IN RE M.M.
No. 2012-0250
Supreme Court of Ohio
April 17, 2013
[Cite as In re M.M., 135 Ohio St.3d 375, 2013-Ohio-1495.]
{¶ 1} This appeal presents an important issue of public interest, that is, the scope of the state‘s right to appeal in juvenile cases. For the reasons explained, we hold that in juvenile cases, the state is not authorized to pursue a discretionary appeal when it fails to take an appeal as of right in accordance with the applicable rules of procedure.
{¶ 2} The Eighth District reached the correct result in this case, but it did so by relying on a dissent in State v. Arnett, 22 Ohio St.3d 186, 489 N.E.2d 284 (1986). In contrast, appellant, the state of Ohio, relies on our majority opinion in Arnett, as well as our later decision in State v. Bistricky, 51 Ohio St.3d 157, 555 N.E.2d 644 (1990), which cited Arnett with approval. Id. at 159. This opinion will affirm the judgment of the court of appeals, limit Arnett to its facts, and explain the scope of Bistricky, thereby providing clarity to a somewhat confusing area.
FACTS AND PROCEDURAL HISTORY
The charges
{¶ 3} On September 29, 2009, the state filed seven complaints against appellee, M.M., a juvenile, alleging that he was delinquent for engaging in conduct that, if
Pretrial proceedings
{¶ 4} On April 22, 2010, the state filed a notice of its intention to introduce statements that M.J. and A.R. made to Lauren Krol, a social worker for the Cleveland Police Department Sex Crimes and Child Abuse Unit. The state argued that the statements are admissible under
{¶ 5} On October 28, 2010, a magistrate held an evidentiary hearing on a motion in limine filed by M.M., which sought exclusion of all out-of-court statements made by any of the alleged victims.
{¶ 6} The magistrate determined that M.J., A.R., and K.R. were competent to testify at trial but that C.R., who was two years old at the time of the alleged conduct, was not competent to testify. The magistrate further concluded that because M.J. and A.R. were competent to testify at trial,
{¶ 7} The state did not move to set aside the magistrate‘s decision even though it had the right to do so no later than ten days after the adverse order was issued.
The trial
{¶ 8} At trial, the state‘s primary witnesses were M.J., A.R., K.R., their mother, S.H.,2 and the social worker, Krol.
{¶ 9} S.H. testified that she was dating M.M.‘s older brother, and from October 2008 to January 2009, she and her children lived with M.M., M.M.‘s older brother, and their mother. In January 2009, S.H., who was pregnant, developed a kidney infection. S.H. testified that while she was lying sick on the kitchen floor in need of medical assistance, M.M.‘s mother accused her of fabricating the pregnancy and illness and “literally walked over [her] body.” As a result, S.H. realized that she was not welcome at the house and that she and her children needed to move out. S.H. left the house by ambulance; however, her children remained. After she was released from the hospital, she went back to the home only to collect her children and her belongings.
{¶ 10} S.H. testified that thereafter, the children disclosed to an adult cousin that M.M. had sexually abused them. The cousin told S.H. and she, in turn, reported the abuse to the police. As a result, in March 2009, Krol contacted S.H. and arranged to interview the children about the allegations.
{¶ 11} Krol is an intake sex-abuse social worker who investigates referrals from the child-abuse hotline, 696-KIDS. She testified that in her professional capacity, she investigates allegations of sexual abuse, makes referrals, ensures the safety of children, and provides services to the children‘s families. In response to a defense objection to a question about what the children said in the interview, the prosecuting attorney argued that
{¶ 12} But the state‘s efforts to elicit coherent testimony from the children about the alleged abuse by M.M. were unavailing. The children‘s answers on the stand were confused and unfocused.
{¶ 13} M.J. testified that M.M. did “inappropriate things” to his sisters and to him, but he could not remember what those things were. A.R. testified that M.M. had requested that she do something that she did not want to do, but she also testified that she did not know how to describe what M.M. had requested that she do. A.R. further testified that she saw M.M. “laying on” M.J., but she was unable to describe what M.M. was doing to him. When asked if she saw anything happen to her sister C.R. while they were living with M.M., K.R. testified that she had, but she was not asked any further questions.
