2007 Ohio 7080 | Ohio Ct. App. | 2007
{¶ 2} A.T.'s mother was acquainted with appellant through work. When AT. and her mother moved into a new home, appellant offered to assist them. The move occurred on Saturday, February 25, 2005. After moving furniture, appellant ordered pizza to be delivered to the new home. A.T.'s mother needed to retrieve some additional items from her prior *2 residence, so appellant offered to stay at the new home to wait for the pizza. AT., then five years old, was hungry and wanted to stay at the new house to eat pizza. Appellant agreed to stay with her at the new house while A.T.'s mother continued moving.
{¶ 3} AT. testified at trial that, while her mother was gone, she and appellant played hide and seek. When she became tired, the two lay down on the bed. AT. testified that appellant bit her ear and kissed her on the lips. She testified that he then unzipped her pants and stuck his fingers in her "butt."
{¶ 4} A.T.'s mother testified that on Sunday morning during their shower, AT. complained that soap touching her genital area hurt because she was sore. AT. told her mother that appellant had touched her and hurt her. When A.T.'s mother examined AT., she discovered that the area around A.T.'s vagina was red and inflamed. She testified that she observed a "blood bruise" on A.T.'s hip. A.T.'s mother called A.T.'s pediatrician, and was advised to bring AT. to an appointment on the next day, Monday.
{¶ 5} At the appointment, AT. was examined by Dr. Deborah Goodlander. Goodlander testified that, during the appointment, she questioned AT. about what had happened, and AT. reported to her that someone named Kevin had hurt her with his finger. When Goodlander asked AT. where she was hurt, AT. pointed to her labia. When Goodlander examined A.T.'s genitals, she observed unusual pinpoint redness at the vaginal opening. Goodlander testified that the injury was consistent with injury that would have been caused by a fingernail.
{¶ 6} Appellant was indicted on one count of rape, with the specification that the victim was a child under the age of ten, a felony of the first degree, in violation of R.C.
{¶ 7} In his first assignment of error, appellant argues that the trial court erred in allowing five-year-old AT. to testify. Appellant argues that AT. was incompetent to testify under Evid.R. 601(A) andState v. Frazier (1991),
{¶ 8} "[i]t is the duty of the trial judge to conduct a voir dire examination of a child under ten years of age to determine the child's competency to testify. Such determination of competency is within the sound discretion of the trial judge. 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. Thus, the responsibility of the trial judge is to determine through questioning whether the child of tender years is capable of receiving just impressions of facts and events and to accurately relate them."
{¶ 9} Id. at 250-251. The court went on to instruct that a trial court should take into consideration:
{¶ 10} "(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 *4 be truthful." Id. at 251.
{¶ 11} In the case at bar, the trial court did perform a competency examination of AT. prior to allowing her to testify. The court conducted an examination of AT., and defense counsel and the state were each given the opportunity to question her. During the competency hearing, AT. demonstrated the ability to recall and relate basic information to the court. AT. demonstrated an understanding of the difference between truth and lies. Her testimony indicated that she appreciated that it was important that her statements be truthful.
{¶ 12} Appellant cites State v. Andrews, Butler App. No. CA2005-04-088,
{¶ 13} The facts of Andrews are clearly distinguishable from the case at bar. While AT. did have some difficulty answering some questions related to the name of her school, the location of her home, and her grade in school, she was not required to answer every question correctly in order to be found competent to testify. See State v. Tillman, Butler App. No. CA2003-09-243,
Further, she demonstrated an understanding of the difference between the truth and lies. See id.; Frazier at ¶ 18; compare Schulte v.Schulte,
{¶ 14} Appellant argues in his second assignment of error that the trial court erred when it did not allow appellant's witness, Beth Gress, to testify as an expert witness during the trial. The trial court excluded her expert testimony on the basis that it was not relevant to the proceedings.
{¶ 15} Evid.R. 103 provides, in pertinent part:
{¶ 16} "(A) Effect of erroneous ruling. Error may not be predicated upon a ruling which * * * excludes evidence unless a substantial right of the party is affected, and * * *
{¶ 17} "(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. * * *"
{¶ 18} The Ohio Supreme Court has stated that, "[p]ursuant to the explicit provisions of this rule, a party may not predicate error on the exclusion of evidence during the examination in chief unlesstwo conditions are met: (1) the exclusion of such evidence must affect a substantial right of the party and (2) the substance of the excluded evidence was made known to the court by proffer or was apparent from the context within which questions *6
were asked." State v. Gilmore (1986),
{¶ 19} With respect to the adequacy of the offer of proof, inState v. Heinish (1990),
{¶ 20} In accordance with these rules, we must examine appellant's offer of proof for adequacy. Although Gress was called to the stand during trial, she was only questioned as a character witness. Counsel for appellant was permitted to make a proffer on the record regarding her expert testimony after the jury was dismissed. The record reflects that appellant's counsel put forth considerable effort in proffering Gress' qualifications to testify as an expert. However, a review of the record indicates that Gress' qualifications were not at issue. Rather, the court restated several times its concerns that the testimony Gress intended to offer was not relevant to the proceedings. In response to those concerns, appellant's counsel offered two different statements that could be construed as an intended proffer as to the substance of Gress' testimony. First, counsel stated that Gress was qualified "to give an opinion, based upon her training, education, and experience, as to the interviewing of alleged child sexual abuse victims; and the training and experience in the technical information and learned treatises that she has been taught and examined regarding *7 the truthfulness of allegations from children; and regarding the ability of children to relate and fantasize regarding these investigations." Later, he stated that Gress could "have her unique prospective [sic] regarding her experiences in the past and how the process works as far as identification and investigation of these allegations."
