State v. Powers

Decision Date30 June 2020
Docket NumberCase No. 19CA3868
Citation2020 Ohio 7042
PartiesSTATE OF OHIO, Plaintiff-Appellee, v. BRIAN POWERS, Defendant-Appellant.
CourtOhio Court of Appeals

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Matthew F. Loesch, Portsmouth, Ohio, for Appellant.

Shane Tieman, Scioto County Prosecutor, and Jay S. Willis, Assistant Scioto County Prosecutor, Portsmouth, Ohio, for Appellee.

Smith, P.J.

{¶1} This is an appeal from a Scioto County Court of Common Pleas judgment entry convicting Appellant, Brian Powers, of three counts of rape, two counts of kidnapping, endangering children, intimidation of a victim, and illegal use of a minor in nudity-oriented material. On appeal, Appellant asserts eight assignments of error: (1) the trial court committed reversible error when it denied his motion for separate trials, (2) the trial court abused its discretion when it found the alleged child victim competent to testify as a witness, (3) Appellant's counsel was ineffective, (4) Appellant's Confrontation Clause rights were violated when the alleged child victim was permitted to testify via closed circuit camera, (5) Appellant's convictions were against the manifest weight and sufficiency of the evidence, (6) improper hearsay evidence was admitted at Appellant's trial, (7) the State of Ohio made improper comments during closing arguments which should have resulted in a mistrial, and (8) cumulative errors occurred at trial warranting reversal of his convictions.

{¶2} After reviewing the record and the applicable law, we overrule all of Appellant's assignments of error, except we find that there was insufficient evidence to support Appellant's convictions for intimidating a victim and endangering children. Therefore, we affirm in part and vacate in part the trial court's judgment entry of conviction.

I. PROCEDURAL HISTORY

{¶3} On February 28, 2018, the State charged Appellant with three counts of rape in violation of R.C. 2907.02 with specifications, two counts of kidnapping in violation of R.C. 2907.01 with specifications, endangering children in violation of R.C. 2919.22, and intimidation of a witness in violation of R.C. 2921.04, with all of the charges pertaining to a four-year-old victim, A.C. In the same indictment, the State also charged Appellant with illegal use of a minor in nudity-oriented material or performance inviolation of R.C. 2907.323 for images of nude minors, some engaging in sex acts, that were found on Appellant's PlayStation 3 ("PS3").

{¶4} On September 25, 2018, the trial court held an in camera hearing to determine if A.C. was competent to testify because she was four years old at the time of the assault. The judge invited the parties to submit questions, but neither party did. The judge began by asking A.C. some preliminary questions, such as the date of her birthday, and if she had any brothers and sisters. The judge then asked A.C. whether she understood what telling the truth meant. She answered affirmatively. The judge then asked A.C. several questions in an attempt to ascertain whether she understood the concept of telling the truth. It appears that A.C. answered truthfully to the judge's questions, and further stated that she understood she should not lie, but should "tell the truth."

{¶5} On that same day, the court also addressed the State's motion for A.C. to testify via closed circuit video pursuant to R.C. 2945.481(E), as opposed to testifying in person in the courtroom. The court heard testimony from A.C.'s stepmother, Michelle Carver, and A.C.'s therapist. Both provided testimony suggesting that it would be traumatic for A.C. to testify in person in the courtroom in front of Appellant.

{¶6} On January 8, 2019, the court issued an entry granting the State's motion to permit A.C. to testify during the trial via closed circuit video pursuant to R.C. 2945.481(E). Specifically, the court found under the totality of the circumstances that if A.C. was required to testify live in court there would be a substantial likelihood that A.C. would suffer serious emotional trauma. Two days later, the court issued an entry finding A.C. competent to testify because she "has the ability to receive accurate impressions of fact, has the ability to accurately recollect the impressions, and has the ability to relate the impressions truthfully."

{¶7} The case went to trial in January 2019. The following facts were gleaned from the trial court's record. Brian Carver (hereinafter Brian) and Hanna Giles are the biological parents of A.C., the minor victim in this case. Michelle Carver is A.C.'s stepmother. Sheri Trout is A.C.'s maternal grandmother and Appellant, Brian Powers aka "Pappy Brian," (hereinafter Pappy Brian or Appellant) is her boyfriend. Because Hanna became incarcerated, Brian had sole custody of A.C., but Sheri had visitation rights.