{¶ 14} At the close of the state‘s case, the prosecuting attorney renewed her argument that the children‘s out-of-court statements were admissible under
The appeal
{¶ 15} The state sought leave to file a discretionary appeal, pursuant to
{¶ 16} In so holding, the Eighth District explained that Bistricky permits courts of appeals in cases of acquittal to address substantive issues that are capable of repetition yet evading review. Id. at ¶ 9. But because an adequate interlocutory remedy provided the state with “the means to correct any perceived error before the adjudicatory hearing,” the court of appeals concluded that the evidentiary issues will not escape future review. Id., citing State v. Arnett, 22 Ohio St.3d at 188-191, 489 N.E.2d 284 (Celebrezze, C.J., dissenting).
{¶ 17} We accepted review of the state‘s discretionary appeal. In re M.M., 131 Ohio St.3d 1539, 2012-Ohio-2025, 966 N.E.2d 893.
QUESTION PRESENTED
{¶ 18} The sole proposition of law before us asserts:
The right to file an appeal pursuant to State v. Bistricky, 51 Ohio St.3d 157, 555 N.E.2d 644 (1990), is not waived if the state does not pursue an interlocutory remedy under
Crim.R. 12(K) 4 andJuv.R. 22(F) . The existence of interlocutory remedies does not preclude the state from appealing substantive legal issues involving the suppression or exclusion of evidence pursuant to Bistricky.
{¶ 19} We reject the state‘s proposition because it both lacks statutory support and ignores a governing rule of procedure.
ANALYSIS
{¶ 20} As a threshold issue, we must explain that the state‘s proposition contains a red herring. Contrary to the state‘s framing of the issue, Bistricky cannot and does not answer the question before us, because only a statute, not a decision of this court, can imbue the state with a substantive right to appeal. We will fully explain the proper place for Bistricky, but first we turn our attention to a discussion of the controlling law.
{¶ 21} The Ohio Constitution confers jurisdiction upon the courts of appeals to “review and affirm, modify, or reverse” a lower court‘s judgment or final order.
{¶ 22} In an exercise of that authority, the General Assembly enacted
{¶ 23}
(A) A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case, or any decision of a juvenile court in a delinquency case, which decision grants * * * a motion to suppress evidence * * * and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case or of the juvenile court in a delinquency case.
{¶ 24} The state‘s right to appeal certain decisions as of right originates in the first clause of
{¶ 25} Notably, the right to appeal by leave of court is defined by reference to the right to appeal as a matter of right. First, the General Assembly defined the class of rulings of which the state may, without leave of court, obtain appellate review. This class includes a decision that grants a motion to suppress, as here.
{¶ 26} In the same sentence, the General Assembly provided for discretionary appeals of “any other decision.” Thus,
{¶ 27} We reject the state‘s unsound position, which would result in the state having an option to seek leave to appeal pursuant to
{¶ 28} So, there is no statutory authority—and therefore no authority whatsoever—for a discretionary appeal when the state has the right to appeal without regard to the discretion of the appellate court. Having explained the state‘s substantive rights to an appeal without seeking leave, we turn our attention to the procedure that the state must follow in exercising that right.
Juv.R. 22(F)
{¶ 29} In order to exercise its substantive right to appeal, the state must comply with the relevant rules of procedure. Wallace, 43 Ohio St.2d at 2-3, 330 N.E.2d 697.
{¶ 30} In Wallace, the state filed a criminal complaint against the defendant, charging him with failure to plug unproductive wells in violation of
{¶ 31} In so doing, we explained that the state‘s substantive right to appeal originates only in a legislative grant of authority. Id. at 2. And “the grant apparent in
{¶ 32} Because the state failed to comply with the statutory requirement to seek leave to appeal in Wallace, we held that the court of appeals correctly
{¶ 33} Here too, the state must comply with the controlling procedural rule.
{¶ 34}
In delinquency proceedings the state may take an appeal as of right from the granting of a motion to suppress evidence if, in addition to filing a notice of appeal, the prosecuting attorney certifies that (1) the appeal is not taken for the purpose of delay and (2) the granting of the motion has rendered proof available to the state so weak in its entirety that any reasonable possibility of proving the complaint‘s allegations has been destroyed.
Such appeal shall not be allowed unless the notice of appeal and the certification by the prosecuting attorney are filed with the clerk of the juvenile court within seven days after the date of the entry of the judgment or order granting the motion. Any appeal which may be taken under this rule shall be diligently prosecuted.
{¶ 35}
Bistricky is inapposite
{¶ 36} The state makes a colorable (but meritless) argument that Bistricky recognizes an alternative right to appeal. There is undeniable confusion that stems from our decisions in Bistricky, 51 Ohio St.3d 157, 555 N.E.2d 644; State v. Keeton, 18 Ohio St.3d 379, 481 N.E.2d 629 (1985); and State v. Arnett, 22 Ohio St.3d 186, 489 N.E.2d 284.
