STATE OF OHIO, PLAINTIFF-APPELLEE, v. JAMES E. BENNETT, DEFENDANT-APPELLANT.
CASE NO. 16-19-03
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY
December 2, 2019
2019-Ohio-4937
Appeal from Wyandot County Common Pleas Court Trial Court No. 18-CR-0081
Judgment Affirmed
Date of Decision: December 2, 2019
APPEARANCES:
Joel M. Spitzer for Appellant
Douglas D. Rowland for Appellee
{1} Defendant-appellant, James E. Bennett (“Bennett“), brings this appeal from the June 17, 2019, judgment of the Wyandot County Common Pleas Court sentencing him to twenty-four months in prison after Bennett was convicted in a bench trial of Gross Sexual Imposition in violation of
Background
{2} For nearly fifty years Bennett‘s wife, Cheri1, ran a childcare business out of their home. On April 25, 2018, Cheri was the babysitter for the daughter of Katie L. and Aaron L., A.L, who was four years old. Cheri had been babysitting A.L. since shortly after A.L. was born. Prior to babysitting A.L., Cheri was the babysitter for A.L.‘s older sister N.L. until N.L. started school. The Bennetts and
{3} After work on April 25, 2018, Katie L. picked up A.L. from the Bennett residence and brought A.L. home. The family had dinner, and then shortly thereafter Aaron L. was preparing A.L. for a bath. At that time, Aaron noticed that A.L. was hesitant and did not want to get into the bathtub. Aaron asked A.L. what the problem was and A.L. said that “her girl parts hurt.” (Tr. at 16). Aaron noticed that A.L.‘s vagina was visibly red. Aaron asked A.L. why it hurt and she told Aaron that Bennett “had touched her.” (Id. at 17). Aaron asked if A.L. meant the touching occurred when Bennett was “helping her on or off the potty” and whether Bennett had possibly “wiped her too hard,” but A.L. said no. (Id.) Aaron inquired again regarding whether the touching was bathroom-related and A.L. again said no. A.L. said that Bennett touched her during naptime while Cheri was upstairs with the puppies napping. Aaron proceeded to bathe A.L. then told Katie to talk to A.L.
{4} Katie went to dry A.L. after the bath and noticed that A.L.‘s “bottom” was red. Katie asked if A.L.‘s pants were irritating her and A.L. told Katie that Bennett had caused the problem. Katie asked how Bennett hurt A.L. and A.L. said that Bennett “rubbed her very hard with his hands” during nap time. (Tr. at 43). A.L. reiterated that Cheri was upstairs with the puppies and that the other children that Cheri was babysitting were sleeping on a quilt. A.L. told Katie that Bennett
{5} Aaron and Katie contacted a friend who worked with a Sheriff‘s department. They also collected the clothes that A.L. had been wearing that day, including her underwear, and put them into a bag. On the next day, A.L. was taken for a sexual assault examination conducted by a sexual assault nurse examiner (“SANE“). At that time the SANE noted that there was some redness in A.L.‘s genitalia, though she stated that was not uncommon for a four year old. The SANE asked A.L. if anyone had touched her and A.L. did not respond. A.L. did not make a disclosure to the SANE, and the SANE stated that A.L. was very shy during the examination.
{6} On May 7, 2018, a forensic interview of A.L. was conducted at Nationwide Children‘s Hospital. During that interview A.L. did not disclose anything and she indicated that she had not been improperly touched.
{7} The clothes that had been collected from A.L. were sent to BCI for testing. A forensic scientist did a screening test on the underwear for semen and a separate screening test for “amylase,” which was commonly found in high concentrations in saliva, but could also be from other bodily fluids such as sweat or
{8} Bennett was interviewed by the police on June 6, 2018. He stated that he never helped A.L. use the bathroom and that he had no contact with her private areas whatsoever. He stated that A.L. went to the bathroom by herself, and that she used a bathroom downstairs. He willingly gave a DNA sample when asked. DNA was also taken from A.L.‘s father.
{9} The DNA analysis revealed that DNA consistent with Bennett‘s was present in both samples taken from A.L.‘s underwear. In fact, Bennett was included in the mixture at a rate rarer than one in one trillion, which the forensic scientist testified was the highest reportable statistic. Aaron was excluded as a contributor to the DNA in the crotch region of A.L.‘s underwear.
