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State v. Beaver

Court of Appeals of Ohio, Third District, Marion

June 25, 2018


          Appeal from Marion County Common Pleas Court Trial Court No. 17-CR-056

          Robert C. Nemo for Appellant

          Kevin P. Collins for Appellee


          WILLAMOWSKI, P.J.

         {¶1} Defendant-appellant David A. Beaver ("Beaver") appeals the judgment of the Marion County Court of Common Pleas. For the reasons set forth below, the judgment of the trial court is affirmed.

         Facts and Procedural History

         {¶2} T.B. was born to Beaver and Kristina Beaver ("Kristina") in 2012. Doc. 60. Kristina and Beaver divorced in 2015. Ex. 15. Following this divorce, Beaver had visitation with T.B. every other weekend. Trial Tr. 427. On April 24, 2016, after one of these weekend visits, Beaver drove T.B. to the designated drop off location where Kristina was waiting in her car. Id. at 409, 413. When T.B. got into the car, she told Kristina that Beaver had inappropriately touched her. Id. at 323, 446. This led Kristina to take T.B. to the Adena Regional Medical Center ("ARMC") where T.B. was examined by a sexual assault nurse examiner. Id. at 137-139. The nurse took T.B.'s panties as forensic evidence and noted that T.B. had some redness on her labia. Id. at 143-144.

         {¶3} The ARMC referred Kristina to the Child Protection Center in Ross County ("CPC") for further consultation. Doc. 90. On May 4, 2016, Kristina took T.B. to the CPC. Doc. 90. Ashley Muse ("Muse"), a child abuse specialist, interviewed T.B. while a physician, Dr. Jetty, observed T.B. from another room. Doc. 90. Trial Tr. 280. During this interview, T.B. explained what her father had done to her. Ex. 13. The CPC made a video recording of this interview. Ex. 13. After the initial interview with Muse, Dr. Jetty had a further interview with T.B. Trial Tr. 283. The video of this interview was later admitted into evidence. Id. at 474. T.B.'s panties were then tested by the Ohio Bureau of Criminal Investigations ("BCI"). Id. at 208. The investigators found Beaver's saliva on the front interior panel of T.B.'s panties. Id. at 211, 259-260. No semen was found on the panties. Id.

         {¶4} On February 9, 2017, Beaver was charged with one count of gross sexual imposition in violation of R.C. 2907.05(A)(4) and one count of rape in violation of R.C. 2907.02(A)(1)(b). Doc. 1. On May 31, 2017, the trial court held a hearing to determine whether T.B. was competent to testify at a trial. Competency Hearing Tr. 2. During this hearing, T.B. had difficulty focusing and sitting still. Doc. 60. The trial court gave the State an opportunity to present additional evidence as to T.B.'s competency at a later evidentiary hearing. Doc. 60. On June 30, 2017, the trial court interviewed T.B. again and determined that she was competent to testify. Evidentiary Hearing Tr. 2, 69-70. Doc. 89. At this evidentiary hearing, the trial court also considered the admissibility of the videotaped CPC interview. Id. The trial court denied Beaver's motion in limine as to the video interview. Doc. 90, 149.

         {¶5} On August 17, 2017, the jury found Beaver guilty of both charges. Doc. 154, 155. Beaver was sentenced on August 23, 2017. Doc. 169. Appellant then filed his notice of appeal on September 14, 2017. Doc. 175. On appeal, appellant raises the following seven assignments of error:

First Assignment of Error
The trial court erred to the prejudice of appellant by finding T.B. competent to testify.
Second Assignment of Error
The trial court committed prejudicial error by allowing the jury to hear the videotape interview of T.B.
Third Assignment of Error
The trial court committed prejudicial error by denying appellant's motion for mistrial.
Fourth Assignment of Error
Appellant was denied his constitutional right to effective assistance of counsel.
Fifth Assignment of Error
The trial court erred when it failed to sustain appellant's Rule 29 motion for acquittal.
Sixth Assignment of Error
Appellant's conviction was against the manifest weight of the evidence.
Seventh Assignment of Error
The combination of the aforementioned errors are sufficient to call into question the validity of the verdict, preventing appellant from obtaining a fair trial.

         First Assignment of Error

         {¶6} In his first assignment of error, Beaver argues that the trial court erred when it found that T.B. was competent to testify. Beaver alleges that T.B. was unable to focus, could not recollect impressions or observations, gave inconsistent answers, and was not able to appreciate the importance of truthfulness in this proceeding.

         Legal Standard

         {¶7} As a general rule, a child under the age of ten is incompetent to testify if he or she "appear[s] incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly." Evid.R. 601(A). Before a child under the age of ten is permitted to testify, the trial court has a "duty * * * to conduct a voir dire examination of [the] child * * * to determine the child's competency to testify." State v. Frazier, 61 Ohio St.3d 247, 250-251, 574 N.E.2d 483 (1991). In making this determination,

the trial court must take into consideration (1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful.

Id. at 250-251. "Thus, the responsibility of the trial judge is to determine through questioning whether the child of tender years is capable of receiving just impressions of facts and events and to accurately relate them." Id. The determination of a child's competency to testify is left within the discretion of the trial court as the "trial judge has the opportunity to observe the child's appearance, his or her manner of responding to the questions, general demeanor and any indicia of ability to relate the facts accurately and truthfully." Id.

         Legal Analysis

         {¶8} On May 31, 2017, the trial court held its first interview of T.B. Competency Hearing Tr. 2. After the interview, the trial court, in its judgment entry, noted that T.B. had difficulty focusing and sitting still. Doc. 60. The trial court permitted a second interview with T.B. at the evidentiary hearing scheduled for June 30, 2017. Evidentiary Hearing Tr. 2. At the second interview, the trial judge asked T.B. a number of questions that addressed the relevant factors for determining competency. The following exchanges from both interviews demonstrate T.B.'s ability to receive accurate impressions of fact, her ability to recollect observations, and her ability to communicate:

The Court: Okay. And has anybody touched you in that area that-that shouldn't have?
[T.B.]: My daddy did.
The Court: Your dad did?
[T.B.]: (No audible response).
The Court: And where did he do that?
[T.B.]: When I was visiting him. We were in an apartment and he did it.

         Competency Hearing Tr. 45.

The Court: Okay. Do you remember talking about your dad touching you with his bump?
[T.B.]: (No audible response).
The Court: What would be his bump?
[T.B.] Where milk comes out of.
The Court: Where milk comes out of? Where-where is that on his body?
[T.B.]: (No audible response).
The Court: Okay. And do you remember who you told that to?
[T.B.]: Mom.
The Court: Hmm?
[T.B.]: Mom.
The Court: Your mom? And did you tell anyone else?
[T.B.]: Amber and Courtney.
The Court: Okay. And-
[T.B.]: Inaudible.
The Court: -where did he touch you with his bump at?
[T.B.]: Right here.
The Court: Okay. And you pointed to a place on your ...

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