State v. Shepherd

Decision Date26 June 2003
Docket NumberNO. 81926.,81926.
Citation2003 Ohio 3356
PartiesSTATE OF OHIO Plaintiff-appellee v. CHARLES SHEPHERD Defendant-appellant.
CourtOhio Court of Appeals

ANN DYKE, J.:

{¶1} Defendant-appellant Charles Shepherd ("defendant") appeals from the judgment of the trial court which found the defendant guilty of rape and attempted kidnapping. For the reasons set forth below, we affirm the judgment of the trial court.

{¶2} The defendant was indicted on one count of rape in violation of R.C. 2907.02 with a repeat violent offender specification, a notice of prior conviction and a sexually violent predator specification, a felony of the first degree. He was also charged with one count of attempted kidnapping in violation of R.C. 2923.02 and 2925.01 with a repeat violent offender specification and a sexual motivation specification, a felony of the second degree. The defendant, through counsel, filed a motion in limine seeking to exclude the defendant's thirteen-year-old felony conviction, which the trial court denied. A jury trial followed.

{¶3} Ms. Jones ("the victim") is a severely handicapped thirty-three-year-old woman with a mental age of five and an IQ substantially below that which is considered mentally handicapped. On July 3, 2002, as she was returning from the store with her friend, the victim noticed that the defendant, a former "friend," was following her. He had called her earlier that day, but the victim had previously told the defendant that she did not want to see him anymore. She testified that after she told the defendant she did want to see him anymore, he began calling her and harassing her, leaving derogatory comments and messages on her answering machine and threatening her.

{¶4} Upon noticing the defendant that day and believing he was following her, the victim feared that the defendant would try to see her. The victim reported the incident to the security guard at her apartment complex. The security guard immediately notified the Euclid police department.

{¶5} Officer James Mylott of the Euclid police department responded to the call. After further investigation, he found the defendant parked at a nearby gas station, admittedly waiting to pick-up the victim. He testified that he was going to pick her up to take her to his apartment.

{¶6} The ensuing investigation revealed that the victim and the defendant had had sexual relations over a long period of time. The defendant told the police officer that it was a consensual relationship. It was clear to the officer, however, and others who testified at trial, that the victim was incapable of consenting to such a relationship. The victim had child-like interests, such as completing puzzles, coloring, watching television shows such as Clifford the Big Red Dog and Scooby Doo, and playing hide and seek with her best friend who was a child.

{¶7} At trial, the state presented the testimony of the victim's caseworker, Ms. Price, who spent about four days each week helping the victim with daily tasks, such as shopping, decision-making and getting dressed. The state also presented the expert testimony of Dr. Richard Rowlett, who stated that the victim had been receiving services from the Cuyahoga County Board of Mental Retardation for a number of years. He testified that her mental age was that of about a five-year-old. He further stated that she was severely mentally retarded, as evidenced by her IQ of about 33 or 34. He stated that an IQ of 70 or below indicates mental retardation.

{¶8} At the close of the state's evidence, the defendant moved for a Crim.R. 29 motion which was denied. The defendant was found guilty of rape and attempted kidnapping. The court sentenced the defendant to ten years incarceration in addition to ten-years-to-life incarceration on count one. The court sentenced the defendant to the maximum of eight years in addition to ten years on count two, each to run consecutively. It is from this ruling and his attendant sentences that the defendant now appeals, asserting nine assignments of error for our review.

{¶9} "I. The trial court erred in not holding the hearing regarding Appellant's motion in limine in a timely fashion as required by the statute."

{¶10} The defendant filed a motion in limine seeking to exclude evidence of a prior conviction for a sexually oriented offense. The defendant urges that the trial court erred in failing to hold a hearing regarding this motion three days prior to trial, as required by R.C. 2907.02 (D). He therefore maintains that his conviction should be reversed. We disagree.

{¶11} R.C. 2907.02 states, in relevant part:

{¶12} "(D) Evidence of specific instances of the defendant's sexual activity, opinion evidence of the defendant's sexual activity, and reputation evidence of the defendant's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant's past sexual activity with the victim, or is admissible against the defendant under section 2945.59 of the Revised Code, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

{¶13} "(E) Prior to taking testimony or receiving evidence of any sexual activity of the victim or defendant in a proceeding under this section, the court shall resolve the admissibility of the proposed evidence in a hearing in chambers, which shall be held at or before preliminary hearing and not less than three days before trial, or for good cause shown during the trial."

{¶14} We note initially, that the defendant failed to raise the issue of the timeliness of the motion in limine hearing and has therefore waived all but plain error. State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus. Notice of plain error applies only under exceptional circumstances to prevent a manifest miscarriage of justice. Id. "Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise." State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894, 899; State v. Phillips (1995), 74 Ohio St.3d 72, 83, 656 N.E.2d 643, 658.

{¶15} In this case, the defendant, through counsel, filed a motion in limine on September 18, 2002, three days prior to trial which began on September 23, 2002. On the morning of the 23rd, prior to the start of trial, the trial judge conducted a hearing on the motion in limine. The record reveals that the hearing was extensive, that each party presented their respective positions to the court, and the trial court made an informed determination that the evidence in question was admissible. We cannot say that the outcome would clearly have been otherwise had the trial court conducted a hearing just a few days prior. We find no merit to this assignment of error.

{¶16} "II. The trial court erred in its ruling denying appellant's motion in limine seeking to prevent the state from using Appellant's prior felony conviction of more than ten (10) years old for impeachment purposes."

{¶17} In his second assignment of error, the defendant challenges the propriety of the trial court's decision to allow impeachment evidence of his thirteen-year-old conviction in contravention of Evid.R. 609 (B).

{¶18} It is well-settled that the trial court has broad discretion in determining the admissibility of evidence. State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus. Therefore, we will not disturb the trial court's ruling absent an abuse of discretion. "The term `abuse of discretion' connotes more than error of law or judgment; it implies that the trial court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When applying this standard of review, an appellate court must not substitute its judgment for that of the trial court. State v. Reiner (2001), 93 Ohio St.3d 601, citing Berk v. Matthews (1990), 53 Ohio St.3d 161. Rather, reversal on appeal is warranted only when the trial court has exercised its discretion unreasonably, arbitrarily or unconscionably. Id. citing State v. Adams (190), 62 Ohio St.2d 151.

{¶19} Evid.R. 609 provides for impeachment of witness by evidence of conviction of a crime. It states, in relevant part:

{¶20} "(A)(2)*** evidence that the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the accused was convicted and if the court determines that the probative value of the evidence outweighs the danger of unfair prejudice, of confusion of the issues, or of misleading the jury."

{¶21} However, Evid.R. 609 (B) places a time limit on the use of such information. It provides:

{¶22} "Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of probation, or shock probation *** unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."

{¶23} Therefore, Evid.R. 609 requires a trial court to find, by specific facts, that the probative value of the prior conviction outweighs its prejudicial effect. Further, stale convictions should be admitted only in rare circumstances, after the trial court has made specific findings on the record which reflect...

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