In re S.M.B.
[Cite as In re S.M.B., 2019-Ohio-3578.]
No. 17AP-899 (C.P.C. No. 14JU-5674)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
September 5, 2019
SADLER, J.
(REGULAR CALENDAR)
Rendered on September 5, 2019
On brief: Yeura R. Venters, Public Defender, and Timothy E. Pierce, for appellant. Argued: Timothy E. Pierce.
On brief: Ron O‘Brien, Prosecuting Attorney, and Valerie Swanson, for appellee. Argued: Valerie Swanson.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch
SADLER, J.
{1} Defendant-appellant, S.M.B., appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, adjudicating him a delinquent minor for committing rape and gross sexual imposition. For the foregoing reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{2} This case arose from a complaint filed by plaintiff-appellee, State of Ohio, on April 29, 2014, alleging that minor child, S.M.B., was delinquent due to the offenses of gross sexual imposition, in violation of
{3} On April 30, 2015, S.M.B., by and through his parents, J.B. and B.B., denied the allegations in the complaint. On several days in July and August 2015, a juvenile court magistrate held an adjudicatory hearing on the complaint. On September 1, 2015, the magistrate issued a decision, including findings of fact and conclusions of law, wherein the magistrate found the state had proven the allegation of rape as to victim M.P., beyond a reasonable doubt, and the allegation of gross sexual imposition as to victim K.M., beyond a reasonable doubt. The magistrate found the state had failed to prove the allegation of gross sexual imposition as to victim T.R. and recommended dismissal of Count 1 of the delinquency complaint. Accordingly, the magistrate adjudicated S.M.B. to be a delinquent minor for having committed the offense of rape, as alleged in Count 2 of the complaint, and the offense of gross sexual imposition, as alleged in Count 3 of the complaint.
{4} On December 1, 2015, S.M.B., by and through legal counsel, filed an objection to the magistrate‘s decision wherein S.M.B. challenged “rulings on evidentiary issues and the underlying conclusions of the Magistrate” and claimed “the adjudication by the Magistrate was flawed and not substantiated by the evidence presented.” (Dec. 1, 2015 Obj. at 2.) On June 27, 2016, S.M.B. filed the transcript of evidence presented to the magistrate in support of his objection. On October 17, 2016, S.M.B. filed supplemental objections to the magistrate‘s decision. The supplemental objections included specific challenges to the magistrate‘s competency determination and certain evidentiary rulings, as well as a claim that the evidence did not support the magistrate‘s finding that S.M.B. committed the offenses of rape and gross sexual imposition.
{5} On November 9, 2016, the juvenile court issued a decision and entry overruling the objections and adjudicating S.M.B. delinquent for committing the offenses
II. ASSIGNMENTS OF ERROR
{6} S.M.B. assigns the following as trial court error:
- [1.] The lower court erred when it allowed [M.P.] to testify when she was not a competent witness. The admission of [M.P.‘s] testimony violated
Evid.R. 601(A) andR.C. 2317.01 and [S.M.B.‘s] right to a fair trial under Article I, Sections 1, 10, and 16 of the Ohio Constitution and the Sixth and Fourteenth Amendments of the United States Constitution. - [2.] The lower court erred when it permitted prosecution witness [M.P.] to testify without her having been administered an oath or affirmation declaring she would do so truthfully with an understanding of the penalties for not testifying truthfully. This violated [S.M.B.‘s] rights under Article I, Sections 7 and 10 of the Ohio Constitution, the Sixth and Fourteenth Amendments of the United States Constitution,
R.C. 3.21 ,R.C. 2317.30 ,R.C. 2945.46 ,Juv.R. 29(E)(3) , andEvid.R. 603 . - [3.] The lower court erred when it admitted the statements of [M.P.] and [K.M.] to [C.P.] and [M.M.] (respectively) as hearsay exceptions under
Evid.R. 803(2) . This violatedEvid.R. 802 and [S.M.B.‘s] right to a fair trial under Article I, Sections 1, 10, and 16 of the Ohio Constitution and the Sixth and Fourteenth Amendments of the United States Constitution. - [4.] The lower court committed plain error when it admitted during trial the statements of incompetent declarants [K.M.] and [M.P.]. This violated
Evid.R. 103(D) and802 and [S.M.B.‘s] right to a fair trial under Article I, Sections 1, 10, and 16 of the Ohio Constitution and the Sixth and Fourteenth Amendments of the United States Constitution. - [5.] The lower court erred in finding [S.M.B.] delinquent inasmuch as its verdicts were against the manifest weight of the evidence.
III. STANDARD OF REVIEW
{7}
IV. LEGAL ANALYSIS
{8} Because our resolution of S.M.B.‘s fifth assignment of error requires us to set out the factual foundation necessary for our analysis of his remaining assignments of error, we will begin our analysis with that assignment of error.
A. S.M.B.‘s Fifth Assignment of Error
{9} In S.M.B.‘s fifth assignment of error, S.M.B. argues the adjudication of delinquency was against the manifest weight of the evidence. We disagree.
{10} In re M.T., 10th Dist. No. 05AP-816, 2006-Ohio-3613, “set[s] forth the standard of review when a juvenile delinquency adjudication is challenged on manifest weight grounds.” In re A.W., 10th Dist. No. 09AP-312, 2009-Ohio-5093, ¶ 4. The standard is as follows:
A challenge to the manifest weight of the evidence attacks the credibility of the evidence presented. The court of appeals sits as a “thirteenth juror” and after reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.
A defendant is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented at trial. The determination of weight and credibility of the evidence is for the trier of fact. The rationale is that the trier of fact is in the best position to take into account inconsistencies, along with the witnesses’ manner and demeanor, and determine whether the witnesses’ testimony is
credible. The trier of fact is free to believe or disbelieve all or any of the testimony. Consequently, although an appellate court must act as a “thirteenth juror” when considering whether the manifest weight of the evidence requires reversal, it must give great deference to the fact finder‘s determination of the witnesses’ credibility. (Citations omitted.) In re M.T. at ¶ 8-9.
{11} With respect to victim M.P., the juvenile court found S.M.B. delinquent for committing rape, in violation of
{12} With regard to victim K.M., the juvenile court found S.M.B. delinquent for committing gross sexual imposition, in violation of
1. Victim M.P.
{13} The testimony at trial regarding the sexual abuse of victim M.P. was as follows: M.P. testified that J.B. was her babysitter. When the prosecutor asked M.P. if something happened to her body, she responded “[y]es,” and she added it “[f]elt weird.” (July 16, 2015 Tr. at 14.) When the prosecuting attorney asked a follow up question, the following exchange took place:
Q. You said it felt weird and then you did something; show us what you did. Okay.
ASSISTANT PROSECUTING ATTORNEY JULIAN: May the record reflect that she‘s pointing to her vaginal area?
ATTORNEY LISTON: Well she‘s making an up and down motion in front of her waist.
MAGISTRATE VAN DYKE: And that I will agree to. That‘s what the record will reflect, at this point.
***
Q. [Y]ou said it felt weird, and you pointed to an area on your body; what happened?
A. He touched my private parts.
Q. Who did?
A. [S.M.B.]
(July 16, 2015 Tr. at 15-16.)
{14} M.P. was able to make an in-court identification of S.M.B. as the person who had “touched [her] private parts” with “[h]is hands.” (July 16, 2015 Tr. at 17.) She also testified: “He made me suck on his thingy.” (July 16, 2015 Tr. at 17.) M.P. stated that S.M.B. did this “one time.” (July 16, 2015 Tr. at 19.)1 M.P. testified that she told her mother about this and that her mother took her to see the doctor. M.P. further stated that she told the doctor what happened and she also “told a cop.” (July 16, 2015 Tr. at 20.)
{15} M.P.‘s mother, C.P., testified that in 2014, S.M.B.‘s mother, J.B., ran a daycare center out of her home and that she used J.B.‘s services to care for M.P. C.P. testified that on April 17, 2014, she and M.P. were watching the film “Frozen” when M.P. kept saying to her “I‘m not supposed to say anything.” (July 16, 2015 Tr. at 51, 52.) According to C.P., M.P. was calm initially but then she got nervous. Defense counsel objected, and the judge provisionally allowed C.P. to testify about M.P.‘s out-of-court statements under the excited utterances exception to the hearsay rule.
{16} C.P. testified that M.P. told her: “[S.M.B.] has secrets.” (July 16, 2015 Tr. at 53.) When C.P. asked M.P. what she meant, M.P. responded she “wasn‘t supposed to tell.” (July 16, 2015 Tr. at 52-53.) C.P. testified that she told her daughter: “you don‘t keep secrets from mommy. You tell mommy.” (July 16, 2015 Tr. at 53.) C.P. testified that M.P. then told her “[S.M.B.] touches her butt.” (July 16, 2015 Tr. at 54.) According to C.P., M.P. uses the word “butt” when referring either to her vagina and her anus. (July 16, 2015 Tr. at 54.) M.P. pointed between her legs when C.P. asked her where on her body S.M.B. touched her.
{17} On hearing her daughter‘s revelation, C.P. phoned her sister and then made the decision to take M.P. to Nationwide Children‘s Hospital (“Children‘s“). During her trial testimony, C.P. recalled that “maybe a month or two before” M.P. disclosed the sexual abuse, M.P. was having “a lot of difficulty sleeping. * * * She was soiling her pants; having accidents when she didn‘t really do that. She was more clingy. She would cry.” (July 16, 2015 Tr. at 73, 74.)
{18} Toni Soltes works in Children‘s emergency room as a medical social worker. Soltes testified that on April 17, 2014, she was working the triage desk when she was contacted about alleged sexual abuse concerning M.P. Soltes conducted an interview of M.P., at which time M.P. disclosed something had happened at her babysitter‘s house. M.P. told Soltes that “[S.M.B.] had touched her butt with his dirty hands.” (July 17, 2015 Tr. at 38.) With the aid of an anatomical drawing, Soltes encouraged M.P. to show her the part of her body S.M.B. touched. According to Soltes, M.P. identified her vagina as her “butt,” and she told Soltes that this happened in front of K.M. and another child. (July 17, 2015 Tr. at 46.) Soltes’ notes from the interview state that “[M.P.] did tell me [S.M.B.] touches her butt * * * with his dirty hands under her clothes in the hallway.” (July 17, 2015 Tr. at 73.) M.P. also told Soltes that S.M.B. “had taken her into his mother‘s room where he would ask me to suck on his private like a popsicle.” (July 17, 2015 Tr. at 48.)
