[Cite as State v. Palmer-Tesema,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 107972 v. :

YOHANN PALMER-TESEMA, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 12, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-626287-A

Appearances:

David L. Doughten, for appellee.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Carl Mazzone and Christopher D. Schroeder, Assistant Prosecuting Attorneys, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Yohann Palmer-Tesema (“Palmer-Tesema”),

appeals his convictions after a jury found him guilty of six counts of rape and three

counts of kidnapping. Finding no merit to the appeal, we affirm his convictions. II. Procedural History and Factual Background

In March 2018, Palmer-Tesema was named in a nine-count indictment

related to crimes committed against three women — S.L., N.D., and M.C. Pertaining

to S.L., he was charged with two counts of rape (vaginal and anal intercourse) and

one count of kidnapping. As related to N.D., Palmer-Tesema was charged with one

count of rape (digital penetration) and one count of kidnapping. Relating to M.C.,

he was charged with three counts of rape (digital penetration, vaginal intercourse,

and cunnilingus) and one count of kidnapping. All charges contained a sexually

violent predator specification, and the kidnapping charges carried a sexual

motivation specification.

Prior to trial, Palmer-Tesema filed a motion for relief from prejudicial

joinder, seeking separate trials for the counts pertaining to each victim. The state

opposed the motion, and following a hearing, the trial court denied Palmer-

Tesema’s motion to sever.

The matter was tried before a jury except for the sexual predator

specifications, which were tried to the bench.

A. The Trial

Three women, S.L., N.D., and M.C., each were raped by Palmer-

Tesema. Although the rape of each woman was a separate and distinct incident,

taken together, they occurred close in time and bear factual similarities. The rapes

occurred between November 22, 2017 and January 14, 2018, and each were committed at Palmer-Tesema’s house, in his bed, and in spite of each victim’s

substantial impairment and lack of consent.

1. S.L. — November 22, 2017

S.L. testified that on November 22, 2017, the night before

Thanksgiving, she went out with her friends to the West End Tavern (“West End”)

in Lakewood, Ohio. Prior to arriving at the bar, S.L. consumed six beers and shared

half of a box of wine. She admitted it was not uncommon for her to consume this

much alcohol at least once a week.

She testified that when she arrived at the West End she was “definitely

feeling tipsy” and had “started going in and out.” She clarified that she was “on the

verge of blacking out,” — characterizing it as a “brownout.” At the bar, one of her

friends bought her a shot. S.L. did not recall if she had other drinks at the bar aside

from the shot, but said it was the last thing she remembered that evening.

In the morning, S.L. woke up, still drunk, and in a house she did not

recognize. She was in bed with Palmer-Tesema, whom she recognized from high

school but had not seen for a year. According to S.L., they were never friends. She

testified that she was confused and naked from the waist down. She noticed that

the bed was wet underneath her, which she thought at the time could be urine. Her

hearing processor device and cell phone were beside the bed, but she could not

locate her purse.1 She asked Palmer-Tesema if they had sex. He denied it, claiming

1 S.L. testified that she is profoundly deaf and has a cochlear implant. She wears an external audio processor at all times except when she sleeps and showers. nothing happened. S.L. found her underwear and pants, got dressed, and texted

her brother. She stated she was still drunk and everything was blurry.

S.L.’s brother, D.L., testified that he woke up Thanksgiving morning

and saw a text message sent by his mother stating that S.L. had not come home.

He also saw two text messages sent at 1:51 a.m. from S.L.’s cell phone that read

“[S.L.’s] sleeping at my place this is yohann [sic],” and “I live in bay village [sic].”

D.L. responded to the message at 6:59 a.m.: “whew thanks man. she awake now?

and okay? [sic].” He testified that he tried to locate Palmer-Tesema’s address to

find his sister. Around 8:30 a.m. he received a text message from S.L. stating that

she was okay; he picked her up shortly thereafter.

S.L. testified that she went to the bathroom at her brother’s house

and noticed that her vagina was “very stretched out” and that she felt “very sore all

over” her body. (Tr. 416.) She testified that it was painful to urinate. She began

crying and immediately told her brother that something happened — “he did

something to me.”

D.L. drove S.L. to the NORD Center in Lorain and a sexual

examination was performed by Amanda McCall, a sexual assault nurse examiner

(“SANE”). S.L. told McCall that Palmer-Tesema raped her the night before.

McCall testified that she found bruising to S.L.’s inner thigh and calf. According

to McCall, the bruising was consistent with finger marks. McCall also testified that

she noted the presence of white discharge in S.L.’s vaginal cavity, which could be

consistent with semen. A toxicology screen was also performed and the results revealed that at 1:30 p.m., which was approximately 12 hours after she stopped

drinking, S.L. had a blood-alcohol content of 0.165.

S.L. testified that later that evening she felt pain in her anus and was

unable to have a bowel movement. At that time, she told her parents what

happened, and the following morning they took her to Fairview Hospital and then

to the Bay Village Police station to report the rape.

Salesha Baksh (“Baksh”), a forensic DNA analyst with the Cuyahoga

County Regional Forensic Science Laboratory, tested swabs taken from S.L.’s rape

kit. She testified that Palmer-Tesema’s DNA was a match for the DNA found on

the swabs taken from inside of the crotch area of S.L.’s underwear.

The state pieced S.L.’s night together through the West End’s

surveillance video recordings and the testimonies of (1) a West End bartender, (2)

the Uber driver who accepted S.L.’s Uber request, and (3) Palmer-Tesema’s

roommates and friends.

