[Cite as State v. Short, 2015-Ohio-3183.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellant 

-vsCHRISTOPHER L. SHORT 

 Defendant-Appellee 

JUDGES: 

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

: Hon. John W. Wise, J. 

: Hon. Patricia A. Delaney, J. 

: 

: 

: Case No. 14CA67 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County 

Court of Common Pleas, Case No. 

2012CR0429 R 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: August 6, 2015 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN NIEFT RANDALL FRY 

38 South Park Street 10 West Newlon Place 

Mansfield, OH 44902 Mansfield, OH 44902 
[Cite as State v. Short, 2015-Ohio-3183.]

Gwin, P.J. 

{¶1} Defendant-appellant Christopher Short [“Short”] appeals from his 

convictions and sentences after a jury trial in the Richland County Court of Common 

Pleas on one count of rape and four counts of domestic violence. 

FACTS AND PROCEDURAL HISTORY 

INTRODUCTION.

{¶2} Short was indicted in two cases. Upon motion of the state, which the 

defense did not oppose, on July 3, 2014 the Court ordered in the interest of Judicial 

Economy, Case No; 2012-CR-0429 and Case No: 2014-CR-0200 be joined and tried 

together. 

{¶3} On August 13, 2012, Short, was indicted by the Richland County Grand 

Jury for his criminal acts against A.S. on July 1, 2012. In Case No: 2012-CR-0429, 

Short was charged on two counts. The first count is Rape a felony of the second degree 

pursuant to R.C. 2907.02(A)(2). In Count 2, Short was charged with Domestic Violence, 

a felony of the fourth degree pursuant to R. C. 2919.25(A)(D)(3). The victim in this case 

was A. S. The jury found Short guilty on both counts. 

{¶4} On April 4, 2014, Short was indicted by the Richland County Grand Jury for 

criminal acts against B.S. In Case No: 2014-CR-0200, Short was charged with seven 

counts of Domestic Violence. 

{¶5} For his acts on January 1 to January 31, 2013, Short was indicted in Count 

1 or Domestic Violence in violation of R.C. 2919.25(A), with two prior Domestic Violence 

convictions, a felony of the third degree. For his acts between June 1 and June 30, 

2013, Short was indicted in Count 2 with Domestic Violence in violation of R.C. 
Richland County, Case No. 14CA67 3 

2919.25(A), with two prior Domestic Violence convictions, a felony of the third degree. 

For his acts on March 2, 2014, Short was indicted with three counts, Counts 3, 4, and 5 

with Domestic Violence in violation of R.C. 2919.25(A), with two prior Domestic Violence 

convictions, felonies of the third degree. Counts 6 and 7 Short was indicted with 

Domestic Violence Threats in violation of R.C. 2919.25(C), with two prior offenses, 

misdemeanors of the first degree. In Counts 8 and 9 Short was indicted with Rape in 

violation of R.C. 2907.02(02), felonies of the first degree. In Count 10 Short was indicted 

for Abduction in violation of R.C. 2905.02(A)(2), a felony of the third degree. 

{¶6} The jury found Short “Not Guilty” on Counts 1, 2, 3, and 4 all Domestic 

Violence, felonies of the third degree. The jury found Short “Guilty” on Count 5, 

Domestic Violence, a felony of the third degree. On Count 6, the jury found the Short 

“Guilty” of Domestic Violence, a misdemeanor of the first degree. On Count 7, the jury 

found Short “Guilty” of Domestic Violence a misdemeanor of the first degree. The jury 

found Short “Not Guilty” on Counts 8 and 9, both counts being Rape, a felony of the first 

degree. The jury found Short “Not Guilty” on Count 10, Abduction, a felony of the third 

degree 

{¶7} The trial court sentenced Short on July 15, 2014. He was found to be a tier 

III sex offender and ordered to serve a total of 13.5 years of incarceration. 

CASE NO. 2012-CR-0429 – JULY 1, 2012 – A.S. 