{19} According to Soltes, M.P. stated this behavior by S.M.B. occurred “a lot” of times. (July 17, 2015 Tr. at 89.) M.P. further disclosed that S.M.B. “took pictures of her two or three times” and “he had told her not to tell.” (July 17, 2015 Tr. at 49.) After talking with M.P., Soltes recommended that M.P. be linked with a therapist for trauma-related treatment.
{20} Julia Lloyd, M.D., testified that she was the attending physician in the emergency room at Children‘s on the night M.P. was brought in. She testified that prior to conducting a physical examination of M.P., she was informed that M.P. “disclosed that the alleged perpetrator had requested oral sex from [her] patient and * * * had put his finger inside her vagina.” (July 20, 2015 Tr. at 119.) According to Dr. Lloyd, M.P.‘s medical
2. Victim K.M.
{21} K.M.‘s mother, M.M., testified J.B. was K.M.‘s former babysitter. According to M.M., sometime in April 2014, K.M. “seemed apprehensive and scared” at dinner. (July 22, 2015 Tr. at 12.) She stated K.M. was just three years old at the time, a few weeks short of his fourth birthday. Over S.M.B.‘s objection, M.M. testified that K.M. said “[S.M.B.] played with my penis and I didn‘t like it, and it hurt.” (July 22, 2015 Tr. at 13.) M.M. recalled that her fiancé, her daughter, and one other person were there when K.M. made the statement. When asked about her reaction to K.M.‘s statement, M.M. testified: “I was in utter shock, as was everyone at the table and I tried – I asked him what happened, and he said the exact same thing and I said, ‘Are you sure?’ and he said, ‘Yes.‘” (July 22, 2015 Tr. at 14.) M.M. testified that K.M. was taught to “use anatomically correct names” for body parts, and when K.M. refers to his penis he is referring to “[h]is genitals.” (July 22, 2015 Tr. at 14.)
{22} M.M. stated that the next morning she told J.B. about K.M.‘s disclosure and that J.B. told her “[i]t‘s just not possible. It couldn‘t happen. It didn‘t happen.” (July 22, 2015 Tr. at 16.) C.P. stated that she left K.M. in the care of J.B. for approximately three more weeks, but when she learned of the other allegations of sexual abuse, she took K.M. to Children‘s to be examined.
{23} Kerri Wilkinson works at Children‘s as a forensic interviewer. When asked what she would expect a child of K.M.‘s age to be able to relate, she answered: “I expect a three-year-old child to be able to tell a who, a what. The concept of time for a three- or four-year-old; you wouldn‘t expect them to be able to tell you, you know, before or after or when something happened. They‘re just not developmentally able to do that. You may be able to get a where something happened but you can usually get a who and a what happened.” (July 22, 2015 Tr. at 81.)
{24} A videotape of Wilkinson‘s interview with K.M. was played for the magistrate over S.M.B.‘s objection. During the interview, K.M. told Wilkinson that he was three, he knew he was a boy, he lived with his mom, his sister F.M., and K., who he referred to as his daddy. Wilkinson showed K.M. an anatomical drawing and K.M. identified the penis as a
{25} The interview then proceeded as follows:
MS. WILKINSON: * * * I heard something about [S.M.B.]? I heard something happened with [S.M.B.].
[K.M.]: He played with my penis. [S.M.B.] did.
MS. WILKINSON: Oh. He played with your penis? Okay, tell me all about [S.M.B.] playing with your penis.
[K.M.]: He got a tissue and—he got a tissue and he wiped it.
MS. WILKINSON: He got a tissue and wiped it?
[K.M.]: Uh-huh (affirmative response).
MS. WILKINSON: Okay. And then what happened after he got a tissue and wiped it?
[K.M.]: He (inaudible) and then he got out of [S.M.B.]‘s room.
MS. WILKINSON: Okay.
[K.M.]: And then he – he leaved (sic).
(July 22, 2015 Tr. at 107-08.)
{26} K.M. stated that the events he described happened in S.M.B.‘s room where he had been sleeping and that J.B. and another boy J.B. was caring for were in the living room. K.M. told Wilkinson “[S.M.B.] taked (sic) off my pants and—and my underwear. * * * Then he shutted (sic) the door and he went (inaudible) * * * and then I got up.” (July 22, 2015 Tr. at 111.) When Wilkinson asked K.M. how it felt when S.M.B. was touching him, K.M. responded that “[i]t tickled my penis.” (July 22, 2015 Tr. at 112.)
{27} On cross-examination, Wilkinson acknowledged that in conducting forensic interviews of suspected child sexual abuse victims she is expected to conform to protocols issued by the Center for Family Safety and the Healing Child Assessment Center (“CAC“), with the goal of minimizing interviewer influence. Wilkinson acknowledged the protocols require the interviewer to remain neutral and to focus on factfinding, without suggesting answers.
{28} S.M.B. offered his own testimony in an effort to establish he was not at home with the children for a length of time sufficient to commit the crimes in question. S.M.B. testified that on or about the time period of the alleged sexual abuse, he was a freshman in high school and living with his mother, J.B., his father, B.B., and his two dogs. He testified prior to his freshman year, he was involved in the high school band camp and the band camp started around 8:30 a.m. and did not end until after 5:00 p.m. He stated that he woke at 6:00 a.m. on a typical school day and got a ride to school either from a friend‘s father or one of his grandparents at around 7:00 a.m. He testified he never missed a day of school that year due to illness and that on scheduled days where school was not in session, he was either at his grandparents’ home or his aunt‘s. According to S.M.B., though the school day ended at 2:30, he attended after school band activities each day, and he performed with the band on Friday evenings during football games. He stated that after football season ended, he became involved in the bowling team, Monday through Friday. During bowling season, S.M.B. would get a ride home from school at 2:30 p.m., grab his bowling equipment, and leave for the bowling alley. In addition to band and bowling, S.M.B. was also involved in Taekwondo, which he participated in Monday, Wednesday, and Friday.
{29} S.M.B., however, acknowledged that the children his mother was watching were at the house when he got home from school on days when he did not have an activity immediately after the school day. He stated the children were either sleeping or playing in the living room. He stated if a child was sleeping in his room, he was not allowed in. S.M.B. testified he had no responsibilities related to his mother‘s daycare operation, he never watched the children for his mother, and never played with any of the children. He stated there was never a time when his mother left him in the house alone with the children.
{30} S.M.B. denied the allegations made by M.P. He did recall nudging M.P. out of the way with his foot on one occasion when she would not move from the entry to the hallway. S.M.B. also denied the allegations made by K.M. in the videotaped interview with Wilkinson, and he denied ever being alone with K.M. He did acknowledge tripping over K.M. one day when K.M. was sleeping on the floor and that his foot struck the lower half of K.M.‘s body. According to S.M.B., the incident with K.M. occurred just a few weeks before the allegations of sexual abuse were made against him.
{32} J.B. testified that she runs a daycare center out of her home. According to J.B., her home is very small, and she described the layout of the home with the aid of a floor plan. J.B. testified there were as many as seven small children, including infants, under her care in March and April 2014. J.B. testified the children are with her in the home roughly ten hours per day, five days per week. J.B. stated she has a number of rules surrounding the children‘s care that are never to be broken. For example, she does not allow the children to go into the hallway or the bedrooms unless she places them there. According to J.B., when any child is sleeping in S.M.B.‘s room, S.M.B. is not allowed in. On cross-examination, however, J.B. admitted that the inside of S.M.B.‘s bedroom cannot be viewed either from the living room, kitchen, or bathroom.
4. Manifest Weight Analysis
{33} S.M.B. concedes the evidence presented by the state, if believed, is sufficient to support the juvenile court‘s determination that S.M.B. is delinquent for committing rape, in violation of
{34} In our view, the absence of corroborating physical evidence to support M.P.‘s claim of sexual abuse is of little consequence in this case given the type of abuse alleged and the time between occurrence and M.P.‘s physical examination at Children‘s.2 Under the circumstances, it would have been surprising if any physical evidence were found on M.P.‘s person or clothing. Moreover, Dr. Lloyd testified a normal medical examination does not rule out sexual abuse.
{36} In our view, the additional details M.P. provided to Soltes are not necessarily inconsistent with the story she told her mother as one would expect a trained forensic examiner, such as Soltes, to uncover greater detail from a victim of sexual abuse than a lay person. Nor do we consider it inconsistent for M.P. to tell Soltes that S.M.B. “made me suck his thingy * * * one time” but later told Soltes the sexual abuse by S.M.B. happened “a lot,” because M.P. was initially speaking about a particular sexual act but was later speaking about multiple instances of sexual conduct. (July 16, 2015 Tr. at 19; July 17, 2015 Tr. at 89.) Moreover, the testimony M.P. gave in the courtroom was generally consistent with what she told Soltes at Children‘s.
{37} Though S.M.B.‘s trial counsel was able to elicit testimony on cross-examination of M.P. that showed M.P. was confused about the time of day the abuse occurred and the weather outside on the day the abuse occurred, our review of the trial transcript reveals that counsel suggested certain incorrect response to M.P. and that M.P. obliged. The juvenile court found the alleged inconsistencies in M.P.‘s victim testimony were “immaterial” to the charges. (Nov. 22, 2017 Decision at 17.) The record supports the juvenile court‘s assessment.
