[Cite as State v. Grubbs, 2016-Ohio-5147.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. Patricia A. Delaney, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : Case No. 15CAA100080 

 : 

MICHAEL F. GRUBBS : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court 

of Common Pleas, Case No. 15 CR 1 

01 0004 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: July 25, 2016 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

CAROL HAMILTON O’BRIEN WILLIAM T. CRAMER 

DELAWARE CO. PROSECUTOR 470 Olde Worthington Road, Ste. 200 

CORY J. GOE Westerville, OH 43082 

140 N. Sandusky St., 3rd Floor 

Delaware, OH 43015 

 
Delaware County, Case No. 15CAA100080 2 

Delaney, J. 

{¶1} Appellant Michael F. Grubbs appeals from the September 29, 2015 

Judgment Entry of Prison Sentence of the Delaware County Court of Common Pleas. 

Appellee is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶2} “Jane Doe” was 9 years old at the time of the crimes described herein and 

10 years old at the time of trial. “Mary Doe” was 5 years old. The girls have a 4-year-old 

brother, “John Doe.” The children’s relatives other than appellant will be referred to as 

“Mother” and “Grandmother” to preserve the anonymity of the child victims. Appellant is 

Mother’s uncle and Grandmother is the children’s maternal great-grandmother. 

{¶3} The three children were frequently left in the care of relatives while Mother 

worked. Appellant would watch all three children at Grandmother’s house because he 

lived in a small apartment and Grandmother had more room to play. The children also 

had their own rooms and duplicate toys at Grandmother’s house. 

{¶4} Appellant was often the only adult with the children because Grandmother 

was at work during the day. Appellant would shuttle the children between school, 

preschool, and daycare as needed. Appellant would take the children to their favorite 

restaurants including Taco Bell and Burger King and sometimes bought toys for them. 

Appellant bought Jane Doe a Monster High doll she was particularly fond of. 

{¶5} On Monday, December 29, 2014, the children were on Christmas break 

from school. Mother and Grandmother worked during the day so appellant watched all 

three children at Grandmother’s house. Mother picked up Mary Doe and John Doe 

around 12:30, but appellant asked if he could keep Jane Doe for the afternoon so they 
Delaware County, Case No. 15CAA100080 3 

could spend time together before Jane Doe returned to school. Appellant returned Jane 

Doe to Mother’s home around 5:30 p.m. 

{¶6} The next day, Tuesday, December 30, 2014, appellant again volunteered 

to watch the children while Mother and Grandmother worked. This time, Mother picked 

up Jane Doe and John Doe around 12:30 p.m. and appellant asked to spend the 

afternoon alone with Mary Doe. Appellant brought Mary Doe home and dropped her off 

around 5:30 p.m. The family ate dinner and Mother’s boyfriend, Robert Flores, came 

over. The girls were playing upstairs and Jane Doe came down to tell Mother “something 

bad was happening” and they needed to talk about it. Jane Doe said Mary Doe was afraid 

to tell. 

{¶7} Mother found Mary Doe in her closet, crying and afraid. It took Mother 

twenty minutes to coax Mary Doe from the closet and to ask her what was wrong. Mary 

Doe was afraid she would be in trouble. Finally Mary Doe said, “Mommy, don’t make us 

go with Uncle Michael anymore.” She told her mother appellant had been kissing her on 

the lips and putting his hands down her pants, and she was afraid. At trial Mary Doe 

testified appellant touched her on her “private part” under her clothes and indicated her 

vagina. She said the last time it happened was the last time she saw appellant, i.e. 

December 30. 

{¶8} Mother asked Jane Doe if this happened to her as well and Jane Doe said 

yes. At trial, Jane Doe testified appellant touched her “boobs,” “pee-pee,” and “butt,” over 

her clothes and under her clothes. Jane Doe also testified to digital penetration. Jane 

Doe testified appellant told her not to tell anyone and bought her things if she allowed him 
Delaware County, Case No. 15CAA100080 4 

to touch her, including the Monster High doll. When Jane Doe learned the same things 

were happening to Mary Doe, she felt it was time to disclose to their mother. 

{¶9} Mary Doe testified the abuse was ongoing until the night she and Jane Doe 

told their mother. She and Jane Doe had never discussed the abuse with each other or 

with anyone else until the night of the disclosure. 

{¶10} That night, Mother told her boyfriend and also her Aunt, appellant’s sister. 

Aunt is a nurse and told Mother to take the girls to the hospital right away. Mother took 

them to a hospital the next morning. 

