[Cite as State v. Mosby,
2024-Ohio-5210.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113545
v. :
RAHSAAN MOSBY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
RELEASED AND JOURNALIZED: October 31, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-23-681259-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Glen Ramdhan, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Aaron T. Baker, Assistant Public Defender, for appellant.
KATHLEEN ANN KEOUGH, A.J.:
Defendant-appellant, Rahsaan Mosby, appeals from the trial court’s
judgment, rendered after a jury verdict, finding him guilty of one count each of rape
and kidnapping and sentencing him to life in prison with parole eligibility after ten
years on each count, to be served consecutively, plus fines and costs. We affirm
Mosby’s convictions but reverse the fines and remand for a limited resentencing
hearing at which the court shall consider Mosby’s present ability to pay any fine it
may impose.
I. Background
In May 2023, a Cuyahoga County Grand Jury indicted Mosby for rape
in violation of R.C. 2907.02(A)(2) (Count 1) and kidnapping in violation of R.C.
2905.01(A)(4) with a sexual motivation specification (Count 2). Both counts carried
one- and three-year firearm specifications and a sexually violent predator
specification. Mosby pleaded not guilty, and the case proceeded to a jury trial.
Immediately prior to trial, Mosby waived a jury trial on the sexually violent predator
specifications.
At trial, N.W. testified that around 10 p.m. on December 23, 2023,
she and her friend K.L. walked from K.L.’s house on West 95th Street to Blowiez
Lounge, a bar located on the corner of West 94th Street and Denison Avenue in
Cleveland, Ohio. The women purchased several drinks and played pool. Later, the
waitress brought them each a shot that an unknown patron had purchased for them.
N.W. testified that K.L. became agitated shortly after she drank the shot so the
women prepared to leave the bar. As they neared the door, K.L., who has epilepsy,
had an epileptic seizure.
N.W. testified that she helped K.L. through her seizure and then
helped her outside. The women began walking to K.L.’s house but K.L. kept falling
down. N.W. said she helped her up at least three times but when K.L. fell again,
N.W. was unable to lift her up. N.W. testified that as K.L. was lying on the sidewalk,
a white SUV drove by, turned around in a driveway, and came back to them. The
driver, later identified as Mosby, was alone in the SUV and asked N.W. if she needed
help. N.W. said she hesitated because she did not know the man and had never seen
the SUV before but then told him that they needed a ride to K.L.’s house and he
agreed to take them there.
N.W. said Mosby got out of his car and they both helped K.L. off the
ground and then laid her in the back seat of the SUV. N.W. testified that as she shut
the rear passenger side door of the SUV and prepared to get in the front passenger
seat of the vehicle, Mosby “pressed on the gas and was gone.” N.W. said she chased
after the SUV but “he was gone already.” N.W., who had K.L.’s purse, keys, and cell
phone, called the police as she ran to K.L.’s house. State’s exhibit No. 2, N.W.’s
frantic 911 call, was played for the jury.
Brandon Bliss, a City of Cleveland police officer, testified that he and
his partner responded to K.L.’s home around 4 a.m. on December 24, 2023. He said
N.W. was crying hysterically and “under extreme duress” as she told the officers
what had happened. Bliss testified that because he was “under the impression” that
K.L. had gotten into the SUV willingly, he filed a missing person’s report. State’s
exhibit No. 4, Bliss’s body camera video of his interaction with N.W., was shown to
the jury.
K.L. testified that N.W. helped her through the epileptic seizure she
had at the bar. She said she remembers stepping outside the bar to go home and the
next thing she remembers is waking up in the backseat of the SUV with her pants
down around her ankles and a man sitting in the backseat with his pants off. K.L.
said the man told her that she could either get out of the vehicle and walk home or
have sex with him and he would drive her home. K.L. said that after she told the
man repeatedly that she did not want to have sex with him and hit him in the face
several times, he got mad and whipped her with his belt. He then pulled a gun out
of the console, pointed it at her, and told her that if she did not have sex with him,
she would not make it home. K.L., who is a mother to five children, testified that
she gave in at this point, and Mosby inserted his penis into her vagina and
ejaculated.
She said that he then got dressed, told her to get dressed and sit in the
front seat of the vehicle, which she did, and took her home. K.L. said that Mosby
rubbed her leg as he was driving her home and told her this was not the last time she
would see him. She said that Mosby’s gun was in his lap, with the barrel pointing
straight at her, as he drove her home.
N.W. testified that she saw the white SUV drop K.L. off at her house
early in the morning. N.W. said that she went outside to confront the driver but he
“just smiled” at her and drove away. She said that when K.L. came in the house, she
told N.W. what had happened, showed her welts on her back, and then went to bed.
Later that morning, Cleveland police officers came to K.L.’s house and interviewed
her and took pictures of her back and buttocks. They called an ambulance, which
transported K.L. to the hospital, where forensic sexual assault nursing examiner
Anna Becks examined her and collected specimens for the rape kit.
Becks testified that she observed redness, swelling, and abrasions on
K.L.’s bottom, thighs, and knees that were consistent with her report of what had
happened. Becks also observed “raised lines” on K.L.’s buttocks and thighs that she
said were consistent with K.L.’s report that Mosby hit her with a belt after she hit
him in the face. K.L. testified that although she had some mental health issues prior
to the rape, since the rape she has been on medication to treat her depression, has
nightmares, and cannot sleep.
Cleveland police detective Angela Rivera testified that after Mosby’s
name came up as a suspect, the police reviewed the Ohio Law Enforcement Gateway
database and learned that he owned a white SUV. She testified further that in
January 2023, K.L. identified Mosby with 100 percent certainty from a photo lineup
as the man who raped her.
Mosby testified in his own defense. He said that he was driving
around at approximately 4 a.m. on December 23, 2023, looking for prostitutes, as
he often did, when he saw two women, one who was lying on the ground “passed
out,” and the other who flagged him down and asked if he would “take her home.”
Mosby said he helped K.L. into the backseat of his car and then drove away, even
though he saw N.W. waving at him to stop as he drove away.
Mosby said that while he was driving, he nudged K.L. to try to wake
her but when she did not respond, he decided to just drive around until she woke
up. He said that he drove to his bank to get money from the ATM because he needed
money to do some last-minute Christmas shopping, but instead of going to the bank,
he parked his car in the parking lot of an apartment complex across the street from
the bank. He then got into the back seat of the SUV and nudged K.L. to wake her
up. He testified that when K.L. woke, they “just ha[d] a conversation back and forth”
for over an hour, “learning things about each other,” and then he finally told her that
he wanted to have sex with her.