{38} To the extent S.M.B. argues the information M.P. provided to Soltes is not to be believed because Soltes breached established protocols during the interview, the juvenile court noted the relevant protocols permit “modification of the process in order to best suit the needs of both the family and child” and are “designed to be flexible so that employees can adjust to the needs of each individual situation.” (Nov. 22, 2017 Decision at 7.) The juvenile court reviewed the trial transcript and the written protocols admitted into evidence. In overruling S.M.B.‘s objection, the juvenile court stated: “Upon reviewing and analyzing the CAC protocol, this Court finds that there was no break in CAC Protocol as
{39} With regard to the finding of delinquency for the gross sexual imposition on K.M., S.M.B. contends the lack of physical evidence to support the allegations of sexual abuse undermined the delinquency determination. However, Katherine Doughty, the advanced practice nurse who examined K.M. at Children‘s, testified she would not have expected to find any injuries to K.M.‘s person or any physical evidence of sexual abuse given the nature of the sexual conduct alleged. The magistrate found that Doughty qualified as an expert in child sexual abuse examination. After observing K.M. while he was being interviewed by Wilkinson, speaking with K.M. and his mother, and conducting a physical examination of K.M., Doughty formed the opinion, to a reasonable degree of certainty, that K.M. had been the victim of inappropriate sexual conduct.
{40} S.M.B. also argues that Wilkinson violated established protocol when she used leading questions in asking K.M. about the sexual abuse by S.M.B. and that her breach of protocol rendered K.M.‘s disclosure of sexual abuse unworthy of belief. The videotaped interview was played to the magistrate during Wilkinson‘s testimony, and the relevant protocols were admitted into evidence. The juvenile court reviewed the videotape, the trial transcript, and the written protocols admitted into evidence. In overruling S.M.B.‘s objection, the juvenile court concluded Wilkinson‘s use of certain leading question during her interview with K.M. was “in line with CAC guidelines” and “commonly used when dealing with young children involved in traumatic experiences.”3 (Nov. 22, 2017 Decision at 10.)
{42} S.M.B. next contends the videotaped interview reveals that K.M. gave inconsistent and contradictory responses when asked if anyone had touched his penis. We agree that K.M. initially answered “no” when asked if anyone other than his parents and his
There are a variety of techniques that may be used to introduce the topic of concern or potential abuse. During this process the interviewer is flexible and will often take cues from the child. The interviewer introduces the topic of suspected abuse by being as open-ended and non-suggestive as possible asking such prompts as “Tell me why you‘re here today,” or “Tell me why you came to the doctor“. At times the interviewer will ask more direct prompts “Did something happen to your body that would be important for the doctor to know” or “What did [name] tell you about coming to the doctor today“. Ideally these prompts are non-leading or suggestive however with younger children more direct prompts may be needed.
***
Abuse Scenario (if applicable):
The interviewer allows the child to tell details of their abuse experience using open and substantive questions. Interviewers will use open-ended questions whenever possible to invite more complete narrative responses from recall memory and to elicit the most accurate information. Interviewers may use more focused questions depending on the age/developmental level of the child but whenever possible the interviewer will “pair” these questions by following them up with an open-ended prompt.
(Emphasis added.)
{43} Finally, S.M.B. argues that in finding S.M.B. delinquent for committing the rape of victim M.P. and committing gross sexual imposition on victim K.M., the juvenile court erred by not properly crediting the testimony of witnesses presented by the defense. We disagree.
{44} The determination of weight and credibility of the evidence is for the trier of fact. In re A.W., 2009-Ohio-5093, at ¶ 4, quoting In re M.T., 2006-Ohio-3613, at ¶ 8-9. The rationale is that the trier of fact is in the best position to take into account inconsistencies, along with the witnesses’ manner and demeanor, and determine whether the witnesses’ testimony is credible. In re A.W. at ¶ 4. The trier of fact is free to believe or disbelieve all or any of the testimony. Id. The magistrate believed the testimony of the state‘s witness and assigned greater weight to their testimony. Neither the magistrate nor the juvenile court found the testimony of S.M.B. and his witnesses to be persuasive.
{45} Our review of the record shows that even though the testimony of S.M.B. and his witnesses shows that S.M.B. did not have unfettered access to the victims, the testimony does not support a finding that S.M.B. did not have sufficient access to the victims to commit the crimes in question. S.M.B. admitted he did have contact with both victims during the relevant time period, even though he claims the contact was innocent. Similarly, while the relatively small size of J.B.‘s home shows that it would be difficult for the sexual abuse of the two victims to go undetected, the magistrate and the juvenile court were not persuaded by J.B.‘s claim that the abuse did not happen because she did not witness it. On this record, we cannot say the juvenile court lost its way in resolving the conflicts in the evidence and reaching the conclusion that S.M.B. was delinquent for committing the offense of rape against victim M.P. and gross sexual imposition against victim K.M.
{46} Accordingly, we hold the juvenile court judgment declaring S.M.B. delinquent for committing the offenses of rape and gross sexual imposition is not against the manifest weight of the evidence. S.M.B.‘s fifth assignment of error is overruled.
{47} In S.M.B.‘s first assignment of error, S.M.B. contends the trial court erred when it ruled the six-year-old victim, M.P., was competent to testify as a witness in this matter. We disagree.
{48} A determination of competency is within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of discretion. State v. Frazier, 61 Ohio St.3d 247, 251 (1991). “‘The term “abuse of discretion” connotes more than an error of law or of judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable * * *.’ ” State v. Moreland, 50 Ohio St.3d 58, 61 (1990), quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980).
{49}
(1) the child‘s ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child‘s ability to recollect those impressions or observations, (3) the child‘s ability to communicate what was observed, (4) the child‘s understanding of truth and falsity and (5) the child‘s appreciation of his or her responsibility to be truthful.
Id., quoting Frazier at 251.
{50} Prior to trial, the magistrate held an evidentiary hearing for the purpose of determining the competency of the two proposed witnesses for the prosecution who were under the age of ten, M.P., who was then six years old, and K.M., who was five years old. The magistrate found M.P. competent to testify as a witness in this matter but not K.M. The juvenile court overruled S.M.B.‘s objection to the magistrate‘s competency determination as to M.P.
{52} The magistrate asked M.P. about a stuffed animal she had with her, and M.P. answered its name is “Bear.” (July 7, 2015 Tr. at 7.) M.P. told the magistrate that Bear is purple in color. The magistrate followed up by asking: “If I told you bear was yellow, would that be true or not true?” (July 7, 2015 Tr. at 8.) M.P. initially responded “[t]rue” but then said “[n]o.” (July 7, 2015 Tr. at 8.) The magistrate then asked M.P. “[w]hat would it be if I told you bear was yellow,” and M.P. responded “[i]t would be no.” (July 7, 2015 Tr. at 8.)
{53} M.P. responded “[y]es, I‘m in first grade” when the magistrate asked her “[d]o you go to school?” (July 7, 2015 Tr. at 8.) M.P. could not recall her first grade teacher‘s name but knew her kindergarten teacher‘s name was “Miss Kay.” (July 7, 2015 Tr. at 8.) When the magistrate asked M.P. if she has already started first grade, she said “[n]ot yet.” (July 7, 2015 Tr. at 9.) M.P. stated she would start first grade “[i]n the fall.” (July 7, 2015 Tr. at 9.) When the magistrate asked M.P. if she knew what day of the week it was she said “Friday,” which was incorrect. (July 7, 2015 Tr. at 9.) She also responded that the current month was “[s]pring.” (July 7, 2015 Tr. at 9.) M.P. testified that at Christmas time her family put up a Christmas tree and that the weather was snowy. The magistrate did remind M.P. to take her hands away from her face when she spoke and to always answer out loud. M.P. also admitted she was “scared.” (July 16, 2015 Tr. at 11.)
{54} When the magistrate asked M.P. if she had learned to count, M.P. began counting out loud to 25. The magistrate told M.P. “[i]t sounds like you could kinda (sic) count to a thousand if you wanted to, doesn‘t it,” and she responded “I don‘t know how.” (July 7, 2015 Tr. at 10-11.) M.P. denied ever telling her mother a lie and added “I don‘t tell lies.” (July 7, 2015 Tr. at 11.) When asked by the magistrate whether her mother ever told her what would happen if she told lies, M.P. responded “[y]es” and then added “I‘d have to go to the doctor, maybe.” (July 7, 2015 Tr. at 11.) When asked if she was ever told of any
{55} When the magistrate asked M.P. why she was in the courtroom, the following exchange took place:
MAGISTRATE VAN DYKE: * * * And do you know why you‘re here today in court?
[M.P.]: (non-verbal response).
MAGISTRATE VAN DYKE: And-you‘re here to tell the-to tell us about something that happened, right?
[M.P.]: (non-verbal response).
MAGISTRATE VAN DYKE: Tell me, do you understand—you just look up here right now-do you understand how very, very important it is for you to be sure that you tell me, the Court and everybody here exactly what happened and to tell the truth about what happened?
TONI AVENA: Speak out.4
[M.P.]: Yes.
MAGISTRATE VAN DYKE: And do you promise that if you‘re asked questions by these lawyers-see all these people in suits?
[M.P.]: (non-verbal response).
MAGISTRATE VAN DYKE: Okay, they‘re the lawyers and you know they have different jobs, but do you promise that you will tell-that you will answer their questions and that you promise to tell them the truth, exactly how things happened.
[M.P.]: (non-verbal response).
MAGISTRATE VAN DYKE: You‘re shaking your head, but I need you to-
TONI AVENA: You have to speak out.
[M.P.]: Yes.
***
MAGISTRATE VAN DYKE: [M.P.], if I told you that-do you remember the prosecutor over here? Do you remember Ms. Julian?
[M.P.]: Uh-huh (affirmative response).
MAGISTRATE VAN DYKE: If I told you that her suit —
[M.P.]: Uh-huh (affirmative response).
MAGISTRATE VAN DYKE: — that she‘s wearing today was white, would that be a truth or a lie?
[M.P.]: A lie.
MAGISTRATE VAN DYKE: A lie? And if your mom asked you a very important question-because that wasn‘t-that wasn‘t a big, important question, was it? That was kinda (sic) just a little joke question, but you knew the answer to that. But if your mom asked you a very, very important question, and you did not tell her the truth about that question, tell me what you think would happen?
[M.P.]: I would get my butt spanked.
***
MAGISTRATE VAN DYKE: You‘d get spanked. And do you understand that-do you believe it‘s wrong if you were to tell your mama (sic) a lie about something?
[M.P.]: It‘s wrong.
MAGISTRATE VAN DYKE: And you‘re saying yes, you do?
[M.P.]: It‘s wrong.