{¶11} In the meantime, Aunt, appellant, and their spouses went to Delaware 

County Children’s Services and reported that the girls were being molested.1 

{¶12} A pediatric SANE nurse examined both children at Nationwide Children’s 

Hospital and collected rape kits. The nurse testified both exams were “normal” and she 

did not observe any genital trauma to either victim. She testified these findings were 

neither unusual nor unexpected in light of the allegations of touching and digital 

penetration. 

{¶13} A forensic analyst from B.C.I. testified about examination of the rape kits for 

D.N.A. evidence. No semen was found and no foreign D.N.A. was located on either 

victim. The analyst noted a tiny amount of male D.N.A. was found on a swab taken from 

Jane Doe’s breasts and a tiny amount of male D.N.A. was found on a swab of amylase 

found in Mary Doe’s underwear. The presence of the male chromosome was noted but 

the sample was too miniscule to provide any basis for comparison. 

 

1 The relatives named the perpetrator as Mother’s boyfriend Robert Flores, an allegation 

which was alluded to at trial. 
Delaware County, Case No. 15CAA100080 5 

{¶14} A forensic interviewer from Nationwide Children’s Hospital spoke to both 

girls and testified at trial. She said Jane Doe reported sexual abuse by appellant at 

Grandmother’s house: appellant touched her breasts more than once, rubbed his penis 

on her vagina with clothes on more than once, and put his finger inside her vagina. Jane 

Doe said the last incident occurred the last time she saw appellant, or Monday, December 

29, 2014. 

{¶15} Mary Doe also disclosed sexual abuse by appellant to the forensic 

interviewer: appellant touched, rubbed, and hurt her vagina, on top of clothes and with 

bare skin, and put his finger inside her vagina. It happened many times but the most 

recent occurrence was the last time she saw appellant, or Tuesday, December 30, 2014. 

{¶16} Detective Daniel Madden of the Delaware City Police Department 

investigated the allegations which were reported to him via Grady Memorial Hospital. 

Madden instructed Mother to take the girls to Nationwide Children’s Hospital and she 

complied. Madden advised Children’s Services of the allegations and learned appellant 

and his family had come to Children’s Services earlier the same day to report the abuse, 

although they named a different perpetrator. 

{¶17} Madden called appellant and appellant volunteered to come in to speak to 

him. Madden testified appellant said he played a “grandfatherly” role with the girls. 

Madden asked why the girls would make up sexual abuse allegations and appellant said 

maybe someone else did it. Madden noted appellant made a strange comment about 

telling “her” that if it was a boy and had a penis, it “leaked.” Madden observed appellant 

had a very dry mouth throughout the interview which the detective interpreted as an 

indication appellant was lying. Appellant told Madden he and Aunt went to Children’s 
Delaware County, Case No. 15CAA100080 6 

Services to start an investigation because his sister (Aunt) thinks something else was 

going on. 

{¶18} When Madden asked directly if he ever touched the girls’ breasts, vaginal 

areas, or buttocks, appellant denied the abuse and said if those touches happened they 

were unintentional in the bathtub or when the girls would jump on him. Madden also 

confronted appellant with the specific allegation that he kissed Mary Doe on the lips. 

Appellant said Mary Doe always kisses him on the lips; he said he has tried to stop her 

from doing it but she persisted. 

{¶19} Madden testified he found it strange that although appellant has children of 

his own, the desktop photograph on his cell phone screen was of Jane and Mary Doe. 

{¶20} Appellant testified on his own behalf at trial. He described many photos and 

videos of Jane, Mary, and John Doe on his cell phone; in some of the photos the girls are 

dressed up in costumes or makeup, and in some the children are sleeping. Appellant 

said the children did not ask to have their photos taken but did not object. In one video, 

he described Mary Doe “shaking [her] behind” and said it made him very uncomfortable 

and he had to correct the behavior. He said he observed this type of behavior “frequently.” 

{¶21} Several of appellant’s friends and family members testified on his behalf at 

trial, including Aunt and Grandmother, among others. The witnesses testified they did 

not believe appellant had the propensity to molest children and described various 

developmental issues with the children and problems with Mother’s parenting. The 

witnesses insinuated that the children’s behavioral problems were consistent with sexual 

abuse but that Mother’s boyfriend was the perpetrator instead of appellant. 
Delaware County, Case No. 15CAA100080 7 

{¶22} Appellant was charged by indictment as follows: Count I, rape of a child 

under the age of 13 [Jane Doe], a felony of the first degree pursuant to R.C. 

2907.02(A)(1)(b); Count II, forcible rape of Jane Doe pursuant to R.C. 2907.02(A)(2), a 

felony of the first degree; Count III, gross sexual imposition against a child under the age 

of 13 [Jane Doe], a felony of the third degree pursuant to R.C. 2907.05(A)(4); Count IV, 

forcible gross sexual imposition against Jane Doe, a felony of the fourth degree pursuant 

to R.C. 2907.05(A)(1); Count V, rape of a child under the age of 13 [Mary Doe], noting 

Mary Doe was under the age of 10, a felony of the first degree pursuant to R.C. 

