Date: Sat, 6 Apr 1996 00:01:04 -0500
Sender: Is there a child sex abuse witchhunt?
------------------------------
Date: Fri, 5 Apr 1996 13:48:44 EST
From: "Jonathan G. Harris, Dept. of Chem Eng, MIT"
Subject: Nancy Smith news stories
The Plain Dealer
November 18, 1995 Saturday, FINAL / LORAIN
SECTION: METRO; Pg. 6B
LENGTH: 441 words
HEADLINE: LAWYERS WANT ABUSE CONVICTIONS OVERTURNED
BYLINE: By KAREN HENDERSON; PLAIN DEALER REPORTER
DATELINE: ELYRIA
BODY:
Lawyers for a former bus driver and a Lorain sanitation worker yesterday
asked an appeals court to set aside verdicts convicting the pair of molesting
children in a Head Start program.
In arguments before the 9th District Ohio Court of Appeals sitting in
Elyria, the lawyers complained of inconsistencies and tainted testimony from
the children who were the main witnesses against former bus driver Nancy Smith
and Joseph Allen at their trials last year.
A Lorain County jury convicted Smith and Allen of a total of 14 counts
related to the molestation of the preschoolers. At the trial, the state
contended that Smith, who drove a bus to Nativity School in Lorain, brought
children to meet Allen at an unknown location near the Head Start site.
The investigation began in mid-1993 after parents complained to police. The
state contended that Allen and Smith had sexually abused and terrorized the 4-
and 5-year-olds.
Smith, 38, was sentenced to 30 to 90 years in prison and Allen, 42, to five
consecutive life sentences, in addition to 22 to 50 years in prison on three
other counts.
Although Smith and Allen were convicted of abusing three children, police
said several other children supplied consistent information.
Yesterday, Smith's lawyer, Jack Bradley, said the children were led in their
testimony by the prosecutor and influenced about what they should say by their
parents and the police.
"The interview techniques were so suggestive," he said. "It's all mostly
leading questions," he said, waiving a transcript in the air. "It's
devastating."
Bradley said the court should adopt rules requiring police interviews in
cases of alleged child abuse to be videotaped and recorded to make sure the
children are not coerced into making the allegations.
He said prosecutors also withheld vital information, including some taped
interviews, until the trial had already begun, which violated discovery rules.
Allen's lawyer, Priscilla Schnittke, said there were repeated inconsistencies
in the testimony, including some from children who denied being molested, and a
child who testified that she had been taken to Allen's basement. "His house has
no basement," she said. She said investigators asked questions "again and again
until they [the children] said yes."
Bradley asked judges William Baird, Daniel B. Quillin and Lynn C. Slaby to
grant Smith a new trial. Schnittke asked the judges to throw out the lower
court's verdict.
Prosecutors did not attend the hearing but had submitted written briefs
opposing defense motions.
Supporters of Smith were outside the courtroom, carrying signs urging that
she be freed.
Copyright 1994 Plain Dealer Publishing Co.
The Plain Dealer
August 6, 1994 Saturday, FINAL / LORAIN
SECTION: METRO; Pg. 2B
LENGTH: 496 words
HEADLINE: HEAD START CHIEF SEES NO FAIL-SAFE SECURITY PLAN
BYLINE: By JOEL RUTCHICK; PLAIN DEALER REPORTER
DATELINE: LORAIN
BODY:
William Locke has been looking for a fail-safe system to guarantee that no
Head Start pupil will ever be bothered by a child molester.
He has come up empty.
The president of the Lorain County Community Action Agency has searched
because the Head Start program he oversees has been rocked by an investigation
into the sexual abuse of children who rode a bus to school.
A Lorain County jury on Thursday convicted former bus driver Nancy Smith
and Joseph Allen, a former Lorain sanitation worker, on a total of 14 counts
related to the molestation of preschoolers.
The state contended that Smith, who drove a bus to Nativity School in
Lorain, brought children to meet Allen several times during the first five
months of last year at an unknown location near the Head Start site. Allen and
Smith sexually abused and terrorized the 4- and 5-year-olds, the state said.
Locke remains dubious about the allegations and said he is "disturbed"
because he doesn't know "how this could have happened."
"We have 1,507 children to protect. What can we put together to ensure no one
can ever allege this to happen again? You have to know where your defect is," he
said. "We don't know that."
Although Jonathan Rosenbaum, the chief assistant Lorain County prosecutor,
suggested in court that the system was not infallible, Locke and Selina
Gaddis, Head Start's director in Lorain County, thought procedures were in
place to prevent the children from being harmed.
For instance, teachers go outside to greet children when their buses arrive
and take attendance in the class, they said.
Some Head Start sites, like Nativity, have a security system so students
arriving late have to buzz to enter, Gaddis said.
Consequently, Locke doesn't see how one child's account could be true: that
Smith dropped a busload of children off at school, but then brought several kids
to Allen in her car before returning the youngsters to Nativity.
Despite the furor, which started more than a year ago, the Head Start program
is booming.
Gaddis expects about 1,500 students when class begins in mid-September, about
200 more than for the 1993-94 school year.
Head Start will add a 10th site in Lorain County this fall.
"The general public realizes we run a quality program," Locke said.
Many youngsters who participate in the program also had siblings in it,
Gaddis said.
Since the abuse allegations surfaced in May last year, Head Start has
contracted with Laidlaw Transit Inc. to run the bus service.
But Locke said the switch had been considered for a long time and that it was
cheaper and easier to contract the service.
The spectre of litigation hangs over the Community Action Agency, however.
"We are aware of the potential liability," Locke said, adding that there have
been discussions with the two agencies that fund the $6.5 million-a-year Head
Start program - the U.S. Department of Health and Human Services and the Ohio
Department of Education.
LANGUAGE: ENGLISH
LOAD-DATE: August 7, 1994
Copyright 1994 Plain Dealer Publishing Co.
The Plain Dealer
August 5, 1994 Friday, FINAL / ALL
SECTION: NATIONAL; Pg. 1A
LENGTH: 882 words
HEADLINE: JURY CONVICTS PAIR IN LORAIN HEAD START SEX ABUSE CASE
BYLINE: By JOEL RUTCHICK; PLAIN DEALER REPORTER
DATELINE: ELYRIA
BODY:
To the end, a single mother of four who drove a school bus and a former
Lorain city sanitation worker insisted they had never crossed paths, much less
molested children.
A jury didn't buy it.
Nancy Smith, 37, and Joseph Allen, 41, both of Lorain, were convicted
yesterday of the sexual abuse of three preschool children who rode the bus to
the Lorain Head Start program.
Their convictions on 14 counts capped an at-times rocky six-month
investigation by Lorain police and an eight-day trial punctuated by graphic
testimony of young children and bitter disputes between lawyers.
As six guilty verdicts were read and as Lorain County Common Pleas Judge
Lynett McGough pronounced sentence, Smith proclaimed her innocence and protested
that her accomplice was a stranger.
"I don't even know this man," she sobbed into her hands.
"I'm a mother. I just want my children. ... I never touched these children,
never. I never hurt them in any way."
After the verdict, Chief Assistant Prosecutor Jonathan Rosenbaum later mocked
Smith's sincerity, snapping, "I didn't see one tear."
McGough sentenced Smith to 30 to 90 years in prison for rape, attempted rape
and two counts each of gross sexual imposition and two counts of complicity to
rape.
Allen, who did not testify during the trial, angrily told McGough before
sentencing that he had turned his life around. He said he has children of his
own and would never abuse children.
He said he never tied anyone up, as children had testified, and called the
investigation and trial "painful."
"I wasn't present when this crime occurred," he said. "I don't know nothing
about those victims."
Rosenbaum called Allen a "jackal" with a history of preying on children and
urged McGough to mete out the maximum punishment "so nobody ever hears from the
likes of this man again."
McGough gave Allen five consecutive life sentences, in addition to 22 to 50
years in prison on three other counts. The jury found Allen guilty of four
counts of rape, three counts of felonious sexual penetration and one count of
gross sexual imposition.
The Plain Dealer, August 5, 1994
The investigation began in mid-1993 after parents complained. Although Smith
and Allen were convicted of abusing three children, several others supplied
consistent information to police, said Lorain police Capt. Celestino Rivera.
"I feel numb," said Eladio Andujar, one of the Lorain police detectives on
the case. "This investigation was so long and so intense. Every kid was saying
the same thing over and over independent of each other."
The state contended that Smith brought children to meet Allen several times
during the first five months of last year at an unknown location near Nativity
School. Rosenbaum used the testimony of children and their parents to show that
Allen and Smith not only performed sexual acts on them but terrorized the
children in other ways.
Children testified they were tied up and that Allen had a scary Halloween
mask and wore a pink dress. He told the children he would disguise himself and
kill their families if they told their parents about what happened.
The jury deliberated about six hours. One juror who did not want to be
identified said the testimony of children was the key factor in the convictions.
The Plain Dealer, August 5, 1994
"You can tell when a kid's lying and when a kid's not," the father of three
said.
Juror Dolores J. Hersh said, "All I can tell you is that all the evidence was
there."
Throughout the trial, Smith's lawyer, Jack W. Bradley, and Allen's lawyer,
Joseph R. Grunda, argued the testimony of children was not reliable, in part
because it differed substantially from statements the youngsters gave police.
They also said the children were "contaminated" witnesses because a Lorain
police detective, who was later removed from the case, interviewed the children
in the presence of their parents. They said police and parents suggested facts
to the children and the children tried to please their parents.
