In re J.M. ( 2012 )

[Cite as In re J.M., 2012-Ohio-1467.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
IN THE MATTER OF:
CASE NO. 12-11-06
J.M.
OPINION
ALLEGED DELINQUENT CHILD.
Appeal from Putnam County Common Pleas Court
Juvenile Division
Trial Court No. 2011 JG 27539
Judgment Affirmed
Date of Decision: April 2, 2012
APPEARANCES:
Andrew Van Horn for Appellant
Jennifer L. Klausing for Appellee
Case NO. 12-11-06
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, J.M. III (hereinafter, “Appellant”), appeals the
judgment of the Putnam County Court of Common Pleas, Juvenile Division,
adjudicating him a delinquent child for having committed the offense of rape. On
appeal, Appellant contends that the trial court erred when it allowed the eleven-
year old victim to testify because she was not competent; when it failed to
properly swear in a witness; when it failed to suppress Appellant’s statement to the
police; when his rights to due process were violated because of ineffective
assistance of counsel; and, when his due process rights were violated due to the
cumulative errors which occurred. For the reasons set forth below, the judgment
is affirmed.
{¶2} On April 23, 2010, a complaint was filed against Appellant alleging
that he was a delinquent child by reason of committing a rape, in violation of R.C.
2907.02(A)(1)(b), a felony of the first degree if committed by an adult. The
complaint arose from an incident that occurred in early March 2010 when
Appellant, who was a fourteen-year old boy at the time, was spending the night at
the home of his father (“Father”) and his Father’s fiancée (“Laura”) in Lima, Ohio.
Also present were four “stepbrothers” and “stepsisters” (Laura’s children),1 and
1
Although Laura and JM’s Father were not married, they had been in a long-term relationship for many
years, and Laura and her children were sometimes referred to as JM’s “stepmother” and “stepsiblings.”
Laura testified that she loved JM like her son. JM’s parents were divorced, and he usually lived with his
mother and stepfather in Putnam County.
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four cousins (Laura and the Father were guardians of the Father’s nieces and
nephews), ranging in age from three to seventeen. Sometime after midnight,
Laura went to check on the children and found Appellant and his stepbrother,
Jordan (age 11), in the top bunk bed in the girls’ room, which was against the rule
that the boys and girls were not to be in each other’s rooms. Laura found Jordan
lying at one end of the bunk bed playing games on Appellant’s Blackberry, and
Appellant and his cousin, L.E. (hereinafter “Rosie”2 or “the victim”), were lying
next to each other on the other end of the bunk, under a blanket in a “spooning”
position. The children were reprimanded and the boys were sent to their own
room.
{¶3} The next morning, Rosie, who was ten years old at the time, disclosed
that Appellant had “fingered” her by putting his finger inside her vagina and that it
had hurt. Laura took Rosie to the hospital where she was examined by a SANE
nurse, and a small, curved abrasion, consistent with a fingernail scratch, was
discovered on Rosie’s labia minora, inside her vagina.
{¶4} The matter was reported to the authorities and Appellant was taken to
the sheriff’s office for questioning by Investigator Brett Rider. Appellant told
Investigator Rider that he, Jordan, and Rosie had been playing a game and his
finger accidentally went “inside” Rosie when he was helping lift her up to the top
2
“Rosie” is not the victim’s real name; it is a nick-name that was used.
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bunk. Upon further questioning, Appellant continued to maintain that it was an
accident, but admitted that he became confused and may have left his finger inside
of her for a few seconds longer.
{¶5} A two-day trial was held before the Allen County Juvenile Court on
March 2 and 9, 2011. The juvenile judge heard testimony from Laura, Rosie,
Gayle Cheney (the SANE nurse who examined Rosie), Dr. Cunningham (the
director of the Kids Clinic at Lima Memorial Hospital), Investigator Rider, Jordan,
the Father, and Appellant. The parties also entered several exhibits into evidence,
including records from Rosie’s hospital examinations and a copy of the recording
of Investigator Rider’s interview with Appellant.
{¶6} The juvenile court adjudicated Appellant a delinquent child on March
22, 2011, and transferred jurisdiction to the Putnam County Juvenile Court for
disposition. A dispositional hearing was held on May 4, 2011. The court
committed Appellant to the Department of Youth Services for a minimum term of
three years, to age twenty-one, with the commitment suspended on the condition
that Appellant successfully completes the Juvenile Residential Center Program.
Appellant was also placed on probation; ordered to attend counseling; prohibited
from having unsupervised contact with any juveniles, with the exception of his
sister; and not permitted to have unsupervised access to the Internet.
