State v. Ferguson , 2011 Ohio 6801 ( 2011 )

[Cite as State v. Ferguson, 2011-Ohio-6801.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
: Appellate Case No. 2010-CA-1
Plaintiff-Appellee :
: Trial Court Case No. 08-CR-830
v. :
:
VONDA L. FERGUSON : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 30th day of December, 2011.
...........
DAVID W. PHILLIPS, Atty. Reg. #0019966, 221 West Fifth Street, Suite 333, Marysville,
Ohio 43040
Attorney for Plaintiff-Appellee
STEPHEN D. MARLOWE, Atty. Reg. #0072100, 8 South Third Street, Tipp City, Ohio
45371
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Vonda Ferguson appeals from her conviction and sentence for 32 crimes
against five of her children.
{¶ 2} Ferguson and her husband, James, adopted six children: Sherita (when she was
2
6 years old), Joseph (when he was 4 years old), Jermaine (as an infant), Valnita (as an infant),
Julius (as an infant), and Vivian (as an infant). The family lived in Clark County from 2000
until 2004, when they moved to Union County. In November 2004, Ferguson left a voicemail
message for one of the children’s therapists, canceling an appointment. After she left the
message, Ferguson can be heard threatening Jermaine: “‘You better get those knives out of the
sink before I stab you in the F’ing yellow chest.’” (Tr. 1628).1 (Ferguson apparently thought
that she had hung up the phone.) When the therapist listened to the message and heard the
threat, she immediately called the police. An investigation ensued, and the children were
removed from the Ferguson home. The state sought and, in 2005, the Fergusons relinquished
permanent custody of the children.
{¶ 3} Ferguson was charged with committing 32 crimes against all of the children
except Vivian–abuse, torture or cruel abuse, permitting abuse, excessive physical discipline,
repeated administration of unwarranted discipline, felonious assault, and rape. 2 All five
children testified at trial, as well as the physician experts and the psychological experts who
had evaluated the children. In November 2009, a jury found Ferguson guilty on all charges.3
The trial court sentenced her to a total of 65 years in prison. Ferguson timely appealed.
1
The voicemail message was played for the jury, but a transcript of it is not in the record. Quoted is
Jermaine’s testimony.
2
Ferguson was not alleged to have abused Vivian. James was indicted on 20 counts of endangering children,
5 counts of permitting child abuse, and 5 counts of felonious assault. (Clark County Case No. 07CR1011.) The case
was tried to a jury in April 2008, and the jury found James guilty of all but three counts. He was sentenced to 65
years in prison. We affirmed his conviction in State v. Ferguson, Clark App. No. 08CA0050, 2011-Ohio-4285.
3
5 counts of abusing a child, R.C. 2919.22(B)(1); 5 counts of torturing or cruelly abusing a child, R.C.
2919.22(B)(2); 5 counts of permitting child abuse, R.C. 2903.15(A); 5 counts of excessive physical discipline of a
child, R.C. 2919.22(B)(3); 5 counts of repeatedly administering unwarranted discipline, R.C. 2919.22(B)(4); 5
counts of felonious assault (serious physical harm), R.C. 2903.11(A)(1); and 2 counts of rape (force or threat
of force), R.C. 2907.02(A)(2).
3
{¶ 4} She now assigns four errors to the trial court. Ferguson alleges that the trial
court erred by allowing an expert witness to testify as to the veracity of Sherita’s statements.
Ferguson also alleges that the trial court erred by allowing the state to purposefully
discriminate against an otherwise qualified and unbiased prospective juror based on her race.
Ferguson further alleges that her convictions are against the manifest weight of the evidence.
She lastly alleges that the trial court erred by limiting her cross examination of Valnita. There
is no merit to any of these allegations, so we affirm.
I
{¶ 5} The children’s testimony of the abuse they suffered was very similar and was
corroborated by the testimony of two physician experts.
A. Joseph’s testimony
{¶ 6} Joseph was 17 years old when he testified. He told the jury that he was beaten
with a “white Honda belt,” an extension cord, and a duct-taped stick. Often, said Joseph,
James beat him at Ferguson’s direction and while she watched. Joseph testified that
sometimes Ferguson would beat him herself. He said that she would also beat him with an
orange bat. The beatings, said Joseph, often drew blood that would soak through his
underwear. Joseph told the jury that Ferguson also hit his fingernails and toenails with the
head of a hammer and hit him with the hammer’s claw, once chipping a front tooth. He further
testified that Ferguson used a clothes iron to burn him. If he soiled himself, said Joseph,
Ferguson made him wear his soiled underwear on his head and eat his own feces. She
withheld food from him, sometimes for one or two days at a time. Ferguson stuck a plunger
handle down his throat. Joseph also said that Ferguson had twice shoved the plunger handle
4
into his rectum. James, Joseph testified, would hold him upside down over a banister in their
home, and once stabbed him with a pen in his ribs, leaving a scar. Joseph described scars on
his left arm where he said Ferguson stabbed him with a steak knife and burned him with an
iron. During his testimony, Joseph stepped down from the stand and removed his shirt to show
the jury some of the scars on his upper body. Joseph further told the jury that Ferguson and
James duct-taped him to a chair. Jermanine, Julius, and Valnita testified that they saw Joseph
duct-taped to his bed.
{¶ 7} Joseph said that he often tried to run away but the police would always bring
him back, where he would get beaten more. Ferguson and James threatened to kill Joseph if he
told anyone about the abuse. Still, Joseph tried to tell police what was happening, but, said
Joseph, they never believed him.