{¶8} Short was married to A.S. in 2008. In February 2010, Short had a domestic 

violence incident with A.S. Short eventually pleaded guilty to this as a misdemeanor 

domestic violence. 
Richland County, Case No. 14CA67 4 

{¶9} During 2009 and 2010, B.S. worked with Short and A.S. at School 

Specialty, a factory making school supplies. B.S. was friends with the couple during her 

employment there. However, they grew apart when Short asked B.S. for nude photos 

one night during drinking. Shortly after that, Short and B.S. were laid off and A.S. took 

another job. 

{¶10} In May of 2012, Short found B.S. on Facebook and contacted her. Things 

developed and they began to have an extramarital affair. This affair was discovered by 

A.S. Short and A.S. separated in mid-June. The two began sharing the house on 

alternating days. One night, A.S. would be home at night with their daughter, the next 

night A.S. would leave and Short would be home with their daughter. During this period, 

Short continued his affair with B.S. 

{¶11} On June 30, 2012, Short and B.S. devised a plan to see if A.S. had B.S.'s 

car keyed. Short planned to text A.S. and eventually meet with her and convince A.S. 

that he had broken up with B.S. After that, Short would attempt to get A.S. to admit to 

having someone key B.S.'s vehicle. 

{¶12} On July 1, 2012, Short texted A.S. asking to come to the house. A.S. told 

him not to come to their home. Nonetheless, after A.S. had put their child to bed, Short 

arrived knocking at the back glass door. A.S. opened the door and spoke to Short. She 

found him to be drunk but in a good mood, so she let him in to talk. Short stated that he 

had broken up with B.S. and wanted to get back together with A.S. Short then called 

B.S. and purported to break up with B.S. in front of A.S. A.S. took the phone from Short 

and yelled at B.S. that she had succeeded in keeping her husband. 
Richland County, Case No. 14CA67 5 

{¶13} After hanging up the phone, A.S. told Short that she was not back with him 

and she was not going to have sex with him. A.S. merely wanted to hurt B.S. and 

wanted Short to choose her; she had no interest in patching up her relationship with 

Short. 

{¶14} Short came over to the couch A.S. was sitting on and told her they would 

have sex. A.S. refused and Short yanked off A.S.'s pajama pants and began to stick 

fingers in her vagina. A.S. began to kick Short and tried to push him off, but he held her 

down. Short then attempted to perform oral sex on A.S., but she pulled away and fell to 

the floor. A.S. attempted to stand, but Short was behind her and put his arms around 

her neck, choking her. A.S. began to black out and heard a popping sound in her neck. 

Short stated that he would kill A.S. if she did not have sex with him. A.S. then stopped 

fighting back, but still told Short to stop. Short forced A.S. to perform oral sex on him, 

stated that he is raping A.S. and will ejaculate in her mouth to not leave any evidence. 

A.S. was gagging and could not breathe. Short then vaginally penetrated A.S. 

{¶15} Short wanted to go to the bedroom and complete copulation. A.S. initially 

denied but agreed to go for fear of her life. On the way there, A.S. asked to get a glass 

of water from the kitchen. When A.S. had gotten far enough away from Short, she fled 

out the sliding glass doors in only a shirt. 

{¶16} The next-door neighbor was not home, so A.S. fled to the next neighbor 

over, David Willis. A.S. knocked on the door until Mr. Willis answered. A.S. was 

hysterical and wearing nothing but a grey shirt. A.S.'s hair was messed up, she was 

crying, and her face was red. A.S. requested that Mr. Willis call 9-1-1 because Short 

had just hit her, choked her, and potentially raped her. He did so and gave her 
Richland County, Case No. 14CA67 6 

sweatpants to wear. A.S. reported that she was abused and raped on the 9-1-1 call. 

During this time, Short got into his vehicle and fled. 

