State v. Self

• Decision Date: 12 December 1990
• Docket Number: No. 89-1501,89-1501
• Parties: The STATE of Ohio, Appellant, v. SELF, Appellee.
• Court: Ohio Supreme Court

Page 73

56 Ohio St.3d 73

564 N.E.2d 446

The STATE of Ohio, Appellant, v. SELF, Appellee.

No. 89-1501.

Supreme Court of Ohio.

Submitted Oct. 2, 1990.

Decided Dec. 12, 1990.

Syllabus by the Court.

1. The use, in accord with R.C. 2907.41(A) and (B), of a child sexual abuse victim's videotaped deposition at trial in place of live testimony does not violate a defendant's right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. (Maryland v. Craig [1990], 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666, applied and followed; Coy v. Iowa [1988], 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857, and State v. Eastham [1988], 39 Ohio St.3d 307, 530 N.E.2d 409, distinguished.)

2. To admit a child-victim's videotaped deposition under R.C. 2907.41(B)(1)(b), a finding must be made that the child would experience serious emotional trauma if required to testify in open court. Permanent injury need not be proven to establish serious emotional trauma. (R.C. 2907.41[B][b], construed.)

On November 23, 1986, defendant-appellee, Robert Self, was at home in his trailer in Felicity, Ohio, with his wife and three children, including his six-year-old daughter, Angela. Sometime during the evening, Mrs. Self left the trailer while appellee stayed with the children.

Angela testified that appellee placed her on top of a stereo and forcibly raped her. Angela began bleeding from her vagina. Appellee put her in a bathtub and filled it with water. He removed her, placed her on a towel in the hallway, and, as appears consistent with her injuries, inserted a curtain rod into her vagina.

Appellee claimed that Angela's injuries were caused by a fall on the curtain rod and that he put her in the bathtub to stop the bleeding.

The following afternoon, Mrs. Self took Angela to the emergency room at Mercy Hospital in Anderson. The emergency room physician determined that Angela's injuries could more effectively be treated at Children's Hospital Medical Center in Cincinnati.

At Children's Hospital, Angela underwent surgery to close lacerations in her vagina. Dr. Robert Shapiro, a member of the hospital's sexual abuse team, determined that her injuries were the product of sexual abuse and could not have been caused accidentally. Angela was placed in foster care, after which she related the circumstances of her injury.

Appellee was indicted for forcible rape of a person under thirteen and felonious sexual penetration of a person under thirteen.

Before trial, the state, pursuant to R.C. 2907.41(A)(1), moved to have Angela's testimony taken by videotaped deposition. At the hearing on the motion, the state presented testimony from Fran Eckerson, Angela's psychotherapist. Eckerson stated that Angela would suffer serious, but not permanent, emotional trauma if she were required to testify in court in her father's presence. Following the hearing, the court granted the motion.

The videotaped deposition was taken pursuant to R.C. 2907.41(A)(2). ¹ The trial judge, counsel for both parties, the videotape operator, the court reporter, the bailiff, and Edna Smith (a "support person" chosen by Angela) were in the room with Angela during the videotaping. Appellee sat in an adjacent room. He was provided with an audio and video monitor through which he could observe the proceedings, and a telephone through which he could communicate with counsel. The trial judge allowed a recess before cross-examination so appellee could communicate with counsel. There was a video monitor placed in the room with Angela so she could see appellee.

Over defense objection, the videotape was admitted into evidence and played at trial. The state also presented testimony from Eckerson and Melissa O'Farrell, a case worker with the Clermont County Department of Human Services, relating the content of Angela's statements to them.

The jury returned guilty verdicts on both counts of the indictment, and appellee was sentenced to two consecutive terms of life imprisonment. He appealed the admission of Angela's videotaped deposition and the admission of the hearsay statements. The Court of Appeals for Clermont County, relying in part on Coy v. Iowa (1988), 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857, and State v. Eastham (1988), 39 Ohio St.3d 307, 530 N.E.2d 409, held the deposition and the hearsay statements inadmissible, and remanded for a new trial.

The state appealed to this court, and we granted jurisdiction. ( [1989], 47 Ohio St.3d 707, 547 N.E.2d 991.) While the case was pending before us, the United States Supreme Court decided Maryland v. Craig (1990), 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666, and Idaho v. Wright (1990), 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638. We ordered supplemental briefing to discuss the import of those cases. ( [1990], 53 Ohio St.3d 701, 558 N.E.2d 58.)

