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State v. McDowell

Court of Appeals of Ohio, Third District, Hancock

December 26, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
KYLE MCDOWELL, DEFENDANT-APPELLANT.

         Appeal from Hancock County Common Pleas Court General Division and Juvenile Division Trial Court No. 2016-CR-00062

          Deborah K. Rump for Appellant

          Brian S. Deckert and Micah R. Ault for Appellee

          OPINION

          WILLAMOWSKI, J.

         {¶1} Defendant-appellant Kyle McDowell ("McDowell") appeals the judgment of the Juvenile Division of the Hancock County Court of Common Pleas ("Juvenile Division") for relinquishing jurisdiction over his case. He also appeals the judgment of the General Division of the Hancock County Court of Common Pleas ("General Division") for (1) holding that the rape shield statute prohibited the testimony of the victim's prior boyfriend; (2) failing to grant a mistrial after the State elicited testimony that indicated he exercised his Fifth Amendment right to remain silent; and (3) failing to admit extrinsic evidence under Evid.R. 616(A) that showed the victim had a motivation to lie in her testimony. For the reasons set forth below, the judgment of the lower court is affirmed.

         Facts and Procedural History

         {¶2} On October 13, 2014, HB reported that she had been raped by McDowell on October 11, 2014. Trial Tr. 296-298. HB and McDowell had both attended the same high school and had known each other for some time. Id. at 413, 417. On the evening of October 11, 2014, McDowell was house sitting for his neighbors and invited HB to come visit with him at his neighbor's house. Id. at 744. HB arrived at the house where McDowell was at around 11:40 p.m. and planned to stay for about ten minutes. Id. at 421. After being there a short time, HB stated that she intended to leave. Id. at 421. HB testified at trial that McDowell would not allow her to leave. Id. at 423. She testified that McDowell then forced her into a bedroom, held her down, and raped her. Id. at 423, 424-427. HB said that she left the house and went home immediately after McDowell released her. Id. at 427. At the time of this incident, HB was sixteen years old, and McDowell was seventeen years old. Id. at 412. Doc. 4. On October 12, 2014, McDowell sent HB a series of text messages. Ex. 36-51. These texts indicated he felt remorse for some unspecified reason and had a desire to speak with HB sometime in the near future. Id.

         {¶3} On the morning of October 13, 2014, HB told her mother what had happened. Trial Tr. 461. At this point, HB and her mother went to the hospital where HB was examined and evidence was collected. Id. at 462, 464-465. The examining nurse determined that HB had bruising on her hands, forearms, and cervix. Id. at 566, 569. The nurse interpreted these bruises to be consistent with rough sexual activity. Id. . at 569, 571. Probable Cause Hearing Tr. 13. On October 31, 2014, the Juvenile Division had a hearing on a civil protection order and, as a result, chose to issue a civil protection order. Doc. 62. Amenability Hearing Tr. 10-11, 21. After a police investigation, a criminal complaint was filed with the Juvenile Division of the Hancock County Court of Common Pleas on June 22, 2015. Doc. 4.

         {¶4} However, on September 2, 2015, the State filed a motion that requested the Juvenile Division relinquish jurisdiction over this case and transfer this matter to the General Division. Doc. 4. On September 30, 2015, the Juvenile Division held a probable cause hearing to examine the facts of this case. Probable Cause Hearing Tr. 1. After it determined that probable cause existed, the Juvenile Division then held an amenability hearing on January 19, 2016. Doc. 4. At both of these hearings, McDowell opposed the motion to relinquish jurisdiction on the grounds that he was amenable to rehabilitation and had complied with the terms of the civil protection order that had been issued by the trial court fifteen months prior to the hearing. Amenability Hearing Tr. 21.

         {¶5} On February 3, 2016, the Juvenile Division granted the motion and ordered a discretionary transfer of this case to the General Division. Doc. 4. On March 22, 2016, an indictment was filed with the General Division, charging McDowell with three counts of rape in violation of R.C. 2907.02(A)(2); one count of gross sexual imposition in violation of R.C. 2907.05(A)(1); and one count of kidnapping with a sexual motivation in violation of R.C. 2905.01(A)(4). Doc. 1. On March 30, 2016, McDowell was released on his own recognizance. Doc. 7. The record does not contain evidence that suggests McDowell violated the terms of his release while his case was pending.

         {¶6} On August 24, 2016, McDowell submitted the Defense's list of witnesses. Doc. 40. This list included Isaac Burnett ("Isaac"), who had been HB's boyfriend prior to the incident in this case, and Isaac's sister, Olivia Burnett. Doc. 40. On September 1, 2016, the State filed a motion to exclude evidence that would discuss HB's prior sexual history in violation of R.C. 2907.02(D). Doc. 42. On October 13, 2016, the Defense filed a motion that requested a hearing pursuant to 2907.02(E) to determine the admissibility of evidence under the rape shield statute. Doc. 49. On November 7, 2016, the General Division granted the State's motion to exclude the evidence that involved aspects of HB's prior sexual history. Doc. 71.

         {¶7} Trial began on November 14, 2016. Doc. 133. At trial, the State called Detective Lyle E. Harvitt ("Harvitt") as a witness during its case-in-chief. Trial Tr. at 669. During his testimony, the following exchange occurred between the prosecutor and Harvitt:

Q: Did you ever make any determination to try to find out whether or not Kyle McDowell had any type of injury that could have affected his mobility in 2014?
A. I did make an attempt to talk to him but apparently he opted not to.

Id. at 695. At this time, the Defense moved for a mistrial, claiming that this line of questioning violated McDowell's Fifth Amendment rights. Id. The trial court overruled the Defense's motion for a mistrial. However, the trial court did issue a curative instruction to the jurors, explaining that they were not to infer guilt or innocence on the basis of whether McDowell chose to remain silent. Id. at 696-698.

