State v. Blankenburg

197 Ohio App.3d 201

966 N.E.2d 958

2012 Ohio 1289

The STATE of Ohio, Appellee,

v.BLANKENBURG, Appellant.

No. CA2010–03–063.

Court of Appeals of Ohio, Twelfth District, Butler County.

Decided March 26, 2012.

Michael T. Gmoser, Butler County Prosecuting Attorney, Donald R. Caster, and Michael A. Oster, for appellee.

Repper, Powers & Pagan, Ltd., and Christopher J. Pagan ; and Fred S. Miller, for appellant.

POWELL, Presiding Judge.

{¶ 1} A Butler County pediatrician convicted of various drug-and sex-related crimes in connection with allegations that he molested three minor patients and provided, for years, money or the means to obtain drugs to two of the same victims now appeals some of his convictions. Mark E. Blankenburg argues that the trial court erred when it refused to divide certain counts of his indictment into separate counts, incorrectly permitted the indictment to be amended at trial, and improperly admitted evidence of other acts that he had committed. We affirm the convictions, finding none of the arguments well taken.

{¶ 2} A multiple-count indictment was filed against Blankenburg in Butler County Common Pleas Court, and the matter went to trial in 2009. Some charges were tried to a jury, and others were tried to the bench.

{¶ 3} Blankenburg was found guilty of four counts of corruption of a minor, one count of aggravated trafficking in drugs, four counts of trafficking in drugs, one count of money laundering, six counts of gross sexual imposition, three counts of compelling prostitution or complicity thereto, and three counts of pandering sexually oriented matter involving a minor.

{¶ 4} After sentencing, Blankenburg instituted this appeal, raising seven assignments of error for our review.

{¶ 5} Assignment of Error No. 1:

{¶ 6} "Blankenburg's constitutional rights were violated by a duplicitous indictment and by duplicitous charging."

{¶ 7} Under this assignment of error, Blankenburg argues that "[m]ultiple acts of sexual misconduct were conflated into single counts" and that at trial, the state "introduced evidence of multiple acts of sexual misconduct to prove single counts. This constitutes duplicity, and violates Crim. R 8(A), the Sixth Amendment right to notice of the charge, the Fifth Amendment right to avoid double jeopardy, the Article I, § 5 right to a unanimous jury in a criminal case, and the Article I, § 10 right to have a grand jury determine a criminal charge."

{¶ 8} According to Black's Law Dictionary, in criminal procedure, "duplicity" "takes the form of joining two or more offenses in the same count of an indictment; also termed double pleading." Id . (8th Ed.2004) 541. "Duplicitous," as applicable here, is defined as "alleging two or more matters in one plea." Id .; see United States v. Murray, 618 F.2d 892, 896 (2d Cir.1980) (an indictment is duplicitous if it joins two or more distinct crimes in a single count).

{¶ 9} Blankenburg asked the trial court to address his duplicity arguments on numerous counts of the indictment prior to trial. More than one hearing was devoted at least partially to a discussion of duplicity, specifically as it pertained to certain drug counts. The trial court denied Blankenburg's motion to dismiss the counts or to split individual counts into separate counts.

{¶ 10} Under this assignment of error, Blankenburg relies on the bill of particulars to identify the alleged victim of a specific count of the indictment that he is challenging. Blankenburg asserts that the following counts involved duplicitous charging or a duplicitous indictment or both: Counts 37 through 41 (gross sexual imposition against victim B.B.), Count 15 (gross sexual imposition against victim M.K.), Count 16 (corruption of a minor, victim M.K.), and Counts 17 and 18 (compelling prostitution, victim M.K.).

{¶ 11} For B.B., Count 37 alleges that Blankenburg committed the offense of gross sexual imposition as an ongoing and continuing course of conduct during a one-year period from April 18, 1993, through April 17, 1994, when B.B. was eight years old, and each successive count (Counts 38 through 41) involves a one-year period for the following year, which reportedly corresponds to the year in which this particular victim, B.B., would have been 9, 10, between 10 and 11, and 12 years old, respectively.

{¶ 12} Blankenburg argues that Counts 37 through 41 allege multiple acts for each count of gross sexual imposition and that it constituted duplicitous charging when B.B. said that Blankenburg fondled B.B.'s genitals 30 to 40 times at Blankenburg's medical office beginning at age eight or nine.

