2021 Ohio 2203
Ohio Ct. App.2021Background
- T.S. was convicted after a 2010 jury trial of multiple counts of rape, sexual battery, and gross sexual imposition against his then-nine-year-old daughter (E.J.), based primarily on E.J.'s trial testimony, a recorded statement T.S. gave to detectives, and a CAC forensic interview; several convictions became consecutive life terms.
- On direct appeal T.S. unsuccessfully argued his confession should have been suppressed; the court found he was not in custody and statements were voluntary.
- In July 2014 E.J. executed a sworn statement recanting her trial testimony, saying she had fabricated allegations; T.S. later moved for leave to file a Crim.R. 33 motion for a new trial based on that recantation and alleged ineffective assistance of trial counsel.
- At the Crim.R. 33 hearing E.J., now represented by counsel, informed the court she would not testify and would assert her Fifth Amendment privilege if called; the trial court admitted her 2014 deposition but refused to force her on the stand and later denied the new-trial motion.
- The trial court found the recantation not credible (noting E.J. was a minor and unrepresented when she recanted and that her grandmother was present), and concluded independent evidence (T.S.’s recorded admissions, CAC disclosures, forensic evidence) made a different outcome unlikely.
- T.S. appealed, assigning error to (1) the court’s refusal to compel E.J. to testify and (2) denial of the motion for a new trial; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (T.S.) | Held |
|---|---|---|---|
| Whether the trial court erred by quashing the subpoena and preventing E.J. from testifying at the new-trial hearing | Court properly excluded a witness who would only invoke Fifth Amendment; Kirk allows exclusion where witness will not testify | Court failed to personally address E.J. and record her intent to invoke Fifth; exclusion denied compulsory-process and confrontation rights | Affirmed — Kirk permits exclusion of a witness who will solely assert Fifth; court made adequate inquiry via counsel and appointed counsel for E.J. |
| Whether the trial court abused discretion in denying Crim.R. 33 new-trial motion based on E.J.’s recantation and ineffective assistance claims | Recantation not credible; strong independent evidence (recorded confession, CAC disclosures, physical exam findings) means no strong probability of different outcome; ineffective-assistance claim previously rejected on direct appeal | Recantation credible and material under Petro/Calhoun factors; counsel ineffective for not calling T.S. or suppressing confession | Affirmed — court reasonably found recantation not credible after applying Calhoun factors; independent evidence negates strong probability of different result; ineffective-assistance claim barred/previously resolved. |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (1966) (custodial interrogation/Miranda warnings rule)
- Columbus v. Cooper, 49 Ohio St.3d 42 (1990) (compulsory-process clause ordinarily bars excluding a witness who will testify despite Fifth concerns)
- State v. Kirk, 72 Ohio St.3d 564 (1995) (limits Cooper: court may exclude a witness who merely intends to assert the Fifth and will not testify)
- State v. Calhoun, 86 Ohio St.3d 279 (1999) (factors for assessing credibility of affidavits/recantations in postconviction motions)
- State v. Petro, 148 Ohio St. 505 (1947) (standards for newly discovered evidence supporting a new trial)
- State v. Schiebel, 55 Ohio St.3d 71 (1990) (abuse-of-discretion standard for reviewing denial of a new-trial motion)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1982) (abuse-of-discretion definition/standard)