{10} Bennett was interviewed a second time after the DNA results returned. He again denied knowing how it was possible that his DNA would be in A.L.‘s underwear.
{11} On July 11, 2018, Bennett was indicted for one count of Gross Sexual Imposition in violation of
{12} On October 15, 2018, the State filed a “Motion to Allow Child‘s Statements at Trial Pursuant to Evidence Rule 807.” The State contended that
{13} On October 16, 2018, Bennett filed a motion to suppress A.L.‘s statements, seeking to prevent them from being introduced at trial.
{14} A hearing was held on October 30, 2018, and December 6, 2018, for purposes of determining the admissibility of
{15} The trial court then heard the testimony of A.L.‘s parents and the arguments of the parties regarding the potential admissibility of A.L.‘s statements to her parents. At the conclusion of the hearing, the trial court determined as follows.
The Court found the disclosure of sexual activity made by A.L. to her parents are admissible pursuant to Evidence Rule 807. Therefore, both Aaron [L]. and Katie [L]. are permitted to testify at trial regarding the disclosure made by A.L. to her parents. The disclosure was made in close proximity to the alleged sexual activity. The child‘s statements to her parents were consistent. The statements given the totality of the circumstances are trustworthy. There is independent proof of sexual activity given the report from the Attorney General‘s Office related to the Defendant‘s DNA on A.L.‘s underwear.
(Doc. No. 31). The trial court thus granted the State‘s motion pursuant to
{16} Subsequently, Bennett filed a written waiver of a jury trial, electing to proceed to a bench trial.
{17} On January 8, 2019, Bennet filed subpoenas duces tecum seeking Aaron and Katie‘s tax records from 2016, 2017, and 2018. Bennett also sought tax records from Aaron‘s construction business. Bennett requested that Katie and Aaron bring the tax documents to trial.
{18} On January 11, 2019, the State filed a “Motion to Quash” the subpoenas duces tecum issued to Aaron and Katie. The State argued that
{19} On January 17, 2019, Bennett filed a response arguing that he had a right to confront witnesses and that there was the potential that Aaron and Katie
{20} On January 22, 2019, the trial court filed a judgment entry granting the State‘s motion to quash the subpoenas duces tecum requesting Aaron and Katie to produce tax records. In its entry on the matter, the trial court stated, “Upon consideration of same, and for good cause shown, the Court finds said Motion [to Quash] to be well-taken.” (Doc. No. 54).
{21} On February 5, 2019, Bennett filed a notice of alibi stating that he was golfing from mid-morning to mid-afternoon on April 25, 2018. After the State requested that Bennett be more specific, Bennett amended his notice of alibi to state that he was golfing specifically at Bob‘s Countryside Golf Course north of Upper Sandusky.
{22} On February 15, 2019, Bennett filed a new amended notice of alibi, indicating that he was actually golfing at the Bucyrus Country Club/Valley View Golf Course on the day of the alleged incident.
{24} In Bennett‘s case-in-chief, he presented the testimony of his wife, Cheri, who testified that she never left the children alone in a situation where something could have happened to them. In addition, Cheri testified that she remembered the day in question because it was her granddaughter‘s birthday. Cheri testified that when her daughter called that day Bennett was not home. Moreover, Cheri testified that Bennett was a smoker and that he spit often, including into the toilet. The defense suggested this as a possible reasoning for amylase DNA being in A.L.‘s underwear.
{25} Bennett‘s daughter also testified that when she called her parents’ residence on April 25, 2018, her father was not at home. In addition, she testified that she looked up the weather for that day and it was a nice day.
{26} Bennett presented the testimony of two people who testified that on nice days Bennett would golf with them. However, they testified they did not know if they golfed with Bennett specifically on April 25, 2018. All the witnesses that
{27} Bennett also presented the testimony of the social worker that interviewed A.L. at Nationwide Children‘s Hospital. The social worker testified that A.L. did not disclose that anything had happened to her in the interview. That interview was introduced into evidence.
