State v. Romy
| Decision Date | 24 February 2021 |
| Docket Number | No. 2020 CA 00066,2020 CA 00066 |
| Citation | 168 N.E.3d 86 |
| Court | Ohio Court of Appeals |
| Parties | STATE of Ohio, Plaintiff-Appellee v. Rebecca Lynn ROMY, Defendant-Appellant |
JOHN D. FERRERO, PROSECUTING ATTORNEY, RONALD MARK CALDWELL, ASSISTANT PROSECUTOR, 110 Central Plaza South, Suite 510, Canton, Ohio 44702-1413, For Plaintiff-Appellee.
KRISTIN L. ZALENSKI, 116 Cleveland Avenue, NW, Suite 808, Canton, Ohio 44702, For Defendant-Appellant.
{¶1} Appellant, Rebecca Romy, appeals the judgment entered by the Stark County Court of Common Pleas convicting her of violating R.C. 2907.05(B), Gross Sexual Imposition, and R.C. 2919.22(B)(2) Endangering Children. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2} On November 19, 2019, the Stark County Grand Jury indicted Appellant with one count of Gross Sexual Imposition in violation of R.C. 2907.05(B) and Endangering Children in violation of R.C. 2919.22(B)(2).
{¶3} On December 6, 2019, Appellant entered a plea of not guilty to both counts of the indictment.
{¶4} On January 15, 2020, Appellant filed a Motion for Appropriation of Funds for Expert Assistance.
{¶5} On February 3, 2020, Appellant filed a Daubert Motion and Motion in Limine to exclude testimony by Appellee's expert.
{¶6} On February 12, 2020, the trial court denied Appellant's Motion for Appropriation of Funds for Expert Assistance, Appellant's Daubert Motion, and Appellant's Motion in Limine to exclude the testimony of Appellee's expert.
{¶7} On February 19, 2020, the matter proceeded to a jury trial.
{¶8} At trial, the State first called MB to testify. On direct examination, MB testified that CS had lived with her since April of 2018, and that she was currently CS's legal guardian. MB continued that, in September of 2018, MB, when CS was ten years old, had noticed CS had spread peanut butter all over his belly and down in his boxers. CS was allowing the dogs to lick the peanut butter off. After giving CS a bath, MB's adult daughter asked CS where he learned to do that. CS explained that his mother, Appellant, and her boyfriend, Chad Newman, had done that to him. MB then contacted Child Protective Services and brought CS in for an interview. MB then testified she took CS to Carrie Schnirring for a psychological assessment.
{¶9} Next, the State called CS to testify. On direct examination, CS testified that Appellant held CS's legs down while Newman put peanut butter on his rectum and penis, then had the dog lick the peanut butter off. CS identified Appellant as having held down his legs.
{¶10} On cross examination, CS testified that he was watching tv on the couch just prior to the incident. CS also testified that Newman, as well as the dog, licked the peanut butter, and that Newman had done this to another neighborhood boy.
{¶11} After CS testified, trial counsel for Appellant moved for a mistrial claiming the trial court judge admonished him in front of the jury, thereby tainting the jury and putting Appellant in a position where she would not receive a fair trial. The trial court denied the motion.
{¶12} The State then called Detective Mongold to testify. Detective Mongold testified that he investigated the abuse of CS with Newman as the primary suspect and Appellant as a witness. As the investigation developed, Mongold stated information came out that Appellant was an active participant in the abuse, and not just a witness. Mongold further testified he had trouble locating the residence where the incident took place, but eventually identified it.
{¶13} Next, the State called Kelly Stoffer to testify. Stoffer testified that during her in-home visit with MB and CS, everything seemed appropriate. Stoffer interviewed Appellant, at which point Appellant said she did not remember the incident, but that she believed Newman to be capable of such things.
{¶14} The State also called Kathleen Nduati, a pediatric nurse practitioner. She testified that from the information CS gave her, she diagnosed child sex abuse.
{¶15} The State then called Carrie Schnirring. Schnirring testified that she conducted a psychological evaluation on CS and diagnosed CS with having adjustment disorder with mixed disturbance of emotion and conduct.
{¶16} The State then rested its case-in-chief.
{¶17} Before Appellant's attorney presented Appellant's case-in-chief, it came to the court's attention that jurors had been discussing the case. Juror No. 65 indicated his dislike for defense counsel and was subsequently dismissed. Juror No. 19 stated that the trial would last a little longer as the defense would have to present their case. Juror No. 11 said the defense has to prove its case and that takes time.
{¶18} Appellant's attorney called KS to testify. KS testified that the residence believed to be the house where the incident took place had no furniture or electricity.
{¶19} Appellant then took the witness stand to testify. Appellant testified that CS lived with his grandfather for most of his life. She testified that the only furnishing in the residence she shared with Newman were a mattress and box springs. She continued that the only utility they had was water, no electricity. She denied ever witnessing or participating in any abuse of CS.