2907.02(A)(1)(b), a felony of the first degree; Count VI, forcible rape of Mary Doe pursuant 

to R.C. 2907.02(A)(2), a felony of the first degree; Count VII, gross sexual imposition 

against a child under the age of 13 [Mary Doe], a felony of the third degree pursuant to 

R.C. 2907.05(A)(4); and Count VIII, forcible gross sexual imposition against Mary Doe, a 

felony of the fourth degree pursuant to R.C. 2907.05(A)(1). 

{¶23} The indictment states that Counts I through IV arose on or around 

December 29, 2014, and Counts V through VIII arose on or around December 30, 2014. 

{¶24} Appellant entered pleas of not guilty. He moved to sever trial of the counts 

relative to each of the two victims; appellee responded in opposition. The motion to sever 

proceeded to oral argument and was denied by judgment entry dated March 27, 2015.2 

{¶25} On July 23, 2015, appellant moved the trial court to call Robert Flores, 

Mother’s boyfriend, as a court’s witness pursuant to Evid.R. 614. Appellee filed a 

response in opposition. 

 

2 A number of other motions not relevant to this appeal were filed by both parties. 
Delaware County, Case No. 15CAA100080 8 

{¶26} On August 5, 2015, the trial court overruled appellant’s motion to call Robert 

Flores as a court’s witness, noting “[t]he defense has no good faith basis to believe Mr. 

Flores is involved in any way with molesting the girls except for the allegations coming 

forth after he entered their lives” and “[t]he Court does not feel it is necessary * * * to call 

Mr. Flores because there has been no showing he has any information material to the 

offenses.” 

{¶27} Appellee also filed a motion in limine asking the trial court to prohibit 

appellant from introducing evidence of Flores’ rape conviction involving a victim described 

as an “adult ex-girlfriend.” 

{¶28} The case proceeded to trial by jury. Appellant moved for judgment of 

acquittal pursuant to Crim.R. 29(A) at the conclusion of appellee’s evidence and at the 

conclusion of all of the evidence; the motions were overruled. On August 31, 2015, 

appellant was found not guilty upon Counts I and II [rape of Jane Doe]; guilty upon Counts 

III and IV [gross sexual imposition against Jane Doe]; and guilty of Counts VII and VIII 

[gross sexual imposition against Mary Doe]. The jury was unable to reach a unanimous 

verdict upon Counts V and VI [rape of Mary Doe]. 

{¶29} On September 15, 2015, appellant filed a motion to set aside the verdicts 

and enter judgments of acquittal or in the alternative a motion for new trial. Appellee 

responded with a motion in opposition. On September 25, 2015, appellant filed a 

“Defendant’s Proffer of Evidence” excluded at trial. 

{¶30} Following a sentencing hearing, the trial court found Counts IV and VIII to 

be allied offenses of similar import and thus proceeded to sentence appellant upon 
Delaware County, Case No. 15CAA100080 9 

Counts III and VII. The trial court imposed two concurrent terms of 24 months in prison. 

Appellant was found to be a Tier II sex offender. 

{¶31} On October 1, 2015, by judgment entry, the trial court sustained appellant’s 

motion for acquittal as to Counts V and VI [rape of Mary Doe] but otherwise overruled the 

motion to set aside the verdict and motion for new trial. 

{¶32} Appellant now appeals from the judgment entry of sentence and from the 

judgment entry denying the motion to set aside the verdict and for new trial. 

{¶33} Appellant raises six assignments of error: 

ASSIGNMENTS OF ERROR 

{¶34} “I. THE TRIAL COURT VIOLATED APPELLANT’S FEDERAL AND STATE 

CONSTITUTIONAL RIGHTS TO A FAIR TRIAL, AND CRIM.R. 14, BY REUSING TO 

SEVER THE COUNTS RELATING TO SEPARATE VICTIMS.” 

{¶35} “II. THE TRIAL COURT VIOLATED APPELLANT’S FEDERAL AND STATE 

CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO PRESENT A COMPLETE 

DEFENSE BY EXCLUDING EVIDENCE OF ROBERT FLORES’ PRIOR SEX 

OFFENSE.” 

{¶36} “III. THE TRIAL COURT VIOLATED APPELLANT’S FEDERAL AND 

STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO PRESENT A 

COMPLETE DEFENSE BY EXCLUDING EVIDENCE THAT ROBERT FLORES WAS 

ABUSING THE GIRLS.” 