Mosby said that he drove his vehicle to the bus stop and told K.L. he
would give her bus fare and she could take the bus home if she did not want to have
sex with him, but “she just sat there and didn’t get out,” so he “figured she must be
agreeing with my proposition basically.” Mosby said he then drove back to the
apartment parking lot, parked the vehicle, got in the back seat, and had sex several
times with K.L. after she took her clothes off. Mosby denied threatening K.L. with a
gun, hitting her, or striking her with a belt, and said that K.L. never said no to
anything he was doing. He said that as he drove her home after they had sex, he
rubbed her leg and told her he was now her boyfriend. Mosby said he later tried
calling K.L. several times but there was no answer to his calls and she did not come
out when he stopped by her house and honked the horn so he stopped contacting
her.
The jury found Mosby guilty of rape and kidnapping with a sexual
motivation but not guilty of the accompanying firearm specifications on both counts.
After a hearing on the sexually violent predator specifications, the trial court found
Mosby to be a sexually violent predator. The court sentenced him to life in prison
on each count with parole eligibility after ten years, to be served consecutively, and
ordered that he pay $40,000 in fines plus costs. This appeal followed.
II. Law and Analysis1
A. Cross-examination
The following colloquy occurred during defense counsel’s cross-
examination of K.L.:
Q. You said that you don’t know anything that happened, though. Once
you went out of that bar you were blacked out and you don’t know,
right?
A. Right.
Q. Your friend said that you were awake when you got into that car?
A. No, I was not awake.
Q. How do you know –
A. Because –
Q. You were blacked out?
A. I know that I came out of that bar, I know that I was walking home.
Q. All right. N[.W.] says –
1 Some assignments of error will be considered out of order to facilitate our
analysis.
A. When I got in that car, I don’t remember getting in nobody’s car. I
would never [have] gotten in nobody’s car because I don’t get in cars
with strangers.
Q. So if [N.W.] says that you willingly got in that car, you were awake
when you got in that car, and knew that you were getting in that car,
she would not be telling the truth?
(Tr. 443-444.) At that point, the court interrupted, ordered the attorneys to sidebar,
and instructed defense counsel as follows:
THE COURT: All right. Stick with the evidence on your cross. You are
not sticking with the evidence on cross. She did not say that she
willingly got in the back seat.
DEFENSE COUNSEL: She was blacked out.
THE COURT: I’m not clear, I’m not going to argue with you, but you’re
over your head. Stick with the evidence.
DEFENSE COUNSEL: They’re not objecting to it.
THE COURT: The court is correcting you.
(Tr. 444-445.) The trial judge then asked K.L. “Are you good?”; she responded,
“Yes,” and defense counsel resumed cross-examination.
In his first assignment of error, Mosby contends that the trial court’s
interruption of his cross-examination of K.L. and its instruction to “stick with the
evidence” violated his Sixth Amendment right to fully and fairly confront the
witnesses against him.
The scope of cross-examination is governed by Evid.R. 611(A), which
provides:
The court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the
truth, (2) avoid needless consumption of time, and (3) protect
witnesses from harassment or undue embarrassment.
Thus, “trial judges may impose reasonable limits on cross-examination based on a
variety of concerns, such as harassment, prejudice, confusion of the issues, the
witness’s safety, repetitive testimony, or marginally relevant interrogation.” Mueller
v. Lindes, 2002-Ohio-5465, ¶ 26 (8th Dist.).
“‘The limitation of . . . cross-examination lies within the sound
discretion of the trial court, viewed in relation to the particular facts of the case.
Such exercise of discretion will not be disturbed absent a clear showing of an abuse
of discretion.’” Id. at ¶ 24, quoting State v. Treesh, 90 Ohio St.3d 460, 480 (2001).
An abuse of discretion is an unreasonable, arbitrary, or unconscionable use of
discretion, or a view or action that no conscientious judge could honestly have taken.
State v. Kirkland,
2014-Ohio-1966, ¶ 67. It includes a ruling that lacks a sound
reasoning process. State v. Morris,
2012-Ohio-2407, ¶ 14. We find no abuse of
discretion here.
As the trial court found when it explained its admonition, N.W.
testified that she alone made the decision to accept the stranger’s offer for her and
K.L. to get in the stranger’s car so he could take them home. She said that the man
asked her if she needed help (tr. 347) and after hesitating to accept his offer of a ride
because she did not know if she should trust a stranger, she said “okay” because she
did not know how she would otherwise get K.L. home. (Tr. 349.) There was no
testimony whatsoever by N.W. that K.L. ever considered or accepted the stranger’s
offer of a ride. In fact, N.W. testified that K.L. was incapacitated as she was lying on
the sidewalk, and even defense counsel conceded during the sidebar that K.L. “was
blacked out” before she got in Mosby’s vehicle. (Tr. 445.) Our review of the record
reveals no testimony by N.W. that supports defense counsel’s statement to K.L. that
N.W. “said that you were awake when you got into that car.” (Tr. 444.) Accordingly,
defense counsel’s statement to K.L. did not comport with the evidence and was
misleading.
Mosby contends, however, that defense counsel’s statement about
K.L.’s willingness to get in Mosby’s SUV was not misleading because it was based on
Officer Bliss’s earlier testimony that after responding to K.L.’s house, he was “under
the impression” that K.L. willingly got into Mosby’s vehicle. But defense counsel
made no mention whatsoever of Officer Bliss’s testimony in the trial court, either
immediately at sidebar when the trial court admonished counsel to “stick with the
evidence” (tr. 444-445) or later when the trial court explained its ruling in depth and
specifically gave defense counsel an opportunity to respond to the court’s ruling.
(Tr. 507-520.) Accordingly, any argument that Officer Bliss’s testimony was the
basis for defense counsel’s question to K.L. is waived. State v. Almazan, 2021-Ohio-
1718, ¶ 8 (8th Dist.) (a party cannot raise new arguments and legal theories for the
first time on appeal).
Our review of the record demonstrates that the trial court did not
abuse its discretion in instructing defense counsel to “stick with the evidence” while
cross-examining K.L. Furthermore, Mosby’s assertion that the trial court “berated
and insulted defense counsel for daring to confront [his] accuser with evidence
supported by the record” is wholly without merit. The record reflects that the court
interrupted K.L.’s cross-examination and brought the attorneys to a sidebar
conference as set forth above. There is nothing whatsoever to suggest that the trial
court’s interruption was made in a “venomous manner,” as suggested by Mosby, or
that the trial court “berated and insulted defense counsel” by properly instructing
him to “stick with the evidence” when cross-examining K.L.