{¶17} A.S. went back to her house accompanied by Mr. Willis. Officers Jeffrey 

Gillis and Larry Schacherer from the Mansfield Police Department arrived on the scene 

within 10 minutes. They took statements from A.S. and Mr. Willis. They collected a 

domestic violence packet from A.S., which included an affidavit where A.S. told them 

that Short choked her and raped her. They did not notice any visible injuries during this 

interview. 

{¶18} A.S. reported to SANE Nurse Elaine Siewert similar information that she 

had provided to the police officers. A SANE exam was performed and Nurse Siewert 

noted injuries to A.S.'s neck and back. She further noted A.S. reported pain in her neck, 

back, left wrist, and left cheek. Redness was seen in and around the vagina, which 

showed blunt force trauma in that area. DNA swabs were collected from the vaginal 

region of A.S. There were no bruises noted at the time. Officer Gillis took photographs 

of the injuries of A.S. at the hospital. 

{¶19} Short was arrested by Lexington Police Department in the home of his 

mother that night. When being transported to the jail Short commented to Officer 

Schacherer that, "I [Short] read where a lot of people have been charged with rape but 

nobody ever gets convicted with it.” Short initially told officers that he was not at A.S.'s 

house that day, then he changed his story to having been there earlier in the day and no 

sex occurred. Short then he changed his story to he and A.S. had consensual sex at 

around 4:00 p.m. Short’s injuries were photographed by Office Schacherer. Short had 
Richland County, Case No. 14CA67 7 

bite marks on his arm. Short explained these marks as rough play with his friends at the 

lake. When Short ultimately testified at trial, he stated that all of these were lies. 

{¶20} The following day, A.S. texted B.S. In these texts, A.S. told B.S. what had 

occurred, namely that the Short had choked her until she blacked out and forced her to 

have sex with him with threats of death. 

{¶21} The DNA collected for the SANE exam was analyzed. There was no 

semen present on the oral, anal, or vaginal swab. However, on the swab of A.S.'s right 

breast, there was DNA of Short and A.S. 

{¶22} Short was released on bond and began living at his mother's house in 

Lexington, Ohio. He continued to see B.S. Short was divorced from A.S. and he 

became engaged to B.S. on December 4, 2012. 

CASE NO. 2014-CR-0200 – JANUARY 2013 THROUGH MARCH 2014 – B.S.

{¶23} In January 2013, Short became violent with B.S. during a sexual encounter 

in his vehicle. B.S. was performing oral sex on Short when he struck her in the back of 

her head and he grabbed her hair very roughly, stating that she would be bald when he 

was done with her. He eventually threw her glasses out of the vehicle. B.S. did not 

originally report this incident because she loved Short at the time and believed him 

when he apologized later. 

{¶24} In June 2013, Short again became abusive with B.S. Short requested sex 

from B.S. and she declined. Short took her glasses and started hitting her. B.S. ran to 

the kitchen and she grabbed what she thought was a knife, but was really an icing 

spatula. Short came at her, took the spatula, and began hitting her on the top of the 

head with a closed fist. Short’s mother then came downstairs and told Short to stop. 
Richland County, Case No. 14CA67 8 

B.S. fled to a gas station. B.S. did not report this incident because of Short’s pending 

charge involving A.S. 

{¶25} B.S. testified that the abusive relationship with Short grew over time and 

she became more and more afraid of him. She stated that she made three statements 

over the pendency of the 2012 case to attempt to assist Short in his defense. Each of 

these statements were at Short’s direction and were made to appease him. These 

statements were largely based solely on what Short told B.S. and were untrue as far as 

she knew. 

{¶26} On March 1, 2014, B.S. was driving to Wal-Mart with Short. Short became 

angry with B.S., took out the car keys, and began sawing at her fingers with the keys. 

Later that night, while B.S. was staying the night with Short, Short wanted sex from B.S. 

and she refused. Short, grabbed her stomach and twisted it painfully. Both then fell 

asleep for a short time. About two hours later, Short awakened B.S. demanding sex. 

