State v. C.W. ( 2016 )

[Cite as State v. C.W., 2016-Ohio-1558.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellant : Appellate Case No. 26893
:
v. : Trial Court Case No. JC2015-3550
:
C.W. : (Appeal from Common Pleas Court-
: Juvenile Division)
Defendant-Appellee :
:
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OPINION
Rendered on the 15th day of April, 2016.
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MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellant
DEANNA DOGGETT JOHNSON, Atty. Reg. No. 0063528, 90 North West Street,
Bellbrook, Ohio 45305
Attorney for Defendant-Appellee
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WELBAUM, J.
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{¶ 1} In this case, Plaintiff-Appellant, the State of Ohio, appeals from a juvenile
court judgment denying the State’s motion to admit a minor’s out-of-court statement
pursuant to Evid.R. 807. The State contends that the trial court abused its discretion in
denying the motion because the State presented sufficient evidence to allow admission
of the minor’s statement.
{¶ 2} We conclude that the State failed to provide a prima facie showing of
independent proof of the act of physical violence. The trial court, therefore, did not err in
denying the State’s request to admit hearsay evidence under Evid.R. 807. Accordingly,
the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} In June 2015, the State filed a complaint in juvenile court alleging that
Defendant-Appellee, C.W., knowingly caused or attempted to cause harm to L.G. in
violation of R.C. 2903.13(A). The crime alleged was a misdemeanor of the first degree.
{¶ 4} The incident occurred at a day care center where C.W. had been employed
for three years. The alleged victim, L.G., was three years old at the time, and was
assigned to C.W.’s classroom. On April 21, 2015, when L.G.’s mother asked him how
day care had gone that day, L.G. stated that day care had been fine, but that C.W. had
slapped him. An investigation ensued, and the State subsequently filed its complaint for
Assault against C.W. in juvenile court.
{¶ 5} In August 2015, the trial court held a competency hearing, and concluded
that L.G. was incompetent to testify. The State then filed a motion to declare the alleged
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victim unavailable, and indicated that it intended to proceed under Evid.R. 807.
{¶ 6} On October 20, 2015, the trial court held a hearing, at which testimony was
taken from the child’s mother, B.W., and from C.S., the administrator of the day care. In
addition, the court viewed a video that had been taken of the classroom at the time of the
alleged incident. After admitting the video into evidence, the trial court denied the State’s
motion. Specifically, the court held that the State had failed to meet two of six
requirements for allowing the minor’s out-of-court statement: (1) demonstration of
physical violence; and (2) independent proof of the act of violence. The State then filed
a notice of appeal and a Crim.R. 12(K) certification, indicating that the appeal was not
being taken for purposes of delay, and that suppression of the State’s evidence had
rendered the State’s proof so weak that any reasonable possibility of effective prosecution
had been destroyed.
II. Alleged Abuse of Discretion
{¶ 7} The State’s sole assignment of error is as follows:
The Trial Court Abused Its Discretion When the Court Denied the
State’s Motion to Admit L.G.’s Out-of-Court Statement at Trial Under Evid.
R. 807.
{¶ 8} Under this assignment of error, the State contends that the trial court erred
in denying its motion because the State submitted sufficient evidence to meet all the
requirements of Evid.R. 807. Pursuant to Evid.R. 807(A), out-of-court statements made
by minors under 12 years of age at the time of trial, describing acts of “physical violence”
against the minor, can be admitted if the following requirements are met:
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(1) The court finds that the totality of the circumstances surrounding
the making of the statement provides particularized guarantees of
trustworthiness that make the statement at least as reliable as statements
admitted pursuant to Evid.R. 803 and 804. The circumstances must
establish that the child was particularly likely to be telling the truth when the
statement was made and that the test of cross-examination would add little
to the reliability of the statement. In making its determination of the
reliability of the statement, the court shall consider all of the circumstances
surrounding the making of the statement, including but not limited to
spontaneity, the internal consistency of the statement, the mental state of
the child, the child's motive or lack of motive to fabricate, the child's use of
terminology unexpected of a child of similar age, the means by which the
statement was elicited, and the lapse of time between the act and the
statement. In making this determination, the court shall not consider
whether there is independent proof of the sexual act or act of physical
violence.
(2) The child's testimony is not reasonably obtainable by the
proponent of the statement.
(3) There is independent proof of the sexual act or act of physical
violence.
(4) At least ten days before the trial or hearing, a proponent of the
statement has notified all other parties in writing of the content of the
statement, the time and place at which the statement was made, the identity
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of the witness who is to testify about the statement, and the circumstances
surrounding the statement that are claimed to indicate its trustworthiness.
{¶ 9} “[W]hen a court finds that a child is not competent to be a witness, her
testimony is ‘not reasonably obtainable’ pursuant to Evid.R. 807(B)(2).” (Citations
omitted.) State v. Cardosi, 122 Ohio App.3d 70, 75, 701 N.E.2d 44 (2d Dist.1997).
{¶ 10} In the case before us, L.G.’s unavailability due to the incompetency finding
was not disputed. However, the trial court held that all the requirements of Evid.R. 807
had not been established, because the State failed to provide sufficient evidence of two
factors: physical violence and independent corroborating evidence.
