[Cite as State v. Bonneau,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97565

STATE OF OHIO PLAINTIFF-APPELLEE vs.

PAUL BONNEAU DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-545066

BEFORE: Keough, J., Blackmon, A.J., and Boyle, J.

RELEASED AND JOURNALIZED: July 19, 2012 ATTORNEY FOR APPELLANT

Thomas E. Conway 75 Public Square, Suite 700 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Mark J. Mahoney Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} Defendant-appellant, Paul Bonneau, appeals from his convictions for gross

sexual imposition and kidnapping. Finding no merit to the appeal, we affirm.

I. Procedural and Factual History

{¶2} Appellant was indicted in an eight-count indictment. Counts 1, 2, and 3

charged gross sexual imposition in violation of R.C. 2907.05(A)(1) against victim M.S.;

Count 4 charged the kidnapping of M.S. with a sexual motivation specification in

violation of R.C. 2905.01(A)(4). The offenses were alleged to have occurred from June

1, 1993 to September 1, 1993. Counts 5, 6, and 7 of the indictment charged gross sexual

imposition in violation of R.C. 2907.05(A)(1) against victim A.F.; Count 4 charged the

kidnapping of A.F. with a sexual motivation specification in violation of R.C.

2905.01(A)(4). These offenses were alleged to have occurred from February 1, 2006 to

February 28, 2006.

{¶3} Prior to trial, the trial court granted the State’s motion to amend the dates of

the offenses in Count 1 through 4 to June 1, 1994 to August 31, 1994, and Counts 5

through 8 to February 1, 2005 to February 28, 2005. The trial court denied appellant’s

“motion for relief from prejudicial joinder.”

{¶4} The testimony at trial established that M.S. first met appellant, his wife,

Stacey, and their two children when she was 14 years old. M.S. lived across the street from the Bonneaus and began babysitting for them in May of 1994. Stacey testified that

appellant was infatuated with M.S.; according to M.S., he would buy her things like

clothes and a pager. He also took her to bars, even though she was only 15 years old,

and after she got a job, would pick her up on his motorcycle and give her rides to work.

{¶5} M.S., who was 32 years old at the time of trial, testified that appellant told her

that he loved her and wanted to “ride off” on his motorcycle with her some day.

Appellant’s emotional attraction to M.S. eventually became physical. M.S. testified that

the first time appellant became physical with her, he came up to her as she sat in a chair in

the Bonneaus’ living room, ran his hand up her thigh, and French-kissed her multiple

times. M.S. testified that to get out of the situation, she stood up, pushed away, and went

into the kitchen with appellant’s wife. M.S. testified that there were many incidents like

this.

{¶6} She testified that another time when she was at the Bonneau home, appellant

came over, pushed her on the couch, grabbed her hands and held them behind her head,

and then French-kissed and “dry humped” her; M.S. stated that she could feel appellant’s

erection while he was doing this. M.S. said that she tried to get away and eventually

rolled in a way that forced appellant to roll off her. She testified that appellant’s friends,

who were in the room during this incident, watched and laughed.

{¶7} M.S. stated that another time, she, appellant, and appellant’s wife were riding

in the car. She was sitting in the back seat next to the baby in the car seat; appellant was

driving and his wife was sitting in the front passenger seat. M.S. testified that when the baby dropped a toy, appellant turned around to pick it up, and “just ran his hand all up

[her] leg up to [her] thigh.”

{¶8} M.S. testified that another time appellant rubbed her legs as she rode on his

motorcycle with him, and when they got off the motorcyle, he grabbed her

“inappropriately in the butt.” She testified that she remembered other incidents when

appellant would take her hand and force her to rub his genital area while he would rub

her.

{¶9} M.S. testified that one day Bonneau handed her a letter in which he asked her

to lose her virginity to him. M.S. was uncomfortable telling her parents what had been

happening, so she left the letter where her parents would find it. After M.S.’s mother

found the letter, there was no more contact between appellant and M.S.

{¶10} A.F., who was 22 years old at trial, testified that her family, who lived on

the same street in Cleveland as the Bonneaus, moved to Columbia Station when she was

14 years old. The families stayed in contact, and A.F. would sometimes babysit for the

Bonneaus; she would usually spend the night and her mother would pick her up the next

morning.

{¶11} A.F. testified that she was babysitting for the Bonneaus one night in

February 2005 when she was 15 years old. Appellant and Stacey came home; Stacey

checked on the children and then went to bed.