MAGISTRATE VAN DYKE: Okay. If you were to be playing with a-a playmate-let‘s say you were playing with your doggie, and maybe the doggie wasn‘t paying enough attention to you, and you hit your doggie and mom asks you about that—
[M.P.]: I‘d say-
MAGISTRATE VAN DYKE: — and if you know you were going to get in trouble if you didn‘t tell the truth, tell me would you would do?
***
[M.P.]: - I would tell the truth.
MAGISTRATE VAN DYKE: Okay. But what would happen, do you think, if you told mom “no, I didn‘t really hit the dog, the dog just yelped because I didn‘t really hit the dog“?
[M.P.]: She would send me to my room.
MAGISTRATE VAN DYKE: Okay. And do you understand that in court, if you didn‘t tell the truth about something, that a lot worse things could happen, not to you, but to somebody else if you didn‘t tell the truth; do you understand that?
[M.P.]: (non-verbal response).
TONI AVENA: Speak out.
MAGISTRATE VAN DYKE: Do * * * you understand that something very bad could happen if you don‘t tell the truth about everything?
[M.P.]: Yes.
(July 7, 2015 Tr. at 12-16.)
{56} Following this exchange, S.M.B.‘s trial counsel examined M.P., and she answered “[y]es” when asked if it would be a lie if she told her mom something that was not true. (July 7, 2015 Tr. at 17.) He also asked her if she knew who she was talking to that day and she said “[t]he Judge (sic).” (July 7, 2015 Tr. at 18.) Counsel asked M.P. what the judge‘s job was and she answered “[t]o know the truth,” which the judge would know “by people telling the Judge.” (July 7, 2015 Tr. at 18.) When counsel asked M.P. why it was important to tell the judge the truth, she said “[b]ecause you can‘t lie.” (July 7, 2015 Tr. at 18.) As S.M.B.‘s counsel continued, the following occurred:
ATTORNEY LISTON: * * * Do you know what happens if you lie in the courtroom?
[M.P.]: You get sent to jail.
ATTORNEY LISTON: You can go to jail? Did your mommy teach you that?
[M.P.]: (non-verbal response).
ATTORNEY LISTON: Did Ms. Avena teach you that?
[M.P.]: She did.
(July 7, 2015 Tr. at 18-19.)
{57} S.M.B. argues the transcript of the competency hearing shows M.P. is not able to receive accurate impressions of facts and observations, does not have the ability to recollect factual impressions and observations, and cannot communicate what she has observed. S.M.B. also claims the juvenile court employed the incorrect standard in reviewing the magistrate‘s competency determination. We disagree.
{58} Here, the trial court conducted an examination of the victim to determine her competency to testify. During the examination, the victim stated her full name, the name of her kindergarten teacher, the people she lived with, and the names of her pets. M.P. counted to 25, but when the magistrate offered that M.P. could count to 1,000, she admitted
she did not know how. She also understood who the judge was, and she knew the judge‘s function was to determine the truth. M.P. also demonstrated she knew when something was not true by responding “[n]o” when the magistrate told her that her bear was yellow. (July 7, 2015 Tr. at 8.) M.P. indicated she understood that she got in trouble when she did not tell the truth and promised to tell the truth when answering questions from the lawyers. In our view, the record shows M.P. was able to receive accurate impressions of facts and observations, had the ability to recollect factual impressions and observations, and could communicate what she has observed.{¶ 59} Nevertheless, S.M.B. contends that certain inaccurate responses to questions asked of M.P. at the competency hearing required the juvenile court to find M.P. not competent. For example, S.M.B. cites M.P.‘s mistake about the day of the week and the month of the year as evidence of her incompetence. S.M.B. also points to her initial incorrect response when the magistrate asked her if her bear was yellow as evidence of M.P.‘s incompetence as a witness, even though M.P. corrected her incorrect response without prompting.
{¶ 60} In State v. Ferguson, 10th Dist. No. 07AP-999, 2008-Ohio-6677, this court affirmed the trial court‘s determination that a six-year-old sexual abuse victim was competent to testify at trial. This court noted that merely providing incorrect answers to questions does not render a child witness incompetent. Id. at ¶ 29, citing State v. Anderson, 154 Ohio App.3d 789, 2003-Ohio-5439, ¶ 62 (7th Dist.). Rather, courts must examine the magnitude of the error in assessing competence. Ferguson at ¶ 29, citing State v. Jett, 11th Dist. No. 97-P-0023 (Mar. 31, 1998). Serious errors in a child‘s testimony regarding important details of the crime weigh heavily against a finding of competence. Ferguson at 29.
{¶ 61} Here, the incorrect answers provided by M.P. at the competency hearing do not concern facts related to the crimes at issue. Thus, the errors in M.P.‘s testimony are not of a magnitude that would require a finding of incompetency under the relevant case law. Moreover, as noted above, M.P. corrected herself when she incorrectly answered that her bear was yellow. See Ferguson at ¶ 26 (in finding the trial court did not err when it declared child victim competent, this court noted that child victim corrected an earlier statement that his favorite cartoon character was real).
{¶ 62} S.M.B. also cites alleged inconsistencies between the statements M.P. made to others about certain facts attendant to the sexual abuse and her trial testimony as evidencing her incompetence. For example, S.M.B. cites the fact that M.P. told Soltes that S.M.B. abused her in the hallway with K.M. and another child in the home, but she did not include those details in her testimony at the competency hearing. S.M.B. also points to the fact that M.P. told Soltes that S.M.B. took photographs of her without clothing several times but did not mention this in her trial testimony. We do not necessarily view M.P.‘s accounts of the sexual abuse as inconsistent. Rather, M.P. merely related additional details to Soltes, a trained forensic examiner, that she did not tell her mother or did not provide during her in-court testimony. Moreover, our review of M.P.‘s testimony during the competency hearing, her statements to others, and her testimony at trial reveals that M.P. provided a consistent account of the material allegations of sexual abuse. Thus, the record shows that M.P. was able to recollect accurate impressions of the alleged sexual abuse.
{¶ 63} S.M.B. claims that M.P.‘s incompetence is evidence by her response that she would “maybe” have to go to the doctor if she told a lie. (July 7, 2015 Tr. at 11.) In Ferguson, the fact that the child witness was unable to define the words “truth” and “lie” was not as important to the competency determination as the witness‘s recognition that telling the truth is good and that telling a lie is bad. Id. at ¶ 25. Here, M.P.‘s testimony that she would “maybe” go to the doctor if she told a lie, though inaccurate, evidences M.P.‘s awareness that there are negative consequences for telling a lie. As this court noted in Ferguson, ” ‘[t]he crucial inquiry is the morality of speaking truthfully.’ ” Id. at ¶ 25, quoting State v. Kirk, 42 Ohio App.3d 93, 94 (5th Dist.1987). See also Maxwell, 2014-Ohio-1019, at ¶ 104 (the record supported the trial court‘s finding that a five-year-old witness understood the importance of telling the truth and was competent to testify, where the child had responded “[y]ou will get in trouble” when asked: “What happens if you tell a lie?“); Ferguson at ¶ 25 (child witness who answered “[p]eople be taking you to college” when asked about the consequences of lying was not incompetent where the record demonstrates “he appreciates the responsibility to be truthful“). Moreover, on cross-examination by S.M.B.‘s counsel at the competency hearing, M.P. stated “[y]ou get sent to jail” if you tell a lie in the courtroom. (July 7, 2015 Tr. at 18.) In our view, the record supports the juvenile court‘s determination
{¶ 64} Finally, S.M.B. argues the juvenile court failed to conduct a de novo review in ruling on S.M.B.‘s objection to the magistrate‘s competency determination. The juvenile court‘s decision provides in relevant part:
The determination of competency is within the sound discretion of the trial judge. State v. Frazier, 61 Ohio St.3d 247, 251, 574 N.E.2d 483 (1991). The trial judge has the opportunity to observe the child‘s appearance, his or her manner of responding to the questions, general demeanor and any indicia of ability to relate the facts accurately and truthfully. Id. Nothing in the transcript associated with the instant matter indicated that the Magistrate abused her discretion or made an error by finding [M.P.] competent to testify. Consequently, the adjudicated delinquent minor‘s first objection is not well taken.
(Emphasis added.) (Nov. 22, 2017 Decision at 4.)
{¶ 65} We do not read the juvenile court‘s decision as an abandonment of the de novo standard of review. Rather, the juvenile court merely acknowledged the fact that the magistrate who presided over the competency hearing was in a better position to evaluate the witness because she had the opportunity to observe the witness as she testified, whereas the juvenile court‘s review was confined to the transcript. Clark, 71 Ohio St.3d at 469. The juvenile court reviewed the hearing transcript and applied the relevant law in determining the magistrate did not err in finding M.P. competent to testify. Thus, the juvenile court applied the correct standard in reviewing the magistrate‘s competency ruling. On this record, we cannot say the juvenile court abused its discretion in finding M.P. competent to testify as a witness in this matter.
{¶ 66} For the foregoing reasons, S.M.B.‘s first assignment of error is overruled.
C. S.M.B.‘s Second Assignment of Error
{¶ 67} In S.M.B.‘s second assignment of error, S.M.B. argues the juvenile court erred when it permitted M.P. to testify without having been administered an oath or affirmation declaring she would testify truthfully with an understanding of the penalties for not testifying truthfully. We disagree.
{¶ 68} Appellee argues that we should review S.M.B.‘s second assignment of error under the plain error standard because S.M.B. failed to object to the absence or
{¶ 69}
{¶ 70} Here, the trial transcript reveals the following exchange before M.P. took the stand to testify:
MAGISTRATE VAN DYKE: [M.P.], do you remember being in here a few days ago?
[M.P.]: Yeah.
MAGISTRATE VAN DYKE: Yeah. And do you remember I asked you some questions about whether you knew the difference between telling the truth and telling a lie. Do you remember that?
[M.P.]: Yeah.
MAGISTRATE VAN DYKE: And I want to make sure that you remember today that your job in here is to make sure that you tell the truth because we‘ve got two lawyers here who are going to be asking you questions. You know Ms. Julian – or Ms. Chris (sic), I don‘t know what you call her, but she‘s going to ask you questions first and then – Mr. Liston, are you going to be the one to cross or is –
ATTORNEY LISTON: It‘ll be me, Your Honor.
