STATE OF OHIO v. JOSEPH M. HALL
Appellate Case No. 25794
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Rendered on the 16th day of May, 2014.
[Cite as State v. Hall, 2014-Ohio-2094.]
HALL, J.
Trial Court Case No. 2011-CR-2491. (Criminal Appeal from Common Pleas Court)
J. ALLEN WILMES, Atty. Reg. #0012093, 7821 North Dixie Drive, Dayton, Ohio 45414 Attorney for Defendant-Appellant
OPINION
HALL, J.,
{¶ 1} Joseph Hall appeals his conviction for rape. Because Hall‘s attempt to cross-examine the victim about alleged prior false accusations of sexual abuse made by her did
I. FACTS
{¶ 2} “Sara”1 accused Hall of raping her when she was 11 years old. A nationwide arrest warrant was issued for Hall, and the U.S. Marshals Service tracked him to New York state and arrested him. He was indicted on one count of rape (under 13 years of age). A jury found Hall guilty after hearing testimony from, among others, Sara herself; Dr. Lori Vavul-Roediger, the physician who examined Sara; “Jane,”2 Sara‘s sister; and Sara‘s mother.
{¶ 3} Sara testified that early one summer morning in 2007 she walked into the kitchen of her house to get a glass of Kool-Aid. Her mother had already left for work and her older sister Jane was still in bed. Hall, her mother‘s then boyfriend who had recently moved in, found Sara alone in the kitchen. He proceeded to rape her on the floor between the kitchen table and the microwave stand. Sara told Hall that it hurt (she later discovered that she was bleeding) and tried to push him away, but he continued, telling her, “It‘ll be okay; it‘ll feel better soon.” (Tr. 198). When it was over, Hall warned Sara that if she told anyone about what he had done to her, he would go to jail for a “really long time.” (Id. 199). This scared Sara.
{¶ 4} Sara said nothing for four years. But in early 2011 Hall made a crude pass at her. So one evening soon after, Sara followed her mother into the garage and told her what Hall had done four years earlier. Sara‘s mother immediately called Hall into the garage and made Sara repeat the accusation to him, and then together they questioned Sara. Sara‘s mother did not
{¶ 5} Jane was over one evening, and their father asked the girls if Hall had ever sexually abused them. At first Sara denied that he had, but Jane, who had overheard Sara tell their mother what Hall had done, urged Sara to tell their father what had happened. Sara relented. The next day, the father reported the crime to the Huber Heights police, who arranged for Sara to be taken to CARE House (a center for child victims of abuse) and then Dayton Children‘s Medical Center for examination.
{¶ 6} Dr. Lori Vavul-Roediger examined Sara and testified at trial as an expert witness. Dr. Vavul-Roediger is a member of the American Academy of Pediatrics, the Ohio Chapter of the American Academy of Pediatrics, the Ohio Chapter of the Section on child-abuse pediatrics, and the Alpha Omega Alpha Honor Medical Society. She is also a member of the Ray Heifer Society, a national honor society for child-abuse pediatricians, and the American Professional Society on the Abuse of Children. Dr. Vavul-Roediger is board certified in the fields of general pediatrics and child-abuse pediatrics, has evaluated thousands of children and adolescents for possible sexual abuse or sexual maltreatment, and has testified roughly one hundred times as an expert in general pediatrics and child-abuse pediatrics. Hall did not object to permitting Dr. Vavul-Roediger to testify in the present case as an expert in the fields of child pediatrics and sexual-abuse diagnosis.
