2007 Ohio 1704 | Ohio Ct. App. | 2007
{¶ 2} In 2005, Dyer was charged in an eighty-nine count indictment. Counts 1 and 3 accused him of rape, Counts 2 and 4 accused him of kidnapping with a sexual motivation specification, Count 5 accused him of gross sexual imposition, Counts 6 through 54 accused him of pandering sexually oriented matter involving a minor, Counts 55 through 88 accused him of illegal use of a minor in nudity-oriented material or performance, and count 89 accused him of possessing criminal tools.
{¶ 3} In February 2006, the matter proceeded to a bench trial, at which the court found Dyer guilty of two counts of kidnapping with a sexual motivation specification, three counts of gross sexual imposition, forty-two counts of pandering *2 sexually oriented matter involving a minor, twenty-two counts of illegal use of a minor in nudity-oriented material or performance, and one count of possessing criminal tools.1 At a hearing in April 2006, Dyer was sentenced to a total of twenty-five years and four months in prison, with various counts to be served consecutively. The court also designated Dyer a sexual predator and a child victim predator. The following evidence was presented at trial.
{¶ 4} In 2002, when Dyer's stepdaughter, "B.D.," was approximately seven years of age, Dyer began to sexually abuse her. He would take her to his bedroom at night and undress her. He would then touch her vagina with his penis and rub her breasts. B.D. was afraid to tell her mother, Pamela Dyer, for fear that she would be angry with her. After repeated occurrences, B.D. eventually told her brother, "J.D.," that her stepfather had sexually abused her. This prompted J.D. to share this information with his school counselor. The counselor contacted the Cuyahoga County Department of Children and Family Services ("CCDCFS"), which investigated the complaint.
{¶ 5} In March 2004, Sally McHugh ("McHugh")2 of CCDCFS interviewed B.D. and determined that all the children residing with Pamela and Joseph Dyer should be placed in emergency temporary custody with B.D.'s father and *3 stepmother. During the CCDCFS investigation, the Cleveland police department discovered seventy-seven images of child pornography on Dyer's computer.
{¶ 6} Dyer now appeals, raising six assignments of error.
{¶ 8} As an initial matter, we note that B.D. testified at trial. Therefore, Dyer had the opportunity to cross-examine her as to the statement she made to McHugh.
{¶ 9} The
{¶ 10} The Court concluded that "testimonial" statements include:
"Ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, * * * extrajudicial statements * * * contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions and statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id.
{¶ 11} This position was reaffirmed by the United States Supreme Court in Davis v. Washington and Hammon v. Indiana (2006),___ U.S. ___,
"Roberts conditioned the admissibility of all hearsay evidence on whether it falls under a `firmly rooted hearsay exception' or bears `particularized guarantees of trustworthiness.' Crawford,
541 U.S., at 60 ,124 S.Ct. 1354 ,158 L.Ed.2d 177 (quoting Roberts,448 U.S., at 66 ,100 S.Ct. 2531 ,65 L.Ed.2d 597 ). We overruled Roberts in Crawford by restoring the unavailability and cross-examination requirements." Id.
{¶ 12} Because testimonial statements implicate the Confrontation Clause as construed in Crawford, we will first determine whether B.D.'s statements to McHugh *5 were testimonial, despite the fact that B.D. testified at trial and was clearly available for cross-examination.
{¶ 13} In State v. Stahl,
{¶ 14} Therefore, we conclude that, under the circumstances of the instant case, B.D.'s statements to McHugh are nontestimonial. Our review of the record reveals nothing to indicate that B.D., or a typical child of her age, would have reasonably believed that her statements would be used later for trial.
{¶ 15} Because we find that the statements are nontestimonial in nature, they are admissible if they fit within a hearsay exception. We find that the statements fall *6 under Evid.R. 803(4), which provides a hearsay exception for "[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."
