State v. Storch

• Decision Date: 19 May 1993
• Docket Number: No. 91-2218,91-2218
• Parties: , 61 USLW 2795 The STATE of Ohio, Appellant, v. STORCH, Appellee.
• Court: Ohio Supreme Court

Page 280

66 Ohio St.3d 280

612 N.E.2d 305, 61 USLW 2795

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

No. 91-2218.

Supreme Court of Ohio.

Submitted Feb. 9, 1993.

Decided May 19, 1993.

SYLLABUS BY THE COURT

1. Evid.R. 807 accords with the right of confrontation guaranteed by both Section 10, Article I of the Ohio Constitution and the Sixth Amendment to the Constitution of the United States.

2. Evid.R. 807 contemplates that a pretrial hearing will be conducted at which time the ability of the child to testify should be addressed and an initial determination as to the admissibility of the child's statements should be made.

On Sunday, February, 19, 1989, three-year-old A.M. was visiting at the home of her father, Ricky A. Mingus. A.M.'s parents were divorced and her mother had been named the residential parent. At least in part because A.M.'s mother had been dating Richard Storch before the divorce occurred, no love was lost between Ricky Mingus and Richard Storch. Indeed, the relationship was so bad that Mingus customarily took a third party with him when he went to pick up his daughter at the home shared by Storch and A.M.'s mother. The third party actually approached the residence and acquired the child for visitation with her natural father.

Apparently A.M. had different names for the two father figures in her life. Frequently, Ricky Mingus was "Daddy" and Richard Storch was "Daddy Bear." On February 19, after he had picked up his daughter, Ricky Mingus left the child in the care of his girlfriend, Tina Cauldron, Tina's mother, and Tina's grandmother. Tina's mother later claimed that the child was different this particular weekend. The child allegedly had dark circles under her eyes and seemed "whiny."

Later, A.M. was taken to the home which Ricky Mingus shared with Tina in Sandusky, Ohio. Tina subsequently claimed that she noticed A.M. was walking "funny." When Tina asked A.M. if A.M. needed to go to the bathroom, A.M. responded that she "had a hurt." Tina purportedly checked A.M.'s vaginal area. Tina discovered toilet paper inside A.M.'s underpants and vaginal redness, so she gave A.M. a cornstarch bath. After the bath, A.M. was still complaining of discomfort so Tina gave A.M. cream to soothe her. A.M. reportedly responded that she was not afraid to apply the cream because A.M.'s mother also gave her cream to apply when she bled.

Tina then purportedly asked A.M. if anyone had touched her in the vaginal area and A.M. responded that "Daddy Bear" had. After Ricky Mingus returned from the store where he had been during this encounter between his daughter and his girlfriend, Ricky Mingus and Tina took A.M. to a local hospital.

At the hospital, A.M. was examined the first of several times. Seven G. Reineck, D.O., conducted the examination. A.M. was not shy, timid or hesitant to display her vaginal area to Dr. Reineck. Dr. Reineck later testified that, in his opinion, her lack of shyness and concern for privacy was indicative of sexual abuse.

Dr. Reineck conducted a thorough examination of the three-year-old's vaginal area. He found her to be generally red, swollen and tender.

Dr. Reineck took the first of three measurements taken of the diameter of A.M.'s hymen. The measurement he obtained was four and one-half to five millimeters, as opposed to what he considered the normal measurement of three millimeters for a three-year-old. Dr. Reineck also asked A.M. if anyone had touched her where she hurt and she responded that "Papa Bear" had touched her there.

Following the examination, Erie County Children Services was contacted and the head of its child abuse investigation unit, one Willia Johnson, responded. Johnson also interviewed A.M., and A.M. indicated that "Daddy Bear" had hurt her. Johnson then permitted Ricky Mingus and Tina to take A.M. to their home.

Johnson next went to the home shared by A.M.'s mother, Patricia Woodruff, and Richard Storch to confront them with A.M.'s allegations. Woodruff and Storch both vigorously denied that Storch had sexually abused A.M. They angrily accused Ricky Mingus and Tina Cauldron's two sons, who were ages eight and eleven, of the abuse if abuse had in fact occurred. Johnson then decided to have A.M. placed in a foster home. A.M. ended up spending four months in foster care with families she did not know prior to placement. After that, Erie County Children Services allowed the child to be placed with Patricia's brother.

