[Cite as State v. Hlavsa, 2011-Ohio-3379.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 93810

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

RICHARD HLAVSA, II

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED IN PART; REVERSED IN PART 

AND REMANDED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-521746 

BEFORE: Cooney, J., Boyle, P.J., and E. Gallagher, J. 

RELEASED AND JOURNALIZED: July 7, 2011 

ATTORNEYS FOR APPELLANT
2

Timothy Young 

Ohio State Public Defender 

By: Claire R. Cahoon 

Assistant State Public Defender 

Office of the Ohio Public Defender 

250 East Broad St., Suite 1400 

Columbus, Ohio 43215-1400 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

By: Matthew E. Meyer 

Jennifer A. Driscoll 

T. Allan Regas 

Assistant County Prosecutors 

8th Floor, Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

COLLEEN CONWAY COONEY, J.: 

{¶ 1} Defendant-appellant, Richard Hlavsa, II (“Hlavsa”), appeals his 

convictions following a jury trial on multiple counts of rape, gross sexual 

imposition, and kidnapping. We find some merit to the appeal and, 

therefore, affirm in part and reverse in part. 
3

{¶ 2} Hlavsa was charged with 31 counts of rape, 31 counts of gross 

sexual imposition, and 31 counts of kidnapping allegedly committed against 

his minor niece (“A.H.”)1 during the period between November 10, 2007 and 

February 1, 2009. A jury convicted Hlavsa of 17 counts of rape, 13 counts of 

gross sexual imposition (“GSI”) of a child under the age of 13, 16 counts of 

GSI of a child over the age of 13, and 17 counts of kidnapping. The jury 

acquitted him of 14 counts of rape of a child under the age of 13 and two 

counts of GSI of a child over the age of 13. The kidnapping charges merged 

with the rape charges at sentencing as allied offenses of similar import.2 The 

court sentenced Hlavsa to an aggregate prison term of 51 years, including 

both consecutive and concurrent sentences. 

{¶ 3} In his sole assignment of error, Hlavsa contends the indictment 

violated his constitutional right to due process because it contained numerous 

undifferentiated counts of rape and GSI. He claims these “carbon-copy” 

undifferentiated counts failed to sufficiently describe the charges to allow him 

to prepare his defense. 

 1

The anonymity of the victim is preserved in accordance with this court’s policy of protecting 

the identity of victims of sexual offenses. 

2

The State elected to proceed on the rape counts, and no sentences were imposed for 

kidnapping. 
4

{¶ 4} Hlavsa did not object to the form of the indictment before trial as 

required by Crim.R. 12(C)(2), nor did he move to dismiss the indictment or 

request a more specific bill of particulars. He has therefore waived all but 

plain error. State v. Green, Cuyahoga App. No. 90473, 2008-Ohio-4452, ¶26; 

State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶96. 

To prevail on a claim of plain error, Hlavsa must demonstrate that but for the 

error, the outcome of the trial clearly would have been otherwise. State v. 

Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph two of the syllabus. 

{¶ 5} The United States Supreme Court described the criteria by which 

the sufficiency of an indictment is to be evaluated: 

“These criteria are, first, whether the indictment contains the elements 

of the offense intended to be charged, ‘and sufficiently apprises the 

defendant of what he must be prepared to meet,’ and, secondly, ‘in case 

any other proceedings are taken against him for a similar offense 

whether the record shows with accuracy to what extent he may plead a 

former acquittal or conviction.’” 

Russell v. U.S. (1962), 369 U.S. 749, 764, 82 S.Ct. 1038, 8 L.Ed.2d 240, 

quoting Cochran and Sayre v. U.S. (1895), 157 U.S. 286, 290, 15 S.Ct. 628, 39 

L.Ed. 704. 

{¶ 6} Thus, to be sufficient, the indictment must: (1) contain the 

elements of the charged offense, (2) give the defendant adequate notice of the 

charges, and (3) protect the defendant against double jeopardy. Valentine 

v. Konteh (C.A. 6, 2005), 395 F.3d 626, 631. Although the Sixth Amendment 
5

right to “be informed of the nature and cause of the accusation,” known as the 

federal right to a grand jury indictment, has never been found applicable to 

the states, Hurtado v. California (1884), 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 

232, courts have found that the due process rights enunciated in Russell are 

nevertheless required for state criminal charges. Valentine at 631. 

