State v. Lukens

• Decision Date: 12 June 1990
• Docket Number: No. 89AP-846,89AP-846
• Parties: The STATE of Ohio, Appellee, v. LUKENS, Appellant. *
• Court: Ohio Court of Appeals

Page 794

66 Ohio App.3d 794

586 N.E.2d 1099

The STATE of Ohio, Appellee, v. LUKENS, Appellant. ^*

No. 89AP-846.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided June 12, 1990.

Michael Miller, Pros. Atty., and Alan C. Travis, Columbus, for appellee.

Thomas M. Tyack & Associates Co., L.P.A., and Thomas M. Tyack, Columbus, for appellant.

STRAUSBAUGH, Judge.

Defendant, Donald Edgar Lukens, appeals his conviction for contributing to the unruliness of a child from the Franklin County Common Pleas Court, Division of Domestic Relations, Juvenile Branch.

Defendant was indicted and convicted of one count in violation of R.C. 2919.24, contributing to unruliness or delinquency of a child. The indictment alleged that defendant had engaged in sexual conduct, i.e., vaginal intercourse with a sixteen-year-old minor, Rosie Coffman ("Coffman"), on November 6, 1988.

Defendant entered a plea of "not guilty" and the case proceeded to jury trial. At trial, plaintiff, the state of Ohio, presented a number of witnesses including Coffman; her mother, Anna Coffman; private investigator, J.D. Caudill; and television reporter, Amy Walters.

The evidence indicated that on the night of November 6, 1988, Coffman was sixteen years of age. The synopsis of Coffman's testimony is as follows. On November 6, 1988, she was contacted by a friend, Michelle Foster ("Foster"), who informed Coffman that she had met defendant. Foster then asked Coffman if she would accompany her to defendant's residence. Coffman agreed and subsequently called a taxicab to provide transportation to defendant's apartment. Upon arrival, Coffman went to the door of defendant's apartment. Defendant gave her a $20 bill to pay the cab fare. Coffman and Foster then entered defendant's residence where defendant showed them his apartment. Defendant took the girls to a guest room and told them to undress and put on black robes. Coffman and Foster entered defendant's bedroom and joined defendant in bed. Following initial sexual contact by defendant with the two girls, Foster went upstairs; Coffman remained with defendant in his bedroom. Defendant asked Coffman to perform fellatio on him, which she did. Defendant then engaged in vaginal intercourse with her.

After consummation of the sex act, defendant gave Coffman $20. Defendant and Coffman went upstairs where Foster was and defendant offered Coffman a glass of brandy. When Coffman told defendant that the next day was her birthday, defendant gave her a pink fan and a locket. Defendant gave Foster a bottle of perfume and a diamond pendant. Defendant asked Coffman for her full name, address, and birthday. Although Coffman told defendant that she would be nineteen the next day, she did provide defendant with her correct birth date. Defendant then paid Foster $30 and gave Coffman an additional $20. Upon Coffman's request, defendant then transported Coffman to the residence of Foster's sister.

At the close of all the evidence, the case was submitted to the jury on separate counts of contributing to the delinquency of a child and contributing to the unruliness of a child. The charge of contributing to the delinquency of a child was predicated upon evidence of an engagement of sexual activity for hire. The jury returned verdicts of guilty as to both specifications.

Following the jury verdicts, defendant filed a motion for judgment of acquittal as to both specifications and also a motion for a new trial. The trial court, during the sentencing hearing, sustained defendant's motion as to the jury's finding that defendant had contributed to the delinquency of a child. The court concluded that there was insufficient evidence concerning an engagement of sexual activity for hire. The trial court overruled defendant's motion for acquittal as to the charge of contributing to the unruliness of a child and further overruled defendant's motion for a new trial.

The trial court then sentenced defendant to one hundred eighty days in jail and a fine of $1,000. The court suspended one hundred fifty days of the jail sentence and $500 of the fine contingent upon defendant's successful completion of a probation period.

Defendant now appeals to this court the judgment of the trial court, setting forth the following four assignments of error for our review:

"I. The rulings of the trial court restricting defense counsel in cross-examination from questioning the witnesses, Rosie Coffman and her mother, as to her juvenile court record, involvement in illegal activities that were not prosecuted, use and dependency upon alcohol and drugs, coupled with the exclusion by the court of all records from the court itself, Franklin County Children's Services, and the Columbus Board of Education relating to Rosie Coffman, deprived the defendant of the effective assistance of counsel and due process of the law.

