State v. Roger Boggs

• Decision Date: 06 May 1993
• Docket Number: 93-LW-1881,92 CA 540
• Parties: STATE OF OHIO, Plaintiff-Appellee v. ROGER BOGGS, Defendant-Appellant Case
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. ROGER BOGGS, Defendant-Appellant

No. 92 CA 540.

93-LW-1881 (4th)

Court of Appeals of Ohio, Fourth District Adams

May 6, 1993

Randall M. Dana, Ohio Public Defender and Kort Gatterdam, Assistant State Public Defender, Columbus, Ohio, for Appellant.

Robert D. Castor, Assistant Prosecuting Attorney, West Union, Ohio for Appellee.

DECISION

Stephenson J.

This is an appeal from a judgment entered by the Adams

County Court of Common Pleas finding no reason to reopen this case and remanding Roger Boggs, defendant below and appellant herein, for completion of his previously imposed sentence. Appellant assigns the following errors for our review:

I. "THE TRIAL COURT ERRED IN REFUSING TO ALLOW TESTIMONY AT THE EVIDENTIARY HEARING FROM APPELLANT'S WITNESSES AS TO THE ALLEGED VICTIM'S PRIOR FALSE ACCUSATIONS OF SEXUAL MISCONDUCT. SAID ERROR DEPRIVED APPELLANT OF HIS OHIO AND UNITED STATES CONSTITUTIONAL RIGHTS TO PRESENT A DEFENSE AND TO DUE PROCESS OF LAW."

II. "THE TRIAL COURT ERRED IN REFUSING TO GRANT MR BOGGS A NEW TRIAL. SAID ERROR DEPRIVED MR. BOGGS OF HIS OHIO AND UNITED STATES CONSTITUTIONAL RIGHTS TO CONFRONTATION CROSS-EXAMINATION AND DUE PROCESS OF LAW."

A short summary of the facts pertinent to this appeal is as follows. Tn the latter hours of Christmas Eve, 1988, Elizabeth Berman visited the emergency room of the Adams County Hospital and reported that appellant had assaulted and raped her earlier that evening. On January 26, 1989, appellant was indicted by the grand jury on one count of rape in violation of R.C.A 2907.02, one count of kidnapping in violation of R.C. 2905.01 and one count of felonious assault in violation of R.C. 2903.11.

The matter came on for trial on May 15, 1989, at which time Ms. Berman identified appellant as the individual who raped and assaulted her. Photographs introduced by the state corroborated appellant's testimony that she had been beaten. Testimony by Dr. Randall Volk, attending physician at the Adams County Hospital emergency room, revealed that Ms. Berman had a small anterior anal laceration. However, Dr. Volk also testified that he found no injury whatsoever to the vulva or vaginal areas. Scientific tests on items taken as part of the so-called "rape kit" revealed no traces of any seminal fluid and that all hair samples taken at the scene had come from the alleged victim herself. Ms. Berman conceded on cross-examination that she has been under longtime treatment for schizophrenia and depression as well as "psychotic episodes" in which she would "lose touch with what's real and what's not real." During cross-examination, defense counsel attempted to question Ms. Berman concerning previous false rape accusations that she was alleged to have made against other individuals. The lower court ruled that such questioning violated the "rape shield provisions" of R.C. 2907.02(D) and prohibited all inquiry into that subject.

The jury returned a verdict finding appellant guilty on all counts specified in the indictment and, subsequently, the trial court entered its judgment of conviction thereon. In State v. Boggs (Jan. 23, 1991), Adams App. No. 494, unreported, we reversed that conviction on the grounds that appellant should have been permitted to cross-examine Ms. Berman as to the prior false rape accusations she was alleged to have made. In so ruling, we held that a criminal accusation against another individual was not a "sexual activity" and therefore questions regarding such accusations were not precluded by the "rape shield" provisions of R.C. 2907.02(D). Id. at 11. Considering that appellant's conviction turned substantially on Ms. Berman's identification as the party that raped her, and given that the proclivity of an individual to make false rape accusations is generally considered an imperative category of defense evidence, we held that constitutional guarantees under the confrontation clause required that this sort of questioning be permitted. Id. at 14-15.^[1]

The Ohio Supreme Court disagreed and in State v. Boggs (1992), 63 Ohio St.3d 418, our decision was reversed. The court agreed that "[f]alse rape accusations, where no sexual activity is involved, [did] not fall within the rape shield statute." It was determined, however, that such false accusations were "an entirely collateral matter" which could not be shown at trial by resort to extrinsic evidence should the alleged victim deny making them. Id. at 422. The court reasoned that, to allow otherwise, "would immeasurably set back the recent trend towards ensuring that the person on trial is the defendant and not the alleged victim." Id. The case was then remanded to the trial court to conduct an in camera hearing to determine whether "the prior accusation was based on sexual activity or was totally unfounded." Id. at 424.

