State v. ShepardState v. Shepard
APPEARANCES:
Megan M. Patituce, Joseph C. Patituce, Patituce & Associates, LLC, Strongsville, Ohio, for appellant.
Anneka P. Collins, Highland County Prosecutor, Adam J. King, Highland County Assistant Prosecutor, Hillsboro, Ohio,
Hess, J.
{1} Ronald W. Shepard appeals his conviction following a jury trial on one count of gross sexual imposition involving his 11-year-old grandchild. Shepard contends that the trial court violated his Sixth Amendment right to confront the witnesses against him and present a meaningful defense when it did not allow him to question the victim and other family members about the victim‘s reputation for untruthfulness. However, we find the trial court did not abuse its discretion regarding the allowable scope of questioning of the victim, her mother, and her grandmother.
{3} We overrule Shepard‘s assignments of error and affirm the trial court‘s judgment.
I. FACTS AND PROCEDURAL HISTORY
{4} The Highland County grand jury indicted Shepard on one count of gross sexual imposition in violation of
{5} Shepard is the victim‘s grandfather. The victim, A.S., testified that during the summer of 2021, between June 1, 2021 and November, 2021, she spent the night at her grandmother and grandfather‘s house almost every weekend. She would sleep in the guest bedroom. A.S. testified that she was over there a lot because she was helping them serve food at auctions. One evening when she and her grandfather, Shepard, were in the guest bedroom watching a movie, Shepard began touching her buttocks. He got up to check that her grandmother was not paying attention and then he began touching A.S.‘s vagina. A.S. testified that she was wearing shorts and a t-shirt and Shepard had his hand under her shorts. This made her feel uncomfortable and she told Shepard, but he told her that “it was fine.” The touching lasted about 30 to 45 minutes and ended when the movie ended.
{6} After that first incident, things progressed. A.S. testified that Shepard would ask her to come to his bedroom while her grandmother was sleeping and Shepard would touch her vagina and make her touch his penis. A.S. testified that white stuff would come out of Shepard‘s penis while she was touching it. If white stuff did not come out, then Shepard would be mad at her the rest of the time she was there. A.S. did not know what was happening when the white stuff came out, but Shepard told her “it was come.” A.S. testified that her grandmother worked second shift during the months that A.S. frequently stayed with them and did not get home until 11:30 p.m.
{7} A.S. testified that Shepard would try to force her to watch videos of “people having sex,” which made her feel “really uncomfortable.” A.S. testified that if she did as she was instructed by Shepard, he would let her play on his phone or tablet until “like three in the morning or whatever.” But if she refused, he would be angry, take the phone or tablet away, and punish her the next day by not letting her go places. After Shepard started sexually abusing A.S., she eventually stopped going over to her grandparents’ house. After she
{9} On cross examination, Shepard‘s counsel asked, “You have a history of lying though, don‘t you.?” A.S. responded, “Yes, I do have a history of lying but it‘s not about big things.” Shepard‘s attorney also asked, “Okay. You have a history of stealing things don‘t you?” and A.S. responded, “From my own house, yes.” Shepard‘s attorney and A.S. then had the following exchange:
| Q: | Well, let me back up. Right before you disclosed your grandpa caught you stealing money from him, didn‘t he? |
| A: | No, he didn‘t. |
| Q: | He didn‘t? |
| A: | No, I never stole money from him. |
| Q: | Okay, you have no, how about money between the mattress, do you have any idea what I‘m talking about? |
| A: | No, I don‘t. |
| Q: | Okay, where did the money between the mattress come from? |
| A: | He put it there. |
| Q: | How did you know it was there? |
| A: | Because he showed me. |
| Q: | Tell me about it, how did he show you... |
| A: | He went and got money from under the mattress one time and I was in there when he did. |
