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State v. Slaven

Court of Appeals of Ohio, Fifth District, Delaware

July 30, 2013

STATE OF OHIO, Plaintiff-Appellee
v.
ORAL D. SLAVEN, Defendant-Appellant

Criminal appeal from the Delaware County Court of Common Pleas, Case No. 09CR-I-03-0163

For Plaintiff-Appellee: CAROL HAMILTON O'BRIEN DOUGLAS DUMOLT

For Defendant-Appellant: WILLIAM CRAMER

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

OPINION

Gwin, P.J.

{¶1} Defendant-appellant Oral D. Slaven ("Slaven") appeals from the July 31, 2012 Judgment Entry of the Delaware County Court of Common Pleas convicting and sentencing him after a jury trial on six counts of rape with a child under the age of thirteen and three counts of gross sexual imposition with a child under the age of thirteen.

Facts and Procedural History

{¶2} In 2008, Slaven was charged with six counts of rape of a child under the age of thirteen in violation of R.C. 2907.02(A)(1)(b), and three counts of gross sexual imposition with a child under the age of thirteen in violation of R.C. 2907.05(A)(4). All nine of these counts related to Slaven's stepdaughter K.S. There was also a tenth count of rape of a child under ten in violation of R.C. 2907.02(A)(1)(b), which related to Slaven's son D.S.

{¶3} In August 2009, all ten charges were tried together before a jury. At that trial, both children testified about sexual abuse that allegedly occurred from 2005 to 2008. Additionally, a third witness testified over defense objection about an incident in 1996 when Slaven attempted to engage in sexual conduct with her. This witness was a neighbor of Slaven's and was almost thirteen years old at the time of the incident. After a multi-day trial, the first jury found Slaven guilty as charged. Slaven was sentenced to an aggregate term of 85 years to life and required to register as a Tier III sex offender.

{¶4} Slaven filed a direct appeal raising several assignments of error. This court reversed and remanded for a new trial, finding that the trial court committed prejudicial error by permitting the same jury to hear evidence about both children and the allegation from his former neighbor. See, State v. Slaven, 191 Ohio App.3d 340, 2010-Ohio-6400, 945 N.E.2d 1142(5th Dist. 2010). ["Slaven I"].

{¶5} On remand, a new judge was appointed and the tenth count relating to D.S. was severed. The charges relating to K.S. proceeded to a second jury trial in June 2012.

{¶6} K.S. initially disclosed the abuse to a friend at school. Following a referral from the school's principal, Job and Family Services ("JFS") intervened. Patty Clements of JFS testified that as part of her investigation, she interviewed K.S. at school and that K.S. had disclosed that Slaven had raped and fondled her.

{¶7} K.S. testified at trial that Slaven had sexually abused her from the time she started fourth grade. K.S. related numerous incidents of Slaven's sexually penetrating and fondling her, including an incident during which D.S. walked into the room and witnessed the encounter.

{¶8} Again, after a multi-day trial, the second jury found Slaven guilty as charged. Slaven was sentenced to an aggregate term of 58 years to life and again required to register as a Tier III sex offender. The prosecution subsequently dismissed the tenth count relating to D.S.

Assignments of Error

{¶9} Slaven raises four assignments of error,

{¶10} "I. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STATE AND FEDERAL CONSTITUTIONS WHEN COUNSEL FAILED TO IMPEACH THE MEDICAL TESTIMONY REGARDING INJURIES TO COMPLAINANT'S HYMEN.

{¶11} "II. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS WHEN THE TRIAL COURT EXCLUDED THE TESTIMONY OF A DEFENSE EXPERT ON CHILD SEXUAL ABUSE.

{¶12} "III. APPELLANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS WERE VIOLATED WHEN THE TRIAL COURT RESTRICTED THE USE OF EVIDENCE THAT THE COMPLAINANT HAD SEVERE PSYCHIATRIC PROBLEMS.

{¶13} "IV. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS BY THE CUMULATIVE EFFECT OF THE NUMEROUS ERRORS IN THIS CASE."

I.

{¶14} In his first assignment of error, Slaven argues that he was denied effective assistance of counsel. Specifically, Slaven contends defense counsel performed deficiently by failing to impeach Dr. Thackeray, who conducted the January 2008 examination of K.S., with medical testimony from the first trial.

{¶15} A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry in whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).

{¶16} In determining whether counsel's representation fell below an objective standard of reasonableness, judicial scrutiny of counsel's performance must be highly deferential. Bradley, 42 Ohio St.3d at 142. Because of the difficulties inherent in determining whether effective assistance of counsel was rendered in any given case, a strong presumption exists that counsel's conduct fell within the wide range of reasonable, professional assistance. Id.

{¶17} In order to warrant a reversal, the appellant must additionally show he was prejudiced by counsel's ineffectiveness. Prejudice warranting reversal must be such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694. A court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would "reasonably likely been different" absent the errors. Strickland, 466 U.S. 695, 696. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, supra; Bradley, supra.

{¶18} Dr. Thackeray, who conducted the January 2008 examination, testified for the prosecution at both trials. Dr. Scribano, who performed the March 2008 examination, only testified during the first trial. Dr. Scribano was unavailable to testify at the second trial because he had moved out of state.

{¶19} During the first trial, Dr. Thackeray testified that the January 14, 2008 examination of K.S. was normal. (5T. Aug. 12, 2009 at 727). Dr. Thackeray further testified that there was no "notch" present in K.S. hymen, or anywhere else. ( Id. at 727; 728). However, Dr. Thackeray was asked the significance of a notch in the hymen/vaginal area. He testified,

A notch, really it's of limited significance, and it really depends on the case, how much we can say about it. Notches can be small, they can be large, they can be new, they can be old. We see them in children with concerns of sexual abuse. We also see them in children with no concern of sexual abuse. Notches by itself really doesn't tell us anything, whether or not a child's been abused.
It's worth investigating further, looking into it. It doesn't tell me by itself that there's been trauma or injury.

(5T. Aug. 12, 2009 at 730).

{¶20} During the first trial Dr. Scribano who performed the March 2008 exam of K.S. testifed. He testifed that the exam of K.S. was essentially normal. He further testified,

There was an area that was highlighted by a nurse, and it was an area called the, called a notch. And those are areas that are typically identified but there is an uncertainty with regard to notches, as to whether to put them in the category of being diagnostic of penetration or nonspecific. And this was a notch that was non-specific. It just means depth of that notch, how deep this notch was.
Notches could be the result of penetrating trauma. We also know from the research looking at non-abused girls, that studies really scrutinize, they sort out to make sure they are not abused. We also see notches in that population as well. So, it doesn't tell us that this girl has been abused.
A deep notch, however, is a diagnosis, we don't see deep notches in kids not abused. That was not the finding here.

(4T. Aug. 11, 2009 at 579).

{¶21} Dr. Scribano testified that he reviewed the documentation of Dr. Thackeray's January 2008 examination of K.S. When asked if the notch he observed during his March 2008 examination was present in the January 2008 examination, Dr. Scribano testified,

It was because of the notches, in the way they were set, I wouldn't say that I could call it a notch at this point. And it's hard to say because of the maturity of the child because of puberty. The hymen has these kinds of, what's called fimbriated or fibriation margins. And it's sort of like a flower, like petals, you got to realize that, and then follow that through with a cotton tip applicator; that was the method Dr. Thackeray ...

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