State v. Bidinost

• Decision Date: 30 December 1994
• Docket Number: No. 93-1667,93-1667
• Citation: 644 N.E.2d 318,71 Ohio St.3d 449
• Parties: The STATE of Ohio, Appellee, v. BIDINOST, Appellant.
• Court: Ohio Supreme Court

Page 449

71 Ohio St.3d 449

644 N.E.2d 318

The STATE of Ohio, Appellee, v. BIDINOST, Appellant.

No. 93-1667.

Supreme Court of Ohio.

Submitted Nov. 16, 1994.

Decided Dec. 30, 1994.

SYLLABUS BY THE COURT

1. Post-traumatic stress disorder in children has gained sufficient recognition in the psychiatric profession to be considered a proper subject for expert testimony.

2. The provisions of R.C. 2933.52(A), prohibiting the purposeful interception of wire or oral communications through the use of an interception device, apply to cordless telephone communications that are intentionally intercepted and recorded.

Keith and Maria Crippen, husband and wife, are the parents of three children, Randall Jeremy Crippen, born August 6, 1984, Christopher Andrew Crippen, born December 21, 1986, and Nicole Crippen, born April 20, 1989. At all relevant times, the Crippen family lived next-door to the Bidinost family. Members of the Bidinost family included Ivo Bidinost, Jr., appellant, Pia Bidinost, appellant's mother, and appellant's father and sister.

In 1986, Pia Bidinost began baby-sitting Randy Crippen. After Christopher Crippen was born, Pia baby-sat both Randy and Christopher. Pia baby-sat the children because both Keith and Maria Crippen were employed. Initially, Randy seemed to enjoy going to the Bidinost residence for Pia to baby-sit him. However, sometime later, Randy began to resist going to the Bidinosts' home, and Maria noticed that both Randy's and Christopher's penises were red and swollen. Maria thought that Pia may not have been changing the children's diapers often enough. Pia indicated that she had been regularly changing the children's diapers. Pia continued to baby-sit the children until Maria decided to stay at home to care for the boys.

After Pia stopped baby-sitting the children, both boys continued to visit the Bidinosts. According to Keith Crippen, the Bidinosts often invited the children to the Bidinost residence. Additionally, appellant and appellant's sister occasionally baby-sat the children or would ask the Crippens if the children could visit.

During and after the time that Pia baby-sat the children, Keith and Maria Crippen noticed that the children exhibited certain abnormal behaviors. Specifically, Christopher and Randy would urinate and/or defecate outdoors. Christopher developed a fear of going to the toilet and would sometimes urinate in his bed. Randy wanted others to watch him undress and to observe him using the toilet. Randy also desired to watch others undress and use the toilet. Randy's teachers noticed that he was hostile, overly aggressive and overly affectionate. On numerous occasions, Maria observed the boys outside with their pants down. On one occasion, she observed the boys preparing to drink from a cup in which they had urinated. On another occasion, she caught Randy "sucking on Christopher's penis" in the bathtub. Randy had attempted this same sexual behavior with his father in the shower.

The Crippens suspected that Randy and Christopher had been sexually abused. They took the children to the Center for Human Services. Later, the children were seen and were counselled by Dr. George Houck. Houck attempted, without success, to get the boys to identify their sexual abuser. Subsequently, Maria once again caught Randy sucking Christopher's penis. She eventually took the children to Dr. Lois McLatchie. After two or three sessions with McLatchie, Christopher revealed to Maria that appellant had played "the private game." Christopher told Maria that Randy had sucked appellant's penis and that appellant had sucked Randy's penis. Christopher was also able to describe ejaculation and semen. According to Maria, Randy eventually admitted that appellant had abused him.

On August 28, 1990, appellant was indicted on multiple counts of rape in violation of R.C. 2907.02 and counts of felonious sexual penetration in violation of R.C. 2907.12. On August 29, 1990, appellant was arrested at his home and was advised of his Miranda ¹ rights. During a search of the Bidinost residence, Patrolman Lawrence Brazie of the Mayfield Heights Police Department heard appellant either say "My life is over" or "My life is ruined."