MAGISTRATE VAN DYKE: Okay. And then Mr. Liston – after she asks questions, Mr. Liston will get to ask you questions. So I want you to promise me today that you will give a very truthful answer to any questions that either of the attorneys ask you. Can you do that?
[M.P.]: Yeah.
{¶ 71} S.M.B. argues the magistrate‘s failure to specifically advise M.P. of the penalties for perjury rendered the oath “meaningless.” (S.M.B.‘s Brief at 46.) We disagree.
{¶ 72} M.P.‘s testimony at the competency hearing demonstrated that M.P. knew the difference between the truth and a lie, and she knew there were consequences for failing to tell the truth in court, including the possibility of being sent to jail. Though S.M.B. asks this court to disregard M.P.‘s statement about going to jail because M.P. admitted she was given that information by Toni Avena, the record establishes M.P. was aware of the consequences for lying in court, and she promised the magistrate she would tell the truth. Thus, the record shows that the oath in this case, though imperfect, was administered to M.P. in a form calculated to awaken her conscience and impress on M.P. her duty to tell the truth. Accordingly, on this record, even if we were to apply the abuse of discretion standard rather than the plain error standard, the result would be the same as the record shows the magistrate administered an oath sufficient for the magistrate to make a determination that M.P. would testify truthfully with the understanding of the penalties for not doing so. Accordingly, S.M.B.‘s second assignment of error is overruled.
D. S.M.B.‘s Third Assignment of Error
{¶ 73} In S.M.B.‘s third assignment of error, S.M.B. argues the trial court erred when it admitted the hearsay statements of the two victims in this case under the excited utterance hearsay exception in
1. Victim M.P.
{¶ 74}
Reactive excited statements are considered more trustworthy than hearsay generally on the dual grounds that, first, the stimulus renders the declarant incapable of fabrication and, second, the impression on the declarant‘s memory at the time of the statement is still fresh and intense. Accordingly, Rule 803(2) assumes that excited utterances are not flawed by lapses of memory or risks of insincerity.
{¶ 75} “[T]he excited-utterance exception is essentially a codification of Ohio common law governing spontaneous exclamations.” State v. Wallace, 37 Ohio St.3d 87, 89 (1988). “While courts are reluctant to find a statement to be an ‘excited utterance’ when a long period of time has elapsed between the event and the statement, ‘[t]here is no per se amount of time after which a statement can no longer be considered to be an excited utterance.‘” (Emphasis sic.) State v. Wampler, 6th Dist. No. L-15-1025, 2016-Ohio-4756, ¶ 34, quoting Taylor at 303; State v. Duncan, 53 Ohio St.2d 215, 220 (1978). In this vein, the Supreme Court “has upheld the admission of statements made by children who were sexually assaulted even after a substantial lapse of time.” Wampler at ¶ 34. The rationale for doing so is the recognition that ” ‘children are likely to remain in a state of nervous excitement longer than would an adult’ ” and that young children possess ‘limited reflective powers.’ ” Id., quoting Taylor at 304. It is “[t]he ‘[i]nability to fully reflect [that] makes it likely that the statements are trustworthy.‘” Wampler at ¶ 34, quoting Taylor at 304. Accordingly, the Supreme Court has determined “the excited utterance exception to the hearsay rule should be applied liberally in a case involving the sexual abuse of a young child.” Moore, 2019-Ohio-1671, at ¶ 38, citing State v. Boston, 46 Ohio St.3d 108, 118 (1989), overruled in part on other grounds in State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267. This approach is necessary due to “the age of the child, the shocking nature of the act, and the surprising nature of the assault.” Moore at 38.
{¶ 76} A hearsay statement is not, however, admissible under the excited utterance exception in
{¶ 77} Here, the testimony shows M.P.‘s statement to her mother that “[S.M.B.] has secrets” was spontaneously uttered by M.P. while her and her mother were watching a movie. (July 16, 2015 Tr. at 53.) Though C.P. stated that M.P. was initially calm when she uttered the statement, M.P. made the statement spontaneously and out of any recognizable context. What followed was C.P. asking M.P. what she meant, to which M.P. responded she “wasn‘t supposed to tell.” (July 16, 2015 Tr. at 53-54.) C.P. testified she told her daughter: “you don‘t keep secrets from mommy. You tell mommy.” (July 16, 2015 Tr. at 54.) M.P. testified that M.P. then told her “[S.M.B.] touches her butt,” which her mother understood to mean M.P.‘s vagina. (July 16, 2015 Tr. at 54.) M.P. then pointed between her legs when C.P. asked her where on her body S.M.B. touched her. When C.P. asked M.P. if her clothes were on or off when S.M.B. touched her butt, M.P. stated that her clothes were off. C.P. told the magistrate that M.P. became “nervous” on disclosing the sexual abuse. (July 16, 2015 Tr. at 52.) C.P. also told the magistrate that “maybe a month or two before” M.P.‘s disclosure, she was having “a lot of difficulty sleeping. * * * She was soiling her pants; having accidents when she didn‘t really do that. She was more clingy. She would cry.” (July 16, 2015 Tr. at 73, 74.)
{¶ 78} ” ‘A reviewing court should give the trial court wide discretion when the trial court decides that statements made by a child-victim about sexually abusive acts qualify as excited utterances.’ ” State v. Robinson, 12th Dist. No. CA2015-01-013, 2015-Ohio-4533, ¶ 29, quoting State v. Ashcraft, 12th Dist. No. CA97-11-217 (Sept. 28, 1998), citing State v. Wagner, 30 Ohio App.3d 261, 263 (8th Dist.1986). The decision of the trial judge determining whether or not a declaration should be admissible under the excited utterance exception to the hearsay rule should be sustained where such decision appears to be a reasonable one, even though the reviewing court, if sitting as a trial court, would have made a different decision. State v. Ames, 12th Dist. No. CA2000-02-024 (June 11, 2001), citing Potter v. Baker, 162 Ohio St. 488, 500 (1955) (decided under common law). “[W]hen the crime is rape, determining whether the victim is in an excited state is a factual question that
{¶ 79} Here, the record shows that M.P.‘s statements about the sexual abuse were in response to questioning by her mother that was neither coercive nor leading. C.P. simply asked M.P. an open-ended question allowing M.P. to explain what she meant by her statement “[S.M.B.] has secrets.” (July 16, 2015 Tr. at 53.) M.P.‘s revelations that followed can fairly be described as M.P.‘s expression of what was the natural focus of her thoughts. Wallace at 93. Because C.P. could not have known the subject of M.P.‘s statement, given the lack of context, her questions did not suggest a particular response. Thus, C.P.‘s questioning of M.P. merely facilitated M.P.‘s expression of what was in her mind. Id. Given the liberal application of the exited utterance hearsay exception to statements made by victims of child sexual abuse, it was reasonable for the magistrate and the juvenile court to conclude that M.P. was still under a state of nervous excitement when she uttered the statement “[S.M.B.] has secrets.” (July 16, 2015 Tr. at 53.)
{¶ 80} Furthermore, we find it reasonable for the magistrate and the juvenile court to conclude M.P. made the statements relating to sexual abuse she suffered at the hands of S.M.B. while M.P. was still under the stress of excitement caused by the abuse. C.P.‘s testimony about the sudden and disturbing changes in M.P.‘s behavior “maybe a month or two” prior to M.P.‘s disclosure permits an inference that the abuse occurred at that time. (July 16, 2015 Tr. at 74.) Under similar circumstances, Ohio courts have admitted out-of-court statements from child sexual abuse victims under the excited utterance exception. See, e.g., State v. Kincaid, 9th Dist. No. 94CA005942 (Oct. 18, 1995) (the court found statements of a six-year-old child to be “excited utterances” despite the fact that the statements were made months after she had been sexually abused); Ames (under the excited utterance exception, the court admitted testimony about statements made by the child victim approximately two months after the sexual abuse occurred); State v. Stipek, 7th Dist. No. 92-B-59 (Mar. 30, 1995) (trial court permitted testimony about statements made by the sixteen-year-old victim four-to-six weeks after the sexual abuse had occurred); Wampler (trial court did not abuse its discretion in admitting, under the excited utterance exception, out-of-court statements from a six-year-old witness of child sexual abuse even though the statements were made to police two months after the incident). Under the
2. Victim K.M.
{¶ 81} M.M. testified that in April 2014, K.M. “seemed apprehensive and scared” at the dinner table one night. (July 22, 2015 Tr. at 12.) According to M.M., her son spontaneously announced that “[S.M.B.] played with my penis and I didn‘t like it, and it hurt.” (July 22, 2015 Tr. at 13.) M.M. recalled that she “was in utter shock, as was everyone at the table and I tried—I asked him what happened, and he said the exact same thing and I said, ‘Are you sure?’ and he said, ‘Yes.’ ” (July 22, 2015 Tr. at 14.) M.M. testified that K.M. was taught to “use anatomically correct names” for body parts, and when he referred to his penis he is referring to “[h]is genitals.” (July 22, 2015 Tr. at 14.)
{¶ 82} In our view, M.M.‘s testimony establishes a sufficient foundation for the juvenile court to conclude that K.M.‘s spontaneous and unsolicited statement at the dinner table qualifies as an excited utterance under
{¶ 83} S.M.B. argues the juvenile court abused its discretion by admitting the out-of-court statements K.M. made to his mother because there was no evidence as to the time frame in which the sexual abuse occurred and, consequently, no basis for the juvenile court to determine the length of time between the sexual abuse and K.M.‘s statements. However, given the testimony that K.M. “seemed apprehensive and scared” just prior to making the statement establishes that, whenever the abuse occurred, K.M. was still in a state of nervous excitement when he made the exclamation.5 (July 22, 2015 Tr. at 12.)
{¶ 85} For the foregoing reasons, S.M.B.‘s third assignment of error is overruled.
E. S.M.B.‘s Fourth Assignment of Error
{¶ 86} In S.M.B.‘s fourth assignment of error, S.M.B. contends the juvenile court committed plain error when it admitted statements of incompetent declarants K.M. and M.P. We disagree.
