State v. George Akers

• Decision Date: 09 September 1999
• Docket Number: 99-LW-3913,98 CA 33
• Parties: STATE OF OHIO, Respondent-Appellee v. GEORGE AKERS, Petitioner-Appellant Case
• Court: Ohio Court of Appeals

STATE OF OHIO, Respondent-Appellee v. GEORGE AKERS, Petitioner-Appellant

No. 98 CA 33.

99-LW-3913 (4th)

Court of Appeals of Ohio, Fourth District Lawrence

September 9, 1999

COUNSEL FOR APPELLANT: Kenneth R. Spiert, 85 E. Gay Street, Suite 509, Columbus, Ohio 43215-3160.

COUNSEL FOR APPELLEE: J. B. Collier, Jr., Lawrence County Prosecuting Attorney, and Jeffrey M. Smith, Assistant Prosecutor Lawrence County Court House, Ironton, Ohio 45638.

DECISION

ABELE J.

This is an appeal from a judgment entered by the Lawrence County Common Pleas Court overruling a petition for post-conviction relief filed by George Akers, petitioner below and appellant herein. The following errors are assigned for our review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT VIOLATED MR. AKER'S RIGHTS TO DUE PROCESS AND TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE OHIO AND UNITED STATES CONSTITUTIONS WHEN IT DENIED MR AKERS' CLAIM THAT HIS TRIAL COUNSEL WAS INEFFECTIVE IN HIS PRESENTATION OF THE DEFENSE."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT VIOLATED MR. AKERS' RIGHT TO DUE PROCESS AND TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE OHIO AND UNITED STATES CONSTITUTIONS WHEN IT REFUSED TO ALLOW TESTIMONY REGARDING COUNSEL'S INEFFECTIVE ASSISTANCE RELATING TO THE INVESTIGATIVE TECHNIQUES EMPLOYED IN THE INVESTIGATION OF THE ALLEGED VICTIMS' CLAIMS."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT VIOLATED MR. AKERS' RIGHTS TO DUE PROCESS AND THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE OHIO AND UNITED STATES CONSTITUTIONS BY OVERRULING MR AKERS' MOTION TO HOLD JUDGMENT IN ABEYANCE PENDING FILING OF A MOTION [TO] STRIKE THE TESTIMONY OF CHARLES KNIGHT, ESQ.

The record reveals the following facts pertinent to this appeal. On September 15, 1993, the Lawrence County Grand Jury indicted appellant on two (2) counts of rape in violation of R.C. 2907.02, ten (10) counts of felonious sexual penetration in violation of R.C. 2907.12 and twenty-five (25) counts of gross sexual imposition in violation of R.C. 2907.05. Seven (7) of the felonious sexual penetration counts and twenty-two (22) of the gross sexual imposition counts were later dismissed. The remaining counts proceeded to trial and, on July 7, 1994, the jury found appellant guilty on three (3) of the gross sexual imposition counts but acquitted him on all other charges. A judgment of conviction and sentence was entered on July 13, 1994 sentencing him to consecutive two (2) year prison terms on each count for which he was convicted. No appeal was ever taken from that judgment.

On September 20, 1996, appellant filed a petition for post-conviction relief alleging that he had been deprived of his constitutional rights to effective assistance of counsel and due process of law. The gist of his argument was that trial counsel never objected, or presented rebuttal testimony, with respect to the following expert opinion of psychologist, David Lowenstein, Ph.D.:

"Q. For my next question, Doctor, I want you to assume certain facts to be true, okay? Assume that we have young girls that have been sexually abused, assume that they have been abused by an adult male, assume that the girls were under the age of thirteen (13), assume even that one was as young as five years old, assume that the perpetrator, the adult male was a person of importance in the community, assume that he was a former Chief of Police, assume that he was a family figure with a family association. Assume all those things and assume that when this sexual abuse was taking place that the children did not report that they had been abused, assume also that they did not report being abused until several years later. Is there a psychological explanation for that?

A. Yes, there is. And its been researched throughout the `80s and it's been called Child Sexual Abuse Accommodation Syndrome. Which is where a child is approached by an adult male and there is a bunch of different stages that occurs during this process. Starting out with secrecy being stage one. Where there is some implied threat. Now, a threat doesn't have to be towards bodily harm or actual death or some kind of event that's threatening, but it could also be, if you want to keep on getting some of the benefits of me being nice to you, etcetera etcetera, there is some would call it a threat, psychological threat. So, as a result of that, there is some secrecy that happens. The person who is the perpetrator has the power to be able to use this as a secret and keeps the child from maintaining its secrecy.