The day after appellant's arrest, Maria Crippen inadvertently discovered that a baby monitor in her home was capable of intercepting cordless telephone communications from the Bidinosts' residence. Maria was able to hear the voices of persons using the Bidinosts' cordless telephone. However, Maria was unable to hear the voices of those with whom the Bidinosts were communicating. Maria was instructed by the police and prosecutor to record the conversations. The recorded statements were eventually used at trial to impeach the testimony of appellant's father and sister.

On October 11, 1991, the matter proceeded to trial before a jury. At the time of trial, Randy was seven years old and Christopher was four. Following a voir-dire examination of the children, the trial judge determined that Randy and Christopher were competent to testify.

At trial, Randy testified that he and Christopher had played the "private part[s] game" with appellant. According to Randy, the game consisted of appellant's studying and sucking Randy's penis, and Randy's sucking appellant's penis while putting a popsicle stick in appellant's rectum. Randy stated that it "tickled" when appellant sucked his penis, but that it did not feel very good when appellant used the stick on him. Randy testified that he played the private game with appellant because appellant had threatened to hurt him. According to Randy, appellant had played the game with Randy and Christopher approximately three hundred times.

At trial, Christopher claimed that he had never played the private game. However, Christopher testified that Randy and appellant had played the game. Christopher testified that appellant did not wear clothes during the game, and that Randy and appellant had touched each other with a stick.

Dr. Robert M. Reece, a pediatrician, testified that Randy and Christopher had been sexually abused. Reece based his conclusions on the behavioral symptoms of the children. Additionally, a physical examination of Christopher revealed that he had an anal fissure which, according to Reece, could have been caused by a popsicle stick.

Dr. Jane C. Timmons-Mitchell, a clinical psychologist, testified that she had met with Randy and Christopher on numerous occasions. Based upon her examination of the children, Timmons-Mitchell testified that both Randy and Christopher suffered from post-traumatic stress disorder.

Appellant testified on his own behalf and denied the charges against him. Appellant's father and sister testified that they never saw appellant engage in any improper behavior with the Crippen children.

On October 28, 1991, the jury returned its verdicts, finding appellant guilty on five counts of rape in violation of R.C. 2907.02 and one count of felonious sexual penetration in violation of R.C. 2907.12. The trial court entered judgment upon the verdicts and sentenced appellant in accordance with law. On appeal, the court of appeals affirmed the judgment of the trial court.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., and Melody A. White, Asst. Pros. Atty., for appellee.

David L. Doughten, Cleveland, for appellant.

DOUGLAS, Justice.

Appellant presents three propositions of law for our consideration. For the reasons that follow, we find no reversible error with respect to any of the issues raised in this appeal and, accordingly, we affirm the judgment of the court of appeals. We address appellant's propositions of law seriatim.

I

In his first proposition of law, appellant challenges his convictions, claiming that the trial court erred in permitting Timmons-Mitchell to offer her expert opinion that Randy and Christopher suffered from post-traumatic stress disorder. We reject appellant's proposition for two reasons. First, appellant's arguments in support of the proposition have been waived because he failed to raise the alleged errors at the trial court level. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the syllabus; State v. Broom (1988), 40 Ohio St.3d 277, 288-289, 533 N.E.2d 682, 695-696; and State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894, 899. Second, even considering the merits of appellant's contentions, we find that the trial court did not abuse its discretion in allowing Timmons-Mitchell to testify that the children suffered from post-traumatic stress disorder.

Appellant contends that Timmons-Mitchell lacked sufficient qualifications to testify as an expert concerning post-traumatic stress disorder in children. We disagree. The record reflects that Timmons-Mitchell, a licensed clinical psychologist, had extensive education and experience in evaluating children who were victims of sexual or physical abuse. In addition, Timmons-Mitchell is an assistant professor of psychology at Case Western Reserve University School of Medicine and director of the child abuse treatment programs in the Division of Child Psychiatry at University Hospitals. She has evaluated and treated hundreds of children, testified as an expert witness in at least fifteen cases, and published various articles regarding children, including an article relating to post-traumatic stress disorder. Clearly, the trial court did not abuse its discretion in recognizing Timmons-Mitchell as an expert in her field based upon her knowledge, skill, education, experience and training.

Appellant also contends that post-traumatic stress disorder in children is not a proper subject for expert testimony. Specifically, appellant claims that "[t]here is no evidence that post-traumatic stress in children has been accepted by the scientific community." Again, we disagree. "Post-traumatic stress...