Bradley called the case the low point in his 17 years as a criminal defense
lawyer.
"In my heart and soul, I believe my client is not guilty," he said. "When I
looked at the jury when they came in, I still felt they were going to find her
not guilty. There was so much reasonable doubt in this case."
The Plain Dealer, August 5, 1994
He said there was no solid evidence of a connection between Smith and Allen.
The most crushing moment for Smith may have occurred before the trial began,
when McGough ruled she and Allen would be tried together, he said.
He said Smith, who passed a polygraph test during the investigation, could
not get a fair trial with a co-defendant previously convicted of a sex crime
involving a juvenile. She was a victim of guilt by association, he said.
McGough allowed the state to introduce evidence that Allen was convicted of
sexual battery in 1985.
Grunda called that "devastating" and said it was improper because the crime
that gave rise to the conviction occurred too long ago. He said that would be
the basis of Allen's appeal. The defense lawyers said the age of the victims
also hurt Smith and Allen.
"I believe when you're dealing with children 4 and 5 years old that people
have a tendency to believe they don't make things up," Bradley said. "Jurors
don't understand how children can be manipulated."
The Plain Dealer, August 5, 1994
GRAPHIC: PHOTO BY: Ralph J. Meyers/Plain Dealer Photographer Nancy Smith,
flanked by her lawyers, cries after being sentenced yesterday in Lorain County
Common Pleas Court.
LANGUAGE: ENGLISH
LOAD-DATE: August 6, 1994
Copyright 1993 U.P.I.
November 7, 1993, Sunday, BC cycle
SECTION: Regional News
DISTRIBUTION: Ohio
LENGTH: 369 words
HEADLINE: Bus driver accused of molesting children
DATELINE: LORAIN, Ohio
BODY:
A felony charge has been filed against Nancy Smith, a former Head Start
program bus driver, alleging she was involved in the molestation of preschoolers
enrolled in Head Start in Lorain County.
Smith, 36, was arrested Friday night at her Lorain County home. She was
charged Saturday with gross sexual imposition and placed in the Lorain County
Correctional Facility under $250,000 bond.
United Press International November 7, 1993, Sunday, BC cycle
Jack Bradley, Smith's lawyer, said Smith is innocent. He said she had
cooperated with police officials, passed a lie-detector test and submitted to
medical tests for sexually transmitted diseases.
''Not one thing she had done hs pointed to her as being guilty of
anything,'' Bradley said. ''I was very disappointed she was arrested and taken
away in handcuffs in front of her children and her parents. I think police
obviously arrested Nancy because they feel pressure from the parents.''
Smith, who had been a Head Start bus driver for about a year before being
laid-off, was the second person arrested in the case. She is scheduled to be
arraigned Monday in Lorain Municipal Court.
Head Start is a federally subsidized preschool educational program serving
children from low-income families. A spokesman for the Lorain program said
most of the children there use bus service to attend half- day classes.
Some parents of the children involved allege Smith took children to homes
where Joseph Allen abused and tortured them. He was charged with molesting five
children, ages four and five. Parents claim he abused as many as 14 children.
United Press International November 7, 1993, Sunday, BC cycle
A former city sanitation worker, Allen, 40, was the first arrested in the
case. He pleaded not guilty Friday to three counts of gross sexual imposition,
two counts of felonious sexual penetration and one count of rape.
Allen, who has previously been convicted of sexual abuse involving children
and was imprisoned on a murder conviction in Massachusetts, was in the Lorain
city jail Saturday because he was unable to post a $250, 000 bond.
Police officials said they have been investigating the case since May, but
did not seek charges until last Wednesday, when Allen was arrested for raping a
teen-age runaway girl in an unrelated case.
------------------------------
Date: Fri, 5 Apr 1996 10:59:29 EST
From: "Jonathan G. Harris, Dept. of Chem Eng, MIT"
Subject: Appeal decision on Nancy Smith
Nancy Smith's Appeal is below.
One question for people in contact with Smith and her attorneys. Who
was the aide who claimed to have seen Smith with Allen? Was she pressured by
police or was she someone with a grudge?
Another question: How did Allen get fingered in this? Is it likely
that any of the children ever were at Allen's house or did the police find
Allen by just looking for someone convicted of sexual abuse living in the
county.
One thing noticeably missing is any mention of testimony that any
children were late to school or missing as would have been the case had she
taken children to Allen's house instead of school.
regards,
---Jonathan
STATE OF OHIO, Appellee v. NANCY SMITH, Appellant
C.A. NO. 95CA006070
COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT,
LORAIN COUNTY
1996 Ohio App. LEXIS 241
January 24, 1996, Dated
NOTICE: [*1] THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE
PENDING RELEASE OF THE FINAL PUBLISHED VERSION.
PRIOR HISTORY: APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT. COUNTY OF
LORAIN, OHIO. CASE NO. 94 CR 045368.
DISPOSITION: Judgment affirmed.
COUNSEL: APPEARANCES:
GREGORY A. WHITE, Prosecuting Attorney and JONATHAN ROSENBAUM, Asst. Prosecuting
Attorney, 226 Middle Ave., Elyria, OH 44035 for Appellee.
JACK BRADLEY, Attorney at Law, 520 Broadway, 3rd Floor, Lorain, OH 44052 for
Appellant.
JUDGES: WILLIAM R. BAIRD, Presiding Judge. QUILLIN, J., SLABY, J., CONCUR
OPINIONBY: WILLIAM R. BAIRD
OPINION: DECISION AND JOURNAL ENTRY
Dated: January 24, 1996
This cause was heard upon the record in the trial court. Each error assigned has
been reviewed and the following disposition is made:
BAIRD, Presiding Judge.
Nancy Smith appeals her convictions of two counts of gross sexual
imposition, one count of rape, one count of attempted rape, and two counts of
complicity to rape. We affirm.
Smith's convictions stemmed from allegations made against her by several
children, all between four and five years of age, who were enrolled in the Head
Start program in Lorain, Ohio, during the 1992-1993 school [*2] year. Smith
was a bus driver for Community Bus Service and was responsible for transporting
the children to classes held at two locations in the city of Lorain.
The first report of the alleged misconduct was made to police on May 11, 1993.
The children reported to their parents, and later to police officers, that on
several occasions Smith, instead of taking them to school, took them to the home
of Joseph Allen where they were bound, molested, and raped by both Smith and
Allen.
Following a six-month investigation, Smith was indicted, with respect to
Antuan P., on one count of gross sexual imposition, in violation of R.C.
2907.05(A)(4); one count of attempted rape, in violation of R.C.
2907.02(A)(1)(b); one count of rape, in violation of R.C. 2907.02(A)(1)(b); and
one count of complicity to rape in violation of R.C. 2923.03(A)(2). She was also
indicted on one count of gross sexual imposition, in violation of R.C.
2907.05(A)(4), with respect to Jonathan G.; and one count of complicity to rape,
in violation of R.C. 2923.03(A)(2), with respect to Nikki Z. All of the acts
were alleged to have occurred during the period of January 1 to June 1, 1993.
Smith was tried before a jury, [*3] which found her guilty of all
charges. She moved for a new trial or for an acquittal, and the trial court
denied the motion.
Smith now appeals, asserting five assignments of error.
I.
"THE TRIAL COURT PERMITTED THE JOINDER OF THE TWO DEFENDANTS IN THE SAME TRIAL
AND SO ERRED BY NOT INVOKING RULE 14 RELIEF FROM PREJUDICIAL JOINDER UNDER THE
OHIO RULES OF CRIMINAL PROCEDURE."
In response to a motion by the state, the court ordered that all of the charges
against Smith and Allen be tried at a joint trial. Smith moved for relief from
joinder, arguing that she would be prejudiced by a consolidated trial with Allen
because he had a prior conviction for child molestation, which the state
intended to introduce into evidence, and because her defense strategy was
different than his. Smith had no criminal record prior to this trial.
The court bifurcated two of the counts against Allen, citing potential
prejudice to Smith. However, because the remaining counts involved the same
victims, the same time frame, and two charges that Smith aided and abetted
Allen, and because of an interest in subjecting the very young victims to the
ordeal of trial only once, the court ordered that [*4] the charges against
Smith be consolidated for trial with the eight remaining counts against Allen.
Crim.R. 8(B) permits the joinder of multiple defendants in a single
indictment where the defendants "have participated in the same act or
transaction or in the same series of acts or transactions constituting an
offense or offenses, or in the same course of criminal conduct." Crim.R. 13
permits the joint trial of defendants who have been joined, or could have been
joined, in a single indictment. Crim.R. 14 provides that "if it appears that a
defendant or the state is prejudiced by a joinder of *** defendants *** for
trial ***, the court shall order an election or separate trial of counts, grant
a severance of defendants, or provide such other relief as justice requires."
As a general proposition, joinder of defendants is favored because it
"conserves judicial and prosecutorial time, lessens the not inconsiderable
expenses of multiple trials, diminishes inconvenience to witnesses, and
minimizes the possibility of incongruous results in successive trials before
different juries." <=1> State v. Thomas (1980), 61 Ohio St.2d 223, 225, 400
N.E.2d 401. In order to demonstrate on appeal that the trial court [*5] erred
by refusing to grant severance under Crim.R. 14, the defendant must
affirmatively show that the trial court abused its discretion in ordering the
1996 Ohio App. LEXIS 241, *5
joinder and that the joinder, in fact, prejudiced the defendant's rights.
