State v. Smith

• Decision Date: 31 December 1992
• Docket Number: No. 91-CA-95,91-CA-95
• Citation: 617 N.E.2d 1160,84 Ohio App.3d 647
• Parties: The STATE of Ohio, Appellee, v. SMITH, Appellant. *
• Court: Ohio Court of Appeals

Page 647

84 Ohio App.3d 647

617 N.E.2d 1160

The STATE of Ohio, Appellee, v. SMITH, Appellant. ^*

No. 91-CA-95.

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

Decided Dec. 31, 1992.

William F. Schenck, Greene County Pros. Atty., and Robert K. Hendrix, Asst. Pros. Atty., Xenia, for appellee.

John H. Rion, Dayton, for appellant.

GRADY, Judge.

Defendant Craig Winfield Smith appeals from two convictions for gross sexual imposition, in violation of R.C. 2907.05(A)(4), for having sexual contact with males less than thirteen years of age. Smith argues on appeal that the trial court erred to his prejudice when it admitted expert testimony concerning behavior typical of a pedophile who engages in sexual abuse of children. Smith also argues prejudicial error in the introduction of evidence of his sexual contact with a third young male.

We find that the trial court erred in permitting expert testimony concerning pedophilic behavior pursuant to Evid.R. 702 because, for the purpose for which it was offered, it did not concern a matter outside the competence of the jury and because it was evidence of a trait of character offered to prove that the defendant acted in conformity therewith, and thus inadmissible under Evid.R. 404.

We find that evidence of the defendant's alleged sexual activity with a person other than the alleged victims was prohibited by R.C. 2907.05(D) because it failed to constitute one of the specific exceptions of R.C. 2945.59, and that its admission constituted prejudicial error.

Because we cannot find the foregoing error harmless beyond a reasonable doubt, the judgment of conviction will be reversed and the case remanded for a new trial.

I

Defendant Craig Smith was charged by indictment with two violations of R.C. 2907.05(A)(4), which states:

"No person shall have sexual contact with another, not the spouse of the offender * * * when * * * [t]he other person * * * is less than thirteen years of age, whether or not the offender knows the age of such person."

The indictment charged each offense in the foregoing terms. It alleged in Count I that the offense had occurred between August 1 and August 31, 1990. The conduct forming the offense in Count II was alleged to have occurred between June 1 and July 31, 1990.

B.G. testified that he is twelve years of age and that he met defendant Smith when Smith was a fifth grade teacher at Valley Forge Elementary School, in Huber Heights, and B.G. was a student there. B.G. testified that though Smith was not his teacher, Smith befriended B.G. and took him and other young children to sporting events and out to eat. B.G. testified that he spent the night at Smith's home in Greene County after these events, on about five occasions. B.G. stated that on one occasion, at the end of August 1990, Smith entered the room in which B.G. was sleeping and first touched B.G.'s genitals through his clothing and then moved his hand under B.G.'s clothing and touched his buttocks. After removing his hand Smith again moved it under B.G.'s clothing and touched his buttocks a second time. Smith then left the room and returned to a couch in another room, where he had been sleeping.

B.G. testified that neither he nor Smith discussed the event after, but the following morning after he went home B.G. told his mother what had happened, asking her to tell no one else because he was embarrassed. He didn't visit Smith again. About one month later B.G. was interviewed by investigators and related the story in response to their questions.

On cross-examination, B.G. was confronted with his prior statement to a friend and his mother in which he allegedly said that he had not been molested by Smith. B.G. denied making the statement. Defendant also suggested to B.G that others had told him the events occurred and that he had adopted their statements. B.G.'s response was inconclusive.

Ronda Ransdell, B.G.'s mother, testified that she trusted Smith because her son liked him and because Smith seemed to be a good person. She confirmed that B.G. had slept overnight at Smith's home on three or four occasions. She confirmed that B.G. told her of Smith's sexual activity with him the morning after the last occasion, which was on August 22, 1990. B.G. was upset when he told her. Ransdell testified that B.G. didn't see Smith again, and that several weeks later Smith called to inquire why. Ransdell asked Smith whether he had shared a bed with B.G. Smith stated he had. Ransdell testified that when she accused Smith of molesting her son, "He said, 'Well, when I was sleeping my hand could have went anywhere * * *.' " Ransdell told no one for several months, until she told B.G.'s school counsellor because B.G. was depressed and performing poorly in school. The allegation caused the investigation to commence and brought out the allegations concerning two other victims.

