Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-1200674
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael J. Trapp, for Defendant-Appellant.
(¶1} In one assignment of error, defendant-appellant Thurmell Maley challenges her conviction for felonious assault. She argues that the trial court erred when it allowed the victim to remain in the courtroom in spite of the fact that she had requested a separation of witnesses. We disagree. The Ohio Constitution, the Revised Code, and the Rules of Evidence allow a victim to be present during a criminal proceeding, and the trial court did not err when it allowed the victim to be present in this case.
Victim Allowed to Remain in Courtroom
(¶2} At trial, Maley asked the trial court to issue an order to separate the witnesses. She argued that having both the investigating officer and the victim of the offense in the courtroom during the entire trial would be a violation of her constitutional right to a fair trial. She feared that the victim would be able to hear other testimony and tailor his version to the accounts presented to the trial court. The trial court issued a separation order as to all other witnesses, but allowed the victim to remain in the courtroom pursuant to R.C. 2930.09 and Evid.R. 615. The trial court determined that Maley had failed to show a fair trial required the exclusion of the victim. Maley was found guilty of felonious assault and sentenced to a four-year prison term.
Standard of Review
(¶3} Maley asserts that the issue raised under her assignment of error is a question of law requiring a de novo review. But the decision to allow a victim to remain in the courtroom during a trial is left to the discretion of the trial court. See State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.3d 1173, ¶ 96. A trial court only abuses its discretion when its decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-58, 404 N.E.2d 144 (1980).
The Victim's Right to be Present
(¶4} The Ohio Constitution was amended in 1994 to explicitly provide for the rights of victims of crimes. The relevant section reads:
Victims of criminal offenses shall be accorded fairness, dignity, and respect in the criminal justice process, and, as the General Assembly shall define and provide by law, shall be accorded rights to reasonable and appropriate notice, information, access, and protection and to a meaningful role in the criminal justice process.
(Emphasis added.) Ohio Constitution, Article I, Section 10a. As part of the legislation designed to carry out the mandate in that amendment, the General Assembly enacted R.C. 2930.09, which provides:
[a] victim in a case may be present whenever the defendant or alleged juvenile offender in the case is present during any stage of the case against the defendant or alleged juvenile offender that is conducted on the record, other than a grand jury proceeding, unless the court determines that exclusion of the victim is necessary to ...