The jury watched the surveillance video and saw S.L’s interactions at

the bar prior to leaving with Palmer-Tesema, including talking to unknown men.

The state also presented the testimony of the West End bartender who stopped

serving S.L. alcohol due to her intoxicated state. The Uber driver who drove

Palmer-Tesema and S.L. to S.L.’s parent’s house, then to Palmer-Tesema’s house,

testified about the couple’s interactions during the ride, including that they were

kissing. The state also presented testimony from two of Palmer-Tesema’s

roommates who described S.L. and Palmer-Tesema’s behavior after they arrived at their house. Finally, Palmer-Tesema’s friend testified that Palmer-Tesema “kind

of bragged” to her on Thanksgiving night that the night before, “he slept with a girl

he didn’t want to, but she started taking her clothes off so he had to do it.” (Tr.

594.)

The jury also heard testimony from the investigating detectives and

listened to Palmer-Tesema’s initial interview with police denying any sexual conduct

with S.L., even though she “wanted to” but he did not because she was way too drunk

and he was not attracted to her. He told them that she slept in his bed, and he slept

on the couch.

2. N.D. — November 29, 2017

N.D. testified that she met Palmer-Tesema through their mutual

friend, M.C. (the third victim). N.D. explained that she “tolerated” Palmer-Tesema,

considering him to be more of an acquaintance. She was better friends with other

members of the group and stated she would hang out with Palmer-Tesema only if

he was with other friends. According to N.D. “[w]e were all friends,” who hung out

at Palmer-Tesema’s house in Bay Village and referred to it as the “Bay house.” She

told the jury that they all just slept in the beds that were open or on couches or the

floor and were able to leave the next day without having to drive. N.D. estimated

that she had slept in Palmer-Tesema’s bed around three to five times, but that he

was never in the bed with her.

On November 29, 2017, N.D. and her friend Tia McCord drank at the

Bay house for several hours prior to going to bars, including the West End. She remembered having five to seven mixed drinks and three to four shots. She testified

that she did not remember leaving the West End. She recalled being back at the Bay

house and being “very drunk” before going to sleep in Palmer-Tesema’s bed, alone,

and fully clothed. N.D. testified that she awoke lying flat on her stomach and to

somebody vaginally penetrating her from behind; she eventually realized it was

Palmer-Tesema. She did not recall saying or doing anything in response. N.D. was

awakened when McCord came into the bedroom the next morning and she realized

she was naked from the waist down. N.D. got dressed and left with her friend.

N.D. told the jury that she did not initially go to the police or report

the sexual assault because it was “not registering” to her as a sexual assault.

However, after speaking with the Bay Village Police about Palmer-Tesema sexually

assaulting M.C., she decided to come forward. She testified that she never consented

to have sex with Palmer-Tesema.

3. M.C. — January 14, 2018

M.C. testified that at one point in time she was “very close” friends

with Palmer-Tesema and one of his roommates. She would “hang out” at the Bay

house three times a week. M.C. explained that she and others in the group,

including N.D., would drink excessively and then sleep at the Bay house. M.C.

testified that she would “just typically crash on the couch.”

M.C. told the jury that in the summer of 2017, Palmer-Tesema

wanted to be more than friends but she did not. She stated that on two prior occasions, Palmer-Tesema kissed her without her permission but he was respectful

when she told him to stop each time.

M.C. testified that on January 14, 2018, she had been “day drinking.”

She explained that she had her first drink around 11:30 a.m., and continuously

drank for the entire day. This included an unknown number of drinks at the West

End Tavern. M.C. explained “I don’t remember because I was drunk. I remember

where I was and who I was with but at that point I don’t really remember the

context of conversation or how many drinks I had had.” That night, M.C.

exchanged text messages with Palmer-Tesema and decided to stay the night at the

Bay house.

She remembered talking to Palmer-Tesema in the kitchen and then

waking up with her face in the toilet, unsure if she had vomited. She recalled

crawling up the stairs and going directly to Palmer-Tesema’s bed. She testified that

she fell asleep fully-clothed, and that her next memory was waking up and realizing

that Palmer-Tesema’s fingers were inside her vagina. She also stated that Palmer-

Tesema was having sex with her despite her telling him multiple times to stop. She

testified that she was still drunk at that point and was unsure whether she lost

consciousness during the sexual encounter. M.C. next recalled waking up naked

from the waist down and that Palmer-Tesema’s hand was inside her bra. She found

her clothes, got dressed, and left.

The jury read text messages between her and Tia McCord, in which

M.C. stated that Palmer-Tesema “borderline raped me.” M.C. did not report the rape to police until another one of her friends, Leah, encouraged her to do so on

January 18, 2018. Following the report and advice of the investigating detective,

M.C. went to NORD for a rape-kit examination.

SANE Nurse Denise Miller, testified that she performed M.C.’s rape-

kit examination and observed bruising to M.C.’s abdomen, hips, and buttocks. A

speculum and a toluidine blue dye exam were conducted, revealing a small

laceration to the vulva. According to Miller, the laceration is consistent with

vaginal penetration but it does not reveal whether consensual or nonconsensual

activity occurred.

Forensic analyst and expert Baksh also testified that she performed

and analyzed the DNA from M.C.’s rape kit. According to Baksh, a swab taken from

the inside crotch area of M.C.’s underwear revealed a mixture of DNA.