The next stage is helplessness. When the person realizes that this is an authority figure of some sort, whether a family member, a person in the community, a next door neighbor, whatever, that they realize that they're helpless in preventing it front occurring again. As I said earlier, the definition of pedophilia is that it is recurring. It's more that one occasion.

As time continues, the person starts realizing that this is not an appropriate behavior by the adult. So, they get into another stage called `entrapment' and abandonment. Where they're either feeling abandon by their family or entrapped in a situation that they can't do anything about it. And, this entrapment sometimes is also continuous with the threat of the perpetrator. Somehow assuming, the child assuming somehow that they're developing a relationship with the person who is the perpetrator. That they feel close, don't want to lose that love, this is their only connection.

At some later point, there may be some delayed communication about it, a delayed, a `disclosure' we call it. A lot of times it's not believed in the family because it's been so delayed after an extensive period of time. But the person really has a difficult time sharing that information based on the fact of all the other stages that the patient has gone through from secrecy, helplessness and the entrapment and abandonment.

Q. Doctor, in your experience and training is this a normal behavior of a young child that's been sexually . . .

A. It's very common with children, especially young

children. The younger the child when the incidents first

happen, the more that level of secrecy and helplessness

continue. And as a result, sometimes delayed communications

can happen ten, fifteen, twenty years later."

Appellant argued in his petition that trial counsel should

have investigated relevant law surrounding the so-called "Child

Sexual Abuse Accommodation Syndrome" (hereinafter referred to as the "CSAA Syndrome"). Had such an investigation been undertaken, appellant continued, counsel would have learned that the CSAA

Syndrome is generally viewed as suspect and should not be raised

in child sexual abuse cases if the victims are competent to

testify.

On October 15, 1996, appellant filed a fourteen (14) page affidavit in further support of his petition. The affiant, psychologist Jolie Brams, Ph.D., detailed her "findings and conclusions after an extensive review of the record pertaining to this case as well as consideration of psychological literature pertinent to the issues in this case." Dr. Brams opined that appellant's trial counsel "failed to present pertinent, readily available, and scientifically-based evidence that would have assisted the jury in understanding and evaluating the evidence presented during trial." In particular, she stated that trial counsel was "unfamiliar with available information concerning the complexities of child sexual abuse allegations, and related syndromes, or did not make an effort to present and/or use such information" to benefit his client. Dr. Brams explained, in the remaining twelve (12) pages of her affidavit, the complexities of child sexual abuse cases, the therapeutic nature of the CSAA Syndrome and her view of trial counsel's effectiveness in the instant case.

On April 22, 1997 the trial court overruled appellant's petition for post-conviction relief without a hearing. This Court reversed that judgment on the grounds that appellant's petition and supporting evidence set forth sufficient grounds for relief under R.C. 2953.21(C) that appellant should have been afforded an evidentiary hearing on his petition. See State v. Akers (Feb. 2, 1998), Lawrence App. No. 97CA22, unreported (hereinafter referred to as "Akers I"). The case was then remanded for further proceedings.

A hearing was held on May 21-22, 1998 at which time Dr. Brams further elaborated on the statements made in her previous affidavit. The witness explained that the CSAA Syndrome was formulated by a Dr. Ron Summit in the early 1980s to explain why

some sexually abused children do not immediately report such

abuse. She described this syndrome as follows:

"Basically, Dr. Summit's proposition is this. Is that if you don't report sexual abuse, you've been sexually abused. And, if you report sexual abuse and recant it, you've been sexually abused. And, if you report sexual abuse, then you've been sexually abused. So basically. most professionals see that as very much a Catch-22 Syndrome. No matter what you do you've been sexually abused."

Dr Brams further represented that Dr. Summit, himself, had since rejected the efficacy of this so-called syndrome and warned that it "should not be used in a probative manner." The witness testified that the CSAA Syndrome is not, and should not be used as, a diagnostic tool or an indicator of whether or not sexual abuse has occurred. Although Dr. Brams never directly opined that her colleague, Dr. Lowenstein, had used the CSAA Syndrome in this manner, she concluded that his testimony at the original trial was "inaccurate" and "negatively informative." She also alluded that trial counsel made serious mistakes by (1) failing to appropriately cross-examine Dr. Lowenstein, and (2) failing to...