{¶37} “IV. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO THE EFFECTIVE 

ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS 

TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, 
Delaware County, Case No. 15CAA100080 10 

ARTICLE I, SECTION 10, BY COUNSEL’S FAILURE TO RENEW THE SEVERANCE 

ARGUMENT.” 

{¶38} “V. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO THE EFFECTIVE 

ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS 

TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, 

ARTICLE I, SECTION 10, BY COUNSEL’S FAILURE TO TIMELY OFFER RELEVANT 

EVIDENCE.” 

{¶39} “VI. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS 

AND A FAIR TRIAL UNDER THE FEDERAL AND STATE CONSTITUTIONS BY THE 

CUMULATIVE EFFECT OF THE NUMEROUS ERRORS IN THIS CASE.” 

ANALYSIS 

I.

{¶40} In his first assignment of error, appellant asserts the trial court erred in 

failing to sever the counts pertaining to each of the two victims. We disagree. 

{¶41} We examined joinder and severance in the context of sexual assault 

allegations in State v. Meeks, 5th Dist. Stark No. 2014CA00017, 2015-Ohio-1527, 34 

N.E.3d 382, appeal not allowed, 143 Ohio St.3d 1543, 2015-Ohio-4633, 40 N.E.3d 1180, 

and a similar analysis is applicable here. In both cases, defendants faced a single trial 

upon multiple sexual-assault-related charges against two victims. 

{¶42} Joinder of offenses is governed by Crim. R. 8(A); offenses may be joined if 

they are of the same or similar character, are based on the same act or transaction, or 

are based on two or more acts or transactions connected together or part of a common 

scheme or course of criminal conduct. Joinder is liberally permitted to conserve judicial 
Delaware County, Case No. 15CAA100080 11 

resources, reduce the chance of incongruous results in successive trials, and diminish 

inconvenience to witnesses. See, State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 

1288 (1981). Joinder is appropriate where the evidence is interlocking and the jury is 

capable of segregating the proof required for each offense. State v. Czajka, 101 Ohio 

App.3d 564, 577–578, 656 N.E.2d 9 (8th Dist.1995). 

{¶43} If similar offenses are properly joined pursuant to Crim. R. 8(A), the accused 

may move to sever the charges pursuant to Crim. R. 14, wherein the burden is on the 

defendant to demonstrate his rights would be prejudiced by joinder. State v. Strobel, 51 

Ohio App.3d 31, 33, 554 N.E.2d 916 (3rd Dist.1988). Appellant argues the trial court erred 

in overruling his motion to sever. To prevail on such a claim, the defendant has the burden 

of demonstrating: 1) his rights were actually prejudiced; 2) at the time of the motion to 

sever, the defendant provided the trial court with sufficient information so that it could 

weigh the considerations favoring joinder against the potential prejudice the defendant's 

right to a fair trial; and 3) given the information provided to the court, the court abused its 

discretion in refusing to sever the charges. State v. Schaim, 65 Ohio St.3d 51, 59, 600 

N.E.2d 661 (1992), citing State v. Hamblin, 37 Ohio St.3d 153, 158–159, 524 N.E.2d 476 

(1988) and Drew v. United States, 331 F.2d 85 (D.C.Cir.1964). A defendant has not 

demonstrated prejudice where: (1) if the counts were severed, evidence of alleged 

misconduct from each count would be admissible in separate trials, and (2) if such 

evidence would not be admissible, the evidence of each count is simple and distinct. Id.

{¶44} If evidence of the offenses against Jane Doe is admissible at trial of the 

offenses against Mary Doe, and vice-versa, appellant has not demonstrated prejudice. 

“If the evidence of other crimes would be admissible at separate trials, any ‘prejudice that 
Delaware County, Case No. 15CAA100080 12 

might result from the jury's hearing the evidence of the other crime in a joint trial would 

be no different from that possible in separate trials,’ and a court need not inquire further.” 

Schaim, supra, 65 Ohio St.3d at 59, 600 N.E.2d 661, internal citation omitted. 

Accordingly, we must determine the extent to which evidence of each of these crimes 

would be admissible in other trials if the counts were severed. State v. Markwell, 5th Dist. 

Muskingum No. CT2011–0056, 2012-Ohio-3096, 2012 WL 2613903, ¶ 46. 

{¶45} The admission of other-acts evidence is limited because of the substantial 

danger a jury will convict the defendant solely because it assumes that the defendant has 

a propensity to commit criminal acts, or deserves punishment regardless of whether he 

or she committed the crime charged in the indictment, and this danger is especially high 

in a case “of an inflammatory nature” such as this one. Schaim, supra, 65 Ohio St.3d at 

59, 600 N.E.2d 661, citing State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975). 