Accordingly, additional Y-STR testing, which focuses solely on the Y-chromosome

to isolate male DNA in the sample, was performed on the swab. Christine Scott, a

forensic DNA analysis with the Cuyahoga County Regional Forensic Science

Laboratory, performed the additional testing and testified that she found that the

major Y-STR DNA component in the sample was Palmer-Tesema’s.

4. The Defense’s Case

Palmer-Tesema testified. He admitted that alcohol was involved and

that each woman slept in his bed. He further claimed that he participated in

consensual sexual conduct with M.C. and N.D., but denied that any sexual activity

occurred with S.L. In his defense, two of his friends testified regarding the interactions

between Palmer-Tesema and S.L. and M.C. His friend Reynaldo testified that he

was at the West End on November 22, 2017, and saw S.L and Palmer-Tesema

together, and that S.L. was kissing Palmer-Tesema’s neck.

On January 14, 2018, Reynaldo was at the Bay house playing cards

when M.C. came over. According to Reynaldo, M.C. and Palmer-Tesema were in

the kitchen talking, and M.C. was sitting on the kitchen counter with her legs

around Palmer-Tesema. He stated that when he and his friends came back from

getting pizza, he did not see them again.

Palmer-Tesema’s friend Tyler testified that on November 30, 2017,

he was with N.D., McCord, and Palmer-Tesema and they were all drinking.

According to Tyler, he was initially sleeping in the same bed with Palmer-Tesema

but he left when McCord and N.D. came into the room, and N.D. got into the bed

with Palmer-Tesema. He testified that he also witnessed M.C. being affectionate

toward Palmer-Tesema on January 14, 2018. B. The Verdict and Sentence

The jury found Palmer-Tesema guilty of all charges, including the

sexual motivation specifications. Following the jury verdict and prior to sentencing,

the state dismissed the sexually violent predator specifications. After merging allied

offenses, the trial court imposed an aggregate prison term of 17 years.

Palmer-Tesema now appeals, raising three assignments of error.

II. Law and Analysis

A. Joinder of Offenses

Prior to trial, Palmer-Tesema filed a motion for relief from prejudicial

joinder, seeking separate trials for the counts pertaining to each woman because the

underlying facts of each incident were such that presenting them together would

confuse the jury and deny him a fair trial. Specifically, he contended that based on

the nature of the offenses charged and the similarity of the factual scenarios

underlying them, the jury would be influenced by any evidence of guilt as related to

one victim and thereby use it to improperly infer guilt as related to another.

The state opposed the motion, arguing that the joinder of offenses was

proper because the evidence was simple and direct pertaining to each victim, the

occurrences shared a common modus operandi, and the evidence of each sexual

assault would likely be admissible under Evid.R. 404(B). Following a hearing, the

trial court denied Palmer-Tesema’s motion. On at least two different occasions during trial, Palmer-Tesema either

renewed his motion for relief from prejudicial joinder or moved for a mistrial on the

grounds of prejudicial joinder. The trial court denied each request.

In his first assignment of error, Palmer-Tesema contends that the trial

court abused its discretion when it denied his motion for relief from prejudicial

joinder.

Under Crim.R. 8(A), two or more offenses may be charged together if

the offenses “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.” Ohio law favors joinder of offenses that meet the Crim.R. 8(A)

requirements in a single trial. State v. Dean,

,

,

. “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,

,

(1992); see also State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-

5138, ¶ 10 (joinder preferable where not unduly prejudicial).

In this case, Palmer-Tesema does not dispute that joinder was proper

under Crim.R. 8(A); rather, he contends that joinder was unduly prejudicial.

Crim.R. 14 provides relief from prejudicial joinder. “If it appears that

a defendant * * * is prejudiced by a joinder of offenses * * * the court shall order an

election or separate trial of counts * * * or provide such other relief as justice requires.” Crim.R. 14. “Severance may be warranted if the trial court finds a serious

risk that a joint trial would prevent the jury from making a reliable judgment about

guilt or innocence.” State v. Jackson, 8th Dist. Cuyahoga No. 102394, 2015-Ohio-

4274, ¶ 12, citing United States v. Zafiro,

,

,

(1993). A defendant seeking severance must provide the trial court

“‘sufficient information so that it can weigh the considerations favoring joinder

against the defendant’s right to a fair trial.’” State v. Hand,

,

,

, ¶ 166, quoting State v. Torres,

,

(1981). The defendant “‘bears the burden of proving prejudice

and of proving that the trial court abused its discretion in denying severance.’”

, quoting State v. Brinkley,

,

,

, ¶ 29.

If a defendant makes a claim for prejudicial joinder, “[t]he state may

rebut a defendant’s claim * * * in two ways.”

. First, if the state shows

that the evidence of each joined offense is “simple and direct” the defendant’s claim

of prejudice fails.

Where the evidence of the joined offenses is “uncomplicated,”

such that the jury is “capable of segregating the proof” required to prove each

offense, a defendant is not prejudiced by the joinder. State v. Lunder, 8th Dist.

Cuyahoga No. 101223,

.

The second way the state can refute prejudice is if the state could

otherwise introduce evidence of the joined offenses at separate trials as “other acts”

pursuant to Evid.R. 404(B). Dean,

,

,

. However, if the state can establish that the evidence of each offense is

simple and direct, it need not establish that the evidence would be otherwise

admissible under Evid.R. 404(B). State v. Clipps, 8th Dist. Cuyahoga No. 107747,

.