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{¶7} It is from this judgment that Appellant now brings this appeal, raising
the following five assignments of error for our review.
First Assignment of Error
The trier of fact erred by allowing the 10 year old victim to
testify because she was not competent.
Second Assignment of Error
The trial court erred when they failed to swear a witness in
properly, therefore allowing unsworn testimony which was used
to prove the elements of the State’s case.
Third Assignment of Error
The trial court erred when it did not suppress the Appellant’s
statements to police.
Fourth Assignment of Error
The Appellant’s right to due process was violated by trial
counsel’s ineffective methods and deficient performance.
Fifth Assignment of Error
The Appellant’s right to due process was violated by based on
the cumulative errors which occurred.
First Assignment of Error – Incompetent Child Witness
{¶8} Appellant asserts that the trial court erred when it failed to conduct an
examination to determine whether Rosie was competent to testify, even though
Appellant’s counsel had filed a motion requesting such a determination. Appellant
claims that there were allegedly “numerous indicators” that Rosie was mentally
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“slow.” Therefore, he submits that the trial court abused its discretion when it
denied the motion and when it found the child competent to testify.
{¶9} Evid.R. 601(A) provides that every person is competent to be a
witness except: (A) Those of unsound mind, and children under ten years of age,
who appear incapable of receiving just impressions of the facts and transactions
respecting which they are examined, or of relating them truly.” The Supreme
Court of Ohio has further explained:
A plain reading of Evid.R. 601(A) leads to the conclusion that the
competency of individuals ten years or older is presumed, while the
competency of those under ten must be established. State v. Wallace
(1988), 37 Ohio St.3d 87, 94, 524 N.E.2d 466, 472. “The rule favors
competency, conferring it even on those who do not benefit from the
presumption, such as children under ten, if they are shown to be
capable of receiving ‘just impressions of the facts and transactions
respecting which they are examined’ and capable of ‘relating them
truly.’ ” Turner v. Turner (1993), 67 Ohio St.3d 337, 343, 617
N.E.2d 1123, 1128. As a result, absent some articulable concern
otherwise, an individual who is at least ten years of age is per se
competent to testify.
State v. Clark, 71 Ohio St.3d 466, 469, 1994-Ohio-43. Because the trial court has
the opportunity to observe the child's appearance, manner of responding to
questions, general demeanor and ability to relate facts accurately and truthfully, its
determination will not be reversed absent an abuse of discretion. State v. McNeill,
83 Ohio St.3d 438, 442, 1998–Ohio–293.
{¶10} Furthermore, in Clark, the Ohio Supreme Court concluded that “[a]
trial judge, in the exercise of his or her discretion, may choose to conduct a voir-
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dire examination of a child witness who is ten years of age or older if the judge
has reason to question the child's competency. The decision not to voir dire a child
witness under such circumstances will be viewed under an abuse-of-discretion
standard. In such circumstances, absent a compelling reason to act otherwise, the
failure to conduct a voir-dire examination of a child witness who is ten years of
age or older at the time of trial will not constitute reversible error.” Clark, at
paragraph two of the syllabus.
{¶11} Rosie was ten years old at the time of the incident and eleven years
old when she testified at trial. Prior to the trial, the court denied defense counsel’s
motion to conduct a competency hearing on the child, stating that “[t]he child is
over the age of ten, presumed competent. There is nothing before the Court which
would suggest that she is not competent. If something arises during the course of
her testimony, that raises that issue in the Court’s mind, it will be explored, at that
time.” (Tr. pp. 1-2) Furthermore, even though there was a presumption that Rosie
was competent to testify, the trial judge did in fact question her as to her
understanding of her obligation to tell the truth. The record showed that Rosie
answered all of the questions during her testimony consistently and appropriately,
and it did not reflect any problems or issues that would have indicated she was not
competent.
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{¶12} Appellant attempts to allude, for the first time on appeal, that Rosie
was not mentally competent because of one comment made by Laura that Rosie
was “slow.” (Tr. p. 90). However, this issue was never raised in the trial court,
and there was nothing in the record to explain the meaning of Laura’s comment or
to indicate that Rosie was not competent. Furthermore, her testimony
demonstrated a complete understanding of everything that occurred.
{¶13} We find no abuse of discretion in the trial court’s finding that Rosie
was competent to testify. The first assignment of error is overruled.