| Q: | Okay, so, when is it okay, you said you stole from your own family, so when is it okay to steal and when it is not? |
| A: | It‘s not. |
| Q: | I think you just said it‘s okay to steal from your own family. |
| A: | I said I did, I didn‘t say it was okay. (crying) |
| Q: | Okay, you‘ve been in trouble before for lying, haven‘t you? |
| A: | Yeah. |
On redirect, the prosecutor asked the following:
| Q: | Now, [defense counsel] made a big deal about some lies that you‘ve told? |
| A: | Yes. |
| Q: | What have you lied about? |
| A: | I have lied about taking things from my sister. About not cleaning my room, not doing my homework, hanging out with one of my friends that my mom didn‘t like. |
| Q: | Okay, so are you lying about what your grandfather did to you? |
| A: | No. |
| | Now, you testified that you took something from your own house? |
| A: | Yes |
| Q: | What are you talking about? |
| A: | I used to go in my sister‘s room and I would wear her clothes or I would take one of her things that I thought was cool that I would like and I wasn‘t allowed to have, so I would take it out of her room. Or I would just go look around in my parent‘s [sic] room and see what they had and be a snoop. |
| Q: | So, when you say that you‘ve stolen stuff from your own home, is that what you‘re talking about? |
| A: | Yes. |
| Q: | Have you heard, do you understand how serious it would be for you to tell a lie here today? |
| A: | Yes. |
{10} A.S.‘s older sister, K.S., testified that on March 10, 2022, she came home from school and her mother, Shepard, and her younger brother were home. A.S. was not home from school yet. Shepard was there to help K.S. babysit her younger brother. At some point K.S. noticed that Shepard and A.S. were having a conversation at the level of a whisper at the front door and K.S. overheard the last few moments of it. K.S. heard A.S. tell Shepard that she did not like what Shepard did to her. This caused K.S. concern and when Shepard left shortly thereafter, K.S. asked A.S. if there was anything A.S. wanted to tell K.S. or anything that K.S. should know. A.S. initially denied anything had happened, but then K.S. told A.S. she had overheard the comment, and A.S. finally told K.S. about the sexual abuse. A.S. began crying and was a little shaky and asked K.S. not to tell anyone because she was afraid she would get in trouble. K.S. explained that she had to let someone know and later that evening K.S. told their father about it.
{11} Shepard‘s defense counsel asked K.S., “*** you know your sister has a history of lying doesn‘t she?” The trial court sustained the state‘s objection. No further questions about A.S.‘s alleged reputation for lying and no questions about whether K.S. knew of any specific instances of A.S. stealing were permitted.
{12} A.S.‘s mother, T.B., testified that she had three children and had been in a relationship with her children‘s father, J.S., for 19 years though they had never married. T.B. is not employed outside the home because her son is a special needs child. Shepard is T.B.‘s stepfather and started dating T.B.‘s mother when T.B. was 13 years old. On March 10, 2022, T.B. had a doctor‘s appointment in the afternoon and then planned to meet a friend for dinner so she contacted Shepard to come to her house to help watch her son. After K.S. came home from school, T.B. left for the doctor‘s appointment. During her dinner with her friend, J.S. called her and told her what he had learned from K.S. about Shepard‘s sexual abuse of A.S. She left immediately and went home. She and J.S. talked about the abuse and decided to call the sheriff‘s office and file a report the next morning. T.B. also contacted her mother, V.S. - Shepard‘s wife, and V.S. came over right away. {13} T.B. testified that she, V.S., and A.S. discussed the sexual abuse and V.S. reacted very emotionally, sobbing and apologizing. Afterwards, V.S. removed her clothing and belongings from her home, went to the bank and withdrew cash, closed her accounts, and packed up her stuff to stay at T.B.‘s older sister‘s home. After T.B. contacted the sheriff‘s office, she took A.S. to Cincinnati Children‘s Hospital.