However, “[a]s long as used for purposes other than proving that the accused acted in 

conformity with a particular character trait, Evid.R. 404(B) permits the admission of ‘other 

acts' evidence if it is ‘related to and share[s] common features with the crime in question.’ 

” State v. Markwell, supra, 2012-Ohio-3096, 2012 WL 2613903, at ¶ 45, citing State v. 

Lowe, 69 Ohio St.3d 527, 634 N.E.2d 616 (1994), paragraph one of the syllabus. 

{¶46} In this case, the other-acts evidence pertaining to each victim is related to 

and shares common features with the crimes committed against the other victim. 

Appellant has access to both victims because he babysits them; the victims are sisters 

and appellant is their great-uncle. Each victim was isolated by appellant and kept by him 

for an afternoon alone when the abuse occurred. The charged acts of abuse occurred 

within two days of each other, although ongoing continuous abuse was alleged. 
Delaware County, Case No. 15CAA100080 13 

{¶47} Appellee argues the evidence of each offense would have been admissible 

at separate trials pursuant to Evid.R. 404(B), which states in pertinent part: “Evidence of 

other crimes, wrongs, or acts is not admissible to prove the character of a person in order 

to show action in conformity therewith. It may, however, be admissible for other purposes, 

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident. * * * *.” The Rule is in accord with R.C. 2945.59, which 

states: 

In any criminal case in which the defendant's motive or intent, 

the absence of mistake or accident on his part, or the defendant's 

scheme, plan, or system in doing an act is material, any acts of the 

defendant which tend to show his motive or intent, the absence of 

mistake or accident on his part, or the defendant's scheme, plan, or 

system in doing the act in question may be proved, whether they are 

contemporaneous with or prior or subsequent thereto, 

notwithstanding that such proof may show or tend to show the 

commission of another crime by the defendant. 

{¶48} In State v. Curry, 43 Ohio St.2d 66, 330 N.E.2d 720 (1975), the Ohio 

Supreme Court held “other acts” testimony, in order to be admissible under the scheme 

or plan exception, must: (1) illustrate the immediate background of the crime charged, 

such that without this testimony it would be virtually impossible to prove that the accused 

committed the crime; or (2) establish the identity of the perpetrator. The Court has 

subsequently limited its holding in Curry: “Pursuant to Evid.R. 404(B), * * * evidence of 

other crimes, wrongs, or acts of an accused may be admissible to prove intent or plan, 
Delaware County, Case No. 15CAA100080 14 

even if the identity of an accused or the immediate background of a crime is not at issue.” 

State v. Williams, 134 Ohio St.3d 521, 522, 2012-Ohio-5695, 983 N.E.2d 1278, 1280, ¶ 

2 (2012). 

{¶49} Williams gives us a framework within which to evaluate the other-acts 

evidence: 

The first step is to consider whether the other acts evidence 

is relevant to making any fact that is of consequence to the 

determination of the action more or less probable than it would be 

without the evidence. Evid.R. 401. The next step is to consider 

whether evidence of the other crimes, wrongs, or acts is presented 

to prove the character of the accused in order to show activity in 

conformity therewith or whether the other acts evidence is presented 

for a legitimate purpose, such as those stated in Evid.R. 404(B). The 

third step is to consider whether the probative value of the other acts 

evidence is substantially outweighed by the danger of unfair 

prejudice. See Evid.R. 403. 

State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 

N.E.2d 1278, ¶ 20. 

{¶50} In the instant case, the evidence pertaining to each offense does have the 

tendency to prove appellant engaged in a similar plan or method of conduct with both 

victims and to prove his motive, intent, or plan. The nature of the allegations is similar: 

touching over and under the clothing over time. The final incidents occurred within 24 

hours of each other, with each victim isolated by appellant and kept alone with him. 
Delaware County, Case No. 15CAA100080 15 

Appellant took each victim to a favorite restaurant consistent with allegations he groomed 

and rewarded the victims for acts of abuse. 

{¶51} Having reviewed the substantial record of this case, we are convinced the 

evidence against both victims was not presented to prove appellant’s character in order 

to show activity in conformity therewith. Appellant told Madden he may have touched the 

girls accidentally in the bathtub or when they climbed on him to play; the similar 

circumstances of the offenses against both victims defeats this explanation and points to 

appellant’s motive and intent. Appellant and his witnesses implied the girls’ behavioral 

problems were consistent with sexual abuse but pointed to a different perpetrator; the 

related allegations involving two victims point to appellant’s identity as the perpetrator. 

