State v. Boston

• Citation: 46 Ohio St.3d 108,545 N.E.2d 1220
• Decision Date: 25 October 1989
• Docket Number: No. 88-774,88-774
• Parties: The STATE of Ohio, Appellee, v. BOSTON, Appellant.
• Court: United States State Supreme Court of Ohio

Page 108

46 Ohio St.3d 108

545 N.E.2d 1220

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

No. 88-774.

Supreme Court of Ohio.

Submitted April 6, 1989.

Decided Oct. 25, 1989.

Syllabus by the Court

An expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant.

In early 1986, appellant, John C. Boston, and Deidre J. Boston were husband and wife and the natural parents of a daughter, Cynthia J., who was born December 31, 1983. On March 24 or 26, 1986, subsequent to a series of domestic problems, Deidre, without notice, removed herself from the couple's home, taking Cynthia with her. In April or June 1986, appellant filed for divorce. A bitter battle for custody of Cynthia ensued.

During the course of the domestic proceedings, appellant was given weekend visitation rights with his daughter. Appellant's visitation periods with Cynthia included Saturday morning until Sunday evening every other week.

One of the visitation periods of appellant with Cynthia commenced on Saturday, July 26, 1986. On Sunday, July 27, Deidre went to appellant's home to pick Cynthia up after her visit. According to Deidre, during the trip home in the car, Cynthia fell asleep. Upon arriving home, Deidre put Cynthia in bed without awakening her. At the time, Cynthia was just shy of two years and eight months of age.

According to Deidre, Cynthia awakened screaming and crying in the early morning hours of July 28. Continuing to cry, Cynthia was taken to the bathroom by her mother. When Cynthia did not cease crying, Deidre asked the child what was wrong. According to Deidre, Cynthia said, "Daddy put something up my bucket." Deidre then observed the child and found redness around Cynthia's vagina and anus.

The next morning Deidre contacted Cynthia's pediatrician, Dr. Steven L. Johnson, and arranged an appointment to have the child examined. Dr. Johnson examined Cynthia on Tuesday, July 29. Cynthia refused to let the doctor touch her and prevented him from doing a thorough internal examination. Dr. Johnson was able to do an external examination of the vagina and anus while Cynthia was being held by her mother. The examination revealed no specific problems in reference to the vagina or anus. Dr. Johnson did note that the vaginal opening "look[ed] okay" and the "hymen [was] intact." Dr. Johnson recommended that Cynthia be brought back for an examination after the next visit with appellant.

On August 12, 1986, after a visitation with appellant, Dr. Johnson again examined Cynthia. Dr. Johnson noted no specific physical findings relating to the vagina or anus that were outside what he considered normal. Due to statements made by Deidre and the reaction of Cynthia to the attempts to examine her, Dr. Johnson recommended that the mother contact Akron Children's Hospital, which would be able to further evaluate Cynthia to determine if there was any evidence of abuse.

On August 22, 1986, Cynthia was examined by Dr. Susan Asch, a pediatrician and director of the Child Abuse Team at Children's Hospital. Dr. Asch was able to complete an internal examination of the child. During the examination, the doctor found a whitish discharge and redness around the labia minora and that the hymeneal opening was larger than normal. The doctor stated that during the examination, Cynthia pointed to her vagina and said, "Daddy put a telephone in here and it hurt." Dr. Asch also stated that when she attempted to examine the child's anus, Cynthia said, "Don't touch that." Based upon the medical history, the child's statements, and the results of the examination, Dr. Asch made a diagnosis of probable vaginal penetration and possible rectal penetration. Dr. Asch gave the mother a list of counselors who could provide treatment or make psychological examinations. The list included Dr. Dawn Lord. The attorney representing Deidre in the divorce proceedings referred Deidre and Cynthia to Dr. Lord.

Deidre contacted Dr. Lord, who examined Cynthia on September 17, 1986, September 30, 1986 and December 8, 1986. Dr. Lord is a specialist in child sexual abuse. Dr. Lord observed the child's activity with sexually-anatomically-correct dolls ("SAC dolls") during their sessions together. The manner in which Cynthia handled the dolls, including the insertion of the male doll's penis into the female doll's vagina, was indicative of sexual abuse according to Dr. Lord. During the last session, Cynthia told Dr. Lord that "he [appellant] put something in my bucket. I didn't like it." Dr. Lord testified that the child was not falsifying and that the child had been a victim of sexual abuse.