Evidence is “simple and direct” if (1) the jury is capable of readily

separating the proof required for each offense, (2) the evidence is unlikely to confuse

jurors, (3) the evidence is straightforward, and (4) there is little danger that the jury

would “improperly consider testimony on one offense as corroborative of the other.”

State v. Wright, 4th Dist. Jackson No. 16CA3,

. Courts have

held that evidence of multiple offenses is “simple and direct” where, for example,

the offenses involved different victims, different incidents or factual scenarios, and

different witnesses. State v. Dantzler, 10th Dist. Franklin Nos. 14AP-907 and 14AP-

908,

. Thus, as this court has stated, “Ohio appellate courts

routinely find no prejudicial joinder where the evidence is presented in an orderly

fashion as to the separate offenses or victims without significant overlap or

conflation of proof.” State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-

5138, ¶ 16, citing State v. Lewis, 6th Dist. Lucas Nos. L-09-1224 and L-09-1225,

, ¶ 33.

In this case, Palmer-Tesema offers no evidence or support for his

claim that he was prejudiced by the jury’s consideration of the joined offenses.

Instead, and without identifying any purportedly confusing evidence or

demonstrating how the jury was confused, he generally argues that the evidence was “confusing,” and the witnesses were “mixed” and “intertwined.” Palmer-Tesema’s

bare allegations are insufficient to establish prejudice. See, e.g., State v. Rosas, 2d

Dist. Montgomery No. 22424,

(defendant “merely assert[ed]

broad general allegations of prejudice that any defendant could assert”); State v.

Corker, 10th Dist. Franklin Nos. 13AP-264, 13AP-265, 13AP-266,

, quoting State v. Strobel,

,

(3d Dist. 1988)

(rejecting defendant’s “bare assertions” of prejudice and noting always the

possibility of prejudice in joining separate instances of any offense in the same

indictment, but that the defendant bears the burden to “‘either affirmatively

demonstrate before trial that his rights would be prejudiced by the joinder, or to

show at the close of the state’s case, or at the conclusion of all the evidence, that his

rights actually had been prejudiced by the joinder’”).

The record before us does not reflect that prejudicial joinder occurred

because the state presented simple and direct testimony relating to each of the three

different victims. Each victim provided detailed testimony of the separate incidents,

and the record reflects that the evidence pertaining to each victim in each offense is

separate and distinct and could easily be segregated. Although the rapes may have

occurred around the same approximate time, the state presented each witness’s

testimony separately so that there was no danger of confusing the evidence.

The first nine witnesses presented to the jury testified regarding the

events leading up to and the rape of S.L., including S.L.’s own testimony. Thereafter, the state called a forensic DNA analyst who testified that

she analyzed evidence from both S.L.’s and M.C.’s rape kits. After a general

introduction regarding the procedure for performing such an analysis, the analyst

testified about specific aspects of S.L.’s rape kit, and the specific findings and

conclusions relating solely to S.L. Following a recess “to clear our heads,” the analyst

then testified about the analysis, findings, and conclusions of M.C.’s rape kit,

including that more specific testing was conducted.

The next witness the state called was a toxicologist to discuss S.L.’s

toxicology report revealing her level of intoxication the morning after the rape. Only

S.L. submitted to a toxicology screen; thus the jury would not have been confused or

unable to separate the findings. A second forensic DNA analyst testified next

regarding the specific testing and analysis conducted on the foreign DNA discovered

from M.C.’s rape kit.

Thereafter, the state called three witnesses pertaining solely to the

rape of M.C., including M.C. Following these witnesses, N.D. testified and a mutual

friend of both M.C. and N.D. testified about her interactions with both victims.

The final witness was the investigative detective whose testimony was

direct and gave a detailed timeline and sequence of events from the beginning of his

assignment of the case involving S.L., the investigative process, and the discovery of

the incident involving M.C., which then lead to the discovery of the rape of N.D.

Based on the foregoing, we find that the testimony and evidence was

clearly distinguishable, easily separated, and not confusing. Furthermore, the state presented more than sufficient evidence with

respect to each victim so that there is no danger that the jury convicted Palmer-

Tesema based on an accumulation of evidence. See State v. Jamison,

,

(1991) (concluding that joined offenses are not prejudicial

when evidence presented was “amply sufficient to sustain each verdict, whether or

not the indictments were tried together” and the strength of the state’s proof

establishes that the prosecution did not attempt to prove one case simply by

questionable evidence of the other offenses). In fact, Palmer-Tesema makes no

argument on appeal that the evidence was insufficient to support any of the offenses

charged. See State v. Roberts,

,

(1980) (prejudice

may be demonstrated when the evidence, considered separately, would be

insufficient to sustain all convictions).

Moreover, the fact that the jury found Palmer-Tesema guilty of all

counts does not support that the jury was confused or conflated the evidence. A trier

of fact is considered “capable of segregating the proof of multiple charges when the

evidence as to each of the charges is uncomplicated.” State v. Lunder, 8th Dist.

Cuyahoga No. 1011223,

, citing State v. Torres,

,

.

Here, the testimony pertaining to each victim was not so complicated

that it would potentially confuse the jury. These were not complicated events, and

did not depend on complex circumstantial evidence. Two of the victims were able

to recall the nonconsensual sexual conduct perpetrated by Palmer-Tesema. And although S.L. was unable to recall the sexual assault, DNA evidence substantiated

her belief that Palmer-Tesema unlawfully engaged in sexual conduct with her.