B. Julius’s testimony
{¶ 8} Julius was 15 at the time of trial. He too testified that a “white Honda belt” and
duct-taped stick were used to beat him until he bled. Julius told the jury that he saw his sibling
beaten and bleeding too. He said that the beatings were a daily occurrence. Julius testified that
Ferguson sometimes withheld food from him. And she also made him wear his soiled
underwear on his head.
{¶ 9} Julius told the jury that Ferguson once broke his leg when she pulled him off
his bunk bed and his foot caught in the railing. At the hospital, said Julius, he lied to the
doctor about how the leg broke because he knew he would be in trouble if he told the truth.
{¶ 10} Julius admitted that, when the investigation began, he did not tell investigators
the truth about what was happening because he was afraid of going back and being punished
5
more severely. It was not until he was pretty sure that he was not going back that he opened up
about his experiences.
C. Valnita’s testimony
{¶ 11} Valnita was 14 when she testified. She, too, told the jury about daily beatings
with a duct-taped stick and a “white Honda belt.” She further testified that all of the children,
except the baby Vivian, were beaten bloody with the belt. Valnita said that Ferguson struck
her fingers with a hammer, breaking one of them. Valnita testified that Ferguson also burned
her with a curling iron. She said that, if she wet her bed, Ferguson put her in a hot-water bath,
which burned her, leaving scars. Valnita too said that, if anyone soiled his underwear, the
child would have to wear the underwear on his or her face. And she too was hung over the
banister. Ferguson sometimes also denied Valnita food. Valnita told the jury that once
Ferguson used the duct-taped stick to jab her thigh repeatedly, leaving a mark.
D. Sherita’s testimony
{¶ 12} Sherita was 19 years old when she testified at the trial. Sherita testified that she
too was beaten with James’s white leather belt. Like Joseph, Sherita described being beaten
with an orange bat. She was also beaten with a duct-taped stick. Sherita described one time
when she was stripped naked, duct taped to the coffee table, and beaten with the bat, stick, and
belt. Sherita told the jury that Ferguson would also hit her fingernails and toenails with a
hammer until the nails were bloody and eventually fell off. Ferguson also burned her with a
clothes iron and a curling iron. She said that James hung her, too, over the banister. Sherita
testified that she had to steal food because Ferguson did not always feed her. Like she did to
Valnita, Ferguson made Sherita sit in a tub of hot water, which left marks on her legs. And
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when Sherita would not stay in, Ferguson had James hold her head underwater.
{¶ 13} Sherita described to the jury how sore her throat was after Ferguson stuck a
plunger handle down it, like Ferguson did to Joseph. Sherita further testified that, like she did
to Joseph, Ferguson shoved the plunger handle into her rectum. Sherita also said that Ferguson
forced her to eat feces from Vivian’s dirty diaper.
E. Jermaine’s testimony
{¶ 14} Jermaine was 19 when he testified. Like all the others, Jermaine told the jury
that he was beaten daily with the “Honda belt” or a duct-taped stick, often until he bled.
Jermaine recounted that, while James beat them with the belt, Ferguson “would laugh and
mock us, our screams and stuff, like we were in pain.” (Tr. 1646). Jermaine described one
incident in which Ferguson stabbed him with the jagged end of the duct-taped stick, leaving a
scar. He testified that Ferguson hit his, and others’, toes with a hammer. He told the jury that,
although he was able to fend for himself, Ferguson sometimes denied Sherita and Joseph food.
{¶ 15} Jermaine admitted that, at first, he, like Julius, lied about what was going on in
their home. He admitted making up stories about his scars. Jermaine admitted that everything
he told an investigator during one interview was a lie. He explained that he was not sure what
was happening and he wanted to stay on his parents’ good side in case he went back. Only
after Ferguson and James relinquished their parental rights, when he knew there was no
chance of going back, did he feel comfortable opening up about the abuse.
F. Experts’ testimony
{¶ 16} Joseph, Valnita, and Jermaine were examined by Dr. Mary Sollinger
Applegate, qualified as an expert in pediatrics, and by Dr. Philip Scribano, also qualified as an
7
expert in pediatrics, as well as in child-abuse pediatrics. Dr. Scribano also examined Julius.
The examinations revealed scarring on each of the children’s thighs, backs, and buttocks that
was consistent with physical abuse.
{¶ 17} On Joseph, on his left arm, Dr. Scribano found a 1-inch scar, consistent with
Joseph’s explanation to the doctor that Fergson stabbed him there, and a burn mark, consistent
with Joseph’s explanation that Ferguson burned him with a clothes iron. Dr. Scribano also
found other burn marks on Joseph. He further found a scar on Joseph’s forehead that was
consistent with Joseph’s explanation that Ferguson hit him with a hammer’s claw. Dr.
Scribano found what he described as a “flap-like laceration scar”4 on Joseph’s chest, which
Joseph told the doctor came from being whipped with a belt. Dr. Scribano told the jury that
the scar and Joseph’s explanation were consistent.
{¶ 18} In his examination of Julius, Dr. Scribano found only one noteworthy item. He
found that Julius had a fairly significant leg-length discrepancy. Dr. Scribano said that such a
discrepancy does not commonly result from a broken leg. The doctor believed that the
discrepancy was likely the result of inadequate follow-up care. Scribano also found that Julius
had a moderate amount of eczema on his arms, legs, and chest.
{¶ 19} On Valnita, Dr. Scribano noted burn marks, which Valnita told him were
caused by Ferguson. He also found multiple scars on her left thigh, which she said were from
being whipped with a belt. Scribano testified that her explanation was consistent with the
marks. Dr. Applegate found burn scars on Valnita’s arm and dark marks on her thighs.
Applegate also found 20 or so spots of varying size on her back, from her shoulders down to
4
According to one expert, a “laceration” is a “[f]ancy name for a cut.” (Tr. 993).