Appellant was indicted on one count of felonious sexual penetration in violation of R.C. 2907.12(A)(1)(b), and one count of gross sexual imposition in violation of R.C. 2907.05(A)(3). Subsequent to pleas of not guilty, a jury trial of appellant commenced on February 9, 1987.

Appellee state of Ohio attempted to present the testimony of Cynthia who, at the time of trial, was just over the age of three years. The trial judge conducted a voir dire examination of Cynthia in an attempt to determine her competency to testify. When it became apparent that Cynthia would not answer the judge's questions concerning the alleged abuse but would only respond to questions about toys, a doll, candy or things of a similar nature, the trial judge found Cynthia " * * * to be incompetent to testify."

In addition to Dr. Lord, who testified over objection, appellee presented the testimony of the mother, Deidre, and the testimony of Dr. Asch. Dr. Asch, in addition to her other pertinent testimony set forth supra, was permitted to testify that Cynthia did not fantasize the story told to Dr. Asch.

In his defense, appellant presented the testimony of himself, a number of character witnesses, the investigator assigned by the domestic relations court in the custody dispute, and the caseworker and the field-placement student assigned to Cynthia by Victim's Assistance. There was also the favorable testimony by state's witness Dr. Johnson, on cross-examination. Appellant also, informally, requested that an expert of his choice be permitted to examine Cynthia. The judge originally assigned to hear the case indicated that he would not allow such an examination and, thereafter, appellant did not formally move for examination of Cynthia by an expert of his own choosing.

Upon completion of testimony and instruction by the trial judge on the applicable law, the jury began deliberations. It appears that deliberations began about 3:30 p.m. on February 11, 1987. At about 4:50 p.m. on the same date, the jury sent a communication to the trial judge. The jury's statement said: "We are a hung jury and feel that further deliberations would not change our vote on either charge." The judge then told the lawyers:

"They haven't been out long enough. Two hours is just not long enough.

"What I'm going to do is I'm going to call them in and tell them I feel further deliberations are necessary, that two hours is not long enough and that I'll bring them back tomorrow morning at 9:00. I will let them go for a couple hours. If they're still here then I intend to give them a charge, a hung jury charge. Then I'll probably let them go * * *."

The jury was then returned to the courtroom and the judge told them they had not deliberated for a long enough period of time and that they were to return the next morning at 9:00 and resume their deliberations.

As instructed, the jury resumed their deliberations at 9:00 a.m. on February 12, 1987. By 9:40 a.m., the jury sent another statement to the trial judge. The statement said: "We would like to review the following: Dr. Dawn Lord's report that was submitted into evidence." The jury also requested "The definition of terminology of the indictment."

The jury was again returned to the courtroom. The report of Dr. Lord was not given to the jury because it had not been admitted into evidence. The judge then reread to the jury his instructions concerning both counts of the indictment.

Because of some confusion (very obvious from the record) concerning the charge, a sidebar conference was requested. At the conclusion of the conference the judge told the jurors: "Well, ladies and gentlemen of the jury, you're going to have to sit there for a little while. We're going to have to clear up something." An off-the-record discussion was then held in chambers. Upon returning to the courtroom, the judge told the jury: " * * * I'm going to start again. * * * " The jury was then again instructed. At the conclusion of the instruction, both counsel approached the bench. Yet another sidebar conference was held. At the conclusion of this conference, the judge told the jury: "Well, I've read it to you twice. At this time, ladies and gentlemen of the jury, those are the elements. I'm going to ask you to retire and begin your deliberations again. You're excused."

Previously, defense counsel had moved for acquittal of both counts of the indictment. The trial judge had denied the motion as to count two (gross sexual imposition) and taken under advisement the motion regarding count one (felonious sexual penetration). While the jury was again deliberating, the trial judge heard further arguments as to appellant's motion to acquit as to count one.

After extensive arguments of counsel, the trial court decided to grant appellant's motion as to count one. In so deciding, the judge told counsel: "And, therefore, considering the problems we have with this, as far as the way the indictment is drawn and whether that's correct law or not, the fact it was given to the jury, I think under those circumstances that it's best that the Court directs or grants the motion for acquittal and directs a verdict in that particular count."

The judge then advised counsel that he would call the jury in and advise the jury that the issue presented by count one was being taken from their consideration....