{¶ 37} In Bistricky, the state charged five police officers with drug trafficking. After the state‘s case in chief, the trial court entered a verdict in favor of the
{¶ 38} We construed
{¶ 39} Bistricky simply reaffirmed what we had already held, that “even in a case resulting in a judgment of acquittal, the prosecution may appeal from evidentiary rulings, such as admissibility of evidence * * *.” Id. at 159, citing Keeton and Arnett. And we emphasized that Keeton and Arnett expressly permitted discretionary appeals of evidentiary rulings on the authority of the “any other decision” clause of
{¶ 40} Because we could discern no distinction between evidentiary rulings and rulings on substantive issues of law, we extended Keeton and Arnett and held that the state also had the right to seek discretionary review of nonevidentiary, substantive rulings under the authority of the “any other decision” clause of
{¶ 41} But as we will explain, a salient point of Keeton has been lost.
{¶ 42} In Keeton, three defendants were indicted for robbery in connection with their alleged attempt to lure a truck driver into a gambling scheme. When the truck driver refused to participate, the defendants allegedly stole his money and fled. Police pursued, detained, and searched the three men. As a result, an officer removed a roll of four $20 bills from Keeton‘s pocket. After the defendants were transported to the police department, the officer removed additional sums of money from the defendants’ pockets.
{¶ 43} Because the officer‘s trial testimony concerning his custody of the money conflicted with his testimony at a preliminary hearing, the trial court excluded the money from evidence. As a result, the trial court directed a judgment of acquittal, pursuant to
{¶ 45} Moreover, we expressly cautioned that the state must comply with the procedural requirements explained in Wallace. Id. Keeton, unlike this case, did not involve review of a decision listed in the first clause of
{¶ 46} In Arnett, 22 Ohio St.3d 186, 489 N.E.2d 284, the defendant was charged with murder but claimed self-defense. At trial, over the state‘s objection, he supported his claim with the expert testimony of a psychiatrist and a psychologist, who testified that they had used sodium amytal and hypnosis, respectively, to interview Arnett about his mental state during the shooting. Both testified that in their opinions, Arnett was intensely fearful. After the jury acquitted Arnett, the state sought leave to appeal the admission of the expert testimony. The court of appeals dismissed the appeal, holding that the acquittal precluded review of the evidentiary rulings.
{¶ 47} In a brief opinion, composed mostly of Keeton excerpts, we reversed. Arnett at 188. The majority explained only that a “comparable situation was presented to this court in Keeton.” Arnett at 187. And we used broad language in our syllabus: “Pursuant to
{¶ 48} The decisions in Keeton, Arnett, and Bistricky have caused some confusion. Keeton and Bistricky involved appeals under the “any other decision” clause of
{¶ 49} Tellingly, the Eighth District in this case cites not Arnett, but its dissent.
{¶ 50} That is why we seize this opportunity to limit Arnett to its facts and make clear that a discretionary Bistricky appeal does not exist when the state fails to perfect an appeal as a matter of right in accordance with the applicable rules of procedure. To hold otherwise would render meaningless the importance of procedural compliance when invoking the jurisdiction of the courts of appeal.
CONCLUSION
{¶ 51} In juvenile cases, the state is not authorized to pursue a discretionary appeal when it fails to take an appeal as of right in accordance with the applicable rules of procedure. For that reason, the Eighth District Court of Appeals properly determined that it lacked jurisdiction to decide the merits of the state‘s appeal. Accordingly, the court of appeals’ judgment is affirmed.
Judgment affirmed.
LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
PFEIFER and O‘DONNELL, JJ., dissent and would dismiss the appeal as having been improvidently accepted.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellant.
Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellee.
Timothy Young, Ohio Public Defender, and Jason Macke, Assistant Public Defender, urging affirmance for amicus curiae, Ohio Public Defender.
Notes
An out-of-court statement made by a child who is under twelve years of age at the time of trial or hearing describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child is not excluded as hearsay under
(1) The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted pursuant to
(2) The child‘s testimony is not reasonably obtainable by the proponent of the statement.
(3) There is independent proof of the sexual act or act of physical violence.
(4) At least ten days before the trial or hearing, a proponent of the statement has notified all other parties in writing of the content of the statement, the time and place at which the statement was made, the identity of the witness who is to testify about the statement, and the circumstances surrounding the statement that are claimed to indicate its trustworthiness.
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.