State v. Jeffrey B. Sibert
| Decision Date | 04 November 1994 |
| Docket Number | 94-LW-0935,93CA562 |
| Parties | State of Ohio, Plaintiff-Appellee v. Jeffrey B. Sibert, Defendant-Appellant Case |
| Court | Ohio Court of Appeals |
Charles H. Wilson, Jr., West Union, Ohio, for Appellant.
Gregory A. Carroll, Adams County Prosecuting Attorney, West Union Ohio, for Appellee.
DECISION
Jeffrey B. Sibert appeals from a judgment of conviction and sentence entered by the Adams County Court of Common Pleas. A jury convicted appellant of three counts of rape, in violation of R.C. 2907.02(A)(1)(b), with force specifications under R.C. 2907.02(B). He assigns twelve errors.
The Adams County Grand Jury indicted appellant alleging that appellant forcibly raped three different boys on separate dates in June and November 1991, and January 1992. All three victims were under age thirteen at the time of the alleged offenses and are brothers. Prior to trial, the state filed a motion requesting that the court allow the victims to testify by closed circuit television pursuant to R.C. 2907.41(C). At a hearing, clinical psychologist Dr. Bruce Kline, Psy.D testified that the boys would suffer serious emotional trauma if they were forced to testify directly in front of appellant. The trial court then ruled that Marshall, age ten, and William, age nine, could testify by closed circuit television but John, age twelve at the time of the trial, must testify in court.
At trial, the victims' mother testified that she met appellant in 1985, and that appellant became a close friend of the family. Appellant's mother babysat for the children and she would allow appellant to watch the kids. The victims' mother also testified that the last time appellant would have been in her home was January 1992. She testified that she observed marked emotional changes in the victims after appellant was arrested.
Each victim testified that appellant pulled down the boy's pants and sucked on his penis while holding him down. Marshall testified that appellant, on the same date, raped him three times, twice at his house and once at appellant's house. John, the oldest boy, testified that appellant told him that if he told anyone what appellant did, appellant would chop John's twin sister into pieces and feed her to the cows and would also hurt him. John also corroborated the youngest boy Billy's story that John walked into the bedroom one time and saw appellant and Billy lying on the bed and Billy did not have pants on.
At trial, Dr. Kline testified that after examining the victims on four occasions and performing a number of tests on them, he concluded that the victims' reactions were consistent with allegations of sexual abuse. On redirect exam, Dr. Kline repeated his testimony from the earlier hearing, testifying that he believed that forcing the children to testify directly in the presence of appellant would cause them serious emotional trauma.
The state also presented the testimony of Patrolman Chuck Jones of the Village of Seaman Police Department. Patrolman Jones testified that on the day appellant was arrested, Jones interviewed appellant on audio tape. The court then allowed Jones to play the tape for the jury deleting a portion of the taped statement. On the tape, appellant first denied all allegations of sexual contact between himself and the victims. The audio tape was then turned off. Nine minutes later, Jones turned the tape back on and appellant conceded that he had "sexual contact" with the boys. He also made statements that he needed help, he was sick, and he thought he had his problems cured but now he guessed they were worse.
The defense presented numerous friends and family of appellant as witnesses. They all testified that they had seen the victims and observed them get along very well with appellant, showing no signs of fear or dislike toward appellant. In addition, several witnesses testified that they trusted appellant to babysit their children. Appellant took the stand in his own defense and denied the allegations against him. He attempted to explain his taped statement in which he admitted to having sexual contact with two of the boys. Appellant said that when the tape was turned off between the first and second statement, Patrolman Jones and Village of Seaman Chief of Police Crawford told him that if he ever kissed one of the boys on the cheek or forehead, that constituted sexual contact. Because he was close to the boys, appellant testified he had kissed them in that way and therefore stated on the tape that he had sexual contact. Appellant also offered explanations for his other statements on the tape. Further, appellant testified that the last time he was with the victims was New Year's Day 1992, i.e., before Marshall's alleged rape.
