State v. WallaceState v. Wallace
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee, State of Ohio.
Ostrowski Law Firm Co., L.P.A., and Andrea G. Ostrowski, for appellant.
Jeff Meadows, for appellee, Rachel Wallace.
OPINION
BYRNE, P.J.
{¶ 1} In this interlocutory victim‘s rights appeal, an alleged child victim appeals the
{¶ 2} The defendant in this case, Rachel Wallace, was charged with (1) one count of domestic violence against her ex-spouse and (2) one count of child endangering involving the fоrmer couple‘s child, the alleged child victim herein, “I.W.” Prior to the trial date, counsel for the child victim filed a timely motion requesting the child‘s trial testimony be given pursuant to
{¶ 3} The state and Wallace did not oppose the child victim‘s motion. The trial court, however, denied the motion. It found that
{¶ 4} The child victim filed this appeal pursuant to Marsy‘s Law and
{¶ 5} On appeal, the child victim raises one assignment of error for our review:
THE TRIAL COURT ERRED IN DENYING THE CHILD VICTIM‘S MOTION TO TESTIFY REMOTELY.
{¶ 6} As mentioned above, the child victim‘s motion to testify remotely was filed pursuant to
(a) In any proceeding in the prosecution of any charge of a violation listed in division (A)(2)(a) of this section or an offense of violence and in which an alleged victim of the violation or offense was a child who was less than thirteen years of age when the complaint, indictment, or information was filed, whichever occurred earlier, the judge, upon motion of the prosecution, the child victim, or the child victim‘s attorney, if applicable, shall order the testimony of the child victim to be taken in a room other than the room in which the proceeding is being conducted and be broadcast into the room in which the proceeding is being conducted to be viewed by the jury, if applicable, the defendant, and any other persons who are not permitted in the room in which the testimony is to be taken but who would have been present during the testimony of the child victim had it been given in the room in which the proceeding is being conducted.
(b) In any proceeding that is not otherwise eligible for the protections provided for in division (C)(1)(a) of this section,
and in which an alleged victim of the violation was a child who was less than eighteen years of age when the complaint, indictment, or information was filed, whichever occurred earlier, upon motion of the child victim, the child victim‘s attоrney, if applicable, or the prosecution, and upon a showing by a preponderance of the evidence that the child will suffer serious emotional trauma if required to provide live trial testimony, the judge shall order that the testimony of the child victim be taken in a room other than the room in which the proceeding is being conducted and broadcast into the room in which the proceeding is being conducted to be viewed by the defendant who is charged with the violation or act and any other persons who are not permitted in the room in which the testimony is to be takеn but who would have been present during the testimony of the child victim had it been given in the room in which the proceeding is being conducted.
{¶ 7} The victim‘s motion stated that it was filed pursuant to Division (C)(1)(a) above, that the child was under 13 years old, and that the defendant was charged with child endangering, one of the offenses specified in Division (A)(2)(a) referenced in Division (C)(1)(a). The trial court denied the motion, however, based in part on Division (C)(2), which states:
Except for good cause shown, the prosecution, child victim, or child victim‘s attorney, if applicable, shall file a motion under this division at least seven days before the date of the proceeding. The judge may issue the order upon the motion of the prosecution, child victim, or child victim‘s attorney, if applicable, filed under this section, if the judge determines that the child victim is unavailable to testify in the room in which the proceeding is being conducted in the physical presence of the defendant, for one or more of the reasons set forth in division (E) of this section. If a judge issues an order of that nature, the judge shall exclude from the room in which the testimony is to be taken every person except a person described in divisiоn (A)(3) of this section. The judge, at the judge‘s discretion, may preside during the giving of the testimony by electronic means from outside the room in which it is being given, subject to the limitations set forth in division (A)(3) of this section. To the extent feasible, any person operating the televising equipment shall be hidden from the sight and hearing of the child victim giving the testimony, in a manner similar to that described in division (A)(3) of this section. The defendant shall be permitted to observe and hear the testimony of the child victim giving the testimony on a monitor, shall be provided with an electronic means of immediate communication with the defendant‘s attоrney during the testimony, and shall be restricted to a location from which the defendant cannot be seen or heard by the child victim giving the testimony, except on a monitor provided for that purpose. The child victim giving the testimony shall be provided with a monitor on which the child victim can observe, during the testimony, the defendant.