The matter came on for further consideration before the trial court on May 11, 1992, at which time Ms. Berman denied making any prior rape accusations whatsoever. Appellant was then precluded from offering any evidence that such accusations had, in fact, been made.^[2] The court ruled from the bench that there was no reason to "open this case up again in view of the answers given by the alleged victim, Ms. Berman." A judgment to that effect was entered on May 15, 1992, and this appeal followed.

We shall consider the two assignments of error together as they raise a number of interrelated arguments. One of these is that the lower court erroneously excluded the contradictory evidence proffered by appellant at the hearing below. Appellant concludes that such action handicapped and prevented him from even attempting to meet his burden of showing that prior false rape accusations had been made. We agree.

Our interpretation of the Boggs decision is that it adopts a two stage procedure to be employed by the courts in handling allegations of prior false rape accusations. This procedure begins from the premise that "defense counsel inquires of an alleged rape victim as to whether she has made any false prior rape accusations

. . ." Boggs,supra at 421. If the victim responds in the negative, then the "trial court would have the discretion to determine whether and to what extent defense counsel can proceed with cross-examination." Id. However, if the alleged victim admits on cross-examination that she made prior false rape accusations, then an incamera hearing is to be held at which time the court is to determine whether sexual activity was involved. Id. at paragraph two of the syllabus. If such activity was involved, then further cross-examination is prohibited by the rape shield provisions of R.C. 2907.02(D). Id. If the prior false rape accusation was "totally unfounded,wv then the trial court has discretion to permit further cross-examination with the caveat that Evid.R. 608(B) precludes the introduction of any extrinsic evidence on the issue. Id. and 421-422.

This indicates that there are to be two separate and distinct stages of proceedings. The first of these is the trial where counsel inquires as to the allegations of prior false rape accusations. If the alleged victim admits having made the allegations and if they are determined in camera to be unfounded, the trial court may permit further cross-examination subject to the prohibitions against. extrinsic evidence under Evid.R. 608(B). The second stage of proceeding is the in camera hearing (out of the presence of the jury) where the trial court is to actually make the determination of whether the prior false rape accusation involved "sexual activity." Although the Supreme Court has ruled that extrinsic evidence of prior false rape accusations is inadmissible during trial, no such ruling was made with respect to the in camera hearing. This is consistent with general evidence principles providing that the rules, including Evid.R. 608(B), do not apply to preliminary determinations of evidentiary admissibility. See Evid.R. 101(C) & 104(A); also see Giannelii, Ohio Evidence Manual (1987) 31, Section 104.03; Weissenberger, Ohio Evidence (1991 Courtroom Manual) 5. Indeed, it is difficult to imagine how a trial court could even make a fair and well reasoned factual determination of whether the accusations involved "sexual activity" without considering extrinsic evidence.

The Supreme Court's instructions on remand of this case were as follows:

"In the present case, an in camera hearing was held but no inquiry was made as to the nature of the prior accusation, that is, whether the prior accusation was based on sexual activity or was totally unfounded. Since no testimony concerning the alleged prior false rape accusation was admitted. and none was received during the rape shield hearing conducted before trial, we cannot, on this record, determine whether the evidence offered by the defense was properly excluded as involving sexual activity and thus protected by the rape shield statute. Moreover, the trial judge must in the first instance determine whether the accused has met his burden of establishing that the victim's prior accusations were clearly unfounded. We therefore remand this case to the trial court to conduct an in camera hearing consistent with this opinion to make the necessary determinations." (Emphasis added.) Id. at 424.

The court below was ordered to conduct an in camera hearing to determine whether the alleged prior false rape accusations were unfounded. The instructions on remand expressly noted the absence of any evidence of prior false rape accusations from the record and would seed to indicate that such evidence was to be taken. As previously discussed there is nothing in the Boggs decision which prohibits the introduction of extrinsic evidence during the in camera hearing phase of the proceedings. A ...