In Re Johnson
Defendant-appellant, juvenile Kenyata Johnson, appeals from his adjudication of delinquency by the Cuyahoga County Court of Common Pleas, Juvenile Division. Testimony before the trial court revealed that on June 17, 1987 appellant entered the home of juvenile Lady Christian, after the two had conversed on the front porch of the latter, wherein appellant allegedly forced himself upon her and engaged in the act of sexual intercourse. Christian received medical treatment on the same day, and reported the incident to police while at the hospital.
Appellant was subsequently charged with aggravated burglary and rape, in violation of
I
In his first assignment of error, appellant contends:
“The trial court committed prejudicial error by denying appellant’s timely request for discovery of а statement given by the complaining witness to law enforcement officers.”
Appellant argues that the prosecutor failed to provide appellant with a summary of the victim’s oral statement to the police on the date of the incident, in contravention of
“(A) Request for discovery
“Upon written rеquest, each party of whom discovery is requested shall forthwith produce for inspection, copying or photographing the following information, documents and material in his custody, control or possession:
“(1) The names and last known addresses of each witness to the occurrenсe which forms the basis of the charge or defense;
“(2) Copies of any written statements made by any party or witness;'
“(3) Transcriptions, recordings and summaries of any oral statements of any party or witness, except the work product of counsel;
“(4) Any scientific or other reports which a party intends to introduce at the hearing, or which pertain to physical evidence which a party intends to introduce;
“(5) Photographs and any physical evidence which a party intends to introduce at the hearing.” (Emphasis added.)
There is no question but that a narrative of the complаining witness was taken by police on the date of the occurrence. On August 3, 1987, appellant filed a
Appellant still had not been provided discovery of the complaining witness’ narrative when, on November 12, 1987, appellant filed yet another motion requesting the court to order the prosecutor to cоmply. The prosecutor was so ordered at a hearing on November 18, 1987. Appellant’s counsel never received the requested materials, and objected once more at trial. The trial court this time refused to order production, reasoning that the narrative was not discoverable since it was not signed by the complaining witness and was not taken verbatim.
“If at any time during the course of the proceedings it is brought to the attention of the court that a person has failed to comply with an order issued pursuant to this rule, the court may grant a continuance, prohibit the person from introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.”
There is nothing in
Under the circumstances of this case, where only the complaining witness was presented by the prosecution to testify as to the actual occurrence, the right of appellant to impeach such witness’ credibility within the bounds of the law must be carefully guarded.
Although there is no provision in the Juvenile Rules for an in camera inspеction of a witness’ statement, the gist of appellant’s first assignment of error is well-taken. The trial court erred in failing to compel the prosecutor to comply with appellant’s timely and licit requests for discovery.
We find prejudicial abuse of discretion in the trial court’s actions in this rеgard. Accordingly appellant’s first assignment of error is well-taken.
II
In his second assignment of error, the appellant maintains:
“The trial court committed prejudicial error by denying appellant’s motion for psychiatric examination of the complaining witness.”
Appellant relies on
State v. Zeh
(1987),
“When the mental condition of the victim-potential witness is a contested, essential element of the crime charged, the defense may move the court thаt the state be barred from utilizing evidence of such mental condition obtained in a clinical interview of the witness prior to trial, unless such witnessvoluntarily agrees to a court-appointed, independent examination with the results being made available to both sides.”
The record reveаls that the prosecution did not utilize clinical evidence of Christian’s mental state; indeed, the record does not reveal that Christian underwent any such interview. More importantly, Christian’s mental condition was not a contested, essential element in the instant case. That is, the mental condition of the victim is not an essential element of rape under the circumstances presented in the record. It would appear that, as for rape cases, the holding in
Zeh’s
case could apply only where the defendant is prosecuted pursuant to
The trial court did not err in denying appellant’s motion for psychiatric examination. Appellant’s second assignment of error is not well-taken.
Ill
Appellant argues in his third assignment of error that:
“The trial court committed prejudicial еrror by allowing the prosecuting attorney to impeach appellant with evidence of appellant’s prior adjudication of delinquency.”