{28} In addition, Bennett presented the testimony of a doctor who reviewed the records in this matter, in particular the forensic interview at Nationwide Children‘s Hospital, and concluded that she did not “see anything in there that is convincing that [A.L.] was sexually abused from that piece of evidence.” (Tr. at 315). However, she admitted that A.L. might not have understood that the touching she received, if it happened, was traumatic or sexual abuse.
{29} Finally Bennett testified on his own behalf, indicating that he was a retired Ohio State Highway Patrolman, that he was still active as a court bailiff and that he had a side job transporting individuals to medical appointments. Bennett testified that according to his phone records he was around Bucyrus shortly before 12:30 p.m. on the date in question, which was at a time when the children usually took naps. Bennett testified that he never touched A.L., and that he had never been alone with her. He testified that he was shocked that the results came back with his DNA in A.L.‘s underwear.
{31} On May 30, 2019, Bennett filed a sentencing memorandum arguing in favor of being placed on community control.
{32} On May 31, 2019, Bennett filed a motion for leave to file a motion for a new trial instanter. He argued that he received ineffective assistance of trial counsel for his trial counsel advising him to proceed to a bench trial rather than a jury trial.
{33} On May 31, 2019, the case proceeded to sentencing. Prior to sentencing Bennett, the trial court granted Bennett leave to file his motion for a new trial instanter, and heard Bennett‘s argument on the motion. The trial court then overruled Bennett‘s motion for a new trial. Afterward, the trial court proceeded to sentencing and Bennett was ordered to serve twenty-four months in prison. A judgment entry memorializing Bennett‘s sentence was filed June 17, 2019. It is from this judgment that Bennett appeals, asserting the following assignments of error for our review.
Assignment of Error No. 1
The trial court abused its discretion when it entered a judgment against the appellant when the judgment was not supported by the manifest weight of the evidence.
The trial court erred when it failed to grant the defendant‘s motion for acquittal as the guilty verdict at the trial court was not supported by sufficient evidence.
Assignment of Error No. 3
The trial court‘s sentence of appellant was not supported by the record and was contrary to law.
Assignment of Error No. 4
The trial court abused its discretion when it granted the State‘s motion to quash without holding an evidentiary hearing.
Assignment of Error No. 5
The trial court erred when it admitted hearsay statements pursuant to Evidence Rule 807, denying Appellant‘s constitutional right to confront his accuser.
{34} We elect to address the assignments of error out of the order in which they were raised.
Fifth Assignment of Error
{35} In his fifth assignment of error, Bennett argues that the trial court erred by permitting the State to present A.L.‘s statements to her parents pursuant to
Standard of Review
{36} A trial court‘s decision to admit statements under
Analysis
{37} Generally hearsay is not admissible at trial pursuant to
(A) An out-of-court statement made by a child who is under twelve years of age at the time of trial or hearing describing any sexual activity performed, or attempted to be performed, by, with, or on the child or describing any act or attempted act of physical harm directed against the child‘s person is not excluded as hearsay under Evid.R. 802 if all of the following apply:
(1) The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted pursuant to Evid.R. 803 and 804. The circumstances must establish that the child was particularly likely to be telling the truth when the statement was made and that the test of cross-examination would add little to the reliability of the statement. In making its determination of the reliability of the statement, the court shall consider all of the circumstances surrounding the making of the statement, including but not limited to spontaneity, the internal consistency of the statement,
the mental state of the child, the child‘s motive or lack of motive to fabricate, the child‘s use of terminology unexpected of a child of similar age, the means by which the statement was elicited, and the lapse of time between the act and the statement. In making this determination, the court shall not consider whether there is independent proof of the sexual activity or attempted sexual activity, or of the act or attempted act of physical harm directed against the child‘s person; (2) The child‘s testimony is not reasonably obtainable by the proponent of the statement;
(3) There is independent proof of the sexual activity or attempted sexual activity, or of the act or attempted act of physical harm directed against the child‘s person;
(4) At least ten days before the trial or hearing, a proponent of the statement has notified all other parties in writing of the content of the statement, the time and place at which the statement was made, the identity of the witness who is to testify about the statement, and the circumstances surrounding the statement that are claimed to indicate its trustworthiness.