{¶52} From our review of the evidence, we find: 1) the acts were against family 

members, 2) the acts occurred when the children were isolated with appellant after he 

asked to be alone with them and 3) the allegations of touching over and under the clothing 

were similar. State v. Markwell, 5th Dist. Muskingum No. CT2011-0056, 2012-Ohio-3096, 

¶ 48, citing State v. Ickes, 5th Dist. No.1999AP080052, 2000 WL 874728 (June 13, 2000). 

“These facts clearly indicate a ‘scheme, plan or system’ negating any claim of accident.” 

Id. Further, the acts were consecutive in nature, and each victim testified separately. Id. 

The issues were clearly laid out for the jury, and the jury was instructed that each count 

and victim should be considered from its own evidence. Id. 

{¶53} The third step in the Williams analysis is whether the probative value of 

each incident is outweighed by the prejudice risked in its admission. Williams, supra, 2-

2012-Ohio-5695 at ¶ 20. Unfair prejudice is that quality of evidence which might result in 

an improper basis for a jury decision. State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-
Delaware County, Case No. 15CAA100080 16 

6550, 820 N.E.2d 302 ¶ 24. Because fairness is subjective, the determination whether 

evidence is unfairly prejudicial is left to the sound discretion of the trial court and will be 

overturned only if the discretion is abused. Id., citing State v. Robb, 88 Ohio St.3d 59, 68, 

723 N.E.2d 1019 (2000). In light of our conclusions above, we find the probative value of 

admitting the evidence in a single trial outweighs any prejudice to appellant. 

{¶54} Consequently, evidence that appellant molested both sisters under similar 

circumstances was admissible in a single trial. Williams, supra, 134 Ohio St.3d 521, 2012-

Ohio-5695, 983 N.E.2d 1278, at ¶ 2; see also, State v. Musgrave, 5th Dist. Stark No. 97–

CA–0135, 1998 WL 818067, *3 (Oct. 26, 1998); State v. Markwell, 5th Dist. Muskingum 

No. CT2011–0056, 2012-Ohio-3096, 2012 WL 2613903, supra; State v. Brown, 5th Dist. 

Delaware No. 2005CAA010002, 2005-Ohio-5639, 2005 WL 2727129. 

{¶55} We find the trial court did not abuse its discretion in denying appellant's 

motion to sever. 

{¶56} We further note evidence of each crime is simple and distinct. The jury was 

capable of separating the proof of multiple charges where, as here, the evidence of each 

crime is uncomplicated. State v. Hamblin, 37 Ohio St.3d 153, 159, 524 N.E.2d 476 (1988). 

Each victim testified separately and the prosecution introduced evidence of each distinct 

crime. The jury was evidently able to separate the evidence against each victim upon 

each count because appellant was found not guilty of the rape offenses against Jane Doe 

and was unable to reach a verdict upon the rape counts against Mary Doe. 

{¶57} We conclude the trial court did not abuse its discretion in overruling the 

motion to sever. Appellant's first assignment of error is overruled. 

II., III. 
Delaware County, Case No. 15CAA100080 17 

{¶58} Appellant’s second and third assignments of error are related and will be 

considered together. Appellant argues the trial court erred in excluding evidence of 

Robert Flores’ prior conviction and in excluding purported “evidence * * * Flores was 

abusing the girls.” We disagree. 

{¶59} The admission or exclusion of relevant evidence is a matter left to the sound 

discretion of the trial court. Absent an abuse of discretion resulting in material prejudice 

to the defendant, a reviewing court should be reluctant to interfere with a trial court’s 

decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). 

{¶60} Appellant argues the trial court erred in several ways with respect to rulings 

regarding Flores and his criminal history. We will address each in turn, but we begin by 

noting there is no evidence in this record Flores committed the offenses appellant was 

charged with. The evidence appellant points to consists of the testimony of his family 

members which premised upon rumor, supposition, and innuendo. The sole established 

fact against Flores is that he has a 2004 conviction for attempted rape against an adult 

female victim described by appellee as an ex-girlfriend. 

{¶61} First, appellant argues the trial court should have called Flores as a court’s 

witness “so that the defense could impeach Flores with his prior conviction for attempted 

rape and status as a registered sex offender.” (Brief, 24). Ohio Evid. R. 614(A) states 

“[t]he court may, on its own motion or at the suggestion of a party, call witnesses, and all 

parties are entitled to cross-examine witnesses thus called.” 

