State v. ScottState v. Scott
{¶ 1} Aaron Scott appeals the Adams County Common Pleas Court‘s decisions overruling his
I.
{¶ 2} After drinking and running around with Sam Riggs, Scott, in the early morning hours of August 15, 2003, went to spent the rest of the night at Sam‘s residence. Sam lived with his step-father and sister (“victim“). Sam retired to a couch, and Scott went to the bedroom of the victim. Scott entered the victim‘s bed with the victim between him and her bedroom wall. He fondled the victim‘s breasts and touched her between her legs with allegations that he penetrated her vagina with his fingers. Later, the victim‘s step-father entered the bedroom and requested Scott to leave the bed.
{¶ 3} When the victim reported to her job at Venture Productions/Mental Retardation Developmental Disabilities Board (“MRDD“) later that morning, she was visibly upset. A custodian (he was also a pastor at a small church) asked her what was wrong. She said that Scott had “kept me up all night.” The custodian asked, “did he put his hands on you?” She said, “yes.” The custodian referred the victim to Susan Campton.
{¶ 4} Eventually, the local authorities conducted an investigation. The state presented the results of the investigation to a grand jury. The grand jury indicted Scott for rape in violation of
{¶ 5} At Scott‘s jury trial, two different witnesses testified under oath that they had signed prior written statements. Scott asked the state to produce those written statements so that the trial court could conduct an in camera inspection, pursuant to
{¶ 6} The court never made a finding resolving this factual dispute, i.e. did the statements exist, and thus, the state failed to comply with
{¶ 7} At the close of the state‘s case-in-chief, Scott moved the court for a
{¶ 8} The jury found Scott not guilty of the rape charge but guilty of the gross sexual imposition charge. The court sentenced Scott accordingly.
{¶ 9} Scott appeals and asserts the following two assignments of error: I. “THE TRIAL COURT ERRED BY DENYING APPELLANT‘S REQUEST FOR RELIEF WHEN THE PROSECUTOR WAS NOT ABLE TO PROVIDE SIGNED STATEMENTS OF THE STATE‘S WITNESSES.” And, II. “THE TRIAL COURT ERRED BY DENYING APPELLANT‘S MOTION FOR DISMISSAL PURSUANT TO OHIO CRIM.R. 29.”
II.
{¶ 10} In his first assignment of error, Scott argues that the trial court erred when it did not grant his request for sanctions, i.e. his motion for a mistrial, or in the alternative, to exclude the testimony of two witnesses. Scott contends that the error occurred because the state failed to produce two written witness statements after the two witnesses, under oath, indicated that they signed prior statements. The state asserts that they did not produce the two statements because the two statements did not exist.
{¶ 11}
{¶ 12}
{¶ 13} Here, the trial court never explicitly resolved the issue of whether the state did or did not fail to comply. The trial court seemed at times to implicitly find that the state did not violate
{¶ 14} However, the court‘s failure to resolve this issue is not fatal to our resolution of this assignment of error.
{¶ 15} Even if we assume that the trial court implicitly found that the state failed to comply with
{¶ 16} The Ohio Supreme Court has stated that “prosecutorial violations of Crim.R. 16 result in reversible error only when there is a showing that (1) the prosecution‘s failure to disclose was willful, (2) disclosure of the information prior to trial would have aided the accused‘s defense, and (3) the accused suffered prejudice.” State v. Jackson, 107 Ohio St.3d 53, at ¶ 131, 2005-Ohio-5981 citing State v. Parson (1983), 6 Ohio St.3d 442, 445.
{¶ 17} In addition,
{¶ 18} “The granting or denying of a mistrial under Crim.R. 33 rests within the sound discretion of the trial court.” State v. Sage (1987), 31 Ohio St.3d 173, 182. “Further, the trial court enjoys broad discretion in admitting or excluding evidence. An appellate court will not disturb the exercise of that discretion absent a showing that the accused has suffered material prejudice.” Id. (Citations omitted.)
{¶ 19} Here, Scott contends that the state‘s failure to produce the statements “prevented counsel from being able to adequately cross examine the state‘s witnesses and therefore violated the spirit of the discovery rules.” Scott does not mention, let alone demonstrate, how he was prejudiced by the state‘s failure to produce the two alleged written, signed statements. Therefore, pursuant to Parsons,
{¶ 20} Accordingly, we overrule Scott‘s first assignment of error.
III.
{¶ 21} In his second assignment of error, Scott contends that the trial court erred when it denied his
{¶ 22}
{¶ 23} We review the trial court‘s denial of Scott‘s
{¶ 24} This test raises a question of law and does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175. Rather, this test “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson at 319. Accordingly, the weight given to the evidence and the credibility of witnesses are issues for the trier of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 79-80; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus.
{¶ 25} Here, Scott does not deny that the state produced evidence to satisfy each element of the gross sexual imposition offense. Instead, he first argues that we should not consider the evidence from the victim‘s testimony because her competency is questionable and her testimony was the product of the state asking her leading questions. However, Scott did not object to the victim‘s competency while she was testifying during the trial; and he did not object to any of the state‘s alleged leading questions. “It is a general rule that an appellate court will not consider any error which counsel for a party complaining of the trial court‘s judgment could have called but did not call to the trial court‘s attention at a time when such error could have been avoided or corrected by the trial court.” State v. Glaros (1960), 170 Ohio St. 471, paragraph one of the syllabus. Therefore, Scott waived any errors regarding the victim‘s competency to testify and the state‘s leading questions.
{¶ 26} Scott next argues that the state failed to corroborate the victim‘s testimony with any physical evidence. However, corroboration is not required for a conviction of gross sexual imposition. See, e.g., State v. Shafeek (Dec. 28, 1998), Montgomery App. No. 17149. See, also, State v. Economo (1996), 76 Ohio St.3d 56, 58. Therefore, we find, after viewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of gross sexual imposition proven beyond a reasonable doubt. Consequently, we find that the trial court did not err when it overruled Scott‘s
{¶ 27} Accordingly, we overrule Scott‘s second assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the costs herein be taxed to the Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions.
Abele, J.: Concurs in Judgment and Opinion.
McFarland, J.: C