State v. Hawkins , 2023 Ohio 452 ( 2023 )

[Cite as State v. Hawkins, 2023-Ohio-452.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111579
v. :
THOMAS D. HAWKINS, IV, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 16, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-658565-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Glen Ramdhan, Assistant Prosecuting
Attorney, for appellee.
Scott J. Friedman, for appellant.
SEAN C. GALLAGHER, J.:
Thomas Hawkins, IV, appeals his conviction for gross sexual
imposition for the touching of a nine-year-0ld child’s genital area, resulting in a five-
year term of imprisonment on the third-degree felony following the jury trial. For
the following reasons, the conviction is affirmed.
Hawkins was initially indicted on four sex offenses committed against
a child under the age of 13 between December 2019 and June 2020: two counts of
rape for digital and anal penetration and two counts of gross sexual imposition for
the touching of the victim’s breasts and vagina. Hawkins was in a six-year
relationship with the victim’s mother and moved in with her approximately a year
before sexually assaulting the child. The victim often referred to Hawkins as her
“stepfather.” At trial, both the sexual-assault nurse examiner and the intake social
worker for the Cuyahoga County Division of Children and Family Services testified
with respect to the conversation they had with the victim, in which the victim
revealed that Hawkins touched her on her breasts, butt, and vagina on multiple
occasions with his hands and penis. There is a dispute as to how many times the
sexual assaults occurred as between the two witnesses’ recollections of the victim’s
statements, but both recalled the victim disclosing instances of oral, anal, and digital
penetration.
The victim, ten years old at the time of trial, testified that Hawkins
“touched [her] vagina” and legs in her bedroom after removing her clothes. The
incident began with Hawkins bringing the victim candy from the kitchen and then
getting into bed with the victim. That assault occurred around New Year’s in 2020.
The victim also related that on other occasions Hawkins placed his penis in her
mouth and vagina. After that testimony, the victim drew back from the state’s
questioning and told the prosecutor that she did not remember what happened. In
response to the state’s attempt for clarification, the victim stated that her lack of
recall was because she no longer wished to talk about the abuse.
The state then asked the victim whether a video of her earlier
statements would refresh her recollection. Initially, Hawkins objected to any
introduction of the victim’s recorded statements, even if to refresh her recollection.
After objections were raised, the trial court engaged in a memorialized sidebar
regarding the ongoing examination.
THE COURT: Here’s my thought: First of all, we have a witness with
a very tender age so the Court is trying to give the witness some
leeway. However, we also have a defendant who is on trial for his life
so we’ve got to abide by the rules. I will not permit the use of a
videotape even if she’s using a — if she’s looking at the laptop with
earphones on. * * *
However, in an effort to be fair and as balanced as I possibly can, I will
permit the prosecution to call to her attention that on a prior occasion
she said different things. So in other words, this is very similar to
when the State has a hostile witness. This is a complete surprise to
the State, I would imagine. In any case, I’ll permit that, not the
introduction of the video, either audio or video, noting the defense’s
objection, and I will permit vigorous cross-examination and the use of
the videotape at that point in your case if you wish.
Tr. 346-347.
After being provided some latitude with the young witness, but
precluded from using the video recording in any manner, the state proceeded to ask
a series of yes-or-no questions regarding statements the victim made to the social
worker:
Q. And where did you tell this lady [social worker] that Mr. Hawkins
touched you? Did you tell her that he touched you on your vagina?
A. Yes.
***
Q. Did you tell this lady that Mr. Hawkins touched you on your boobs?
A. Yes.
Q. Did you tell this lady how he touched you, like what body part?
[Victim], did you tell this lady that he touched you with his body parts?
A. Yes.
Q. Did you say it was his private part or a different part of his body?
A. His private part.
Q. Did you tell this lady that he would touch you in your room?
A. Yes.
Q. Did you tell this lady he would touch you in your mom’s room?
A. Yes.
Q. Did you tell this lady if your clothes would be on or not?
A. Yes, I did.
Q. What did you tell this lady about your clothes?
A. I told her that they was off.
Q. Who would take off your clothes?
A. Thomas [Hawkins].
***
Q. Did you tell this lady about him touching your butt?
A. Yes.
Q. And what did you tell this lady about him touching your butt? Did
he put any body parts in your butt?
A. Yes.
Q. [Victim], what body parts did he put in your butt?
A. His private — his area.
Q. When you say “his area,” are you referring to his cock like you said
before?