{¶20} Appellant's trial counsel then rested the case and moved that based upon all the evidence, the State did not prove its case by proof beyond a reasonable doubt.
{¶21} The trial court overruled the motion.
{¶22} On February 21, 2020, the jury returned a verdict of guilty on both counts of the indictment.
{¶23} On February 24, 2020, the trial court sentenced Appellant to five years of incarceration.
{¶24} On March 24, 2020, Appellant filed a notice of appeal. He herein raises the following nine Assignments of Error:
{¶25} "I. THE COURT COMMITTED REVERSIBLE ERROR IN EXCLUDING TESTIMONY REGARDING AN ADDITIONAL DISCLOSURE BY THE ALLEGED VICTIM INVOLVING A SECOND VICTIM NEARLY CONTEMPORANEOUS WITH THE CHARGED CRIMINAL CONDUCT.
{¶26} "II. THE TRIAL COURT ERRED IN PERMITTING THE TESTIMONY OF MS. SCHNIRRING AS IT SERVED AS IMPROPER VOUCHING FOR THE CREDIBILITY OF C.S. AND THE VERACITY OF HIS STATEMENTS WHICH IMPERMISSIBLY USURPED THE ROLE OF THE JURY.
{¶27} "III. TRIAL COURT ERRED IN DENYING APPELLANT'S PRAYER FOR FUNDS FOR AN EXPERT WITNESS, DENYING APPELLANT OF HER RIGHTS TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶28} "IV. THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST TO SUBJECT MS. SCHNIRRING'S METHODOLOGY TO A DAUBERT HEARING.
{¶29} "V. APPELLANT [SIC] COUNSEL ENGAGED IN INEFFECTIVE ASSISTANCE AFTER FAILING TO REQUEST A CURATIVE INSTRUCTION AFTER THREE JURORS DISCUSSED THE NEED FOR THE DEFENSE TO ‘PROVE ITS CASE.’
INFLUENCED THE JURY AND INDICATED A LACK OF IMPARTIALITY.
{¶31} "VII. APPELLANT COUNSEL ENGAGED IN INEFFECTIVE ASSISTANCE IN DECLINING TO WITHDRAW DESPITE A PERCEIVED, INTRACTABLE DISPUTE WITH THE COURT.
{¶32} "VIII. THE TRIAL JUDGE VIOLATED APPELLANT'S FIFTH AND FOURTEENTH AMENDMENT RIGHTS AGAINST CRUEL AND UNUSUAL PUNISHMENT IN IMPOSING AN EXCESSIVE SENTENCE OF THE STATUTORY MAXIMUM OF 5 YEARS.
{¶33}
{¶34} In Appellant's first Assignment of Error, Appellant argues the trial court erred in excluding evidence that CS had seen Newman go to a neighboring house and engage in the same abusive conduct with a four-year-old boy. We disagree.
{¶36} "If an argument exists that can support [an] assignment of error, it is not this court's duty to root it out." Thomas v. Harmon , 4th Dist. Lawrence No. 08CA17, 2009-Ohio-3299, 2009 WL 1913281, at ¶14, quoting State v. Carman , 8th Dist. Cuyahoga No. 90512, 2008-Ohio-4368, 2008 WL 3975573, at ¶31. "It is not the function of this court to construct a foundation for [an appellant's] claims; failure to comply with the rules governing practice in the appellate courts is a tactic which is ordinarily fatal." Catanzarite v. Boswell , 9th Dist. Summit No. 24184, 2009-Ohio-1211, 2009 WL 692381, at ¶16, quoting Kremer v. Cox , 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (9th Dist. 1996). Therefore, "[w]e may disregard any assignment of error that fails to present any citations to case law or statutes in support of its assertions." Frye v. Holzer Clinic, Inc. , 4th Gallia No. 07CA4, 2008-Ohio-2194, 2008 WL 1976638, at ¶12. See, also , App.R. 16(A)(7) ; App.R. 12(A)(2) ; Albright v. Albright , 4th Dist. Lawrence No. 06CA35, 2007-Ohio-3709, 2007 WL 2070364, at ¶16 ; Tally v. Patrick, 11th Dist. Trumbull No. 2008-T-0072, 2009-Ohio-1831, 2009 WL 1036135, at ¶21-22 ; Jarvis v. Stone , 9th Dist. Summit No. 23904, 2008-Ohio-3313, 2008 WL 2600225, at ¶23 ; State v. Paulsen , 4th Hocking Nos. 09CA15, 2010-Ohio-806, 2010 WL 746764, ¶6 ; State v. Norman , 5th Guernsey No. 2010-CA-22, 2011-Ohio-596, 2011 WL 486348, ¶29 ; State v. Untied , 5th Dist. Muskingum No. CT20060005, 2007 -Ohio- 1804, 2007 WL 1122731, ¶141.
{¶37} An appellate court may rely upon App.R. 12(A) in...
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Introduction
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