{¶62} At the hearing on appellant’s motion, appellant presented evidence Flores 

was convicted of attempted rape in 2004 and is a registered sex offender. (Appellee 

stated at the hearing that the rape offense involved an adult ex-girlfriend and had no 
Delaware County, Case No. 15CAA100080 18 

connection at all with the instant case.) Defense trial counsel stated he “assumed” Mother 

would have explained Flores’ status as a sex offender to her children and told them to 

“mind [ ] themselves” around him. (T. 8/4/2015, 6-7). Counsel argued this assumption is 

relevant as follows: 

 One of the questions the jury is likely to ask themselves 

is why would girls of this age have knowledge of these 

subjects but for the fact that they engaged in this behavior. 

 This goes to a source of knowledge, your Honor. That 

conversation would have provided them information about the 

importance of telling somebody if somebody—if you’re being 

touched and what the consequences of that are. 

T. 8/4/2015, 7. 

{¶63} The trial court questioned counsel whether the true purpose of calling Flores 

as a court’s witness was to accuse him of being the perpetrator of the abuse against the 

girls and pointed out that calling Flores as a witness bore no relationship to the girls’ 

“knowledge of sex abuse.” The following conversation took place: 

 [DEFENSE COUNSEL:] * * * *. 

 We’ll be able to essentially impeach his testimony 

extrinsically just through knowledge of other people, and that goes 

to his believability when I do ask him that ultimate question. 

 Are you the person that did this and he says, no, if he’s 

lied about six other things, Judge, the jury’s going to have the 

opportunity to weigh that. 
Delaware County, Case No. 15CAA100080 19 

 And I think that’s an important factor for them to weigh 

when there’s a man who’s been sleeping in the same house, taking 

care of these girls for at least six weeks, and really longer than that, 

he’s been a part of their lives for 11 months, he was their primary 

caregiver for six weeks. 

 With that much interaction with the girls immediately 

before these allegations, I think that’s an important piece for the jury 

to know. 

 * * * *. 

 THE COURT: So do you have any good-faith basis to believe that he 

molested these girls or are you just putting him on the stand as a strawman out 

there? 

 [DEFENSE COUNSEL:] He’s not a strawman, sir. But he has—he’s—he 

is the change in the girls’ lives. That’s my good-faith basis is that almost 

immediately prior to these allegations coming out is when he’s the person that 

starts babysitting them. 

 [Appellant] had been part of their life for two years, and then six weeks we 

have this happen. 

 I have other—I have other witnesses who will testify to change in their 

behavior during that six weeks. 

 Do I have any—do I have a video or a confession or statement that says 

he’s the one that did this? No, sir. 
Delaware County, Case No. 15CAA100080 20 

 But I have—I have quite a bit of other information that really raises some 

red flags, and I think those are red flags that the jury’s entitled to hear and judge 

for themselves. 

 * * * *. 

T. 8/4/2015, 16-18. 

{¶64} The trial court deferred ruling upon the motion to call Flores as a court’s 

witness but later denied the motion. The trial court also provisionally granted appellee’s 

motion in limine prohibiting mention of the attempted rape conviction. (T. I., 19-21.) 

{¶65} Flores’ criminal conviction is not relevant and cross-examination of him in 

an attempt to paint him as the perpetrator of the crimes is not within the parameters of 

Evid.R. 614(A). “A trial court possesses the authority in the exercise of sound discretion 

to call individuals as witnesses of the court.” State v. Arnold, 189 Ohio App.3d 507, 2010-

Ohio-5379, 939 N.E.2d 218, ¶ 44 (2nd Dist.), citing State v. Adams, 62 Ohio St.2d 151, 

404 N.E.2d 144 (1980), paragraph four of the syllabus. “[L]imitations on the application 

of a rule like Evid.R. 614 reflect a concern that its cross-examination provision not swallow 

up the fundamental requirement imposed by Evid.R. 402 that in order to be admissible, 

evidence of a court's witness must be relevant; that is, the evidence must have ‘any 

tendency to make the existence of any fact that is of consequence to the determination 

of the action more probable or less probable than it would be without the evidence.’” Id. 

at ¶ 47, citing Evid.R. 401. 

{¶66} In this case, the trial court’s decision to disallow Flores as a court’s witness 

is not an abuse of discretion. The attenuated reason appellant cited for calling Flores as 

a witness (that Mother may have spoken to the girls about his past, thereby explaining 
Delaware County, Case No. 15CAA100080 21 

how the girls are aware of sexual abuse terms) has no “tendency to make the existence 

of any fact that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence.” Arnold, supra, 2010-Ohio-5379 at ¶ 47. 

The trial court noted appellant’s underlying purpose was to cast Flores as a “strawman” 

alternate suspect, and counsel could cite no reason supporting a good-faith belief that 

Flores was a credible alternate suspect. Appellant argues the defense theory was that 

the victims were afraid to go home to Mother’s house because they were alone with Flores 

there and he abused them, “like Mother’s previous boyfriends,” but Mother would not 

believe them. Thus they made false allegations against appellant to gain Mother’s 

“attention, sympathy, and protection.” This theory is not supported by the evidence at 

trial. 

