State v. Chaney

{¶ 17} Because I disagree with the majority opinion's disposition of assignments of error one, two, and three, I must respectfully dissent. I am unable to conclude that there was error in the trial court's refusal to allow the defendant to ask the victim whether she had made any prior false allegations of rape under the circumstances presented by this case.

{¶ 18} The Ohio Supreme Court has held that "where an alleged rape victim admits on cross-examination that she has made a prior false rape accusation, the trial judge shall conduct an in camera hearing to ascertain whether sexual activity was involved and, as a result, [cross-examination on the accusation] would be prohibited by R.C. 2907.02(D), or whether the accusation was totally unfounded and therefore could be inquired into on cross-examination pursuant to Evid. R. 608(B)." State v. Boggs (1992),63 Ohio St.3d 418, 421-422, 588 N.E.2d 813. The Ohio Supreme Court has further stated, "When the defense seeks to cross-examine on prior false accusations of rape the burden is upon the defense to demonstrate that the accusations were totally false and unfounded." Id. at 423, 588 N.E.2d 813.

{¶ 19} In Boggs, the Ohio Supreme Court remanded the case with the following instructions:

In the present case, an in camera hearing was held but no inquiry was made as to the nature of the prior accusation, that is, whether the prior accusation was based on sexual activity or was totally unfounded. Since no testimony concerning the alleged prior false rape accusation was admitted, and none was received during the rape shield hearing conducted before trial, we cannot, on this record, determine whether the evidence offered by the defense was properly excluded as involving sexual activity and thus protected by the rape shield statute. Moreover, the trial judge must in the first instance determine whether the accused has met his burden of establishing that the victim's prior accusations were clearly unfounded. We therefore remand this case to the trial court to conduct an in camera hearing consistent with this opinion to make the necessary determinations.

Id. at 424, 588 N.E.2d 813.

{¶ 20} In the present case, the defense raised through a motion in limine the issue of whether Chaney could, at trial, ask the victim about prior false accusations. At the hearing on the motion in limine, the only information offered by the defense on the issue was a response provided by the prosecutor's office through continuing discovery to the defendant that the victim had changed an accusation she had made in another case against a different person. According to the prosecutor, the victim partially recanted her accusation made in another criminal trial by notifying the assistant prosecutor "that sexual conduct did not happen with [the defendant] but that sexual contact had occurred." No other evidence was offered by the defendant regarding any allegedly false accusations by the victim.

{¶ 21} However, under the Ohio Revised Code, sexual activity is defined as "sexual conduct or sexual contact, or both." R.C. 2907.01(C). Because the victim still maintained that sexual contact had occurred and because no other evidence was offered, the defendant failed to show that the victim made a totally false and unfounded accusation of sexual activity. Without showing that there existed a totally false prior accusation of sexual activity (and thus, that there had been no sexual activity), any further cross-examination of the victim about the prior accusation would have involved sexual-activity evidence that is barred under Ohio's Rape Shield Laws.

{¶ 22} While the trial court's procedure differed from the outlined procedure in Boggs, the difference occurred because the defense initially raised the issue of prior false accusations through a motion in limine rather than through the cross-examination of the victim. Here, the trial court resolved the issue through the motion in limine, and consequently, the in camera hearing required in Boggs had, essentially, already been held.

{¶ 23} The majority opinion also concludes that the prosecution "opened the door" to ask the question whether the victim had made a prior false accusation of rape.

{¶ 24} At trial, the prosecution had a transcript of a recorded telephone conversation between Chaney and the victim's mother, Esther, read to the jury. The transcript mentioned that two men, known as Dariano and Etherton, had sexually abused B.C. The prosecution also asked Esther a few questions regarding Dariano and Etherton. Esther testified that Etherton was serving a prison term. Chaney did not object to the questions when they were asked, but after the jury was dismissed for the day, the defense argued that the prosecution had "opened the door" to questions about the victim's past sexual abuse allegations.

{¶ 25} The trial court held that the prosecution "opened the door" for the defense to question Esther about prior sexual abuse allegations involving Dariano and Etherton. However, the trial court did not allow the defense to ask questions regarding the person whom the partially recanted sexual abuse allegation involved.

{¶ 26} I would hold that the trial court did not abuse its discretion in limiting the defense to asking Esther questions regarding Dariano and Etherton. Moreover, I do not believe that the prosecution "opened the door" to the question whether the victim had made a prior false allegation of sexual abuse when the evidence before the trial court demonstrated not that it was wholly false, but rather that the allegation still involved sexual activity of some nature.

{¶ 27} I would hold, therefore, that the trial court did not commit error by refusing to permit the defendant to ask the victim at trial the threshold question of whether she had made a prior false accusation because the issue had already been the subject of the trial court's review at the hearing on the motion in limine.