Second Assignment of Error – Improper Swearing-in of Witness
{¶14} In the second assignment of error, Appellant contends that Rosie was
not properly sworn in prior to her testimony, pursuant to R.C. 2713.30. He argues
that as a result of this error, the trial court relied on unsworn testimony to convict
Appellant.
{¶15} Ohio Rule of Evidence 603 provides that “every witness shall be
required to declare that he will testify truthfully, by oath or affirmation
administered in a form calculated to awaken his conscience and impress his mind
with his duty to do so.” In State v. Frazier, 61 Ohio St.3d 247, 252 (1991), the
Supreme Court of Ohio specifically noted that Staff Note to Evid.R. 603 stated
“that no special verbal formula is required for either oath or affirmation and
further provides that ‘the rule is designed to afford flexibility in dealing with
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children, persons with mental defects, atheists, members of religions not willing to
swear an oath to God, to an extent not otherwise covered in Rule 610.’” Id.{¶16} Instead of administering the “traditional” oath to Rosie, an eleven-
year old child, the trial court made the following inquiry prior to her testimony:
Q: Rosie, you know what it means to tell the truth?
A: Yes, sir.
Q: Can you tell me what it means to tell the truth? Now you
don’t have to raise your hand yet, we will get there. You know what
it means to tell the truth?
A: Not to lie.
Q: Can you tell me what it means?
A: Like if I said, I stole something, that’s a lie.
Q: Okay. Everything you said, can you say that again for me
just a little bit louder?
A: If I said I stole something, that’s a lie.
Q: Is it good or bad to tell a lie?
A: Bad.
Q: What happens if you tell someone a lie?
A: Then, you might be in trouble.
Q: And you are how old?
A: Eleven
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Q: Do you promise everything you are going to say here is going
to be the truth?
A: Yes.
(Tr. pp. 93-94)
{¶17} Rosie was able to appropriately explain to the trial court the
difference between the truth and a lie, and that a lie is bad. The court specifically
asked Rosie if she promised everything she said was going to be the truth, and she
answered in the affirmative. The fact that she did not specifically raise her hand to
swear an oath does not make her testimony inadmissible. “An affirmation has the
same effect as an oath.” R.C. 3.20. Furthermore, even if the fact that the typical
oath was not administered was an error (which we do not find it was), Appellant’s
failure to object at the time would have precluded raising this issue on appeal. See
In re Butler, 3d Dist. No. 8-06-03, 2006-Ohio-4547, ¶ 6.
{¶18} The requirements of Evid.R. 603 were fully complied with when the
trial court questioned the child-victim and she promised she would tell the truth.
Appellant’s second assignment of error is overruled.
Third Assignment of Error – Failure to Suppress Statement to Police
{¶19} The third assignment of error asserts that the trial court erred when it
denied the motion to suppress Appellant’s statement to Investigator Rider.
Appellant argues that he should not have been questioned without discussing the
matter with a parent before he waived his Fifth Amendment Constitutional Rights.
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Appellant references several instances in Ohio law where juveniles are
afforded special protections or treated differently than adults, such as restrictions
on their ability to contract or marry without parental permission. He also cites to
several United States Supreme Court cases wherein the Court recognizes
differences between adults and juveniles in their level of maturity, sense of
responsibility, capacity to understand, and ability to exercise judgment. See, e.g.,
J.D.B. v. North Carolina, --- U.S. ---, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011).
{¶20} However, Appellant does not cite to any cases where either the
United States Supreme Court or any Ohio court has held that a teenager is required
to have a parent present before he or she may agree to speak with a police
investigator. The Ohio Supreme Court has previously declined to establish a
more rigorous standard with respect to juvenile defendants who are subjected to
custodial interrogation, stating that the “(f)act that [a] juvenile is subject to police
interrogation does not change nature of constitutional rights afforded to him.” In
re Watson, 47 Ohio St.3d 86, 89 (1989).
{¶21} In determining whether parental or guardian presence was required
for an effective waiver of Miranda, the Ohio Supreme Court has held that “‘[w]e
perceive no requirement in Miranda that the parents of a minor shall be read his
constitutional rights along with their child, and that, by extension, both parent and
child are required to intelligently waive those rights before the minor makes a
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statement.’” Id., quoting State v. Bell, 48 Ohio St.2d 270, 276–277 (1976),
reversed on other grounds, Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d
1010 (1978). See, also, Matter of Mabry, 3d Dist. No. 8-96-03, 1996 WL 668391(holding that parental presence as a prerequisite to the admission of a juvenile’s
custodial statement is not required.)