8
her buttocks. Dr. Applegate told the jury that her “conclusion [from the spots] was that she
[Valnita] was the victim of child abuse.” (Tr. 1020). Based on her entire examination of
Valnita, Applegate concluded “that Valnita suffered repeated episodes of physical abuse.” (Tr.
1035-1036).
{¶ 20} Dr. Scribano and Dr. Applegate also found various burn and laceration scars on
Jermaine. Of note was a long laceration scar on his chest–10 centimeters long, based on a
picture that Dr. Applegate took of it with a ruler alongside. Applegate testified that she further
found 10-12 circular, raised lesions on Jermaine’s buttocks. Dr. Applegate told the jury that,
based on her examination, she concluded “that Jermaine had suffered from physical abuse.”
(Tr. 1011).
{¶ 21} Dr. Scribano said that, based on his examination of all four children, he made,
what he described as, a twofold diagnosis: “One is just a description of the findings, there
were multiple scars, burn scars, and laceration scars; and the scars were consistent with and
indicative with physical abuse. And that’s the second diagnosis.” (Tr. 1293).
{¶ 22} All of the abused children, except Sherita, were psychologically evaluated by
Dr. Jolie Brahms, a clinical and forensic psychologist, who was qualified as an expert in both
fields. Dr. Brahms testified that “[t]here was no Jermaine.” (Tr. 1728). Brahms continued, “He
was just repeating almost as if you were in the military and you were repeating what you were
told by your superiors. There’s that–that sense of him.” (Tr. 1728). Julius, said Brahms, had a
long history of depression and suicidal ideation, which persisted. Brahms testified that Julius
told him that he (Julius) thought often about killing himself. Concerning Valnita, Dr. Brahms
said that she needed to be placed in “[a]n environment in which she could develop age
9
appropriate behaviors and have age appropriate experiences that would enhance her
self-esteem.” (Tr. 1735). Finally, Dr. Brahms found that Joseph was perhaps the most
psychologically damaged. Just as there was no Jermaine, Brahms said that “there was no
Joseph.” (Tr. 1708). Brahms described her impression of Joseph this way: “There was a
robotic child, a shell of a child who spoke in hush tones, who was obedient, passive, fearful.”
(Tr. 1708-1709).
{¶ 23} Susanne Mitchell, a therapist and clinical counselor, who was qualified as an
expert in that area, testified about Sherita. Mitchell saw Sherita for roughly two-and-a-half
years, from 2002 until 2004. Mitchell testified that Sherita told her about the abuse, including
many of the incidents that the children themselves testified about. Mitchell told the jury that
after she assessed Sherita in 2002 she diagnosed her with reactive attachment disorder,
attention deficient hyperactivity disorder (ADHD), posttraumatic stress disorder, and
depressive disorder. Mitchell said that Sherita always told her that no one believed her claims
of abuse.
{¶ 24} The defense presented several witnesses, including two psychologists who
evaluated Sherita in 2000 and 2001. The defense presented no testimony that rebutted the
state’s experts’ psychological or physical evaluations of the children or the conclusions that
the experts drew from their evaluations.
II.
{¶ 25} In the first assignment of error, Ferguson alleges that the trial court erred by
allowing Susanne Mitchell to testify as to the veracity of Sherita’s statements. The Supreme
Court of Ohio prohibited this kind of testimony in State v. Boston (1989), 46 Ohio St.3d 108,
10
which held that “an expert may not testify as to the expert’s opinion of the veracity of the
statements of a child declarant.” Id. at 129. We have held that an expert witness may not give
an opinion as to the truth of a non-child victim’s accusations. State v. Miller (Jan. 26, 2001),
Montgomery App. No. 18102, citing Boston and State v. Stowers (1998), 81 Ohio St.3d 260.
Whether or not Mitchell’s testimony was improper, the trial court did not allow it, striking it
from the record and giving the jury a curative instruction.
{¶ 26} After Mitchell testified that she saw Sherita for roughly two-and-a-half years,
the prosecutor asked this (rather awkwardly worded) question:
{¶ 27} “Q. During that time frame, how would you perceive Sherita’s presenting to
you regarding these matters?
{¶ 28} “[DEFENSE COUNSEL]: I object, Judge.
{¶ 29} “THE COURT: Overruled.
{¶ 30} “THE WITNESS: Sherita remained entirely consistent in her claims about
being abused by the Fergusons. She never waivered [sic] on it. In fact, the incidents and the
things that she mentioned never changed. She also never changed in her concern and her
worries about her brother Joseph and the other children in the home. I think she was more
focused on Joseph because he was her biological brother and because she felt that he was
probably more of a target than the other children. Sherita was never–she was entirely
consistent.
{¶ 31} “BY [THE PROSECUTOR]:
{¶ 32} “Q. During that two and a half-year period, were there some times when she
had issues because she just wanted to be believed?
11
{¶ 33} “A. Sherita always stated she wasn’t believed; and when I let her know that I
believed her–
{¶ 34} “[DEFENSE COUNSEL]: I object, Judge.
{¶ 35} “THE COURT: Okay, ladies and gentlemen, witness cannot comment on the
veracity of another person that testified in this case. So I’m gonna ask this witness–you told
her that. Why did you tell her that? Was there a purpose in your treatment for you telling her
that?
{¶ 36} “THE WITNESS: (Nods head.) Yes.
{¶ 37} “THE COURT: Well, approach the bench, please.” (Emphasis added.) (Tr.
2630-2631).
{¶ 38} While the trial court thought that Mitchell’s testimony was an improper opinion
concerning Sherita’s veracity, we are not so sure. Mitchell was relating what she told Sherita;
Mitchell was not giving her opinion on anything.5 But we need not–and do not–decide this
issue because the trial court struck the testimony from the record.