<=2> State v. Torres (1981), 66 Ohio St.2d 340, 421 N.E.2d 1288, syllabus.
Abuse of discretion is found in the rare instance when a decision is grossly
violative of fact and logic so as to demonstrate perversity of will, defiance of
judgment, undue passion, or extreme bias. <=3> State v. Jenkins (1984), 15
Ohio St.3d 164, 222, 473 N.E.2d 264, certiorari denied, <=4> 472 U.S. 1032,
1033, 87 L. Ed. 2d 643, 105 S. Ct. 3514, rehearing denied, <=5> 473 U.S. 927,
87 L. Ed. 2d 697, 106 S. Ct. 19.
In construing Fed.R.Crim.P. 14, which is substantially similar to Ohio's
Crim.R. 14, the United States Supreme Court has stated that severance should be
granted "only if there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence." Zafiro v. United States (1993), 506
U.S. _, <=6> 122 L. Ed. 2d 317, 325. In a complex case, where many
defendants are tried together, the risk of prejudice is heightened. Id. However,
even [*6] where the risk of prejudice is high, severance need not be ordered
where "less drastic measures, such as limiting instructions, often will suffice
to cure any risk of prejudice." Id. "Juries are presumed to follow their
instructions[.]" <=7> Richardson v. Marsh (1987), 481 U.S. 200, 211, 95 L. Ed.
2d 176, 188, 107 S. Ct. 1702. See, also, <=8> State v. Brooks (1989), 44
Ohio St.3d 185, 194, 542 N.E.2d 636.
1996 Ohio App. LEXIS 241, *6
Smith asserts that she was prejudiced by the introduction of evidence of Allen's
prior conviction for sexual crimes against a minor. The evidence was introduced
through the testimony of Keema Cavin, who was twenty-one years old at the time
of Smith's trial. Cavin testified that Allen had begun molesting her when she
was six years old and that he was convicted in 1985. Prior to her testimony, the
court gave a limiting instruction to the jury. n1 Following the close of all of
the evidence, the court gave a second instruction to the jury regarding Smith:
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 The court stated:
"Ms. Cavin's testimony concerns other acts committed by Defendant Joseph Allen.
Defendant Nancy Smith was not involved in these other acts, and this testimony
should be considered in State v. Allen only. Further, this testimony is for a
limited purpose [with respect to Defendant Allen]."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*7]
1996 Ohio App. LEXIS 241, *7
"There was evidence of other acts by Defendant Joseph Allen, and that would be
the testimony of Keema Cavin. That testimony, if true, has a limited purpose.
You may consider the Defendant Allen's other acts if and when those other acts
tend to show his intent or purpose, motive, absence of mistake or accident,
scheme, plan or system in doing the acts charged in this trial. Such evidence of
other acts must not be considered for any other purpose. Defendant Nancy Smith
was not involved, and this testimony of Keema Cavin should not be considered in
the State against Nancy Smith, but should be considered in the State v. Allen
only.
***
Evidence may be admitted against one defendant even though it must not be
considered as evidence against the other defendant. You must carefully separate
such evidence and consider it only as to the defendant to whom it applies.
You must decide separately the question of the guilt or innocence of each of
these two defendants. If you cannot agree upon a verdict as to both
1996 Ohio App. LEXIS 241, *7
defendants, but do agree as to one, you must render a verdict as to the one upon
whose guilt or innocence you do agree.
You [*8] must separately consider the evidence applicable to each defendant
as though he or she were being tried separately, and you must state your
findings as to each defendant uninfluenced by your verdict as to the other
defendant."
In view of the limiting instructions given the jury, the age of the children who
were witnesses and victims in this case, the complicity charges against Smith
with respect to acts committed by Allen, and the fact that there were only two
defendants for whom the jury had to segregate evidence, we do not find that the
trial court abused its discretion in failing to sever Smith's trial from Allen's
on the basis of the evidence of his prior conviction.
Smith also argues that she was prejudiced by the dismissal of a potential
juror by Allen's attorney and that she was prejudicially deprived of the ability
to pursue a different, although unexplained, defense strategy.
The mere possibility that a defendant might have a better choice of trial
strategy at a severed trial is speculative and insufficient to show prejudice.
1996 Ohio App. LEXIS 241, *8
<=9> State v. Brooks, 44 Ohio St.3d at 194. Mutually antagonistic defenses
are not prejudicial per se. <=10> United States v. Lane (1986), [*9] 474
U.S. 438, 449, fn.11, 88 L. Ed. 2d 814, 825, fn.11, 106 S. Ct. 725. Even if
prejudice is demonstrated by a defendant, Crim.R. 14 does not require severance;
the choice of relief is left to the discretion of the trial court.
Smith's first assignment of error is overruled.
II.
"THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING CONTAMINATED EVIDENCE AND
TESTIMONY WITHOUT REQUIRING A PRE-TRIAL HEARING OR ANY OTHER JUDICIALLY IMPOSED
SAFEGUARDS TO ENSURE THAT RELIABLE AND ACCURATE TESTIMONY WAS PRESENTED."
In her second assignment of error, Smith argues that the trial court committed
plain error by not conducting a contamination or taint hearing prior to trial in
order to determine whether the potential testimony of the victims was tainted by
improper pre-trial investigative techniques. Smith did not move for a taint
hearing prior to trial.
Smith, in effect, urges this court to adopt a New Jersey law which requires a
trial court to hold a pre-trial taint hearing in cases of alleged child abuse
1996 Ohio App. LEXIS 241, *9
if such hearing is requested by a defendant and if the defendant makes "a
showing of 'some evidence' that the victim's statements were the product of
suggestive or coercive interview techniques." [*10] <=11> New Jersey v.
Michaels (1994), 136 N.J. 299, 320-321, 642 A.2d 1372, 1383.
Without commenting on the prudence of, or the difficulties inherent in, such
a law, we note that there currently is no requirement in Ohio that a taint
hearing be held in cases of alleged child abuse. Even if Ohio had a provision
similar to that of New Jersey, Smith never moved for such a hearing prior to
trial. As a result, even under New Jersey law, Smith would not have been
entitled to a taint hearing in the absence of a request for such hearing and an
appropriate showing of some evidence that the children's statements had been
coerced.
Smith's second assignment of error is overruled.
III.
"THE DEFENDANT WAS PREJUDICED BY THE FAILURE OF THE PROSECUTION TO DISCLOSE
REQUIRED DISCOVERY MATERIAL, INCLUDING WITNESS LISTS, TAPED INTERVIEWS, PRIOR
FELONY CONVICTIONS OF PROSECUTION WITNESSES AND EXCULPATORY INFORMATION IN A
TIMELY MANNER."
1996 Ohio App. LEXIS 241, *10
In her third assignment of error, Smith argues that the state's late disclosure
of witnesses and exculpatory information prejudiced her. She argues specifically
that the state: (1) advised her of five witnesses on the Friday before the start
of trial; [*11] (2) failed to disclose one witness's prior felony
conviction; (3) never disclosed the name of one witness prior to that witness
being called to testify; (4) failed to disclose the existence of taped
interviews with witnesses that contained exculpatory information; and (5) failed
to disclose a medical report that contained exculpatory information.
A.
Crim.R. 16 provides for discovery and inspection by either party in a
criminal action. Crim.R. 16(B)(1)(e) requires the state, upon proper discovery
request, to furnish to the defendant a list of names and addresses of all
witnesses whom the state intends to call at trial and any record of such
witnesses' prior felony convictions. Crim.R. 16(B)(1)(f) requires the state,
upon request, to disclose to defendant's counsel "all evidence, known or which
may become known to the prosecuting attorney, favorable to the defendant and
material either to guilt or punishment." Pursuant to Crim.R. 16(D), the state is
under a continuing duty to disclose any witnesses it adds to its witness list up
to, and during, the time of trial. Upon the state's failure to provide the
1996 Ohio App. LEXIS 241, *11
names of such additional witnesses, Crim.R. 16(E)(3) permits the court to order
[*12] the discovery, grant a continuance, prohibit the witnesses from
testifying, or order whatever other sanction it deems appropriate under the
circumstances.
In reviewing whether the trial court erred in applying a particular remedy to
alleged abuses of the discovery process, we may reverse the decision of the
trial court only upon a finding that the court abused its discretion. This
requires us to find that the trial court acted unreasonably, arbitrarily, or
unconscionably. <=12> State v. Blatnik (1984), 17 Ohio App.3d 201, 202, fn.
1, 478 N.E.2d 1016.
B.
1.
Prior to the start of trial on Monday, July 25, 1994, Smith moved for a
continuance on the basis that the state had provided supplemental discovery of
five additional witnesses at 2:30 p.m. on the Friday before trial. The proposed
new witnesses included Marty Howard, n2 Willie Mae Smith, Dr. "Richards" (actual
name "Richardson"), Kathy Cole, and Nicole Cole (actual name "Donetta Taylor").
Willie Mae Smith, Kathy Cole, and Donetta Taylor were three of only four
1996 Ohio App. LEXIS 241, *12
adults who testified that they had seen Smith and Allen in close proximity to
one another. The court denied Smith's motion for a continuance but noted that it
would give defense counsel [*13] the opportunity to prepare for its
cross-examination of the witnesses at the close of the direct testimony of each.
