State v. Bowers

2019 Ohio 4273

Opinion

[Cite as State v. Bowers, 2019-Ohio-4273.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J Plaintiff-Appellee Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2019CA00009 RORY J. BOWERS

Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2018-CR-1315

Affirmed JUDGMENT:

DATE OF JUDGMENT ENTRY: October 15, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO AARON KOVALCHIK Stark County Prosecutor 116 Cleveland Avenue, N.W. 808 Courtyard Centre KRISTINE W. BEARD Canton, Ohio 44702 Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2019CA00009 2

Hoffman, P.J. {¶1} Appellant Rory J. Bowers appeals the judgment entered by the Stark

County Common Pleas Court convicting him of sexual battery (R.C. 2907.03(A)(5)) and

two counts of gross sexual imposition (R.C. 2907.05(A)(4)) and sentencing him to an

aggregate term of incarceration of thirteen years. Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} In July of 2016, the Ohio Department of Job and Family Services

(hereinafter “ODJFS”) removed Appellant’s two biological daughters, J.B. and K.B., from

the home of Appellant and his wife due to concerns of dependency and neglect. The girls

were placed in foster care.

{¶3} The girls began counseling in November of 2016 with Mary Seaman, a

clinical therapist. The counseling was school-based, and dealt with issues surrounding

their removal from the home and foster placement. The case plan promulgated by ODJFS

included supervised visitation between the girls and their parents.

{¶4} In April of 2017, while Mary Seaman was in the school lobby during

dismissal, J.B. whispered in Mary’s ear, “My daddy touched me.” Mary contacted the

child’s foster mother and ODJFS. Visitation was terminated and a criminal investigation

was launched.

{¶5} The girls were forensically interviewed during the investigation. The

interview was observed by Kathleen Nduati, a nurse practitioner at Akron Children’s

Hospital. J.B. disclosed Appellant touched her in the vaginal area and buttocks, and

made her perform fellatio on him. She stated she observed Appellant do the same things

to her sister. K.B. disclosed her father touched her private parts over her clothes. No

physical findings were made during a physical exam. However, a finding of sexual abuse Stark County, Case No. 2019CA00009 3

was made as to J.B. K.B. was referred to Northeast Ohio Behavioral Health for a sexual

abuse evaluation following an inconclusive diagnosis.

{¶6} Carrie Schnirring, a therapist at Northeast Ohio Behavioral Health,

conducted K.B.’s sexual abuse evaluation. K.B. attempted to move away from the topic

of sexual abuse because it was “disgusting.” Tr. (2A) 65. K.B. missed her mother and

indicated to Carrie she wanted to go home. However, K.B. disclosed Appellant would

shut the living room curtains and make her and J.B. stand naked in front of him while he

sat on the couch with his pants down. She disclosed Appellant touched her private parts

with his hands, and she saw him do the same thing to her sister.

{¶7} Detective Talkington of the Canton Police Department brought Appellant to

the police station for an interview. Appellant denied the allegations of sexual misconduct.

Within twenty-four hours after the interview, Appellant and his wife left for Florida.

{¶8} J.B. and K.B. completed trauma based therapy at Thrive. During therapy,

J.B. drew pictures of the sexual abuse committed by Appellant, and referred to him as

“devil dad.”

{¶9} Appellant was indicted by the Stark County Grand Jury on one count of

sexual battery and two counts of gross sexual imposition. Prior to trial, the State moved

to permit the child victims to testify via closed circuit television, arguing they would suffer

serious emotional harm if they testified in the courtroom before Appellant. The court

granted the motion.

{¶10} The matter proceeded to jury trial. Appellant testified at trial, denying the

allegations. Appellant was convicted as charged. The court merged one of the counts of

gross sexual imposition with the conviction of sexual battery. He was sentenced to eight Stark County, Case No. 2019CA00009 4

years incarceration for sexual battery and sixty months incarceration for gross sexual

imposition, to be served consecutively. It is from the December 17, 2018 judgment of

conviction and sentence Appellant prosecutes his appeal, assigning as error:

I. THE TRIAL COURT ERRED WHEN IT VIOLATED APPELLANT’S

SIXTH AMENDMENT RIGHT TO CONFRONTATION WHEN IT ALLOWED

TESTIMONY TO BE TAKEN BY CLOSED CIRCUIT TELEVISION

PURSUANT TO R.C. 2945.481(E).

