Court of Appeals of Ohio, Third District, Hancock
from Hancock County Common Pleas Court General Division and
Juvenile Division Trial Court No. 2016-CR-00062
Deborah K. Rump for Appellant
S. Deckert and Micah R. Ault for Appellee
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.
and Procedural History
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.
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.
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.
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.
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.
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.
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.
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
sake of analytical clarity, we will consider the first and
third assignments of error before we consider the second and
fourth assignments of error.
Assignment of Error
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
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
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).
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
(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, ...