{15} On cross examination, Shepard‘s attorney asked T.B. when A.S. began acting out and T.B. said the summer of 2020. Shepard‘s attorney asked, “Okay and that‘s when she got caught stealing Grandpa‘s money, right?” The state objected and the trial court sustained it.1
{16} Ashley Cremeans, a social worker and forensic interviewer at Cincinnati Children‘s Hospital, testified about the forensic interview process and her interview of A.S., which was conducted on March 15, 2022. Cremeans prepared a report which was introduced as an exhibit and indicated A.S.‘s date of birth of July 1, 2010, thus A.S. would have been 10 years old on June 1, 2021 and then turned 11 years old that summer. Cremeans also identified her recorded interview of A.S., which was played for the jury. During the recorded interview A.S. told Cremeans about how Shepard touched her butt and rubbed her vagina, forced her to touch his penis, and tried to force his penis into her vagina but was not able to because it was too painful. A.S. stated that Shepard would watch pornography and masturbate while Shepard‘s wife was at work. A.S. told Cremeans about how Shepard would make A.S. get into bed with him after her grandmother was asleep and how eventually she stopped going over to her grandparents’ house because she was so uncomfortable with what Shepard was doing. Cremeans testified that she performed a TSSC on A.S., which is a pediatric trauma screening tool. A.S. indicated signs of trauma based on her answers. Based on the trauma screening tool, Cremeans recommended that A.S. receive mental health treatment. Cremeans also testified that delayed disclosure of abuse is very common in children.
{17} Detective Sergeant Vincent Antinore of the Highland County Sheriff‘s Office testified that he is the supervisor of the detective‘s division and approximately 90% of the cases he investigates are juvenile sex crimes or sexual assaults on juveniles. Detective Antinore testified that on March 10, 2022, A.S. and her mother came into the sheriff‘s office and reported that A.S. had been sexually assaulted by her grandfather. He referred them to the Cincinnati Children‘s Hospital Mayerson Center for a forensic interview and medical attention. On March 15, 2022, Detective Antinore travelled to the home of Ronald Shepard and spoke with Shepard. During his interview of Shepard, Shepard did not give any reason why A.S. would make up
{18} V.S., Shepard‘s wife and A.S.‘s grandmother, testified in her husband‘s defense and stated that she had been married to Shepard for 22 years. V.S. testified that she does not take Ambien. V.S. testified that from January 2021 to January 2022 no one could use the internet at her house because it wasn‘t working. V.S. said there was no way to watch pornography at her house because when they tried to have internet “it would just circle.” V.S. testified that Shepard does not have a computer and she has seen him try to use the internet, “but he can‘t get on it.” V.S. testified that she is a light sleeper and is “usually up three of four times.” She also has congestive heart failure and, as a result, “I can‘t sleep well.”
{19} On cross examination, V.S. denied that she had packed up her things and moved out. Instead, she testified that she stayed at her daughter‘s house for one night. She admitted that she apologized to A.S. the day she first learned of the allegations “because I didn‘t know what was going on.” V.S. denied that she had ever joked around with family members at Christmas time about sleep shopping because of her Ambien. She testified, “I didn‘t take Ambien. I prescribed [sic] Ambien but I never took it.” V.S. stated that she was “probably just joking around” with family members about taking Ambien, “I never took Ambien. * * * I was prescribed it but I didn‘t take it.” V.S. testified that although Shepard does not have a computer, he has a cell phone.
{20} The jury found Shepard guilty of gross sexual imposition. The trial court sentenced Shepard to a prison term of 60 months, and he was classified as a Tier II registered sex offender.
II. ASSIGNMENTS OF ERROR
{21} Shepard presents the following assignments of error:
- The trial court abused its discretion in denying the defense the opportunity to ask questions related to A.S.‘s untruthfulness which resulted in a violation of Mr. Shepard‘s Sixth Amendment rights.
- Mr. Shepard‘s conviction was against the manifest weight of the evidence.
III. LAW AND ANALYSIS
A. Limitations on Cross Examination
{22} Shepard contends that the trial court abused its discretion when it denied him the opportunity to cross-examine witnesses about A.S.‘s lying and a specific allegation that she had stolen from Shepard. Shepard was permitted to ask A.S. whether she had a history of lying and stealing. A.S. admitted that she had a history of lying, but not about big things. She also admitted she had stolen things from her own house. However, she denied ever stealing money from Shepard. Shepard attempted to ask A.S.‘s sister, mother, and grandmother about A.S.‘s lying and/or stealing but was not permitted because the trial court sustained the state‘s objections to the questioning. Shepard argues that
{23} Shepard argued that his defense theory “hinged on A.S.‘s decision to lie after she was caught stealing from her grandfather.”