The Supreme Court of Ohio has described
{38} In this case, the State filed a motion to present
{39} Both Katie and Aaron testified at the hearing regarding the circumstances surrounding A.L.‘s disclosure on April 25, 2018, and regarding the statements that A.L. made at that time. Following the testimony, and the arguments
{40} As to the second element of
{41} As to the third element of
{43} Moreover, under similar circumstances to the case sub judice, where a child was determined to “be unable to speak or relate anything to the court” and where there was DNA in the child‘s underwear to supply independent proof of sexual contact, a child‘s statements have been found to be admissible at trial under
{44} In Bennett‘s second assignment of error, he argues that the trial court erred by denying his motion for acquittal. He contends that the State presented insufficient evidence to convict him of Gross Sexual Imposition.
Standard of Review
{45} A motion for acquittal tests the sufficiency of the evidence presented by the State at trial. State v. Disabato, 3d Dist. Union No. 14-18-23, 2019-Ohio-3542, ¶ 11. Therefore, we review a trial court‘s decision denying a motion for acquittal using the same standard used in a sufficiency of the evidence claim. Id. quoting State v. Moore, 3d Dist. Union No. 14-08-43, 2009-Ohio-2106, ¶ 20, citing State v. Lightner, 3d Dist. Hardin No. 6-08-11, 2009-Ohio-544, ¶ 11, citing State v. Carter, 72 Ohio St.3d 545, 553 (1995).
{46} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential
Analysis
{47} In this case, Bennett was convicted of Gross Sexual Imposition in violation of
(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
* * *
(4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.
{48} In order to convict Bennett at trial of Gross Sexual Imposition, the State presented testimony that on April 25, 2018, A.L. claimed that Bennett rubbed her very hard in her private region. A.L.‘s parents both noted some redness in the
{49} On appeal, Bennett argues that even when looking at the evidence in the light most favorable to the State, the State did not establish that any touching of A.L. was done for the purpose of sexually arousing or gratifying either person. Bennett argues that such specific intent seeking sexual arousal or gratification had to be shown pursuant to State v. Dunlap, 129 Ohio St.3d 461, 2011-Ohio-4111, ¶ 25, in order to support a conviction for Gross Sexual Imposition.
{50} Notably, there is no specific requirement for direct testimony regarding sexual arousal or gratification; rather, in determining whether sexual contact occurred, the factfinder may infer from the evidence whether a defendant‘s contact with an erogenous zone under
First Assignment of Error
{52} In Bennett‘s first assignment of error, he argues that his conviction for Gross Sexual Imposition was against the manifest weight of the evidence.
Standard of Review
{53} In reviewing whether a verdict was against the manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In doing so, this Court must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the factfinder “clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Id.{¶54} Nevertheless, a reviewing court must allow the trier-of-fact appropriate discretion on matters relating to the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court‘s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Analysis
{¶55} Bennett presented the testimony of a number of witnesses in his case-in-chief, and he also testified in his own defense. Bennett maintained that he was golfing on the day in question, which he contends was corroborated by his phone records indicating that at one point shortly before 12:30 p.m. he was near Bucyrus. He argues that his absence in the residence was further corroborated by the testimony of his wife and daughter that when his daughter called on April 25, 2018, Bennett was not at home at the time.
{¶56} Furthermore, Bennett argues that he was forthcoming and cooperative in the investigation, readily meeting with law enforcement and voluntarily providing a DNA sample. Bennett adamantly denied ever touching A.L., or helping her use
{¶57} Bennett‘s wife also testified that she almost never left the children alone, especially to take a nap like A.L. had told her parents. In addition, Bennett emphasized throughout the trial that A.L. did not make any disclosures to medical professionals or during the forensic interview; rather, she only told her parents of the purported touching.
{¶58} Notably, all of this evidence was before the trial court, and the trial court weighed it all in making its finding of guilt in this matter. Following closing arguments, the trial court conducted an analysis, summarizing some of the testimony presented and acknowledging some of the points that the defense made. However, the trial court found that Bennett‘s alibi was not dispositive as it did not account for the entire nap period on April 25, 2018, or the entire day that A.L. was at the Bennetts’ residence for that matter. The trial court also indicated that it was specifically swayed by the strength of the “clear” DNA evidence, particularly given where it was located in the underwear that had been worn by A.L. on the day of the incident in question. (Tr. at 406).
