State v. Ross, 2010 Ohio 843 (Ohio App. 3/5/2010)

• Decision Date: 05 March 2010
• Docket Number: C.A. No. 22958.
• Parties: State of Ohio, Plaintiff-Appellee, v. Thomas L. Ross, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 1

2010 Ohio 843

State of Ohio, Plaintiff-Appellee, v. Thomas L. Ross, Defendant-Appellant.

C.A. No. 22958.

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on March 5, 2010.

Criminal appeal from Common Pleas Court, T.C. No. 2006 CR 4079.

R. Lynn Nothstine, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney,, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee.

Dwight D. Brannon, Atty. Reg. No. 0021657 and David D. Brannon, Atty., Reg. No. 0079755, 130 West Second Street, Suite 900, Dayton, Ohio 45402, Attorneys for Defendant-Appellant.

OPINION

FROELICH, J.

{¶ 1} Thomas Ross was found guilty by a jury in the Montgomery County Court of Common Pleas of four counts of gross sexual imposition of a child under the age of thirteen, one count of rape of a child under age ten, and one count of possession of cocaine. He was sentenced to life in prison. Ross appeals.

{¶ 2} For the reasons discussed herein, the judgment of the trial court will be affirmed.

I

{¶ 3} In September 2006, B.B., age 11, reported to his mother and grandfather that Ross, who was a former boyfriend of B.B.'s grandmother, had been touching him inappropriately. The family went to the police, and B.B. disclosed that he and other boys had watched pornographic movies at Ross's house, had engaged in oral sex with him, and had masturbated at his direction. B.B. also reported that Ross had provided marijuana, beer, and cigarettes to the boys and had offered them cocaine. Detectives then interviewed one of the other boys, D.D., and searched Ross's home. As a result, Ross was charged with four counts of gross sexual imposition of a child under the age of thirteen, three counts of rape of a child under the age of thirteen, and three counts of rape of a child under the age of ten. A second indictment later added a charge for possession of cocaine.

{¶ 4} Ross was tried by a jury in March 2008. Following the State's case, the trial court granted a directed verdict on one count of rape of a child under age ten (Count 9). The jury found Ross guilty on four counts of gross sexual imposition, one count of rape of a child under the age of ten, and possession of cocaine. The jury acquitted Ross of four other counts of rape. He was sentenced to five years of imprisonment on each count of gross sexual imposition (Counts 1, 2, 6, and 7), to life with parole eligibility after ten years on rape of a child under the age of ten (Count 10), and to six months for possession of cocaine (the "B" indictment"). Counts 1 and 2 were to be served consecutively; Counts 6, 7, and 10 were to be served concurrently; and Counts 1 and 2 were to be served concurrently with Counts 6, 7, and 10. The sentence on the "B" indictment was to be served concurrently with the sentences on the "A" indictment.

{¶ 5} Ross raises ten assignments of error on appeal. We will address these assignments in an order that facilitates our discussion.

II

{¶ 6} Ross's third assignment of error states:

{¶ 7} "THE TRIAL COURT ERRED IN PROHIBITING CROSS-EXAMINATION OF B.B. ON FALSE ALLEGATIONS OF ANAL RAPE AND ATTEMPTED ANAL RAPE."

{¶ 8} Ross contends that he should have been permitted to cross-examine B.B. about CARE House records which indicated that B.B. claimed to have been touched by Ross on the anus and which were inconsistent with his testimony at trial. The State contends that Ross mischaracterizes the evidence, that B.B. did not make such a statement, and that, therefore, cross-examination about such a statement was inappropriate.

{¶ 9} On cross-examination, a party may inquire into all matters pertinent to the case that the party calling the witness would have been entitled or required to raise. In re Fugate (Sept. 22, 2000), Darke App. No. 1512, citing Smith v. State (1932), 125 Ohio St. 137, paragraph one of the syllabus. However, the trial court has broad discretion in imposing limits on the scope of cross-examination. State v. Cobb (1991), 81 Ohio App.3d 179, 183. Trial judges have wide latitude "to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall (1986), 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674. An appellate court will not interfere with a trial court's decision about the scope of cross-examination absent an abuse of discretion. Fugate, supra. The term abuse of discretion "connotes more than an error in *** judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

{¶ 10} The CARE House record of an outpatient consultation with B.B. states that the history was obtained by caseworker Lisa Howze and that the medical history and evaluation were conducted by Dr. Lori Vavul-Roediger. Under "Details of Disclosure," the report of the consultation states:

{¶ 11} "On 9/25/06, [B.B.] disclosed to his mother [A.B.] that he had been experiencing ongoing sexual abuse by his paternal grandmother's boyfriend, Mr. Tom Ross. [Ross] would make [B.B.] and another alleged victim *** take their clothes off and touch [Ross's] penis using their hands and mouth. [B.B.] also reported that [Ross] would touch [B.B.] and [another alleged victim]'s penis with his hands. [Ross] would give the boys money in exchange for the sexual contact. *** [B.B.] also recently mentioned to his mother that [Ross] might have tried to penetrate [B.B.'s] butt with [Ross's] penis."

{¶ 12} Under "Medical Assessment," the report states:

{¶ 13} "[B.B.] recently disclosed to his biological mother and during an interview at the CARE House that an adult male ("Tom") engaged in multiple sexual acts with him. [B.B.] disclosed a history of penile-anal contact as well as being made to engage in oral-penile contact and genital fondling."

{¶ 14} At trial, Ross wanted to cross-examine B.B. about B.B.'s allegations during CARE House interviews of anal rape or attempted anal rape. The State objected, claiming that Dr. Vavul-Roediger did not talk with B.B. personally to obtain details of the allegations and that the statements in the report came from investigators or family members. Specifically, the prosecutor represented to the court that the statements regarding anal rape had been made by B.B.'s mother, A.B., rather than by B.B., and that Ross could not be permitted to cross-examine B.B. about a statement his mother made. The trial court ruled that there was "a state of confusion here." "[T]his report *** is not the statement of the testifying witness. It's not a written statement, it's not a recorded statement. It's a summary of information from some source. ***" The trial court concluded that, unless the defense could "confirm that [B.B.] made the statement that Ross had tried to penetrate his butt with his penis, you can't use that because it's not clear this is a statement of the patient." The trial court would permit Ross to confirm this through the testimony of another witness — such as Howze or A.B. — if he or she had heard B.B. say that there had been anal intercourse or attempted anal intercourse.

{¶ 15} In light of the ambiguity about the source of the assertion that there might have been penile-anal contact between Ross and B.B., the trial court did not abuse its discretion in prohibiting Ross from cross-examining B.B. about those assertions unless and until a witness could verify that B.B. had made such a statement himself.

{¶ 16} Later in the trial, Howze testified outside the presence of the jury that neither A.B. nor B.B. told her that B.B. had been anally penetrated by Ross. A.B. was out of state during the trial, but the trial judge had a recorded conversation with her by phone at which all the attorneys were present. In this conversation, defense counsel questioned A.B. about whether B.B. had reported to her "something about penile/anal contact, that he [Ross] might have or might have tried it." A.B. stated that B.B. never told her that Ross had tried to anally penetrate him. A.B. had pressed B.B., asking B.B. whether Ross had ever tried to anally penetrate him, and B.B. replied that "he might have, Mom, but I really don't want to talk about it." A.B. then specifically asked B.B. if Ross ever tried to anally penetrate him, and B.B. said no.

{¶ 17} Ross was allowed to use the outpatient consultation, Howze's testimony, and the telephone conversation with A.B. in his defense. He was only prohibited from questioning B.B. about reporting anal contact because, when B.B. testified, no one had yet testified that B.B. had ever made such a claim. Thus, the trial court simply prohibited Ross from attempting to impeach B.B. based on an alleged prior inconsistent statement without establishing that B.B. had indeed made such a statement.

{¶ 18} Evid.R. 607(B) provides that "[a] questioner must have a reasonable basis for asking any question pertaining to impeachment that implies the existence of an impeaching fact." See, also, State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, at ¶141. Without this basis, the mere asking of the question, even with a denial by B.B., would submit an irrelevant fact to the jury, which it would then have to be ordered to disregard. The trial court did not abuse its discretion by requiring Ross to establish this fact before allowing him to cross-examine B.B. about it.

{¶ 19} The third assignment of error is overruled.

III

{¶ 20} Ross's first assignment of error states:

{¶ 21} "THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT A NEW TRIAL BASED ON THE STATE'S FAILURE TO DISCLOSE EXCULPATORY MATERIALS."

{¶ 22} Ross claims that important exculpatory materials were withheld by the State until after his trial began, that other materials were never disclosed, and that he was deprived of a fair trial as a result. Ross claims that "large portions...