{¶22} “Juveniles are entitled both to protection against compulsory self-
incrimination under the Fifth Amendment and to Miranda warnings where
applicable.” In re K.W., 3d Dist. No. 9-08-57, 2009-Ohio-3152, ¶ 12, citing to In
re Gault, 387 U.S. 1, 54, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). “In deciding
whether a juvenile's confession is involuntarily induced, the court should consider
the totality of the circumstances, including the age, mentality and prior criminal
experience of the accused; the length, intensity, and frequency of interrogation;
and the existence of physical deprivation or inducement.” Watson at paragraph
one of the syllabus.
{¶23} Appellant’s counsel had moved to suppress the statement made to
Investigator Rider on the basis that Appellant had not knowingly and intelligently
waived his rights under Miranda. A hearing was held on the motion on September
2, 2010, at which Deputy Tedd McPheron, the deputy who picked up Appellant
and transferred him to the sheriff’s office, and Investigator Rider testified. The
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recording of the approximately hour long interview between Investigator Rider
and Appellant was also admitted. The trial court denied the motion.
{¶24} After reviewing the testimony at the suppression hearing and the
recording of the interview, we find no error in the trial court’s decision. The
record shows that there was no coercion, threats, or undue influence utilized with
Appellant. When Deputy McPheron arrived at Appellant’s home, there was no
adult present, so the Deputy had Appellant call his Father to obtain permission to
leave. The deputy explained that Appellant was not under arrest, but they did have
some questions that they wanted to ask Appellant at the station. He was not hand-
cuffed or restrained in any way, and sat in the front seat of the deputy’s vehicle.
{¶25} At the sheriff’s office, Investigator Rider did not apply any coercion
other than to encourage Appellant to tell the truth. Upon his arrival at the station,
Appellant was offered a soft drink as well as the opportunity to use the restroom.
Before he began any questioning, the investigator thoroughly explained
Appellant’s Miranda rights to him. He gave Appellant a written form with the
Miranda warnings broken down into five separate parts. Investigator Rider read
each part aloud to Appellant, explained it in simple terms, asked him if he
understood what each part meant, had him explain back to him what he understood
the meaning of each part to be, and had Appellant initial each sentence in addition
to signing the entire document. The Investigator made it very clear that it was
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Appellant’s choice whether or not he wanted to “talk about this” and whether or
not he wanted to proceed without an attorney. Appellant, who was just one month
away from his fifteenth birthday, told the investigator that he was a good student,
receiving mostly A’s and B’s in school, and that he planned to attend college. He
assured the investigator that he understood his rights and that all of his actions
were voluntary.
{¶26} Based on the totality of the circumstances, it was evident that the
Appellant understood everything that was occurring and that he voluntarily agreed
to speak with the investigator. There is no legal requirement that the presence of a
parent was necessary. Appellant’s third assignment of error is overruled.
Fourth Assignment of Error – Ineffective Assistance of Counsel
{¶27} In the fourth assignment of error, Appellant maintains that his trial
counsel’s performance was deficient and ineffective. Specifically, he claims
counsel was ineffective because: (1) counsel failed to submit written arguments in
support of his position after the hearing on the motion to suppress Appellant’s
statement to the investigator; (2) counsel failed to object to leading and suggestive
questioning of Rosie by the State; (3) counsel failed to object to the omission of
administration of the oath to Rosie; and, (4) counsel failed to confront Jordan as to
contradictions in the different version of events he gave.
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{¶28} To establish ineffective assistance of counsel, a defendant must show
(1) deficient performance by counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable
probability that but for counsel's errors, the proceeding's result would have been
different. Strickland v. Washington, 466 U.S. 668, 687–688, 694, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraphs
two and three of the syllabus. There is a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance, and that
strategy and tactical decisions exercised by defense counsel are well within the
range of professionally reasonable judgment and need not be analyzed by a
reviewing court. State v. Robinson, 108 Ohio App.3d 428 (3d Dist.1996).
{¶29} First, we do not find any error in the fact that counsel did not submit
a supporting memorandum to the trial court after the hearing on his motion to
suppress. Counsel’s original motion was extremely detailed and thorough, and
discussed literally dozens of the relevant state and federal cases concerning the
interrogation of juveniles, and he thoroughly cross-examined the State’s witnesses
at the suppression hearing. Defense counsel did not offer any witnesses at the
suppression hearing, stating instead that “we believe the tape will speak for itself.”