"II. The instruction of the court to the jury encompassing a definition of 'unruly child' which was broader than that permitted by the language of the indictment, constitutes error that deprived the defendant of due process of law.

"III. The trial court erred in overruling the defendant's motion for mistrial after the prosecutor repeatedly attempted to interject inadmissible testimony inferring that the defendant engaged in improper activity with Rosie Coffman in 1985.

"IV. The trial court abused its discretion in imposing the sentence and terms of probation that it did upon the defendant."

Under the first assignment of error, defendant challenges the rulings of the trial court restricting the use of certain records pertaining to Coffman. The materials at issue include Coffman's juvenile records, Franklin County Children's Services' records, and Columbus public school records.

Defendant's contention at trial and in oral argument before this court concerning the use of the juvenile records of Coffman is twofold: (1) that the status of Coffman prior to the incident of November 6, 1988 is an element of the stated offense, therefore necessitating the introduction of the records at trial; and that (2) the records were relevant as to the issues of bias and credibility of Coffman's testimony at trial.

At trial, the state argued that admission of Coffman's juvenile records was limited by the interaction of Evid.R. 609(D) and R.C. 2151.358(H). Evid.R. 609(D) states that "[e]vidence of juvenile adjudications is not admissible except as provided by statute enacted by the General Assembly." R.C. 2151.358(H) provides in relevant part that:

" * * * The disposition of a child under the judgment rendered or any evidence given in court is not admissible as evidence against the child in any other case or proceeding in any other court * * *."

While the state's desire to protect the confidentiality of juvenile records is important, this interest is not in all instances absolute. See Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347, discussed more fully infra.

We initially address the issue as to whether the status of the child prior to November 6, 1988 is an element of the offense of contributing to the unruliness of a child. R.C. 2919.24(A)(1), contributing to unruliness or delinquency of a child, provides in relevant part:

"(A) No person shall * * *:

"(1) Aid, abet, induce, cause, encourage, or contribute to a child or a ward of the juvenile court becoming an unruly child, as defined in section 2151.022 of the Revised Code * * *."

The thrust of defendant's argument is that it is not possible to cause or contribute to a child "becoming" an unruly child if the child is already unruly. In State v. Caputo (1954), 202 Ore. 456, 274 P.2d 798, a similar argument was raised by a defendant charged with contributing to the delinquency of a minor. The applicable statute in Caputo, under which defendant was indicted, provided for conviction of:

" * * * [A]ny person who by threats, command or persuasion, endeavors to induce any child to perform any act or follow any course of conduct which would cause it to become a delinquent child, or any person who does any act which manifestly tends to cause any child to become a delinquent child * * *." Id., 202 Ore. at 458, 274 P.2d at 799.

In Caputo, the state alleged that defendant had induced a minor into engaging in an act of prostitution with defendant. Id. Defendant made the argument that "it was impossible to cause the prosecuting witness to 'become' a delinquent child when she already was one." Id., 202 Ore. at 464, 274 P.2d at 801.

The court rejected defendant's contention, stating that:

"To become a delinquent child is not analogous to becoming a member of a lodge * * *. Having joined a lodge, we suppose one could not become more a member, but one may become a more delinquent child. * * * " Id., 202 Ore. at 465, 274 P.2d at 802.

In a similar vein, a party charged with polluting a river may argue that many others have previously dumped garbage into the stream, and that the stream was already polluted. While it may be true that such party was not the primary polluter, that party is still responsible for contributing to the pollution of the river, as any pollution has some adverse effect.

As one court has noted:

" * * * We do not recognize that a child can become so irreconcilably delinquent that no act or omission can further impair its status * * *. There is no ' * * * open season as to any child who has once become a delinquent.' * * * " Anderson v. State (Alaska 1963), 384 P.2d 669, 672, overruled on other grounds (Alaska 1978), 583 P.2d 836. ¹

The obvious effect of allowing the use of evidence from juvenile records in an attempt to focus on the preexisting status of the child would be "to afford a lesser degree of protection to some minors than others * * *." State v. Apostle (Conn.App.1986), 512 A.2d 947, 963. Although the primary purpose of R.C. 2919.24 is to punish a crime, an ancillary intent is the protection of children. See, e.g., State v. Cialkowski (1975), ...