{¶ 11} The State contends that a slap sufficiently establishes physical violence for
purposes of Evid.R. 807. In addition, the State argues that the video presented
independent proof that C.W. slapped L.G. around the head. We review the trial court’s
decision for abuse of discretion. In re A.K., 2d Dist. Montgomery No. 26199, 2015-Ohio-
30, ¶ 16, citing State v. Dever, 64 Ohio St.3d 401, 414, 596 N.E.2d 436 (1992). (Other
citations omitted.) An abuse of discretion means that the trial court’s “attitude is
unreasonable, arbitrary or unconscionable.” (Citations omitted.) State v. Adams, 62
Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 12} The Staff Notes to Evid.R. 807 indicate that its independent proof
requirement “is comparable to the independent proof requirement of the co-conspirator
exception, Evid.R. 801(D)(2)(e),” and that “[t]he rule thus goes beyond the minimum
Confrontation Clause requirements prescribed in * * * [Idaho v. Wright, 497 U.S. 805, 110
S.Ct. 3139, 111 L.Ed.2d 638 (1990)], as is permitted by Wright.”
{¶ 13} Under Evid.R. 801(D)(2)(e), a co-conspirator’s statement is not admissible
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“until the proponent of the statement has made a prima facie showing of the existence of
the conspiracy by independent proof.” State v. Carter, 72 Ohio St.3d 545, 546, 651
N.E.2d 965 (1995), paragraph three of the syllabus. In Carter, the court held that the
defendant’s tape-recorded statement would have furnished sufficient independent proof
of a conspiracy to permit a hearsay statement to be admitted under this exception. Id.
at 550.
{¶ 14} A similar approach has been followed in situations involving Evid.R. 807.
For example, independent proof has been found where a defendant confessed to
corroborating facts. State v. Silverman, 121 Ohio St.3d 581, 2009-Ohio-1576, 906
N.E.2d 427, ¶ 29; State v. Cain, 12th Dist. Brown No. CA2010-06-012, 2011-Ohio-3759,
¶ 44. In sexual abuse cases, we have also held that independent proof of a child’s out-
of-court statements about sexual abuse can be found in “the onset of sexually
inappropriate and suggestive behavior [by the child] * * *.” A.K., 2d Dist. Montgomery
No. 26199, 2015-Ohio-30, at ¶ 29.
{¶ 15} In the case before us, the State offered a video of C.W.’s classroom on the
day in question as “independent proof” for admission of the hearsay. We have reviewed
the video several times. The video is of very poor quality, and there is no sound. It is
nearly impossible to even see the alleged victim, who was apparently on a cot at the lower
left-hand corner of the screen. The short video shows C.W. putting a cot down on the
floor in the upper part of the screen, placing a blanket over a child on another cot in the
same area, and then walking over to the area where L.G.’s cot was located. All that can
be seen at that point is C.W. bending quickly over the cot, and then straightening up to
obtain a bucket filled with some kind of liquid. After getting the bucket, C.W. proceeded
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to clean off one of the tables in the classroom.
{¶ 16} When C.W. bent over, any view of the alleged victim was completely
obscured, and, as we said, the video was of very poor quality. After C.W. walked away
to clean the table, very little can be seen of the alleged victim’s movements, due to the
lack of quality of the video. There was also no testimony at the hearing that L.G.’s mother
or anyone else observed any type of redness, scratch, or evidence of injury following the
alleged incident. As a result, there was simply insufficient corroborating evidence to
permit admission of the child’s out-of-court statement. In rejecting the State’s request,
the trial court specifically commented on the fact that evidence of the alleged abuse could
not be seen on the video. Transcript of Proceedings, p. 53. The court’s decision in this
regard was reasonable and was not an abuse of discretion.
{¶ 17} Because the State failed to prove an essential factor under Evid.R. 807, we
need not consider the trial court’s additional conclusion that a “slap” is not physical abuse,
other than to note that we have held in the past that “[a] slap or other physical contact
that results in temporary redness is sufficient to establish ‘physical harm’ under the
domestic-violence statute.” State v. Walters, 2d Dist. Montgomery No. 22977, 2010-
Ohio-304, ¶ 11, citing State v. Kellum, 12th Dist. Butler No. CA2009-03-081, 2009-Ohio-
6743, ¶ 15-16. We have also said that “a pain-inducing blow is sufficient to satisfy the
‘physical harm’ element of Assault.” State v. Hill, 2d Dist. Montgomery No. 20678, 2005-
Ohio-3701, ¶ 34. We stressed in Hill that we were “not prepared to hold that any
discomfort, however trivial, will satisfy the ‘physical harm’ element of Assault * * *.” Id.{¶ 18} There is simply no independent proof in this case that meets the standards
established under Evid.R. 807.
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{¶ 19} Based on the preceding discussion, the State’s sole assignment of error is
overruled.
III. Conclusion
{¶ 20} The State’s sole assignment of error having been overruled, the judgment
of the trial court is affirmed.
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DONOVAN, P.J. and FAIN, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Michele D. Phipps
DeAnna Doggett Johnson
Hon. Anthony Capizzi