Appellant posits that his April 27, 1987 adjudication of delinquency for the rape of an eight-year-old boy was inadmissible. Therefore, aрpellant argues, the prosecutor’s cross-examination of appellant concerning that incident, purportedly to impeach appellant’s credibility, resulted in prejudicial error.
“Juvenile adjudications. Evidence of juvenile adjudications is not admissible except аs provided by statute enacted by the General Assembly.”
The General Assembly enacted
“ * * * The disposition of a child under the judgment rendered or any evidence given in court is not admissible as evidence against the child in any other case or proceeding in any other court, except that the judgment rendered and the disрosition of the child may be considered by any court only as to the matter of sentence or to the granting of probation. * * * ”
Since this was neither a sentencing nor a probation proceeding, the general rule of
Further, the аppellant was not tried before a jury of lay persons, and the trial court indicated in its sentencing that, for purposes of the trial, the court had “put out of its mind” appellant’s prior adjudication of delinquency.
While the admission of the appellant’s prior rape was techniсally improper, appellant has failed to demonstrate how he was prejudiced thereby. We find that this error on the part of the trial court in no way contributed to appellant’s adjudication of delinquency for the rape of Ms. Christian and, therefore, the error was harmless bеyond a reasonable doubt. See
State v. Bayless
(1976),
IV
Appellant’s fourth and fifth assignments of error involve common issues of law and fact and will be considered together. Appellant complains:
“The trial court committed prejudicial error by prevеnting appellant from introducing evidence concerning statements made by the complaining witness to a third party concerning her desire to have sexual relations with appellant.”
“The trial court deprived appellant of Due Process of law and the right to complusory [sic ] process by preventing appellant from introducing evidence concerning statements made by the complaining witness to a third party concerning her desire to have sexual relations with appellant. Sixth and Fourteenth Amendments to the Constitution of the United States; Article I, Section 10 of the Constitution of the State of Ohio.”
Appellant believes that his proffer of the testimony of Shanelle Sheppard, an acquaintance of both appellant and the complaining witness, regarding an assertion that Christian was physically attracted to, and sexually desirous of aрpellant was improperly excluded. We agree.
The prosecution argues that this testimony is precluded by Ohio’s “rape shield” law,
“Sexual activity” is defined at
Obviously, the “desires” of an alleged victim are not included within the definitions outlined above. Thus, the proposed testimony was not rendered inadmissible by operation of the “rape shield” law.
Appellant contends that the prоffered testimony should have been admitted since it was relevant evidence. All relevant evidence is admissible, except as otherwise provided by law.
In the instant case, the primary defense was consent. That is, consent was an issue “of consequence to the determination of the action.” We find that the proposed testimony of Shanelle Sheppard should have been admitted since it tended to establish that Christian consented to the act, thus negating the essential element of “force.”
Such evidence is relevant, and is not otherwise rendered inadmissible by law. The trial court erred in excluding such evidence, under the circumstances of this case. For these reasons, appellant’s fourth and fifth assignments of error are well-taken.
V
In his sixth and final assignment of error, appellant maintains:
“The trial court committed prejudicial error by overruling appellant’s objectiоns to the testimony of Joseph Serowik.”
Joseph Serowik is employed in the forensic science laboratory of the Cleveland Police Department. He utilized what is known as a clinical “sex crimes kit” on the date of the occurrence. Appellant complains that Serоwik should not have been permitted to testify since the prosecutor did not supply the test results to appellant’s counsel during discovery.
In the instant case, the trial court deemed it just under the circumstances to dеny the prosecutor from introducing the test results into evidence as an exhibit, and limited Serowik’s testimony to matters within his personal knowledge. Although Serowik’s statement that one of the test results indicates that “semanial [sic] fluids may be present” may have been improperly admitted since it was basеd on mere possibility,
Shumaker v. Oliver B. Cannon & Sons, Inc.
(1986),
We do not feel that the trial court’s order amounted to an abuse of disсretion. Any error was harmless beyond a reasonable doubt, and in no way contributed to appellant’s adjudication of delinquency. Appellant’s sixth assignment of error is not well-taken.
The judgment of the trial court is reversed and the cause is remanded for further proceedings according to law and not inconsistent with this decision.
Judgment reversed and cause remanded.