In Re Howard

694 N.E.2d 488, 119 Ohio App. 3d 33
CourtOhio Court of Appeals
DecidedMarch 31, 1997
DocketNo. CA96-08-173.
StatusPublished
Cited by11 cases

This text of 694 N.E.2d 488 (In Re Howard) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Howard, 694 N.E.2d 488, 119 Ohio App. 3d 33 (Ohio Ct. App. 1997).

Opinion

Walsh, Judge.

Appellant, fifteen-year-old John Howard, appeals a decision of the Butler County Court of Common Pleas, Juvenile Division, adjudicating him delinquent by reason of having committed criminal acts which, if committed by an adult, would constitute rape and felonious sexual penetration in violation of R.C. 2907.02 and 2907.12.

In May 1996, four-year-old Katie Caudill informed her mother that her genital area was red and hurting because her brother, Bobby, “wouldn’t leave it alone.” *36 Katie has four brothers: Bobby, who is seven years old; Josh, who is ten years old; Christopher, who is eleven years old; and Casey, who is fifteen years old. Mrs. Caudill confronted each of the boys about Katie’s comment and discovered that Katie had been sexually abused by her brothers. Mrs. Caudill also discovered, based upon her conversations with Katie’s brothers, that appellant and Scott Tindle, a fifteen-year-old relative of the Caudills, were present when Katie was molested and participated in the sexual abuse.

As a result of Mrs. Caudill’s discovery, the Butler County Children Services Board (“BCCSB”) and the Oxford Police Department became involved. Detective Dwight Johnson interviewed all of the Caudill children individually and obtained a written statement from appellant. Following Johnson’s investigation, a delinquency complaint was filed against appellant alleging that he had committed acts of sexual abuse upon Katie and her five-year-old cousin, Tiffany Miller.

On June 14, 1996, the state filed a motion seeking permission to allow the child victims to testify by closed circuit television from outside of the courtroom pursuant to R.C. 2151.3511. The motion indicated that if the child victims were to testify in front of appellant, they would suffer serious emotional trauma and would not be able to communicate regarding the allegations due to extreme fear. On July 9, 1996, appellant filed a motion to suppress any and all statements made by him to any investigating police officer, including his written confession. The trial court overruled appellant’s motion to suppress and subsequently permitted Katie, Tiffany, Bobby and Josh to testify via closed circuit television at the adjudication hearing. 1

Following the hearing, appellant was adjudicated delinquent by reason of the trial court finding that he had sexually abused Katie and Tiffany. The trial court found that appellant was guilty of the rape of Katie and felonious sexual penetration of Tiffany. The trial court ordered appellant to be placed in the custody of the Department of Youth Services for a minimum period of twelve months and a maximum period not to exceed his twenty-first birthday. It is from this judgment that appellant now appeals, setting forth the following assignments of error:

Assignment of Error No. 1:

“The trial court erred to the prejudice of appellant by applying R.C. 2151.3511 in violation of his 6th and 14th Amendment rights to confront witnesses.”

Assignment of Error No. 2:

*37 “The trial court erred to the prejudice of appellant by misapplying R.C. 2151.3511.”

Assignment of Error No. 3:

“The trial court erred to the prejudice of appellant by overruling his motion to suppress his confession.”

Assignment of Error No. 4:

“The trial court erred to the prejudice of appellant by convicting him of felonious sexual penetration against the manifest weight of the evidence.”

In his first assignment of error, appellant contends that the trial court erred by applying R.C. 2151.3511 in violation of his Sixth and Fourteenth Amendment rights to confront witnesses. Appellant argues that the trial court’s failure to enter case-specific findings of fact that Katie, Tiffany, Bobby, and Josh would experience significant trauma if they were required to testify in court in appellant’s presence, prior to allowing their out-of-court testimony by closed circuit television, violated his right to confront his accusers.

The Sixth Amendment to the United States Constitution guarantees the accused in a criminal prosecution the right “to be confronted with the witnesses against him.” Likewise, the Ohio Constitution provides that in any trial, the accused must be permitted “to meet the witnesses face to face * * *; but provision may be made by law for the taking of the deposition by the accused or by the state, to be used for or against the accused, of any witness whose attendance can not be had at the trial, always securing to the accused means and the opportunity to be present in person and with counsel at the taking of such deposition, and to examine the witness face to face as fully and in the same manner as if in court.” Section 10, Article I, Ohio Constitution.

While a face-to-face confrontation between an accused and the witnesses against him is an important component of a criminal proceeding, such confrontation is not “an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.” Maryland v. Craig (1990), 497 U.S. 836, 849-850, 110 S.Ct. 3157, 3166, 111 L.Ed.2d 666, 681; see, also, State v. Self (1990), 56 Ohio St.3d 73, 77, 564 N.E.2d 446, 450-451. A physical face-to-face encounter is not required in cases where the “denial of such confrontation is necessary to further an important public policy and * * * the reliability of the testimony is otherwise assured.” Craig, at 850, 110 S.Ct. at 3166, 111 L.Ed.2d at 682, citing Coy v. Iowa (1988), 487 U.S. 1012, 1021, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857, 867; Self, 56 Ohio St.3d at 77, 564 N.E.2d at 450-451. The protection of child sexual abuse victims is an important public policy recognized in Ohio. State v. Eastham (1988), 39 Ohio St.3d 307, 310, 530 N.E.2d 409, 411-412. Thus, the state’s interest in protecting the well-being of child sexual abuse *38 victims may, under certain circumstances, override an accused’s right to confront the accusers in court. Craig, 497 U.S. at 853, 110 S.Ct. at 3167-3168, 111 L.Ed.2d at 683.

A special procedure designed to allow a child sexual abuse victim to testify at trial through closed circuit television is permissible if the state proves the necessity of such a procedure. Id. at 855, 110 S.Ct. at 3168-3169, 111 L.Ed.2d at 685. The necessity determination must be made on a case-by-case basis after the court has heard evidence on the issue, and the court must find not only that the child victim would suffer trauma due to the presence of the accused, but that the emotional stress from which the child would suffer would be significant. Id. at 855-856, 110 S.Ct. at 3168-3169, 111 L.Ed.2d at 685.

R.C. 2151.3511(C) provides for the testimony of a child sex offense victim by closed circuit television. “R.C.

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Cite This Page — Counsel Stack

Bluebook (online)
694 N.E.2d 488, 119 Ohio App. 3d 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-howard-ohioctapp-1997.