{¶ 39} At the (mostly untranscribed) sidebar conference that followed the objection,
defense counsel moved for a mistrial. The next day, after hearing oral arguments, the trial
court overruled the motion. The trial resumed with Mitchell’s cross examination. But before
defense counsel began, the court said:
5
See the court’s response to defense counsel’s challenge to its finding that
Mitchell’s answer was unresponsive. The court pointed out that “[t]he question was
never asked [of] the social worker if, in fact, the social worker believed her, only
whether or not [there] were issues of believability.” (Tr. 2655). “When she went on to
say that she believed her,” the court continued, “that was not responsive to the
question.” Id.12
{¶ 40} “Before we continue with the testimony, I’m going to instruct the jury that it is
the function of the jury to determine the credibility and truth and veracity of the witnesses,
including any alleged victim.
{¶ 41} “The Prosecutor’s last question to Miss Mitchell and her response is being
stricken, and you are instructed that you cannot consider it for any purpose.” (Tr. 2677-2678).
{¶ 42} Ferguson suffered no prejudice from the (what we are assuming to be)
improper testimony. “Curative instructions have been recognized as an effective means of
remedying errors or irregularities which occur during trial.” Shesler v. Consol. Rail Corp., 151
Ohio App.3d 462, 2003-Ohio-320, at ¶151, citing State v. Zuern (1987), 32 Ohio St.3d 56. “A
trial jury is presumed to follow the instructions given to it by the judge.” State v. Henderson
(1988), 39 Ohio St.3d 24, 33, citing Parker v. Randolph (1979), 442 U.S. 62, 99 S.Ct. 2132,
60 L.Ed.2d 713. Here the trial court gave a curative instruction. Since no evidence suggests
otherwise, we presume that the jury followed the instruction.
{¶ 43} Other courts have concluded likewise in similar situations. In Shesler v.
Consol. Rail Corp., 151 Ohio App.3d 462, 2003-Ohio-320, the record showed that the trial
court instructed the jury to ignore certain testimony. The appellate court said that nothing in
the record suggested that the jury disregarded the instruction. Consequently the court
presumed that the jury properly disregarded the testimony and concluded that any error “was
remedied by the curative instruction provided by the lower court.” And in State v. Herring, 94
Ohio St.3d 246, 2002-Ohio-796, the defense moved for a mistrial, arguing that a witness’s
in-court identification of the defendant was improper. The trial court denied the motion, and
before the next witness was called, the court instructed the jury to disregard the identification
13
portion of the witness’s testimony. On appeal, the defendant contended that no instruction
could cure the prejudice of the witness’s identification. The Ohio Supreme Court rejected this
contention, saying that “jurors are generally presumed to follow the trial court’s instructions,
including instructions to disregard testimony.” Id. at 254.
{¶ 44} The first assignment of error is overruled.
III.
{¶ 45} In the second assignment of error, Ferguson alleges that the trial court erred by
allowing the state to exclude an otherwise qualified and unbiased prospective juror because
she is African American. It is unconstitutional for the state to exercise a peremptory challenge
in a way that purposefully discriminates by excluding a member of a minority group from
service on a jury. State v. Hernandez (1992), 63 Ohio St.3d 577, 581, citing Batson v.
Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. We conclude that the trial court
did not err when it found that the state did not purposefully discriminate.
{¶ 46} “[T]he trial court’s decision on the ultimate question of discriminatory intent
represents a finding of fact of the sort accorded great deference on appeal.” Hernandez v. New
York (1991), 500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395; see State v. Bryan, 101
Ohio St.3d 272, 2004-Ohio-971, at ¶109 (“The facts support the trial court’s decision.”); State
v. White, 85 Ohio St.3d 433, 437, 1999-Ohio-281 (“The facts in this case support the state’s
explanation.”). “The conclusion of the trial court that the state did not possess discriminatory
intent in the exercise of its peremptory challenges will not be reversed on appeal absent a
determination that it was clearly erroneous.” Hernandez, 63 Ohio St.3d, at 583, citing
Hernandez. “The trial court’s finding is entitled to deference, since it turns largely ‘on
14
evaluation of credibility.’” White, at 437, quoting Batson, at 98 n.21.
{¶ 47} “A court adjudicates a Batson claim in three steps. In step one, the opponent of
the peremptory challenge at issue must make a prima facie case that the proponent was
engaging in racial discrimination. In step two, the proponent must come forward with a
race-neutral explanation for the strike. In step three, the trial court must decide, on the basis of
all the circumstances, whether the opponent has proved racial discrimination.” State v.
Murphy (2001), 91 Ohio St.3d 516, 528, citing Purkett v. Elem (1995), 514 U.S. 765, 767-768,
115 S.Ct. 1769, 131 L.Ed.2d 834, and White, at 436. If the state voluntarily explains why it
challenged the prospective juror, the analysis may begin with the second step. Murphy, at 528.
See Hernandez, 500 U.S., at 359; Hernandez, 63 Ohio St.3d, at 583. Once the state proceeds
to explain its actions and the trial court addresses the ultimate question of discrimination, the
first step issue of whether prima facie discrimination was established is moot. White, supra.