(Emphasis added.)
Division (E) in turn, states:
For purposes of divisions (C) and (D) of this section, a judge may order the testimony of a child victim to be taken outside the room in which the proceeding is being conducted if the judge determines that the child victim is unavailable to testify in the room in the physical presence of the defendant due to one or more of the following:
(1) The persistent refusal of the child victim to testify despite judicial requests to do so; (2) The inability of the child victim to communicate about the alleged violation or offense because of extreme fear, failure of memory, or another similar reason;
(3) The substantial likelihood that the child victim will suffer serious emotional trauma from so testifying.
{¶ 8} The trial court reasoned that although (C)(1)(a) used mandatory language, a showing of necessity was constitutionally required and therefore, Division (C)(2) provided the framework for granting a motion for remote testimony by referring to the situations establishing unavailability set forth in Division (E). The trial court determined that because the victim had not alleged any of the potential bases for a finding of unavailability set forth in Division (E), the motion for remote testimony should be denied.
{¶ 9} On appeal, the child victim argues that Division (C)(1)(a) provides that if the proceeding is a prosecution of one of the listed offenses and the child is under the age of 13, “the judge upon motion of . . . the child victim‘s attorney . . . shall order the testimony of the child to be taken in a room other than the room in which the proceeding is being conducted . . . .” (Emphasis added.) The victim argues that the use of “shall” makes the granting of the motion mandatory if the age and offense criteria are met.
{¶ 10} Contrary to our dissenting colleague‘s characterization, the analysis that follows does not turn on or analyze the constitutionality of
{¶ 11} In Carter, the defendant challenged the remote testimony by a key state witness by claiming it violated both his U.S. and Ohio Constitutional rights. In analyzing his claim, the high court focused only on a violation under the Sixth Amendment stating:
Eli hаs not asked us to revisit our decision to interpret Article I, Section 10 in lockstep with the United States Supreme Court‘s interpretation of the Sixth Amendment. Instead, he relies almost exclusively on federal Sixth Amendment case law. Because neither party has argued for an independent reading of Article I, Section 10, we are constrained to review Eli‘s argument under the federal standard. See State v. Burroughs, 169 Ohio St.3d 79, 2022-Ohio-2146, 202 N.E.3d 611, ¶ 11.
Carter, 2024-Ohio-1247 at ¶ 34.
{¶ 12} Thus, in order for an appellate court to address a constitutional issue, it must be properly raised. We have held that if the constitutionality of a statute is not raised below, it cannot be raisеd for
{¶ 13} We begin our analysis by examining the express language of the statute. State v. Waddell, 1995-Ohio 31 (1995). Because statutory interpretation is a matter of law, our review is de novo. State v. Garcia, 2020-Ohio-3232, ¶ 13 (12th Dist.). A court‘s “duty in construing a statute is to determine and give effect to the intent of the General Assembly as expressed in the language it enacted.” Pelletier v. Campbell, 2018-Ohio 2121, ¶ 14. The intention of the legislature is to be determined from the words used in the statute. Caldwell v. Whirlpool Corp., 2024-Ohio-1625 ¶ 13. “Therefore, ‘[t]he question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact.‘” Id., quoting Slingluff v. Weaver, 66 Ohio St. 621, (1902), paragraph two of the syllabus.
{¶ 14} To determine the legislature‘s intent through its chosen words, we first read words and phrases in context and construe them according to rules of grammar and common usage. State ex rel. Steele v. Morrissey, 2004-Ohio-4960, ¶ 21. We give words their plain, оrdinary meaning—unless the legislature has clearly expressed a contrary intention. In re Application of 6011 Greenwich Windpark, L.L.C., 2019-Ohio-2406, ¶ 19.
{¶ 15} In statutory construction, the word “may” is to be construed as permissive and the word “shall” is to be construed as mandatory” unless there appears a clear and unequivocal legislative intent that they receive a construction other than their ordinary usage.” State ex rel. Adams v. Harris, 2024-Ohio-4640, ¶ 71.