{¶12} A.F. testified that appellant put on some music, gave her a beer and later

Jagermeister, and then started getting “flirty” and “grabby” with her. According to A.F., he grabbed her buttocks and pinched her thighs. A.F. said that she went upstairs to go to

the bathroom and appellant followed her. When she came out of the bathroom, he

grabbed her and pushed her down on a wooden chest. A.F. testified that appellant put his

hands on her legs, spread her legs open, and then bit her in her vaginal area. A.F. stated

that she pushed appellant out of the way and ran down the stairs. According to A.F., as

she was running down the stairs, appellant made comments about her virginity and told

her that he wanted to be her “first.”

{¶13} Appellant’s nephew, Dale Leonard, who was living with the Bonneaus,

testified that he was in the basement when he heard A.F. yelling “get off me.” He

walked upstairs and saw appellant grabbing A.F.’s buttocks. Leonard told appellant to

stop what he was doing and pulled him away from A.F., who then ran down the stairs.

According to A.F., appellant followed her into the family room and, as he sat on the

couch, began touching his penis and looking at her. A.F. stated that Dale came in the

room and told appellant to go upstairs, which he finally did.

{¶14} A.F.’s mother picked her up the next morning; about a month after the

incident, A.F. finally told her mother what had happened. A.F.’s mother testified that the

two families met and appellant apologized, although he never specified exactly what he

was sorry for. The families agreed that in lieu of reporting the incident to the police,

appellant would attend counseling. The families did not stay in contact after this

meeting. {¶15} Stacey Bonneau testified that after this incident, her marriage to appellant

fell apart. In May 2010, in an effort to find character witnesses for a custody hearing

regarding the couple’s two daughters, she contacted A.F. and her mother, who told Stacey

the extent of what had happened to A.F. Stacey convinced A.F. to report the incident to

the police.

{¶16} Detective Kenneth Vagase testified that during his investigation of the

incident, Stacey told him about the incident involving M.S. Detective Vagase contacted

M.S., who told him what had happened to her.

{¶17} The jury found appellant guilty of Counts 1, 2, 3, and 4, which charged

gross sexual imposition and kidnapping relating to M.S., and not guilty of Counts 5, 6, 7,

and 8, the counts relating to the incident with A.F. The trial court sentenced appellant to

three years incarceration and classified him as a sexually oriented offender.1 This appeal

followed.

II. Analysis

A. Joinder

{¶18} In his first assignment of error, appellant contends that the trial court erred

in denying his “motion for relief from prejudicial joinder.” Appellant contends that this

The original sentencing was held on October 17, 2011; appellant filed a notice of appeal on 1

November 16, 2011. On December 1, 2011, the trial court held another sentencing hearing and resentenced appellant. However, the trial court was without jurisdiction to resentence appellant after the notice of appeal was filed and, therefore, the new sentencing judgment is void. The resentencing does not affect our consideration of appellant’s appeal, however, because none of the assignments of error relate to sentencing. case involved separate victims and separate incidents separated by almost 11 years. He

asserts that he was prejudiced by the joinder of the counts relating to the two victims

because “there was no way that a jury could reasonably segregate the respective evidence

from the two separate sets of allegations.”

{¶19} Multiple offenses may be charged in the same indictment “if the offenses

charged * * * are of the same or similar character, or are based on the same act or

transaction, or are based on two or more acts or transactions connected together or

constituting parts of a common scheme or plan, or are part of a course of criminal

conduct.” Crim.R. 8(A). Generally, the law favors joining multiple offenses of the

same or similar character in a single trial, unless joinder would prejudice the defendant.

State v. Lott,

,

(1990); Crim.R. 14. The

defendant bears the burden of proving prejudice and that the trial court abused its

discretion in denying severance. State v. Brinkley,

,

,

, ¶ 29.

{¶20} Joinder was proper in this case because the crimes were related in character

and manner. And appellant has failed to demonstrate any prejudice by the joinder. A

defendant is not prejudiced by joinder if simple and direct evidence of each of the crimes

joined at trial exists, such that a jury is capable of segregating the proof required for each

offense, or if evidence of one offense would be admissible at a separate trial of the other

offense as “other acts” evidence under Evid.R. 404(B). Brinkley at ¶ 30. {¶21} Evid.R. 404(B) permits the admission of “other acts” evidence if the

evidence is “related to and shares common features with the crime in questions,” as long

as it is used for purposes other than proving that the accused acted in conformity with a

particular character trait. State v. Lowe,

,

,

, paragraph one of the syllabus. In this regard, appellant contends that the facts

relating to the separate incidents with the alleged victims are too unrelated in time to

support their joinder.