B.S. again refused and Short wrenched B.S.'s legs apart and stated she was his wife 

and he could have sex with her whether she wanted to or not. B.S. began crying but 

decided to allow the intercourse. Short went from vaginal sex to penetrating B.S. anally. 

When he did so, B.S. screamed out in pain. Short covered B.S.'s mouth and began 

choking her to gag her screams so his mother would not hear. Short told B.S. that she 

was dead when he was choking her. Short eventually ejaculated in B.S.'s anus and then 

went to sleep. B.S. lay awake crying, but eventually fell asleep. 

{¶27} The next morning, B.S. wanted to leave but could not find a time to escape. 

Short requested sex from B.S. again, which she again denied. Short then proceeded to 

hit her on the hip five to seven times, causing injuries to B.S. Short claimed he would 
Richland County, Case No. 14CA67 9 

stop hitting B.S. when she is right. Short then went to the bathroom. B.S. took the 

opportunity to flee the house. She initially went to the Lexington Police Department, but 

decided not to wait to be helped for fear that Short would find her, so she left. 

{¶28} Short proceeded over the next two days to text and call B.S. He was 

begging B.S. to talk to him and that he was very sorry. B.S. met with Short in public. 

She spoke to Short from her vehicle with the doors locked and the window cracked. 

B.S. recorded the conversation with her phone, which was played for the jury. That 

conversation had Short apologize profusely and guaranteeing that he will change. 

{¶29} On Monday morning, B.S. went to get a civil protection order, which she 

secured by noon. B.S. then went to Lexington Police Station, met with officers, and 

reported the recent incident. B.S. saw a doctor because her organs were tender, and he 

noted some injuries. B.S. was not informed to do a SANE exam until later, which she 

completed that Wednesday. 

{¶30} At the SANE exam, some bruising was noted and recorded. There was 

diffuse redness on her cervical os and scant bloody drainage noted. Following the 

SANE exam, B.S. met with another Lexington Police Officer to report the rape, as they 

had not noticed she complained of both domestic violence and rape previously. 

SHORT TESTIFIES AT TRIAL.

{¶31} Short testified in this case. He admitted to both of his prior domestic 

violence convictions in 2004 and 2010. Short claimed, regarding the 2012 incident with 

A.S., that A.S. let him in the front door and that they had consensual sex after the phone 

call with B.S. During the sex, when they were going to the bedroom, A.S. went to the 

glass door, smiled at him mischievously, and left. Smith then drove to his mother's 
Richland County, Case No. 14CA67 10 

house. Short denied the allegations of domestic violence and rape that night. Short did 

state that he was scared when he was arrested that night, so he lied in his statement to 

officers. 

{¶32} Short denied the allegations of physical and sexual abuse against B.S. 

Short denied that he and B.S. had sex the night of March 1 to March 2, 2014. Short 

stated that she smacked B.S.'s thigh playfully on March 2, 2014. 

{¶33} Generally, Short testified at trial that both A.S. and B.S. injured themselves 

so that they could create false charges of domestic violence and rape against him. 

SENTENCE.

{¶34} On July 15, 2014, Short was sentenced in Case No: 2012-CR-0429, to the 

Ohio State prison system on Count 1 for a mandatory nine years and Count 2, eighteen 

months. The trial court ordered the sentences to be served consecutive to each other 

and also consecutive to his sentence in Case No. 2014-CR-0200. Short was also found 

to be a tier three sex offender. 

{¶35} In Case No. 2014-CR-0200, Short was sentenced to the Ohio State prison 

system on Count 5 for three years, and on Count 6 for 6 months in the Richland County 

Jail, the Court merged Count 7 with Count 6. 

{¶36} The Court in the Sentencing Entry shows that Counts 5 and 6 are to run 

concurrent to each other. Count 5 is to run consecutively with Case No: 2012-CR-0429 

for a total sentence of thirteen and one-half years in prison. This Sentencing includes 

three years of mandatory post release control. 

