State v. Bunch

• Decision Date: 10 May 1989
• Docket Number: No. 88CA004378,88CA004378
• Citation: 62 Ohio App.3d 801,577 N.E.2d 681
• Parties: The STATE of Ohio, Appellee, v. BUNCH, Appellant. *
• Court: Ohio Court of Appeals

Page 801

62 Ohio App.3d 801

577 N.E.2d 681

The STATE of Ohio, Appellee, v. BUNCH, Appellant. ^*

No. 88CA004378.

Court of Appeals of Ohio, Ninth District, Lorain County.

Decided May 10, 1989.

Gregory A. White, pros. atty., for appellee.

Frank Janik and Steve Martinek, Amherst, for appellant.

MAHONEY, Judge.

Appellant Darrell W. Bunch appeals from his conviction for two counts of gross sexual imposition in violation of R.C. 2907.05(A)(3). We reverse and remand for a new trial.

Facts

On December 23, 1987, Darrell Bunch appeared in Lorain County Domestic Relations Court for a final hearing of an uncontested divorce from Sandra Bunch. At that time and based on a secret indictment which spanned a twenty-one-month period from September 1985 to July 1987, Bunch was arrested for two counts of gross sexual imposition, one count each against his daughter Karen (born October 14, 1981) and stepdaughter Katrina (born May 19, 1979). At trial Karen was age six and one-half and Katrina was nine years old.

Following a competency hearing, the trial court found both children competent to testify. At trial, each girl testified that they had been alone with Bunch in the shower and while both adult and child were naked he had inserted his finger into each girl's vagina and moved it around.

Bunch admitted to partaking in the normal parenting activity of bathing his daughters. He stressed that any touching of the children's genital area was done in the context of washing.

Bunch, his ex-wife, and the girls each testified that the children had had several bouts with pinworms. No medical records were produced to establish that the children had pinworms during the time frame of the indictment but there was evidence that the condition may have occurred during that period.

The state's witnesses included Karen, Katrina, and Sandra. In addition to Bunch, the defense presented or attempted to present nine witnesses. One of the witnesses was Lori Brown, a school psychologist who had, at the mother's request, conducted several counseling sessions with each child. The trial court sustained the state's objection to Brown's testimony on the grounds that she was a surprise witness.

The jury returned a verdict of guilty to both counts. Bunch assigns six errors in this appeal.

Assignment of Error IV

"The children were not competent as witnesses and appellant was denied due process both in the manner in which their competency was determined and in the fact they were permitted to testify."

In his fourth assignment of error, Bunch claims that defense counsel, although present, was improperly excluded from participating in the competency hearing and that the trial court denied Bunch the opportunity to cross-examine the children on the issues of motive and bias.

The determination of the competency of a child under ten years of age to be a witness is within the sole discretion of the trial court. It will not be disturbed absent a showing of abuse of discretion. State v. Lee (1983), 9 Ohio App.3d 282, 9 OBR 497, 459 N.E.2d 910.

In determining whether a child under ten is competent to testify, the trial court must voir dire the child outside the presence of the jury and without interruption from counsel. State v. Wilson (1952), 156 Ohio St. 525, 46 O.O. 437, 103 N.E.2d 552.

The test for determining the competency of a child is twofold:

" * * * The court, in its hearing, must determine: first, that the witness has the intellectual capacity to recount the events accurately, and; second, that the witness understands the necessity of telling the truth. Evid.R. 601(A) * * *." State v. Lee, supra, 9 Ohio App.3d at 283, 9 OBR at 498, 459 N.E.2d at 911.

The record of the competency hearing establishes that the children met the Lee test. Furthermore, at trial, both the defense and the state questioned each child extensively on her understanding of the truth and her knowledge of her environment. See Kentucky v. Stincer (1987), 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631. We believe the record supports a finding that each child had the intellectual capacity to observe, remember and communicate and that both understood the necessity of telling the truth.

Bunch's argument that the trial court's refusal to allow his participation in the hearing and to pursue questions as to bias are without merit. The issues of motive and bias are issues of credibility, not competency, and are to be left to the triers of fact.

Accordingly, we overrule this assignment of error.

Assignments of Error V and VI

"V. Due process, and the rules of criminal procedure, mandate certain procedural safeguards to insure a fair trial. These were violated by the State with the Court's acquiescence, and approval, in at least the following: Failure to disclose exculpatory evidence; successful argument by the state to exclude relevant, admissible, exculpatory evidence and rebuttal testimony; use of incompetent (due to infancy, and psychological bias) testimony; and, introduction by the state of irrelevant inflammatory testimony and evidence.

"VI. It was improper, unprofessional, and prejudicially impermissible conduct for the prosecutor to:

"A. In discovery and opening statement, to make material assertions knowing he would later fail to prove them;

"B. To argue for the exclusion of a witness on the basis of an untrue claim of surprise;

"C. To fail to provide exculpatory evidence to defense counsel pursuant to discovery procedures."

Within these assignments of error, Bunch has interwoven a plethora of issues. Essentially, he claims that the cumulative effect of the court's approval of the state's trial tactics denied him a fair trial.

We will address the issues as they become relevant to our analysis. We have already addressed Bunch's claim that the children were incompetent to testify. We reiterate that the record fails to support a finding that the trial court abused its discretion in finding the children competent to testify.

Bunch also argues that psychological evaluations of the children should have been conducted. It is unclear as to why he claims such evaluations should have been done. If he claims that the evaluations would have assisted the court in making its determination of competency, his argument must fail. Assuming arguendo that the defense even had a right to obtain psychologicals of the children or interviews with the children, the argument that a psychological evaluation would have established bias is purely speculative. Further, any psychological data obtained by defense counsel would have been open for rebuttal by witnesses which the state may have chosen to call. Bunch was given ample opportunity to cross-examine the state's witnesses and attempt to establish bias and motive through his own witnesses.

Bunch argues that the state introduced inflammatory and irrelevant testimony and evidence. He asserts that the prosecutor's conduct was so egregious that it denied him a fair trial. To support his claim, Bunch directs this court to the state's opening statement, closing argument and cross-examination of Bunch. Bunch failed to object to the state's conduct on opening or closing. We will not address errors which could have been corrected in the proceedings below. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364. Wide latitude is granted to the cross-examiner and we cannot say that the state overstepped its bounds in its rigorous questioning of Bunch.

Bunch also objects to the testimony elicited from Karen and Katrina that Bunch would walk around the house without his clothes. Bunch again failed to object to the questions directed to the issue of his nudity at home. Testimony was introduced from Bunch's two sons, his ex-wife, Sandra and himself that he did not walk around naked. The jury was presented with the facts and sought its own answers from the conflicting testimony.

Bunch contends that the state also introduced testimony about his harsh methods of punishment to inflame the jury. From our review of the record, we find that it was defense counsel who questioned Katrina about an incident wherein Bunch had allegedly locked his son in a dog cage. Katrina testified that the son was naked and that he was forced to eat dog food. The brother testified that he had been placed in the cage but not that he had to eat dog food. Apparently this discipline strategy employed by Bunch and elicited solely through defense counsel's efforts is the one which Bunch now claims inflamed the jury. Clearly, this argument is without merit.

Defense counsel did object to the state's questions to Katrina about seeing a "dirty" movie. The objection was overruled and the testimony was permitted as relevant. Bunch was given the opportunity to cross-examine on the issue and to adduce testimony from other witnesses which established that no other members of his household were aware of such movies being shown to the girls. Although we question the propriety and relevance of this evidence, we cannot say that prejudicial error occurred.

Bunch contends that the state was in possession of exculpatory information which it failed to disclose and so compromised his defense. First, Bunch claims that the state failed to tell him of information that Katrina went to a special doctor presumably in response to her claims of urinary discomfort. Bunch argues that if he had known about this doctor, he could have subpoenaed the medical records.

Katrina was the state's first witness. She talked about going to the doctor with her mother and her mother's boyfriend, Steve Browning. Katrina stated that the doctor did not examine her. Defense counsel had ample opportunity to inquire of Katrina as to the events at the doctor's office. Further, when defense counsel questioned the children's mother about the children's medical history with pinworms, no questions were directed to any other medical problems. While we do not condone the state's failure to provide this information...