Finally, the jury was instructed to consider each count separately, and

we presume that the jury followed the court’s instructions. See State v. Gibson, 6th

Dist. Lucas Nos. 2-13-1222 and 2-13-2223,

, ¶ 30 (“Absent evidence

to the contrary, we indulge the presumption that the jury followed the instruction of

the trial court.”). In this case, the trial court instructed the jury as follows:

The charges set forth in each count in the indictment constitute a separate and distinct matter. You must consider each count and the evidence applicable to each count separately and you must state your findings as to each count uninfluenced by your verdict as to any other count.

The defendant may be found guilty or not guilty of any one or all of the offenses charged.

(Tr. 1222-1223.) We note that the jury did not submit any questions during

deliberations, and nothing in the record reveals that the jury failed to follow the trial

court’s instructions.

Accordingly, because joinder was proper and the evidence was simple

and direct, Palmer-Tesema was not prejudiced by joinder, and the trial court did not

abuse its discretion in denying the motion to sever. The first assignment of error is

overruled.

II. Sleep Jury Instruction

In his second assignment of error, Palmer-Tesema contends that the

trial court erred by providing the jury with a “sleep” instruction pertaining to the

offense of rape. In this case, Palmer-Tesema was charged with rape, in violation R.C.

2907.02(A)(1)(c), which provides, in pertinent part,

[n]o person shall engage in sexual conduct with another who is not the spouse of the offender * * * when * * * [t]he other person’s ability to resist or consent is substantially impaired because of a mental or physical condition * * * and the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.

The state requested that the trial court instruct the jury that “sleep”

can constitute “substantial impairment.” Over objection, the trial court gave the

following jury instruction to the jury on “substantial impairment”:

Substantially impaired means a present reduction, diminution or decrease in the victim’s ability either to apprise the nature of his conduct or to control his conduct. Voluntary intoxication is a mental or physical condition that could cause substantial impairment.

Sleep is a mental or physical condition which is sufficient to substantially impair a victim’s ability to consent or resist to sexual conduct or contact.

(Tr. 1214.)

On appeal, Palmer-Tesema contends that the evidence and trial

testimony do not support the “sleep” instruction. He maintains that based on the

evidence presented and the state’s theory of the case — that intoxication was the

basis for the victims’ impairment — a sleep instruction was improper.

This court has held that sleep constitutes a mental or physical

condition that substantially impairs a person from resisting or consenting to sexual

conduct. State v. Keller, 8th Dist. Cuyahoga No. 106196,

;

State v. McCall, 8th Dist. Cuyahoga No. 104479,

, ¶ 6, citing State v. Jones, 8th Dist. Cuyahoga No. 98151,

, citing State v. Clark,

8th Dist. Cuyahoga No. 90148,

(when a person is asleep, he

or she is not in a mental condition to resist or consent to the sexual conduct).

The giving of jury instructions is within the sound discretion of the

trial court, and is reviewed for an abuse of discretion. State v. Howard, 8th Dist.

Cuyahoga No. 100094,

, citing State v. Martens,

,

(3d Dist. 1993). Trial courts have a responsibility to give

all jury instructions that are relevant and necessary for the jury to properly weigh

the evidence and perform its duty as the factfinder. State v. Comen,

,

(1990), paragraph two of the syllabus.

A trial court need not instruct the jury where there is insufficient evidence to support an issue. In reviewing a record to ascertain whether sufficient evidence exists to support the giving of an instruction, an appellate court should determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction.

Goldfuss v. Davidson,

,

(1997).

A review of the record demonstrates that a sleep instruction was

proper because sufficient evidence was presented to support the instruction. Each

of the three victims testified that they were either intoxicated or asleep on the nights

of the rape. Unlike the circumstances surrounding the rape of S.L., who could not

recall any events beyond being at the West End Tavern, both M.C. and N.D. testified

that they were awakened by Palmer-Tesema engaging in sexual conduct with them without their consent. Accordingly, the evidence supported a sleep instruction

regarding at least two of the victims.2

Moreover, Palmer-Tesema testified that M.C. was not intoxicated that

night; rather, he stated that “she was falling asleep as in she was sleepy.” (Tr. 1183.)

Accordingly, by Palmer-Tesema’s own testimony and M.C.’s testimony that she was

awakened by Palmer-Tesema raping her, the sleep jury instruction was proper

because sufficient evidence was presented supporting the instruction.

Additionally, Palmer-Tesema testified that although he was drunk, he

did not believe that N.D. was intoxicated the night he engaged in sexual conduct

with her. (Tr. 1149.) He testified that during sex with N.D., he became sick and

vomited as he walked to the bathroom, where he took a shower. Palmer-Tesema

stated that after he showered, he went back to his bedroom and continued to have

sex with N.D. (Tr. 1154.) He stated, however, that he “believed” that she was awake

— “It was very staticky [sic].” (Tr. 1189.) Accordingly, by Palmer-Tesema’s own

testimony and N.D.’s testimony that she was awakened by Palmer-Tesema raping

her, the sleep jury instruction was proper because sufficient evidence was presented

supporting the instruction.

We find that the evidence supported both a voluntary intoxication and

sleep instruction. The jury was able to consider the circumstances surrounding each

2 Palmer-Tesema did not request that the court only give the sleep instruction regarding certain victims. On the other hand, when the defense requested and received a lesser-included sexual-battery instruction, the state requested that the instruction only be given regarding the offenses pertaining to N.D. and M.C., and not S.L. rape, including whether each victim was unable to resist or consent because of

substantial impairment by virtue of voluntary intoxication or being asleep.

