[Cite as State v. Sharpe,
2025-Ohio-440.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
STATE OF OHIO : Case No. 23CA3
:
Plaintiff-Appellee, :
:
v. :
: DECISION AND
WILLIAM SHARPE, : JUDGMENT ENTRY
:
Defendant-Appellant. :
:
______________________________________________________________________
APPEARANCES:
Benjamin E. Fickel, Logan, Ohio, for Appellant.
Jennifer M. Graham, Hocking County Prosecuting Attorney, Alisa Turner, Hocking
County Assistant Prosecuting Attorney, Logan, Ohio, for Appellee.
__________________________________________________________________
Smith, P.J.
{¶1} Appellant William M. Sharpe “Sharpe,” appeals from the March 3,
2023 Judgment Entry of Sentence of the Hocking County Common Pleas Court.
Sharpe was convicted at a jury trial of seven counts which included rape, sexual
battery, gross sexual imposition, and attempted rape. In addition, he was convicted
of one count of unlawful sexual conduct, tried to the bench. Three alleged victims,
L.R., A.G., and B.B., testified against Sharpe. On appeal, Sharpe raises three
assignments of error asserting that: (1) the trial court committed plain error when
Hocking App. No. 23CA3 2
it failed to order separate trials concerning the allegations of the three victim
witnesses; (2) the trial court abused its discretion by allowing count six to be
amended; and (3) count six is not supported by sufficient evidence. Based upon
our review, however, we find no merit to the assignments of error. Accordingly,
Sharpe’s assignments of error are hereby overruled and the judgment of the trial
court is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} In August 2022, Sharpe was indicted on 14 various sex offenses
involving L.R., A.G., and B.B. Sharpe filed a motion to sever, which was denied
on November 18, 2022. On January 12, 2023, the State filed a motion to amend
indictment, noting that several of the counts had been dismissed, renumbering the
counts, and requesting amendment to count five. Sharpe did not object and the
amendment was granted. However, the morning of trial, the State moved to amend
new count six. The parties argued the issue and the trial court ultimately granted
the amendment.
{¶3} When Sharpe proceeded to trial on January 17, 2023, the State
presented evidence pertaining to the following nine sex offenses:
Count One: Rape, R.C. 2907.02(A)(1)(b), 2907.02(B), a
felony of the first degree;
Count Two: Sexual Battery, R.C. 2907.03(A)(5),
2907.03(B), a felony of the second degree;
Hocking App. No. 23CA3 3
Count Three: Gross Sexual Imposition, R.C.
2907.05(A)(4), 2907.05(C)(2), a felony of
the third degree;
Count Four: Rape, R.C. 2907.02(A)(2), 2907.02(B), a
felony of the first degree;
Count Five: Attempted Rape, R.C.
2923.02/2907.02(A)(2), 2907.02(B), a
felony of the second degree;
Count Six: Gross Sexual Imposition, R.C.
2907.05(A)(1), 2907.05(C)(2), a felony of
the third degree;
Count Seven: Gross Sexual Imposition, R.C.
2907.05(A)(4), 2907.05(C)(2), a felony of
the third degree;
Count Eight: Rape, R.C. 2907.02(A)(2), 2907.02(B), a
felony of the first degree; and,
Count Nine: Unlawful Sexual Conduct with a Minor,
R.C. 2907.04(A), 2907.04(B)(4), a felony
of the second
degree.
{¶4} The State presented testimony from the three alleged victims and
several lay witnesses, including Kevin Culbertson, the owner of Kevin’s Marathon,
a gas station/convenience store/garage, and Detective Vincent Scalmato. The
testimony of the alleged victims will be set forth below where relevant. Sharpe did
not testify but he presented testimony from his current wife and a former long-term
girlfriend. At the conclusion of trial, the jury found Sharpe guilty of counts one
Hocking App. No. 23CA3 4
through seven and returned a not guilty verdict on count eight. The trial court
found Sharpe guilty on count nine.
{¶5} At Sharpe’s sentencing on February 23, 2023, after merging two of the
counts, the trial court imposed a consecutive term of imprisonment of 28 years to
life. This timely appeal followed.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT COMMITTED PLAIN ERROR
WHEN IT FAILED TO ORDER SEPARATE TRIALS FOR
THE SEPARATE VICTIMS.
II. THE TRIAL [SIC] ABUSED ITS DISCRETION BY
ALLOWING THE AMENDMENT OF COUNT SIX OF
THE INDICTMENT FROM R.C. 2907.05(A)(4) TO R.C.
2907.05(A)(1).
III. APPELLANT’S CONVICTION FOR GROSS SEXUAL
IMPOSITION R.C. 2907.05(A)(1) (COUNT SIX OF THE
INDICTMENT) IS NOT SUPPORTED BY SUFFICIENT
EVIDENCE.
{¶6} Sharpe points out that the indictment contained similar allegations
related to the three separate victims. L.R., A.G., and B.B. all testified at trial
regarding separate acts that took place during different time frames. Under the first
assignment of error, Sharpe asserts that in closing, the State tied the testimony of
the three witnesses together. In doing so, Sharpe argues, the State bolstered each
of the witnesses’ allegations against him with the others’ allegations and clearly
prejudiced him with the jury.