{¶ 87} Pursuant to
{¶ 88} As set forth in our ruling on S.M.B.‘s second assignment of error, the juvenile court did not err when it determined M.P. was competent to testify as a witness in this matter. Accordingly, to the extent S.M.B.‘s fourth assignment of error pertains to out-of-court statements made by M.P., S.M.B. has not demonstrated plain error with regard to M.P.‘s competency at the time the out-of-court statements were made. Furthermore, in Wallace, the Supreme Court held the testimonial incompetence of a child declarant does not bar the admission of the child‘s declarations as excited utterances. Id., 37 Ohio St.3d at 93-94. In Wallace, the court recognized the determination of legal competency of a child for trial purposes is different than a determination of admissibility of the child‘s hearsay statements under
{¶ 89} With regard to the victims’ statements to various medical and forensic examiners, S.M.B.‘s assignment of error does not allege the statements of the victims at issue fail to qualify as statements made for the purpose of facilitating a medical diagnosis or treatment under the hearsay exception found in
{¶ 90} In Muttart, 2007-Ohio-5267, the Supreme Court held that a child victim‘s statement made for purposes of medical diagnosis or treatment is admissible under
{¶ 91} For the foregoing reasons, we hold that the juvenile court did not plainly err when it admitted the out-of-court statements of the two victims in this case. Accordingly, S.M.B.‘s fourth assignment of error is overruled.
{¶ 92} Having overruled S.M.B.‘s five assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
BEATTY BLUNT, J., concurs
NELSON, J., concurs in part and dissents in part.
NELSON, J., concurring in part and dissenting in part.
{¶ 93} I join in the judgment of the court with regard to the Count 2 adjudication pertaining to victim M.P., who testified at the proceedings before the magistrate. But I respectfully dissent from the court‘s judgment with regard to Count 3, the count for gross sexual imposition involving K.M., who was found not competent to testify. That count was supported by a statement made by three-year-old K.M. to his mother (although apparently not credited by her for a couple weeks until after she learned of other allegations), by a subsequent “forensic interview” at the child-advocacy center in which K.M., after three times rejecting any suggestion that anyone outside of his family had touched his genitals, then provided further and inculpatory comment after having been presented with the name of the alleged delinquent juvenile, S.M.B., in the abuse context—and by no other evidence. On review it is a close matter, but I do not think that the record in its entirety when weighed as required on our review bears out a delinquency determination beyond a reasonable doubt as to Count 3.
{¶ 94} To be sure, the waters in this area of child sex abuse cases as prosecuted on hearsay evidence can be notoriously murky, and the tides shift. For example, a quarter of a century ago in State v. Storch, 66 Ohio St.3d 280, 291 (1993), the Supreme Court of Ohio held that while admission of hearsay pursuant to a firmly rooted hearsay exception might not violate the federal constitution‘s Sixth Amendment Confrontation Clause, it nevertheless “may violate our state constitutional right of confrontation” under
{¶ 95} But Arnold itself, while holding that certain of the statements of a four-year-old child who was unavailable to testify at trial could constitutionally be admitted consistent with the Confrontation Clause as made for the purpose of medical diagnosis and treatment, also rigorously guarded against the admission of other statements made in the same forensic interview (with regard to statements that the United States Supreme Court today perhaps might not consider “testimonial,” see, e.g., Ohio v. Clark, 135 S.Ct. 2173, 2182 (2015) [statements “by very young children will rarely, if ever, implicate the confrontation clause“]). And the Justices in Ohio long have been frank to acknowledge the “considerable problems in devising a reasonable and workable application” of at least the treatment and diagnosis exception to the hearsay rule “in this troublesome area of the law” involving allegations of child abuse. State v. Dever, 64 Ohio St.3d 401, 404 (1992).
{¶ 96} Assessment of the evidence may be additionally complex here, too, because, as the court observes, counsel for S.M.B. appears to have conceded, or at least does not contest, that all of K.M.‘s statements at the child-advocacy center may have been made for purposes of treatment and diagnosis (despite the interview having been scheduled at the suggestion of the police, see July 22, 2015 Tr. at 29-30, with a police officer in attendance, id. at 79, with the “multidisciplinary team” deeming the videotape “property of law enforcement,” id. at 126, 78, and without any real understanding of the time period to which the statements may have related, or any likelihood in the context of these allegations that physical symptoms or physical medical treatment would be indicated, see July 27, 2015 Tr. at 47). But admissibility under that hearsay exception does not mean that these statements in context, along with the precipitating dinner table comment of K.M. admitted under a standard “applied liberally” without the normal indicia of excitement (as opposed to spontaneity) or any meaningful sense of the relevant timeframe involved, alone necessarily establish proof beyond a reasonable doubt given the balance of the record including (cross-examined) defense witness testimony.
{¶ 97} The understanding that “the live testimony of a child who has claimed abuse will in most cases enhance the reliability of the fact-finding process,” Storch, 66 Ohio St.3d at 292, does not determine this matter, but it does to some extent inform my concerns.
{¶ 98} “A very small child may not be competent to testify in open court,” Storch began. “If such a child is abused, the child may not be able to identify his or her attacker at a trial or tell the trier of fact what happened. Unless some other form of evidence can be presented, those who abuse small children will be at liberty to do so with utter impunity. This need for admissible evidence to force those who abuse small children to face the legal consequences of the abuse pushes courts to liberalize the rules under which evidence is admitted.” 66 Ohio St.3d at 284.
{¶ 99} But, Storch continued, “[l]iberalizing the standards for admitting evidence in trials involving allegations of child abuse is not without its risks. Not every child who says he or she has been abused has in fact been abused. * * * * [Children can become pawns, and the] innocent desire of small children to please the adults they encounter makes the problem more complicated still. * * * * Still, the fact is undeniable that child abuse, sexual or otherwise, does occur and is a monumental problem. * * * * Those who cruelly abuse children need to be punished for their cruelty and prevented from continuing or repeating their abuse. The innocent children need to be protected.” Id. at 284-85.
{¶ 100} Thus, the Supreme Court of Ohio continued, the “burden then falls upon the courts to devise rules of evidence for child abuse cases which maximize the likelihood of convictions for the guilty and minimize the likelihood of convicting the innocent, protecting and helping those children who truly have been abused while detecting those children whose stories of abuse are not true or accurate.” Id. at 285. To that end, the court continued, “Ohio has taken a significant step in bearing this burden through the adoption of
{¶ 101} The Supreme Court of Ohio had previously “encouraged the admission of in-court statements by the child,” Storch went on, with appropriate admonitions as to weight; the court also had considered exceptions to the hearsay rule, including the exception for statements made for the purpose of medical diagnosis or treatment, and the Supreme Court of the United States then had “rendered subsequent opinions which appear to be partially
{¶ 102} “For many years, the rights to confrontation set forth in the respective Constitutions were construed as being the same,” Storch expostulated, “in part because the right to confrontation in the Sixth Amendment was considered by the United States Supreme Court to require face-to-face confrontation in most circumstances.” Id. But the federal high court “has drifted away from that requirement,” Storch opined, id., to the point (in the characterization of the Supreme Court of Ohio) where “[i]f the [hearsay] statement falls within one of the well-established exceptions to the hearsay rule [such as ‘spontaneous declaration’ and ‘medical examination’ exceptions there at issue], no [federal] right to confrontation with the declarant exists,” id. at 290, citing White v. Illinois, 502 U.S. 346 (1992).
{¶ 103} That is not the rule under Ohio‘s Constitution, Storch said. ” ‘[T]he admission into evidence of a hearsay statement pursuant to a firmly rooted hearsay exception does not violate a defendant‘s right of confrontation’ under the Sixth Amendment as that federal right is defined by the United States Supreme Court [citing State v. Dever, 64 Ohio St.3d 401 (1992), at paragraph 3 of the syllabus]. However, the admission may violate our state constitutional right of confrontation.” 66 Ohio St.3d at 291 (adding that “[t]he third paragraph of Dever should be construed to that effect“). The court continued by emphasizing that under Ohio‘s constitutional provision, “the circumstances under which extrajudicial statements can be admitted into evidence are few.” Id. at 293.
{¶ 104} Although I confess to finding the Storch opinion somewhat elusive at that point, I think that it is most fairly read to hold, perhaps in some tension with the actual text of
{¶ 105} The Supreme Court of Ohio has cited Storch only once since the decision issued a quarter of a century ago, and then only to dismiss it in passing. In State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, ¶ 38, the court held that
{¶ 106} The defense in Muttart had not raised the Ohio Constitution, and the court summarized its precedents as giving a trial court discretion in appropriate cases to elect between admitting evidence under
{¶ 107} Muttart separately took up the federal Sixth Amendment, noting that under Crawford v. Washington, 541 U.S. 36 (2004), “the Confrontation Clause applies only to testimonial statements,” and reciting that “[s]tatements made to medical personnel for purposes of diagnosis or treatment are not inadmissible under Crawford, because they are not even remotely related to the evils that the Confrontation Clause was designed to avoid.” 2007-Ohio-5267, ¶ 59, 63.
{¶ 108} Two years later in State v. Silverman, 121 Ohio St.3d 581, 581-82, 2009-Ohio-1576, the Supreme Court of Ohio did not mention Storch in its 4-3 ruling that “statements of a child whose testimony is not reasonably obtainable” may be admissible under
{¶ 109} Arnold did not mention Storch either, but quoted from the pre-Storch case of State v. Self, 56 Ohio St.3d 73, 79 (1990), in reciting that ” ‘Section 10, Article I [of the Ohio Constitution] provides no greater right of confrontation than the Sixth Amendment.’ ” 2010-Ohio-2742, ¶ 12. (Self had involved the forcible rape of a six-year-old victim, leaving substantial physical evidence, and the cross-examined testimony by that victim through videotaped deposition.) After Silverman, Arnold, and use of the same quotation from Self in McKelton in 2016, it seems likely to me that Storch no longer provides authority for the proposition that Ohio‘s Constitution ensures greater confrontation clause rights than does the federal constitution as understood at the time of those decisions, at least with regard to “firmly rooted” hearsay exceptions. See also State v. Williams, 6th Dist. No. L-11-1084, 2013-Ohio-726 (subsequent jurisprudence limits Storch).
