State v. George Akers

Decision Date02 February 1998
Docket Number97 CA 22,98-LW-1045
PartiesSTATE OF OHIO, Plaintiff-Appellee v. GEORGE AKERS, Defendant-Appellant Case
CourtOhio Court of Appeals

COUNSEL FOR APPELLANT:[1] Angela Wilson Miller, Assistant State Public Defender, Office of the Ohio Public Defender, 8 East Long Street, 11th Floor, Columbus, Ohio 43215.

COUNSEL FOR APPELLEE: Jeffrey M. Smith, Assistant Prosecuting Attorney, Lawrence County Court House, 1 Veterans Square Ironton, Ohio 45638.

DECISION

PER CURIAM

This is an appeal from a judgment entered by the Lawrence County Common Pleas Court denying a R.C. 2953.21 motion for postconviction relief filed by George Akers, defendant below and appellant herein.

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FINDING MR. AKERS DID NOT COMPLY WITH R.C. 2953.21, THUS VIOLATING MR. AKER'S RIGHTS UNDER THE FIFTH SIXTH, NINTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I SECTIONS 1, 2, 5, 9, 10 16, AND 20 OF THE OHIO CONSTITUTION." (sic)
THE TRIAL COURT ERRED WHEN IT DENIED MR. AKERS' PETITION FOR POST CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING, THUS VIOLATING MR. AVERS' RIGHTS UNDER THE FIFTH, SIXTH, NINTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE 1, SECTIONS 1, 2, 9, 10, 16 AND 20 OF THE OHIO CONSTITUTION, AND OHIO REVISED CODE SECTION 2953.21."

On September 15, 1993, the Lawrence County Grand Jury indicted appellant on two counts of rape (an aggravated first degree felony) in violation of R.C. 2907.02, ten counts of felonious sexual penetration (an aggravated first degree felony) in violation of R.C. 2907.12, and twenty-five counts of gross sexual imposition (a third degree felony) in violation of R.C. 2907.05. On July 6, 1994, the trial court dismissed seven of the felonious sexual penetration counts and twenty-two of the gross sexual imposition counts. On July 7 1994, the jury returned guilty verdicts on three of the gross sexual imposition counts and not guilty verdicts on the remaining counts in the indictment.

On July 13, 1994, the trial court entered judgment of conviction for the three gross sexual imposition counts, sentenced him to three consecutive two year definite prison terms, and fined him $5,000. Appellant did not appeal his July 13, 1994 judgment of conviction and sentence.

On September 20, 1996, appellant filed a R.C. 2953.21 petition for postconviction relief and requested an evidentiary hearing.[2] In the motion, appellant alleged that he had been deprived of his constitutional rights to effective assistance of counsel and due process of law. In a memorandum in support of the petition, appellant objected to the fact that his trial counsel did not object or present rebuttal testimony to the following testimony of psychologist David Lowenstein:

"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 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 they did not report being abused until several years later. Is there a psychological explanation for that?
A. Yes, there is. And it's 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 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 from 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."

In his memorandum, appellant claimed that his trial counsel

should have investigated all the facts and law relevant to the case and should have learned in the process that child sexual abuse accommodation syndrome may not be mentioned in child sexual abuse cases if the victims are competent to testify. In support of the last proposition, appellant cited State v. Hollon (Jan. 28, 1991), Clermont App. No. CA90-03-029, unreported, and State v. Davis (1989), 64 Ohio App.3d 334, 581 N.E.2d 604.

On October 15, 1996, appellant filed an affidavit in support of his petition for postconviction relief. In the fourteen-page affidavit, psychologist Jolie Brams 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." 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." Brams stated that appellant's counsel either 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 appellant. In the remaining twelve pages of her affidavit, Brams explained the complexities of child sexual abuse cases, the therapeutic nature of the child sexual abuse accommodation syndrome, and her view of trial counsel's effectiveness in the instant case. Although the record transmitted on appeal does not include a copy of the entire trial transcript, it appears that Dr. Brams read the entire trial transcript prior to writing her affidavit.

On April 22, 1997, the trial court denied appellant's request for an evidentiary hearing and denied his petition for postconviction relief. Appellant filed a timely notice of appeal.

We will begin by discussing appellant's second assignment of error because resolution of that assignment of error determines the resolution of this appeal.

I

In his second assignment of error, appellant asserts that the trial court erred by denying his request for an evidentiary hearing. Appellant contends that his petition for postconviction relief, together with Dr. Brams' affidavit, set forth sufficient operative facts to demonstrate that appellant received ineffective assistance of counsel.

R.C. 2953.21 provides that any person convicted of a criminal offense and claiming a denial or infringement of constitutional rights may file a petition requesting the sentencing court to vacate or set aside the judgment. State v. Grover (1995), 71 Ohio St.3d 577, 645 N.E.2d 124. A petitioner is entitled to an evidentiary hearing if the petitioner sets forth sufficient operative facts to demonstrate that substantive grounds for relief exist. State v. Kapper (1983), 5 Ohio St.3d 36, 38, 448 N.E.2d 823, 825, certiorari denied (1983), 464 U.S. 856.R.C. 2953.21 provides in pertinent part as follows:

(C) Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. * * *

* * *

(E) Unless the petition and the files and record of the case show the petitioner is
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