Assignment of Error 

{¶37} Short raises one assignment of error, 
Richland County, Case No. 14CA67 11 

{¶38} “I. THE APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT 

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS THE TRIAL COUNSEL DID 

NOT OBJECT TO THE MOTION OF JOINDER FILED BY THE APPELLEE.” 

Analysis 

{¶39} In his sole assignment of error, Short argues that his trial counsel was 

ineffective for failing to object to the state's motion for joinder of Case No. 2012-CR0429 involving A.S. that had occurred in 2012 and Case No. 2014-CR-0200 that 

involved B.S. and had occurred in 2013-2014. 

{¶40} A claim of ineffective assistance of counsel requires a two-prong analysis. 

The first inquiry is whether counsel's performance fell below an objective standard of 

reasonable representation involving a substantial violation of any of defense counsel's 

essential duties to appellant. The second prong is whether the appellant was prejudiced 

by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 

L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 

674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989). 

{¶41} In order to warrant a finding that trial counsel was ineffective, the petitioner 

must meet both the deficient performance and prejudice prongs of Strickland and 

Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 

251(2009). 

{¶42} Recently, the United States Supreme Court discussed the prejudice prong 

of the Strickland test, 

 With respect to prejudice, a challenger must demonstrate “a 

reasonable probability that, but for counsel’s unprofessional errors, the 
Richland County, Case No. 14CA67 12 

result of the proceeding would have been different. A reasonable 

probability is a probability sufficient to undermine confidence in the 

outcome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that the 

errors had some conceivable effect on the outcome of the proceeding.” 

Id., at 693, 104 S.Ct. 2052. Counsel’s errors must be “so serious as to 

deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at 

687, 104 S.Ct. 2052. 

 “Surmounting Strickland’s high bar is never an easy task.” Padilla v. 

Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 

(2010). An ineffective-assistance claim can function as a way to escape 

rules of waiver and forfeiture and raise issues not presented at trial, and 

so the Strickland standard must be applied with scrupulous care, lest 

“intrusive post-trial inquiry” threaten the integrity of the very adversary 

process the right to counsel is meant to serve. Strickland, 466 U.S., at 

689–690, 104 S.Ct. 2052. Even under de novo review, the standard for 

judging counsel’s representation is a most deferential one. Unlike a later 

reviewing court, the attorney observed the relevant proceedings, knew of 

materials outside the record, and interacted with the client, with opposing 

counsel, and with the judge. It is “all too tempting” to “second-guess 

counsel’s assistance after conviction or adverse sentence.” Id., at 689, 

104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 

152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 

S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney’s 
Richland County, Case No. 14CA67 13 

representation amounted to incompetence under “prevailing professional 

norms,” not whether it deviated from best practices or most common 

custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052. 

Harrington v. Richter, __U.S.__, 131 S.Ct. 770, 777-778, 178 L.Ed.2d 624(2011). 

{¶43} In cases involving a failure to make a motion on behalf of the defendant or 

oppose a motion by the state, a defendant is required to: (1) show that the motion or 

opposition thereto was meritorious, and (2) show that there was a reasonable 

probability that the verdict would have been different had the motion been made or 

opposed. State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798(2001); State v. Lott, 51 

Ohio St.3d 160, 555 N.E.2d 293(1990). 

Joinder. 

{¶44} 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). Nonetheless, if it appears that a 

criminal defendant would be prejudiced by such joinder, then the trial court is required to 

order separate trials. Crim.R. 14. 

{¶45} When a defendant claims that he or she was prejudiced by the joinder of 

multiple offenses, the court must determine (1) whether evidence of the other crimes 

would be admissible even if the counts were severed; and (2) if not, whether the 

evidence of each crime is simple and distinct. 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). "If the evidence of 

other crimes would be admissible at separate trials, any 'prejudice that might result from 
Richland County, Case No. 14CA67 14 

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, quoting Drew v. United States, 331 F.2d at 90. 