II. APPELLANT’S CONVICTIONS WERE AGAINST THE

MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

I.

{¶11} In his first assignment of error, Appellant argues the court erred in allowing

the child victims to testify via closed circuit television at trial. J.B. was nine years old at

the time of trial, and K.B. was seven years old. He argues the State did not present

testimony there was a substantial likelihood the children would suffer serious emotional

trauma if they testified in front of Appellant, and further argues the trial court failed to find

the element of serious emotional trauma as required by R.C. 2945.481(E).

{¶12} The trial court found the State could present the testimony of the child

victims in this case via closed circuit television pursuant to R.C. 2945.481(E)(3), which

provides: Stark County, Case No. 2019CA00009 5

(E) For purposes of divisions (C) and (D) of this section, a judge may

order the testimony of a child victim to be taken outside the room in which

the proceeding is being conducted if the judge determines that the child

victim is unavailable to testify in the room in the physical presence of the

defendant due to one or more of the following:

(3) The substantial likelihood that the child victim will suffer serious

emotional trauma from so testifying.

{¶13} The Ohio Supreme Court has held testimony of a child victim by videotaped

deposition does not violate the Confrontation Clause, as long as the defendant has an

opportunity to view the child and the child’s demeanor, and has a full opportunity to cross-

examine the child. State v. Self, 56 Ohio St. 3d 73, 77, 564 N.E.2d 446 (1990). We find

the procedure employed in the instant case similarly did not violate the Confrontation

Clause, as Appellant was able to see the girls’ demeanor, and his counsel had a full

opportunity to cross-examine each child. See State v. Lukacs, 1st Dist. Hamilton No. C-

090309, 188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 30 (allowing victim’s

brother to testify by remote video outside the courtroom did not violate the Confrontation

Clause where defendant had ample opportunity to cross-examine the witness and see

him over the live video feed).

{¶14} Our task as a reviewing court when reviewing a claim the trial court erred in

finding a substantial likelihood the child will suffer serious emotional trauma from testifying

in the physical presence of the defendant is to determine whether the court's findings are

supported by competent, credible evidence. Self, supra, at 80, citing C.E. Morris Co. v. Stark County, Case No. 2019CA00009 6

Foley Construction Co., 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578, syllabus

(1978).

{¶15} The trial court conducted an evidentiary hearing prior to allowing the child

victims to testify via closed circuit television, at which two therapists testified: Mary

Seaman, who began school-based treatment with the children in November of 2016, and

Lindsay DeHaas, the children’s trauma therapist from Thrive Counseling Services.

{¶16} Mary Seaman testified the girls had successfully completed their trauma

narratives and moved on. The girls were functioning well in their adoptive home and at

school, and their negative behaviors had all but gone away. Prior to treatment, the girls

had nightmares, bed-wetting and bathroom accidents, engaged in negative attention-

seeking behavior, faked injury for attention, were dishonest, and hoarded food. The

witness testified “with certainty” if the girls had to see their father in the courtroom, all the

work they had done would go away, and they would have to start over. She believed the

girls would probably “pee their pants” and be unable to sleep. Tr. (H) 23-24.

{¶17} On cross-examination, Mary Seaman admitted she had not previously dealt

with a case where the child victim had to testify, although she had treated numerous child

victims. On further questioning from the court, the witness testified when a child victim is

in the process of treatment, testifying may make the recovery process longer, but in this

case the girls had completed treatment. She testified they could retell but not relive their

story without regression, and she believed if they saw their father, they would relive the

story.

{¶18} Lindsay DeHaas, who worked with J.B. three days a week at Thrive

Counseling Services, testified testifying in front of Appellant would cause J.B. to relive her Stark County, Case No. 2019CA00009 7

experiences and go into aspects of a trauma response. She testified it would cause

unnecessary trauma to J.B. to testify in front of her father.

{¶19} Based on the testimony of the two witnesses presented by the State, we

find the court’s judgment there is a substantial likelihood the girls would suffer serious

emotional trauma from testifying in the presence of their father is supported by competent

credible evidence.

{¶20} Further, we find the court made the requisite finding of serious emotional

trauma. Appellant argues the court can not characterize behaviors as serious emotional

trauma when it first characterized those same behaviors as emotional trauma. We

disagree. The court made the following findings:

The Court finds that, based upon the testimony presented, there is a

substantial likelihood that the child witnesses will suffer emotional trauma if

they are required to testify in the Courtroom in front of the defendant.

Specifically, the Court finds that, prior to receiving therapy, the witnesses

exhibited “trauma related behaviors,” such as bed-wetting, dishonesty,

having accidents in pants, hoarding food, and engaging in negative

attention seeking behaviors. The Court further finds that the witnesses are

“done telling their story” from a therapeutic standpoint, meaning that they

have worked through their feelings and behaviors. Based upon the

testimony presented by Mary Seaman, the Court finds that, if the witnesses

were required to testify in the Courtroom in front of the defendant, all of the

prior therapy that they would have completed would be undone and that the Stark County, Case No. 2019CA00009 8

trauma related behaviors would return. While Ms. Seaman testified that any

child would be traumatized by testifying in front of an alleged perpetrator,

the Court finds that given the status of recovery of the witnesses, the impact

of such testimony would result in the return of the trauma related behaviors

and, as such, serious emotional trauma.

According, the Court finds that the State of Ohio has demonstrated

that there is a substantial likelihood that the child witnesses in this case will

suffer serious emotional trauma if required to testify in front of the

defendant.

{¶21} Judgment Entry, November 29, 2018.

{¶22} The trial court clearly found a substantial likelihood of serious emotional

trauma twice in its judgment, and we find the omission of the word “serious” from the

court’s opening discussion does not render the later findings invalid under the statute.

{¶23} The first assignment of error is overruled.

II.

{¶24} In his second assignment of error, Appellant argues the judgment is against

the manifest weight and sufficiency of the evidence.

{¶25} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and Stark County, Case No. 2019CA00009 9

a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).

{¶26} An appellate court's function when reviewing the sufficiency of the evidence

is to determine whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

{¶27} Appellant was convicted of sexual battery in violation of R.C. 2907.03(A)(5):

(A) No person shall engage in sexual conduct with another, not the

spouse of the offender, when any of the following apply:

(5) The offender is the other person's natural or adoptive parent, or

a stepparent, or guardian, custodian, or person in loco parentis of the other

person.

{¶28} Sexual conduct is defined by R.C. 2907.01(A):

“Sexual conduct” means vaginal intercourse between a male and

female; anal intercourse, fellatio, and cunnilingus between persons

regardless of sex; and, without privilege to do so, the insertion, however

slight, of any part of the body or any instrument, apparatus, or other object

into the vaginal or anal opening of another. Penetration, however slight, is

sufficient to complete vaginal or anal intercourse. Stark County, Case No. 2019CA00009 10

{¶29} Appellant was also convicted of gross sexual imposition in violation of R.C.

2907.05(A)(4):

(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 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 the age of that person.

{¶30} R.C. 2907.01(B) defines “sexual contact:”

“Sexual contact” means any touching of an erogenous zone of

another, including without limitation the thigh, genitals, buttock, pubic

region, or, if the person is a female, a breast, for the purpose of sexually

arousing or gratifying either person.

{¶31} J.B. testified Appellant touched her buttocks with his hands, and made her

put her mouth on his penis. She testified she observed the same thing happen between

Appellant and K.B. She testified Appellant did this when her mom wasn’t at home. She

testified Appellant would make them take their clothes off, and would pull his pants down.

She disclosed the conduct to her mother, who told Appellant, and Appellant got mad and

yelled at them. Stark County, Case No. 2019CA00009 11

{¶32} K.B. testified Appellant made her and her sister suck his “private,” which

she described as the part he uses to go to the restroom. She testified his pants would be

off when this happened. She testified she did not know if he used his hands to touch her.

{¶33} Sara Brown, the foster mother with whom the girls lived from July of 2016,

until May of 2018, when they were placed in their adoptive home, testified the Sunday

after J.B. reported sexual abuse to Mary Seaman, J.B. disclosed sexual abuse to her

[Sara]. She testified discussing sexual abuse caused anxiety to K.B., who did not want

to talk about it.

{¶34} Mary Seaman testified she did not interfere in the ongoing investigation, but

would listen to the girls about the topic of sexual abuse if the girls brought it up first. She

testified J.B. would crawl on her lap, talk like a baby, and cry when talking about the

abuse. K.B. would cough and gag when she talked to Mary Seaman about her dad putting

his penis in her mouth.

{¶35} The girls were forensically interviewed during the investigation. The

interview was observed by Kathleen Nduati, a nurse practitioner at Akron Children’s

Hospital. J.B. disclosed Appellant touched her in the vaginal area and buttocks, and

made her perform fellatio on him. She stated she observed Appellant do the same things

to her sister. K.B. disclosed her father touched her private parts over her clothes. No

physical findings were made during a physical exam. However, a finding of sexual abuse

was made as to J.B. K.B. was referred to Northeast Ohio Behavioral Health for a sexual

{¶36} Carrie Schnirring conducted the sexual abuse evaluation of K.B. for

Northeast Ohio Behavioral Health. Schnirring testified K.B. would try to move Stark County, Case No. 2019CA00009 12

conversation away from the topic of bad touches because it was disgusting. K.B. was

emotionally and physically upset during her evaluation. The witness testified K.B.

desperately wanted to return home to her mother, yet still disclosed sexual abuse by

Appellant. K.B. told Schnirring she would be standing and her dad would sit on the couch.

K.B. disclosed Appellant would touch her vaginal area with his hands, and closed the

curtains prior to any touching. K.B. also stated the same thing happened with J.B.

Because K.B. badly wanted to return home, Schnirring ruled out a secondary agenda in

her disclosure of sexual abuse.

{¶37} Lindsay DeHaas, J.B.’s trauma therapist, described images J.B. drew

during therapy related to sexual abuse. J.B. referred to her father as “devil dad.”

{¶38} The testimony of the girls at trial was sufficient evidence, if believed by the

jury, to support the convictions of sexual battery and gross sexual imposition.

{¶39} Appellant argues the girls’ testimony is not credible because they denied

sexual abuse when they were removed from the home in 2016. He also argues the jury

failed to take into consideration the fact he denied any wrongdoing.

{¶40} Mary Seaman, who had worked with the girls concerning their initial removal

from their home, testified in her experience, delayed disclosure of sexual abuse is “usually

the way it is.” Tr. (2A) 31. Knowing the girls, she testified she did not believe they were

feeling safe enough to disclose when first removed from home. She testified sometimes

it takes time for a child to process what happened to them and recognize it was wrong.

She additionally testified sometimes there is a sense of survival and self-preservation

right after children are removed from their home. She testified, “I can’t see those girls Stark County, Case No. 2019CA00009 13

being able to talk about what happened to them shortly after they were removed.” Tr.

2(A) 32.

{¶41} Appellant denied the allegations both to police and at trial. However, the

jury also heard evidence Appellant left for Florida less than twenty-four hours after his

interview with police.

{¶42} Based on all the evidence presented at trial, we find the jury did not lose its

way in finding the girls’ testimony credible and rejecting Appellant’s claim of innocence,

and the judgment is not against the manifest weight of the evidence.

{¶43} The second assignment of error is overruled.

{¶44} The judgment of the Stark County Common Pleas Court is affirmed.

By: Hoffman, P.J. Baldwin, J. and Wise, Earle, J. concur