{¶ 48} In step two, “‘[t]he prosecutor * * * must articulate a neutral explanation
related to the particular case to be tried.’” Hernandez, 63 Ohio St.3d, at 582, quoting
Hernandez. “‘[T]he prosecutor’s explanation need not rise to the level justifying exercise of a
challenge for cause.’” Id., quoting Hernandez. Here, the prosecutor used a peremptory
challenge to excuse prospective juror number four, an African-American woman. Defense
counsel asked for a Batson explanation. Without requiring defense counsel to establish a
prima-facie case of discrimination, the prosecutor immediately explained the challenge:
{¶ 49} “During her initial voir dire, she indicated that she had read the news reports
and felt that they were incredible and difficult to believe. When asked then later on if she had
an opinion about it, well then she said, ‘I honestly don’t have an opinion about it.’ And
15
emphasis on honestly which led me to believe she did have an opinion on it. And just
observing her with voir dire with defense counsel that–I had some notes here that I can’t read;
but primarily, Your Honor, because of her response during her initial voir dire.” (Tr. 755).
The judge accepted this explanation: “That would satisfy the explanation–that would be a
satisfactory explanation. She will be excused.” (Tr. 755).
{¶ 50} The trial court’s determination that the prosecutor did not purposefully
discriminate is not clearly erroneous. The prosecutor’s explanation for the challenge is
race-neutral and related to this particular case. While the explanation justifying the
prosecutor’s challenge would not support a challenge for cause, the explanation did not have
to. Batson, 476 U.S. at 97. Further, we note that an African-American did sit unchallenged on
the final jury.6 The Ohio Supreme Court has said that “[t]he presence of one or more black
persons on a jury certainly does not preclude a finding of discrimination, but ‘the fact may be
taken into account * * * as one that suggests that the government did not seek to rid the jury of
persons [of a particular] race.’” State v. White, 85 Ohio St.3d 433, 438, 1999-Ohio-281,
quoting U.S. v. Young-Bey (C.A.8, 1990), 893 F.2d 178, 180.
{¶ 51} Ferguson asserts that the prosecutor questioned African-American prospective
jurors about their answers on a juror questionnaire more forcefully than white prospective
jurors who answered the questionnaire similarly. It is true that “[a] facially neutral reason for a
strike may indicate discrimination, if the state uses it only to eliminate jurors of a particular
cognizable group.” Murphy, at 529, citing Coulter v. Gilmore (C.A.7, 1998), 155 F.3d 912,
6
It is immaterial that he was excused part way through the trial for health
reasons.
16
921. But we do not agree that the intensity of the prosecutor’s questioning correlated with
race. See id. (rejecting as unpersuasive the defendant’s argument that, if the prosecutor’s
stated concern was sincere, he would also have struck a prospective white juror).
{¶ 52} The second assignment of error is overruled.
IV.
{¶ 53} In the third assignment of error, Ferguson argues that her convictions are
against the manifest weight of the evidence. We disagree. Before a reviewing court may
reverse based on the weight of the evidence, the state must have presented legally sufficient
evidence to support conviction. State v. Thompkins, 78 Ohio St.3d 380, 388, 1997-Ohio-52,
quoting Tibbs v. Florida (1982), 457 U.S. 31, 42-43, 102 S.Ct. 2211, 72 L.Ed.2d 652. Given
that the evidence is adequate, the question in a weight-of-the-evidence review “concerns ‘the
inclination of the greater amount of credible evidence, offered in a trial, to support one side of
the issue rather than the other.’” (Emphasis sic.) Id. at 387. The focus therefore is on the
conflicting evidence. See id. (“When a court of appeals reverses a judgment of a trial court on
the basis that the verdict is against the weight of the evidence, the appellate court sits as a
‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.”),
quoting Tibbs, at 42. Based on the entire record, a reviewing court “weighs the evidence and
all reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.” Id.,
quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. Because “[t]he discretionary power
to grant a new trial should be exercised only in the exceptional case in which the evidence
17
weighs heavily against the conviction,” id., quoting Martin, at 175, reviewing courts are
reluctant to reverse based on the weight of the evidence.
{¶ 54} Ferguson contends that the children’s testimony should be accorded little, if
any, weight because, she says, their testimony conflicts in places with that of the experts and
because some of it is not corroborated by physical evidence.
A. Credibility of the victims
{¶ 55} Ferguson contends that the children’s claims of physical abuse should not be
believed because, she asserts, their description of one or two of their scars conflicts with the
experts’ descriptions. We disagree
{¶ 56} “The jury is the sole judge of the weight of the evidence and the credibility of
witnesses. It may believe or disbelieve any witness or accept part of what a witness says and
reject the rest.” State v. Antill (1964), 176 Ohio St. 61, 67. Although the reviewing court
considers witness credibility, “a decision by a factfinder as to which testimony to credit, and to
what extent, is a decision that is entitled to [] deference.” State v. Lawson (August 22, 1997),
Montgomery App. No. 16288. As we have said, “[t]his court will not arbitrarily substitute its
judgment for that of the trier of fact on the issue of witness credibility, and will not do so at all
unless it is patently apparent that the factfinder lost its way.” State v. Moshos (Oct. 10, 1997),
Greene App. No. 96-CA-140; In re C.M., Montgomery App. No. 21363, 2006-Ohio-3741, at
¶41. Ferguson cites conflicts between Joseph’s, Valnita’s, Jermaine’s, and Julius’s testimony
and that of experts. But we do not think that it is patently apparent that the jury should have
believed the experts over the victims.
1. Joseph’s testimony
18
{¶ 57} Joseph testified that he has a puncture-wound scar on his ribcage from a pen:
{¶ 58} “Q. Did you have any injuries on the front [of your body]?
{¶ 59} “A. Yes, well, I have one on my stomach from where James had stabbed me
with a pen.
{¶ 60} “Q. And does that leave a scar as well?
{¶ 61} “A. Yes.
{¶ 62} “Q. And where is that located, you don’t have to show us, just.
{¶ 63} “A. Right here (Indicating).
{¶ 64} “Q. Just indicating approximately mid rib cage?
{¶ 65} “A. Yeah, right there (Indicating).” (Tr. 1109-1110).