Hocking App. No. 23CA3 5
STANDARD OF REVIEW-MOTION TO SEVER
{¶7} Ordinarily, appellate courts review trial court decisions regarding a
Crim.R. 14 motion to sever criminal charges under the abuse of discretion
standard. State v. Sims, 2023-Ohio-1179, ¶ 37 (4th Dist.); State v. Ford, 2019-
Ohio-4539, ¶ 106. An abuse of discretion implies that a court's attitude is
unreasonable, arbitrary or unconscionable. “ ‘A decision is unreasonable if there is
no sound reasoning process that would support that decision.’ ” Ford at ¶ 106,
quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161 (1990). “[A]n ‘arbitrary’ decision is one made ‘without
consideration of or regard for facts [or] circumstances.’ ” State v. Beasley, 2018-
Ohio-16, ¶ 12, quoting Black's Law Dictionary 125 (10th Ed. 2014), and citing
Dayton ex rel. Scandrick v. McGee,
67 Ohio St.2d 356, 359 (1981), quoting Black's
Law Dictionary 96 (5th Ed. 1979) (“arbitrary” means “ ‘without adequate
determining principle; … not governed by any fixed rules or standard’ ”). An
unconscionable decision is one “showing no regard for conscience” or “affronting
the sense of justice, decency, or reasonableness.” Black's Law Dictionary (11th
Ed. 2019). An unconscionable decision also may be characterized as “[s]hockingly
unjust or unfair.” Black's Law Dictionary (11th Ed. 2019). Moreover, when
Hocking App. No. 23CA3 6
reviewing for an abuse of discretion, appellate courts must not substitute their
judgment for that of the trial court. E.g., State v. Grate,
2020-Ohio-5584, ¶ 187; In
re Jane Doe 1,
57 Ohio St.3d 135, 137-138 (1991).
{¶8} However, the trial transcript does not reflect that Sharpe renewed his
motion to sever at the close of the State’s case or at the close of all the evidence.
Where a defendant files a motion to sever but ultimately fails to renew his motion
at the close of either the State’s case or presentation of all evidence, the defendant
waives all but plain error on appeal. See State v. Moshos, 2010-Ohio-735 ¶ 77
(12th Dist); State v. Sapp,
2004-Ohio-7008, ¶68. Pursuant to Crim.R. 52(B),
“[p]lain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.” Plain error does not exist unless
“but for the error, the outcome of the trial clearly would have been otherwise.”
State v. Long,
53 Ohio St.2d 91, 97 (1978). The plain error rule is applied “under
exceptional circumstances and only to prevent a manifest miscarriage of justice.”
Id. Sharpe contends that the trial court’s denial of his motion to sever constitutes
plain error.
LEGAL ANALYSIS
{¶9} Crim.R. 8(A) specifies that “[t]wo or more offenses may be charged in
the same indictment, information or complaint in a separate count for each offense
if the offenses charged … are of the same or similar character ….” See Sims,
Hocking App. No. 23CA3 7
supra, at ¶ 35. The rule further permits the joinder of offenses that “are based on
the same act or transaction or are based on two or more acts or transactions
connected together or constituting parts of a common scheme or plan or are part of
a course of criminal conduct.” Id. As a general rule, the law favors joinder and the
avoidance of multiple trials. Sims, ¶ 36. E.g., State v. Gordon, 2018-Ohio-259, ¶
18. Joint trials “conserve[ ] judicial and prosecutorial time, lessen[ ] the not
inconsiderable expenses of multiple trials, diminish[ ] inconvenience to witnesses,
and minimize[ ] the possibility of incongruous results in successive trials before
different juries.” State v. Thomas,
61 Ohio St.2d 223, 225, (1980); accord Zafiro v.
United States,
506 U.S. 534, 537 (1993), quoting Richardson v. Marsh,
481 U.S.
200, 209 (1987) (joint trials “promote efficiency and ‘serve the interests of justice
by avoiding the scandal and inequity of inconsistent verdicts’ ”). If, however,
joinder prejudices a defendant, Crim.R. 14 gives a trial court discretion to sever the
trials: “If it appears that a defendant … is prejudiced by a joinder of offenses *
…, the court shall order an election or separate trial of counts, …, or provide
such other relief as justice requires.” See
Sims, supra.
{¶10} “ ‘A defendant who appeals the denial of relief bears a heavy burden
to establish that a trial court abused its discretion.” Sims, ¶ 38, quoting Ford at ¶
106. To establish that a trial court's refusal to sever a trial constitutes an abuse of
Hocking App. No. 23CA3 8
discretion, a defendant must establish that holding combined trials prejudiced the
defendant's rights. Gordon at ¶ 21. In Sims, this Court observed that the test is:
“whether a joint trial is so manifestly prejudicial that the trial
judge is required to exercise his or her discretion in only one way
—by severing the trial. … A defendant must show clear,
manifest or undue prejudice and violation of a substantive right
resulting from failure to sever.”
Sims, ¶38 quoting State v. Schiebel, 55 Ohio St.3d 71 (1990), quoting United States
v. Castro,
887 F.2d 988, 996 (9th Cir. 1989). A defendant must provide “the trial
court with sufficient information so that it [can] weigh the considerations favoring
joinder against the defendant's right to a fair trial.” State v. Torres,
66 Ohio St.2d
340 (1981), syllabus; accord Ford at ¶ 106. Furthermore, “a trial court does not
abuse its discretion in refusing to grant severance where the prejudicial aspects of
joinder are too general and speculative.” State v. Payne,
2003-Ohio-4891, ¶ 28
(10th Dist.).
{¶11} If a defendant presents sufficient information to show that joining
offenses for trial will prejudice the defendant's rights, the State can overcome the
defendant's claim of prejudicial joinder by showing either: (1) the State could have
introduced evidence of the joined offenses as other acts under Evid.R. 404(B) (the
other-acts test); or (2) the “evidence of each crime joined at trial is simple and
direct” (the joinder test). Sims, ¶ 39; E.g., State v. Lott, 51 Ohio St.3d 160, 163
(1990). “ ‘The two tests are disjunctive, so that the satisfaction of one negates a
Hocking App. No. 23CA3 9
defendant's claim of prejudice without consideration of the other.’ ” State v.
Wright,
2017-Ohio-8702, ¶ 51, quoting State v. Sullivan,
2011-Ohio-6384, ¶ 23
(10th Dist.). Accordingly, “ ‘[i]f the state can meet the joinder test, it need not
meet the stricter ‘other acts’ test.’ ” Sims, at ¶ 49, quoting State v. Johnson,
88
Ohio St.3d 95, 109 (2000).
{¶12} Evidence of joined offenses is simple and direct when (1) the jury is
capable of readily separating the proof required for each offense; (2) the evidence
is unlikely to confuse the jurors; (3) the evidence is straightforward and easy to
understand; (4) the offenses involve different victims, different incidents, and
different witnesses; and (5) little danger exists that the jury would improperly
consider testimony on one offense as corroborative of the other. See State v.
Freeland, 2015-Ohio-3410, ¶ 14 (4th Dist.); accord State v. Pate,
2021-Ohio-1838,
¶ 57 (2nd Dist.); State v. Dantzler,
2015-Ohio-3641, ¶ 23 (10th Dist.); State v.
Clifford,
135 Ohio App.3d 207, 212 (1st Dist.1999). Furthermore, “ ‘Ohio
appellate courts routinely find no prejudicial joinder where the evidence is
presented in an orderly fashion as to the separate offenses or victims without
significant overlap or conflation of proof.’ ” State v. Echols,
2015-Ohio-5138, ¶ 16
(8th Dist.), quoting State v. Lewis,
2010-Ohio-4202, ¶ 33 (6th Dist.).
{¶13} We additionally note that the purposes of the joinder test are (1) “to
prevent the finder of fact from confusing the offenses,” State v. Varney, 2008-Ohio-
Hocking App. No. 23CA3 10
5283, ¶ 19 (4th Dist.), and (2) “to prevent juries from combining the evidence to
convict” the defendant of multiple crimes, “instead of carefully considering the
proof offered for each separate offense.” State v. Mills, 62 Ohio St.3d 357, 362
(1992).
{¶14} Upon review of the trial testimony of L.R., A.G., and B.B., we agree
with the State that the evidence of each crime joined at trial is simple and direct.
Each alleged victim identified Sharpe in the courtroom.1 The prosecution
presented evidence that related to each offense in a simple and direct manner, and
separately presented the circumstances of each individual’s encounters with
Sharpe, as is set forth below.
{¶15} L.R. was the named victim in counts one, two, and three. It was
alleged that the criminal acts involving L.R. occurred in 2018. At the time of trial,
L.R. was 16 years old. L.R.’s mother was married to Sharpe and had two younger
daughters with Sharpe. L.R. testified she first met Sharpe when she was six or
seven and Sharpe and her mother began dating.
{¶16} L.R. testified that a couple of years after Sharpe and her mother
married, L.R. began feeling uncomfortable around Sharpe. He made inappropriate
comments to her about “developing and getting older.” When L.R. was around 11
or 12 years old, Sharpe once mentioned to her that he and her mother “weren’t
1
In the testimony, Sharpe is often referred to as “Mickey.”
Hocking App. No. 23CA3 11
having enough sex.” Then, Sharpe began inappropriately touching her. L.R.
testified:
It was mainly tickling and…it just felt uncomfortable and he got
closer to inappropriate places….He used to smack my butt
sometimes. He would tickle me in-between my thighs…My
boobs.
L.R. testified she told her mother but her mother said that “he probably didn’t
mean it in a way like that.” L.R. testified she was between 9 and 12 years old
when these actions occurred.
{¶17} L.R. testified that Sharpe’s behavior eventually moved past comments
and tickling. She described an incident which occurred when she was 12 years old.
She was wearing her pajamas and a Minion T-shirt. L.R. testified:
So I was in my bedroom. I was playing - - laying on my bed
playing a game on my Xbox. And my mom used to work
dayshifts so she was either about to go to work or at work. And
he had come home and he came into my room. And he was
standing in the doorway and asked me what I was doing and I
told him I was playing a game. And then he ended up laying in
the bed next to me and then he proceeded to tickle me in-between
my thighs and then he proceeded to put his hands in my pants….I
don’t remember in good detail, but he went between my bed and
the wall and then laid behind me and spooned me before he
started tickling me…[H]e started playing with my clit. And so-
- I don’t know how long it lasted, but it was at least five, ten
minutes. And then I told him…that I had to go to the restroom
so I got up. And the bathroom was right outside my bedroom.
So I sat in there for a couple of minutes and then I decided to go
in my mom’s room and tell her what happened.
Sharpe didn’t speak during the encounter.
Hocking App. No. 23CA3 12
{¶18} L.R. testified she told her mother and her mother went into the
kitchen and talked to Sharpe. Then her mother brought L.R. into the kitchen.
L.R.’s mother didn’t say anything but Sharpe started crying, got on his knees, held
L.R.’s shoulders and said he “would never do anything like that to me, and he
doesn’t know why I thought he did…that he would never do anything to hurt me.”
L.R. recalled that Sharpe ended up leaving that night and was gone for a few days.
Her mother never told the police and when Sharpe came back into the home “they
acted like nothing happened.” The incident happened in 2018.
{¶19} In June 2022, the sheriff’s office and Children Protective Services
(CPS) were notified and they contacted her. L.R. testified she did not know B.B.,
but she did know A.G. because A.G.’s parents and Sharpe were friends. L.R. had
visited A.G.’s house in the past. L.R.’s relationship with her mother is damaged
and L.R. now resides with her grandparents.
{¶20} Counts four, five, and six named A.G. as the victim of criminal acts
occurring in 2014 and 2015. At the time of trial, A.G. was approximately 25 years
old. She met Sharpe when she was 14 or 15 years old because her parents were
friends with Sharpe. A.G. saw Sharpe at family cookouts and get-togethers. A.G.
testified she sometimes babysat Sharpe’s step-daughter.
{¶21} A.G. testified that she “had issues” with her parents and, as a solution,
she would go to Sharpe’s house “like a sense of like respite care. That’s kind of
Hocking App. No. 23CA3 13
what we all came up with as the plan.” A.G. went to Sharpe’s house about once a
week and sometimes stayed the entire weekend. A.G. testified that they would
“hang out” and she felt like Sharpe was taking on a “parenting role.” A.G. helped
Sharpe with building a derby car in the garage.
{¶22} A.G. testified the relationship changed when she was 14 and “[h]e
started making comments I didn’t fully understand.” Sharpe said things to A.G.
like “I wish you were older or, wow you look good in that.” A.G. testified that the
comments were not in response to anything, but “very abrupt. It didn’t make
sense. That’s why I asked for clarification.” Sharpe didn’t really clarify anything
until A.G. was closer to turning 16. Just before she turned 16, Sharpe’s comments
progressed to touching, “a hand on the thigh or like brushing up against me…my
breast and my butt.” A.G. testified:
Sometimes it was in his truck, like on the way back from my
grandparents’ property to my parents’ house because he would
drop me off, or in the truck from my parents’ house over to his
house. Or sometimes it would be in the garage, and sometimes
whenever we would visit at like his - - at Kevin’s gas station. He
would like hug me …while my parents were somewhere else and
he was visiting, and he would like make it seem like it was an
accident that he touched my butt and stuff.
{¶23} A.G. testified that neither Sharpe’s wife nor anyone else was present
when Sharpe initiated sexual comments and touching. A.G. could not recall
exactly when Sharpe’s actions went beyond comments and “grazing,” but she
testified as follows:
Hocking App. No. 23CA3 14
I would stay at his house a lot. And my parents had given him
my medications because I was diagnosed with a mental health
disorder at the time. And the medications that I took would cause
me to go to sleep at night. And I remember during that time at
some point that I would wake up and a hand would be down my
pants while I was asleep…And then a week before my 16th
birthday it was no longer just comments or anything. He picked
me up (in his truck) and took me back to his house…Originally
I was sitting on the passenger side, but he had me move to the
middle…He put his arm around me and he went to kiss me and I
tried to turn away from it, but he is - - was a lot stronger than me
and he held me there…He held me there. And then after he
kissed me, he put his hand down my pants - - I think I was
wearing shorts at the time because it was summer. And then he
proceeded to finger me…At some point we get back to his house.
And then whenever we get back to his house, he asked me to
come over to the other side of the truck and he hugged me. And
I thought all he was going to do was hug me, but then he tried to
kiss me again. And then he turned me around and sat me in the
truck and pulled down my pants. And I believe I said no at some
point. And then he proceeded to try and insert his fingers into
my vagina. And then after that he stopped with that and tried to
put - - or put his penis inside of my vagina. And went on for like
a minute or two and then it was done.
{¶24} During the above incident, A.G. remembered it being dark outside.
When Sharpe inserted his fingers inside her, she told him “no,” but he did not stop.
A.G. testified that after Sharpe ejaculated, he pulled her pants back up and went
inside his house. A.G. then went into the house and spent the night. She didn’t tell
anyone that night what happened because she “just wasn’t sure what to do.”
{¶25} Later, A.G. attempted to tell her parents but they responded by telling
her that she was “lying and seeking attention.” A.G.’s parents continued to send
her to Sharpe’s home for about a year. A.G. also helped Sharpe work on his derby
Hocking App. No. 23CA3 15
car in the garage. Sharpe continued to make similar comments as before and that
he “wished she was older.” One time when they were working in the garage, he
“put his hand down my pants and then proceeded to insert a finger into my
vagina.” A.G. later told her boyfriend.
{¶26} A.G. eventually ran away from her parents’ home because she didn’t
want to go to Sharpe’s house. She attempted to tell the officer who arrested her
and he also told her she was “lying and seeking attention.” A.G. also told a
representative of CPS, Katie Hanna, who was interviewing her at school in the
guidance counselor’s office. A.G. told Hanna that she did not feel safe at home
because Sharpe had assaulted her multiple times. A.G. was advised that she
needed to “stop telling people that and that was a lie because of that fact that I had
a mental health disorder documented at the time, and that [Hanna] believes that my
mental health disorder is what was causing me to tell these lies.”
{¶27} During A.G.’s testimony, the prosecutor introduced State’s Exhibit 1,
which A.G. identified as a Facebook post that she made on June 24, 2022. A.G.
read the post to the jury:
Since we no longer - - we are no longer allowed to have an
abortion past six weeks in the State of Ohio, even if it is a rape, I
think we need to go ahead and inform others to be cautious
around - - Picture’s below - - the picture below is the man who
raped and molested me as a 15-and 16-year-old girl. This man
was friends with my parents. He’s friends with a lot of people in
the community. He used my parents’ trust and took advantage of
the fact that my mother told everyone I was crazy. I was 15 and
Hocking App. No. 23CA3 16
16 years old. If this took place now I would be forced to bear my
rapist’s child.
A.G. contacted the Hocking County Sheriff’s Office to report the assault. She
spoke to Detective Scalmato.
{¶28} Counts seven and eight named B.B. as the victim of Sharpe’s alleged
crimes occurring in 2008 and 2009.2 At the time of trial, B.B. was 26 years old.
She met Sharpe when she was 12 years old, moved to Logan, and met a new friend
named Cecily. B.B. believed that Cecily’s older sister was married to Sharpe. B.B.
and Cecily visited each other’s houses.
{¶29} When B.B. was first at Cecily’s house, Sharpe was very friendly,
almost like an older brother. However, talking later became uncomfortable.
Sharpe was “very flirtatious.” Sharpe then began touching her inner thighs, butt,
arms, and legs on top of her clothing.
{¶30} The first time Sharpe’s behavior went beyond touching was in a
bedroom at Cecily’s house. B.B. was 13 years old. B.B. described as follows:
It was in a bedroom. We were laying. It was dark. The lights
were off. We were watching a movie…[t]here was me, Mickey
and Tyler, Cecily’s cousin, were in that bedroom at that time
watching a movie and that’s when he started touching me again.
And that’s when it started going under clothing…And then it led
to…later that night going downstairs into the kitchen and then it
was just me and Mickey…Tyler was on the floor. Mickey was
on the bed and I was on the bed in the front. He was on the bed
2
B.B. was also named in Count 9, which was tried to the bench.
Hocking App. No. 23CA3 17
in the back against the wall…His hands went into my pants…On
my leg and then onto my vagina…On the outside.
B.B. testified that Sharpe was moving his hands, “using his fingers.” B.B. did not
recall if they went inside her vagina. B.B. admitted that she didn’t say anything to
Tyler and didn’t tell Sharpe to stop. Sharpe didn’t say anything during the
encounter.
{¶31} The sexual activity continued downstairs into the kitchen. B.B.
testified that in the kitchen, “[Sharpe] pushed me against the stove and then took
my pants down, brought my left leg up and inserted his penis into me.” B.B.
acknowledged that she did not push him away or tell him “no.” Again, Sharpe did
not speak. When B.B. was asked why she didn’t tell him to stop or yell for help,
she testified, “I didn’t know what to do…I was 13.”
{¶32} The prosecutor asked B.B. if “that ever occurred” again, and B.B.
answered “it was more times than I could count.” B.B. further testified that she
continued to have sex with Sharpe until after she was 18. “I moved when I was 16,
so it slowed down but I would go and meet him places…Graveyards, his work at
the time.” B.B. testified that Sharpe worked at a Marathon gas station known as
Kevin’s Marathon. B.B. testified they had sex “over in the extra garage where all
the tires and coolers were.” Sharpe texted her so she knew where to meet. At the
time, B.B., believing Sharpe to be married, thought she was in a secret relationship.
Hocking App. No. 23CA3 18
{¶33} B.B. testified that the reason she disclosed to law enforcement was
that she had seen a story on Facebook by A.G. “asking if this ever happened to
them and to come forward.” B.B. didn’t know A.G. at the time. After the
Facebook post, B.B. contacted A.G. and law enforcement.
{¶34} Sharpe’s attorney vigorously cross-examined each witness. The
defense also presented testimony from witnesses which contradicted or called into
question the testimony of the victim witnesses.
{¶35} After our review of the entire trial transcript, particularly the
testimonies of L.R., A.G., and B.B., we conclude that the evidence presented at
trial is not complicated or confusing, and that the state presented the evidence in a
logical manner. The evidence is, in fact, simple and direct. See Sims, at ¶ 43;
(Citations omitted). See also State v. Meeks, 2015-Ohio-1527, ¶ 99 (5th Dist.)
(evidence simple and direct when state “clearly laid out [the offenses] for the jury”
and “[e]ach victim testified separately”); State v. Moshos, supra, at ¶ 82 (evidence
simple and direct when each victim “provided a detailed description of her own
unwanted sexual encounters with appellant”); State v. Kissberth,
2005-Ohio-3059,
¶ 62 (2nd Dist.) (evidence simple and direct when witnesses “testified only to their
own experiences with” the defendant); State v. Ahmed,
2005-Ohio-2999, ¶ 26 (8th
Dist.) (evidence simple and direct when “[e]ach victim testified as to the specific
facts giving rise to her separate charges against” the defendant).
Hocking App. No. 23CA3 19
{¶36} Finally, courts have determined that any prejudice that may result
from the joinder of offenses is minimized when a trial court cautions a jury before
deliberations to consider each count, and the evidence applicable to each count,
separately, and to state its findings as to each count uninfluenced by its verdict on
any other counts. See Sims, at ¶ 48; State v. Freeland, supra, at ¶ 16. Here, the
trial transcript reflects that the trial court instructed the jury to consider each count,
and the evidence applicable to each count, separately. Specifically, the trial court
instructed:
The allegations of three individuals have been combined into one
trial. However, you are to consider each of the allegations
individually and unaffected by the fact that there are other
individuals making allegations against the defendant. The State
must prove each of the allegations beyond a reasonable doubt
unaffected by whether there is more than one individual making
allegations against the defendant. The charges set forth in each
count in the indictment constitute a separate and distinct matter.
You must consider each count and the evidence applicable to
each count separately, and you must state your findings as to each
count uninfluenced by your verdict as to any other count. The
defendant may be found guilty or not guilty of any one or all of
the offenses charged.
“[A] jury is presumed to have followed the trial court's instructions,” and there is
nothing in the record to indicate the jury failed to do so in this case. See Moshos,
supra, at ¶ 88 (citations omitted), State v. Williams, 73 Ohio St.3d at 159, (1995).
{¶37} Similarly, we find nothing in the record to suggest that the jury could
not separate the evidence with respect to each offense, or that the jury could have
Hocking App. No. 23CA3 20
been confused. For example, in this case, the jury sifted through all the evidence
and found Sharpe not guilty of count eight, a rape allegation involving B.B. See
Sims at ¶ 44; State v. Evans,
2012-Ohio-1562, ¶ 38 (4th Dist.) (“Because the jury
acquitted [the defendant] of one of the charges, we cannot find that the jury was
confused by the evidence, overwhelmed by the number of counts, or influenced by
the cumulative effect of the joinder.”). In our view, the circumstances suggest that
the jury carefully evaluated the testimony of the witnesses and separately
deliberated each allegation.
{¶38} Based on the foregoing, we do not believe that the trial court
committed plain error by overruling Sharpe’s motion to separate the trials. Here, a
review of the record reveals that the evidence is simple and direct, and the jury
could and did segregate the evidence when it determined whether the State had
established, beyond a reasonable doubt, that Sharpe committed the charged
offenses. As observed earlier in this opinion, if the State can meet the joinder
“simple and direct evidence” test, it need not meet the stricter “other acts” test.
Moshos, supra, at ¶ 80, citing State v. Johnson, 88 Ohio St. 3d 95, 109 (2000).
Accordingly, we find no merit to Sharpe’s first assignment of error and it is hereby
overruled.
{¶39} Sharpe’s second assignment of error challenges the trial court’s
decision granting the State’s motion to amend count six. Days prior to trial, when
Hocking App. No. 23CA3 21
Sharpe was still facing a 14-count indictment, the State moved to amend the
indictment as to count five and renumber the offenses as several were being
dismissed. Sharpe did not object and the trial court granted the amendment. In
doing so, renumbered count six thereafter charged Gross Sexual Imposition (GSI)
as a felony of the third degree, R.C. 2907.05(A)(4), which read as follows:
William Mickey Sharpe, on or about the 1st day of January, 2014
through the thirty-first day of December, 2015, in the County of
Hocking aforesaid did have sexual contact with _____, not his
spouse, when _____was less than thirteen years of age, whether
or not the offender knew the age of that person in violation of
Ohio Revised Code 2907.05(A)(4)/2907.05(C)(2), a felony of
the third degree. (Emphases added.)
{¶40} Thereafter, on the morning of trial, the prosecutor brought it to the
court’s attention she had filed a motion to amend count six. The prosecutor
represented that when the testimony regarding the count was presented to the grand
jury, it was presented as “gross sexual imposition, a felony of the fourth degree.”
However, the language in current count six contained the “less than thirteen”
language, making it a felony of the third degree. The prosecutor explained that she
was moving to amend the count from GSI, R.C. 2907.05(A)(4) to R.C.
2907.05(A)(1), which removed the “less than thirteen” language and changed the
conduct to GSI by “force,” a felony of the fourth degree. The prosecutor argued
that amendment would not change the nature of the offense, only the level of
felony, which was a benefit to the defendant. Furthermore, the prosecutor argued
Hocking App. No. 23CA3 22
it was no surprise to the defense as the victim’s date of birth had been known the
entire time.
{¶41} Sharpe’s counsel objected to the amendment, arguing that the
amendment would indeed change the nature of the offense because the grand jury
did not hear and decide evidence of “force or threat of force.” The trial court
granted the amendment, stating that it would allow the amendment because all
parties were aware of the victim’s age during the proceedings, the amendment
would be to a lesser offense in the same category as gross sexual imposition, and
Sharpe was not prejudiced by the amendment.
STANDARD OF REVIEW - AMENDMENT OF COUNT
{¶42} A trial court commits reversible error when it permits an amendment
that changes the name or identity of the offense charged, regardless of whether the
defendant suffered prejudice. State v. Wilson, 2019-Ohio-2754, ¶13 (4th Dist.);
State v. Smith,
2004-Ohio-4786, at ¶ 10 (10th Dist.). “Whether an amendment
changes the name or identity of the crime charged is a matter of law.” State v.
Cooper,
1998 WL 340700, *1 (4th Dist. 1998), citing State v. Jackson,
78 Ohio
App.3d 479,
605 N.E.2d 426 (2nd Dist. 1992). Such a question necessitates a de
novo standard of review. State v. Kittle,
2005-Ohio-3198, at ¶ 12 (4th Dist.).
{¶43} However, if the amendment does not change the name or identity of
the crime charged, then we apply an abuse of discretion standard to review the trial
Hocking App. No. 23CA3 23
court's decision to allow a Crim.R. 7(D) amendment. Id. at ¶ 13, citing Smith at ¶
10; State v. Craft,
2009-Ohio-675, ¶ 27 (12th Dist.). As noted above, an abuse of
discretion implies a decision that is unreasonable, arbitrary or unconscionable.
See, e.g., Blakemore v. Blakemore,
5 Ohio St.3d 217, 219 (1983).
LEGAL ANALYSIS
{¶44} “ ‘The purposes of an indictment are to give an accused adequate
notice of the charge, and enable an accused to protect himself or herself from any
future prosecutions for the same incident.’ ” State v. Pepka, 2010-Ohio-1045, ¶ 20,
quoting State v. Buehner,
2006-Ohio-4707, ¶ 7. Crim.R. 7(D) provides that a court
may amend an indictment “at any time before, during, or after a trial …,
provided no change is made in the name or identity of the crime charged.” State v.
Whitehead,
2022-Ohio-479, ¶73 (4th Dist.). A case in which the crime remains the
same, even after amendment, does not violate Crim.R. 7(D). State v. Craft, 2009-
Ohio-675, at ¶ 23 (12th Dist.), citing State v. Davis,
2008-Ohio-4537, at ¶ 5,
(Crim.R. 7(D) does not permit amendment of an indictment where amendment
significantly increased the quantity of drugs alleged to have been sold and altered
potential penalties as well). In Sharpe’s case, it is obvious that the name of the
offense remained the same, GSI. The issue presented is whether the identity of the
offense changed.
Hocking App. No. 23CA3 24
{¶45} To determine whether the “identity” of a crime has changed, the court
must examine whether the “penalty or degree” changed. Craft, supra, at ¶ 24,
citing Davis, supra, at syllabus. In this case, the degree of felony changed so
technically, as a matter of law, the identity of the crime has changed. However, the
change as to the degree of GSI is from a third to a fourth degree felony, which, as
the State emphasizes, constitutes a benefit to Sharpe.
{¶46} Sharpe points out that “force or threat of force” is an essential
element. It is well-established that the element of force or threat of force must be
proven beyond a reasonable doubt. State v. Ward, 1995 WL 328164, at *6; See,
e.g., State v. Powell,
49 Ohio St.3d 255 (1990); State v. Dobies,
1992 WL 387356,
(11th Dist.). In Dobies, the appellate court found that the omission of the element
of force from the indictment prevented appellant from being informed of an
essential element of the charge against him.3 Yet, “[a]s long as the state complies
with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the
original indictment omits an essential element of the offense with which the
defendant is charged.”
Pepka, supra, at ¶ 15 (On State’s appeal asserting that an
indictment charging a defendant with endangering children in violation of R.C.
2912.22(A) is sufficient regardless of whether indictment indicates that victim
3
Dobies, however, is not on point. There the 2nd Dist. Appellate court found error for the trial court to permit a
special interrogatory on the element of force to go to the jury when force was not alleged in the indictment.
Hocking App. No. 23CA3 25
suffered serious physical harm, Supreme Court found that original indictment was
sufficient to charge appellee with third-degree felony endangering; in addition,
Pepka’s counsel conceded at oral argument that “We all know that the actual facts
necessary to indict for the third-degree felony were present and probably were at
the grand jury”). Id. at ¶ 23.
{¶47} Our research has led us to the Supreme Court of Ohio’s decision in
State v. Rohrbaugh, 2010-Ohio-3286. There, the Supreme Court of Ohio
distinguished its decision in Davis, supra, noting:
We found plain error when a trial court amended an indictment
to allow a defendant to be prosecuted for a higher degree of a
crime. In that case, there was a miscarriage of justice because
the prosecution was attempting to “increase the penalty or degree
of the offense” charged. Unlike the defendant in Davis,
Rohrbaugh was not prejudiced by the amendment to the
indictment; to the contrary, he gained a benefit.
Id. at ¶ 9. Rohrbaugh is also not on point. The facts of that case demonstrated
Rohrbaugh pled guilty and thus was not prejudiced by the amendment that he had
bargained for.
{¶48} Based on our review, it appears to us that the grand jury indeed heard
evidence pertaining to force or threat of force prior to returning the original
indictment against Sharpe. Our review of the record demonstrates that the
allegations pertaining to A.G. in the original indictment were counts nine, ten, and
eleven. When the trial court allowed the first requested amendment, which also
Hocking App. No. 23CA3 26
dismissed original counts four, five, six, seven, and eight, the remaining counts
naming A.G. were renumbered as counts four, five, and six. Count four became
rape by force or threat of force, R.C. 2907.02(A)(2), and count five became
attempted rape, by force or threat of force, R.C. 2923.02/2907.02(A)(2). In State v.
Torres, 2023-Ohio-1406 (4th Dist.), this court noted that both R.C. 2907.02(A)(2)
Rape and R.C. 2907.05(A)(1) GSI require the state to prove that a victim submitted
“by force or threat of force.” Id. at ¶ 47. GSI is a lesser included offense of rape.
See State v. Smith,
2022-Ohio-269. Given that count six GSI pertains to the same
alleged victim, A.G, and also pertains to the same time period, January 1, 2015
through December 31, 2016, it appears that the grand jury heard evidence
pertaining to force or threat of force and chose to indict accordingly.
{¶49} In this matter, we cannot find that the trial court abused its discretion
and/or committed reversible error in allowing the amendment of count six. Sharpe
was fully aware of the charge and was able to defend himself. The jury would
have heard evidence of force. Sharpe was at all times aware of A.G.’s age.
Furthermore, as in Rohrbaugh, Sharpe is not prejudiced by the amendment to
count six and actually gained a benefit.
{¶50} Based on the foregoing, we find no merit to Sharpe’s second
assignment of error. Accordingly, it is hereby overruled.
STANDARD OF REVIEW - SUFFICIENCY OF THE EVIDENCE
Hocking App. No. 23CA3 27
{¶51} A claim of insufficient evidence is reviewed primarily upon the
adequacy of the evidence; that is, whether the evidence, if believed, reasonably
could support a finding of guilt beyond a reasonable doubt. See State v.
Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997). The standard of
review is whether, after viewing the evidence and inferences reasonably drawn
therefrom in the light most favorable to the prosecution, any rational trier of fact
could have found all the essential elements of the offense proven beyond a
reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319,
99 S.Ct. 2781
(1979); State v. Jenks,
61 Ohio St.3d 259, 273,
574 N.E.2d 492 (1991). An
appellate court does not weigh the evidence but simply determines whether the
evidence, if believed, is adequate to support a conviction; sufficiency does not test
the rational persuasiveness of the state's case, but merely its legal adequacy. State
v. Novak, 4th Dist. Gallia No. 16CA4,
2017-Ohio-455, at ¶ 13; State v. Koon, 4th
Dist. Hocking No. 15CA17,
2016-Ohio-416, ¶ 17. A reviewing court will not
overturn a conviction on a sufficiency-of-the-evidence claim unless reasonable
minds could not reach the conclusion that the trier of fact did. State v. Tibbetts,
92
Ohio St.3d 146, 162,
749 N.E.2d 226 (2001); State v. Treesh,
90 Ohio St.3d 460,
484,
739 N.E.2d 749 (2001).
LEGAL ANALYSIS
Hocking App. No. 23CA3 28
{¶52} Here, Sharpe contends that the State failed to prove the use of force as
relates to amended count six of the indictment, GSI. Sharpe’s argument may be
summarized as follows:
A.G. testified about an incident that occurred in Sharpe’s
truck after he picked her up. She makes no allegations nor
indicates anything that a reasonable jury could determine
was force during the ride in the truck. When asked how
she became closer to Sharpe, she answered that he asked
and she moved over. She did not resist and only sat still.
Sharpe concludes that this evidence is not sufficient to support a conviction for
GSI as a reasonable person could not have determined that Sharpe used force.
While we do not disagree with Sharpe’s characterization of the testimony, we
disagree with his conclusion that sufficient evidence of force was not proven.
{¶53} At Sharpe’s trial, the court instructed the jury on the legal definitions
of acting purposely, sexual contact, and force, as required to support GSI
convictions. R.C. 2907.05(A)(1) requires the victim's submission to sexual contact
to be obtained by force or threat of force. Davis, 2024-Ohio-1504, ¶48 (5th Dist.).
“Force” is defined as “any violence, compulsion, or constraint physically exerted
by any means upon or against a person or thing.” R.C. 2901.01(A)(1).
Davis,
supra.
{¶54 } After viewing the evidence in a light most favorable to the
prosecution, we conclude that any rational trier of fact could have found the
Hocking App. No. 23CA3 29
essential element of force proven beyond a reasonable doubt.4 In this case,
because of A.G.’s parents’ friendship with Sharpe, A.G. saw Sharpe about once a
week and sometimes stayed as his house the entire weekend. She actually felt like
Sharpe took on a “parenting role.” A.G.’s parents allowed Sharpe to have control
over A.G.’s medications. Sometimes, A.G. testified, she would be sleeping and
would wake up with Sharpe’s “hand down [her] pants.” A.G. admitted during the
encounter in the truck, she moved to the middle of the truck because “he had me
to.” However, A.G. also testified that she “tried to turn away” from his kiss “but
he was a lot stronger than me and he held me there…And then after he kissed me
he put his hand down my pants…and then he proceeded to finger me.”
{¶55} Although A.G.’s testimony suggests Sharpe did not use a great
amount of force, “ ‘[t]he word “any” specified in the definition of “force”
recognizes that various crimes upon various victims require different degrees and
manners of force.’ ” See State v. Howard, 2022-Ohio-2347, ¶15 (4th Dist.),
quoting State v. Umphries, 4th Dist. Ross No. 11CA3301,
2012-Ohio-4711, ¶ 17.
In State v. Eskridge,
38 Ohio St.3d 56, 58-59 (1988), referenced above, the
Supreme Court of Ohio found the amount of force required to meet this
4
We are also mindful that the testimony of one witness, if believed by the factfinder, is enough to support a
conviction. See State v. Davis,
2024-Ohio-1504, ¶47 (5th Dist.). The weight to be given the evidence introduced at
trial and the credibility of the witnesses are primarily for the trier of fact to determine.
Id., citing State v. Thomas,
70
Ohio St.2d 79, syllabus, (1982).
Hocking App. No. 23CA3 30
requirement varies depending on the age of the victim and the relationship between
the victim and the defendant. Id. at ¶ 58. Davis, ¶ 49. “ Ultimately, [in Eskridge,]
the Ohio Supreme Court recognized that coercion is inherent in the parent-child
relationship and stated that ‘force need not be overt and physically brutal but can
be subtle and psychological.’ ” Davis, at ¶ 50, quoting
Eskridge, supra.
{¶56} At the time of the encounter, Sharpe was an adult and A.G. was one
week away from her 16th birthday. A.G.’s testimony reasonably leads to the
inference that Sharpe was a trusted family friend and A.G. viewed Sharpe as
having authority over her. When questioned as to why she didn’t tell anyone what
happened that night in the truck when the sexual contact and later sexual conduct
occurred, A.G. responded she “just wasn’t sure what to do.” Given these
circumstances, any rational trier of fact could have found that Sharpe purposely
compelled A.G. to submit by force or threat of force.
{¶57} For the foregoing reasons, we conclude that the state presented
sufficient evidence of the element of force to support a conviction for GSI. The
third assignment of error is also meritless. Accordingly, we overrule the third
assignment of error.
{¶58} Having found no merit to any of Appellant’s assignments of error, the
judgment of the trial court is hereby affirmed.
JUDGMENT AFFIRMED.
Hocking App. No. 23CA3 31
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Hocking County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed 60 days upon
the bail previously posted. The purpose of a continued stay is to allow Appellant to
file with the Supreme Court of Ohio an application for a stay during the pendency
of proceedings in that court. If a stay is continued by this entry, it will terminate at
the earlier of the expiration of the 60-day period, or the failure of the Appellant to
file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration
of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. and Wilkin, J., concur in Judgment and Opinion.
For the Court,
______________________________
Hocking App. No. 23CA3 32
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