{¶8} Upon A.C. returning from a visit with Sheri on July 20, 2017, Brian and Michelle noticed that she was covered with what appeared to be some sort of insect bites. Consequently, they decided to take A.C. to an urgent care facility in Portsmouth. Brian testified that while in the examroom, A.C. made a gesture touching her breast and then running her hand to her crotch. Brian testified that he asked A.C. "where did you learn that?" Brian testified that A.C. stated "Peter done - - does that to her." Brian testified that Michelle then went to get the nurse, who recommended taking A.C. to Southern Ohio Medical Center in Portsmouth ("SOMC").

{¶9} Michelle testified that while they were at the urgent care facility, she asked Brian who Peter was but he did not know. Michelle testified that Brian asked A.C. who Peter was and A.C. responded that Sheri and Appellant had a fight and she (A.C.) had to go to Peter's house. Michelle testified that Brian then asked A.C. where Peter lived. She did not know, but did say that Peter had hurt her and touched her between her legs. Michelle testified that she told the doctor at the urgent care facility that she thought A.C. had been molested and the doctor recommended taking A.C. to SOMC in Portsmouth.

{¶10} Once they arrived at SOMC, the staff reported the assault to the Portsmouth Police Department, which dispatched Officer Irvin to the hospital to make a report. Officer Irvin's report indicated that he interviewed Brian. Brian's statement, as reflected in Officer Irvin's report, indicated that after returning from a visit with her grandmother (Sheri) and Appellant (Sheri's boyfriend), A.C. had bug bites on her legs, so he took herto an urgent care facility. The report indicated that at the urgent care facility, A.C. told Brian that "a friend of Sheri Trout and (Brian) Powers named 'Peter' put his thumb in her Cha Cha."

{¶11} Officer Irvin then interviewed A.C. A.C.'s statements, as reflected in Officer Irvin's report, indicated that she told Officer Irvin that "Peter put his thumb in her 'cha cha.' " She also described numerous details pertaining to Peter, such as he played with his cats and dogs, built a fire, etc.

{¶12} The SOMC Emergency Department Emergency Record notes state: "Stepmother reports that the child told her that a man named Peter put his thumb in her 'private area.' Incident occurred in Sciotoville." The staff at SOMC told Brian and Michelle to take A.C. to Adena Health System in Chillicothe ("Adena") because it was better equipped to handle the assault.

{¶13} Brian and Michelle then took A.C. to Adena where Dr. Zoran Naumovski and Sexual Assault Nurse Examiner Ashley King examined A.C. Nurse King testified that when she told A.C. she was going to have to examine A.C.'s private parts, A.C. began to cry. Nurse King utilized a sexual assault kit during the exam to collect evidence from A.C. that included taking photos of A.C.'s injuries and swabbing her external body parts for DNA, including the anal and perianal area, which is between the anus and vagina. Nurse King described A.C.'s vaginal area as havingabrasions, redness, and swelling. She also testified that A.C. had what appeared to be bruising "where the leg and the buttocks or the thigh there, the hip area, all this comes together inside the legs." Nurse King testified that when she was swabbing, A.C. was crying and sat up and grabbed Nurse King's scrubs and said "and that's why I popped up when Peter did it, because it hurt so bad." Finally, Nurse King testified that A.C.'s hymen was red and swollen, which was not normal for a four-year-old. She testified that due to A.C.'s injuries, she referred A.C. to the "Child Protection Center."

{¶14} Dr. Naumovski, also from Adena, testified that he examined A.C. "from head to toe," and she was normal except for her genital area. He testified that A.C. was combative, tearful, and would not cooperate during the genital exam. He testified that her genital area was red and swollen indicating irritation, which could be "mechanical" or "trauma." He further testified that when he examined A.C. approximately two weeks later her genital area had healed.

{¶15} Both Brian and Michelle testified that while at Adena, A.C. disclosed to them that it was not Peter, but Pappy Brian (Appellant) who touched her genital area. Nurse King testified that A.C. mentioned to her that "Peter" was the perpetrator. The medical records from Adena also indicate that Peter was the assailant.

{¶16} Based on the recommendation from Nurse King, on August 2, 2017, Brian and Michelle took A.C. to the Child Protection Center in Ross County ("CPC"), which exists "to ensure that Ross County and surrounding county children who had been sexually or physically abused received appropriate attention." http://www.thechildprotectioncenter.org/. At CPC, Ashley Muse-Gigley1 evaluated A.C., which was captured on video. During the video, A.C. indicated that Pappy Brian (Appellant) had "touched her pee-pee with his thumb" while her clothes were on. A.C. said that the touching occurred at Sheri's house. Ms. Muse-Gigley suggested a follow-up medical exam and...

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