{¶ 66} The only scar on Joseph’s chest that Dr. Scribano described was a triangular
laceration scar, which Joseph told him was from being “whipped with a belt * * * by [his]
mother,” (Tr. 1275):
{¶ 67} “Q. * * * Doctor, what kind of–from examining that jurisdiction, was it a
puncture wound? Was it a contusion? What was it?
{¶ 68} “A. So, it was a healed laceration, so the skin actually was lifted up causing a
cut; but it’s a V-shaped cut, so that’s just being descriptive of the flap laceration. That’s what
we call that. The whipping is indicative of–of could be consistent and not uncommonly the
buckle is the part of the belt that is striking a child to cause these kinds of open wounds. * * *”
(Tr. 1276-1277).
{¶ 69} The testimony does not necessarily conflict. The jury could reasonably have
thought that Joseph and Scribano were talking about two entirely different injuries. Joseph
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does not say how big the scar is that he refers to or how visible it is. It is entirely possible that
Dr. Scribano did not think that it was noteworthy enough to mention. Or the prosecutor may
not have asked about the scar that Joseph was referring to.
2. Valnita’s testimony
{¶ 70} Ferguson asserts that Valnita testified that Ferguson stabbed her leg with a
stick, leaving a round scar, black in the middle:
{¶ 71} “Q. Do you have any other injury to your body other than marks?
{¶ 72} “* * *
{¶ 73} “A. Well, I don’t remember what I did, but Vonda took the stick with the duct
tape on it and she jammed it into my thigh and started twisting it around.
{¶ 74} “Q. And when it was twisted in your thigh, what happened to your thigh?
{¶ 75} “A. It got bloody. The mark is still there. It’s–
{¶ 76} “Q. What kind of mark? What does it look like, what kind of mark are you
talking about?
{¶ 77} “A. It’s kind of like a hole in my leg. It’s like round and it’s black in the
middle.” (Tr. 1497).
{¶ 78} But neither examining expert mentioned such a scar. In her examination of
Valnita, Dr. Applegate found two injuries on Valnita’s thighs. She described one as “[a]n
oblong circular area of dark discoloration on the top of the thigh,” (Tr. 1022):
{¶ 79} “Q. And approximate size?
{¶ 80} “A. An inch.
{¶ 81} “Q. And were you able to deduce what type of injury that is?
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{¶ 82} “A. That’s a bruise.
{¶ 83} “Q. A bruise? Are you able to deduce the approximate time of that injury?
{¶ 84} “A. Perhaps a week.” (Tr. 1022-1023).
{¶ 85} But Dr. Applegate also described a second injury on the back of Valnita’s right
thigh. She described it as “two circular, darkened areas, approximately 1 inch in diameter,”
(Tr. 1025):
{¶ 86} “Q. And what type of injury would cause such a mark?
{¶ 87} “A. These likely were the result of a contusion being hit with a solid, hard,
round object, an inch in diameter.
{¶ 88} “Q. From examining these marks on the back of her right thigh, were you able
to determine approximate time from your examination in November of ‘04 as to the time of
these injuries?
{¶ 89} “A. No, I’m unable to date them.” (Tr. 1025).
{¶ 90} Ferguson incorrectly asserts that Applegate described the round marks on
Valnita’s thighs as consistent with bruising, not stabbing. Dr. Applegate did not describe the
second set of marks as bruises, like the first. The jury could have found Applegate’s
description consistent with Valnita’s claim that Ferguson jabbed her thigh with a stick.
3. Jermaine’s testimony
{¶ 91} Ferguson asserts that Jermaine testified that he has a scar on his chest from
being repeatedly stabbed with a stick:
{¶ 92} “Q. And do you have scars on your body from being struck with [a] paddle?
{¶ 93} “A. From being struck.
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{¶ 94} “Q. Or with [a] stick?
{¶ 95} “A. Yes, one time my mom actually stabbed me. I have a scar right here on my
chest. She was beating me with a belt and the stick. It was late at night. We were supposed to
be cleaning. This is when we lived in Marysville. We were supposed to be cleaning up. It was
like 3 in the morning after church and we weren’t moving fast enough; and I remember I fell
like on top of this big white teddy bear and she began to take the jagged edge of the stick and
repeatedly stab me; and my scar is right here. It’s about this big.
{¶ 96} “* * *
{¶ 97} “Q. You showed that to the doctor at one point, right?
{¶ 98} “A. The doctor looked at it, yes. I didn’t show it.” (Tr. 1635-1636).
{¶ 99} Both Dr. Scribano and Dr. Applegate found a long scar on Jermaine’s chest.
They said that the scar was the result of a laceration, not a puncture. Dr. Applegate described a
scar running up the middle of Jermaine’s belly, “a little over 10 centimeters” long, (Tr. 994):
{¶ 100} “Q. * * * And looking at this mark on Jermaine Ferguson, were you
able to draw an opinion as to the cause or–I mean is it a laceration, contusion, what kind of
mark is it?
{¶ 101} “A. What he has is a scar called a keloid that is sustained by breaking
the skin’s surface. So it’s a form of healing; and it’s sharp, so we–it doesn’t have jagged edges
at all, so we actually do consider that to be a healed laceration.” (Tr. 993-994).
{¶ 102} It is not patently clear that the jury lost its way considering the above
testimony. Jermaine described Ferguson’s actions as stabbing. But his testimony about the
scar–“It’s about this big”–suggests a long laceration scar. Jermaine did not say that his scar is
22
the result of a puncture wound. The jury could reasonably have believed that the stabbing
action did not cause the stick to puncture Jermaine’s skin in a single place but was rather
dragged along the skin leaving the superficial laceration described by the experts and
suggested by Jermaine’s testimony.