{24} The Sixth Amendment to the United States Constitution guarantees defendants the right to confront the witnesses against them and includes the right to cross-examination. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); State v. Brunson, 171 Ohio St.3d 384, 2022-Ohio-4299, 218 N.E.3d 765, ¶ 52. “However, the right to confrontation is not limitless. The right does not prevent a trial court from imposing limits on defense counsel‘s inquiry into the potential biases of a prosecution witness.” Brunson at ¶ 53. The “Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” (Emphasis sic.) State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 83, quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). The extent to which cross-examination is permitted with respect to a particular subject of inquiry lies within a trial court‘s sound discretion. State v. Green, 66 Ohio St.3d 141, 147, 609 N.E.2d 1253 (1993). A trial court‘s decision regarding allowable scope of cross-examination will not be reversed absent an abuse of discretion. State v. Hunt, 4th Dist. Scioto No. 17CA3811, 2018-Ohio-4183, ¶ 53.
2. Evid.R. 608
{25} “Evidence of the character of a witness on the issue of credibility is admissible as provided in Rules 607, 608, and 609.”
(A) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(B) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness‘s character for truthfulness, other than conviction of crime as provided in
Evid.R. 609 , may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness‘s character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.The giving of testimony by any witness, including an accused, does not operate as a waiver of the witness‘s privilege against self-incrimination when examined with respect to matters that relate only to the witness‘s character for truthfulness.
{26} First, the trial court permitted Shepard to cross-examine A.S. on her reputation for untruthfulness in accordance with
{27} A.S. testified about the types of lies she has told: “I lied about taking things from my sister. About not cleaning my room, not doing my homework, hanging out with one of my friends.” A.S. also testified about the things she has stolen: “I would wear her [A.S.‘s sister] clothes or I would take one of her things that I thought was cool that I would like and I wasn‘t allowed to have.” Because A.S. denied stealing money from Shepard‘s mattress, Shepard had to take her answer as given and could not contradict her denial by confronting her with extrinsic evidence or attempting to prove the matter through testimony of other witnesses.
{28} Finally, Shepard contends that he was denied the opportunity to ask K.S., T.B., and V.S. about A.S.‘s reputation for untruthfulness in violation of
{29} Although Shepard contends he was prevented from asking T.B. about A.S.‘s reputation for untruthfulness, he does not cite any place in the record and we cannot find any place where he asks T.B. about A.S.‘s reputation for untruthfulness. However, on direct examination, T.B. was asked about whether A.S. has lied about things and T.B. responded, “Of course, she‘s a child * * * maybe doing her homework and it not being complete or saying she completed her laundry and put it away but maybe hid it in her closet until the next day. Following through on her chores and they not being completed. Just simple things that kids tend to tell a fib about.”
{30} Shepard asked V.S. about “a conversation” she may have had with A.S.
{31} Under
“In our system of justice it is the fact finder, not the so-called expert or lay witnesses, who bears the burden of assessing the credibility and veracity of witnesses.” State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988). For this reason, “[o]pinion testimony regarding another witness‘s credibility ‘infringe[s] upon the role of the fact finder, who is charged with making determinations of veracity and credibility.’ ” State v. Smith, 2017-Ohio-9283, 102 N.E.3d 1111, ¶ 46 (10th Dist.), quoting Eastham at 312. “Generally, the opinion of a witness as to whether another witness is being truthful is inadmissible.” State v. Essa, 194 Ohio App.3d 208, 2011-Ohio-2513, 955 N.E.2d 429, ¶ 90 (8th Dist.).
However,
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
State v. Bruce, 2023-Ohio-3298, 224 N.E.3d 715, ¶¶ 60-61 (3d Dist.); State v. Denson, 1st Dist. Hamilton No. C-220208, 2023-Ohio-847, ¶ 26 (great-aunt and mother were properly asked questions about child victim‘s character for truthfulness with questions like “have you ever known her to lie?” and “in terms of telling lies, what can you tell us?” They were not asked whether they believed the allegations or whether the allegations were truthful.).
{32} Under
{33} We find that the question of V.S. (“did you run into problems with [A.S.] lying?“), is problematic in its wording, vague, and does not specifically ask about A.S.‘s character or reputation for untruthfulness. We find that the question fell outside the scope of
{34} We find that the question of K.S. soliciting specific instances of lying fell outside the scope of
{35} We overrule Shepard‘s first assignment of error.