(Citations omitted.) 

{¶ 7} With regard to notice of the charges, “specificity as to the time 

and date of the offense is not required in an indictment.” State v. Bogan, 

Cuyahoga App. No. 84468, 2005-Ohio-3412, ¶10. This is because, 

particularly in cases involving sexual misconduct with a child, the precise 

times and dates of the alleged offense or offenses oftentimes cannot be 

determined with specificity. State v. Hemphill, Cuyahoga App. No. 85431, 

2005-Ohio-3726, citing State v. Daniel (1994), 97 Ohio App.3d 548, 647 N.E.2d 

174. In such cases, the prosecution must set forth a time frame in the 

indictment and charge the accused with offenses that reasonably fall within 

that period. Daniel at 556. 

{¶ 8} Hlavsa relies on Valentine in support of his assertion that the 

carbon copy counts in the indictment failed to provide him adequate notice 

because they did not connect each rape and GSI count to a distinct and 

differentiated incident. In Valentine, the United States Sixth Circuit Court 
6

of Appeals affirmed the district court’s grant of habeas corpus relief to the 

defendant on all but one of his convictions, holding that the multiple, 

undifferentiated rape charges in the indictment violated the defendant’s 

constitutional rights to due process and against double jeopardy. The only 

evidence in Valentine as to the number of offenses was provided by the child 

victim “who described typical abuse scenarios and estimated the number of 

times the rapes occurred, e.g., ‘about 20,’ ‘about 15’ or ‘about 10’ times.” Id. 

at 628. Other than the victim’s estimates, there was no evidence as to the 

number of incidents. The Valentine court concluded that “in the view of the 

testimony and the indictment language, one of the child rape and one of the 

penetration counts can be sustained but that the others must be set aside.” 

Id. However, the Valentine court noted that “[t]he due process problems in 

the indictment might have been cured had the trial court insisted that the 

prosecution delineate the factual bases for the forty separate incidents either 

before or during the trial.” 

{¶ 9} A.H. estimated that fellatio and vaginal intercourse occurred 

“[m]aybe about 40 [times],” and that digital penetration occurred “thirty 

times.” She estimated that Hlavsa performed oral sex on her “maybe seven 

or eight times” and that he touched her in the hot tub “[m]aybe like 30 times.” 

 These estimates do not provide adequate notice of the alleged offenses or 
7

protection against double jeopardy. However, A.H. described the factual 

bases for 15 of the 17 rape convictions during trial. 

{¶ 10} Hlavsa was convicted of 17 counts of rape of a child over 13 years 

old during the period between June 1, 2008 and February 1, 2009 (Counts 

15-31). R.C. 2907.02(A)(2), which governs rape, provides that: “[n]o person 

shall engage in sexual conduct with another * * * when the offender purposely 

compels the other person to submit by force or threat of force.” R.C. 

2907.01(A) defines “sexual conduct” as: 

“vaginal intercourse between a male and female; anal intercourse, 

fellatio, and cunnilingus between persons regardless of sex; and, 

without privilege to do so, the insertion, however slight, of any part of 

the body * * * into the vaginal or anal opening of another.” 

{¶ 11} A.H. testified that at least one rape involving vaginal intercourse 

occurred in the guest bedroom in Hlavsa’s house. Using photographs, A.H. 

was able to distinguish several separate acts of vaginal intercourse, fellatio, 

cunnilingus, and digital penetration that occurred on the floor in different 

areas of the basement. At least one act of vaginal intercourse occurred on 

the floor in an area depicted in a photo marked as State’s Exhibit 19, which 

shows an area near a table. At least one act of oral sex occurred in another 

area near a television depicted in a photo. Additionally, Hlavsa vaginally, 

digitally, and orally raped her and forced her to perform fellatio on him on the 

couch in the basement. 
8

{¶ 12} Some of the rapes occurred outside the house. A.H. testified that 

at least two rapes occurred in the hot tub located at her grandmother’s house. 

 A.H. explained that the vaginal intercourse in the hot tub followed a general 

pattern: 

“It would happen starting off with touching and then it would lead to 

intercourse * * * his penis would just go inside of the bikini bottom. 

* * * He would take his penis out of his bathing suit.” 

