2007 Ohio 3776 | Ohio Ct. App. | 2007
{¶ 3} Appellant waived his right to a jury trial and tried his case to the court starting February 13, 2006. On February 22, 2006, the court found appellant guilty of the following offenses with S.B. as the victim: four counts of rape of a person under 13 years of age with a force specification, in violation of R.C.
{¶ 4} On April 10, 2006, appellant was classified as a sexual predator, and on April 12, 2006, the court sentenced appellant to life in prison, specifically in the following manner: five concurrent life terms for the rape offenses; four years for all offenses against D.D., to run concurrent to each other but consecutive to the life terms; and four years for all other offenses to run concurrent with all other sentences.
{¶ 6} We recently ruled on this issue in a similar case where the defendant was charged with 47 counts relating to child sex abuse, with multiple victims, spanning over a five-year period. In State v.Thompson, Cuyahoga App. No. 86357,
"R.C.
2941.08 (C) states that an indictment `is not made invalid * * * for stating the time imperfectly.' Additionally, the Ohio Supreme Court has held the following: `Ordinarily, precise times and dates are not essential elements of offenses. Thus, the failure to provide dates and times in an indictment will not alone provide a basis for dismissal of the charges. A certain degree of inexactitude of averments, where they relate to matters other than elements of the offense, is not per se impermissible or necessarily fatal to a prosecution.' State v. Sellards (1985),17 Ohio St.3d 169 ,171 . Additionally, the Ohio Supreme Court stated that two things are taken into consideration regarding specific dates in an indictment or a bill of particulars. State v. Lawrinson (1990),49 Ohio St.3d 238 ,239 . First, whether the state has more detailed information and second, `whether this information is material to the defendant's ability to prepare and present a defense.' Id."
{¶ 7} In the instant case, the date of the crime is not an essential element of any of the offenses at issue. Furthermore, specific dates were narrowed down as the minor victims testified and the state amended the indictments accordingly. Appellant makes no plausible argument as to why general time frames, as opposed to specific dates, deprived him of any constitutional rights, and his first assignment of error is overruled. *4
{¶ 9} Pursuant to Crim.R. 7(D), an amendment may be made to an indictment where the change does not alter the substance or identity of the crime charged. For the reasons outlined in our analysis of appellant's first assignment of error, adding more specificity to the offense dates did not alter the substance of the crime charged. See, also, State v. McBooth, Cuyahoga App. No. 82811,
{¶ 11} "[A] county social worker is permitted to testify as to her disposition of a case because this is merely a reflection of the agency's classification of cases and not a judicial determination."State v. Benjamin, Cuyahoga App. No. 87364,
{¶ 12} In the instant case, Michael Bokmiller and Donna Coffey, both social workers with CCDCFS, testified that, based upon their investigations, D.D. and S.B.'s allegations, respectively, were "substantiated," as determined by CCDCFS standards. We found almost identical testimony proper in Benjamin and Smelcer, and appellant's third assignment of error is overruled.
{¶ 14} The standard of review for admissibility of evidence is abuse of discretion. See Peters v. Ohio State Lottery Comm. (1992),
{¶ 15} The statements made to Remington were testimonial in nature and are properly analyzed under Crawford v. Washington (2004),
{¶ 16} First, D.D.'s mother testified as to her conversation with appellant's mother regarding appellant impregnating D.D. Appellant's argument that these statements affected his rights fails outright, when ultrasound and DNA tests admitted into evidence determined, with a reasonable degree of medical certainty, that D.D. was pregnant with appellant's child.
{¶ 17} Second, Williams testified about a conversation she had with S.B. after a class in March 2005, where S.B. told Williams that she was having sex with an older man who was an uncle in her adopted family. Evid.R. 801(C) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Statements that are not offered to prove the truth of what was said are not hearsay.State v. Davis (1991),
*8"Hold on. At this stage, this is not necessarily being offered for the truth of what's said. It's being offered for that it was said. So for the limited purpose, I don't think that the hearsay objection applies. So you may maintain that, but — and she's already testified — but it's more not asserted for the truth. It's asserted that it was said. * * *" (Emphasis added.)
{¶ 18} In other words, the testimony was offered to show that S.B. complained to her teacher about what appellant was doing to her. This is not hearsay, as defined by Evid.R. 801(C), and the court did not err by allowing the testimony.
{¶ 19} Third, Remington testified about what she learned from appellant's mother and S.B. during her investigation. Appellant's argument regarding Remington's testimony also fails. First, we reiterate that Remington's statements are testimonial in nature and, thus, subject to the Crawford analysis. Testimonial statements are not admissible unless the declarant is unavailable and the defendant has had an opportunity to conduct a cross-examination. Most of Remington's testimony is her own recollection of the investigation, rather than statements made by others. "Statements which are offered to explain a police officer's conduct while investigating a crime are * * * not hearsay." State v. Price (1992),
{¶ 20} Of Remington's testimony, the following two sentences may be considered hearsay, because Remington refers to what appellant's mother said: "She said that she had not," (referring to whether appellant's mother knew D.D. had been pregnant with appellant's child and then had an abortion); and "she told me that it had been unsubstantiated," (referring to whether appellant's mother knew S.B. had tried to disclose that appellant was having sexual relations with her). *9
{¶ 21} We see no exceptional circumstances surrounding these statements that would lead us to label the admission of them as plain error. These are minor statements that are incidental to the overwhelming amount of evidence against appellant, including his own admission that he had sexual relations with D.D. Appellant's fourth assignment of error is without merit and is overruled.
{¶ 23} R.C.
{¶ 24} In the instant case, appellant was convicted of five violations of R.C.
"The force and violence necessary in rape is naturally a relative term, depending upon the age, size and strength of the parties and their relation to each other; as the relation between a father and daughter under twelve years of age. With the filial obligation of obedience to the parent, the same degree of force and violence would not be required upon a person of such tender years, as would be required were the parties more nearly equal in age, size and strength."
State v. Labus (1921),
{¶ 26} In the instant case, before finding appellant guilty of rape, the court stated the following:
*12"Force normally means any violence, compulsion or constraint physically exerted by any means or against any person or thing. That is not the definition that applies to a child, * * * of tender years, under the age of 13.
"In State v. Dye, which is a Supreme Court case that we have all referred to, it is impossible to manage the rape of a child without force being involved.
"Clearly, a child cannot be found to have consented to rape. However, * * * the statute requires that some amount of force must be proven beyond a reasonable doubt, and that force is inherent in the crime itself.
"I don't know if I heard testimony relating specifically to fear by [S.B.]. But I did hear what I believe to be testimony that he compelled her by a threat of force, and put her will to be overcome by duress.
"Duress is defined by Black's [dictionary] as any unlawful threat or coercion used by a person to induce another to act or to refrain from acting in a manner that he or she otherwise would not or * * *, subjecting the person to improper pressure, which overcomes his or her will, or could assist him or her to comply.
"I find there was force. So Count One, the defendant is found guilty of the furthermore clause also."
{¶ 27} Accordingly, the court did not modify the statutory definition of force, appellant points to no case law supporting his proposition that he was denied "due process of law" when the court found his crime inherently forceful, and his sixth and seventh assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. *14
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
*1KENNETH A. ROCCO, J., and MARY J. BOYLE, J., CONCUR