{¶ 16} In State v. Dines (Nov. 1, 1990), Cuyahoga App. No. 57661, this court found that statements made to a sex abuse investigator were admissible under the hearsay exception in Evid.R.803(4). InDines, the sex abuse investigator had a bachelor's degree, but was not a licensed social worker at the time of her interview with the victim. She testified that her function was to "interview purportedly abused children and to insure their safety, as well as to ascertain their emotional and medical needs." Id. The sex abuse investigator would then "relay the information to the appropriate medical personnel to diagnose and treat the child." Id. We held in Dines that:
"[T]he testimony of a social worker who examines child victims of sexual abuse is an exception to the rule against hearsay pursuant to Evid.R. 803(4); State v. Nelson (Jan. 19, 1989), Cuyahoga App. No. 54905, unreported; State v. Smigelski (Nov. 17, 1988), Cuyahoga App. No. 54532. Cf. State v. Boston (1989),
46 Ohio St.3d 108 (where child's statements admitted through experts rendering opinions and where statements were used to identify one perpetrator)." Id.
{¶ 17} Moreover, as we found in State v. Chappell (1994),
{¶ 18} In the instant case, McHugh testified that she has a bachelor's degree, but is not a licensed social worker. She has worked as an intake sex abuse investigator since 1996. She further testified that part of her function when interviewing B.D. was "[t]o assess her [B.D.'s] safety and to make referrals for psychological or medical treatment."
{¶ 19} Furthermore, B.D. was present at the bench trial and testified as a witness. Therefore, Dyer had the opportunity to cross-examine her as to the statements she made to McHugh, and she was not unavailable for trial. Thus, we find that the statements made to McHugh did not violate Dyer's constitutional rights and were also admissible as statements made for purposes of diagnosis or treatment of B.D.'s mental or physical condition.
{¶ 20} We also note that this matter proceeded before a judge in a bench trial. This court held in State v. King (Feb. 1, 2001), Cuyahoga App. No. 77566, that: "[i]n a bench trial, the trial court is presumed to rely on only relevant, material evidence in arriving at its judgment," citing State v. Williams (Oct. 12, 2000), Cuyahoga App. No. 77153; State v. Lane (1995),
{¶ 21} As the trier of fact, the judge is presumed to disregard any prejudicial testimony when making a decision. Furthermore, Dyer has failed to show how he was prejudiced by the admission of the "objectionable" testimony. Therefore, we presume that the trial judge relied on only relevant evidence.
{¶ 22} Accordingly, the first assignment of error is overruled.
{¶ 24} A challenge to the sufficiency of the evidence supporting a conviction requires a court to determine whether the State has met its burden of production at trial. State v. Thompkins,
{¶ 25} In evaluating a challenge to the verdict based on the manifest weight of the evidence, a court sits as the thirteenth juror, and intrudes its judgment into proceedings that it finds to be fatally flawed through misrepresentation or misapplication of the evidence by a jury that has "lost its way." Thompkins, supra. As the Ohio Supreme Court stated:
"Weight of the evidence concerns the ` inclination of the greater amount of credible evidence offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.' * * *
The court, 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." Id.
{¶ 26} In State v. Bruno, Cuyahoga App. No. 84883,
{¶ 27} In the instant case, Dyer was convicted of two counts of kidnapping pursuant to R.C.
{¶ 28} Dyer was also convicted of three counts of gross sexual imposition in violation of R.C.
{¶ 29} Furthermore, Dyer was convicted of forty-two counts of pandering sexually oriented matter involving a minor pursuant to R.C.
{¶ 30} Lastly, Dyer was convicted of one count of possession of criminal tools in violation of R.C.
{¶ 31} Dyer argues that there was insufficient evidence to support his convictions. He maintains that there was no evidence to corroborate B.D.'s allegations. He further contends that there was no evidence to indicate that he *12 owned the computer containing the pornographic pictures, or that the pictures were of minors. We disagree.
{¶ 32} In the instant case, the victim, B.D., testified that when she was approximately seven years old, Dyer would take her from her bed at night and into his bedroom. He would undress her and lie on top of her naked. He would rub his penis along the outside of her vagina and rub her breasts. B.D. also recalled hearing the television in another room while she was being abused. She testified that she kept her eyes closed because she was afraid.
{¶ 33} McHugh testified as a ten-year veteran of sex abuse investigations, and determined that the situation presented an emergency and that B.D. and her siblings should be placed in emergency custody with B.D.'s father and stepmother. B.D.'s mother also testified that she had observed Dyer fondle her daughter in their kitchen.