{¶ 110} Arnold took pains to describe the boundaries of permissible use of statements made to interviewers at child-advocacy centers, distinguishing between admissible “nontestimonial” statements made for purposes of medical diagnosis or treatment and inadmissible “testimonial” statements “made to interviewers at child-advocacy centers that serve primarily a forensic or investigative purpose.” 2010-Ohio-2742 at ¶ 2. There, in a case involving both visual observations of conduct from the time of the alleged sexual abuse and consistent physical evidence of injury “caused by acute trauma,” id. at ¶ 3, 7, the Supreme Court of Ohio reversed a judgment affirming conviction, and remanded for this court to determine whether the improper admission of various hearsay statements had amounted to harmless error, id. at ¶ 44 (as we then found that it did, State v. Arnold, 10th Dist. No. 07AP-789, 2010-Ohio-5622).
{¶ 111} The Supreme Court in Arnold noted that the interviewer in a child-advocacy center frequently operates in a “dual capacity,” gathering evidence for potential prosecution and also eliciting information necessary for medical diagnosis and treatment. 2010-Ohio-2742 at ¶ 33. The testimony in the present case further illuminates the interviewer‘s mixed-role functions. See, e.g., July 22, 2015 Tr. at 126 (interviewer describes “multidisciplinary team“), 128, 133, 178 (law enforcement and nurse practitioner attend “pre-team meeting” with interviewer and then watch interview over closed circuit). Arnold disallowed admission of those statements obtained “to further the state‘s forensic investigation,” including the child‘s description of the perpetrator‘s conduct apart from the actual physical abuse itself. The hearsay statement there, for example, that the rapist had removed the victim‘s underwear should have been excluded, along with descriptions of the perpetrator‘s anatomy, the account that he had locked the bedroom door before the rape, and the like; admission of those statements came in violation of the defendant‘s “Confrontation Clause” rights (which again the court viewed as coextensive under the federal and state constitutions). 2010-Ohio-2742 at ¶ 36, 34, 44, 12.
{¶ 112} To any extent that the federal constitution may not now be understood to bar admission of such statements as testimonial, a question probably not foreclosed by the facts or holding of Clark, Arnold arguably still maintains force under the Ohio Constitution despite the language repeated then and later from Self that the two provisions are entirely in parallel. Compare, e.g., State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, ¶ 41
{¶ 113} Counsel for S.M.B. here, though, while conceding that K.M‘s statements to the forensic interviewer “arguably fell under the 803(4) exception,” Appellant‘s Brief at 60, focuses on the three-year-old‘s lack of witness competency, and does not argue any distinction between testimonial or nontestimonial statements or suggest that any particular statement be excluded on that basis. See, e.g., id. at 56-62. Muttart militates against the argument that witness competency is a necessary precondition for admission of hearsay under the medical diagnosis and treatment exception.
{¶ 114} Nor does S.M.B.‘s argument on appeal outline confrontation clause arguments against the admissibility of K.M.‘s dinner table statements. Rather, counsel for S.M.B. submits that K.M‘s “remarks to his mother did not satisfy the
{¶ 115} It is true, and a fact that put S.M.B. at some considerable disadvantage with regard to any timing defense, that K.M.‘s dinner table statements (like his statements in response to questions from the forensic interviewer) did not—beyond the normal durational limitations that one might associate with child memories—identify any particular timeframe during which the touching was said to have occurred: K.M. had been going to the daycare for most of his young life, see Aug. 3, 2015 Tr. at 16 (K.M. began going there in August 2012).
{¶ 116} The majority concludes nonetheless that “K.M.‘s spontaneous and unsolicited statement at the dinner table qualifies as an excited utterance under
{¶ 117} I think it worth noting that the timeframe in Wagner of the events or condition generating the excitement in the excited utterance was substantially more defined than it is here; there, the small child complained of current pain and injury to his rectum as then confirmed on medical examination. 30 Ohio App.3d at 261. And in Moore, the timeframe at issue also was specific and relatively narrow: the child witness, who did testify at trial and whose account was corroborated by physical evidence, made her excited utterance about events of “the previous night.” 2019-Ohio-1671 at ¶ 35. In Boston, moreover, the crime traced to a visitation of only a day or two earlier, and the very young victim confided in her mother “at the earliest opportunity,” 46 Ohio St.3d at 118; see also id. at 108; such circumstances are by no means established on the record here.
{¶ 118} Moore also invoked Taylor, in which the Supreme Court disallowed as excited utterances statements made by an adult “hours after the ‘startling occurrence.’ ” 66 Ohio St.3d at 302. Taylor formulates the core of the test for excited utterances as being whether “the statement * * * even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over [the speaker‘s] reflective faculties, so that such domination continued to remain sufficient to make his statements * * * the unreflective and sincere expression of his actual impressions and beliefs.” Id. at 301.
{¶ 119} Taylor then does note that: “In the cases of statements made by children who say they were sexually assaulted, we have upheld the admission of those statements even when made after a substantial lapse of time, but in those cases we have done so because we recognize that children are likely to remain in a state of nervous excitement longer than would an adult.” Id. at 304, citing Boston, 46 Ohio St.3d at 118. And Taylor continues: “This trend of liberalizing the requirements for an excited utterance when
{¶ 120} Here, the magistrate also had cited to Wallace, identifying that authority as a basis for admission of K.M.‘s mother‘s recitation of K.M.‘s statements at dinner. Sept. 1, 2015 Judgment Entry at 5. In Wallace, somewhat notably, the 15-hour lapse between the event there and the statement had been precipitated by the assault‘s having rendered the child unconscious: a “period of unconsciousness, even an extended period, does not necessarily destroy the effect of a startling event upon the mind of the declarant for the purpose of satisfying the excited utterance exception to the hearsay rule.” 37 Ohio St.3d at 90.
{¶ 121} Wallace, like the 8th District Court of Appeal‘s Wagner opinion invoked by the majority here, cited to State v. Duncan, 53 Ohio St.2d 215 (1978). In that case, as in Boston, the statements were made at the child‘s “earliest opportunity” to confide in her mother, id. at 221: when the mother returned home from a laundromat, the child spoke immediately upon emerging from a closet, “shaking like ‘an epileptic seizure,’ ” and her condition when then examined by a physician “several hours after the incident” further confirmed her “continuing distress and anxiety,” id. at 217, 222. Duncan overturned a court of appeals decision that would have barred admission of the statement despite that context.
{¶ 122} This case, then, does not seem to me to present circumstances much analogous to those in Wallace, Duncan, Boston, Taylor, Moore, or Wagner. But Taylor‘s reference in dicta to the “limited reflective powers” of very young children is perhaps to some extent amplified by Muttart‘s observation that “[o]ther courts [in the context of other rules] have found that a child‘s young age and naivete may themselves be factors in favor of trustworthiness.” 2007-Ohio-5267, ¶ 49, fn. 6; see also, e.g., State v. Girts, 5th Dist. No. 08-CA-31, 2009-Ohio-3422, ¶ 25 (statement more than a week after event, in case with confession; test for excited utterance in child sex abuse case is “extremely liberal” given children‘s ” ‘limited reflective powers’ “); State v. Tebelman, 3d Dist. No. 12-09-01, 2010-Ohio-481, ¶ 29, 32 (same rationale, in case where victim testified; victim‘s statements occasioned by immediate physical discomfort caused by rape); but see, e.g., State v. Butcher, 170 Ohio App.3d 52, 62-63 (11th Dist.2007) (statements made after deliberation
{¶ 123} But in any event, even if I conclude that those statements were appropriately admitted as excited utterances under
{¶ 124} And it is of some note, perhaps, that neither the state nor the majority opinion appears to rely on any decision from the Supreme Court of Ohio or our own court upholding a criminal conviction or delinquency determination of abuse where the timing of the alleged act could not be specified and without victim testimony and based purely on hearsay evidence from others not corroborated by further direct testimony, physical
{¶ 125} The majority decision begins its weight assessment regarding the gross sexual imposition finding by observing that an advocacy center advanced practice nurse, “[a]fter observing K.M. while he was being interviewed by [forensic interviewer] Wilkinson, speaking with K.M. and his mother, and conducting a physical examination of K.M., * * * formed the opinion, to a reasonable degree of certainty, that K.M. had been the victim of inappropriate sexual conduct.” Majority Decision at ¶ 39. But the nurse‘s “physical examination of K.M.” contributed nothing to that judgment because, understandably and as expected, it revealed no indications of abuse. See July 27, 2015 Tr. at 47 (“I wouldn‘t expect there to be an injury to begin with“), 41 (“no signs of injury or trauma“), 50 (no indication “of any kind of physical harm or trauma“). She did not interview K.M., and he seems to have imparted no particular information to her. Id. at 50 (“Q: you didn‘t interview [K.M.] that evening, right? A: No I did not.“). So, as she was frank to say, her opinion on whether K.M. had been abused was based entirely on the account from the forensic interview. Id. at 47 (“My opinion was that there was inappropriate sexual contact that the child provided during his interview“).
{¶ 126} This court itself has the transcript of that interview, as did the trial court. I do not believe that the nurse‘s unadorned opinion on what K.M. told someone else adds significant weight to the state‘s case. Although we do not need to conclude that the nurse‘s opinion was improperly admitted, that testimony at least begins to suggest the rationale for the rule that “[a]n expert may not testify as to the expert‘s opinion of the veracity of the statements of a child declarant.” Boston, 46 Ohio St.3d 108, syllabus. See also State v. Kincaid, 9th Dist. No. 94CA005942, 1995 Ohio App.Lexis 4638, *8 (“error in admitting such expert testimony may be harmless beyond a reasonable doubt. This conclusion is warranted if the victim testifies and is subject to cross examination, the state introduces substantial medical evidence of sexual abuse, and the expert‘s testimony is cumulative to other evidence“); State v. Burrell, 89 Ohio App.3d 737, 746 (9th Dist.1993) (error “[b]ased upon the admission of [Dr.] Powell‘s testimony that he believed that L was a victim of sexual abuse, when he conceded that the sole foundation for that belief was his assessment of her veracity“).