In fact, Dr. Richardson was never called as a witness. Kathy Cole and Donetta
Taylor were not called until the state's rebuttal case on August 3, 1994, nine
days after the start of trial and twelve days after disclosure of the witnesses'
names.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 On May 17, 1994, in its initial response to Smith's discovery request, the
state listed "Marty" Howard as a potential witness. The address supplied for
"Marty" Howard was the same as that supplied in the supplemental discovery filed
by the state on July 22, 1995. The inclusion of Howard in the supplemental
discovery is not specifically argued as part of this assignment of error and
will not be considered in this appeal.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Willie Mae Smith testified that she had seen Allen on Smith's bus on one
occasion when she walked her grandson to the bus. Although her testimony
1996 Ohio App. LEXIS 241, *13
occurred early in the trial, the defense was given ample opportunity to
cross-examine her [*14] and, in fact, elicited substantial confusion on the
part of Willie Mae Smith as to when she had seen Allen on Smith's bus.
Pursuant to Crim.R. 16(E)(3), "it is within the trial court's discretion to
decide what sanction to impose" for non-compliance or late compliance with a
discovery order. <=13> State v. Finnerty (1989), 45 Ohio St.3d 104, 107, 543
N.E.2d 1233. Our review of the transcript of this case does not support Smith's
contention that she was prejudiced by notice of these witnesses three days
before trial nor was there any evidence that the state had wilfully delayed
disclosure of these witnesses. Accordingly, we do not find that the trial court
abused its discretion in failing to grant a continuance on this basis.
2.
Willie Mae Smith testified on direct examination that she had been convicted
of possession of criminal tools and was currently on probation. The defense
objected on the basis that the state had failed to disclose the conviction prior
to trial as required by Crim.R. 16(B)(1)(e). The defense's only request of the
court in this regard, however, was that it be provided with the criminal records
of future witnesses prior to their testimony. There is nothing in the record to
indicate [*15] that the state failed to honor this request. As a result,
1996 Ohio App. LEXIS 241, *15
the defense was not prejudiced in this regard.
3.
Smith also raised an issue at trial with regard to Elizabeth "Angel" Powell,
a state's witness whom, Smith argued, was not on any list of witnesses submitted
by the state to the defense. The record indicates that, despite this omission,
Smith's counsel had sent its investigator to interview Powell and was,
therefore, aware of Powell prior to trial. Smith argued at trial, and argues now
on appeal, that Powell refused to speak with her investigator.
We fail to see how the appearance of Powell's name on the state's list of
potential witnesses would have affected Powell's willingness to speak with the
defense investigator. The same remedies that would have been available to the
defense had her name been listed were also available under the circumstances
that occurred. Accordingly, we cannot see how the defense was prejudiced by the
omission of Powell's name from the state's witness list; nor can we conclude
that the court abused its discretion in permitting her to testify or in failing
to grant a continuance on this ground.
4.
1996 Ohio App. LEXIS 241, *15
Smith also argues that the state failed to supply [*16] tapes of early
interviews conducted with the children until trial had started and, in one case,
after a witness who had made potentially exculpatory statements on tape had
testified. Smith argues specifically that Emily Oliver made statements on tape
that were inconsistent with her trial testimony; that Antuan previously
identified someone other than Allen as his abuser; and that Amanda, another
child witness, previously identified Angel as the person who had taken her to
Allen's house. All of the tapes at issue were made by police during their
investigation of the charges in this case.
In accordance with Crim.R. 16(B)(1)(f), upon proper motion by the defendant
before trial, and order of the court, the state is required to disclose to
defense counsel all evidence known, or which may become known, to it that is
favorable to the defendant and material to the defendant's guilt or innocence.
Crim.R. 16(B)(1)(g) provides:
"Upon completion of a witness' direct examination at trial, the court on motion
of the defendant shall conduct an in camera inspection of the witness' written
or recorded statement with the defense attorney and prosecuting attorney present
and participating, to [*17] determine the existence of inconsistencies, if
any, between the testimony of such witness and the prior statement."
1996 Ohio App. LEXIS 241, *17
Emily Oliver was the first witness to testify at trial. After direct examination
by the state, the defense moved for an in camera inspection of her prior
statements pursuant to Crim.R. 16(B)(1)(g). The state told the court that there
were no prior recorded statements by Oliver. After direct examination of the
second witness, an in camera inspection of a tape labeled as that witness's
prior recorded statement was held. During that inspection, it was discovered
that Oliver's earlier statements to police had, in fact, been recorded on what
was labeled as the second witness's tape. Smith moved for a mistrial, which was
denied. The court, instead, ordered that the defense be given time to review
each of the tapes before cross-examination. By the second day of trial, the
state delivered copies of all of the tapes to the defense.
It is apparent from the record that the prosecutor had not listened to the
tapes prior to trial. Without reaching the question of whether the statements on
the tapes were, in fact, material to the guilt or innocence of Smith, in this
[*18] instance, the state appears not to have known the content of the tapes
because it had not reviewed them prior to trial. As a result, the state did not
fail to comply with the literal mandate of Crim.R. 16(B)(1)(f) in this regard
because it did not know of the existence of material exculpatory information on
the tapes. The record reveals no wilful ignorance of the content of the tapes by
the state nor anything from which we can infer bad faith non-compliance with the
rules.
1996 Ohio App. LEXIS 241, *18
We note that, in her June 14, 1994, response to the state's request for
discovery, Smith listed as one of her witnesses Detective Cantu of the Lorain
Police Department, who apparently made all of the early tapes at issue. We note
further that the discovery response provided by the state on May 17, 1994, more
than two months prior to the start of trial, listed all of the children in
question and their parents, as well as another of the investigating officers in
the case, as potential witnesses. Defense interviews with these witnesses should
have disclosed the existence of the tapes.
In light of the foregoing, the court's handling of the tapes was in
conformity with Crim.R. 16(B)(1)(g). With respect to the [*19] initial
misinformation regarding the existence of Oliver's prior statements, the court
permitted the defense to recall Oliver to the stand where she was cross-examined
at length about her prior statements. The record also indicates that the state
supplied copies of all of the tapes to the defense prior to the direct testimony
of most of the witnesses and almost immediately after it knew that they
contained potentially exculpatory information.
5.
In the final sub-part of this assignment of error, Smith argues that the
state failed to comply with Crim.R. 16(B)(1)(f) by not listing Nikki's medical
1996 Ohio App. LEXIS 241, *19
report in discovery as containing exculpatory information. According to the
record, the state discovered during the trial that a medical report prepared by
Dr. Richardson of Rainbow Babies and Childrens Hospital might contain
exculpatory information. Dr. Richardson had not been retained by the state as an
expert but had examined Nikki at the request of her mother. Upon learning of the
report and its contents, the state immediately informed the court and Smith's
attorney. The court recessed, and Smith's attorney contacted Dr. Richardson, who
provided Smith's attorney, by facsimile to the court, [*20] with a copy of
her report. Because the state decided not to call Dr. Richardson as a witness,
the court asked Smith's counsel if he wished to call Dr. Richardson as a
witness. He declined.
We do not find that the court abused its discretion with respect to Dr.
Richardson's report. The state set forth in its discovery response filed on May
17, 1994, its intent to use Nikki's medical records. While the discovery
response did not specifically list Dr. Richardson or her report, the state
appears to have shared with the defense as much information with respect to
Nikki's medical records as it possessed at that time. When the state became
aware that those records might contain exculpatory information, it immediately
notified the defense as it was required to do pursuant to Crim.R. 16(B)(1)(f)
and Crim.R. 16(D).
1996 Ohio App. LEXIS 241, *20
Smith's third assignment of error is overruled.
IV.
"THE TRIAL COURT ERRED BY PERMITTING THE PARENTS OF THE CHILDREN TO TESTIFY TO
OUT-OF-COURT STATEMENTS THEREBY VIOLATING THE REQUIREMENTS OF OHIO RULE OF
EVIDENCE 807."
Smith argues that the trial court erred by permitting the parents of the alleged
child victims to testify about statements made by the children [*21] to them
about the alleged sexual abuse. Smith specifically objects to the testimony by
Nikki's mother, Jonathan's mother, and Antuan's father as to out-of-court
statements made to them by their respective children prior to interviews of the
children by the police. The statements related to the identity of the
defendants, threats made to them by the defendants, acts done to them by the
defendants, and irritation of their private parts. Smith argues that the
statements to the parents were hearsay and were not admitted in conformity with
the protections regarding out-of-court statements of child abuse victims set
forth in Evid.R. 807.
Evid.R. 807(A)(2) governs the admission in abuse cases of out-of-court
statements by a child under twelve years of age when the child's testimony "is
1996 Ohio App. LEXIS 241, *21
not reasonably obtainable." In this case, each of the children whose
out-of-court statements are objected to by Smith testified at trial. As a
result, Evid.R. 807 is not applicable. n3 The admissibility of the statements
is, however, subject to the same analysis under the Rules of Evidence as is that
of any other out-of-court statement.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 The procedural protections set forth in Evid.R. 807, and argued by Smith
as lacking in the case before us, are designed "with Confrontation Clause
requirements in mind." <=14> State v. Dever (1992), 64 Ohio St.3d 401, 414,
596 N.E.2d 436, certiorari denied, <=15> 506 U.S. , 122 L. Ed. 2d 672. When
declarants are available for cross-examination as they were here, a defendant's
right to confront his accusers is not compromised.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*22]
Evid.R. 801(D)(1)(c) provides that:
"A statement is not hearsay if *** the declarant testifies at the trial or
hearing and is subject to cross-examination concerning the statement, and the
1996 Ohio App. LEXIS 241, *22
statement is *** one of identification of a person soon after perceiving him, if
the circumstances demonstrate the reliability of the prior identification."
