State v. Earl Giles, 94-LW-4102
| Decision Date | 14 July 1994 |
| Docket Number | 65731,94-LW-4102 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. EARL GILES, Defendant-Appellant |
| Court | Ohio Court of Appeals |
Criminal appeal from Common Pleas Court Case No. CR-291588.
For Plaintiff-Appellee: STEPHANIE TUBBS JONES, Cuyahoga County Prosecutor, THOMAS E. CONWAY, Assistant, The Justice Center 1200 Ontario Street, Cleveland, Ohio 44113.
For Defendant-Appellant: JAMES A. DRAPER, Cuyahoga County Public Defender, DONALD GREEN, Assistant, The Marion Building - Rm 307, 1276 West Third Street, Cleveland, Ohio 44113-1569.
Defendant-appellant Earl Giles timely appeals from a May 21, 1993 judgment of the Cuyahoga County Court of Common Pleas sentencing him to life imprisonment in Lorain Correctional Institution for violations of R.C. 2907.12, felonious sexual penetration, and R.C. 2907.05, gross sexual imposition in relation to his daughter Shannon Beard. Giles was originally indicted on six counts.
The case sub judice involves the alleged sexual abuse by Earl Giles of his two daughters Shannon and Ashley Beard who were ages four and two respectively at the relevant times herein. Giles' wife, Virginia Beard, first became aware of the sexual abuse when Ashley told her that her "vagina was hurting" and that Giles had pulled her panties down and bit her on the groin. Virginia took Ashley to University Hospitals but Ashley refused to allow the physician to examine her. Thereafter, Shannon alerted Virginia Beard to her own sexual abuse and Virginia then took Shannon and Ashley to University Hospitals where Shannon stated Giles "put his thing in her." Shannon and Ashley were examined at University Hospitals by Dr. Amy C. Richardson who concluded that Shannon's vagina had been forcibly penetrated on more than one occasion.
Thereafter, Brenda Joyce Wilson, a sexual abuse social worker with the Cuyahoga County Department of Human Services, conducted independent examinations of Shannon and Ashley while being viewed through a two-way observation mirror by Cleveland Police Detective Marvin Walton and Sandra Spinello, a social worker also employed by the Department of Human Services. During Wilson's interview with Shannon, the child described by using anatomically correct male and female dolls that her father had put his penis on her vagina and she indicated slight penetration occurred. Shannon stated her father then went downstairs, cried and stated he would never do it again.
Giles was originally indicted on three counts of rape, one count of felonious sexual penetration and two counts of gross sexual imposition. The State presented five witnesses, viz., Shannon Beard, Dr. Amy C. Richardson, Brenda Joyce Wilson, Virginia Beard and Police Detective Marvin Walton.
Shannon Beard, then age five, testified after the trial judge conducted a voir dire and found her competent to testify. Shannon admitted her father "hurt" her and that afterward she felt "sad." She stated she was telling the truth and that she told the truth to her mother and to the people who examined her.
Dr. Amy C. Richardson, Assistant Professor of Pediatrics at Case Western Reserve University, Rainbow Babies and Childrens Hospital testified that, although her examination of Ashley revealed no indications of sexual abuse, she observed indications of sexual abuse in Shannon. Dr. Richardson stated that from 75 to 85 percent of Shannon's hymen was worn away and that this was caused by "penetrating trauma, usually of a repeated nature." Dr. Richardson stated her findings were consistent with child sexual abuse.
Brenda Joyce Wilson stated that during her interview with Shannon, the child stated "Daddy put his penis on my vagina." Wilson also testified that during her interview with Ashley, the child named every anatomical part of the male doll the "penis."
Virginia Beard stated she has been receiving treatment for her drug and alcohol abuse. She testified Ashley told her Giles had pulled down her panties and bit her between her legs and that Shannon, thereafter, informed Virginia of her own sexual abuse. Virginia stated she had both children examined at University Hospitals and that during Shannon's examination, Virginia heard Shannon tell the physician that her father had put his thing in her. On cross-examination, Virginia admitted she was a drug abuser, the Juvenile Court had been involved with her and her children but the children were never removed from her home.
Detective Walton stated he observed the interviews with the Beard children conducted by Brenda Joyce Wilson and he corroborated the testimony given by Wilson. Walton stated he then conferred with the prosecutor and that Walton himself presented the within case to the grand jury. At the close of the State's case-in-chief, Giles moved for acquittal pursuant to Crim.R. 29. The court dismissed all the charges with respect to Ashley, i.e., one count of rape and one count of gross sexual imposition, but denied the motion with respect to all the other four counts involving Shannon.
The defense presented three witnesses, viz., Sandra Spinello of the Cuyahoga County Department of Human Services, Pat Morgan who was Giles' female companion and Earl Giles who took the stand in his own defense. Spinello testified she also observed Wilson's interviews with the Beard children through the two-way mirror. Spinello stated, however, she heard none of the comments regarding Giles that Shannon was alleged to have made. Pat Morgan stated the relationship between Earl Giles and his wife Virginia Beard was "negative."
Giles stated he never sexually abused his children. In addition, he testified he and Pat purchased a six-pack of beer for Virginia the day before Virginia placed herself into Miracle Village for drug rehabilitation. The State called a rebuttal witness, Doris Williford, who was a social worker at Miracle Village. Williford testified Virginia tested negative for drugs and alcohol on the first day she entered Miracle Village but that one beer the previous day would not be detectable.
At the close of the defendant's case-in-chief, Giles renewed his Crim.R. 29 motion which was denied. The court instructed the jury in relevant part on the law with respect to the sexual offenses. However, the trial judge made a misstatement when he charged with respect to the crime of gross sexual imposition but which the judge corrected before the jury retired. Giles was thereafter convicted on the count of felonious sexual penetration and one count of gross sexual imposition in relation to Shannon. He was sentenced to a life sentence in Lorain Correctional Institution and the within appeal followed.
Appellant's first assignment of error follows:
I. BY ALLOWING AN INCOMPETENT MINOR CHILD TO TESTIFY, THE TRIAL COURT ABUSED ITS DISCRETION AND THEREBY DEPRIVED APPELLANT OF HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION XVI OF THE CONSTITUTION OF THE STATE OF OHIO.
This assignment lacks merit.
Appellant claims the trial court erred when it found Shannon Beard competent to testify with respect to the sexual abuse she experienced. Appellant, however, failed to object at trial to the trial judge's finding that Shannon was competent to testify. It is axiomatic that the failure to timely object to the introduction of evidence at trial constitutes a waiver of any objection. State v. Esparza (1988), 39 Ohio St.3d 8; Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41. Since Giles failed to object at trial to Shannon's testimony, this assignment of error lacks merit and is, therefore, overruled. Assume, arguendo, this assignment of error were properly before us. An evaluation of Shannon's testimony reveals the trial judge did not abuse his discretion.
Appellant's second assignment of error follows:
II. THE TRIAL COURT ERRED BY ADMITTING INADMISSIBLE HEARSAY OVER DEFENSE COUNSEL'S OBJECTION AND THEREBY DEPRIVED EARL GILES OF HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION XVI OF THE CONSTITUTION OF THE STATE OF OHIO.
This assignment lacks merit.
Appellant claims the statements of Shannon Beard as related by Virginia Beard, Brenda Joyce Wilson and Detective Marvin Walton constituted inadmissible hearsay and, therefore, the trial court erred when such statements were admitted into evidence. Hearsay is admissible when it conforms to the hearsay exceptions contained in the Rules of Evidence.[1]
Evid.R. 803(2) states in relevant part as follows:
In State v. Taylor (1993), 66 Ohio St.3d 295, 300, the Ohio Supreme Court elaborated on Evid.R. 803(2) as follows:
Such testimony as to a statement or declaration may be admissible under an exception to the hearsay rule for spontaneous exclamations where the trial judge reasonably finds (a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement or declaration spontaneous and unreflective, (b) that the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his reflective...
To continue reading
Request your trial