A. Yes.
Q. And he put that in your butt?
A. Yes.
Tr. 349-352. Hawkins maintained a continuing objection to that entire line of
questioning. Following the remainder of the trial, the jury acquitted Hawkins of
both rape counts and the gross sexual imposition relating to the touching of the
victim’s breasts. The jury, however, found Hawkins guilty of gross sexual imposition
for the touching of the victim’s vagina.
There are two assignments of error, both of which focus on
evidentiary issues arising at trial. “‘Balancing the risks and benefits of the evidence
necessarily involves an exercise of judgment * * *.’” State v. Brinkman, Slip Opinion
No. 2022-Ohio-2550, ¶ 40, quoting State v. Hartman, 161 Ohio St.3d 214, 2020-
Ohio-4440, 161 N.E.3d 651, ¶ 30. Thus, the admissibility of relevant evidence
generally rests within the sound discretion of the trial court. State v. Garrett, 2022-
Ohio-4218, ¶ 155, quoting State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987),
paragraph two of the syllabus; Columbus v. Taylor, 39 Ohio St.3d 162, 164, 529
N.E.2d 1382 (1988). Appellate courts “‘will not reject an exercise of this discretion
unless it clearly has been abused and the criminal defendant thereby has suffered
material prejudice.’” State v. Whitaker, Slip Opinion No. 2022-Ohio-2840, ¶ 87,
quoting State v. Long, 53 Ohio St.2d 91, 98, 372 N.E.2d 804 (1978).
In the first assignment of error, Hawkins claims that “the trial court
erred when it permitted the state to ask a series of leading questions and elicit
inadmissible hearsay from” the victim. After citing the text of Evid.R. 611 (dealing
with leading questions), Evid.R. 802 (general hearsay preclusion), and Evid.R.
803(5) (recorded recollection exception to Evid.R. 802), Hawkins claims that
[i]n this case, the trial court essentially allowed the prosecutor to testify
in place of the witness after the alleged victim indicated that she did not
recall additional details and she no longer wanted to discuss the
allegations. Under the guise of refreshing the witness’s recollection, the
prosecutor recited [the victim’s] prior account of the assault and asked
her if she recalled making those statements[.] [(Internal quotations of
the transcript omitted.)]
The Supreme Court of Ohio has cautioned that while a party may
refresh a witness’s recollection by showing the witness a prior
statement, the party may not read the statement aloud, have the
witness read it aloud, or otherwise place it before the jury. * * *
[(Internal citation dealing with Evid.R. 803(5) omitted.)] Here, the
prosecutor repeated [the victim’s] prior allegations, but phrased them
in the form of questions. The trial court allowed the prosecutor to ask
these questions, over the defense objection, and thereby permitted
inadmissible evidence to be presented to the jury.
The appellate argument does not present analysis of the relevant case authority to
permit a more detailed appellate discussion. App.R. 16(A)(7). It merely presents a
conclusion, that the evidence was inadmissible. Any discussion at this point in favor
of sustaining the assigned error would solely depend on the creation of legal analysis
supporting Hawkins’s claims, a responsibility that should not be borne by appellate
courts. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d
900, ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933
N.E.2d 753, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part), and
Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983).
Further, Hawkins largely focuses on the recorded recollection
exception to hearsay, providing case citations to the pertinent analysis; however, the
transcript fails to demonstrate the applicability of that analysis. The disputed
statements were not read into evidence from the video recording, and the video was
not shown to the victim under Evid.R. 803(5) as recorded recollections. The trial
court expressly precluded the state from introducing or otherwise using any
recorded statement during the victim’s testimony. There can be no error in the
court’s application of Evid.R. 803(5).
There is a matter of appellate procedure to address with respect to
Hawkins’s Evid.R. 803(5) discussion. Following the close of the briefing schedule,
Hawkins filed a notice of additional authority under App.R. 21(I), citing State v.
Harris, 8th Dist. Cuyahoga No. 110982, 2022-Ohio-4630, ¶ 32, which appears
relevant to the discussion of Evid.R. 803(5) and was released after the briefing was
completed. App.R. 21(I) provides that “[i]f counsel on oral argument intends to
present authorities not cited in the brief, counsel shall, at least five days prior to oral
argument, present in writing such authorities to the court and to opposing counsel.”
Subdivision (I) is meant to provide opposing counsel timely notice of supplemented
arguments in preparation for the upcoming oral argument, but the rule only pertains
to appeals in which an oral argument is conducted. Id. This appeal was submitted
on briefs, with no oral argument being requested by either party and the parties
agreeing that the matter could be resolved upon consideration of the briefing alone.