Accordingly, the trial court did not abuse its discretion by giving the

jury a sleep instruction. Palmer-Tesema’s second assignment of error is overruled.

C. Mid-trial Amendment of the Indictment

Count 4 charged Palmer-Tesema with the rape of N.D., and alleged

that Palmer-Tesema “did engage in sexual conduct to wit: digital penetration of the

victim’s vagina.” During her testimony, N.D. stated that Palmer-Tesema vaginally

penetrated her with “[h]is penis.” (Tr. 915.) Following N.D.’s testimony, the state

moved to amend the offense of rape as charged in Count 4 of the indictment by

changing the method of rape from digital penetration to vaginal intercourse. The

trial court granted the state’s request over objection.

Palmer-Tesema contends in his third assignment of error that the trial

court erred in permitting the state to amend the indictment on a material element

of the offense during the trial.

Crim.R. 7(D) provides that a court may amend an indictment “at any

time before, during, or after a trial * * * provided no change is made in the name or

identity of the crime charged.” “A change in the name or identity of a crime charged

occurs when the offense alleged in the indictment and the offense alleged in the

amended indictment contain different elements that require independent proof.”

State v. Buchanan, 8th Dist. Cuyahoga No. 104500,

. Where

the amendment does not change the name or identity of the offense, a reviewing court will not disturb the trial court’s decision to permit the amendment absent an

abuse of discretion and a showing of prejudice.

Here, the amendment did not change the name or identity of the

offense. “Amending a rape charge from one type of sexual conduct to another type

of sexual conduct changes neither the name nor the identity of the rape offense.”

State v. Abdullah, 10th Dist. Franklin No. 05AP-1316,

, citing

State v. Martin, 10th Dist. Franklin No. 05AP-818,

.

Rape in violation of R.C. 2907.02(A)(1)(c) requires proof that the

defendant “engage[d] in sexual conduct with another.” R.C. 2907.01(A) defines

“sexual conduct” to include both “vaginal intercourse” and digital penetration (“the

insertion, however slight, of any part of the body or any instrument, apparatus, or

other object into the vaginal or anal opening of another”). As a result, the type of

sexual conduct was not an element of the offense, and the state’s amendment to the

specific type of sexual conduct did not contain any different elements that required

independent proof. See State v. Steele, 8th Dist. Cuyahoga No. 101139, 2014-Ohio-

5431 (amendment proper when it only changed the type of sexual conduct for the

rape offense).

Palmer-Tesema relies upon this Court’s decision in State v. Vitale,

,

(8th Dist. 1994), where this court held that the

amendment to the indictment was prejudicial to Vitale’s defense because it included

a different potential theft, occurring at a different address, over an expanded time period. This amendment was different from the evidence on which the grand jury

issued the indictment.

Vitale is distinguishable because the amendment to Count 4 did not

allow the state to argue a different rape, at a different address, at a different date.

Nor did it allow the jury to find Palmer-Tesema guilty of a different offense than

indicted. The amendment merely changed the type of sexual conduct to correct “any

variance with the evidence[.]” Crim.R. 7(D).

Finally, the amendment did not prejudice Palmer-Tesema because his

defense did not depend on a distinction between vaginal intercourse and digital

penetration. Palmer-Tesema’s defense as to N.D. was that the sex was consensual.

(Tr. 1267; 1278.) Neither N.D. nor any other witness testified that N.D. consented

to one type of sexual conduct versus another. To the contrary, N.D. testified that she

never consented to any type of sexual conduct with Palmer-Tesema. Accordingly,

he was not prejudiced, and the trial court did not abuse its discretion in allowing the

state to amend the indictment to conform to the evidence.

Palmer-Tesema’s third assignment of error is overruled.

Judgment 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 convictions having been affirmed, any bail pending 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

FRANK D. CELEBREZZE, P.J., CONCURS; EILEEN A. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION

EILEEN A. GALLAGHER, J., DISSENTING:

I respectfully dissent from my learned colleagues’ resolution of the

first assignment of error. I believe that Palmer-Tesema did establish that he was

prejudiced by the joinder of offenses and that the trial court abused its discretion by

denying severance. See State v. Dean,

,

,

.

Before trial, Palmer-Tesema filed a motion for relief from prejudicial

joinder seeking separate trials for counts as pertaining to each woman. He argued

that the underlying facts of each incident were such that presenting them together

would confuse the jury and deny him a fair trial. He argued that there was a

“particularly strong” likelihood that the jury would be influenced by any evidence of

guilt as related to one woman and thereby use it to improperly infer guilt as related

to another. I think that is precisely what happened. At the hearing on his motion, Palmer-Tesema argued that based on

the nature of the offenses charged and the similarity of the factual scenarios

underlying them, the jury would be unable to consider the evidence relating to one

of the women solely for the charges pertaining to her and that the jury would use

evidence pertaining to one woman as proof establishing the claims of another.

During trial he reasserted this argument and made specific reference

to the victims’ testimony. He complained that the victims impermissibly

“bootstrapped each other’s credibility.”

I think Palmer-Tesema met his requisite burden of “furnishing the

trial court with sufficient information so that it can weigh the considerations

favoring joinder against the defendant’s right to a fair trial.” State v. Torres,

,

(1981).