This cause is before the court pursuant to the allowance of a motion for leave to appeal.

Donald W. White, Pros. Atty., Batavia, Albert J. Rodenberg, Jr. and Daniel J. Breyer, Cincinnati, for appellant.

R. Scott Croswell, III and Elizabeth E. Agar, Cincinnati, for appellee.

HERBERT R. BROWN, Justice.

This case arises from a prosecution on charges related to allegations of child abuse. We consider three issues: (1) whether use of videotaped testimony by the child-victim violates the Confrontation Clauses contained in the Ohio and federal Constitutions; (2) whether the hearsay rule is violated by the admission of testimony from a therapist and a case worker relating statements made to them by the child-victim; and if so, (3) whether the error was prejudicial. For the reasons which follow we reinstate appellee's convictions because we find no violation of the constitutional Confrontation Clauses and we find the admission of the challenged hearsay evidence to be harmless error.

I Constitutionality of R.C. 2907.41(A) Videotaped Deposition Procedure

R.C. 2907.41, enacted in 1986, is intended to protect child sexual abuse victims from traumatization in an "intimidating courtroom atmosphere" while preserving the right of the accused to confront the witnesses against him. Comment, Children's Testimony in Sexual Abuse Cases: Ohio's Proposed Legislation (1986), 19 Akron L.Rev. 441, 442-445. Similar statutes are in effect in at least forty-four other states. See Maryland v. Craig (1990), 497 U.S. 836, ----, 110 S.Ct. 3157, 3167-3168, 111 L.Ed.2d 666, 683-684, fn. 2-4.

The Ohio statute which is at issue here (R.C. 2907.41) permits the testimony of a child who was under eleven at the time of the indictment to be prerecorded as a "videotaped deposition" which can be played at trial. The deposition may only be admitted at trial ² if the court specifically finds: (1) that the witness would suffer "serious emotional trauma" if required to testify in the presence of the defendant, and (2) that the defendant was given an opportunity to develop the testimony by direct, cross-, or redirect examination similar to the opportunity he would have had in the courtroom. ³ R.C. 2907.41(B)(1).

The statute requires that the defendant be provided with an audio and video monitor to observe the proceedings, and a telephone to communicate with counsel. There is also a requirement that a video monitor be provided so the witness can see the defendant. R.C. 2907.41(A)(2), (C), and (D). In all other material respects, including cross-examination, the testimony proceeds as though it were being conducted in open court.

A

The constitutional right of confrontation

The Sixth Amendment to the United States Constitution provides, "[i]n all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him." Section 10, Article I of the Ohio Constitution provides that "the party accused shall be allowed * * * to meet the witnesses face to face * * *; but provision may be made by law for the taking of the deposition by the accused or by the state, to be used for or against the accused, of any witness whose attendance can not be had at the trial, always securing to the accused means and the opportunity to be present in person and with counsel at the taking of such deposition, and to examine the witness face to face as fully and in the same manner as if in court. * * * "

The Confrontation Clauses were written into our Constitutions "to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers." (Emphasis sic.) 5 Wigmore on Evidence (Chadbourn Rev.1974) 150, Section 1395; see, also, Douglas v. Alabama (1965), 380 U.S. 415, 418, 85 S.Ct. 1074, 107, 13 L.Ed.2d 934; Dowdell v. United States (1911), 221 U.S. 325, 330, 31 S.Ct. 590, 592, 55 L.Ed. 753; Mattox v. United States (1895), 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409; State v. Swiger (1966), 5 Ohio St.2d 151, 162-163, 34 O.O.2d 270, 277, 214 N.E.2d 417, 426; Henderson v. Maxwell (1964), 176 Ohio St. 187, 188, 27 O.O.2d 59, 60, 198 N.E.2d 456, 458; Note, Placing a Child Victim of Sexual Abuse Behind a Screen During Courtroom Testimony as Violation of Sixth Amendment Confrontation Clause: Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) (1989), 57 U.Cin.L.Rev. 1537, 1539-1545.

Literal face-to-face confrontation is not the sine qua non of the confrontation right. Craig, supra, at ----, 110 S.Ct. at 3164, 111 L.Ed.2d at 679; see, also, Coy v. Iowa (1988), 487 U.S. 1012, 1025, 108 S.Ct. 2798, 2805, 101 L.Ed.2d 857 (O'Connor, J., concurring). Admittedly, a defendant is ordinarily entitled to a face-to-face confrontation at trial. Ohio v. Roberts (1980), 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597. However, physical confrontation may constitutionally be...