUANT TO OHIO RULE OF CRIMINAL
PROCEDURE 7(D) AND BECAUSE SPITTING DOES NOT
CONSTITUTE THE INDICTED CHARGE IT CANNOT BE THE
CASE THAT THE ACT OF SPITTING ON R.S.’S VAGINA WAS
 6

CHARGED IN THE SAME COUNT OF THE INDICTMENT AS THE
ACT OF TOUCHING R.S.’S ANUS.

{¶7} As a preliminary matter, in his fifth assignment of error, Mr. Bryant argues

the trial court erred in failing to amend the indictment, pursuant to Crim.R. 7(D), “to

include or join the act of spitting on R.S.’s vagina with any other act of touching.” This

argument does not implicate double jeopardy, but instead addresses an alleged trial court

error.

{¶8} “Generally, a denial of a motion to dismiss in a criminal or civil case is not

considered a final appealable order because the case will proceed to trial. If an adverse

judgment is rendered, the denial of the motion to dismiss may be an assignment of error on

[direct] appeal.” State v. Hartman, 9th Dist. Medina No. 15CA0090-M, 2017-Ohio-1089,

¶ 11, quoting In re S.H., 5th Dist. Guernsey No. 10CA000023, 2010-Ohio-5741, ¶ 19.

However, the Supreme Court of Ohio “has carved out a narrow exception to this rule where

the criminal defendant asserts that he or she has previously been placed in jeopardy for the

offense that is the subject of the new indictment.” Hartman at ¶ 11, quoting State v.

Mitchell, 8th Dist. Cuyahoga No. 104314, 2017-Ohio-94, ¶ 12, fn. 2, citing State v.

Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, ¶ 61 (“[A]n order denying a motion to

dismiss on double-jeopardy grounds is a final, appealable order.”). Thus, this Court’s

review of the trial court’s resolution of Mr. Bryant’s motion to dismiss is “strictly limited”

to the double jeopardy issues raised therein. Hartman at ¶ 11.

{¶9} Based upon the foregoing, the argument contained in Mr. Bryant’s fifth

assignment of error regarding the alleged failure of the trial court to amend the indictment
 7

to include the “act of spitting,” does not address double jeopardy. Therefore, this Court is

without jurisdiction to presently consider this assignment of error.

{¶10} Accordingly, Mr. Bryant’s fifth assignment of error is dismissed.

ASSIGNMENT OF ERROR I

BECAUSE IT IS IMPOSSIBLE TO DETERMINE IF THE SPITTING
COUNT THAT WAS REVERSED [ON APPEAL FOR]
INSUFFICIENCY OF THE EVIDENCE WAS COUNT SEVEN, OR
COUNT EIGHT, AND IT IS IMPOSSIBLE TO DETERMINE IF THE
ANAL CONTACT COUNT THAT MR. BRYANT WAS ACQUITTED
OF AT TRIAL WAS COUNT SEVEN, OR COUNT EIGHT, A
RETRIAL WOULD VIOLATE DOUBLE JEOPARDY[.]

ASSIGNMENT OF ERROR II

BECAUSE THE STATE CHARGED MR. BRYANT WITH TWO
COUNTS OF GSI, AND HE HAS BEEN ACQUITTED OF TWO
COUNTS OF GSI, ANY RETRIAL WOULD VIOLATE HIS RIGHT
TO NOT BE PLACED IN DOUBLE JEOPARDY[.]

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN FINDING THAT THE RECORD IN
THIS CASE ESTABLISHES WHAT SPECIFIC ACTS WERE
CHARGED IN COUNT SEVEN AND COUNT EIGHT[. ]

{¶11} In his first, second, and fourth assignments of error, Mr. Bryant largely relies

upon Valentine, supra, in arguing a retrial on the remaining GSI count, that Mr. Bryant

caused his penis to touch R.S.’s vagina, violates double jeopardy because of the State’s use

of carbon-copy indictments. We disagree.
 8

Sufficiency of Indictment in Ohio

{¶12} In Coles v. Smith, 577 Fed.Appx. 502, 506 (6th Cir.2014), the Sixth Circuit

Court of Appeals aptly explained the application of the Fifth and Sixth Amendments to the

United States Constitution, to the states, as follows:

The Fifth Amendment provides that “[n]o person shall be held to answer for
a capital, or otherwise infamous crime, unless on a presentment or indictment
of a grand jury[.]” A federal grand jury indictment may use the words of a
statute to generally describe the offense, “but it must be accompanied with
such a statement of the facts and circumstances as will inform the accused of
the specific [offense], coming under the general description, with which he
is charged.”