Moreover, I think the state failed to meet its reciprocal burden and

rebut Palmer-Tesema’s claim. The state could have rebutted Palmer-Tesema’s

prejudice claim by showing the evidence of each joined offense was “simple and

direct” or that it could otherwise introduce the evidence at separate trials pursuant

to Evid.R. 404(B). State v. Dean,

,

,

. I don’t think the state did either.

Simple and Direct Evidence

I recognize that this court has observed that appellate courts

“‘routinely find no prejudicial joinder where the evidence is presented in an orderly

fashion as to the separate offenses * * * without significant overlap or conflation of proof.’” State v. Knox, 8th Dist. Cuyahoga No. 107414,

, ¶ 49,

quoting State v. Echols, 8th Dist. Cuyahoga No. 102504,

. The

majority found the testimony and evidence to be “clearly distinguishable, easily

separated, and not confusing.” I find that the record belies this claim and

respectfully disagree with the majority opinion.

As the majority observed, the events in this case occurred close in time

and involved similar factual backgrounds. They involved the same people and

locations. The state further admitted, the witnesses were “inextricably intertwined.”

It observed that the three women “at the very base are acquainted with each other

and at most are friends,” that “[a]ll of the witnesses here know each other.” And it

recognized that “[e]veryone here is, at the very baseline, acquaintances running up

the gamut to good and very close friends.”

Although I quibble with the state’s absolute characterizations of the

witnesses and evidence, 3 I think its basic sentiment about the interconnectedness

of the witnesses and evidence is correct. Indeed, this highlights precisely why the

evidence was not simple and direct. I disagree with the majority’s characterization

that the evidence as presented was “separate and distinct and could easily be

segregated.”

3For example, one of the testifying witnesses, a driver for the ride-sharing service Uber, who testified solely to her experience driving Palmer-Tesema and S.L. to Palmer- Tesema’s house. There was no evidence that the driver knew any of the other witnesses. Moreover, one of Palmer-Tesema’s roommates testified that although he was acquainted with many of the other witnesses, he did not know N.D. Similarly, a different witness who was similarly acquainted testified that she did not know S.L. The state questioned witnesses about multiple incidents at the same

time. For example, the state questioned one roommate about the alleged incident

with S.L., followed by questions about the alleged incident with M.C. before

proceeding to inquire again about the alleged incident with S.L. Whether

intentional or not, this invited the jury to conflate facts about each incident.

Similarly, a forensic DNA analyst testified as to her analysis of both

S.L.’s and M.C.’s rape kits at the same time. After a general introduction regarding

the general procedure for performing such an analysis, the analyst testified about

specific aspects of S.L.’s rape kit and specific findings and conclusions related to it.

As the majority points out, after this testimony the court ordered a “quick ten-

minute break just to clear our heads” before the state proceeded to question the

analyst about M.C.’s rape kit. However, in the midst of its questions about M.C.’s

rape kit, the state again addressed S.L.’s rape kit:

And, once again, this testing that was done on the items submitted for [M.C.], is this happening in similar time as the items submitted in testing for [S.L.]? If you can go back to State’s Exhibit 120 [S.L.’s DNA analysis].

(Tr. 695.)

The state then questioned the analyst about S.L. again, this time with

regard to a second DNA analysis performed on her rape kit. The state inquired

further about M.C.’s rape kit and a second DNA analysis performed on it. The state

then questioned the analyst about the formal reports generated on each of the four

analyses, two relating to S.L.’s rape kit and two relating to M.C.’s rape kit and further inquired about comparisons of the reports. The state then discussed S.L.’s rape kit

again, this time relating to a third DNA analysis.

The next witness that the state called was a toxicologist to discuss

S.L.’s toxicology report that indicated her level of intoxication following the evening

she spent with Palmer-Tesema. The state then called a second DNA analyst to

discuss a third DNA analysis performed on M.C.’s rape kit. Again, whether

intentional or not, jumping back and forth between specific facts relating to different

incidents invited the jury to confuse and conflate the evidence.

The investigating detective’s testimony further illustrated the

interrelatedness of the incidents and the evidence and the overlap of the

investigations. Investigation into S.L.’s claims began with her November 22, 2017

interview. The detective detailed that S.L.’s investigation involved inquiry into the

West End Tavern, including attempts to interview staff and management and locate

surveillance footage. He discussed how that investigation also included interviews

with Palmer-Tesema and some “Bay House” roommates and that this investigation

continued into February 2018.

The detective also discussed investigating M.C.’s claims following her

January 17, 2018 police report. This investigation involved interviewing M.C. as well

as several of her friends. The detective discussed these interviews in the context of

M.C.’s claims but also described how these interviews involved N.D.’s claims as well.

Although police investigation into N.D.’s claims began during the

pendency of both the S.L. and M.C. investigations, the detective testified N.D. alleged Palmer-Tesema sexually assaulted her on November 30, 2017, the same day

that police interviewed Palmer-Tesema pursuant to their S.L. investigation, before

the date which M.C. claimed Palmer-Tesema assaulted her.

The detective further testified about the factual similarities between

the three claims:

The similarities were the alcohol, similarities in which the individuals involved indicated how they woke up in the morning. So those — the fact that there was some level of either being in the same social group or at least a level of acquaintance, that the circumstances were similar enough * * *.

Based on the interrelationship of the evidence presented at trial,

including the overlapping relationships between both victims and witnesses, the

similarities between the between underlying facts of the crimes as alleged and the

timeline in which they were claimed to have occurred, I believe that the evidence

was not simple and direct such that the jury would confuse and conflate the

evidence. In fact, it appears that is precisely what happened here. The jury

convicted Palmer-Tesema on every count. Compare State v. Powell, 8th Dist.