{¶22} Assuming, without deciding, that the “other acts” evidence would have been

inadmissible on this basis, we find that the evidence as to each victim was simple, direct,

and capable of being segregated. There is no indication from the record that the jury

confused the evidence as to the different counts or that the jury was influenced by the

cumulative effect of the joinder. In fact, the jury’s not guilty verdicts as to the counts

relating to A.F. and its guilty verdicts as to the counts relating to M.S. demonstrate that

the jury considered each victim separately. Contrary to appellant’s argument, the jury

was able to separate the evidence relating to each victim to reach its verdict. Appellant’s

first assignment of error is therefore overruled.

B. Sufficiency and Manifest Weight of the Evidence

{¶23} In his second and third assignments of error, appellant contends that his

convictions were not supported by sufficient evidence and were against the manifest

weight of the evidence. {¶24} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266,

, ¶ 12. An appellate court’s function when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence admitted at trial

to determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. 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. Thompkins,

, 386,

,

.

{¶25} A manifest weight challenge, on the other hand, questions whether the

prosecution met its burden of persuasion. State v. Ponce, 8th Dist. No. 91329,

, ¶ 17, citing State v. Thomas,

,

(1982). A reviewing court may reverse the judgment of conviction if it appears that 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.” Thompkins at 387. A finding that

a conviction was supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency. Id.

{¶26} Appellant was convicted of gross sexual imposition in violation of R.C.

2907.05(A)(1) and kidnapping in violation of R.C. 2905.01(A)(4). R.C. 2907.05(A)(1),

governing gross sexual imposition, provides that “[n]o person shall have sexual contact

with another, not the spouse of the offender * * * when * * * the offender purposely compels the other person * * * to submit by force or threat of force.” R.C.

2905.01(A)(4), regarding kidnapping with a sexual motivation specification, provides that

“[n]o person, by force * * * shall * * * restrain the liberty of the other person * * * to

engage in sexual activity * * * with the victim against the victim’s will.”

{¶27} Appellant argues that his convictions were not supported by sufficient

evidence and were against the manifest weight of the evidence because there was no

evidence that he purposely compelled M.S. to submit by force or threat of force and that,

in actuality, the relationship was consensual. His argument is without merit.

{¶28} M.S. testified to multiple incidents when appellant forced her to submit to

his advances against her will. She testified that in one incident, appellant pushed her on

the couch, French-kissed her, and “dry humped” her as he was holding her hands behind

her head. M.S. specifically testifed that during this incident, she “was trying to get

away” and finally managed to roll in a way that forced appellant to roll off her. She

testified that in another incident when appellant approached her and kissed her, she had to

push him away in order to get out of the situation. And she testified that there were

many incidents such as this one.

{¶29} In light of this testimony, the jury did not lose its way in concluding that

appellant compelled M.S. by force to submit to his sexual advances, and that he restrained

her by force to engage in sexual activity with her against her will. Appellant’s argument

that the relationship was consensual is specious. Although there was testimony that

appellant bought M.S. things and gave her motorcycle rides, M.S. specifically testified that appellant’s advances were unwanted but because she was only 15 years old, while

appellant was an adult, she did not know how to simply say no.

{¶30} Appellant also argues that the jury lost its way in convicting him because of

M.S.’s statement on cross-examination that although she was initially reluctant to

prosecute appellant, “it came to [her] knowledge that many other young girls had been

violated and hurt and [she] knew that [she] had to come forward to prevent it from ever

happening again.” Appellant contends that although the court immediately informed the

jury the statement was stricken from the record, he was unfairly prejudiced by M.S.’s

mention of other victims.

{¶31} But appellant again fails to demonstrate any prejudice. The trial judge

immediately issued a curative instruction to the jury after M.S.’s remark. The jury can be

presumed to have followed the instructions, including curative instructions, given by a

trial judge. State v. Ahmed,

,

,

, ¶ 93.

Furthermore, the jury’s verdict finding appellant guilty of the charges relating to M.S. but

not guilty of the charges relating to A.F., demonstrates that the jury disregarded M.S.’s

comment about other victims, as instructed.

{¶32} On this record, the jury did not lose its way and create a manifest

miscarriage of justice in finding appellant guilty of gross sexual imposition and

kidnapping relating to M.S. His convictions are not against the manifest weight of the

evidence; thus, they are supported by sufficient evidence. Appellant’s second and third

assignments of error are therefore overruled. {¶33} Affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

PATRICIA A. BLACKMON, A.J., and MARY J. BOYLE, J., CONCUR