{¶59} Moreover, the trial court made its determination after being able to see and hear the testimony of Bennett himself, and judge his credibility. The factfinder is in the best position to evaluate credibility of witnesses, and we will not second-guess the factfinder on these matters. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).
{¶60} Given the testimony that was presented, we cannot find that the factfinder “clearly lost its way” where testimony indicated that: 1) A.L.‘s genitals were red and irritated on the date in question; 2) A.L. made statements to her parents that Bennett had rubbed her very hard there; 3) Bennett‘s DNA was found specifically in the crotch region of A.L.‘s underwear; and 4) Bennett himself stated that he never assisted A.L. in the bathroom. Based on this evidence, and giving deference to the trial court‘s credibility determinations, we cannot find that Bennett‘s conviction was against the manifest weight of the evidence. Therefore Bennett‘s first assignment of error is overruled.
Third Assignment of Error
{¶61} In Bennett‘s third assignment of error, he argues that the trial court erred by sentencing him to serve twenty-four months in prison.
Standard of Review
{¶62}
Analysis
{¶63} ” ‘The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than [a] minimum sentence[].’ ” State v. Castle, 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 26, quoting State v. King, 2d Dist. Clark No. 2012-CA-25, 2013-Ohio-2021, ¶ 45; State v. Freeman, 3d Dist. Union No. 14-18-16, 2019-Ohio-669, ¶ 11. Nevertheless, when exercising its sentencing discretion, a trial court must consider the statutory policies that apply to every felony offense, including those set out in
{¶64}
{¶65} In the case sub judice, Bennett was convicted of Gross Sexual Imposition in violation of
{¶66} In fashioning its sentence in this matter, the trial court stated that it had considered the record, the PSI, the statements made at sentencing, etc. The trial court analyzed
As to the, uh, serious factors that make this offense more serious, the injury was to a victim who, uh, is of a very minor age, to wit four years at the time of the offense. Also, uh, there was, uh, at least some potential, uh, serious physical and psychological harm
in that this was a sexual offense. The, uh, on the other side, the offender – uh, well, excuse me, the offender held a public position which makes the offense worse from that perspective and the uh, offender‘s relationship, uh, with the victim of course does play into those factors. Those are the factors the Court does find. Uh, on the other side of the coin, the factors that make this less serious is that, uh, the offender has no criminal record, no juvenile record, uh, he has, uh, led a law-abiding life for all of his life and has served in various, uh, public positions, uh, of respect and, uh, service to the community. Uh, so the Court is considering all of those factors.
This is a sexual offense that is, uh, of a third degree and the potential penalties are one to five years, uh, in prison. The presumption is that prison would be imposed and that can be rebutted and the defense has placed rebuttable evidence before the Court of substantial nature. Nonetheless, the Court does find that the offender is not amenable to community control and that prison is consistent with the purposes and principles of sentencing. The, uh, Court has no pleasure in so finding.
(May 31, 2019, Tr. at 39-40).
{¶67} On appeal, Bennett argues that the trial court erred in its reasoning when it stated that the conduct here was more serious because Bennett was in a public position in the community. He argues that under the “seriousness” factors of
and
the offense had to relate to that position. Bennett claims that the crime in this matter did not relate to his duty as a court bailiff{¶68} The record is clear that the trial court stated that Bennett was in a public position at sentencing; however, the trial court did not state that the offense in this matter related to the position. Similarly, the trial court did not specifically cite
{¶69} Nevertheless, even if we assumed that the trial court was specifically referring to the seriousness factor in
{¶70} Given that there was a presumption in favor of prison in this matter and given that there were independent factors to support the trial court‘s sentence, we cannot find that the trial court‘s sentence in this matter was clearly and convincingly contrary to law. Therefore, Bennett‘s third assignment of error is overruled.
Fourth Assignment of Error
{¶71} In Bennett‘s fourth assignment of error, he argues that the trial court erred by granting the State‘s motion to quash the subpoenas duces tecum that had been issued ordering Katie and Aaron to produce their tax records at trial for the previous three years.
Standard of Review
{¶72}
Analysis
{¶73} In order to understand Bennett‘s request for the subpoenas duces tecum, and the State‘s corresponding motion to quash, we must put them in the proper context in this case. During the December 6, 2018, hearing on the State‘s motion to present
by the State
presumably in order to show that neither had a motive to fabricate a story on behalf of A.L. While Aaron was testifying, he was asked if he or Katie owed the Bennetts money for babysitting services or if they were behind in their payments. Aaron and Katie indicated that they regularly paid the Bennetts and that they had no prior issues. In fact, Aaron and Katie both testified that they had a good relationship with the Bennetts prior to April 25, 2018.{¶74} On cross-examination, Aaron was asked what he profited from his business in 2017. Aaron responded that he believed it was around $50,000 but his accountant handled his taxes so he was not certain. That was largely the extent of testimony regarding financial information from the December 6, 2018, hearing.
{¶75} After the
{¶76} The case then proceeded to trial where there was some testimony presented regarding the parties’ relationship, including their business relationship. The testimony did not indicate that Aaron and Katie were behind or delinquent in their payments for babysitting; in fact, the opposite was true. The testimony indicated that they had timely paid. There was no testimony illustrating any financial issues relevant to this matter, or that Aaron and Katie had any financial motive to fabricate statements made by A.L.
{¶77} On appeal, Bennett argues that the trial court abused its discretion by granting the State‘s motion to quash the subpoenas duces tecum without holding a hearing. He contends that a hearing was mandatory to allow Bennett an opportunity to demonstrate why the subpoenaed documents were necessary, and that absent a hearing, reversal was warranted. He cites In re Subpoena Duces Tecum Served Upon Atty. Potts, 100 Ohio St.3d 97, 2003-Ohio-5234, in support.
{¶78} In Potts, the Supreme Court of Ohio constructed a bright line rule that reads as follows.
Pursuant to Crim.R. 17(C), when deciding a motion to quash a subpoena duces tecum requesting the production of documents prior to trial, a trial court shall hold an evidentiary hearing. At the hearing, which may be held in camera, the proponent of the subpoena must demonstrate that the subpoena is not unreasonable or oppressive by showing “(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general ‘fishing expedition.‘” (United States v. Nixon [1974], 418 U.S. 683, 699–700, 94 S.Ct. 3090, 41 L.Ed.2d 1039, followed.)
Potts at syllabus.
{¶79} Bennett argues that based upon Potts, the trial court was required to hold an evidentiary hearing and to conduct the Nixon analysis adopted in Potts before quashing the subpoenas. He contends that because the trial court granted the State‘s motion to quash without a hearing, and without any type of Nixon analysis whatsoever, the trial court abused its discretion in this matter.
{¶80} We recognize that the Potts decision would seem to require a trial court to hold a hearing and conduct a Nixon analysis before it quashes a subpoena duces tecum. A number of Ohio Appellate Courts have addressed interlocutory appeals on this issue, including by third parties, and ordered a trial court to hold a hearing and conduct an analysis on the matter. See Parma v. Schoonover, 8th Dist. Cuyahoga No. 100152, 2014-Ohio-400 (non-party department of health appealed denial of its motion to quash subpoena, because there was no hearing or Nixon analysis, matter reversed); Cincinnati v. Neff, 1st Dist. Hamilton No. C-130411, 2014-Ohio-2026 (trial court‘s failure to conduct an evidentiary hearing before quashing a subpoena warranted reversal).
{¶81} Fewer appeals exist where a trial court has quashed a subpoena, or denied a motion to quash a subpoena, without a hearing and the matter proceeded all the way to a final judgment, which was then appealed. Even Potts dealt with an ancillary matter, it was not a direct appeal in the criminal case resulting from a final
{¶82} In State v. Baker, 12th Dist. Warren No. CA2009-06-079, 2010-Ohio-1289, the Twelfth District Court of Appeals addressed a situation wherein a trial court failed to hold an evidentiary hearing on a motion to quash, but the case proceeded (without an interlocutory appeal) with the defendant ultimately pleading no contest to OVI. Baker at ¶ 23. The defendant was convicted and he appealed, challenging a suppression issue and the trial court‘s failure to hold a hearing on the motion to quash. The court in Baker overruled the challenge to the suppression issue, but found that the trial court did err by failing to hold a Potts hearing on the motion to quash. The court in Baker then vacated the conviction and remanded the matter with instructions for the trial court to conduct a Potts hearing/Nixon analysis. Id. at ¶¶ 57-58. Baker stated that if the trial court still rendered the same decision after holding the Potts hearing and conducting the requisite Nixon analysis, the trial court could reinstate the conviction. Id. at ¶ 58.