{¶ 21} We find that this offer of proof is insufficient to preserve the record on appeal. In Moser v. Moser (1991),
{¶ 22} "Generally, an offer of proof consists of two elements. First, the offering party must inform the trial court as to the legal theory upon which admissibility is proposed. Second, an offering party must show what a witness was expected to testify to and what that evidence would have proven or tended to prove. See 4 Ohio Jurisprudence 3d (1978) 355, Appellate Review, Section 172. While the proffer of the expected testimony need not be as specific as the testimony itself would have been it must nonetheless be sufficient to enable the reviewing court to determine roughly what, if any, impact the testimony may have had upon the final disposition of the case."
{¶ 23} The rule as stated in Moser properly sets forth the information that a proffer should include in order to provide a reviewing court with sufficient information to determine whether the evidential ruling was an error. In Moser, a divorce case, the proffer offered by the appellant was the bare assertion "I wish her to testify as to grounds[.]" Id. The court of appeals found that, while a proffer was technically present, the proffer was insufficient to place the court on notice as to what the testimony would have been. Id. While the proffer in the case sub judice is somewhat longer than the proffer in Moser, we do not find it to be any more effective. The proffer fails to put us on notice as to how Gress' testimony would have related to any of the facts in consequence in this case. The proffer indicates that appellant intended that Gress would offer information regarding interviewing child victims of sexual *8
abuse and truthfulness of child victims of sexual abuse. Even after repeated requests by the trial court judge for him to do so, appellant's counsel did not relate the relevance of the information to the case at bar. When a party fails to make an adequate proffer, the issue is deemed to be waived. Campbell,
{¶ 24} Finally, the trial court also determined that defense counsel's failure to disclose Gress as an expert witness until the second day of trial was inappropriate. The trial court specifically inquired during a pretrial conference as to the content of Gress' testimony. Appellant's counsel advised the court that Gress would be offered as a character witness. Appellant's attorney determined on Friday, September 8, 2006, that Gress qualified as an expert witness. Defense counsel did not disclose its intent to call Gress as an expert until the second day of trial, which was Tuesday, September 12, 2006, after the state had already presented its case-in-chief. The trial court did not abuse its discretion when it determined that this late disclosure was inappropriate. See State v. Bolton (May 30, 2000), Columbiana App. No. 98-CO-33,
{¶ 25} For the foregoing reasons, appellant's second assignment of error is overruled.
{¶ 26} Appellant's third assignment of error argues that a recording of an interview of AT. by a social worker should have been provided to appellant during discovery because it was critical and material to the preparation of his defense. The state argued that it had no intention of presenting the social worker as a witness or introducing the recording at trial. The state further argued that nothing under Crim.R. 16 required the state to provide a copy to appellant of a statement made by a witness. The trial court agreed with the state and denied appellant's motion to compel. Appellant did not explicitly cite to Crim.R. 16(B)(1)(f) or the Brady case in his motion to compel discovery. Although appellant's motion did not use the *9 words "favorable," "exculpatory," or "impeachment," appellant did argue that "whether the child was coached, was evasive, or words may have been taken out of context [sic], are all items that are critical and material in preparing a defense to this charge." It appears that appellant inarticulately argued that the evidence was both material and favorable because it was either exculpatory or relevant to impeachment. On appeal, appellant specifically argues that the evidence was discoverable under Crim.R. 16(B)(1)(f).
{¶ 27} Crim.R. 16(B)(1)(f) codifies the constitutional right of a defendant to receive from the prosecution "evidence favorable to an accused [and] * * * material either to guilt or to punishment" underBrady v. Maryland (1963),
{¶ 28} Where a defendant makes only a general request for exculpatory material, "it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention, the prosecutor's decision on disclosure is final." Pennsylvania v.Ritchie (1987),
{¶ 29} There is nothing in the record to indicate that appellant requested that the trial court conduct an in camera inspection of the interview prior to trial for favorable and material evidence or subsequent to A.T.'s testimony under Crim.R. 16(B)(1)(g) for purposes of evaluating the consistency of A.T.'s testimony. In addition, there is no indication that appellant requested to have a copy of the interview sealed and placed in the record to preserve the issue for appellate review. The trial court enjoys a presumption of validity such that the appellant on appeal is required to prove affirmatively both error and prejudice. Makranczy v. Gelfand (1924),
{¶ 30} Furthermore, even if the evidence requested by appellant was favorable to his defense, we find that it was not material to guilt or punishment. A.T.'s mother and Goodlander each testified as to A.T.'s account of the abuse. These accounts of the abuse occurred prior to exposure of AT. to the interviewing techniques of the social worker. A.T.'s testimony at trial was consistent with the testimony of her mother and Goodlander. All of the testimony was consistent with the physical evidence of abuse. There is no indication whatsoever that the evidence requested, if disclosed, would have caused the result of the proceeding to have been different. The evidence does not undermine confidence in the outcome in the trial. As such, appellant fails to satisfy the standard of materiality required to *11
meet the Brady threshold for discovery established under Agurs,
{¶ 31} For the foregoing reasons, appellant's third assignment of error is overruled.
{¶ 32} Judgment affirmed.
YOUNG, P.J., and WALSH, J., concur.