The Supreme Court has not applied to the States the Fifth Amendment’s
requirement that all prosecutions begin with a grand jury indictment. The
Court has applied the Sixth Amendment to the States through the Fourteenth
Amendment. The Sixth Amendment provides in part that “[i]n all criminal
prosecutions, the accused shall enjoy the right [] to be informed of the nature
and cause of the accusation.” “No principle of procedural due process is
more clearly established than that notice of the specific charge, and a chance
to be heard in a trial of the issues raised by that charge, if desired, are among
the constitutional rights of every accused in a criminal proceeding in all
courts, state or federal.” A defendant “cannot incur the loss of liberty for an
offense without notice and a meaningful opportunity to defend.”

(Internal citations omitted.)

{¶13} Thus, the Ohio General Assembly codified the framework of a sufficient

indictment, in R.C. 2941.05, as follows:

In an indictment or information charging an offense, each count shall
contain, and is sufficient if it contains in substance, a statement that the
accused has committed some public offense therein specified. Such
statement may be made in ordinary and concise language without any
technical averments or any allegations not essential to be proved. It may be
in the words of the section of the Revised Code describing the offense or
declaring the matter charged to be a public offense, or in any words sufficient
to give the accused notice of the offense of which he is charged.
 9

(Emphasis added.) Indeed, “[b]y compelling the government to aver all material facts

constituting the essential elements of an offense, an accused is afforded with adequate

notice and an opportunity to defend.” State v. Sellards, 17 Ohio St.3d 169, 170 (1985).

However, pursuant to R.C. 2941.07, “[u]pon written request of the defendant made not

later than five days prior to the date set for trial, or upon order of the court, the prosecuting

attorney shall furnish a bill of particulars setting up specifically the nature of the offense

charged and the conduct of the defendant which is alleged to constitute the offense.” Thus,

“[a]n accused is not foreclosed from securing specificity of detail” which may be lacking

in the indictment itself. Sellards at 171.

Double Jeopardy

{¶14} Furthermore, the Double Jeopardy Clauses of the Fifth Amendment to the

United States Constitution and Article I, Section 10 of the Ohio Constitution prohibit a

criminal defendant from being tried twice for the same offense. State v. Pendleton, 163

Ohio St.3d 114, 2020-Ohio-6833, ¶ 8. “We apply the same analysis to claims brought

under the federal and Ohio Double Jeopardy Clauses because we have recognized that

‘[t]he protections afforded by the two Double Jeopardy Clauses are coextensive.’” State

v. Anderson, 148 Ohio St.3d 74, 2016-Ohio-5791, ¶ 31, quoting State v. Brewer, 121 Ohio

St.3d 202, 2009-Ohio-593, ¶ 14, quoting State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-

6661, ¶ 7. “When a case is reversed on the basis of trial error, such as the improper receipt

or rejection of evidence, the Double Jeopardy Clause does not prohibit retrial ‘where the

evidence offered by the State and admitted by the trial court-whether erroneously or not-
 10

would have been sufficient to sustain a guilty verdict.’” State v. Vanni, 9th Dist. Medina

No. 08CA0023-M, 2009-Ohio-2295, ¶ 14, quoting State v. Brewer, 121 Ohio St.3d 202,

2009-Ohio-593, ¶ 17. Further, “[a]ppellate courts apply a de novo standard of review when

reviewing the denial of a motion to dismiss an indictment on the grounds of double

jeopardy.” Anderson at ¶ 20.