In accordance with Evid.R. 801(D)(1)(c), identification testimony made by a
declarant soon after perceiving a person is admissible when the declarant
testifies at trial and is subject to cross-examination. The Staff Note to
Evid.R. 801(D)(1)(c) indicates that this rule extends the principle recognized
in Ohio in <=16> State v. Lancaster (1971), 25 Ohio St.2d 83, 267 N.E.2d
291. Paragraph five of the syllabus in Lancaster states:
"Prior identification of the accused may be shown by the testimony of the
identifier, or by the testimony of a third person to whom or in whose presence
the identification was made, where the identifier has testified and is available
for cross-examination, not as original, independent or substantive proof of the
identity of the accused as the guilty party, but as corroboration of the
testimony of the identifying [*23] witness as to the identity of the
accused."
To the extent that a trial court finds the prior identification reliable, and
the child identifier is subject to cross-examination at trial concerning the
identification, the prior identification is not hearsay and is admissible.
<=17> State v. Boston (1989), 46 Ohio St.3d 108, 124, 545 N.E.2d 1220.
1996 Ohio App. LEXIS 241, *23
Such out-of-court identification statements are admissible even when the
declarant has not yet testified at trial. <=18> State v. Turvey (1992), 84
Ohio App.3d 724, 736, 618 N.E.2d 214. The out-of-court statements objected to
by Smith that identify her and Allen are, therefore, not hearsay and are
admissible in the discretion of the court.
The record also reveals that, throughout the trial, the credibility of the
child witnesses was continually challenged by the defense. In arguments made to
the trial court and in questions asked of the witnesses, the defense implied
either that the police suggested to the children what they should say or that
the parents, in search of publicity or remuneration through civil suits, told
the children how to testify. During the cross-examination of Jonathan's mother
by the defense, for instance, she was asked whether Jonathan had told the
[*24] police in a taped interview on July 7, 1993, that he had not been
sexually penetrated. Following her affirmative response, the defense then moved
the court to exclude Jonathan's testimony, arguing that his testimony had been
suggested to him and was contrary to what he had earlier told the police.
Antuan's father was questioned at length about whether identifications and other
statements made by his son were a result of his "leading."
After the children's out-of-court statements were admitted into evidence,
each of the parents was cross-examined at length about previous statements
1996 Ohio App. LEXIS 241, *24
made to police and to school officials regarding information their children had
given them. Each of the children was also cross-examined at length about his or
her previous statements to parents and to the police. Even the police were
cross-examined with respect to contamination of their interviews with the
children.
Evid.R. 801(D)(1)(b) provides that:
"A statement is not hearsay if *** the declarant testifies at the trial or
hearing and is subject to cross-examination concerning the statement, and the
statement is *** consistent with his testimony and is offered to rebut an
express or implied [*25] charge against him of recent fabrication or improper
influence or motive[.]"
Evid.R. 801(D)(1)(b) permits the rehabilitation of a witness whose credibility
has been attacked by a charge that he falsified his testimony because of
influence or suggestion and permits the court to admit into evidence consistent
statements made by the witness prior to the time of the suggested influence.
"Because the result of exclusion of prior consistent statements, where they are
sought to be used for rebuttal purposes, would be to permit an implication of
fabrication or falsification to stand without challenge, their admission
1996 Ohio App. LEXIS 241, *25
should be favored to the extent that a generous view should be taken of the
entire trial setting in order to determine if there was sufficient impeachment
of the witness to amount to a charge of fabrication or improper influence or
motivation."
<=19> Motorists Mut. Ins. Co. v. Vance (1985), 21 Ohio App.3d 205, 207, 486
N.E.2d 1206.
Because all of the statements which the defense argues were impermissibly
admitted by the trial court are, in fact, not hearsay, pursuant to Evid.R.
801(D)(1)(b) or (c), their admission or exclusion was within the sound
discretion of the trial [*26] court. n4 See <=20> State v. Hymore (1967), 9
Ohio St.2d 122, 128, 224 N.E.2d 126, certiorari denied, <=21> 390 U.S. 1024,
20 L. Ed. 2d 281, 88 S. Ct. 1409.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 We note that even if we could not conclude that the statements at issue
were not hearsay pursuant to Evid.R. 801(D)(1)(b) and (c), many of the
statements could have been admitted pursuant to certain exceptions to the
hearsay rule set forth in Evid.R. 803. Statements in which the children reported
physical discomfort and symptoms to their parents could have been excepted
1996 Ohio App. LEXIS 241, *26
from the hearsay rule pursuant to Evid.R. 803(3) as "statements of the
declarant[s'] then existing state of mind, emotion, sensation, or physical
condition[.]" Nikki's statements regarding threats to her by the defendants
could have been excepted pursuant to Evid.R. 803(2) as "statements relating to a
startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Smith's fourth assignment of error is overruled.
V.
"GIVEN THE ABOVE ERRORS AND/OR ABUSES OF [*27] DISCRETION, THE APPELLANT DID
NOT RECEIVE A FAIR TRIAL AND WAS CONVICTED WITH EVIDENCE INSUFFICIENT AS A
MATTER OF LAW, THEREBY DENYING THE APPELLANT DUE PROCESS RIGHTS GUARANTEED BY
THE XIV AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF
THE OHIO CONSTITUTION."
In her final assignment of error, Smith argues that she was convicted without
sufficient evidence because no expert witnesses testified that the children had
physical injuries or psychological manifestations consistent with abuse and
1996 Ohio App. LEXIS 241, *27
because the only evidence against her was the testimony of the children and
their parents.
A.
It is fundamental that the prosecution must prove every necessary element of
the crime charged beyond a reasonable doubt. <=22> In re Winship (1970), 397
U.S. 358, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068. Crim.R. 29(A) requires a trial
court to enter a judgment of acquittal on offenses charged in an indictment if
the evidence is insufficient to sustain a conviction. Evidence is insufficient
if, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could not have found all the essential elements of the
offense beyond a reasonable doubt. [*28] <=23> State v. Jenks (1991), 61
Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. In reviewing
the sufficiency of the evidence, an appellate court must determine whether the
evidence presented by the state, if believed, "would convince the average mind
of the defendant's guilt beyond a reasonable doubt." Id.
Expert testimony is not required in order to prove beyond a reasonable doubt
that a crime has been committed. The elements of a crime can be established
either by direct evidence, circumstantial evidence, or a combination of both.
See <=24> State v. Jenks, 61 Ohio St.3d at 272; <=25> State v. Shue,
1996 Ohio App. LEXIS 241, *28
(1994) 97 Ohio App.3d 459, 466, 646 N.E.2d 1156. When the evidence in a case
depends largely on the testimony of witnesses, evaluating that evidence and
assessing credibility are primarily for the trier of fact. <=26>
Ostendorf-Morris Co. v. Slyman (1982), 6 Ohio App.3d 46, 47, 452 N.E.2d 1343.
Absent extreme circumstances, an appellate court will not second guess
determinations of weight and credibility. Sykes Constr. Co. v. Martell (Jan. 8,
1992), Summit App. No. 15034, unreported, at 19.
B.
1.
Smith was convicted of gross sexual imposition, in violation of R.C.
2907.05(A)(4), with regard to both Antuan and Jonathan. [*29] She was also
convicted of raping Antuan, in violation of R.C. 2907.02(A)(1)(6) and of
attempting to rape Antuan.
The crime of gross sexual imposition is described in R.C. 2907.05 which
provides:
"(A) No person shall have sexual contact with another, not the spouse of the
offender; cause another, not the spouse of the offender, to have sexual
1996 Ohio App. LEXIS 241, *29
contact with the offender; or cause two or more other persons to have sexual
contact when any of the following applies:
***
(4) The other person, or one of the other persons, is less than thirteen years
of age, whether or not the offender knows of the age of that person."
At trial, Jonathan's mother testified that Jonathan had been a student in the
Head Start program during the 1992-1993 school year. In approximately February
1993, Jonathan, then age four, complained to her that "his butt was burning" and
that he did not want to ride the bus. During the same period, he began waking up
in the middle of the night, crying. According to his mother, the bed would be
wet, and Jonathan "would be screaming that the cops were going to get him."
Jonathan also began engaging in sexual acts with another child. [*30]
Jonathan testified that Smith, whom he identified in court, had taken Antuan
and him to Allen's house. In response to questions asked of him, he indicated
that people had taken their clothes off at Allen's house and that his clothes
had been taken off. According to Jonathan, Smith touched his chest and penis,
1996 Ohio App. LEXIS 241, *30
and he had to kiss Smith and lick her chest.
Antuan's father testified that Antuan was enrolled in the Head Start program
during the 1992-1993 school year. As the school year progressed, Antuan's
demeanor changed from that of an outgoing child to one who wanted to keep to
himself. During that time, he was discovered at his grandmother's house on top
of his younger sister with all of his clothes off. Antuan told his father that
he had left school with Smith on three occasions and that Jonathan, Amanda, and
Nikki had gone with them.
Antuan testified that Smith had taken him to Allen's house three times. He
stated that a needle had been inserted into his rear end and that Smith had
ordered him to take off all of his clothes. On one occasion, Smith told him to
get on top of her and move around, which he did. Smith touched his penis with
her hands and mouth. He also observed Smith [*31] touching Jonathan's rear
end and penis.
Nikki testified that Smith was her bus driver and that Allen drove her to his
house in his car. Antuan, Amanda, Jonathan, and Nikki would play games, such as
the clown game, bad boys, and doctor. All games were played with clothes off.
She observed Smith touching Antuan and Jonathan on their penises.
1996 Ohio App. LEXIS 241, *31
In light of the foregoing testimony, there was sufficient evidence that Smith
had had the requisite sexual contact with Antuan and with Jonathan necessary for
a finding of sexual imposition.
There was also sufficient evidence from which the jury could conclude that
Smith was guilty of raping Antuan by performing fellatio on him and of attempted
rape with respect to the mounting incident. R.C. 2907.02 provides:
"(A)(1) No person shall engage in sexual conduct with another who is not the
spouse of the offender or who is the spouse of the offender but is living
separate and apart from the offender, when any of the following applies:
***
(b) The other person is less than thirteen years of age, whether or not the
offender knows the age of the other person."
R.C. 2923.02(A) prohibits the attempt to perform [*32] certain criminal acts
and provides that "no person, purposely or knowingly, *** shall engage in
conduct which, if successful, would constitute or result in the offense."
1996 Ohio App. LEXIS 241, *32
Although there was no physical evidence of rape or attempted rape introduced
with respect to Antuan, it was within the purview of the jury to assess the
credibility of the witnesses and to determine whether Smith was guilty of rape
and of attempted rape as charged. In light of the deference shown to a jury in
assessing matters of credibility, we cannot determine that reasonable minds
could not have concluded that the state had proven such charges beyond a
reasonable doubt.
2.
Smith was also convicted of two counts of complicity to rape, in violation of
R.C. 2923.03(A)(2) with respect to Nikki and Antuan. R.C. 2923.03(A)(2) provides
that "no person, acting with the kind of culpability required for the commission
of an offense, shall *** aid or abet another in committing the offense[.]" Under
this section, a person may be an accomplice and may be prosecuted as a principal
offender if he aids or abets another in committing a crime. <=27> State v.
Coleman (1988), 37 Ohio St.3d 286, 289, 525 N.E.2d 792, certiorari denied,
<=28> 488 U.S. [*33] 900, 102 L. Ed. 2d 238, 109 S. Ct. 250. In <=29>
State v. Cartellone (1981), 3 Ohio App.3d 145, 150, 444 N.E.2d 68, the court
stated:
"Evidence of aiding and abetting another in the commission of crime may be
1996 Ohio App. LEXIS 241, *33
demonstrated by both direct and circumstantial evidence. Thus, 'participation in
criminal intent may be inferred from presence, companionship and conduct before
and after the offense is committed.' <=30> State v. Pruett (1971), 28 Ohio
App.2d 29, at 34, 273 N.E.2d 884 * * * . Aiding and abetting may also be
established by overt acts of assistance such as driving a getaway car or serving
as a lookout. See <=31> State v. Trocodaro (1973), 36 Ohio App.2d 1, 301
N.E.2d 898 * * * ."
Allen was convicted of raping both Nikki and Antuan, in violation of R.C.
2907.02(A)(1)(b). n5 In finding Smith guilty of complicity to rape, the jury was
required to find that the state had proven, beyond a reasonable doubt, that she
knowingly aided Allen in raping Nikki and Antuan.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 Allen has appealed his convictions to this court.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The only witnesses who testified to actually seeing [*34] Smith at the
scene of Allen's crimes were the children. Jonathan identified both Smith and
Allen in court and testified that Smith had taken him, as well as Nikki and
1996 Ohio App. LEXIS 241, *34
Antuan, to Allen's house. While at Allen's house, the children, Smith, and Allen
would be unclothed. He observed Allen touch Nikki on the chest and vagina, and
he observed Allen touch Antuan on the penis.
Antuan testified that Smith took him to Allen's house on three occasions. He
stated that Amanda, Nikki, and Jonathan had also been present on some of those
occasions. He stated that Allen had taped his mouth because he was screaming and
that Smith told him to take off all of his clothes. Allen then touched his rear
end and his penis with his hands and mouth. He also stated that Allen would put
gloves on his hands and penetrate his rear end and that Allen also penetrated
him with a stick. He stated that he observed Allen touching Nikki's rear end.
Nikki testified that Smith was her bus driver and that Allen drove her to his
house in his car. While there, they played games such as the clown game, bad
boys, and doctor, with their clothes off. Smith and Allen were partially
disrobed. She testified that Allen hurt her by [*35] inserting a stick in her
vagina and that he inserted his penis in her rear end. She stated that Allen
touched her rear end and vagina with his hands and kissed her vagina. Smith
touched her rear end and vagina. She had to touch Smith on her breasts and
vagina and had to touch Allen's penis. Nikki described Allen as having spots on
his penis, his rear end, and stomach. She stated that he took pictures of her
while she was nude and that Smith tied her up and hit her. Nikki stated that
1996 Ohio App. LEXIS 241, *35
Smith had described to the children the events at Allen's house as a party and
that Allen told her he would kill her and her parents if she ever told about the
party. She identified a rope shown to her as one with which Allen had tied her
up. She described Allen as occasionally wearing a mask with snake eyes that lit
up and identified a mask shown to her in court as Allen's.
Willie Mae Smith, the grandmother of a child in the Head Start program,
testified that she had seen Allen on Smith's bus once. Cathy Cole, another bus
driver, and Donetta Taylor, a bus aide, each testified that they had identified
a photograph of Allen as that of a man they had seen on several occasions around
the school yard. In court, [*36] neither Cole nor Taylor could identify
Allen definitely as the man she had seen in the school yard.
Elizabeth Powell, an aide assigned to Smith's bus, testified that she had
seen Allen once. She stated that, on that occasion, Smith had stopped the bus at
a store and went inside. While Smith was inside the store, a man attempted to
board the bus. The man said something to Powell, but the only word Powell could
discern was "Nancy." Powell told the man that Nancy was in the store, ordered
him to get off the bus, and threatened him with a tire iron. The man left, and
Powell locked the bus door. The man later came out of the store, arm-in-arm with
Smith. Powell identified Allen in court as the man who had attempted to board
the bus.
1996 Ohio App. LEXIS 241, *36
Nikki's mother testified that Nikki had enjoyed attending the Head Start
classes in 1992 but that sometime early in 1993 Nikki began to change. She would
complain of sickness, say she did not like school, say the boys were bad, and
say that she was being hit. When the bus came for her, and she saw that Smith
was driving, Nikki would pull away and not want to get on the bus. For a one
week period, when another driver substituted for Smith, Nikki was happy.
[*37] When Smith returned, however, Nikki "freaked out" and refused to get on
the bus. One day in May, after returning home on the bus, Nikki told her mother
that she did not feel well. In answer to her mother's questions, Nikki stated
that she had not gone to school that day and that Nancy had told her, because
the school was closed, they would go to Allen's house. Nikki also told her
mother that Smith and Allen had tied her hands, put tape on her mouth, and stuck
a stick inside her.
Joel Miller, a detective with the City of Lorain Police Department,
testified that several children had reported that Smith drove them to a house
owned by a man named "Joseph" and performed sexual acts on them. Nikki told him
that "Joseph" sometimes wore a pink dress. Upon searching Allen's house, a large
pink dress was discovered. Detective Miller also found a halloween mask at
Allen's house that several children had described to him.
In view of the substantial testimony that Smith had driven the children to
1996 Ohio App. LEXIS 241, *37
Allen's residence and had participated in the rapes described, we cannot say
that Smith's convictions for complicity to rape were not supported by sufficient
evidence.
Accordingly, Smith's fifth [*38] assignment of error is overruled.
The decision of the trial court is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this court, directing the County
of Lorain Common Pleas Court to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to
App.R. 27.
Immediately upon the filing hereof, this document shall constitute the
journal entry of judgment, and it shall be file stamped by the Clerk of the
Court of Appeals at which time the period for review shall begin to run. App.R.
22(E).
1996 Ohio App. LEXIS 241, *38
Costs taxed to appellant.
Exceptions.
WILLIAM R. BAIRD
FOR THE COURT
QUILLIN, J.
SLABY, J.
CONCUR
------------------------------
Date: Fri, 5 Apr 1996 14:00:02 EST
From: "Jonathan G. Harris, Dept. of Chem Eng, MIT"
Subject: Nancy Smiths codefendant
Below is the Ohio Appellate Court decision of Smith's codefendent,
Joseph Allen. Smith alleges she never met Allen. This appellate opinion claims
that the children correctly identified white spots on Allen's penis; that
the correctly described certain items at his house; and came up with their
accusations before being interviewed by police [but they fall shy of
making a strong argument that their accounts were not contaminated by
parent-parent interactions].
Comments?
What does Smith side think of Allen? Did he somehow lure children
to his house, without aide from Smith and molest them? Or do they think the
case in 100% confabulation? If you want to be cynical and bring out the
worst in everyone: involving Smith allows the parents go after the deep
pockets;something unavailable when the culprit is just a sanatation worker.
----Jonathan
STATE OF OHIO, Appellee v. JOSEPH LEE ALLEN, Appellant
C.A. NO. 94CA005944
COURT OF APPEALS OF OHIO, NINTH APPELLATE DISTRICT,
LORAIN COUNTY
1996 Ohio App. LEXIS 385
February 7, 1996, Dated
NOTICE: [*1] THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE
PENDING RELEASE OF THE FINAL PUBLISHED VERSION.
PRIOR HISTORY: APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT. COUNTY OF
LORAIN, OHIO. CASE NO. 94 CR 045372.
DISPOSITION: Judgment affirmed.
COUNSEL: APPEARANCES:
GREGORY A. WHITE, Prosecuting Attorney and JONATHAN E. ROSENBAUM, Asst.
Prosecuting Attorney, 226 Middle Ave., Elyria, OH 44035 for Appellee.
PRISCILLA SCHNITTKE, Attorney at Law, 371 Broad St., Elyria, OH 44035 for
Appellant.
JUDGES: LYNN C. SLABY, QUILLIN, J., CONCURS, BAIRD, P. J., DISSENTS IN PART AND
CONCURS IN PART SAYING:
OPINIONBY: LYNN C. SLABY
OPINION:
DECISION AND JOURNAL ENTRY
Dated: February 7, 1996
This cause was heard upon the record in the trial court. Each error assigned has
been reviewed and the following disposition is made:
SLABY, Judge.
Joseph Allen ("Allen") appeals from his convictions of four counts of rape,
three counts of felonious sexual penetration, and one count of gross sexual
imposition. Three of the counts of rape and two of the counts of felonious
sexual penetration carried specifications that Allen used force or the threat of
force. We affirm.
Three children--Nikki Z., Antuan P., [*2] and Jonathan G.-- alleged that
they were sexually abused by Allen. n1 At the time of the abuse, the children,
who were four to five years old, were enrolled in the Lorain Head Start
program. They stated that Nancy Smith ("Smith"), who drove the bus that took
them to and from Head Start, took them to Allen's house instead of school on
several occasions. n2 Allen and Smith allegedly bound, molested, and raped the
children while they were at Allen's house.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Allegedly, Allen sexually abused at least three more children, two of whom
testified at trial. The indictment was limited, however, to the offenses
committed against Nikki, Antuan, and Jonathan.
n2 Allen and Smith were tried together; Smith was convicted of one count of
rape, one count of attempted rape, two counts of complicity to rape, and two
1996 Ohio App. LEXIS 385, *2
counts of gross sexual imposition. We affirmed Smith's convictions in a separate
opinion. See State v. Smith (Jan. 24, 1996), Lorain App. No. 95 <=1>
CA006070, 1996 Ohio App. LEXIS 241, unreported.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The children reported the abuse to their [*3] parents, which led to a
police investigation. As a result of that investigation, Allen was indicted on
two counts of raping Jonathan, one count each of raping Antuan and Nikki, one
count each of felonious sexual penetration with respect to Nikki, Antuan, and
Jonathan, and one count of gross sexual imposition with regard to Jonathan. The
rape and felonious sexual penetration charges with respect to Antuan and
Jonathan each carried a specification that Allen used force or the threat of
force. Allen pleaded not guilty to the charges. After a trial, the jury found
Allen guilty of all of the charges and specifications.
Allen appeals and assigns five errors.
Assignment of Error I
"The trial court erred to the prejudice of [Allen]'s substantial right by
admitting unduly prejudicial testimony of a prior conviction by [Allen,] the
1996 Ohio App. LEXIS 385, *3
only probative value of which was to establish [Allen]'s bad character and
conduct in conformity therewith."
At trial, the state sought to introduce testimony from Keema Cavin ("Cavin"), a
woman who had been molested by Allen. Cavin, who was twenty-one years old at the
time of trial, testified that Allen began molesting her when she was six years
[*4] old and that the molestation continued for three years. In 1985, Allen
was convicted of charges stemming from his conduct with Cavin. The trial court
permitted Cavin to testify. Allen argues that the trial court erred by admitting
this "other acts" evidence.
A trial court enjoys broad discretion in admitting evidence and will be
reversed only for an abuse of that discretion. <=2> Barbeck v. Twinsburg Twp.
(1992), 73 Ohio App.3d 587, 592, 597 N.E.2d 1204. "Abuse of discretion"
connotes a decision that is unreasonable, arbitrary, or unconscionable. <=3>
Gen. Motors Corp. v. Tracy (1995), 73 Ohio St.3d 29, 32, 652 N.E.2d 188.
Evidence of other acts is admissible if (1) substantial proof shows that the
defendant committed the alleged other acts, and (2) the evidence tends to prove
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident. <=4> State v. Lowe (1994), 69 Ohio St.3d 527, 530,
634 N.E.2d 616; see, also, Evid.R. 404(B); R.C. 2945.59. The other acts need
1996 Ohio App. LEXIS 385, *4
not be similar to the crime charged, but they must tend to show one of the
factors listed in Evid.R. 404(B) and R.C. 2945.59. <=5> State v. Shedrick
(1991), 61 Ohio St.3d 331, 337, 574 N.E.2d 1065. The rule and statute codify
an exception to the common [*5] law; accordingly, they are construed against
admissibility of the "other acts" evidence. <=6> State v. Broom (1988), 40
Ohio St.3d 277, 533 N.E.2d 682, paragraph one of the syllabus, certiorari
denied (1989), <=7> 490 U.S. 1075, 104 L. Ed. 2d 653, 109 S. Ct. 2089.
At trial, the state argued for the admissibility of Cavin's testimony on the
basis of identity. Identity was at issue in this case because Allen pleaded not
guilty to the charged crimes. See <=8> State v. Harvill (1984), 15 Ohio
App.3d 94, 96, 472 N.E.2d 743. As the Ohio Supreme Court stated in Lowe, other
acts can be evidence of identity in two situations: (1) if the other acts are
part of the immediate background of the alleged act that forms the foundation of
the alleged crime, or (2) if the other acts establish a modus operandi
applicable to the charged crime. <=9> Lowe, 69 Ohio St.3d at 531; see, also,
State v. Williams (Nov. 1, 1995), Summit App. No. 16418, unreported at 29.
Evidence of modus operandi is admissible because "it provides a behavioral
fingerprint which, when compared to the behavioral fingerprints associated with
the crime in question, can be used to identify the defendant as the
perpetrator." <=10> Lowe, 69 Ohio St.3d at 531.
1996 Ohio App. LEXIS 385, *5
The "other acts" [*6] evidence arising from Allen's contact with Cavin
was properly admitted. Allen committed the prior acts, as evidenced by his
resulting conviction. Cavin's testimony tended to identify Allen as the offender
in the case sub judice. She testified that she went to Allen's home to play with
toys. While Cavin was at the home, Allen bound her, forced her to suck his
penis, and attempted intercourse. Cavin recalled that, on several occasions,
Allen decorated the house with balloons, as though for a party. The prosecutor
then showed Cavin two photographs, taken as part of the investigation in the
case sub judice, of decorations found at Allen's house. Cavin stated that the
decorations resembled those that she had seen when she was at Allen's home.
Cavin's testimony showed that Allen used a similar method of operation: young
children went to Allen's house, which was decorated; they were offered toys, and
then they engaged in various sexual acts with Allen. We find that the trial
court did not abuse its discretion by admitting Cavin's testimony.
Allen's first assignment of error is overruled.
Assignment of Error II
"The trial court erred to the prejudice of [Allen] when it [*7] allowed
the admission of hearsay statements pursuant to Rule 807 of the Ohio Rules of
Evidence."
1996 Ohio App. LEXIS 385, *7
Allen argues that the trial court failed to comply with Evid.R. 807 in admitting
several out-of-court statements made by the abused children. He cites to the
testimony of Nikki's mother, Antuan's father, and Jonathan's mother, arguing
1996 Ohio App. LEXIS 385, *8
the out-of-court statement is offered to rebut an express or implied charge of
recent fabrication or improper influence or motive.
"What the rule permits is the rehabilitation of a witness whose credibility has
been attacked by means of a charge that he recently fabricated his story or
falsified his testimony in response to improper motivation or influence, by
admitting into evidence a consistent statement made by the witness prior to the
time of the suggested invention or of the emergence of the motive or influence
to invent or falsify, as tending to rebut the charge."
<=12> Motorists Mut. Ins. Co. v. Vance (1985), 21 Ohio App.3d 205, 207, 486
N.E.2d 1206; see, also, <=13> State v. Lopez (1993), 90 Ohio App.3d 566,
578, 630 N.E.2d 32.
The defense's strategy at trial largely focused on discrediting the testimony
of the children. Specifically, the defense depicted the children's testimony as
"contaminated" by the police investigation, suggesting that the interviews were
designed [*9] to elicit information that incriminated Allen. The defense also
noted that the children's parents were present at many of the interviews. The
strategy began with the first state witness, the mother of one of the children
1996 Ohio App. LEXIS 385, *9
who was not named as a victim in the indictment: the defense suggested that she
and the police detective prompted her son to name Allen as the abuser and that
the child fabricated his recollections.
The information elicited by the state in its examination of the parents
rebutted the defense's attacks. The parents' statements showed that the children
reported the sexual abuse by Allen before they were allegedly tainted by the
police investigation. The children's statements prior to the investigation were
consistent with their statements after the investigation commenced. Accordingly,
the admission of those statements into evidence did not constitute plain error.
Allen's second assignment of error is overruled.
Assignment of Error III
"The trial court erred to the prejudice of [Allen] when it failed to find
that the testimony of the children was contaminated, thus was without a
sufficient degree of reliability to warrant admission at trial."
In this [*10] assignment of error, Allen argues that the testimony of the
three victims named in the indictment--Nikki, Antuan, and Jonathan--was
contaminated. Citing to the New Jersey Supreme Court's decision in <=14> New
1996 Ohio App. LEXIS 385, *10
Jersey v. Michaels (1994), 136 N.J. 299, 642 A.2d 1372, he claims that the trial
court should have held a pretrial hearing concerning the reliability of the
children's testimony.
Allen does not point to any part of the trial at which he requested a
contamination hearing; accordingly, we will not reverse unless the trial court
committed plain error. No Ohio appellate court has either followed Michaels or
independently determined that a pretrial taint hearing is required if a child
witness is potentially "contaminated." We cannot find that the trial court
committed plain error by failing to follow requirements established by a case
from a different jurisdiction.
Allen's third assignment of error is overruled.
Assignment of Error IV
"[Allen] was convicted with evidence insufficient as a matter of law[,]
thereby denying him his due process rights guaranteed by the Fourteenth
Amendment to the United States Constitution, and Article I, Section 16 of the
Ohio Constitution."
[*11]
1996 Ohio App. LEXIS 385, *11
The prosecution must prove every necessary element of the crime charged beyond a
reasonable doubt. <=15> In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d
368, 375, 90 S. Ct. 1068. Viewing the evidence in the light most favorable to
the prosecution, we must determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. <=16>
State v. Jamison (1990), 49 Ohio St.3d 182, 191, 552 N.E.2d 180, certiorari
denied (1990), <=17> 498 U.S. 881, 112 L. Ed. 2d 183, 111 S. Ct. 228, quoting
<=18> State v. Eley (1978), 56 Ohio St.2d 169, 383 N.E.2d 132, syllabus.
Assessments of witness credibility are primarily for the trier of fact.
<=19> State v. Tyler (1990), 50 Ohio St.3d 24, 32, 553 N.E.2d 576,
certiorari denied (1990), <=20> 498 U.S. 951, 112 L. Ed. 2d 334, 111 S. Ct.
371, quoting <=21> State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d
212, paragraph one of the syllabus.
Allen was convicted of four counts of rape under R.C. 2907.02(A)(1)(b), three
counts of felonious sexual penetration under R.C. 2907.12(A)(1)(b), and one
count of gross sexual imposition under R.C. 2907.05(A)(4). Three of the counts
of rape and two of the counts of felonious sexual penetration carried force
specifications. We examine each of these convictions in turn.
A. Allen's Convictions [*12] for Rape
1996 Ohio App. LEXIS 385, *12
R.C. 2907.02(A)(1)(b) prohibits any person from engaging in sexual conduct with
a person, not the spouse of the offender, if the other person is less than
thirteen years of age. R.C. 2907.01(A) defines "sexual conduct" to include
vaginal intercourse, anal intercourse, fellatio, and cunnilingus. Pursuant to
R.C. 2907.02(B), any offender who is convicted under R.C. 2907.02(A)(1)(b), and
who purposely compelled the victim to submit by force or threat of force,
receives life imprisonment.
We find that the state provided sufficient evidence to support the rape
convictions. Nikki testified that Allen kissed her vagina and inserted his penis
into her anus. Antuan stated that Allen put his mouth on Antuan's penis. Antuan
had previously related this event to her father, who testified about it at
trial. Jonathan testified that he was forced to touch Allen's butt with his
penis. This evidence supported three of the four rape convictions.
Allen was also convicted of another count of raping Jonathan. This count was
supported by sufficient evidence inasmuch as Jonathan complained of an anal
injury and exhibited sexual behavior with another boy, a foster child who was
staying in Jonathan's [*13] home. The trier of fact could conclude that
Jonathan's injuries and behaviors were consistent with being anally raped.
1996 Ohio App. LEXIS 385, *13
The counts of rape against Antuan and Jonathan included force specifications.
Force is not an element of rape if the victim is less than thirteen years old;
it is, however, a factor that enhances the penalty. R.C. 2907.02(B); State v.
Schindler (May 24, 1995), Lorain App. Nos. 94CA005890 and 94 <=22> CA005901,
1995 Ohio App. LEXIS 2133, unreported at 5. "The force and violence necessary
to commit the crime of rape depend[] upon the age, size and strength of the
parties and their relation to each other." <=23> State v. Eskridge (1988), 38
Ohio St.3d 56, 526 N.E.2d 304, paragraph one of the syllabus.
The record contains sufficient evidence to support the force specifications.
Both Antuan and Jonathan said that their clothes were taken off and that they
were ordered to perform the various sexual acts previously described. They also
reported that they were bound. Antuan further testified that he was shown a
graphic picture of a bloody head and that Allen told him that the same thing
would happen to him if he told anybody about the sexual abuse. Based on the
foregoing, we find that the state provided sufficient [*14] evidence to
support the force specifications.
B. Allen's Convictions for Felonious Sexual Penetration
R.C. 2907.12(A)(1)(b) forbids any person from inserting any part of the body or
any instrument into the vaginal or anal cavity of another person, not the
1996 Ohio App. LEXIS 385, *14
spouse of the offender, if the other person is less than thirteen years old.
Like the rape statute, the felonious sexual penetration statute provides for
life imprisonment if force or the threat of force is used against a victim under
thirteen years of age. See R.C. 2907.12(B).
We find that the state provided sufficient evidence to convict Allen on all
three counts of felonious sexual penetration. According to Jonathan, Allen
inserted a stick into Jonathan's anus. His mother testified that Jonathan said
that "his butt was burning" and that "Nancy's boyfriend hurt him in his butt
with the stick." Antuan stated that Allen inserted part of his hand, a "needle,"
and a stick into Antuan's anus. Nikki testified that Allen put a stick in her
vagina. Nikki's mother testified that Nikki told her about this incident later
on the day that it occurred. Nikki's mother then undressed Nikki and found part
of a branch clinging to Nikki's clothes. [*15] When questioned about the
branch, Nikki said that it was part of the stick that Allen inserted into her.
We also find that the state provided sufficient evidence to prove that Allen
used force or the threat of force against Jonathan and Antuan. The same evidence
that supported the force specifications for the rape convictions--being tied up
and threatened--also supported the specifications for the felonious sexual
penetration convictions.
1996 Ohio App. LEXIS 385, *15
C. Allen's Conviction for Gross Sexual Imposition
R.C. 2907.05(A)(4) prohibits sexual contact with a person under thirteen years
of age who is not the offender's spouse. "Sexual contact" is defined in R.C.
2907.01(B) as any touching of an erogenous zone of another person, including
genitals. At trial, Jonathan testified that Allen touched Jonathan's penis with
his hands. Antuan testified that he witnessed this contact between Jonathan and
Allen. This testimony sufficed to find Allen guilty of gross sexual imposition.
D. Other Issues
In his brief, Allen notes that the state called no medical expert witnesses to
establish that the children were physically or psychologically injured. We
reject the notion that the lack of medical expert testimony [*16] created
error. Medical expert testimony is not a prerequisite to establishing violations
of any of the statutes at issue in this case.
Allen also argues that the children's testimony was tainted and often
inconsistent. We reject this argument as well. While the children's testimony
was not perfectly consistent, they repeatedly testified that they were taken to
Allen's house and that Allen sexually abused them. Their testimony was
consistent as to several objects found at Allen's residence, including bed
1996 Ohio App. LEXIS 385, *16
sheets, decorations, and a mask that Allen would wear occasionally. The
children's testimony was very similar to the information they conveyed to their
parents, to which the parents testified at trial. The children consistently
identified the offender as "Joseph" and described him as a dark-skinned man with
white spots. A detective who investigated the crimes described Allen as having
white spots on his penis and legs, thereby confirming the children's
observations. Antuan's identification of Allen is particularly notable because
his father, who did some investigating of his own, found that another black man
with visible skin discolorations lived near the school that the children
attended. [*17] Believing that this man was the offender, Antuan's father
took Antuan to see this man. Antuan, however, refused to identify the man as the
offender. The jury had sufficient evidence before it to find the elements of
these crimes proven beyond a reasonable doubt.
Allen's fourth assignment of error is overruled.
Assignment of Error V
"The cumulative effect of the foregoing errors deprived [Allen] of the
constitutional right to a fair trial, requiring reversal."
We have not found that the trial court erred. Because the existence of
1996 Ohio App. LEXIS 385, *17
multiple errors is a prerequisite to application of the cumulative error
principle, see <=24> State v. Catlin (1990), 56 Ohio App.3d 75, 79, 564
N.E.2d 750, we must overrule this assignment of error.
Allen's fifth assignment of error is overruled.
The judgment of the trial court is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this court, directing the County
of Lorain Common Pleas Court to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to
App.R. 27.
Immediately upon the filing hereof, [*18] this document shall constitute
the journal entry of judgment, and it shall be file stamped by the Clerk of the
Court of Appeals at which time the period for review shall begin to run. App.R.
22(E).
1996 Ohio App. LEXIS 385, *18
Costs taxed to appellant.
Exceptions.
LYNN C. SLABY
FOR THE COURT
QUILLIN, J.
CONCURS
CONCURBY: BAIRD (IN PART)
DISSENTBY: BAIRD (IN PART)
DISSENT:
BAIRD, P. J.
DISSENTS IN PART AND
1996 Ohio App. LEXIS 385, *18
CONCURS IN PART SAYING:
Allen was charged with rapes of Jonathan in the fifth and sixth counts of the
indictment. As to one of those counts, the only evidence that a rape took place
was that Jonathan complained of an anal injury, and that Jonathan said that
Allen put a stick in his "butt." I believe that such evidence in insufficient to
support a rape charge and the life sentence imposed pursuant thereto.
Accordingly, I dissent as to the overruling of Assignment of Error IV relative
to that one count. I concur in the balance of the majority's disposition of this
case.
------------------------------