In support of Count II of the indictment the state produced the testimony of R.R., also a student at Valley Forge School and also twelve years of age when the alleged offense took place. R.R. testified that Smith took him to sporting events, to church, and to Bible school. R.R. stated that he, also, slept over at Smith's home on some occasions, the last at the end of May 1990. On that occasion R.R. and his brother shared a bed and Smith slept in another room. R.R. testified that during the night he awakened to find Smith "grabbing me at my privates and rubbing my butt." R.R. testified that he was frightened. He told his brother the next morning what had happened to him. R.R. said nothing to Smith, who didn't take them home until later in the day. R.R. told no one else about Smith's actions for about two weeks, when he told his parents. Neither believed him. R.R. later told investigators after they questioned him.

On cross-examination, defendant attempted to show that R.R. was mistaken about Smith, that the events were simply a result of his brother "bumping into" him. R.R. denied both.

Both B.G. and R.R. portrayed Smith as a friendly adult who took an interest in them and other young people, and who went out of his way to spend time with them and engage in their interests. This was confirmed by Bonnie Benge, Principal of Valley Forge School, who also indicated a concern that Smith's attentions to students were troublesome to her because they were unwise for a teacher. Benge stated that Smith ate and played with the students, and that he devoted more attention to boys than to girls. Benge stated that on one occasion she saw Smith lift another boy, D.H., from the ground and rub his knee against the boy's buttocks. Benge immediately questioned Smith and learned that he was tutoring D.H. Benge learned of the allegations of Smith's conduct with B.G. and R.R. shortly after, and became concerned.

D.H. was called by the state, over the objections of defendant Smith. D.H. testified that he was twelve years of age when he met Smith in 1990 at a July 4th parade, after which Smith took him to Christian rock concerts and began tutoring him at D.H.'s home. D.H. stated that after their tutorial lessons they would sometimes wrestle, and that during these times Smith would "grab my private area." D.H. testified that on two occasions when Smith pulled him to his lap D.H. could feel Smith's erect penis rub against D.H.'s buttocks through their clothing. This last happened between July 4 and August 15, 1990. D.H. told no one until he was later questioned by investigators.

The state also called Dr. Barbara Bergman, a licensed criminal psychologist, who was qualified as an expert in sexual abuse problems. The state had apparently indicated that it intended to elicit testimony from Dr. Bergman concerning the methodology typical of pedophiles who sexually abuse children. The state argued that such matters were outside the jury's competence. The defendant objected on grounds of relevance. The court overruled the objection and admitted the testimony pursuant to Evid.R. 702.

Dr. Bergman testified that a "pedophile" is a person who is sexually oriented toward and attracted to children. A "fixated pedophile" is an individual who has never attained adult sexual maturity, who is uncomfortable in adult relationships, and who identifies with children and is more comfortable with them. As adults they are more powerful than children, who are more likely to trust them and respect their wishes. When asked to describe the behavior typical of a pedophile who sexually abuses children, Dr. Bergman stated:

"Well, what my experience has been and the experience of many people who have treated and evaluated fixated pedophiles is that whenever they choose a victim and nobody--nobody knows why anyone in the world is sexually attracted to another person, but by whatever means that occurs, when they choose the child, they proceed to set up a situation very carefully.

"Frequently what happens is the pedophile will invade themselves into the trust of the parents, the families of the child. They will become friends. They will do things for the families. They will create a lot of indebtedness, so to speak, on the part of the family or different members of the family to them. They will do things for the child that are very nice. They will take them places. They will buy them things.

"Typically they choose children who are vunerable [sic ] for one reason or another, and maybe children who don't have a father in the family, maybe the family doesn't have enough money to provide everything that children want and need, and the pedophile will begin to meet some practical needs for the child, make sure that the family is aware of that and very grateful to him. Once the situation is such that everybody trusts him, that's when he will make his move on the child."

Dr. Bergman further testified that the offender would seek to keep his inclinations and activities secret. Her testimony was general in its terms and did not specifically discuss defendant Smith or his alleged...