The Valentine Decision

{¶15} In State v. Just, 9th Dist. Wayne No. 12CA0002, 2012-Ohio-4094, ¶ 8, this

Court summarized the Valentine decision as follows:

In Valentine, the Sixth Circuit determined that the State had obtained
Valentine’s convictions in violation of his due process rights, based on a
generic indictment that failed to differentiate between twenty counts of child
rape and twenty counts of felonious sexual penetration. Valentine, 395 F.3d
at 628-629. The Sixth Circuit noted that the counts in Valentine’s indictment
were identically worded and that the State failed to distinguish the factual
bases of the charges in either a bill of particulars or at trial. Id. at 628-629.
Moreover, all of the offenses occurred within the same date range. Id.
Because of the complete lack of distinction between the counts, the Sixth
Circuit reasoned, Valentine “could only successfully defend against some of
the charges by effectively defending against all of the charges” and it would
be “incredibly difficult” for the jury to consider each count independently, as
they arose from indistinguishable incidents. Id. at 633-634. Accordingly,
the court concluded that a due process violation had occurred and vacated all
of Valentine’s convictions, save for one count of rape and one count of
felonious sexual penetration. Id. at 638-639. In so holding, however, the
Sixth Circuit cautioned that “the constitutional error in this case is traceable
not to the generic language of the individual counts of the indictment but to
the fact that there was no differentiation among the counts.” Id. at 636. The
court specified that “[t]he due process problems in the indictment might have
been cured had the trial court insisted that the prosecution delineate the
factual bases for the forty separate incidents either before or during the trial.”
Id. at 634.

(Emphasis added.)
 11

{¶16} Importantly, in Coles, the Sixth Circuit Court of Appeals aptly warned

against courts relying upon Valentine’s reasoning, stating:

The Valentine court based its legal reasoning on Supreme Court cases
applicable to federal indictments[.] Two of those cases, DeVonish and
Fawcett, were decided before AEDPA [the Antiterrorism and Effective
Death Penalty Act of 1996] was enacted in 1996, while Isaac and Parks-and
Valentine itself-were decided before the Supreme Court issued Renico in
2010. In light of Renico’s admonition that “clearly established Federal law”
means relevant Supreme Court precedent and not circuit court opinions, and
because “no Supreme Court case has ever found the use of identically worded
and factually indistinguishable [state] indictments unconstitutional,” we
doubt our authority to rely on our own prior decision-Valentine-to
“independently authorize habeas relief under AEDPA.”

Coles, 577 Fed.Appx. 502, 507.

{¶17} Further, our sister Court, the Seventh District Court of Appeals, has declined

to follow Valentine, stating:

As we recently stated in Miller, this court does not follow Valentine. This
type of argument would improperly protect a defendant who committed
multiple instances of the same offense against a child in his care. Contrary to
the Valentine majority’s claim, there is no indication the jury would believe
its finding of guilt on one count of child endangering would require a
conviction on another count of child endangering merely because it
contained the same elements and the same date range. Furthermore, the Sixth
Circuit does not rely on Valentine as precedent.

(Internal citations and quotations omitted.) State v. Thomas, 7th Dist. Mahoning No. 18

MA 0025, 2020-Ohio-633, ¶ 16.

Application of Relevant Law to the Record

{¶18} In the present matter, the record shows Mr. Bryant was indicted pursuant to

R.C. 2907.05 (A)(4) for GSI in Counts 7 and 8, which are identically worded, as follows:
 12

On or about January 13, 2018, [Mr. Bryant] did have sexual contact with R.S.
[], not his spouse, when R.S. [], was less than thirteen years of age, whether
or not the offender knew the age of that person.

The language in Counts 7 and 8 of the indictment mirrors the language in R.C. 2907.05

(A)(4) as to the required elements of GSI. 3 Notably, at oral argument, Mr. Bryant’s counsel

minimized his reliance on Valentine and conceded the sufficiency of this indictment,

acknowledging that carbon-copy indictments are not fatally flawed. Therefore, in

accordance with R.C. 2941.05, this indictment is sufficient under Ohio law.

{¶19} Further, although Mr. Bryant initially requested a bill of particulars, pursuant

to R.C. 2941.07, he later indicated through counsel, after receiving the State’s discovery

responses, that the bill of particulars was no longer necessary. The record shows the State

provided Mr. Bryant with discovery, per its ongoing obligation to do so, on June 8, 2018,

August 8, 2018, August 28, 2018, September 26, 2018, and October 2, 2018. Logically, if

Mr. Bryant had any remaining questions or concerns about the nature of the allegations

against him for rape, sexual battery, or GSI, he could have responded differently when

asked whether, if in light of the State’s discovery responses, he still wanted the State to

provide a bill of particulars. However, in responding that a bill of particulars was no longer

necessary, Mr. Bryant forfeited the argument that the State failed to provide a bill of

particulars to further elucidate the specific details surrounding the GSI allegations in

Counts 7 and 8.

3
R.C. 2907.05 (A)(4) states, in relevant part: “[n]o person shall have sexual contact with another,
not the spouse of the offender * * * when any of the following applies: The other person * * * is
less than thirteen years of age, whether or not the offender knows the age of that person.”
 13

{¶20} Moreover, at trial, R.S., a six-year-old victim, testified as to Mr. Bryant’s

distinct and separate actions toward her as follows:

***

A. [Mr. Bryant] told me to take my clothes off and I’m laying down on the
bed and then, he spitted on my bad part and wiped his bad part on me.

Q. And when you say his bad part, what do you mean by that, what part of
his body is that?

A. His private.
***
Q. And what’s your bad part called?

A. Pee pee.
***
Q. And where did the spit come from?

A. His mouth.

Q. His mouth and you’re pointing to your mouth and [], you said his bad
part of his private went on your pee pee, wiped it on your pee pee?

A. Yes.

Q. Did it ever go in your pee pee?

A. No.

Q. Okay and when you say on it, were your clothes on your body or down
or off your body?

A. Off.

Q. And how did that make you feel when [Mr. Bryant] did that?

A. Sad.

Q. Did he say anything to you when he did that?

A. Yeah, don’t cry.
 14

Q. Were you crying?

A. Yes.

Q. Why were you crying?

A. Because, it hurted.
***

{¶21} Based upon R.S.’s testimony alone, the sole remaining GSI count, Mr.

Bryant causing his penis to make contact with R.S.’s vagina, is clearly distinct from all

other counts argued at trial. Thus, even if Valentine’s reasoning was binding upon this

Court, in spite of the myriad issues delineated above, this matter, similar to Just, supra,

and State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, is factually different from

Valentine. See State v. Burnett, 93 Ohio St.3d 419, 424 (“[W]e are not bound by rulings

on federal statutory or constitutional law made by a federal court other than the United

States Supreme Court.”)

{¶22} In Just at ¶ 9, this Court distinguished Valentine because the child victim

“described the instances of abuse as having occurred at distinct locations[,]” and although

the child victim, “could not specifically recall when the abuse occurred, she described the

location of the abuse and other circumstances surrounding it in detail.” Id. Therefore, we

determined, “[u]nlike Valentine, the State delineated between the counts.” Id. Moreover,

in Sowell at ¶ 123, quoting Valentine at 637, the Supreme Court of Ohio distinguished

Sowell from Valentine, because the Sowell record did “not leave the court ‘unable to discern

the evidence that supports each individual conviction.’” The Sowell Court explained:
 15

This case is factually distinguishable from Valentine. First, instead of two
sets of 20 identically phrased charges, this case presents two sets of two
identically phrased charges. Moreover, each set of identical counts in this
case alleges that the rapes took place on specifically identified dates, rather
than over a period of eight and one-half months as in Valentine. And the
state’s evidence at trial showed that four specific, different acts of rape took
place: two against [Ms.] Billups and two against [Ms.] Morris. [Ms.] Billups
testified at trial that [Mr.] Sowell raped her twice on September 22, 2009,
and [Ms.] Morris testified that [Mr.] Sowell raped her twice on October 20,
2009.

Sowell at ¶ 122.

{¶23} Here, the indictment was for one specific date, January 13, 2018, instead of

a range of dates like in Valentine. Moreover, if Mr. Bryant actually had any remaining

questions regarding the specificity of the counts alleged against him, subsequent to

receiving the State’s discovery responses, he could have not withdrawn his request for a

bill of particulars. Further, based upon the testimony at trial, specifically from R.S., the

trial court can very easily discern the evidence supporting the sole remaining GSI count

against Mr. Bryant. The record, in its entirety, also shows that Mr. Bryant had notice and

a meaningful opportunity to defend himself against the indicted charges. See Coles v.

Smith, 577 Fed.Appx. 502, 506. Therefore, in retrying Mr. Bryant on the sole remaining

GSI count, that Mr. Bryant caused his penis to touch R.S.’s vagina, due to an error at trial,

Mr. Bryant is not subjected to double jeopardy.

{¶24} Accordingly, Mr. Bryant’s first, second, and fourth assignments of error are

overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT’S RULING THAT THE SPITTING WAS
CHARGED IN THE SAME COUNT AS THE ANAL CONTACT WAS
 16

ARBITRARY, CAPRICIOUS, AND UNSUPPORTED BY EITHER
THE RECORD OR ANY EVIDENCE, THE TRIAL COURT ERRED
IN DENYING THE MOTION TO DISMISS[.]

{¶25} In his third assignment of error, Mr. Bryant argues the trial court wrongly

determined Mr. Bryant’s alleged conduct of spitting and touching R.S.’s anus was charged

in the same count, or in a “duplicitous” count. We are not persuaded by this argument.

{¶26} The record reveals, in spite of Mr. Bryant’s assertions otherwise, the trial

court did not actually determine the alleged conduct of spitting and touching R.S.’s anus

was charged in the same count, or in a duplicitous count, in the indictment. Instead, the

trial court merely explained that its act of sua sponte considering the act of spitting as

independently meeting the requirements for one of the GSI counts, is “analogous to the

situation where two or more distinct and separate offenses are changed under a single count

(i.e., a ‘duplicitous count’).” (Emphasis added.) Additionally, the trial court explained that,

so long as a “trier of fact independently and separately considers both offenses[,]”

duplicitous counts “do not pose double jeopardy concerns.” In so doing, the trial court

stated, “[t]hat is exactly what happened here.” The trial court independently and separately

considered Mr. Bryant’s conduct of spitting and touching R.S.’s vagina with his penis as

separate and distinct acts.

{¶27} Further, the record supports that Mr. Bryant was indicted on two counts of

GSI and convicted of two counts of GSI for spitting and touching R.S.’s vagina with his

penis. As Mr. Bryant has argued, Counts 7 and 8 in the indictment did not specify the

details of Mr. Bryant’s sexual contact with the victim, which R.C. 2907.01 (B) defines as,

“touching of an erogenous zone of another, including without limitation the thigh, genitals,
 17

buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually

arousing or gratifying either person.” Upon hearing the evidence presented at trial

regarding different types of “touching,” and specifically R.S.’s testimony, the trial court

erroneously found spitting on R.S.’s vagina to be sufficient to convict Mr. Bryant of one

of the two counts of GSI. Although in Bryant I, this Court determined spitting does not

constitute touching pursuant to R.C. 2907.01(B), it was still within the trial court’s purview

to listen to the evidence and decide which, if any, of Mr. Bryant’s alleged conduct

constituted sufficient evidence to convict him of GSI.

{¶28} The record is clear that, along with Mr. Bryant’s GSI conviction for spitting

on R.S.’s vagina which was overturned by this Court, Mr. Bryant was also separately

convicted of one count of GSI for touching R.S.’s vagina, the sufficiency of which has not

been challenged. Due to a trial error alone, as explained in Bryant I, the State may re-try

Mr. Bryant on the sole remaining GSI count for touching R.S.’s vagina without violating

double jeopardy.

{¶29} Accordingly, Mr. Bryant’s third assignment of error is overruled.

III.

{¶30} For the foregoing reasons, Mr. Bryant’s first, second, third and fourth

assignments of error are overruled. Mr. Bryant’s fifth assignment of error is dismissed.

The judgment of the Wayne County Court of Common Pleas is affirmed.

Judgment affirmed.
 18

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETTY SUTTON
FOR THE COURT

HENSAL, P. J.
CALLAHAN, J.
CONCUR.

APPEARANCES:

R. ANDREW KINDER, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA UHLER, Assistant Prosecuting
Attorney, for Appellee.