(Suppression Hearing Sept. 2, 2010 Tr., p. 47) The State, however, had not
previously offered any written response to Appellant’s counsels original motion,
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so its memorandum after the hearing was basically its reply to the legal arguments
that defense counsel had previously set forth. It would appear that Appellant’s
counsel had already made most arguments that were possible, especially since the
law and the facts were not in his favor (as discussed in response to the third
assignment of error, supra). Defense counsel vigorously pursued a thorough
defense of Appellant and filed numerous pre-trial motions on his behalf. We do
not find that his performance was deficient by the fact that he did not file this one
particular memorandum. Furthermore, Appellant has not indicated exactly what
arguments were left to be made or how he suffered any prejudice.
{¶30} Next, we do not find that defense counsel’s performance was
ineffective due to any failure to object to the State’s “leading” questions during
Rosie’s testimony. A review of the record shows that the State was merely
developing a child’s testimony on a very difficult and delicate topic, not
manipulating answers. Evid.R. 611(C) indicates that leading questions should not
be used on the direct examination of a witness, “except as may be necessary to
develop the witness' testimony.” Trial courts generally will allow leeway and
special accommodations in cases involving the testimony of young children,
especially those who are alleged victims of sexual abuse. See, e.g., State v.
Guttierez, 3d Dist. No. 5-10-14, 2011-Ohio-3126, ¶ 100; State v. Clemmons, 2nd
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Dist. No. 22247, 2009-Ohio-2066, ¶ 33; State v. Rector, 7th Dist. No. 01AP758,
2002–Ohio–7442, ¶ 28; State v. Miller, 44 Ohio App.3d 42, 45 (6th Dist.1988).
{¶31} The record showed that defense counsel objected diligently and
frequently during the testimony of most of the other witnesses. It certainly would
not have been good trial strategy to constantly interrupt the testimony of Rosie
with objections, especially objections that would likely have been overruled by the
trial court. “Trial counsel's failure to make objections, alone, does not establish
ineffective assistance of counsel, because this decision is generally viewed as trial
strategy.” State v. Turks, 3d Dist. Nos. 1-10-02, 1-10-26, 2010-Ohio-5944, ¶ 42,
citing State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 103.
{¶32} Next, Appellant claims that his counsel should have objected to the
fact that the trial court did not use the traditional swearing-in oath when it had
Rosie affirm that she would tell the truth. As our disposition of the second
assignment of error indicated, there was no error in the trial court’s methods, so
there was no reason for defense counsel to register an objection.
{¶33} And lastly, Appellant asserts that defense counsel failed to confront
witnesses, specifically Jordan. Again, the record shows that defense counsel
questioned Jordan appropriately regarding the events at issue in this case.
Jordan’s testimony was not particularly helpful to Appellant. Defense counsel’s
line of questioning attempted to imply that Jordan’s testimony was influenced by
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discussions with his family and the prosecutor. More aggressive questioning of
this twelve-year old boy could have either elicited more damaging testimony, or
come across as badgering a young witness.
{¶34} We find nothing in the record that would indicate defense counsel’s
performance was ineffective. Furthermore, Appellant has not shown that any of
counsel’s actions resulted in prejudice. Appellant’s fourth assignment of error is
overruled.
Fifth Assignment of Error – Cumulative Errors
{¶35} In the final assignment of error, Appellant claims that his right to a
fair trial was violated pursuant to the cumulative error doctrine, because the
existence of multiple errors resulted in an unfair trial. Appellate claims he was
prejudiced due to the cumulative effect of the following errors: trial counsel
repeatedly missed objections; the judge failed to swear in the alleged victim; trial
counsel failed to respond to requests for written arguments; the competency of the
alleged victim was questionable and should have been examined more closely on
the record; and trial counsel did not object to the State’s leading questioning of the
witnesses.
{¶36} Pursuant to the cumulative error doctrine, the existence of multiple
errors, which may not individually require reversal, may violate a defendant's right
to a fair trial. State v. Madrigal, 87 Ohio St.3d 378, 397, 2000–Ohio–448, citing
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State v. DeMarco, 31 Ohio St.3d 191, at paragraph two of the syllabus. To find
cumulative error, a court must first find multiple errors committed at trial and
determine that there is a reasonable probability that the outcome below would
have been different but for the combination of the harmless errors. State v.
Williams, Cuyahoga App. No. 94261, 2011–Ohio–591, ¶ 25.
{¶37} As discussed above, we did not find that there were any errors,
harmless or otherwise, in the assignments of error raised by Appellant. The
actions of trial counsel and the court did not constitute error, either individually or
cumulatively. Therefore, the fifth assignment of error is overruled.
{¶38} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and ROGERS, J.J., concur.
/jlr
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