App.R. 21(G).
App.R. 21(G), with respect to submission of the appeal upon briefs,
does not contain any provision authorizing the submission of additional authority
following the close of the briefing schedule. In the rare situation when additional
authority is required after appeals are submitted on briefs through App.R. 21(G),
i.e., when intervening, binding authority is released during the pendency of an
appeal, that additional authority must be submitted through a motion requesting
additional briefing discussing the new authority. It cannot be considered through
the filing of a notice of additional authority under App.R. 21(I). This motion practice
provides the opposing party a structured opportunity to address the presentation
and applicability of additional authority, which is outside the briefing structure to
which the parties had originally agreed and, in addition, complies with the dictates
of State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 21, should
that additional authority be deemed dispositive. Id., quoting State v. 1981 Dodge
Ram Van, 36 Ohio St.3d 168, 170, 522 N.E.2d 524 (1988) (“[A]ppellate courts
should not decide cases on the basis of a new, unbriefed issue without ‘giv[ing] the
parties notice of its intention and an opportunity to brief the issue.’”).
Nevertheless, the sole issue in the first assignment of error, given the
inapplicability of Evid.R. 803(5), is whether the prosecutor’s use of yes-or-no
questions regarding what the victim remembered telling the social worker
constitutes, per se, reversible error as leading questions or in violation of the rule
against hearsay.
Inasmuch as Hawkins alluded to the questions being leading in
nature as contemplated under Evid.R. 611, we cannot conclude, without more, that
asking a question that could elicit a yes-or-no response is a leading questi0n as a
matter of law. “‘A leading question has been defined as a question that suggests a
particular answer by the form or substance of the inquiry.’” State v. Messenger, 3d
Dist. Marion No. 9-09-19, 2010-Ohio-479, ¶ 54, quoting Haley v. Mason & Dixon
Lines, Inc., 1st Dist. Hamilton No. C-910221, 1992 Ohio App. LEXIS 4303, 14
(Aug. 26, 1992), and State v. Bradley, 4th Dist. Scioto No. 1583, 1987 Ohio App.
LEXIS 8824 (Sept. 22, 1987). In order “‘[t]o determine what constitutes a leading
question, “[t]he whole issue is whether an ordinary man would get the impression
that the questioner desired one answer rather than another.”’” Id., quoting Haley
at 15, and McCormick, Evidence, Section 6, 17-18 (4th Ed.1992).
The questions posed to the young victim in this case could have been
answered equivocally, or in the affirmative or negative, in part demonstrating that
the prosecutor was not suggesting a particular response. Asking a witness whether
the witness told another person something specific does not, in and of itself,
constitute a leading question. The witness is free to answer yes, no, or something
along the lines of “I don’t recall.”
Notwithstanding that observation, and even if we presumed for the
sake of discussion that the questions were more leading than not, the trial court has
discretion to allow leading questions on direct examination. State v. Diar, 120 Ohio
St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 149, citing State v. Drummond, 111
Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 138, and State v. D’Ambrosio,
67 Ohio St.3d 185, 190, 616 N.E.2d 909 (1993). This extends to the trial court’s
discretion to permit a prosecutor leeway with the use of leading questions on direct
examination of a young witness victim. State v. Robinson, 8th Dist. Cuyahoga No.
85207, 2005-Ohio-5132, ¶ 45, citing Staff Notes Evid.R. 611(C) (the rule refers to the
use of leading questions when the witness being examined is hostile, and the
reference to hostility does not foreclose the use of leading questions based on other
considerations, including the handicaps of age, illness, or limited intellect of a
witness), State v. Madden, 15 Ohio App.3d 130, 472 N.E.2d 1126 (12th Dist.1984),
and State v. Holt, 17 Ohio St.2d 81, 246 N.E.2d 365 (1969). Hawkins has not
presented any arguments differentiating that precedent. App.R. 16(A)(7).
And finally with respect to the first assignment of error as presented,
there is no material prejudice from the introduction of the victim’s out-of-court
statements through the victim’s testimony. Hawkins was acquitted of all but one
charge, gross sexual imposition, for the unlawful touching of the victim’s vagina. Of
the several disputed statements, only one pertained to the conviction. Even though
the challenged questions of the victim elicited hearsay responses, the victim was
available for cross-examination regarding her own, direct trial testimony
establishing that Hawkins inappropriately touched the victim’s genital area, the
same fact established by the only pertinent out-of-court statement challenged in this
appeal. See State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1,
¶ 128-129 (although availability for cross-examination of the speaker does not cure
the hearsay problem, the error in admitting the statement is harmless when there is
other evidence of the defendant’s guilt). Hawkins claims the error in the
introduction of the isolated statement is not harmless because “the series of leading
questions” impacted the jury’s decision. In other words, according to Hawkins, the
whole line of questioning was the cause of the material prejudice.
Hawkins has not discussed the implications of this procedural history
that demonstrates the jury’s decision to disregard a majority of the disputed
statements he now claims were prejudicial. He instead treated all statements,
whether he was acquitted of the charge pertaining to the subject matter of the
statement, as demonstrating the material prejudice caused by the introduction of
the out-of-court statements. Because the jury acquitted Hawkins of most of the
charges dealing with all but one of the disputed statements, we cannot conclude that
the introduction of all the disputed testimony caused material prejudice. On the
contrary, the jury demonstrated its capacity to disregard a vast majority of the
victim’s testimony merely relating her own out-of-court statements. The first
assignment of error is overruled.
In the second assignment of error, Hawkins claims the trial court
erred in permitting a social worker to testify about out-of-court statements made by
the alleged victim. According to Hawkins, the entirety of the social worker’s
testimony is inadmissible under Evid.R. 803(4) (admissibility of statements made
for medical diagnosis or treatment) because the social worker was not a licensed
medical professional and, therefore, the victim’s statements were not primarily for
the purpose of medical diagnosis or treatment. Hawkins did not object to the social
worker’s testimony at trial and has waived all but plain error. Crim.R. 52(B).
As has been recognized, “courts have acknowledged the ‘dual role’ —
medical diagnosis/treatment and investigation/gathering of evidence — of social
workers who interview a child who may be the victim of sexual abuse.” State v.
Fears, 8th Dist. Cuyahoga No. 104868, 2017-Ohio-6978, ¶ 37, citing State v. Arnold,
126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 33. Statements made for
the purpose of diagnosis and treatment are admissible under Evid.R. 803(4), even
those made to social workers who are not licensed as treating medical professionals.
Id., citing State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, ¶ 46, 875 N.E.2d 944,
and State v. Goza, 8th Dist. Cuyahoga No. 89032, 2007-Ohio-6837, ¶ 39. “Social
workers are oftentimes in the best position to help determine the proper treatment
for the minor, which treatment includes determining which home was free of sexual
abuse.” Id., citing State v. Durham, 8th Dist. Cuyahoga No. 84132, 2005-Ohio-202,
¶ 33, and Presley v. Presley, 71 Ohio App.3d 34, 39, 593 N.E.2d 17 (8th Dist.1990).
The record does not support Hawkins’s broad claim. The social
worker testified that her job as an intake sex-abuse social worker involves doing
interviews, assessing for safety, and making referrals for services for the children.
Tr. 389:15-23. In doing the forensic interview, from which the social worker related
the victim’s out-of-court statements at trial, she is making assessments of what the
child could benefit from such as counseling services, mental-health assessments,
medical assessments, and other types of treatment. Tr. 391:18-23; 402:20-24. The
information obtained from a child, which includes details of sexual or physical
abuse, is used to help determine if the child needs counseling assessments, mental
health assessments, and physical assessments. Id.The state adequately provided a foundation for at least some of the
hearsay related at trial through the social worker’s testimony, and Hawkins has not
identified any specific statements that violated the permissible scope of Evid.R.
803(4). Since Hawkins has not provided any specificity as to which statements
should have been excluded as being beyond the permissible bounds of Evid.R.
803(4), and not all the social worker’s testimony would have been inadmissible
under prevailing authority, the second assignment of error is overruled. Any
analysis pertaining to specific statements from the social worker would solely fall
upon this court to discover and then to provide the appropriate legal rationale
supporting their exclusion. This is beyond the scope of permissible review and
would provide the state with no meaningful opportunity to discuss the issue. Tate,
140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, at ¶ 21, quoting 1981 Dodge
Ram Van, 36 Ohio St.3d at 170, 522 N.E.2d 524 (1988). The second assignment of
error is overruled.
Hawkins’s conviction is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________
SEAN C. GALLAGHER, JUDGE
MICHELLE J. SHEEHAN, P.J., and
EILEEN T. GALLAGHER, J., CONCUR