Because the trial court did not abuse its discretion in limiting defense
counsel’s cross-examination of K.L., Mosby’s constitutional right to fully and fairly
confront K.L. was not abridged by the trial court’s limitation of cross-examination.
The first assignment of error is overruled.
B. References to K.L. during trial as the “victim”
Mosby next contends that the trial court erred by permitting
references to K.L. as “victim” 34 times in the presence of the jury. He argues that
these references “lent a presumption of legitimacy” to K.L.’s accusations so as to
deprive him of his right to be presumed innocent, and thus, his right to a fair trial.
Because Mosby failed to object to the use of this term at trial, he has waived all but
plain error. State v. Rogers, 2015-Ohio-2459, ¶ 3, 21 (failure to object to an error in
the trial court forfeits all but plain error on appeal). Crim.R. 52(B) authorizes
appellate courts to correct “plain errors or defects affecting substantial rights”
notwithstanding the accused’s failure to meet his obligation to bring those errors to
the attention of the trial court. To prevail under a plain error analysis, the appellant
bears the burden of demonstrating that, but for the error, the outcome of the trial
would clearly have been different. State v. Payne,
2007-Ohio-4642, ¶ 17. Notice of
plain error is to be taken with the utmost caution, under exceptional circumstances,
and only to prevent a manifest miscarriage of justice. State v. Long,
53 Ohio St.2d
91 (1978), paragraph three of the syllabus.
It is generally recognized that
[t]he term “victim” means “[a] person harmed by a crime, tort, or other
wrong.” VICTIM, Black’s Law Dictionary (11th Ed.2019). Depending
on context, a party’s use of the term “victim” at trial may imply that the
charged offenses occurred, which reduces the state’s burden of proof.
Therefore, it is more appropriate for the parties to use the phrase
“alleged victim” at trial to reflct the defendant’s presumption of
innocence.
State v. Thomas, 2023-Ohio-3148, ¶ 24 (8th Dist.), quoting State v. Aboytes, 2020-
Ohio-6806, ¶ 180 (11th Dist.). Nevertheless, depending on context, the “use of the
term ‘victim’ is not necessarily ‘the same as expressing an opinion that a defendant
is guilty of a crime.’” State v. Washington,
2023-Ohio-1667, ¶ 126 (8th Dist.),
quoting State v. Palmer,
2021-Ohio-4639, ¶ 83 (7th Dist.).
This court has observed that “unlike trial judges, who must remain
neutral and detached, ‘a prosecutor is not constrained by any such obligation of
neutrality,’” Thomas at ¶ 30, quoting Aboytes at ¶ 189, because “the jury is aware
that prosecutors are advocates and that prosecutors and witnesses have biases.”
State v. Jackson,
2023-Ohio-455, ¶ 25 (8th Dist.). This court has also observed that
“law enforcement personnel use the term ‘victim’ as a ‘term of art’ synonymous with
‘complaining witness.’” Id. at ¶ 30, quoting State v. Madden,
2017-Ohio-8894, ¶ 32
(10th Dist.). Thus, “a prosecutor’s or a witness’s use of the term ‘victim’ to refer to a
complaining witness does not rise to the level of plain error.”
Jackson at ¶ 25-26,
citing State v. Butts,
2020-Ohio-1498,¶ 41 (8th Dist.), and
Madden at ¶ 26-34 (10th
Dist.);
Thomas at ¶ 29. Applying these principles to this case, we find no plain error
regarding the use of the word “victim” during the trial proceedings.
The record reflects that of the 34 times the word “victim” was used in
front of the jury, the prosecutor used the word 12 times and State’s witnesses Officer
Bliss and Detective Rivera used the word a total of 18 times, all in the context of
referring to the identity of the complaining witness. Although it would have been
better for the prosecutor and the State’s witnesses to use the term “alleged victim,”
the general use of the word “victim” by the prosecutor and the State’s witnesses in
this context did not rise to plain error because it was used to refer to the complaining
witness and did not express an opinion about the veracity of K.L.’s testimony or
whether Mosby was guilty of the reported crimes.
The record reflects that the judge used the word “victim” four times
in the presence of the jury when he explained to the jury the statutory language of
the indictment that he would read as part of the jury instructions. (Tr. 801.)
Specifically, the judge used the term three times when he reviewed Count One of the
indictment with the jury:
All right. Let’s cover the indictment. Count One, Defendant is charged
in Count One of the indictment with rape in violation of Ohio Revised
Code 2907.02(A)(2).
So the next part I read to you is that statute word for word with the
accusation of whoever the victim or Defendant is in the case. It’s the
only insertion, okay?
So listen closely because this is the only question that you are
answering when we read you the charge, then that’s the question. Did
the State prove beyond a reasonable doubt that this specific law was
violated by the Defendant against this specific victim on a specific date?
That’s yes or no.
If it’s yes, that the State proved beyond a reasonable doubt that the
crime was – that the statute was violated by the Defendant against that
specific victim, then your duty would be to vote yes.
(Tr. 801.) The judge used the term “victim” one other time during jury instructions
when he explained the definition of “resistance” to the jury, stating “Resistance. The
prosecution need not prove that the victim physically resisted the Defendant.” (Tr.
805.)
These four uses of the term “victim” by the trial judge do not rise to
the level of plain error. Mosby has not, and indeed cannot, demonstrate that he
would not have been found guilty of rape and kidnapping if the judge had not used
the term “victim” four times while explaining the jury instructions to the jury.
Mosby’s reliance on State v. Almedom, 2016-Ohio-1553 (10th Dist.)
as support for his argument that he was prejudiced as a result of the trial judge’s
limited use of the word “victim” in this case is misplaced. In Almedom, the Tenth
District found that the trial judge “repeatedly” told the jury throughout the trial
court proceedings that the complaining witnesses were “victims,” which the Tenth
District found was “in essence . . . telling the members of the jury that the girls were
truthful when they claimed that sexual abuse occurred.” Id. at ¶ 11. The court found
that the judge’s repeated references to the girls as “victims,” combined with defense
counsel’s failure to object to these references and counsel’s numerous other failures
to adequately represent the defendant, denied the defendant the opportunity for a
fair trial. Id. at ¶ 12.
Unlike Almedom, defense counsel did not consistently fail to
adequately represent Mosby. Furthermore, the trial judge in this case did not make
repeated references throughout the trial to K.L. as the “victim.” The judge’s limited
use of the term “victim” in front of the jury was in the context of explaining the jury
instructions. Moreover, the judge instructed the jury that “I offer no opinion on any
witness in any case ever to a jury” because “[t]hat would be invading your authority
and your province. You are the judges of the facts, okay?” (Tr. 790.) The judge also
instructed the jury that Mosby was presumed innocent until proven guilty by
evidence beyond a reasonable doubt (tr. 794), “the attorneys are not witnesses” but
“just advocates” (tr. 793), and the jury was “the sole judges of the facts and the
credibility of the witnesses.” (Tr. 796.) We presume that the jury followed these
instructions. Treesh, 90 Ohio St.3d at 480.
Following a thorough review of the record, we find no indication that
the adversarial process was undermined or that Mosby was prejudiced as a result of
the usage of the term “victim” in the trial court such that its use was plain error
requiring reversal and a new trial. The second assignment of error is overruled.
In his third assignment of error, Mosby contends that his trial counsel
was ineffective for not objecting to the use of the term “victim” during trial.
“Reversal of a conviction for ineffective assistance of counsel requires that the
defendant show that counsel’s performance was deficient and that the deficient
performance prejudiced the defendant so as to deprive him of a fair trial.” State v.
Trimble, 2009-Ohio-2961, ¶ 98, citing Strickland v. Washington,
466 U.S. 668, 687
(1984). Having found no plain error in the use of the word “victim,” we are unable
to conclude that Mosby was prejudiced by counsel’s failure to raise timely objections
to its usage. The third assignment is overruled.
C. Jury Instructions
In his fifth assignment of error, Mosby objects to the italicized
language in the following instruction given to the jury:
The Defendant testified as a witness in this case, and you will weigh his
testimony in the same manner as you weigh the testimony of other
witnesses who appeared in the case. Just because he is the Defendant
is no reason for you to disregard and set aside his testimony, and you
will give his testimony the weight it is entitled to receive, taking into
consideration his interest in the outcome of the case, and apply to his
testimony the same rules that you will apply to the testimony of all
other witnesses who appeared in this case. It is for you to determine
what weight you will give to the testimony of any witness who is
appearing in this case.
(Emphasis added.) (Tr. 798.) Mosby contends that the instruction “is inflammatory
and implies that Mr. Mosby has an interest in the case such that he may lie to protect
that interest.” He contends that the instruction invaded the province of the jury and
eroded his right to testify in his own defense, thereby requiring reversal and a new
trial.
Defense counsel did not object to this instruction. Under Crim.R.
30(A), the failure to object to jury instructions waives any error relating to the
instructions except in the event of plain error. State v. Lawwill, 2007-Ohio-2627,
¶ 41 (8th Dist.). A defective jury instruction does not rise to the level of plain error
unless it can be shown that the outcome of the trial clearly would have been
otherwise if the instruction was properly given.
Id.
This court has repeatedly rejected the challenge Mosby asserts to the
jury instruction, finding that “[t]his instruction is a standard instruction in Ohio.
When evaluating the credibility of the witnesses, a jury may take into consideration
any interest the witness has in the outcome of a case. This instruction applies to all
witnesses, not just [the testifying defendant.]” State v. Bell, 2006-Ohio-65492, ¶ 55
(8th Dist.); see also State v. Price,
2009-Ohio-3503, ¶ 11 (8th Dist.); State v. Sailor,
2004-Ohio-5207, ¶ 52 (8th Dist.); State v. Franklin,
2001 Ohio App. LEXIS 2072
(8th Dist. May 10, 2001); State v. Perkins,
93 Ohio App.3d 672 (8th Dist.1994);
State v. Smith,
1997 Ohio App. LEXIS 3760 (8th Dist. Aug. 21, 1997); State v.
Valentine,
1997 Ohio App. LEXIS 3094 (8th Dist. July 17, 1997); State v. McDade,
1978 Ohio App. LEXIS 7876 (8th Dist. Sept. 28, 1978); State v. McRae,
4 Ohio
App.2d 217 (8th Dist. 1965).
We reject Mosby’s invitation to overrule this long-standing
precedent. The instruction to the jury was that it should apply to the defendant’s
testimony “the same rules that you will apply to the testimony of all other witnesses
who appeared in this case.” Thus, Mosby’s argument that the instruction
erroneously singled out his testimony and intoned to the jury that they had reason
not to believe him, as opposed to other witnesses, is specious. We find no error,
plain or otherwise, in the giving of the instruction and overrule the fifth assignment
of error.
In his sixth assignment of error, Mosby contends that his counsel was
ineffective for not objecting to this instruction. Finding no error in the instruction,
we find no ineffective assistance of counsel and overrule the sixth assignment of
error.
D. Manifest Weight of the Evidence
Mosby next contends that his convictions for rape and kidnapping are
against the manifest weight of the evidence.
A manifest weight challenge questions whether the State met its
burden of persuasion at trial. State v. Hill, 2013-Ohio-578, ¶ 32 (8th Dist.). To
determine whether a conviction is against the manifest weight of the evidence, the
reviewing court must look at the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether in
resolving conflicts in the evidence, the trier of fact clearly lost its way and created
such a miscarriage of justice that the conviction must be reversed and a new trial
ordered. State v. Thompkins,
78 Ohio St.3d 380, 387 (1997). When considering a
claim that a conviction is against the manifest weight of the evidence, an appellate
court sits as a “thirteenth juror” and may disagree with the factfinder’s resolution of
the conflicting testimony.
Id. We will reverse a conviction as against the manifest
weight of the evidence “‘only in the exceptional case in which the evidence weighs
heavily against the conviction.’” State v. McLoyd,
2023-Ohio-4306, ¶ 40 (8th Dist.),
quoting
Thompkins at 387.
Mosby contends that his convictions are against the manifest weight
of the evidence because neither K.L. nor N.W. provided plausible, believable
testimony, especially because the police initially believed that K.L. willingly got into
his vehicle. He contends that he did not avoid police interrogation upon his arrest
and, in fact, immediately acknowledged that he had a sexual encounter with K.L.
because he had nothing to hide. He asserts that his testimony was “both believable
and plausible” and should have created reasonable doubt in the jurors’ minds. He
also contends that the State did not produce any evidence that K.L.’s injuries were
not consistent with falling several times on the sidewalk or in the snow the evening
before the sexual encounter.
Our review of the record demonstrates that Mosby’s testimony was
neither plausible nor believable. First, the record does not support Mosby’s
assertion that K.L. willingly got into his vehicle. Although Officer Bliss testified that
he was under the erroneous impression after talking with N.W. that K.L. willingly
got into Mosby’s car, N.W.’s testimony was clear that K.L. was lying on the ground,
unable to get up and walk any further after her night at the bar and epileptic seizure
and that N.W. alone decided to trust the stranger in the SUV and accept his offer of
a ride home for both of them. K.L. testified that she was “blacked out” and did not
remember getting into the SUV. Mosby likewise admitted that K.L. was “passed out”
on the ground when he encountered her and N.W. that evening and that he and N.W.
had to pick K.L. up and put her in the SUV.
Furthermore, Mosby’s testimony that he drove off without N.W., even
though he saw her waving to him to stop, because she only asked him to take K.L.
home, rather than both women, is not believable. N.W. testified that she told Mosby
that both women needed a ride home but that Mosby suddenly drove off as she
attempted to get in the front seat of the SUV. And Mosby admitted that he did not
know K.L.’s address when he drove off with her unconscious in the back seat of his
vehicle. Furthermore, N.W.’s frantic 911 call and her distraught interaction with
Officer Bliss make clear that she did not intend for Mosby to drive off with K.L. alone
in his vehicle.
Mosby’s testimony that K.L. was just “calm and chill” when she woke
up in the backseat of a stranger’s vehicle, without N.W., after blacking out as she left
the bar to go home with her friend, also strains credulity. Likewise, his testimony
that he and K.L. then “just had a conversation” for over an hour before they had
consensual sex, even though, as Mosby testified, it was getting light out by then and
people were walking through the parking lot where he had parked, is also not
credible. Common sense and reason dictate that one would be distraught upon
waking up in the backseat of a stranger’s car after blacking out and would not have
a calm conversation with that stranger before engaging in consensual sexual
intercourse.
Contrary to Mosby’s testimony, K.L. testified that she repeatedly
rejected Mosby’s advances and fought back but he hit her with his belt and then
pulled out a gun when she resisted. Nurse Becks testified that K.L.’s injuries were
consistent with what K.L. told her had happened and that State’s exhibit Nos. 7(A)-
7(M), pictures of K.L.’s injuries taken by Becks during her examination, accurately
reflected K.L.’s injuries.
After weighing the evidence and all reasonable inferences, and
considering the credibility of the witnesses and resolving any conflicts in the
evidence, we find that the jury did not lose its way in believing N.W. and K.L. instead
of Mosby and convicting him of rape and kidnapping with a sexual motivation
specification. This is not the extraordinary case in which the evidence weighs
heavily against the convictions such that they should be reversed and a new trial
ordered. Accordingly, the seventh assignment of error is overruled.
E. Waiver of Jury Trial on Sexually Violent Predator
Specifications
Mosby next contends that his trial counsel was ineffective for advising
him to waive his right to a jury trial on the sexually violent predator specifications,
and further, that his waiver was not made knowingly, voluntarily, and intelligently
because counsel’s advice to waive was erroneous.
The Sixth Amendment to the United States Constitution and Article
I, Section 10 of the Ohio Constitution provide that defendants in all criminal
proceedings shall have the assistance of counsel for their defense. The United States
Supreme Court has recognized that “the right to counsel is the right to effective
assistance of counsel.” Strickland, 466 U.S. 668 at 686. To establish ineffective
assistance of counsel, a defendant must demonstrate that counsel’s performance fell
below an objective standard of reasonable performance and that he was prejudiced
by that deficient performance, such that but for counsel’s error, the result of the
proceedings would have been different. State v. Drummond,
2006-Ohio-5084,
¶ 205. Failure to show either element is fatal to the claim. State v. Anderson, 2018-
Ohio-2013, ¶ 23 (4th Dist.).
Judicial scrutiny of a lawyer’s performance must be highly
deferential. State v. Sallie, 81 Ohio St.3d 673, 674 (1998). “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.”
Strickland at 689. Debatable trial tactics do not establish ineffective
assistance of counsel. State v. Conway,
2006-Ohio-2815, ¶ 101.
Mosby argues that defense counsel was incorrect in his assessment
that the jury would learn about his prior bad acts if the sexually violent predator
specifications were heard to the jury because no evidence surrounding the
specifications would have been heard until and unless he was convicted of Count
One or Count Two with the sexual motivation specification. Accordingly, he
contends that defense counsel did not understand the law regarding sexually violent
predator specifications and improperly advised him to waive his right to a jury trial
on those specifications.
Defense counsel’s advice to Mosby to waive a jury trial on the sexually
violent predator specifications was a trial strategy. The record reflects that Mosby
waived a jury trial on the specifications in order to avoid the specifications being
read to the jury when the trial court read the indictment. Defense counsel told the
trial court that “[o]bviously, Your Honor, those specs don’t come into consideration
of the Court until there’s a conviction — if and when there’s a conviction — but at
this time, Your Honor, we are going to enter into a waiver of that.” (Tr. 5-6.) When
the trial judge asked defense counsel to explain “what that means for the
Defendant’s sake,” defense counsel stated that “the sexually violent predator
specifications, if those were going to be tried to the Jury, number one, they would
hear those counts at the time the Court reads the indictment to the Jury.” (Tr. 6.)
Defense counsel continued, stating, “[I]t’s our belief, Your Honor, that there would
be some indication of prior incidents with that information being read to the Jury”
even though “there cannot be any evidence presented to the Jury at this time related
to any prior arrests, or anything else related to the sexually violent predator
specifications” because “those specifications in themselves would not come in unless
there was a conviction.” (Tr. 6.) Defense counsel responded affirmatively when the
trial judge asked him if he thought it would be advantageous to Mosby during trial
for the jury not to have heard the sexually violent predator specifications read during
the reading of the indictment. (Tr. 6-7.)
Thus, contrary to Mosby’s argument, defense counsel fully
understood that evidence surrounding the sexually violent predator specifications
would not be presented to the jury unless and until there was a conviction. Counsel
wanted to waive a jury trial on the specifications, however, to avoid the jury hearing
the specifications when the judge read the indictment to the jury so that they did not
get any idea before deciding whether he was guilty of rape and kidnapping that
Mosby had been involved in prior criminal incidents. We find this to be a trial
strategy and not ineffective assistance of counsel. The ninth assignment of error is
overruled.
With respect to the knowing, voluntary, and intelligent nature of his
jury waiver, Mosby does not argue that he did not understand the jury waiver but
only that he could not have made his waiver knowingly, voluntarily, and intelligently
because defense counsel did not understand the law regarding when evidence
regarding sexually violent predator specifications would be presented to the jury. As
discussed above, however, defense counsel understood the law and made a strategic
decision to advise Mosby to waive a jury trial on the specifications to avoid having
the jury hear the sexually violent predator specifications during the reading of the
indictment. Because there is nothing in the record to suggest that Mosby did not
understand the reason for his jury waiver and did not make that waiver knowingly,
voluntarily, and intelligently, the tenth assignment of error is overruled.
F. Trial on the Sexually Violent Predator Specifications
Mosby next argues that the trial court did not offer him an
opportunity to present a defense or to testify in his own defense during the sexually
violent predator phase of the trial and that he was denied due process and a fair trial
because the trial court did not find that he is a sexually violent predator beyond a
reasonable doubt.
Mosby’s argument that he was not given an opportunity to present a
defense is directly refuted by the record. During the sexually violent predator phase
of the trial, after Detective Rivera testified for the State regarding two prior police
reports involving Mosby and the reports were admitted into evidence, the State
informed the court that it had no other witnesses to present. (Tr. 906.) The trial
court then stated, “Now the defense has the opportunity to present any witnesses,
too, in this phase.” Id. Defense counsel then informed the court, “We’re not going
to be calling any witnesses, Your Honor.”
Id. The judge then asked defense counsel,
“Does the defense have any exhibits to offer? We’ll take exhibits, too.” (Tr. 907.)
Defense counsel responded, “No, Your Honor.” It is apparent from this colloquy
that the court offered Mosby an opportunity to present a defense to the sexually
violent predator charges.
With respect to Mosby’s denial of due process and fair trial argument,
we note that at trial, the State must prove beyond a reasonable doubt that a sexually
violent predator specification applies to the offender. State v. Haynes, 2002-Ohio-
4389, ¶ 92 (10th Dist.); State v. Yoder, 2011-Ohio-4975, ¶ 48 (5th Dist.). Here, in
finding Mosby to be a sexually violent predator, after evaluating the factors set forth
in R.C. 2971.01(H)(1) for determining whether an offender is a sexually violent
predator, the trial court found that there was “compelling” evidence adduced at trial
that Mosby was likely to engage in sexually violent offenses and behavior in the
future and that the sexually violent predator specifications were supported by
sufficient evidence and not against the manifest weight of the evidence. (Tr. 958.)
Although the trial court did not use the words “beyond a reasonable
doubt” when it found that Mosby is a sexually violent predator, in a bench trial, the
court is presumed to know and apply the law correctly unless the record
affirmatively demonstrates otherwise. State v. Kilbane, 2019-Ohio-863, ¶ 15 (8th
Dist.), citing State v. Shropshire,
2016-Ohio-7224, ¶ 37 (8th Dist.). Mosby makes
no argument whatsoever that the record demonstrates otherwise. In light of the trial
court’s extensive recitation of the evidence from the trial that supported its sexually
violent predator finding and its review of the factors set forth in R.C. 2971.01(H)(1)
for determining whether an offender is a sexually violent predator (tr. 927-958), it
is apparent that the trial court found Mosby to be a sexually violent predator beyond
a reasonable doubt.
Moreover, defense counsel raised no objection whatsoever to the trial
court’s sexually violent predator finding despite a specific invitation from the judge
to make a statement. (Tr. 958.) It is well settled that a party cannot raise new
arguments and legal issues for the first time on appeal, and the failure to raise an
issue in the trial court waives that issue for appellate purposes. Almazan, 2021-
Ohio-1718, at ¶ 8 (8th Dist.). The eleventh assignment of error is therefore
overruled.
G. Consecutive Sentences
In the twelfth assignment of error, Mosby contends that the trial court
erred in imposing consecutive sentences because its findings were not clearly and
convincingly supported by the record.
Under R.C. 2929.14(C)(4), a trial court may impose consecutive
sentences if it finds (1) consecutive sentences are necessary to protect the public
from future crime or to punish the offender, (2) consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger he
poses to the public, and (3) at least one of the following applies: (i) The offender
committed one or more of the multiple offenses while awaiting trial or sentencing,
while under a sanction, or while under postrelease control for a prior offense; (ii) At
least two of the multiple offenses were committed as part of one or more courses of
conduct, and the harm caused by two or more of the offenses was so great or unusual
that no single prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s conduct; or
(iii) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
The trial court found that consecutive sentences were necessary to
protect the public from future crime and to sufficiently punish Mosby and that they
were not disproportionate to the seriousness of Mosby’s conduct and the danger he
poses to the public. (Tr. 988-989.) The court also found that Mosby’s crimes were
part of a prolonged course of conduct such that a single term of imprisonment would
not adequately reflect the seriousness of his crimes and the punishment he deserves.
(Tr. 989.)
Mosby argues that the trial court’s finding that consecutive sentences
were necessary to protect the public was incorrect because if the sentences had been
run concurrently, the parole board could decide after he spends ten years in prison
that he still needs to stay in prison, thereby adequately protecting the public.
Mosby’s argument ignores the fact that if he were not sentenced to consecutive
sentences, the parole board could decide to release him after ten years, which would
not adequately protect the public from future crime by Mosby, especially given his
sexually violent predator propensity. Mosby’s argument also ignores the fact that
the trial court found that consecutive sentences were necessary not only to protect
the public from future crime but also to adequately punish Mosby for his crimes.
Our review demonstrates that the record clearly and convincingly supports the trial
court’s findings and the imposition of consecutive sentences. The twelfth
assignment of error is overruled.
H. A $40,000 Fine
At sentencing, the trial court told Mosby, “I do not know your
financial situation at all,” (tr. 990), and then imposed a $20,000 nonmandatory fine
for each offense, finding that Mosby’s offenses caused economic costs to the
community, which had to investigate and prosecute his crimes, and that it would be
expensive to keep him in prison for life. (Tr. 992.) The court found that Mosby could
pay the fines through community work service during his extended prison term. Id.
In his thirteenth assignment of error, Mosby challenges the fines. Because he did
not challenge the fines in the trial court, we review for plain error.
Before imposing a financial sanction as part of a sentence, a trial court
is required to “consider a defendant’s present and future ability to pay the amount
of the financial sanction or fine.” R.C. 2929.19(B)(5). There are no express factors
the court must take into consideration or findings regarding the offender’s ability to
pay that must be made on the record. State v. Cotto, 2019-Ohio-985, ¶ 12 (8th Dist.).
There is also no requirement that the trial court state on the record that it
affirmatively considered the defendant’s present and future ability to pay a financial
sanction at the time of sentencing. State v. Petticrew,
2023-Ohio-159, ¶ 19 (2d
Dist.), citing State v. Parker,
2004-Ohio-1313, ¶ 42 (2d Dist.). Nevertheless, the
record should contain evidence that the trial court considered the defendant’s
present and future ability to pay before imposing the financial sanction. Petticrew
at
id. For example, where the trial court reviews a presentence-investigation report
that contains information about the defendant’s age, health, education, and work
history, it can be inferred that the court considered the defendant’s present and
future ability to pay the fine. State v. Clemons,
2015-Ohio-520, ¶ 10 (8th Dist.);
State v. Willis,
2012-Ohio-294, ¶ 4 (2d Dist.).
Although the trial court specifically considered Mosby’s future ability
to pay the fines, noting that he can work them off through community work service
while incarcerated, the record contains no evidence from which we can infer that the
trial court considered Mosby’s present ability to pay the fines. Indeed, the trial court
stated that it knew “nothing” about Mosby’s financial situation. The fact that the
trial court had previously found Mosby indigent and entitled to representation by
court-appointed counsel is not determinative of any subsequent finding regarding
his ability to pay a fine. Cotto, 2019-Ohio-985, at ¶ 10 (8th Dist.). And Mosby’s
testimony that he had two jobs when he was arrested is not dispositive; the trial
court’s statement that it knew “nothing” about Mosby’s financial situation indicates
that it did not consider this information before imposing the fines.
Because the record demonstrates that the trial court did not consider
Mosby’s present ability to pay the fines, as required by R.C. 2929.19(B)(5), we find
that the trial court committed plain error. The imposition of the fines is reversed,
and the matter is remanded for a limited resentencing hearing at which the trial
court shall consider Mosby’s present ability to pay any fines it may impose. The
thirteenth assignment of error is sustained.
I. Alleged Bias of the Trial Court Judge
In his fourth assignment of error, Mosby contends that the trial judge
was biased against him, thereby creating structural error that requires reversal of
his convictions.
“A fair trial in a fair tribunal is a basic requirement of due process.”
In re Murchison, 349 U.S. 133, 136 (1955); accord Caperton v. A.T. Massey Coal
Co.,
556 U.S. 868, 876 (2009). Fairness “requires the absence of actual bias in the
trial of cases” and “a system of law [that] endeavor[s] to prevent even that
probability of unfairness.” Murchison at
id. Thus, “a criminal trial before a biased
judge is fundamentally unfair and denies a defendant due process of law.” State v.
LaMar,
2002-Ohio-2128, ¶ 34.
A structural error is a violation of the basic constitutional guarantees
that define the framework of a criminal trial and when an objection has been raised
in the trial court, it is grounds for automatic reversal. State v. Jones, 2020-Ohio-
3051, ¶ 2. But when the accused fails to object to the error in the trial court, appellate
courts apply the plain-error standard of review, shifting the burden to the accused
to demonstrate that the error affected the trial’s outcome. State v. West, 2022-Ohio-
1556, ¶ 2, citing Jones at ¶ 17.
Mosby objects to various comments and rulings by the judge that he
contends demonstrate judicial bias and, therefore, structural error. But he did not
object to any of the allegedly biased comments or rulings in the trial court.2
Accordingly, our review is for plain error only. West at ¶ 28. To qualify for plain-
error relief, Mosby must establish that (1) an error occurred, (2) the error was plain,
and (3) the error affected his substantial rights. State v. Morgan, 2017-Ohio-7565,
¶ 36. In short, he must demonstrate a reasonable probability that the error resulted
in prejudice. State v. Rogers,
2015-Ohio-2459, ¶ 22.
Mosby first contends that the trial judge referred to K.L. as a victim
on the record 46 times. He fails to mention, however, that all 46 of these references
2 Nor did he avail himself of the procedures described in R.C. 2701.13, which allows
a party to file an affidavit of bias and prejudice with the Ohio Supreme Court seeking
disqualification of a biased judge.
were made outside the presence of the jury and thus could not have prejudiced him
with the jury. He also complains about the judge’s four references to K.L. as a victim
that were made in front of the jury. As discussed in our analysis of the third
assignment of error, however, Mosby was not prejudiced by the trial court’s use of
the term “victim” four times in front of the jury and there was no plain error
requiring reversal and a new trial.
Mosby next contends that the trial court demonstrated bias when it
halted defense counsel’s cross-examination of K.L. “to belittle and degrade him.” As
discussed above in our analysis of the first assignment of error, there is nothing in
the record to suggest that the trial judge interrupted the cross-examination for any
reason other than to properly instruct defense counsel to “stick with the evidence”
in his cross-examination.
Mosby next contends that the trial judge “oddly” interrupted defense
counsel’s cross-examination of Nurse Becks and then “proceeded to lecture” defense
counsel and make snide comments to him. Our review of the record reveals neither
a lecture nor snide comments. At the sidebar conference, the judge explained that
he stopped Becks’s cross-examination because defense counsel was starting to ask
Becks about statements made by K.L. and N.W. at the hospital about walking home
from the bar and the judge “was wary” that defense counsel was going to ask about
whether K.L. willingly got into Mosby’s SUV, as counsel had suggested in K.L.’s
cross-examination. (Tr. 525.) The judge then explained in detail the reasons for his
admonition to counsel the day before during K.L.’s cross-examination and explained
that he did not give a detailed explanation the day before because it was late in the
day and it was apparent the witnesses wanted to finish and go home. (Tr. 515.) The
record demonstrates that the judge was not finished with his explanation of the
reasons for his admonition regarding K.L.’s cross-examination when defense
counsel interrupted and asked if he could respond to the judge’s comments. Thus,
the judge’s statement that defense counsel could respond when he was finished was
not inappropriate and did not demonstrate bias against Mosby. (Tr. 516.)
Next, Mosby contends that the trial judge was biased because he
“openly encouraged” the State to impeach him with prior convictions that were not
impeachable offenses. Mosby again misrepresents the record, which reflects that
the judge brought the prosecutor and defense counsel to sidebar to “hammer out”
any issues regarding Mosby’s cross-examination before the prosecutor began his
cross-examination. (Tr. 649.) The judge began by asking about Mosby’s prior
criminal record and then stated that based on a record the judge had in front of him,
the judge thought that Mosby had been sentenced to prison for six months in 2004.
(Tr. 650.) When the prosecutor explained that Mosby had been sentenced to six
months in county jail for a probation violation and there was nothing in his record
to use for impeachment, the judge confirmed that the State was not going to probe
Mosby’s criminal history on cross-examination. (Tr. 653.) After confirming there
were no other issues to discuss regarding Mosby’s cross-examination, the judge
ended the sidebar and called the jury back in. Id. We find nothing in the record to
suggest that the judge was encouraging the State to impeach Mosby with non-
impeachable offenses; rather, the trial judge’s intent was to address before cross-
examination any issues that might arise during the State’s cross-examination of
Mosby. This demonstrates thoroughness, not judicial bias.
Mosby next contends that the trial judge “belittled” defense counsel
during the sexually violent predator phase of the trial during a discussion between
the judge and counsel regarding whether in making its sexually violent predator
determination the judge is limited to considering only the evidence presented during
the sexually violent predator hearing or can also consider anything it learned during
the trial on the underlying charges, including information about Mosby’s prior
criminal record that the judge was aware of but the jury did not hear. (Tr. 896-898.)
Our review demonstrates that the judge asked defense counsel whether he had any
case law or a statute to support his contention that the court was limited to
considering only the evidence it heard during the underlying trial or the sexually
violent predator specification trial. The exchange admittedly became contentious
when counsel repeatedly made other arguments in response to the judge’s question
but did not answer the question with a “yes” or “no” answer. (Tr. 898-906.) We do
not find the judge’s exasperation with defense counsel’s failure to answer his
question to be indicative of bias against Mosby. Furthermore, the record reflects
that in finding Mosby to be a sexually violent predator, the trial court considered
only the evidence it heard in the underlying trial and did not consider any of Mosby’s
prior offenses. (Tr. 930-931.) Accordingly, Mosby cannot demonstrate that he was
prejudiced by the exchange between the judge and defense counsel.
Next, Mosby contests the court’s finding that he is a sexually violent
predator, raising the same arguments that we already considered and rejected in the
eleventh assignment of error. Mosby’s repeated assertion that the trial judge was
biased because it did not allow him to present a defense in this phase of the trial is
particularly brazen because the record so clearly reflects that defense counsel
specifically told the trial judge that Mosby had no witnesses nor evidence to present
in the sexually violent predator hearing.
Mosby next contends that the trial judge was biased because during
sentencing, he noted that DNA evidence offered by a forensic scientist from the
Cuyahoga County Regional Forensic Science Laboratory during trial corroborated
K.L.’s testimony. Mosby contends that the DNA evidence was meaningless in light
of his admission that he had sex with K.L. We fail to appreciate, and Mosby does
not explain, how the judge’s comment could have prejudiced Mosby, which he must
show to prevail on his claim of judicial bias. When the judge made his comment, the
jury had already found him guilty of rape and kidnapping, and Mosby offers nothing
whatsoever to demonstrate that the judge’s comment somehow affected the trial
court’s finding that he is a sexually violent predator or his sentence.
Mosby also contends the trial court’s statements at sentencing that he
confessed to kidnapping K.L. and urging the parole board to never release him were
indicative of bias. Again, we find no prejudice because the comments were made at
sentencing, after the jury had found Mosby guilty of rape and kidnapping, and
Mosby makes no argument that the comments somehow affected the trial court’s
sexually violent predator finding or his sentence.
Mosby next contends that the trial court was biased because it told
counsel that the jury instructions were “standard OJI,” when they were not, which
resulted in the jury instruction that Mosby objects to in his fifth assignment of error.
As discussed above, the instruction is a standard instruction in Ohio and thus, the
judge’s comment when it distributed proposed jury instructions to the parties was
not error. Furthermore, Mosby’s assertion that the trial judge’s comment
misrepresented the jury instructions and thereby prejudiced him is belied by the
record, which clearly reflects that the trial court gave defense counsel many
opportunities to challenge the jury instructions. The judge distributed proposed
jury instructions to the prosecutor and defense counsel even before trial testimony
began and instructed them that “now is the time to work on them” so they could
“give input” on them. (Tr. 267.) At the close of the State’s case, the judge asked the
prosecutor and defense counsel if they had any issues regarding the charge and the
parties discussed a few changes. (Tr. 610.) Then, before the State’s closing
argument, the judge gave the prosecutor and defense counsel the final jury charge
and asked them to review it. The judge told them that “if you have any problems,
we’ll straighten the issue out.” (Tr. 720.) Later, before final arguments began, the
judge noted that neither party had requested any changes to the instructions. (Tr.
729.) Thus, it is clear that Mosby had ample opportunity to discover whether the
objected-to instruction was not standard (which it is) and to object to it, which he
did not do.
Mosby next contends that the trial court’s imposition of a $20,000
fine on each count was error and thus demonstrative of bias. As discussed above,
the trial court failed to consider Mosby’s present ability to pay the fines, as required
by R.C. 2929.19(B)(5), before imposing them. This failure is a legal error; it is not
indicative of any bias toward Mosby.
None of the comments or rulings cited by Mosby demonstrate that
the judge was biased against him and that he was prejudiced thereby. Accordingly,
the fourth assignment of error is overruled.
J. Cumulative-Error Doctrine
In the eighth assignment of error, Mosby contends that the
cumulative effect of the multiple errors at trial deprived him of a fair trial and due
process, warranting reversal of his convictions and a new trial.
“Under the doctrine of cumulative error, ‘a conviction will be reversed
when the cumulative effect of errors in a trial deprives a defendant of a fair trial even
though each of the numerous instances of trial-court error does not individually
constitute cause for reversal.’” State v. McKelton, 2016-Ohio-5735, ¶ 321, quoting
State v. Powell,
2012-Ohio-2577, ¶ 223.
The cumulative-error doctrine does not apply in this case because
there were not multiple trial court errors. There was one error at sentencing
regarding the imposition of fines, and we are reversing the fines and remanding for
a resentencing hearing so that error can be corrected. The eighth assignment of
error is overruled.
Affirmed in part, reversed in part, and remanded.
It is ordered that the parties share equally 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. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for a limited resentencing hearing and 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, ADMINISTRATIVE JUDGE
EILEEN T. GALLAGHER, J., and
SEAN C. GALLAGHER, J., CONCUR