{¶ 34} Furthermore, Dyer's wife testified that while she resided with him in Texas, she had observed Dyer viewing on his computer what appeared to be child pornography. The record shows that after CCDCFS became involved in B.D.'s case, Pamela Dyer turned over Dyer's two computers to Cleveland police. The record also demonstrates that Detective King of the Ohio Internet Crimes Against Children Task Force retrieved seventy-seven images of child pornography from Dyer's computer. Detective King identified each person, with a reasonable degree of certainty, as a minor. Furthermore, our review of the record reveals that the *13 seventy-seven images contained prepubescent females. Thus, in viewing the evidence in the light most favorable to the prosecution, we conclude that Dyer's convictions are supported by sufficient evidence. We also find that the trial court did not lose its way or create such a manifest miscarriage of justice as to require reversal of the convictions.
{¶ 35} Therefore, the second and third assignments of error are overruled.
{¶ 37} In April 2006, the court sentenced Dyer to a total of twenty-five years and four months in prison, with various counts to run consecutively. In February 2006, the Ohio Supreme Court declared as unconstitutional R.C.
{¶ 38} In Foster, supra at 61, 64, and 67, the Ohio Supreme Court held that judicial fact-finding to impose the maximum or a consecutive sentence is unconstitutional in light of Blakely. The court also held that "after the severance, judicial fact-finding is not required before a prison term may be imposed within the basic ranges of R.C.
{¶ 39} Pursuant to Foster, the trial court was not required to make any findings before imposing Dyer's sentence and had full discretion to sentence him within the statutory range. Moreover, the trial court made no findings under the now unconstitutional statutes. Thus, we find no error in the sentences.
{¶ 40} Dyer also argues that Foster should not apply to his case because his alleged crimes occurred prior to the Foster decision. He claims that his due process rights were violated with an ex post facto application of Foster because the alleged crimes occurred beforeFoster was released. *15
{¶ 41} Foster addresses the constitutionality of sentences imposed pursuant to S.B. No. 2, effective July 1, 1996. S.B. 2 is applicable to all offenses committed on or after that date. See State v. Rush,
{¶ 42} We next consider whether Foster violates the Ex Post Facto Clause. The Ex Post Facto Clause of Article
{¶ 43} The Ohio Supreme Court has recognized that "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law" and can violate due process "even though the constitutional prohibition against ex post facto laws is applicable only to legislative enactments." State v.Garner,
{¶ 44} Thus, we must consider both the federal and state constitutional ramifications of Foster. See State v. McGhee, Shelby App. No. 17-06-05,
"Because [the defendant-appellant] knew the potential statutory sentence for committing a first degree felony, because he had notice that Ohio's sentencing statutes were subject to judicial scrutiny, and because McGhee was unlikely to amend his criminal behavior in light of a sentencing change, we cannot find the Ohio Supreme Court's holding in Foster violates federal notions of due process as established in Bouie and Rogers.''' Id. at Tf19.
{¶ 45} In considering the Ohio Constitution, we must consider the Ohio Supreme Court's intent regarding the retroactive application ofFoster. The court applied its holding retroactively, but only to cases on direct appeal and those pending in the trial courts. Id. at 4|104.Foster applies retroactively because the court did not limit its holding to offenses committed on or after February 27, 2006. *17
{¶ 46} A retroactive law is not necessarily unconstitutional."A substantive retroactive law is unconstitutional, while a remedial retroactive law is not.* * * A statute is substantive if it Impairs vested rights, affects an accrued substantive right, orimposes new or additional burdens, duties, obligations, or liabilities as to a past transaction.'" Smith v. Smith,
{¶ 47} As the appellate court stated in Elswick, supra:
"[A] presumed sentence can be `taken away' without the defendant's consent." McGhee at 4|24. Thus, no vested right has been affected by Foster. Id. In addition, no accrued substantial right has been affected. Id. at 4|25. `[Defendants are not entitled to enforce or protect specific sentences prior to sentencing.' Id. A range of determinative sentences available for each degree of felony offense is established in R.C.
2929.14 (A). `Even under S.B. 2, defendants could not expect a specific sentence because judges could make findings to sentence anywhere within the range provided by R.C.2929.14 (A).' Id."
{¶ 48} Furthermore, the Foster court held that the Ohio sentencing scheme was intended to allow trial courts to select sentences within a range. The Foster court explained that:
*18"[T]he General Assembly provided a sentencing scheme of `guided discretion' for judges, intending that the required findings guide trial courts to select sentences within a range rather than to mandate specific sentences within that range. When mandatory sentences are intended, they are expressed. We, therefore, reject the criminal defendants' proposed remedy of presumptive minimum sentences, for we do not believe that the General Assembly would have limited so greatly the sentencing court's ability to impose an appropriate penalty." Id. at ?89.
{¶ 49} In the instant case, Dyer had notice that the sentencing range was the same at the time he committed the offenses as when he was sentenced. Foster did not judicially increase the range of his sentence, nor did it retroactively apply a new statutory maximum to an earlier committed crime, nor did it create the possibility of consecutive sentences where none had existed. See also, State v. Mallette, Cuyahoga App. No. 87984,
{¶ 50} Accordingly, we overrule the fourth and fifth assignments of error.
{¶ 52} A sexual predator is defined in R.C.
{¶ 53} In State v. Eppinger,
"Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal." Citing Cross v. Ledford (1954),
161 Ohio St. 469 ,477 ,120 N.E.2d 118 .
{¶ 54} In reviewing a trial court's decision based on clear and convincing evidence, an appellate court must examine the record to determine whether sufficient evidence exists to satisfy the requisite degree of proof. State v. Schiebel (1990),
{¶ 55} Pursuant to R.C.
{¶ 56} R.C.
{¶ 57} Moreover, "an appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial court judge." Schiebel, supra at 74, citingSeasons Coal Co. v. Cleveland (1984),
{¶ 58} Dyer argues that the State failed to establish by clear and convincing evidence that he is likely to engage in one or more sexually oriented offenses in the future. He relies on his House Bill 180 assessment and his lack of a prior criminal record.
{¶ 59} In the instant case, although the trial court was presented with evidence to support the first prong of the definition of a sexual predator pursuant to R.C. *21
As we stated in State v. Ferrell (Mar. 18, 1999), Cuyahoga App. No. 72732: "In a model sexual predator determination hearing, the prosecutor and defense counsel would take care to identify on the record those portions of the trial transcript, victim impact statements, pre-sentence report and other pertinent aspects of the defendant's criminal and social history that both relate to the factors set forth in R.C.2950.09 (B)(2) and are probative of the second prong of R.C.2950.01 (E). Either side might present expert opinion by testimony or written report to assist the trial court in its determination when there is little information beyond the fact of the conviction itself. The trial court not only would then consider on the record the statutory factors themselves, but in addition would discuss in some detail the particular evidence and factors upon which it relies in making its determination. Finally, it would include evidentiary materials in the record for purposes of any potential appeal." (Emphasis added.)
{¶ 60} In the instant case, there is little information discussed on the record by the trial court beyond Dyer's current offenses and the trial court's dissatisfaction with the self-reporting assessments. In reaching her decision at the sexual predator hearing, the trial judge stated:
"I disagree entirely with the House Bill 180 assessment that's been done by the court psychiatric clinic. Clearly, I think with the number of counts in front of me involving children, obscenity involving children, as well as physical crimes against a related child in this case, that defendant should be classified as a sexual predator * * *."
The trial court referred to the number of counts involving children, the obscenity involving children, the access of the internet to children, and the physical crimes against a relative, but did not discuss any factors or specifically find that Dyer was *22 likely to commit a future sexual offense. See, Eppinger, supra;State v. Artino (May 6, 1999), Cuyahoga App. No. 74054; and State v.Gregory (Sept. 30, 1999), Cuyahoga App. No. 74859. Thus, as a matter of law, we find that the trial court failed to support its sexual predator adjudication with clear and convincing evidence that Dyer was likely to reoffend. Therefore, the sixth assignment of error is sustained.
{¶ 61} Accordingly, the portion of the trial court's order finding Dyer to be a sexual predator is reversed.
{¶ 62} Therefore, judgment is affirmed in part and reversed in part, and the case is remanded for a new sexual predator hearing consistent with this opinion.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. *23
JAMES J. SWEENEY, P.J. and
KENNETH A. ROCCO, J. CONCUR