Cuyahoga No. 107276,

(conviction on some counts and

acquittal on other “reflects the jury’s ability to segregate the proof”); compare State

v. Lee, 8th Dist. Cuyahoga No. 104682,

(jury acquittal as to

some offenses reflects “simple and direct” evidence); compare State v. Bonneau, 8th

Dist. Cuyahoga No. 97565,

(not guilty verdict as counts

pertaining to one victim and guilty verdicts as to another demonstrated jury was able

to separate the evidence and consider victims separately). Put differently, I think the state failed to rebut Palmer-Tesema’s

prejudicial joinder claim by failing to establish that the evidence was simple and

direct. See Echols, 8th Dist. Cuyahoga No. 102504,

, quoting

State v. Echols,

,

(1st Dist. 1998). (“‘The

object of the simple and distinct test is to prevent the jury from improperly

considering evidence of various crimes as corroborative of each other. The very

essence of the rule is that the evidence be such that the jury is unlikely to be confused

by it or misuse it.’”).

Evid.R. 404(B)

The state also failed to demonstrate that the evidence was otherwise

admissible pursuant to Evid.R. 404(B). The state’s Evid.R. 404(B) argument as to

why the joinder was not prejudicial that the evidence demonstrated “the modus

operandi as well as identification.” Identity and Modus Operandi

The Supreme Court has recognized that in the context of Evid.R.

404(B), other acts evidence can be used to prove identity in two situations. In the

first, the state may use other acts to prove identity “where other acts ‘form part of

the immediate background of the alleged act which forms the foundation of the

crime charged in the indictment,’ and which are ‘inextricably related to the alleged

criminal act.’” State v. Lowe,

,

(1994), quoting

State v. Curry,

,

(1975). The first situation does

not apply in this case. The evidence related to one woman’s claims does not form

the background or foundation of the incidents involving the other women’s claims.

Moreover, despite having occurred in close temporal proximity and with similar

factual backdrops, each incident was clearly separate from the others; the state

showed no inextricable relationship uniting them.

The second situation that the Supreme Court has recognized where

other acts evidence can be used to prove identity is when the other acts establish a

“modus operandi applicable to the crime with which a defendant is charged * * *

‘forming a unique, identifiable plan of criminal activity * * *.’” (Emphasis deleted.)

quoting State v. Jamison,

,

(1990), syllabus.

In discussing Evid.R. 404(B) evidence in the context of modus operandi, the

Supreme Court has further explained that such evidence is admissible

[N]ot because it labels a defendant as a criminal, but because it provides a behavioral fingerprint which, when compared to the behavioral fingerprints associated with the crime in question, can be used to identify the defendant as the perpetrator.

.

I acknowledge that there are indeed factual similarities between each

incident as alleged by the women, however I think those similarities are decidedly

insufficient to establish a behavioral fingerprint. See State v. Picklesimer, 4th Dist.

Pickaway No. 96CA2,

, at *10 (Oct. 15, 1996) (“In order

to be admissible for identity purposes, the similarity between the other acts and the

charged offense, i.e., their pattern and characteristics, must be so unusual and

distinctive as to be like a signature.”); see State v. Miller, 4th Dist. Washington No.

06CA57,

(“The mere repeated commission of crimes of the

same class is insufficient to establish a behavioral fingerprint.”).

I reject the state’s argument that the evidence of each incident would

be otherwise admissible to prove identity and modus operandi. See also State v.

Schaim,

,

(1992) (“[The danger that a jury will

convict a defendant solely based on the assumption that he has a propensity to

commit criminal acts or deserves punishment regardless of guilt] is particularly high

when the other acts are very similar to the charged offense, or of an inflammatory

nature * * *.”). As such, the state failed to rebut Palmer-Tesema’s prejudicial joinder

claim by establishing that the evidence was otherwise admissible pursuant to

Evid.R. 404(B). Conclusion

The evidence in this case as related for each alleged incident was far

from overwhelming. For example, the Uber driver who transported Palmer-Tesema

and S.L. from the bar to Palmer-Tesema’s house testified that although S.L. was

“clumsy” getting into the car, by the time they arrived she “got out by herself and

walked up to the door by herself” and that “[i]t was just a straight walk.” The

majority notes that S.L.’s toxicology report indicated that the next day S.L. still had

a substantial amount of alcohol in her system. But S.L. admitted in her testimony

that she was a frequent, heavy drinker. This evidence raises questions as to whether

Palmer-Tesema knew or had reasonable cause to believe that S.L. was substantially

impaired.

Similarly, as the majority notes, N.D. testified that she did not

initially go to the police or seek medical attention because she “wasn’t registering”

the incident as a sexual assault at that time. It was only after learning of M.C.’s claim

that she came forward with her own.

I believe that the trial court abused its discretion by denying

severance.

The majority notwithstanding, this court has previously recognized

the “‘spill-over effect’” where a jury “‘relies on evidence present on one set of counts

when reaching a conclusion on the other set.’” State v. Jackson, 8th Dist. Cuyahoga

No. 102394,

, quoting United States v. Ervin,

(7th Cir. 2008). Unfortunately for Palmer-Tesema, I think that is exactly what

happened here.

Accordingly, I would vacate Palmer-Tesema’s convictions and

remand the case for separate trials.