2004 Ohio 4024 | Ohio Ct. App. | 2004
{¶ 2} In January 2003, Alyssa, then eleven years old, reported to the Van Wert County Sheriff's Department that her father had touched her inappropriately. The Sheriff's office called the Van Wert County Children's Services Board, and Brooke Tavanio, an investigator with DJFS, conducted an investigation.
{¶ 3} Alyssa stated to Ms. Tavanio that Brian had touched her pubic area as well as her breasts. Ms. Tavanio questioned Brian, who denied any wrongdoing, but admitted that while engaged in "playful wrestling" he did grab Alyssa's breast. Alyssa later indicated that she thought the touching of her breasts was accidental, but the specific details she reported did not change. At the conclusion of her investigation, Ms. Tavanio indicated that Brian had touched Alyssa inappropriately; her agency did not file a complaint at that time because there was not enough proof of a pattern of wrongful behavior.
{¶ 4} On October 15, 2003 DJFS received reports from the principal of Alyssa's school and from the Sheriff's department that Brian had sexually abused Alyssa. The reports alleged that Brian Moonshower had digitally penetrated Alyssa's vagina, performed oral sex on her and had vaginal intercourse with her.
{¶ 5} Mark Spieles, a caseworker with DJFS, interviewed Alyssa, Brian, and Monica Moonshower, Alyssa's mother, on October 15, 2003. Following his investigation, DJFS filed the underlying complaint in this action on November 18, 2003, alleging that Alyssa was "abused" as defined in R.C.
{¶ 6} The trial court held an adjudicatory hearing pursuant to R.C.
{¶ 7} Alyssa testified that beginning in September 2003 Brian would come into her room right before bedtime attempting to show her pornography over the Internet and on television. She testified that he then began touching her inappropriately against her wishes. He began by touching her vagina, which led to more extensive sexual activity. He began digitally penetrating her vagina, then engaged in oral sex, and finally penile penetration. She testified that he had sex with her between six and nine times.
{¶ 8} Although physical examinations were performed after Alyssa reported the events, the results were negative and there was no indication of physical abuse. Evidence was taken from her bedroom, including her mattress, but tests on these items provided no physical evidence of sexual activity.
{¶ 9} The trial court found, by clear and convincing evidence, that Alyssa had been sexually abused. This determination was based solely on testimony at the adjudicatory hearing, as there was no physical evidence to corroborate her story. According to the trial court, Alyssa's testimony was "graphic and accurate." The trial court's judgment entry states:
Frankly, the court finds it almost impossible for a twelveyear old to be able to give such an accurate description withoutactual participation. . . . She described how she felt (hurt),seeing blood and "white stuff," use of condoms, and the routineof the abuse.
{¶ 10} The trial court found this testimony more credible than Brian's denials. Based solely on this testimony, the court found by clear and convincing evidence that Alyssa Moonshower had been abused as defined in R.C.
{¶ 11} Brian Moonshower now appeals, challenging the finding of the trial court that Alyssa had been abused and is dependent. He asserts as the sole assignment of error:
The trial court's finding that by clear and convincingevidence the minor children are adjudicated dependent and/orabused is against the manifest weight of the evidence.
{¶ 12} At the outset we note that "[i]t is well recognized that the right to raise a child is an `essential' and `basic civil right.'" In re Hayes (1997),
{¶ 13} Decisions concerning child custody matters rest within the sound discretion of the trial court. Miller v. Miller
(1988),
{¶ 14} A finding of abuse or dependency must be supported by clear and convincing evidence. R.C.
{¶ 15} The appellate court must examine the record and determine if the trier of fact had sufficient evidence before it to satisfy this degree of proof. Cross, supra (citations omitted). The trial court adjudication will be overruled if it is against the manifest weight of the evidence; there must be sufficient credible evidence to support the trial court's adjudication. In re Pieper Children (1993),
{¶ 16} When reviewing whether the trial court judgment was against the manifest weight of the evidence, the appellate court sits as a "thirteenth juror" and examines the conflicting testimony. State v. Thompkins (1997),
{¶ 17} Brian claims that the trial court's decision was against the manifest weight of the evidence because it was based solely on the testimony of Alyssa. He argues that his testimony, and the lack of any physical evidence, demonstrates that the trial court lost its way in finding that Brian sexually abused Alyssa.
{¶ 18} As the trial court stated in its judgment entry, this was clearly a case of the victim's allegation and the defendant's denial. The trial court weighed the credibility of the witnesses, including the testimony of both Brian and Alyssa, and clearly determined that Alyssa's was the more reliable testimony. As stated previously, the trial judge is in the best position to view the testimony and weigh the credibility of witnesses by observing their demeanor. Seasons Coal Co. v. Cleveland (1984),
{¶ 19} Moreover, Alyssa's testimony was supported by other evidence presented to the trial court. Monica Moonshower, the victim's mother, corroborated the victim's testimony that Brian watched pornographic websites and movies. The two caseworkers, Ms. Tavanio and Mr. Spieles, testified as well, and reported Alyssa's story was virtually identical to Alyssa's testimony at the hearing. This evidence supports to some degree the credibility of Alyssa's testimony.
{¶ 20} Finally, Brian asserts that the lack of any physical evidence is conclusive proof that his testimony is more credible than Alyssa's. We believe this assertion is unfounded.
{¶ 21} The record includes the expert testimony of Michael E. Ruhlen, M.D., who runs a hospital clinic which evaluates and treats victims of sexual and physical abuse. His testimony indicates that the lack of physical evidence is not dispositive of the issue of whether Alyssa was actually abused. He stated that there is no corroborating physical evidence in 90% of abuse cases where there is admitted abuse or a third party witness. He also indicated that the three week time period between the physical examination and the last time Alyssa testified she was abused would give any injuries sufficient time to heal so that they would not show up in the physical examination. The results of the examination were ultimately inconclusive, and it was reasonable for the trial court to conclude that the lack of physical evidence did not affect the credibility of Alyssa's testimony.
{¶ 22} In sum, the trial court had sufficient evidence to come to a firm belief or conclusion that Brian sexually abused Alyssa. Moreover, based on the testimony and evidence presented at the adjudicatory hearing, we cannot find that the trial court lost its way or created a miscarriage of justice by adjudicating Alyssa an abused and dependent child pursuant to R.C.
{¶ 23} Based on the foregoing, the assignment of error is overruled and the judgment of the trial court is affirmed.
Judgments affirmed. Cupp and Rogers, JJ., concur.