{¶ 7} Dr. Vavul-Roediger testified that she asked Sara about how someone first found out what had happened with Hall. “I first told my mom about what happened with Joe * * *,” Sara told her, “[but] [m]y mom didn‘t believe me; she called me a liar.” (Tr. 167). Sara told Dr. Vavul-Roediger that she “still feel[s] like it is all [her] fault.” (Id.). Sara also told the doctor that she was afraid to tell someone sooner because she had been told about—threatened with—what the consequences to Hall would be. Dr. Vavul-Roediger testified that the only abnormal finding from her physical examination of Sara was a healed tear on her hymen. The doctor explained that the tear indicates “prior penetrating or blunt force trauma to the hymen.” (Tr. 177). But she could not say when the tear occurred—only that it had not occurred within the previous week. It was Dr. Vavul-Roediger‘s opinion that the tear is “consistent with this child‘s disclosure of penile vaginal penetration.” (Tr. 178). The doctor said that her diagnosis is based on Sara‘s disclosures, quoting her written medical report as saying that “based on [Sara]‘s disclosure, a diagnosis of sexual maltreatment is warranted.” (Tr. 182).
{¶ 8} Jane and Sara‘s mother testified for the defense. Jane said that it was hard for Sara to tell the truth. Jane also said that on the evening that Sara told their mother that Hall had raped her, Sara and her mother had been fighting about Sara‘s boyfriend. Jane said that Sara always had a good relationship with Hall and that Sara even worked for him one summer. Jane admitted that it was possible that Hall and Sara could have been alone in the kitchen in the early morning after their mother had gone to work.
{¶ 9} Sara‘s mother testified that on the day that Sara first told her what had happened Sara was angry because she (Sara‘s mother) would not let Sara attend a basketball game with her friends. Sara pouted for a while in her room, the mother said, and after dinner followed her into the garage, where she made her accusation. About the move to Virginia, Sara‘s mother admitted
II. ANALYSIS
{¶ 10} Hall presents four assignments of error for review. The first alleges that the trial court erred by not allowing him to cross-examine Sara about prior false accusations of sexual abuse that she had made. The second alleges that trial counsel rendered Hall ineffective assistance. The third alleges prosecutorial misconduct. And the fourth assignment of error alleges that the jury‘s verdict is contrary to the manifest weight of the evidence.
A. Cross-Examination on Prior False Accusations of Sexual Abuse
{¶ 11} Hall had reason to believe that Sara had made prior false accusations of sexual abuse, which would show her character for untruthfulness. Hall‘s counsel attempted to ask her about these accusations during cross-examination, but the trial court prohibited him from doing so. The first assignment of error alleges that this is error.
{¶ 12} ”
{¶ 13} Here, defense counsel asked Sara on cross-examination, “Have you made any other accusations of sexual abuse against other members of your family?” (Tr. 223).3 The state immediately objected. At a sidebar, the trial court asked counsel, “What good-faith evidence do you have that they‘re false accusations?” (Tr. 224). Counsel replied that he had two witnesses who would testify that Sara made false accusations. Counsel then proffered that one of Sara‘s aunts would testify that Sara had accused her son “of having inappropriate sexual contact with her” and that after the aunt questioned her about this accusation Sara admitted that “it never happened.” (Tr. 225). Counsel also proffered that Jane would testify that Sara had accused her of molesting her and that Sara had admitted to him (counsel) that this accusation is false. The trial court sustained the state‘s objection, saying, “I think this is he said/she said without someone
specific indicating that she may (indiscernible) be truthful. I think this is getting beyond the pale of cross examination of this girl.” (Tr. 226-227).
{¶ 14} The situation here is like that in Boggs. During cross-examination of the victim in Boggs, defense counsel asked her whether she had made prior false accusations of rape; the state immediately objected. Counsel told the trial court that he had evidence that the victim had falsely accused another man of rape, but the court sustained the state‘s objection. The Boggs Court noted that there was no answer to the question about the prior false rape accusation, no inquiry about “whether the prior accusation was based on sexual activity or was totally unfounded,” and no testimony about the prior false accusation was admitted at trial. Boggs, 63 Ohio St.3d at 424. Consequently, the Court said that it could not determine whether the defense‘s prior-false-accusation evidence was properly excluded under the rape-shield provision because it involved sexual activity. Similarly, here Sara was not permitted to answer the question about these accusations, there was no inquiry into whether the accusations involve sexual activity, and no testimony about the accusations was admitted. We cannot determine whether the prior-false-accusation evidence was properly excluded.
{¶ 15} The Boggs Court could not determine whether the defense‘s evidence was properly excluded. Moreover, “the trial judge,” said the Court, “must in the first instance determine whether the accused has met his burden of establishing that the victim‘s prior accusations were clearly unfounded.” Boggs, 63 Ohio St.3d at 424, 588 N.E.2d 813. (“[B]efore cross-examination of a rape victim as to prior false rape accusations may proceed, the trial judge shall hold an in camera hearing to ascertain whether such testimony involves sexual activity and thus is inadmissible under
{¶ 16} On remand, the trial court must conduct an in camera hearing about the prior accusations. First, Sara must be allowed to answer the question that she was not permitted to answer at trial—whether she has made prior false accusations of sexual abuse. Chaney, 169 Ohio App.3d 246, 2006-Ohio-5288, 862 N.E.2d 559, at ¶ 6 (3d Dist.) (“Pursuant to Boggs, the cross-examiner must be allowed to ask the threshold question of whether a rape victim has made prior false accusations of rape.“). If her answer is “no,” the hearing is over. Hall is bound by her answer and extrinsic contrary evidence is inadmissible. State v. Netherland, 132 Ohio App.3d 252, 263, 724 N.E.2d 1182 (1st Dist.1999) (saying that “pursuant to
{¶ 17} The first assignment of error is sustained.
B. Prosecutorial Misconduct
{¶ 18} The third assignment of error alleges that certain remarks by the prosecutor cumulatively constitute prosecutorial misconduct. Hall did not object to any of the remarks, so all but plain error has been forfeited. State v. Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d 293 (1990). For plain error to exist, the defect in the trial proceedings must be obvious and must have affected the outcome of the trial. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16. “Notice of plain error ‘is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 108, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶ 19} “Whether a prosecutor‘s remarks constitute misconduct depends upon (1) whether the remarks were improper and, if so, (2) whether the remarks prejudicially affected an accused‘s substantial rights. The touchstone of the analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’” (Citation omitted.) State v. Maxwell, Slip Opinion No. 2014-Ohio-1019, ¶ 243, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). “Prosecutors are granted wide latitude in closing argument, and the effect of any conduct of the prosecutor during closing argument must be considered in light of the entire case to determine whether the accused was denied a fair trial.” (Citation omitted.) State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 149.
{¶ 20} Hall first cites the prosecutor‘s opening-statement remark that “there are certain elements or what I call pieces of the pie and if one of those elements is not testified to credibly, then you can find the defendant not guilty.” (Emphasis added.) (Tr. 51). But the trial court corrected this misstatement of the state‘s burden of proof in its instructions to the jury: “The defendant must be acquitted unless the State produces evidence which produces [sic] you beyond a reasonable doubt of every essential element of the offense charged in the indictment.” (Emphasis added.) (Tr. 351). “It is presumed that the jury obeys the instructions of the trial court.” State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 54. Hall was not prejudiced by the misstatement. Compare State v. Lundgren, 73 Ohio St.3d 474, 484, 653 N.E.2d 304 (1995) (finding that the prosecutor‘s statement of the reasonable-doubt standard did not constitute plain error because “the court‘s reasonable-doubt instructions negated any
{¶ 21} Hall next contends that the prosecutor‘s voir dire remark that “[v]ictims look like you, me, anybody” was an improper appeal for sympathy. “[A] prosecutor may not make excessively emotional arguments tending to inflame the jury‘s sensibilities * * *” State v. Tibbetts, 92 Ohio St.3d 146, 168, 749 N.E.2d 226 (2001). We do not think that the prosecutor‘s remark is part of an excessively emotional argument. It is merely a stray remark—brief and insignificant. Moreover, soon after making it, the prosecutor told the jury that “what we say, even in opening and closing arguments, is not to be considered by you as evidence. It‘s just our take on what we think the evidence is. You get to make up your own minds.” (Tr. 103-104). And the trial court instructed the jury that it “must not be influenced by any considerations of sympathy or prejudice” and that it must “[c]onsider all the evidence and make your findings with intelligence and impartiality and without bias, sympathy or prejudice.” (Tr. 357). Hall was not prejudiced by the voir dire remark. Compare State v. Mundy, 99 Ohio App.3d 275, 304-305, 650 N.E.2d 502 (2d Dist.1994) (finding no error where “the trial court instructed the jury * * * that they, the jury, were not to be influenced by any considerations of sympathy“).
{¶ 22} Hall lastly contends that closing-argument remarks by the prosecutor violated his Fifth Amendment right not to testify by implying that he failed to respond to the victim‘s allegations. Direct comment on an accused‘s failure to testify does violate the Fifth Amendment‘s self-incrimination clause. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). But “[a] reference by the prosecutor in closing argument to uncontradicted evidence is not a comment on the accused‘s failure to testify, where the comment is directed to the strength of the state‘s evidence and not to the silence of the accused, and the jury is instructed not to
{¶ 23} The third assignment of error is overruled.
C. The Claim of Ineffective Assistance of Counsel
{¶ 24} The second assignment of error alleges that Hall‘s trial counsel rendered ineffective assistance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), “held that a criminal defendant‘s Sixth Amendment right to counsel is violated if his trial attorney‘s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission.” (Citation omitted.) Hinton v. Alabama, 571 U.S. 263, 134 S.Ct. 1081, 1083, 188 L.Ed.2d 1 (2014). Accordingly, “[r]eversal of a conviction for ineffective assistance requires that the defendant show, first, that counsel‘s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.” State v. Maxwell, Slip Opinion No. 2014-Ohio-1019, ¶ 75, citing Strickland at 687.
{¶ 25} Hall contends that his defense counsel‘s “chief defect” was not properly preparing and presenting either Sara‘s aunt or Jane to impeach Sara‘s credibility by testifying that Sara made prior false accusations of sexual abuse. This issue is moot. We are remanding this case for an in camera hearing at which, if necessary, counsel may present these two witnesses for this purpose.
{¶ 26} Hall also contends that counsel‘s cumulative failure to object to any of the prosecutor‘s remarks quoted above in our review of the third assignment of error constitutes deficient performance. We disagree. “The decision not to object is one of trial strategy.” (Citation omitted.) State v. Anderson, 6th Dist. Lucas No. L-01-1239, 2004-Ohio-1188, ¶ 38. And “[d]ebatable trial tactics generally do not constitute ineffective assistance of counsel.” State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 116. Moreover, we determined above that the remarks either did not prejudice Hall or were not improper.
{¶ 27} The second assignment of error is overruled.
D. The Manifest Weight of the Evidence
{¶ 28} The fourth assignment of error alleges that the verdict is against the manifest weight of the evidence. To reverse on weight of the evidence, a court must disagree with the factfinder‘s resolution of the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). That is, “[t]he court, reviewing the entire record, weighs the evidence
{¶ 29} “The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve.” State v. Cundiff, 2d Dist. Montgomery No. 24171, 2011-Ohio-3414, ¶ 27, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the fact finder‘s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the fact finder, who has seen and heard the witness.” Id. at ¶ 28, quoting State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (August 22, 1997). “This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of facts lost its way in arriving at its verdict.” Id. at ¶ 29.
{¶ 30} Hall cites problems with Dr. Vavul-Roediger‘s and Sara‘s testimony and says that certain evidence is missing. He asserts that the doctor is biased from her daily work and her perceived purpose. Hall points out that she first met the victim years after the alleged abuse. And he points out that Dr. Vavul-Roediger admitted that her medical opinion and evaluation are based
{¶ 31} The manifest weight of the evidence supports the jury‘s guilty verdict. It is not patently apparent that the jury lost its way in finding Hall guilty, so we defer to its credibility and weight determinations. We note too that none of the evidentiary “problems” cited by Hall contradicts or is necessarily inconsistent with Sara‘s testimony that Hall raped her.
{¶ 32} The fourth assignment of error is overruled.
{¶ 33} The trial court‘s judgment is reversed. The case is remanded for further proceedings consistent with this opinion.
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Mathias H. Heck
Carley J. Ingram
J. Allen Wilmes
Hon. Barbara P. Gorman