The trial court instructed the jury on the rape charge but refused appellant's request for an instruction on the lesser included offense of gross sexual imposition, a violation of R.C. 2907.05(A). The jury requested, and the court allowed, a replaying of appellant's taped statement. The jury found appellant guilty of all charges. The trial court sentenced appellant to three life sentences, with the sentences on counts one and two running consecutively and count three running concurrently with counts one and two. The trial court entered the judgment of guilt and sentence and overruled appellant's motion for a new trial.
In his first two assignments of error, appellant challenges specific aspects of the application of R.C. 2907.41(C). The General Assembly has provided a procedure which allows child rape victims who are under age eleven to testify in a room other than that in which the proceeding is being held, by closed circuit television. R.C. 2907.41(C).(fn1) Appellant does not challenge the constitutionality of this procedure. We note, however, that the Ohio Supreme Court has held that the provisions of R.C. 2907.41(A) and (B) regarding the use of videotaped depositions of child witnesses do not violate a criminal defendant's right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. State v. Self (1990), 56 Ohio St.3d 73, paragraph one of the syllabus. Ohio courts have not specifically addressed the constitutionality of the procedures for use of closed circuit television under R.C. 2907.41(C). However, the United States Supreme Court has held that the Sixth Amendment to the United States Constitution does not prohibit the use of one-way closed circuit television for testimony of a child witness when testimony in the courtroom will cause the child "serious emotional distress such that the child cannot reasonably communicate." Maryland v. Craig (1990), 497 U.S. 836, 856. The Ohio Supreme Court has stated that there is no significant difference between the Ohio statute and the statute approved in Craig. Self, supra, at 78. Further, the Self court expressed its belief that the standard of emotional distress approved in Craig is not materially different from Ohio's standard of "serious emotional trauma" and that Ohio's statute intrudes less upon the defendant's confrontation rights than the statute in Craig because Ohio's procedure specifically requires that the defendant be visible to the child witness. Id., fn. 5.
Appellant contends the trial court erroneously found that R.C. 2907.41(C) should be used. Following a hearing, the trial court found that William and Marshall were under eleven years of age at the time of the indictment and that there was a substantial likelihood they would suffer serious emotional trauma from testifying in the physical presence of appellant. R.C. 2907.41(E) (3). Obviously, the state must prove each element of a crime beyond a reasonable doubt. However, preliminary factual questions need only be established by a preponderance of the evidence regardless of whether the case is civil or criminal in nature. See State v. Canalos (June 26, 1991), Athens App. No. 1442, unreported, citing United States v. Bourjaily (1987), 483 U.S. 171, at 175. Thus, we review the trial court's factual findings by determining whether the findings are supported by some competent, credible evidence. Self, at 80, citing C.E. Morris v. Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, syllabus. Appellant argues under this assignment of error that Dr. Kline did not give the facts and data underlying his opinion as required by Evid.R. 705. This argument is without merit. Dr. Kline testified:
*** we administered a variety of assessment measures including the House Tree Person Projective Test, the Children's Depressant Inventory, the Children's Anger Inventory, the Kinetic Family Drawing, the Cooper-Smith Self-Esteem Inventory, the Incomplete Sentences Inventory, the Children's Apperception Test to each of the children involved and from those data and from the interviews that we did with them and the observations that we did with them and the use of anatomically correct dolls, et cetera, we came to the opinion that I was about to give to you.
He further testified that he and his assistant met with each child three times, he described the visits and he explained his experience in working with sexually abused children. Thus, Dr. Kline set forth the underlying facts and basis for his opinion. See State v. Burrell (1993), 89 Ohio App.3d 737, 742; State v. Proffitt (1991), 72 Ohio App.3d 807.
Appellant also mentions briefly that Dr. Kline's opinion was not tied in with "psychological certainty." Generally, as...
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