B. Manifest Weight of the Evidence
{36} Shepard contends that his conviction for gross sexual imposition was against the manifest weight of the evidence. Specifically, he argues that while A.S. “testified that Shepard used electronics and internet access to gain her compliance, [V.S.] testified that their home did not have working internet access.” He argues that the “fact that it was not working during the summer A.S. spent with her grandparents calls into question her credibility regarding not only the internet-related allegations, but also the allegations related to her grandfather‘s conduct.” Shepard also argues that even though he was limited in building a record concerning A.S.‘s reputation for untruthfulness, the jury was nevertheless aware that A.S. had a history of lying because she testified about it. Shepard concludes that in “consideration of the weight of the evidence offered at trial, the jury lost its way in convicting” him. In sum, Shepard argues that the jury should have believed his wife and not his granddaughter.
1. Standard of Review
{37} In determining whether a criminal conviction is against the manifest weight of the evidence, we must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that reversal of the conviction is necessary. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. To satisfy this test, the state must introduce substantial evidence on all the elements of an offense, so that the jury can find guilt beyond a reasonable doubt. See State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), syllabus; State v. Harvey, 4th Dist. Washington No. 21CA3, 2022-Ohio-2319, ¶ 24. Because a trier of fact sees and hears the witnesses, appellate courts court will also afford substantial deference to a trier of fact‘s credibility determinations. State v. Schroeder, 2019-Ohio-4136, 147 N.E.3d 1, ¶ 61 (4th Dist.); State v. Colonel, 2023-Ohio-3945, 227 N.E.3d 336, ¶¶ 50-54 (4th Dist.).
2. Elements of Gross Sexual Imposition
{38} Shepard was convicted of gross sexual imposition in violation of
{39} A.S. testimony provided evidence on all elements of gross sexual imposition. Additionally, K.S. provided testimony that she overheard A.S. telling Shepard that she “did not like what you do to me” and became concerned and questioned her younger sister about it. Though initially very reluctant to discuss it, A.S. tearfully told her older sister about the abuse, who then informed their father. Cremeans also testified that she conducted a recorded interview of A.S. The interview was played for the jury and in it A.S. described all the elements of gross sexual imposition. Additionally, A.S.‘s credibility was bolstered by the testimony of her mother, T.B., who testified that she was concerned with A.S.‘s behavioral changes, depression, isolation, and the fact that she had accessed pornography at age 11. T.B. also testified that Shepard was noticeably persistent in insisting that A.S. come and spend the night. If T.B. disallowed it, Shepard would try to get her to change her mind. If A.S. refused, Shepard would ask T.B. to put A.S. on the phone so he could speak to her directly and try to change her mind. {40} Finally, the jury had the ability to hear and evaluate the credibility of V.S., who despite having great difficulty sleeping, problems waking three or four times a night, and a prescription for Ambien, testified that she never took Ambien and, when questioned about a time she told family members she was taking it, testified that “we were probably just joking around, I never took Ambien.” Additionally, contrary to Shepard‘s contentions, V.S.‘s testimony about internet access did not conflict with A.S.‘s testimony about playing games or watching pornography on it. V.S. testified that they did, in fact, have internet at their house, but they could not use it because it did not work, “it would just circle.” Shepard does not deny that they had internet access, rather he characterized her testimony as meaning they did not have “working” internet access. However, an internet with lagging, buffering, or spinning circles is not the same as no internet at all. The jury was free to believe all, part, or none of V.S.‘s testimony about her Ambien use and her husband‘s internet use. Her credibility as well as that of the other witnesses is an issue for the jury to resolve because they see and hear the witnesses. We afford substantial deference to the jury‘s determinations of credibility. Having reviewed the testimony and other evidence adduced at trial, we do not believe that the jury clearly lost its way in convicting Shepard of gross sexual imposition.
V. CONCLUSION
{41} Having overruled the assignments of error, we affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY:
Michael D. Hess, Judge
NOTICE TO COUNSEL
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.