{¶67} Appellant further argues he should have been permitted to introduce 

“evidence Flores was abusing the girls.” In support of this unsubstantiated allegation, 

appellant points to his proffer of evidence at sentencing which consists of an affidavit of 

an adult trial witness stating she was sexually assaulted by Flores; an affidavit by 

Grandmother stating Jane Doe told her Flores spanked her and Mother lies; and an 

affidavit of Aunt stating she told D.J.F.S. she believed Flores “was the perpetrator 

because he is a convicted sex offender, another young lady had disclosed a sexual 

assault to me in which he was the perpetrator and the children’s behavior around him 

appears frightened.” 

{¶68} This “evidence” does not support appellant’s allegation Flores perpetrated 

the acts of abuse appellant was charged with committing, nor is such “evidence” 

admissible at appellant’s trial. We note appellant cites no evidentiary basis upon which 
Delaware County, Case No. 15CAA100080 22 

the information contained in the affidavits would be admissible. The trial court did not 

abuse its discretion in disallowing any of the cited “evidence” at trial. 

{¶69} Appellant’s second and third assignments of error are overruled. 

IV., V. 

{¶70} In his fourth and fifth assignments of error, appellant argues he received 

ineffective assistance of trial counsel. We disagree. 

{¶71} To succeed on a claim of ineffectiveness, a defendant must satisfy a twoprong test. Initially, a defendant must show that trial counsel acted incompetently. See, 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, 

“a court must indulge a strong presumption that counsel's conduct falls within the wide 

range of reasonable professional assistance; that is, the defendant must overcome the 

presumption that, under the circumstances, the challenged action ‘might be considered 

sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 

(1955). 

{¶72} “There are countless ways to provide effective assistance in any given case. 

Even the best criminal defense attorneys would not defend a particular client in the same 

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the 

wide range of professionally competent assistance.” Id. at 690. 

{¶73} Even if a defendant shows that counsel was incompetent, the defendant 

must then satisfy the second prong of the Strickland test. Under this “actual prejudice” 

prong, the defendant must show that “there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. 
Delaware County, Case No. 15CAA100080 23 

{¶74} Appellant argues trial counsel was ineffective in failing to renew the 

argument to sever the counts at the close of all of the evidence. Appellant moved to sever 

prior to trial but did not renew the motion at the close of the appellee’s case and at the 

conclusion of all evidence. Some Ohio courts have held a failure to renew a motion to 

sever constitutes a waiver. State v. Musgrave, 5th Dist. Stark No. 97-CA-0135, 1998 WL 

818067, *2 (Oct. 26, 1998). However, we generally prefer to address this claim on its 

merits as we have done here. Id. Appellant has thus failed to demonstrate that he was 

prejudiced by counsel’s failure to renew the motion. See, State v. Hamblin, 37 Ohio St.3d 

153, 524 N.E.2d 476 (1988). 

{¶75} Appellant further argues trial counsel was ineffective in failing to raise the 

“evidence” described in the proffer earlier in the trial, particularly the claim that Flores 

allegedly sexually assaulted an adult. Appellant offers no explanation how this evidence 

would have been admissible during the adult witness’ testimony. As we discussed supra, 

this “evidence” is not relevant or admissible. We thus fail to see how counsel could have 

approached introduction of the claims any differently. 

{¶76} Appellant has not demonstrated ineffective assistance of trial counsel. 

Assignments of error numbers four and five are overruled. 

VI. 

{¶77} In his sixth assignment of error, appellant claims cumulative errors in his 

trial deprived him of a fair trial. We disagree. 

{¶78} In State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995), the Ohio 

Supreme Court held pursuant to the cumulative error doctrine “a conviction will be 

reversed where the cumulative effect of errors in a trial deprives a defendant of the 
Delaware County, Case No. 15CAA100080 24 

constitutional right to a fair trial even though each of numerous instances of trial court 

error does not individually constitute cause for reversal.” 

{¶79} In the instant case, we do not find multiple instances of harmless error 

triggering the cumulative error doctrine, and appellant's sixth assignment of error is 

therefore overruled. State v. Scott, 5th Dist. Richland No. 11CA80, 2012-Ohio-3482, ¶ 

76. 

CONCLUSION 

{¶80} Appellant’s six assignments of error are overruled and the judgment of the 

Delaware County Court of Common Pleas is affirmed. 

By: Delaney, J. and 

Gwin, P.J. 

Baldwin, J., concur.