Approximately two weeks after the visit to Dr. Reineck, A.M. was taken to the office of a pediatrician who was part of a state-funded task force specializing in child abuse cases. The pediatrician asked A.M. questions and A.M. indicated that she had been touched in the area of her vagina by "Papa Bear." The pediatrician examined A.M., measured her hymen, and took colposcopic pictures of the area near her vagina. This pediatrician concluded that the hymen measured three to four millimeters.

A.M. was examined by the same pediatrician on July 21, 1989, some five months after her first examination. The pediatrician again measured her hymen and indicated that it now measured eight to ten millimeters. More colposcopic pictures were taken, purportedly because the last set of photographs had not turned out. The pediatrician later testified at trial that he found evident trauma to the hymen as demonstrated by scarring and thickening at its edges. He felt that his findings were consistent with penile or projectile penetration and were indicative of sexual abuse.

Shortly after A.M.'s first complaints, Roy Prewitt, a lieutenant with the Sandusky Police Department, conducted a videotaped interview with A.M. The tape was marked as an exhibit at trial, but the prosecution never attempted to have the tape admitted into evidence. Lt. Prewitt asked A.M. why she had been to the hospital and A.M. responded that it was because her "boo boo" hurt. Lt. Prewitt then showed A.M. photographs of four of the significant males in her life. She pointed to the photograph of Richard Storch, indicating that he was the one who had hurt her. During part of the interview, she referred to her natural father as "Bear" and to Storch as "Pooh Bear."

Lt. Prewitt then provided A.M. an anatomically correct doll of a young girl and A.M. indicated on the doll where she hurt. He next asked A.M. to show on an anatomically correct male doll what part of the male had touched A.M. where she hurt. A.M. indicated the penis of the male doll.

Prewitt then presented A.M. with an anatomically correct picture of a young girl and asked A.M. to circle what parts of her had been touched by the male's penis. She circled the vaginal area, the chest area and the mouth. A.M. indicated that the man had put his penis in her mouth twice and her vagina twice.

Prewitt asked if Tina's children had ever touched A.M. where she hurt. A.M. initially replied in the negative and then indicated that the eleven-year-old had touched her in or on the buttocks. Later, A.M. indicated once again that "Daddy Bear" had hurt her.

Richard Storch was charged in the Court of Common Pleas of Erie County on two counts of forcible rape of a child under the age of thirteen, in violation of R.C. 2907.02. He also was charged with one count of gross sexual imposition, in violation of R.C. 2907.05. Each of the rape charges carried a required penalty that a convicted offender be "imprisoned for life." The gross sexual imposition charge carried a potential incarceration of one, one and one-half, or two years.

A.M. was not asked to testify at the trial. Instead, her various statements were admitted as evidence that she had been raped by Storch.

Willia Johnson testified at trial both during the state's case in chief and in rebuttal. In her testimony in the case in chief, she indicated that her qualifications consisted of some college courses, seminars she had attended on the subject of child abuse, and twelve years as an investigator employed by Erie County Children Services. She related statements given to her by A.M. She further was allowed to give expert testimony that A.M. was not able to testify in court primarily based upon a "visit" she had had with A.M. the week prior to trial. At the time of the visit, A.M. was with her mother and was "preoccupied with her mother." A.M. chose not to respond to Johnson's questions, but instead preferred to play happily while basically ignoring Johnson. Johnson indicated that she had been informed by another investigator, her supervisee, of a similar encounter with the child.

A.M.'s mother also testified at trial. She indicated that A.M. had told her in February 1989 that Tina's children had had A.M. touch their genitals with her mouth. The mother claimed that she relayed the statement to the police and to the Erie County Children Services only to be met with a response that the eleven-year-old and eight-year-old did not know enough about sex to do something like that. The mother also testified about the occurrences in her household on the night before and day of February 19, 1989, which accounted for Storch's whereabouts. She indicated her belief that Storch was not capable of sexually abusing her daughter. She felt that he was a "father figure" to both her children and would not abuse them.

Storch testified on his own behalf that he had been more of a father to A.M. and her brother than Mingus had been. Storch testified as to his recollection of his activities on February 18 and 19. He firmly denied abusing A.M. He indicated that as a routine when A.M. and her brother returned from visitation, both children had marks on their bodies, which they attributed to harm inflicted by Tina's children.

The jury found Storch guilty on all counts and he was sentenced to consecutive life terms on the rape charges. He received a sentence of two years' incarceration on the gross sexual imposition charge, to be served concurrently with one of the life sentences.

Upon appeal, the court of...