State v. Gardner

• Decision Date: 03 July 1979
• Docket Number: No. 78-919,78-919
• Citation: 13 O.O.3d 8,59 Ohio St.2d 14,391 N.E.2d 337
• Parties: , 13 O.O.3d 8 The STATE of Ohio, Appellee, v. GARDNER et al., Appellants.
• Court: Ohio Supreme Court

Page 14

59 Ohio St.2d 14

391 N.E.2d 337, 13 O.O.3d 8

The STATE of Ohio, Appellee, v. GARDNER et al., Appellants.

No. 78-919.

Supreme Court of Ohio.

July 3, 1979.

As a result of events occurring on July 8, 1976, appellants, Ralph Gardner and Angel Ogletree, were each indicted on two counts of kidnapping (a violation of R.C. 2905.01), the victims being Donna Fenrick and William Coar, and one count of felonious assault (a violation of R.C. 2903.11), the victim being William Coar. Additionally, appellant Ogletree was indicted for the rape of Donna L. Fenrick (a violation of R.C. 2907.02). ¹

A jury trial commenced in the Court of Common Pleas of Cuyahoga County on October 5, 1976. The testimony presented therein tended to show that on July 8, 1976, the appellants, Sara McGowan, and a juvenile were driving around Cleveland in McGowan's car, looking for Ogletree's girlfriend. They picked up Coar at his residence and then went to the apartment of a Carroll Dicks, where they found Ms. Fenrick. According to Coar and Fenrick, they were forced, at gunpoint, to leave Ms. Dicks' apartment with appellants and the others. Coar testified that Gardner struck him with his gun as they were leaving. After riding around in two groups using both McGowan's and Fenrick's cars, they all resumed their excursion in McGowan's car, during which time Ogletree allegedly forced Fenrick to submit to oral sex in the back seat of the moving auto. Fenrick testified that she committed the act only because Gardner and the juvenile were pointing guns at her. Soon thereafter police apprehended and arrested the occupants of the car on suspicion that gunshots had been fired therefrom. A .38 caliber revolver was found in Gardner's pants pocket, and a .32 caliber gun was found under a blanket on the rear floor of the auto. At the scene of the arrest, Fenrick told the police that she and Coar had been kidnapped.

The jury found Gardner guilty on all counts charged and found Ogletree guilty on both counts of kidnapping, the lesser included offense of aggravated assault, and rape. Both appellants were thereafter sentenced according to law. The Court of Appeals subsequently affirmed the convictions.

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

John T. Corrigan, Pros. Atty., and Robert L. Steely, Cleveland, for appellee.

Goodman, King & Cleveland, Alan I. Goodman and Kathryn J. King, Cleveland, for appellants.

PER CURIAM.

Appellants' initial proposition of law is that the operation of Ohio's rape shield law, specifically R.C. 2907.02(D), ² unconstitutionally infringed upon their Sixth Amendment right to confrontation of witnesses and their right to a fair trial as secured by the Due Process Clause. During the trial, the defense attempted to call a witness who would testify that complainant Fenrick had solicited him for sex. This was for the purpose of impeaching the credibility of Fenrick, who, on cross-examination, had denied ever engaging in prostitution. The trial judge refused to allow this evidence to be presented on the basis of R.C. 2907.02(D). Later, the defense sought to introduce testimony to the effect that complainant had a reputation in the community as a prostitute. This evidence was evidently proffered both for impeachment purposes and as bearing on the issue of consent, but it too was excluded by the shield law.

It is an established constitutional principle that "(t)he rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process." Chambers v. Mississippi (1973), 410 U.S. 284, 294-95, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297. ³ In Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347, a shield law designed to protect the confidentiality of juvenile records was set aside when it ran afoul of defendant's right of confrontation. The court stressed that the defense was not merely attempting to use the youth's record to attack his general credibility, but rather, was trying to develop a theory that the witness was biased in favor of the government because he may have been subject to undue pressure by the authorities or felt a need to divert suspicion away from himself. Id., at pages 311, 317-18, 94 S.Ct. 1105. The court concluded, at page 319, 94 S.Ct. at page 1112, that, "(i)n this setting * * * the right of confrontation is paramount to the State's policy of protecting a juvenile offender." (Emphasis added.) Thus, it is evident that the Supreme Court adopted a balancing test in this area, rather than a blanket prohibition against shield statutes. In fact, Justice Stewart's concurrence, at page 321, 94 S.Ct. at page 1113, emphasized "that the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions."

In determining whether R.C. 2907.02(D) was unconstitutionally applied in this instance, we must thus balance the state interest which the statute is designed to protect against the probative value of the excluded evidence.

Several legitimate state interests are advanced by the shield law. First, by guarding the complainant's sexual privacy and protecting her from undue harassment, the law discourages the tendency in rape cases to try the victim rather than the defendant. In line with this, the law may encourage the reporting of rape, thus aiding crime prevention. Finally, by excluding evidence that is unduly inflammatory and prejudicial, while being only marginally probative the statute is intended to aid in the truth-finding process. ⁴

The key to assessing the probative value of the excluded evidence is its relevancy to the matters as proof of which it is offered. Appellants contend that evidence of complainant's reputation as a prostitute is relevant to the issue of consent, which was Ogletree's defense to the rape charge. The supposed relevancy here rests on an assumption that prior unchastity with other individuals indicates a likelihood of consent to the act in question with the defendant. While this premise may have had some validity in an earlier time, it seems quite unpersuasive in today's era of more fluid morals. "As critical thought and analysis have been brought to bear on these issues, it has become apparent that in many instances a rape victim's past sexual conduct may have no bearing at all on either her credibility or the issue of consent." People v. McKenna (Colo.1978), 585 P.2d 275, 278. (See, also, People v. Thompson (1977), 76 Mich.App. 705, 257 N.W.2d 268, which upheld Michigan's rape shield law in the face of a Sixth Amendment challenge.)

Assuming that instances might exist where prior sexual activity by the complainant with third parties is relevant, we are not presented with such a situation in the present application of R.C. 2907.02(D). Evidence that complainant had a reputation as a prostitute is not sufficiently probative of consent to outweigh the state's legitimate interests in excluding the testimony, at least where there is no suggestion in the record that financial arrangements were entered into for sexual activities in this instance.

Likewise, defense attempts to impeach the credibility of complainant by the reputation evidence and evidence of a specific solicitation were correctly prohibited by the trial court. The prosecution did not raise the issue of complainant's chastity; rather, the defense first inquired into the subject on cross-examination. Fenrick was asked whether she was involved in prostitution and she answered in the negative. Having initiated the inquiry, appellants are bound by the answer they received. As the Arkansas Supreme Court stated in Waterman v. State (1941), 202 Ark. 934, 935, 154 S.W.2d 813, 814, "(w)e think the court correctly excluded the offered testimony because it was a collateral matter which could not be proven for impeachment purposes."

Since it is apparent that the prejudicial and inflammatory nature of the excluded testimony outweighed what little, if any, probative value it may have had, we conclude that the application of R.C. 2907.02(D) in this cause did not violate appellants' constitutional rights. ⁵

Appellants' second and third propositions of law involve whether the admission, over defense objection, of evidence of appellants' sexual activities with third parties on July 7, 1976, was prejudicial error. Appellants contend that such evidence was not within the exception provided by R.C. 2945.59, ⁶ and, therefore, it should have been excluded by R.C. 2907.02(D).

The prosecution presented the testimony of two women who stated that, on the night preceding the events for which appellants were being tried, the defendants took them to Carroll Dicks' apartment. There the defendants forced them, at gunpoint, to disrobe and commit oral sex upon each other. Thereafter, one girl was forced to commit fellatio upon Gardner, and the other, the same act upon Ogletree. The complainant Fenrick was present at that time and testified to the same events. This testimony was admitted under the "other acts" statute, ...