{¶ 127} In State v. Cashin, 10th Dist. No. 09AP-367, 2009-Ohio-6419, ¶ 20 (citation omitted), we discussed the significance and the limits of Boston‘s evidentiary preclusion, finding no error in the admission of a social worker‘s testimony “as to the substance of the statements made by [a child] during their interview [and then recounted by the social worker], and about [the child‘s] general demeanor, but [that] did not make any direct statement expressing any opinion about whether [the child‘s] statements were true. Only statements directly supporting the veracity of a child witness are prohibited under Boston.” Here, the nurse‘s opinion that abuse had occurred was not presented as based on any behavior displayed by K.M. as being consistent or not inconsistent with abuse, compare State v. Stowers, 81 Ohio St.3d 260 (1998), or on any facts apart from the account that K.M. gave the forensic interviewer. Rather, her opinion was based on her interpretation of “the context that the child gave” to that interviewer. July 27, 2015 Tr. at 55. My point is not to protest the admissibility of the opinion, but to say that on review I do not find it to supply appreciable weight beyond the facts of the earlier forensic interview.
{¶ 128} That brings us to the forensic interview. The majority decision accurately recounts that “K.M. initially answered ‘no’ when asked if anyone other than his parents [that is, his mother and her boyfriend] and his sister touched his penis.” Majority Decision at ¶ 42. In fact, in different ways and different contexts, K.M. responded multiple times that no one beyond those three had touched him there.
{¶ 129} Asked, “[h]as someone ever touched your penis, [K.M.]?,” he responded “[y]es.” July 22, 2015 Tr. at 100. He then described in some detail that his mother had touched his penis while bathing him. Id. at 100-02. The forensic interviewer then asked, “[s]o, has someone else touched your penis?” K.M. again responded “[y]es,” and named his mother‘s boyfriend, again in the bathing context. Id. at 102; see also id. at 103-05 (“A: But he doesn‘t like my penis * * * * my penis stinks. * * * Q: [He] says your penis stinks? A: Yeah“). Then asked, “[i]s there someone else who touches your penis?” he further named his sister, again in the bathtub context. Id. at 105-06 (this time drawing a reaction from the forensic interviewer, who enjoined him to “[g]o tell mommy if someone ever tickles your penis“). That exhausted K.M.‘s list, at that point. Id. at 106 (“Q: Has someone else touched your penis? * * * * A: Only -- they don‘t touch my penis.“)
{¶ 130} In response to non-leading questions, K.M. then repeatedly told the interviewer that no one else had touched his penis:
Q: Did someone else touch it, or is that it?
A: Huh?
Q: Does someone else touch your penis?
A: No.
Q: No? Has someone ever hurt your penis?
A: Nuh-huh (negative response).
Q: No?
A: Nuh-huh (negative response).
July 22, 2015 Tr. at 106-07.
{¶ 131} After the forensic interviewer interposed four questions that elicited the response that no one had ever touched or hurt his rear end, id., the forensic interviewer herself introduced S.M.B.‘s name into this conversation about people touching K.M.‘s private parts. “Q: No. Okay. All right. I heard something about [S.M.B.]? I heard something happened with [S.M.B.].” It was then that K.M. responded: “He played with my penis, [S.M.B.] did.” July 22, 2015 Tr. at 107. The interview continued:
Q: Oh. He played with your penis? Tell me all about [S.M.B] playing with your penis.
A: He got a tissue and -- he got a tissue and he wiped it.
Q: He got a tissue and wiped it?
A: Uh-huh (affirmative response). * * * *
Id. at 107-08.
{¶ 132} The interview then proceeded, with K.M. describing that he had been sleeping in S.M.B.‘s room, with others in the living room.
Q: Were you sleeping when [S.M.B.] touched your penis?
A: Yes.
Q: Or were you awake when he touched your penis or something else?
A: I was awake.* * * *
Q: Or played with it, you said? You said he played with it, what did he do?
A: I don‘t know.
Q: Okay. What was he using to play with your penis? What did he use to play with -- with your penis? A: His hand.
Q: He used his hand. Okay. Was there something on his hand when he played with your penis?
A: No.
Q: No. Okay. I thought you said something about a tissue, so I --
A: Oh, a tissue was on him. A tissue was on his hand.
Q: A tissue was on his hand when he played with it?
A: Uh-huh (affirmative response).
Q: Okay.
A: I‘m done talking. * * * *
Q: How were your clothes when he touched your penis, like how were your pants when [S.M.B.] was touching your penis?
A: He taked off my pants and -- and my underwear.* * * *
July 22, 2015 Tr. at 109-11.
{¶ 133} K.M. then said that S.M.B. had shut the door and left. Id. at 111. K.M. then apparently made reference to M.P. Id. at 111 (“and then [M.P.]. Q: And then what? A: [M.P.] got (inaudible). Q: What happened to [M.P.]? Did you say something about [M.P.]? A: No. Q: I --. A: I didn‘t say something at all.“). K.M.‘s forensic interview continued, with K.M. stating that S.M.B. had woken him up with the touching. Id. at 112.
{¶ 134} Whether or not the forensic interviewer‘s questioning comported with advocacy center guidelines—and the interviewer‘s insertion of S.M.B.‘s name into the discussion of who had touched K.M.‘s private parts went well beyond the specified guideline questions that the majority decision cites at footnote 3 above, just as surely as the guidelines themselves maintain that while “[i]deally * * * prompts are non-leading or suggestive however with younger children more direct prompts may be needed,” see Def.‘s Ex. 7 at 2—K.M. did not introduce S.M.B. into the discussion about who touched his penis until “prompt[ed]” by the forensic interviewer to do so. Compare Majority Decision at ¶ 27 (forensic interviewer “acknowledged the protocols require the interviewer to remain neutral and to focus on factfinding, without suggesting answers“; July 22, 2015 Tr. at 159-
{¶ 135} The characterization that the forensic interviewer‘s “questioning of K.M. merely invited K.M. to reveal anything that may have happened with S.M.B. but did not suggest a particular response,” see Majority Decision at ¶ 41, may be correct as far as it goes, but does not speak to what I believe is the important context in which that questioning came: K.M. had already listed those who had touched his penis, and had not included S.M.B.; K.M. had said three times more that no one else ever had touched his penis; and it was in the immediate context of the touching of his private parts that the forensic interviewer suggested S.M.B.‘s name. I acknowledge that “a majority of [the forensic interviewer‘s] questions put to K.M. were not leading,” Majority Decision at ¶ 41, but the ones that were had some rather significant effect.
{¶ 136} As its final point on the weight of the evidence favoring this delinquency finding, the majority decision notes that “when speaking about S.M.B., K.M. gave a somewhat detailed description of the sexual contact.” Id. at ¶ 42. That is true, even if that is precisely the sort of detail that Arnold might exclude as not properly admitted for reasons of medical diagnosis and treatment and as “inadmissible pursuant to the confrontation clause.” See 2010-Ohio-2742 at ¶ 44. In this case, for the reasons noted above, the issue is not admissibility under “the bedrock procedural guarantee[s]” of the federal and Ohio Constitutions, id. at ¶ 12; the issue is the weight to be accorded this evidence. That weight is affected, substantially in my view, because K.M.‘s responses could not be tested. Certain apparent contradictions could not be probed; other references (to M.P., for example, in the answers that K.M. then denied having made) could not be explored.
{¶ 137} K.M. was not available for cross-examination because he was found not competent to testify. That determination—made after his July competency hearing at which he had responded “[y]eah” to the magistrate‘s question, “[i]f you told me it‘s cold outside today, you think that would be the truth?“, and at which when the magistrate began, “[a]nd if I told you * * * that everything you told me had to be absolutely true --” K.M. cut her off with “[n]o“—is entirely understandable. July 7, 2015 Tr. at 31, 33. But to my mind, statements made in response to the sometimes significantly leading questions of a forensic interviewer at a children‘s advocacy center do not necessarily carry the same weight as the
{¶ 138} The forensic interview followed by some weeks K.M.‘s dinner table statement that his mother had not believed required his immediate removal from the daycare. Again, that statement quite understandably provided no timeframe for the alleged abuse, and the speaker quite understandably could not be examined at trial. And although the magistrate found, as the reviewing courts have not, that “all testimony relating to the allegations by [K.M.]” satisfied “all aspects of Evid. Rule 807(A),” September 1, 2015 Judgment Entry at 5, there appears to be no “independent proof of the sexual activity or attempted sexual activity” as required for the operation of that rule, see
{¶ 139} S.M.B. did testify, too (as did his mother), and that testimony asserting innocence is in the mix as well. The state, in addressing the manifest weight issues, responds to S.M.B.‘s claim that he lacked opportunity to commit the offense by arguing that “not every second of [his] time was accounted for.” Appellee‘s Brief at 68. Given that none of the evidence apprised anyone of what day, or week, or month the assault of K.M. allegedly occurred, the fact that S.M.B. could not account for “every second” of his time (and that his defense is judged deficient on that basis) serves to highlight the nature of the case against him with regard to K.M., but hardly provides weight to the state‘s case.
{¶ 140} Just as this is not a case like Wallace, involving physical evidence and statements made immediately after the victim regained consciousness, this is not a case like State v. Wampler, 6th Dist. No. L-15-1025, 2016-Ohio-4756, in which all the victims testified, with at least two speaking to the attacks on their own person and one as an eyewitness to the victimization of the third. See, e.g., id. at ¶ 58 (reiterating the important understanding that “the testimony of a rape victim, if believed, is sufficient to support each element of rape“). I understand that no one suggests that we move from abstract case citation to citation, unmoored from the facts of precedents that are much removed from the circumstances at hand and in the process diluting the requisite level of proof. And no one suggests constructing further incentives to shield witnesses from cross-examination once
{¶ 141} While I concur in the judgment of the court with regard to the delinquency determination in Count 2, I respectfully dissent in this difficult case with regard to the gross sexual imposition determination (Count 3) and would remand that matter to the juvenile court.
Notes
Conducting the Interview:
Interviews are conducted in a way to allow children to provide as much free narrative information as possible; however, questions are modified to reflect variables such as: age, developmental level, and emotional trauma.
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Transition to Topic of Concern: