State v. RutherfordState v. Rutherford
Kort Gatterdam and David Hanson, Columbus, Ohio, for appellant.1
Robert Junk, Pike County Prosecuting Attorney, and Michael A. Davis, Pike County Assistant Prosecuting Attorney, Waverly, Ohio, for appellee.
CRIMINAL APPEAL FROM COMMON PLEAS COURT
ABELE, J.
{¶ 1} Clinton L. Rutherford, defendant below and appellant herein, appeals from the trial court’s dismissal of his
{¶ 2} Appellant assigns two errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION IN MAKING A MERITS DETERMINATION WITHOUT HOLDING A HEARING BECAUSE APPELLANT’S GROUND FOR RELIEF IN HIS
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT’S MOTION FOR APPROPRIATION OF FUNDS FOR A FALSE CONFESSION EXPERT IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE I, SECTIONS 10 AND 16, OHIO CONSTITUTION; AND
{¶ 3} In November 2015, a nurse, while prepping appellant’s 7-year-old daughter (L.R.) for a tonsillectomy, noticed vaginal bleeding.2 Further examination revealed that L.R. had abrasions both inside her vagina and outside her vaginal area. After medical staff reported these findings to Pike County Children’s Services, an investigation ensued. Subsequently, authorities removed L.R. from the home where she lived with her parents (appellant, her father, and her mother Amber Rutherford), her siblings and other extended family. L.R. and her siblings then resided with a foster family and her parents were provided supervised weekly visits.
{¶ 5} Eventually, Pike County Sheriff’s Department Major Tracy Evans interviewed appellant and, during his second interview, appellant explained that one time he had been having sex with his wife, but somehow mistakenly touched L.R.’s vagina with his penis. Appellant blamed this mistake on taking an excessive amount of unspecified medication.
{¶ 6} The Pike County Grand Jury returned an indictment that charged appellant and his wife with numerous felony counts.3 Appellant and his wife pleaded not guilty and the trial court bifurcated their cases for purposes of trial. Appellant eventually elected to have a bench trial rather than a trial by jury. Also, at the commencement of appellant’s trial, the prosecution orally moved to dismiss both counts of child endangering (counts three and four), and the trial court granted the motion.
{¶ 7} During the trial, the prosecution presented testimony from Brittany Bakenhaster, L.R.’s counselor at the Woodland Center; Dr. Sathish Jetty, a pediatrician; Pike County Children’s Services investigator Holly Wiggins; and Major Evans. Bakenhaster testified regarding L.R.’s statements that appellant touched her and had sex with her. Dr. Jetty testified that a blunt object
{¶ 8} The defense presented testimony from L.R.’s foster parent, Heidi Harris. Harris testified in detail about troubling behaviors that she observed in L.R., including violent behavior that involved “rough-housing” or “brawling” with her brothers. Harris also testified that she observed L.R. remove clothing from her dolls, then rub the dolls together and explain “that’s what you do when you are naked.”
{¶ 9} Appellant testified and denied that he had engaged in any type of sexual activity with L.R. Appellant also stated that L.R. liked rough play with her brothers, liked to ride toy trucks downhill and climb trees, and that he also observed her, approximately forty-eight hours prior to his interview with Major Evans, “messing with herself with her fingers” and with her Barbie dolls. Appellant stated that when he met with Major Evans, he hoped that the meeting would lead to reuniting the family. Appellant, however, also explained that he lied to Major Evans during his interview because he felt trapped and degraded, and he thought that he had no choice but to incriminate himself so “at least the children could go back to their mother.”
{¶ 10} After hearing the evidence and counsels’ arguments, the trial court found appellant guilty on counts one (rape) and two (gross sexual imposition), and not guilty on count six (obstructing official business). In his direct appeal, appellant asserted that the trial court erred by
{¶ 11} On July 23, 2018, appellant filed a
{¶ 12} The postconviction relief process is a collateral civil attack on a criminal judgment, rather than an appeal of the judgment. State v. Johnson, 4th Dist. Scioto No. 17CA3814, 2018-Ohio-4516; State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). The postconviction process is a means to resolve constitutional claims that cannot be addressed on direct appeal because the evidence that may support the claim is not contained in the record. State v. McDougald, 4th Dist. Scioto No. 16CA3736, 2016-Ohio-5080, ¶ 19-20, citing State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, ¶ 18; Betts, supra. Further, postconviction relief is not a constitutional right, but instead a narrow remedy that gives the petitioner no more rights than those granted by statute. Id.; State v. Betts, 4th Dist. Vinton No. 18CA710, 2018-Ohio-2720, ¶ 11.
{¶ 13} Generally, a trial court’s decision to grant or to deny a
I.
{¶ 14} In his first assignment of error, appellant asserts that his petition sets forth sufficient operative facts to demonstrate that trial counsel’s failure to present false confession expert testimony constitutes constitutionally ineffective assistance of counsel.4
{¶ 16} The
{¶ 18} In the case sub judice, appellant asserts that, in view of the fact that no physical evidence directly linked him to the rape of his daughter, his confession formed the centerpiece of the state’s case. Appellant further contends that, although he initially denied that he raped his daughter, only after lengthy and aggressive questioning, and after hearing misrepresentations about evidence that did not exist and the insistence that he had failed the ‘test’, did appellant tepidly admit to Major Evans that his penis might have penetrated his daughter’s vagina on one occasion. At trial, appellant also testified that (1) he lied to Major Evans because he believed that he had no choice but to confess, (2) he lacks education, (3) he suffers from bi-polar disorder, and (4) he takes various medications.
{¶ 20} In general, an indigent defendant who can show that a reasonable probability exists that an expert will aid in his or her defense is constitutionally entitled to state-funded expert assistance at trial. Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Appellant asserts that, in the case at bar, no alternative device would have adequately conveyed the
{¶ 21} In the case sub judice, appellant’s petition primarily relies on trial counsel’s affidavit.
{¶ 22} We recognize that other Ohio courts have considered issues similar to the issue in the case at bar. For example, in State v. Krzywkowski, 8th Dist. Cuyahoga No. 83599, 83842, 84056, 2004-Ohio-5966, a postconviction relief petitioner included a report from a psychologist expert witness that the petitioner claimed to have been necessary to assist in his defense. The Eighth District noted that the psychologist’s report did not state that the psychologist’s testimony, or his help in cross-examining the prosecution’s witnesses, would have changed the outcome of the trial, and also noted that the report did not allege that the testimony that he could have provided would have supported the appellant’s innocence or acquittal. Id. at ¶ 24-25. See, also, State v. Durgan, 1st Dist. Hamilton No. C-170148, 2018-Ohio-2310 (counsel not ineffective for failing to present expert testimony on police interrogation techniques and false confessions); State v. Simpson, 10th Dist. Franklin No. 01AP-757, 2002-Ohio-3717 (trial counsel not ineffective for failing to call expert witness in field of false confessions as record is silent as to what testimony expert would have given at trial); In re B.C.S., 4th Dist. Washington No. 07-CA60, 2008-Ohio-5771 (no prejudice resulted from trial counsel’s failure to secure false confession expert as the issues raised, including lack of physical evidence linking defendant to the crime, were addressed at trial and vigorously argued); State v. Teets, 4th Dist. Pickaway No. 17CA21, 2018-Ohio-5019.
{¶ 23} As in Krzywkowski, our review of the record in the case at bar reveals that appellant’s trial counsel performed in a competent, thorough and effective manner. Trial counsel thoroughly and vigorously cross-examined the state’s witnesses and presented evidence regarding appellant’s
{¶ 24} Moreover, we point out that trial counsel’s own affidavit provides that the failure to consult with a false confession expert “may have prejudiced” appellant’s case. (Emphasis added.) Speculation concerning some possible impact that an expert witness may, or may not, have had on the result of the proceeding does not rise to the level necessary to conclude that a false confession expert’s participation would have created a strong possibility of a different result at trial.
{¶ 25} After our review of the appellant’s postconviction relief petition, trial counsel’s
{¶ 26} Accordingly, we overrule appellant’s first assignment of error.
II.
{¶ 27} In his second assignment of error, appellant asserts that the trial court’s denial of appellant’s request for funds to employ a false confession expert constitutes an abuse of discretion. In particular, appellant contends that in view of the lack of physical evidence in this case, his confession became the centerpiece of the state’s case. Thus, it was imperative for the trier of fact to understand why appellant would confess to the commission of the rape of his daughter. In that regard, appellant argues that an expert witness may have been able to shed light on the impact of appellant’s lack of education, mental illness and medications.
{¶ 28} First, we point out that the cases appellant cites in his brief all involve expert assistance at the trial level, not postconviction proceedings. Ohio appellate courts have consistently held that the postconviction relief statute does not provide a right to funding or appointment of expert witnesses or assistance in a postconviction petition. See State v. Hicks, 4th Dist. Highland No. 09CA15, 2010-Ohio-89, ¶ 22 (Hicks sought funding for a handwriting examiner, a linguist, and an investigator, but
{¶ 29} Moreover, even if the trial court could have entertained appellant’s request for an expert during a post-conviction relief proceeding, we point out that, in light of our disposition of appellant’s first assignment of error and conclusion that no evidence exists that a false confession expert witness would have, in fact, created a strong possibility of a different result at the trial, the trial court’s decision to deny appellant’s request would not constitute an abuse of discretion.
{¶ 30} Accordingly, based upon the foregoing reasons, we overrule appellant’s second assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that appellee recover of appellant 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 Pike County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to
McFarland, J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY: __________________________
Peter B. Abele, Judge
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Notes
R.C. 2907.02(A)(1) - Rape of a child under ten years of age;R.C. 2907.05(A)(4) - Gross sexual imposition;R.C. 2919.22(B)(2) - Endangering children;R.C. 2919.22(B)(2) - Endangering children;R.C. 2921.04(B)(2) - Intimidation;R.C. 2921.31(A) - Obstructing official business; and,R.C. 2919.22(B) - Endangering children.
Being mindful of the evidence adduced at the trial, including the existence of evidence that sexual conduct was perpetrated upon the child victim and that the Defendant was the perpetrator, the
Court concludes that the Defendant has failed to present sufficient operative facts to warrant a hearing on the issue of whether trial counsel was ineffective for failing to secure a false confession expert. The Court further concludes that it has not been shown that the Defendant was denied a fair trial.