4. Julius’s testimony
{¶ 103} Finally, Ferguson asserts that Julius testified that he has scars on his
thighs and buttocks from beatings but Dr. Scribano did not mention any scars in those
locations consistent with beatings. This was Julius’s testimony:
{¶ 104} “Q. Julius, as a result of being struck, do you have any marks on your
body where you were hit?
{¶ 105} “A. Yes.
{¶ 106} “Q. And are they there today?
{¶ 107} “A. Yes.
{¶ 108} “Q. Can you tell the jury where they are, please?
{¶ 109} “A. They are on the back of my thighs and on my behinds.
{¶ 110} “Q. How have the scars–you’ve seen these scars?
{¶ 111} “A. Yes.
{¶ 112} “Q. How have they–what’s happened to them over the years since
you’ve left the Ferguson home?
{¶ 113} “A. They’ve continued, as I grow, they stretch and it makes it–it’s–they
just stretch. They’re still there.” (Tr. 1359).
{¶ 114} Dr. Scribano did not specifically mention scars on Julius’s thighs and
23
behind. When the prosecutor asked Scribano if he recalled identifying any other marks or scars
on Julius’s body, he answered, “The only findings were that he had a skin problem, he had
eczema that was pretty diffusely dry on his arms, legs, and on his chest. They were scaly, so
just a moderate degree of eczema.” (Tr. 1289).
{¶ 115} But Dr. Scribano did say that his examination of the four children
revealed scarring on each of the children’s thighs, backs, and buttocks that was consistent with
physical abuse. The jury could reasonably have thought that Scribano was noting only
particularly noteworthy findings that were in addition to the scars and bruises that he found on
all the children.
B. Corroborating physical evidence
{¶ 116} Ferguson contends that no physical evidence corroborates Joseph’s and
Sherita’s claim that she shoved a plunger handle into their rectums or corroborates Joseph’s
testimony that he was hit in the teeth with a hammer. Ferguson is correct, but such
corroboration is unnecessary in this case.
{¶ 117} Ferguson cites the rule from this court’s opinion in In re C.M.,
Montgomery App. No. 21363, 2006-Ohio-3741: “Where the State’s case is so heavily
dependent on the credibility of a child victim, the record should minimally demonstrate the
child is not only credible, but competent.” Id. at ¶41. The C.M. opinion noted that “[t]he fact
finder’s burden to assess the credibility of a young child is particularly important and arduous
in sex abuse cases like this one, where the lack of physical evidence and eyewitness testimony
necessitates a credibility contest.” Id. at ¶44. In that case, the victim was 5 years old when he
testified in support of a rape charge. This court found that the victim’s testimony lacked
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overall coherence. This court further found that there was a lack of substantial credible
evidence and a complete lack of physical evidence. Moreover, in that case, there was no expert
testimony that the child’s behavior was consistent with abuse.
{¶ 118} But the rule from In re C.M. does not apply here because the same
concerns about the victim’s testimony there do not arise here. Here, at the time of trial, none
of the children was young–all were teenagers. Moreover, each child’s testimony was coherent,
and together their testimony was consistent. Finally, psychological experts, who had examined
the children, testified that their behavior was consistent with abuse.
{¶ 119} The third assignment of error is overruled.
V.
{¶ 120} In the fourth assignment of error, Ferguson alleges that the trial court
erred by limiting defense counsel’s cross examination of Valnita. Specifically, Ferguson
points to the court’s decision not to allow counsel to ask her about specific instances when she
allegedly lied. We find no error.
{¶ 121} During defense counsel’s cross examination of Valnita, the following
exchange occurred:
{¶ 122} “Q. Val, do you tell lies?
{¶ 123} “A. Yes.
{¶ 124} “Q Do you tell lies often?
{¶ 125} “A. No.
{¶ 126} “Q. You understand when you’re put on the stand and raise your right
hand and put under oath, it’s an oath to tell the truth, right?
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{¶ 127} “A. Yeah.
{¶ 128} “Q. Do you remember when you stayed with Paulette Robinson, one of
your former foster mothers?
{¶ 129} “A. Yes.
{¶ 130} “Q. Do you remember telling Miss Robinson?
{¶ 131} “[PROSECUTOR]: Object, Your Honor.” (Tr. 1531-1532).
{¶ 132} The judge asked counsel to approach the bench:
{¶ 133} “THE COURT: What is the prior statement you’re trying to get?
{¶ 134} “[DEFENSE COUNSEL]: I was just gonna ask her if she remembered
telling Miss Robinson, and I’ve got four or five different events, and ask her if she recalls
what she said and what she did say.
{¶ 135} “THE COURT: Are these questions she’s already answered on
examination?
{¶ 136} “[DEFENSE COUNSEL]: No.
{¶ 137} “THE COURT: Then you have to put them into present tense first. Are
you gonna say, ‘Did you tell Miss Robinson?’ You have to ask her the question about X and if
she doesn’t, if she says something different than she told Miss Robinson, then ask her about
Miss Robinson.
{¶ 138} “* * *
{¶ 139} “THE COURT: Prior specific incidents she’s already testified that she
has lied, so I will–I will sustain the objection. You can’t go into the prior specific incidents of
her lying. She’s already testified that she lies or has lied.” (Tr. 1532-1534).
26
{¶ 140} The trial court’s ruling appears to rest on the fact that, because Valnita
admitted that she has lied, specific instances of lying need not be inquired into. Had she
denied lying, the court probably would have allowed the inquiry. See (Tr. 1537).7
{¶ 141} Defense counsel described six instances of alleged lying that he wanted
to ask Valnita about:
{¶ 142} “[Valnita] told Paulette Robinson that she won $20 playing bingo. She
put the $20 on her lunch account at school. She went to buy the lunch, and there was no
money on the account; and the truth of the matter is that she found $20 at home in the washer.
She never put it on her lunch account.” (Tr. 1535).
{¶ 143} “She told Miss Robinson she got kicked off the basketball team for
getting in trouble in a fight with the other players, and the truth is she never was on the
basketball team and the coach doesn’t know who she is.” (Tr. 1535).
{¶ 144} “She went to school and told her friends at school she had a baby. She
even showed her friends at school a picture of the baby. The truth is she never had a baby.”
(Tr. 1535).
{¶ 145} “She lied about using Paulette’s decorative towels.” (Tr. 1535).
{¶ 146} “She lied about saying she was never fed or not fed by the baby-sitter
when that, in fact, was not true.” (Tr. 1535).
{¶ 147} “She says she was harassed by a guest in Paulette’s home. That also was
7
“[DEFENSE COUNSEL]: * * * [W]e * * * have a witness to testify about all these lies that she [Valnita] told Miss Robinson. We
rd
subpoenaed her. She did show up here on November the 3 and she was ordered to come back in court. So the person that she told these
things to also testify in this case [sic], and I think that’s clearly probative.
27
not true.” (Tr. 1535-1536).
{¶ 148} Ferguson argues that by preventing counsel from asking about these
instances the trial court abused its discretion under Evid.R. 608 and violated two provisions in
the Sixth Amendment to the U.S. Constitution.
A. Evidence Rule 608
{¶ 149} Evid.R. 608(B) states when specific instances of a witness’s conduct
may be admitted to attack or support the witness’s veracity:
{¶ 150} “Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’s character for truthfulness * * * may * * *, in the
discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into
on cross-examination of the witness * * * concerning the witness’s character for truthfulness
or untruthfulness * * *.”
{¶ 151} The Supreme Court of Ohio has said that “[c]ross-examination of a
witness is a matter of right, but the ‘extent of cross-examination with respect to an appropriate
subject of inquiry is within the sound discretion of the trial court.’” State v. Green (1993), 66
Ohio St.3d 141, 147, quoting Alford v. United States (1931), 282 U.S. 687, 691, 51 S.Ct. 218,
75 L.Ed. 624. “A trial court abuses its discretion when it unduly limits cross-examination of
the victim, on an issue affecting credibility, when the victim’s testimony is vital to the state’s
case.” State v. Carlson (1986), 31 Ohio App.3d 72, 73, citing State v. Ferguson (1983), 5
Ohio St.3d 160, 166.
{¶ 152} Here, the trial court’s decision to exclude specific-instance evidence
“THE COURT: If it’s an issue. But she’s already testified that she lies.” (Tr. 1537).
28
was not an abuse of its discretion. These alleged instances of lying are entirely unrelated to the
issues in this case. Furthermore, it is not at all clear that these specific lies are probative of
Valnita’s untruthfulness about the abuse she described.
B. The Sixth Amendment
{¶ 153} The Sixth Amendment to the U.S. Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the
witnesses against him * * * and to have the Assistance of Counsel for his defence.” Ferguson
contends that the trial court violated both of these provisions.
{¶ 154} Generally, “the Confrontation Clause guarantees the defendant a
face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa (1988),
487 U.S. 1012, 1016, 108 S.Ct. 2798, 101 L.Ed.2d 857. But the U.S. Supreme Court has said
that “[c]onfrontation means more than being allowed to confront the witness physically.” The
Court has held that “‘a primary interest secured by it [the Confrontation Clause] is the right of
cross-examination.’” Davis v. Alaska (1974), 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d
347, quoting Douglas v. Alabama (1965), 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934.
Here, by preventing defense counsel from asking about these six collateral instances
of alleged prevarication, the trial court did not so limit the cross examination that Ferguson’s
right was infringed.
{¶ 155} Ferguson further contends that, by curtailing defense counsel’s cross
examination, the trial court violated her right to representation by counsel and her right to
effective assistance of counsel. Ferguson asserts that the trial court violated her right to
counsel by leaving her without counsel capable of performing the critical function of cross
29
examination. The “right [to counsel] was designed to assure fairness in the adversary criminal
process [because] * * * an unaided layman may have little skill in arguing the law or in coping
with an intricate procedural system.” Wheat v. U.S. (1988), 486 U.S. 153, 158, 108 S.Ct. 1692,
100 L.Ed.2d 140. Accordingly, “in evaluating Sixth Amendment claims, ‘the appropriate
inquiry focuses on the adversarial process.’” Id. at 159, quoting U.S. v. Cronic (1984), 466
U.S. 648, 657, n.21, 104 S.Ct. 2039, 80 L.Ed.2d 657. The trial court’s exclusion here does not
at all intrude upon the adversarial process. Ferguson states in her brief that her ineffectiveness
claim is based on the trial court’s ruling, “not [on] * * * any error or misjudgment attributable
to defense counsel.” Brief of Appellant, p.24. “[T]he right to counsel is the right to the
effective assistance of counsel.” McMann v. Richardson (1970), 397 U.S. 759, 771 n.14, 90
S.Ct. 1441, 25 L.Ed.2d 763. To show that this latter right was violated, a defendant must show
that “counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington (1984), 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. Because counsel’s representation is not the
basis of this ineffectiveness claim, it must be rejected.
{¶ 156} The fourth assignment of error is overruled.
{¶ 157} We have overruled each assignment of error presented. Therefore the
judgment of the trial court is affirmed.
.............
DONOVAN and FROELICH, JJ., concur.
Copies mailed to:
David W. Phillips
Stephen D. Marlowe
30
Hon. Richard J. O’Neill