         {¶8} HB also testified during the prosecution's case-in-chief. On cross-examination, the Defense sought to ask questions about HB's relationship with her mother and whether HB feared discipline from her mother for her actions. Id. at 515. The State objected to this line of questioning. Id. at 515. In response, the Defense argued that this information was relevant because it demonstrated that HB may have been motivated to blame McDowell for this incident by fear of discipline from her mother. Id. at 516-517. The trial court admitted portions of this evidence but sustained several objections made by the prosecution, excluding certain elements of this line of questioning. Id. at 521-530. During its case-in-chief, the Defense called a number of witnesses, including Isaac and Isaac's sister. At trial, portions of Isaac's testimony regarding his prior relationship with HB were excluded after the trial court sustained two objections made by the prosecution. Id. at 832-835.

         {¶9} On November 18, 2016, the jury found McDowell guilty of all counts charged. Doc. 83-88. The trial court sentenced McDowell on December 28, 2016. Doc. 104. McDowell filed his notice of appeal on January 11, 2017. Doc. 122. On appeal, he raises the following four assignments of error:

First Assignment of Error
The Juvenile Division abused its discretion and committed errors of law in granting the state's motion to relinquish jurisdiction. Further, McDowell's right to due process of law both under the Ohio and United States Constitutions was violated. It took the Juvenile Division 16 months to order the transfer and then based the transfer on the premise that there was not enough time in which to successfully complete rehabilitation. The Juvenile Division rejected the Court Diagnostic report that concluded there was sufficient time to rehabilitate him within the Juvenile system. During the pendency of the proceedings, the Juvenile Division did not order counseling as a condition of bond or the CPO. As such, his right to a speedy trial was also violated and caused him great harm in violation of the 6th Amendment of the
United States Constitution and Art. I, § 10 of the Ohio Constitution.
Second Assignment of Error
The trial court erred when it held the Rape Shield law prohibited testimony by the complaining victim's boyfriend that he had rough sex with her less 24 hours before the charged rape and that he was responsible for the bruising on her arm.
Third Assignment of Error
The trial court erred and abused its discretion when it did not grant a mistrial after the state elicited testimony that McDowell exercised his right to remain silent and would not speak with police.
Fourth Assignment of Error
The trial court erred because it abused its discretion and failed to properly apply the law by not admitting considerable extrinsic evidence pursuant to Evid.R. 616(A) that the complaining victim had a motive to lie in order to avoid being physically disciplined by her mother.

         For the sake of analytical clarity, we will consider the first and third assignments of error before we consider the second and fourth assignments of error.

         First Assignment of Error

         {¶10} In his first assignment of error, McDowell argues that the juvenile division erred in relinquishing jurisdiction over his case for several reasons. First, he contends that the facts of this case do not support the conclusion that he was not amenable to rehabilitation or was a threat to public safety. As part of this argument, he asserts that the trial court did not engage in proper analysis of the statutory factors and that the trial court's decision was not, therefore, supported by the record. Second, he alleges that the trial court subjected McDowell to a situation in which he received a cruel punishment that is disproportionate to the crime he allegedly committed and in which McDowell's right to a speedy trial was not honored. In particular, he points to the findings of the trial court regarding his potential for rehabilitation, arguing that he would have had time to complete counseling and be rehabilitated if the trial court had promptly addressed his case. Third, he argues that the trial court misapplied the law in having this case bound over. He argues that this bindover cannot be justified on the grounds of community safety as the facts in the record do not support such a determination. For these reasons, he requests that this Court reverse the trial court's decision to relinquish jurisdiction.

         Legal Standard

         {¶11} R.C. 2152.10(B) confers a juvenile court with the discretion to transfer a case to facilitate a criminal prosecution under certain circumstances. R.C. 2152.10(B) reads, in its relevant part, as follows:

Unless the child is subject to mandatory transfer, if a child is fourteen years of age or older at the time of the act charged and if the child is charged with an act that would be a felony if committed by an adult, the child is eligible for discretionary transfer to the appropriate court for criminal prosecution. In determining whether to transfer the child for criminal prosecution, the juvenile court shall follow the procedures in section 2152.12 of the Revised Code.

R.C. 2152.10(B). Under R.C. 2152.12(B), A juvenile court has the discretion to transfer a case for criminal prosecution if the court finds that three conditions are met. First, the child must have been fourteen or older at the time of the alleged offense. R.C. 2152.12(B)(1). Second, the juvenile court must determine that probable cause exists to believe that the child committed the alleged offense. R.C. 2152.12(B)(2). Third, the juvenile court must find that "[t]he child is not amenable to care or rehabilitation within the juvenile system" and that "the safety of the community may require that the child be subject to adult sanctions." R.C. 2152.12(B)(3).

         {¶12} In determining whether a child should be transferred from the juvenile system, the court must first examine the factors that, if present, would support transfer. These factors are listed in R.C. 2152.12(D) and read as follows:

(1) The victim of the act charged suffered physical or psychological harm, or serious economic harm, as a result of the alleged act.
(2) The physical or psychological harm suffered by the victim due to the alleged act of the child was exacerbated because of the physical or psychological vulnerability or the age of the victim.
(3) The child's relationship with the victim facilitated the act charged.
(4) The child allegedly committed the act charged for hire or as a part of a gang or other organized criminal activity.
(5) The child had a firearm on or about the child's person or under the child's control at the time of the act charged, the act charged is not a violation of section 2923.12 of the Revised Code, and the child, during the commission of the act charged, allegedly used or displayed the firearm, ...

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