{¶ 16} Furthermore, it is a basic rule of statutory construction that none of the words used in a statute should be ignored. D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 2002-Ohio-4172, ¶ 26. Instead, the language “‘must be construed as a whole and given such interpretation as will give effect to every word and clause in it. No part should be treated as superfluous unless that is manifestly required, and the court should avoid that construction which renders a provision meaningless or inoperative.‘” Id., quoting State ex rel. Myers v. Bd. of Edn., 95 Ohio St. 367, 372-373, (1917).
{¶ 17}
{¶ 18} Likewise, Division (C)(1)(b) states that if a child victim is under the age of 18 and not otherwise eligible for protection under Divisiоn (C)(1)(a), “upon a showing by a preponderance of the evidence that the child will suffer serious emotional trauma if required to provide live trial testimony, the judge shall order that the testimony of the child victim be taken in a room other than the room in which the proceeding is being conducted.” (Emphasis added.)
{¶ 19} Division (C)(2), however, states that “[t]he judge may issue the order upon the motion . . . filed under this section [that is,
{¶ 20} The question, then, is whether the phrase “[f]or purposes of divisions (C) and (D)” as used in Division (E) means that Division (E) applies to and adds criteria to Divisions (C)(1)(a), (C)(1)(b), and (C)(2) alike, or instead only applies to Division (C)(2), which is the only one of the three relevant divisions of
{¶ 21} A problem arises when analyzing this question. The problem is that if Division (E) applies to all three relevant divisions of
{¶ 22} But these problems are avoided if the three relevant divisions are read as presenting three different scenarios for a judge to order a child victim‘s testimony to be taken remotely.
{¶ 23} First, Division (C)(1)(a) applies in the scenario in which the prosecution, the child victim, or the child victim‘s attorney moves for remote testimony by the child victim, the child victim is under 13, and the offense is one of the offenses enumerated in Division (A)(2)(a). In this scenario the judge “shall” order remote testimony.
{¶ 24} Second, Division (C)(1)(b) applies in the scenario in which the child victim is “not otherwise eligible for the protections provided for in division (C)(1)(a),” the prosecution, the child victim, or the child victim‘s attorney moves for remote testimony
{¶ 25} Third, the language in Division (C)(2) that we italicized in ¶ 7 above applies in the scеnario in which the prosecution, the child victim, or the child victim‘s attorney moves for remote testimony by the child victim, the child victim is under 18, and the judge determines the child is “unavailable” for any of the three reasons listed in Division (E). In this scenario the judge “may” order remote testimony.
{¶ 26} The language in Division (C)(2) italicized in ¶ 7 above is preceded and followed by language—not italicized in ¶ 7 above—that concerns the procedure and logistics for a child victim to testify in another room regardless of whether (C)(1)(a), (C)(1)(b), or (C)(2) and (E) apply. Admittedly it is odd that the legislature structured
{¶ 27} Until such an amendment is made, the interpretation of the statutory language provided above—that is, reading Divisions (C)(1)(a), (C)(1)(b), and (C)(2) as applying to three different scenarios—gives effect to every word and clause in
{¶ 28} Accordingly, we find that the trial court erred in denying the child victim‘s motion because the court misapplied
{¶ 29} We therefore sustain the child victim‘s assignment of error, reverse the trial court‘s denial of the child victim‘s request to testify remotely under
{¶ 30} Judgment reversed and remanded for further proceedings.
HENDRICKSON, J., concurs.
PIPER, J., dissents.
PIPER, J., dissenting.