{¶ 13} Although her testimony suggests that vaginal intercourse 

occurred more than once in the hot tub, only one instance is counted because 

there is no evidence to distinguish the other occurrences. Although A.H. 

testified that Hlavsa digitally penetrated her in the hot tub in January 2008, 

the jury found him not guilty of all rape charges of a child under the age of 13. Since A.H. 

reached age 13 on June 1, 2008, the jury did not convict Hlavsa of rape based on this 

testimony. Thus, the evidence supported a conviction for only one rape in the hot tub. 

{¶ 14} Using her journal to refresh her recollection, A.H. testified that 

Hlavsa had sexual intercourse with her at her father’s house on top of the 

comforter on her bed while her father was attending class on January 10, 

2008. However, because the jury acquitted Hlavsa of all rape charges that 

allegedly occurred before June 1, 2008, this incident may not be “counted” to 

affirm a separate rape conviction. She also recalled that Hlavsa had sexual 
9

intercourse at her father’s house on one other occasion. Thus, there was 

evidence to support only one rape conviction at her father’s house. 

{¶ 15} A.H. remembered the last instance of vaginal intercourse 

occurred on January 18, 2009. On that day, Hlavsa picked her up from her 

mother’s house and went shopping at Lowe’s before going to Hlavsa’s house 

where they had vaginal intercourse. 

{¶ 16} Finally, A.H. testified that Hlavsa raped her anally twice. 

Although A.H. did not provide details of the anal intercourse, two is a definite 

number as opposed to an estimate. 

{¶ 17} We therefore vacate two of the rape convictions and affirm the 

remaining convictions for 15 counts of rape. 

{¶ 18} The separate acts of GSI are not as clear. Hlavsa was convicted 

of three counts of GSI of a child under the age of 13 during the period from 

November 7 to December 31, 2007. He was also convicted of GSI of a child 

under the age of 13 during the period between January 8 and May 31, 2008 

and GSI of a child older than 13 during the period between June 1, 2008 and 

February 1, 2009. 

{¶ 19} The evidence at trial supports a finding of only two distinct acts 

of GSI of a child under the age of 13 during the period between November 7 

and December 31, 2007. R.C. 2907.05(A)(4), which governs GSI of children 
10

under 13 years of age, provides that: “[n]o person shall have sexual contact 

with another when * * * the other person * * * is less than thirteen years of 

age.” R.C. 2907.01(B) defines “sexual contact” as “any touching of an 

erogenous zone of another, including without limitation the thigh, genitals, 

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

sexually arousing or gratifying either person.” 

{¶ 20} A.H. testified that Hlavsa first began molesting her shortly before 

Thanksgiving in November 2007. On the first occasion, Hlavsa laid down 

next to her, put his hand in her underpants and rubbed her vagina. A.H. 

remembered that Hlavsa molested her a second time during her next regular 

weekend visitation with her mother. Both of these acts of GSI occurred 

when she was 12 years old. 

{¶ 21} Although A.H. testified that Hlavsa touched her “every other 

weekend” during her visitations with her mother and that he touched her in 

his hot tub “maybe like 30 times,” these estimates do not provide sufficient 

specificity to identify the acts that would support the remaining GSI 

convictions. Hlavsa’s counsel concedes that a third instance was described 

as occurring on February 1, 2009 when A.H. was age 13. Furthermore, the 

acts of rape do not constitute acts of gross sexual imposition because gross 

sexual imposition is a lesser included offense of rape. State v. Johnson
11

(1988), 36 Ohio St.3d 224, 226, 522 N.E.2d 1082; State v. Reid, Cuyahoga 

App. No. 83206, 2004-Ohio-2018. Therefore, apart from the two specific 

instances of GSI that A.H. described that occurred between November 7 and 

December 31, 2007 when she was age 12 and one when she was age 13, we 

vacate the remaining GSI convictions. 

{¶ 22} The sole assignment of error is sustained in part. 

{¶ 23} Accordingly, judgment is affirmed in part as to 15 rape 

convictions and three GSI convictions but reversed as to two rape convictions 

and the remainder of the GSI convictions. Case remanded for correction of 

the sentencing entry consistent with this opinion. 

It is ordered that appellant and appellee share the 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. 

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

Rule 27 of the Rules of Appellate Procedure. 

______________________________________________ 

COLLEEN CONWAY COONEY, JUDGE 

MARY J. BOYLE, P.J., and 

EILEEN A. GALLAGHER, J., CONCUR