{¶46} In the case at bar, the state argues the evidence of each offense would 

have been admissible at separate trials pursuant to Evid.R. 404(B). 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. 

Other Acts.

{¶47} In discussing the dangers associated with admitting other acts evidence in 

a case where the offenses included several counts of rape and gross sexual imposition, 

the Schaim court stated: 

 The admissibility of other acts evidence is carefully limited because 

of the substantial danger that the 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. * * * This danger is 

particularly high when the other acts are very similar to the charged 

offense, or of an inflammatory nature, as is certainly true in this case. The 

legislature has recognized the problems raised by the admission of other 

acts evidence in prosecutions for sexual offenses, and has carefully 

limited the circumstances in which evidence of the defendant's other 

sexual activity is admissible. The forcible rape statute and the gross 

sexual imposition statute both contain subsections that address the 
Richland County, Case No. 14CA67 15 

admissibility of evidence of other sexual activity by either the victim or the 

defendant. * * * 

65 Ohio St.3d at 59-60, 600 N.E.2d 661. 

{¶48} The legislature has recognized the problems raised by the admission of 

other acts evidence in prosecutions for sexual offenses, and has carefully limited the 

circumstances in which evidence of the defendant's other sexual activity is admissible. 

The rape statute and the gross sexual imposition statute both contain subsections that 

address the admissibility of evidence of other sexual activity by either the victim or the 

defendant. Schaim, supra. (Footnotes omitted). Because of the severe social stigma 

attached to crimes of sexual assault and child molestation, evidence of these past acts 

poses a higher risk, on the whole, of influencing the jury to punish the defendant for the 

similar act rather than the charged act. Accordingly, the state may not “parade past the 

jury a litany of potentially prejudicial similar acts that have been established or 

connected to the defendant only by unsubstantiated innuendo.” Huddleston v. United 

States, 485 U.S. 681, 689, 108 S.Ct. 1496, 99 L.Ed.2d 771(1988). 

{¶49} Evidence of other acts is admissible if (1) there is substantial proof that the 

alleged other acts were committed by the defendant, and (2) the evidence tends to 

prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident. State v. Carter, 26 Ohio St.2d 79, 83, 269 N.E.2d 115, 117(1971); 

State v. Lowe, 69 Ohio St.3d 527, 530, 1994-Ohio-345, 634 N.E.2d 616, 619. (Citing 

State v. Broom, 40 Ohio St.3d 277, 282-283, 533 N.E.2d 682, 690-691(1988); Evid.R. 

404(B); R.C. 2945.59. 
Richland County, Case No. 14CA67 16 

{¶50} Further, the prior act must not be too remote and must be closely related in 

nature, time, and place to the offense charged. Schaim, 65 Ohio St.3d at 60, 600 

N.E.2d at 669. A prior act which is “ * * * too distant in time or too removed in method or 

type has no permissible probative value.” State v. Snowden, 49 Ohio App.2d 7, 10, 359 

N.E.2d 87, 91(1st Dist. 1976); State v. Burson, 38 Ohio St.2d 157, 159, 67 O.O.2d 174, 

175, 311 N.E.2d 526, 529(1974). 

{¶51} Whether Short committed a crime is the crux of the dispute. If a crime did in 

fact occur, no dispute exists that Short was the perpetrator. In other words, no dispute 

exists as to identity. As the identity of the person who raped and abused A.S. and B.S. 

was not an issue at trial, the other acts are not properly admitted to prove the Short’s 

scheme, plan, or system in committing the crimes charged. See, State v. Curry, 43 Ohio 

St.2d 66, 330 N.E.2d 720(1975); State v. Miley, 5th Dist. Richland Nos. 2005-CA-67, 

2006-CA-14, 2006-Ohio-4670, ¶73. However, the Supreme Court has subsequently 

limited this holding, 

 Pursuant to Evid.R. 404(B), * * * evidence of other crimes, wrongs, 

or acts of an accused may be admissible to prove intent or plan, 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). 

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

evidence: 
Richland County, Case No. 14CA67 17 

 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, 526, 2012-Ohio-5695, 983 N.E.2d 1278, 1283, ¶ 

20 (2012). 

{¶53} The circumstances surrounding each rape and each incident of domestic 

violence in this case are relevant in making it more likely Short had sex with an unwilling 

victim by using physical violence and or threats. The evidence pertaining to each 

offense does have the tendency to prove Short engaged in a similar plan or method of 

conduct with both victims and to prove his motive, intent, or plan. The immediate 

similarity between the charges in both cases is a request for sex that is denied, 

violence, threats of violence and forced sexual conduct. Both assaults have further 

similarities: Short held his hand over the victims’ mouths, chocked them and later 

apologized to them. 

{¶54} The third step in the analysis is whether the probative value of each 

incident is outweighed by the prejudice risked in its admission. Unfair prejudice is that 
Richland County, Case No. 14CA67 18 

quality of evidence that might result in an improper basis for a jury decision. State v. 

Crotts, 104 Ohio St.3d 432, 2004-Ohio-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). 

{¶55} We note the trial court gave a limiting instruction that each of the offenses 

charged in this case constitutes a separate and distinct matter and that the jury must 

consider each charge and the evidence applicable to each charge separately, and then 

state their finding as to each charge uninfluenced by your verdict as to any other charge 

We presume the jury followed those instructions. See, Williams, supra, 134 Ohio St.3d 

521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 23, citing State v. Garner, 74 Ohio St.3d 

49, 59, 656 N.E.2d 623 (1995) and Pang v. Minch, 53 Ohio St.3d 186, 195, 559 N.E.2d 

1313 (1990). Indeed, in B.S.’s case, Case No 2014-CR-0200, the jury found Short “Not 

Guility” on Counts 1, 2, 3, and 4 all Domestic Violence, felonies of the third degree; “Not 

Guilty” on Counts 8 and 9, both counts being Rape, a felony of the first degree. The jury 

further found Short “Not Guilty” on Count 10, Abduction, a felony of the third degree. 

{¶56} Assuming, arguendo, that the evidence did not fit the "other acts" 

exception, it nevertheless fits the second prong of the Schaim test which requires the 

evidence of the crime under each indictment to be simple and distinct. 65 Ohio St.3d at 

59. In State v. Decker, 88 Ohio App.3d 544, 624 N.E.2d 350(1st Dist. 1993), the court 

found that the evidence was simple and distinct. The evidence achieved these 

characteristics in part because the crimes involved contained different victims and 
Richland County, Case No. 14CA67 19 

different witnesses, and therefore, the jury was able to segregate the facts that 

constituted each crime. Decker, 88 Ohio App.3d at 549. 

{¶57} In this case, the prosecution introduced evidence of each distinct crime. 

Both A.S. and B.S. testified at length and in specific detail about how the abuse 

occurred, when it began, and how long it continued. 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. As previously noted, the jury found Short “Not Guility” of seven 

counts in the case involving B.S. 

{¶58} Thus, as in Decker, the evidence was simple and distinct because the facts 

surrounding each crime were capable of segregation. 

{¶59} Accordingly, because Short was not able to demonstrate that he was 

prejudiced by the joinder of the cases, he cannot meet the first element of the Schaim

test. Therefore, we do not need to address the remaining elements of the test. 

{¶60} Given the facts sub judice, we find that counsel was not ineffective in failing 

to file a motion to sever the cases. 

{¶61} Short’s sole assignment of error is overruled. 
Richland County, Case No. 14CA67 20 

{¶62} The judgment of the Richland County Court of Common Pleas is affirmed. 

By Gwin, P.J., 

Wise, J., and 

Delaney, J., concur