{¶ 31} Because my colleagues reverse on appellants’ assignment of error, I respectfully express my dissent. Unlike my colleagues, I would affirm the trial court because the underlying intent behind
{¶ 32} Preliminarily, my colleaguеs misunderstand the trial court‘s discussion of State v. Carter, 2024-Ohio-1247. The trial court was determining how the constitutional rights of an accused are to be considered when interpreting the various provisions in
{¶ 33} There is no dispute that the child was less than 13 years old, or that the offense at issue qualifies as an offense of violence. There is also no dispute that
{¶ 34} Contrary to appellants’ argument,
{¶ 35} The state‘s interest in protecting children who are needed to testify is not new. See In re Howard, 119 Ohio App.3d 33, 37-38 (12th Dist.1997) (noting that child victims of sexual abuse may, “under certain circumstances,” override the accused‘s right to confront his or her accuser in court). To compromise an accused‘s constitutional right to confront and cross-examine witnesses,
{¶ 36} In Craig, Justice Scalia articulated that, while face to face confrontation was a constitutional right, it is also not absolute. Simultaneously, Justice Scalia noted that it “may not be easily dispensed with.” Id. at 850. There must be an adequate showing of necessity, and that “requisite finding of necessity must of course be a case-specific one.” Id. at 855. The Ohio Supreme Court in Carter, and the trial court herein, rightfully acknowledged the need for “sufficient findings” as plainly written in
{¶ 37} I.W.‘s motion was filed in a timely manner, but did not reference
{¶ 38} A further illustration of the General Assembly‘s intent that the divisions be read in conjunction to one another, is
[a] judge who makes any determination regarding . . . the taking of testimony outside the room in which a proceeding is being conducted under division (C) . . . of this section, shall enter the determination and findings on the record in the proceedings.
(Emphasis added.)
It is undeniable that appellants, and my colleagues, are suggesting the trial court should have ordered the testimony to be given remotely pursuant to
{¶ 40} My colleagues accept appellants’ argument that the preliminary use of the word “shall” in
{¶ 41} Appellants choose to ignore any analysis or discussion of division (E) or (F)(2). My colleagues also fail to discuss (F)(2) and circumvent (E). This is a regrettable exercise. As is well established, the word “shall” is not always mandatory. See, e.g., Lovejoy v. Deil, 2021-Ohio-1124, ¶ 33 (12th Dist.) (“[t]he Ohio Supreme Court ‘repeatedly ha[s] recognized that the use of the term ‘shall’ in a statute connotes a mandatory obligation unless other language evidences a clear and unequivocal intent to the contrary‘“), quoting Wilson v. Lawrence, 217-Ohio-1410, ¶ 13. Sometimes the obligatiоn, or suggested duty, emanating from the word “shall” is contingent upon circumstances evident in the other wording within the statute. That is the case here.
{¶ 42} Furthermore, the reading of a statute aims to find consistency, not inconsistency. See Meadowwood Manor, Inc, v. Ohio Dept. of Health, 2007-Ohio-2067, ¶ 21 (12th Dist.) (“statutes relating to the same general subject matter must be read in pari materia and courts should construe statutes relating to the same subject matter as consistent rather than inconsistent“). Our role is to harmonize provisions in a statute when possible. See State v. Cain, 2024-Ohio-2969, ¶ 15 (12th Dist.) (noting that, in cases of statutory construction, “the court‘s ‘paramount concern is the legislative intent,‘” which can be determined by examining the language used and the purpose to be accomplished by evaluating “the statute as a whole,” giving such interpretation “as will give effect to every word and clause in it“), citing Boley v. Goodyear Tire & Rubber Co., 2010-Ohio 2550, ¶ 20-21.
{¶ 43} Additionally, any ambiguity or uncertainty in a statute permits the use of in pari materia to examine statutory construction in order to ascertain the General Assembly‘s legislative intent. See State ex rel. Clay v. Cuyahoga Cty. Med. Examiner‘s Office, 2017-Ohio-8714 (in pari materia is used where doubt or ambiguity exists in the wording of a statute and the wording is capable of more than one meaning); Bauer v. Grange Mut. Casualty Co., 33 Ohio App.3d 145, 148 (12th Dist.) (“[s]tatutes and subsections within the same chapter of the Revised Code should be read in pari materia with one another . . . so as to fully effectuate the General Assembly‘s intent . . . .“). The application of in pari materia to this case makes clear that the General Assembly deliberately left
{¶ 44} For the reasons expressed above, I find, unlike my colleagues, that
{¶ 45} The only way to find