{¶ 13} As to M.K., Count 15 of the indictment and bill of particulars alleged that Blankenburg committed gross sexual imposition by fondling M.K.'s genitals as an ongoing course of conduct from May 1, 1990, through April 30, 1993; committed the offense of corruption of a minor as an ongoing course of conduct for performing fellatio on M.K. when the victim was 14 to 15 years old for Count 16; and committed the offense of compelling prostitution as an ongoing course of conduct when he paid money to M.K. to induce or procure sexual activity (fellatio) with M.K. for hire from May 1, 1994, through June 30, 1996, for Count 17 and from July 1, 1996, through April 30, 1998, for Count 18.

{¶ 14} An indictment is sufficient if it (1) contains the elements of the charged offense, (2) gives the defendant adequate notice of the charges, and (3) protects the defendant against double jeopardy. Hamling v. United States, 418 U.S. 87, 117–118, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

{¶ 15} R.C. 2941.03(E) provides that an indictment is sufficient if it can be understood from the indictment "that the offense was committed at some time prior to the time of finding of the indictment." Each count of the indictment must contain, in substance, "a statement that the accused has committed some public offense therein specified." R.C. 2941.05.

{¶ 16} R.C. 2941.04 states that an indictment "may charge two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more indictments or informations are filed in such cases the court may order them to be consolidated."

{¶ 17} An indictment is valid even if it states the time imperfectly or omits the time if the time is not an essential element of the offense. R.C. 2941.08(B) and (C). Other defects in the indictment do not render it invalid if they "do not tend to prejudice the substantial rights of the defendant upon the merits." R.C. 2941.08(K).

{¶ 18} Crim.R. 8(A) provides: "Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or 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."

{¶ 19} R.C. 2941.28 states:

No indictment or information shall be quashed, set aside, or dismissed for any of the following defects:

(A) That there is a misjoinder of the parties accused;

(B) That there is a misjoinder of the offenses charged in the indictment or information, or duplicity therein;

(C) That any uncertainty exists therein.

If the court is of the opinion that either defect referred to in division (A) or (B) of this section exists in any indictment or information, it may sever such indictment or information into separate indictments or informations or into separate counts.

If the court is of the opinion that the defect referred to in division (C) of this section exists in the indictment or information, it may order the indictment or information amended to cure such defect, provided no change is made in the name or identity of the crime charged.

{¶ 20} We have thoroughly reviewed the record with reference to Blankenburg's specific arguments and found none of them well taken. First, this case involves a continuing course of conduct charged as separate offenses differentiated by certain time frames. As noted below, Ohio courts have permitted course-of-conduct prosecutions in cases involving multiple acts of sexual abuse perpetrated against child victims. The counts at issue here involve allegations of conduct toward victims who were children or teenagers when the alleged acts occurred several years ago.

{¶ 21} When crimes alleged in the indictment constitute sexual offenses against children, they need not state with specificity the dates of the alleged abuse, so long as the state establishes that the offense was committed within the time frame alleged. State v. Wagers, 12th Dist. No. CA2009–06–018, 2010-Ohio-2311, 2010 WL 2026779, ¶ 17–18.

{¶ 22} We do not share the concerns expressed about jury unanimity. If an indictment alleges that a child victim was molested intermittently within a specified time period even though the exact date of each molestation is unknown, the jury must either believe or disbelieve the victim's testimony that the pattern of conduct occurred. State v. Ambrosia, 67 Ohio App.3d 552, 587 N.E.2d 892 (6th Dist.1990).

{¶ 23} While some of the separate acts might have been separately charged, the possibility of but one conviction rather than many was to the accused's advantage. See State v. Nebe, 26 Ohio Law Abs. 581, 1937 WL 2412 (8th Dist.1937).

{¶ 24} In State v. Chaney, 3d Dist. No. 13–07–30, 2008-Ohio-3507, 2008 WL 2718509, the Third Appellate District upheld a conviction for two rape counts and one count of gross sexual imposition, where it was alleged that the accused engaged in a course of conduct beginning in September 1995 through September 2002 and the victim testified that she was touched inappropriately when she was a minor every day except weekends when her mother wasn't home, and after they moved,...