{¶83} In City of Olmsted Falls v. Bowman, 8th Dist. Cuyahoga No. 102129, 2015-Ohio-2858, the Eighth District Court of Appeals went even further when the trial court failed to hold a Potts hearing or conduct a Nixon analysis. The court in Bowman held that a trial court could not apply the Nixon factors retrospectively, thus where an appellate court reversed for a Potts hearing on a motion to quash, the
{¶84} Strictly reading Potts, Baker, or Bowman, these cases would seem to mandate reversal in this matter, regardless of any analysis of the actual record before us. However, a case from the Second District Court of Appeals, Miamisburg v. Rinderle, 2d Dist. Montgomery No. 26094, 2015-Ohio-351, provides a different alternative. In Rinderle, the appellant challenged the trial court‘s decision to quash a subpoena without a hearing. The trial court held brief arguments on the matter just before the beginning of trial, which the Rinderle court found could be enough to satisfy Potts. Nevertheless, the court in Rinderle stated,
But even if the trial court did err in failing to hold a hearing, the error was harmless because the subpoena plainly was improper. Rinderle‘s counsel asserted that he wanted to cross examine the prosecutor to be sure she had provided full discovery. (Id. at 7, 796 N.E.2d 915). In response, the prosecutor represented that she had made her “entire file” available to the defense. (Id. at 8–9, 796 N.E.2d 915). Defense counsel admitted having seen the file at least once. (Id. at 10, 796 N.E.2d 915). Under these circumstances, and absent any evidence to suggest that the prosecutor had violated her continuing obligation under
Crim.R. 16 , defense counsel had no right to cross examine the prosecutor for purposes of a “fishing expedition” or what the trial court characterized as “a shotgun accusation that maybe you haven‘t received all of the discovery.” (Id. at 8, 796 N.E.2d 915).
{¶85} Rinderle allows for the possibility that even where a Potts hearing/Nixon analysis was not conducted before quashing a subpoena, harmless error can be found if the subpoena was plainly improper. We feel this is the more logical application of the rule to the facts before us, particularly in a bench trial such as the one before us. While a hearing should be held under Potts, where the record demonstrates that subpoena plainly has no merit, and would have no impact on the trial whatsoever that already occurred, we will not go so far as to overturn the entire trial or remand the matter to the trial court to have a superfluous hearing. This is particularly true where this case does not involve an interlocutory or third-party appeal.
{¶86} In this case there simply was never any financial malfeasance alleged to justify a “fishing expedition” to find potential impeachable information of Katie and Aaron. At trial, the testimony indicated that there was no failure to pay for babysitting services at any point on behalf of Katie and Aaron and that they were not behind in their payments. There is absolutely no indication of a financial motive in this matter whatsoever. To the extent that Katie and Aaron‘s finances were relevant at all in this matter, defense counsel was able to cross-examine Aaron as to his business earnings at the December 6, 2018 hearing. Katie and Aaron were also available for cross-examination regarding their payments to the Bennetts at trial, or their financial status in general. However, a trial court could readily find that
{¶87} Moreover, we note as to the relevancy of the request for tax records,
child
in making a disclosure of sexual activitynot
the motive of the narrator of the child‘s statement. Thus the narrator‘s credibility—Katie and Aaron in this case—and any relevance of financial tax returns, is addressed under a general evaluation of the narrator‘s testimony at trial and the corresponding rules of impeachment. This would include the rules pertaining to collateral impeachment.{¶88} Under these specific factual circumstances, including the fact that the trial judge considering the ruling on collateral impeachment also serves as the trier-of-fact in weighing the totality of the evidence, we decline to find reversible error. Therefore, Bennett‘s fourth assignment of error is overruled.
Conclusion
{¶89} For the foregoing reasons Bennett‘s assignments of error are overruled and the judgment of the Wyandot County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr