holding that the trial court erred by failing to sever counts where the evidence of the offenses failed to demonstrate a modus operandi, and where the 8 OHIO FIRST DISTRICT COURT OF APPEALS likelihood that the jury would misuse the evidence was substantial
How later courts described this case
- holding that the trial court erred by failing to sever counts where the evidence of the offenses failed to demonstrate a modus operandi, and where the 8 OHIO FIRST DISTRICT COURT OF APPEALS likelihood that the jury would misuse the evidence was substantial
- finding cumulative error where, in case involving six eyewitnesses, trial court excluded expert testimony regarding eyewitness identification and allowed defendant to be tried on numerous charges in one trial, and evidence of guilt was not overwhelming
- providing, “if the evidence of each offense is direct and uncomplicated, it is presumed that the trier of fact is capable of segregating the proof and not cumulating evidence of the various offenses being tried”
- finding cumulative error “where the evidence of guilt for each incident was not overwhelming”
Written by the judges who cited it.
The opinion
Marianna Brown Bettman, Judge,
concurring separately.
While I concur in Judge Painter’s opinion and in the judgment, my views on joinder in this case lie somewhere between that of my two colleagues.
In both
State v.
Lott
59
and again in
State v.
Mills,
60
the Ohio Supreme Court held, although not in the syllabus, that the state could use either the “other acts” test or the “simple and distinct” test to defeat a defense claim of prejudicial joinder. My problem in this case is that when all the claims and all the counts are combined, I do not think that the argument that joinder is prejudicial can be overcome. However, I am equally convinced that under either the “simple and distinct” test or the admittedly stricter “other-acts” test, some combination of these claims and counts can be tried together. This is what must be sorted out on remand. The decision as to which of the counts can properly be joined will depend on the analysis used.
59
. (1990), 51 Ohio St.3d 160 , 555 N.E.2d 293 , certiorari denied (1990), 498 U.S. 1017 , 111 S.Ct. 591 , 112 L.Ed.2d 596 .
60
. (1992), 62 Ohio St.3d 357 , 582 N.E.2d 972 , certiorari denied (1992), 505 U.S. 1227 , 112 S.Ct. 3048 , 120 L.Ed.2d 915 .