State v. Cartwright , 2013 Ohio 2156 ( 2013 )

[Cite as State v. Cartwright, 2013-Ohio-2156.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2012-03-003
: OPINION
- vs - 5/28/2013
:
TIMOTHY S. CARTWRIGHT, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 11-CR-10782
Martin P. Votel, Preble County Prosecuting Attorney, Kathryn M. Worthington, 101 East Main
Street, Eaton, Ohio 45320, for plaintiff-appellee
Shawn P. Hooks, 131 North Ludlow Street, Suite 630, Dayton, Ohio 45402, for defendant-
appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Timothy Cartwright, appeals from his conviction in the
Preble County Common Pleas Court on multiple sex offenses, including one count of rape in
violation of R.C. 2907.02(A)(1)(b) and two counts of rape in violation of R.C. 2907.02(A)(2).
For the reasons that follow, we affirm the judgment of the trial court except for the portion
imposing on appellant "a mandatory sentence of life without parole," for his convictions on
Preble CA2012-03-003
two counts of rape in violation of R.C. 2907.02(A)(2), and remand this matter for
resentencing on those two counts.
{¶ 2} In 2011, appellant's daughter, W.C., who was born in 1997, told her friends at
school that her father was sexually abusing her. W.C. repeated this to the school principal
the following day. The principal contacted the Preble County Sheriff's Office. Deputy
Matthew Lunsford came to the school and interviewed W.C., who told him that appellant had
been sexually abusing her for two years and that the last time it had happened was about six
weeks ago. Deputy Lunsford contacted appellant who voluntarily came to the police station
for an interview. Appellant denied W.C.'s allegations.
{¶ 3} Appellant was indicted on one count of rape in violation of R.C.
2907.02(A)(1)(b), a first-degree felony (Count One); two counts of rape in violation of R.C.
2907.02(A)(2), a first-degree felony (Counts Two and Five); two counts of sexual battery in
violation of R.C. 2907.03(A)(5), a second-degree felony (Counts Three and Six); and one
count of gross sexual imposition in violation of R.C. 2907.05(A)(4), a third-degree felony
(Count Four). Each count contained a sexually violent predator (SVP) specification under
R.C. 2941.148.
{¶ 4} At a bench trial, W.C. testified that appellant began sexually abusing her when
she was 11 and that the abuse continued for two years. W.C. testified that the acts occurred
in different places in the home and sometimes even when her brothers, ages 16 and 18, or
her mother, who is legally blind and can only see light, were in the home. W.C. testified that
appellant penetrated her vagina digitally, orally and with his penis and that he used condoms.
W.C. testified that she had not told anyone about the sexual abuse earlier because she knew
that doing so "could destroy families" and that "my family probably even wouldn't try to hear
my side of the story or believe me. And I didn't want to lose my mom because me and her
-2-
Preble CA2012-03-003
were pretty close." When she was asked what finally had led her to tell others about the
sexual abuse, W.C. answered, "I just wasn't sure if I could put up with it anymore."
{¶ 5} The state presented expert testimony from Dr. Lori Vavul-Roediger, M.D., who
is a specialist in pediatric medicine with a subspecialty in the field of child abuse pediatrics.
Dr. Vavul-Roediger examined W.C. shortly after she reported the sexual abuse to the police
and found that W.C.'s hymen was normal and showed no signs of forced sexual acts. Dr.
Vavul-Roediger testified that, in her experience, less than 5% of people who report sexual
abuse show signs of penetration trauma to the hymen or anus. Dr. Vavul-Roediger also
testified that, under her "basic understanding" of psychology, children react differently to
sexual maltreatment, and children do not report such abuse due to embarrassment, fear,
threats and bribes.
{¶ 6} Appellant testified in his own defense. He denied W.C.'s allegations, claiming
his daughter was retaliating against him because she had gotten into trouble with him over
such issues as having to do household chores, her usage of her laptop computer and lying
about where she was going. Appellant acknowledged that, when W.C. testified, he stared at
her for "pretty much the bulk of her testimony" but that when his wife testified, he did not look
at her. Appellant explained that he got to see his wife every day, but that he had not seen
W.C., whom he called his "princess," in ten months. When asked about the fact that he still
called W.C. his "princess," appellant stated, "Well, she's still my princess. I still love her. But
quite frankly, at this point I kind of hate her, too. I know it sounds conflicting, but it's not."
{¶ 7} The trial court found appellant guilty of each of the offenses listed in the six-
count indictment. The trial court then held a hearing on the SVP specifications. Deputy
Lunsford was the sole witness at the SVP hearing. He testified, without objection, about the
contents of a report from the Dayton Police Department that showed appellant was molested
by his father when he was 6 and that appellant admitted to sexually abusing his sister in the
-3-
Preble CA2012-03-003
1980s when he was 16. The trial court found appellant guilty of the SVP specifications,
explaining the reasons for its finding, as follows:
The Court * * * bases that finding on all the testimony offered
during the trial, most of which would be the victim's testimony,
the fact that this conduct happened over a two-year period of
time, so he's clearly repeated the conduct, according to the
victim, if my memory is right, three times a month for two years.
Further, the victim admitted when he was a teenager himself
having sexually abused his sister. That was part of the
supplemental evidence that was offered during the hearing after
the trial. And so this is conduct that did not just start two and a
half years ago or so but earlier.
{¶ 8} The trial court sentenced appellant to a mandatory sentence of life without
parole for his statutory rape conviction on Count One, a mandatory sentence of life without
parole for both of his forcible rape convictions on Counts Two and Five, a mandatory
sentence of eight years to life for his sexual battery conviction on Count Three, a mandatory
sentence of two years to life for his gross sexual imposition conviction on Count Four, and a
mandatory sentence of two years to life for his sexual battery conviction on Count Six. The
trial court ordered that "[a]ll of the above sentences shall run concurrently with each other."
(Bold emphasis deleted.)
{¶ 9} Assignment of Error No. 1:
{¶ 10} "THERE WAS PLAIN ERROR IN ADMITTING HEARSAY TESTIMONY
DURING THE TRIAL ON THE SEXUALLY VIOLENT PREDATOR SPECIFICATION. THE
OFFICER SHOULD NOT HAVE BEEN PERMITTED TO TESTIFY ABOUT CONTENTS OF
A POLICE REPORT FROM ANOTHER COUNTY IN SUPPORT OF THE FINDING."
{¶ 11} Assignment of Error No. 2:
{¶ 12} "COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE
INTRODUCTION OF HEARSAY EVIDENCE WHICH WAS THE SOLE BASIS FOR
-4-
Preble CA2012-03-003
SUPPORTING THE FINDING OF GUILTY ON THE SEXUALLY VIOLENT PREDATOR
SPECIFICATION."
{¶ 13} Assignment of Error No. 3:
{¶ 14} "THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING EXPERT
OPINION TESTIMONY RELATING TO CHILD PSYCHOLOGY WHEN THE EXPERT WAS
NOT QUALIFIED TO RENDER THOSE OPINIONS."
{¶ 15} Assignment of Error No. 4:
{¶ 16} "THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE
STATE TO INQUIRE INTO EVIDENCE ADDUCED FROM A POLICE REPORT THAT IT
FAILED TO PROPERLY DISCLOSE UNTIL THE LAST BUSINESS DAY BEFORE TRIAL
WHEN IT HAD BEEN IN CONTROL OF THAT REPORT FOR TEN MONTHS."
{¶ 17} Assignment of Error No. 5:
{¶ 18} "THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
WHEN THERE WAS ABSOLUTELY NO EVIDENCE BEFORE THE COURT TO
CORROBORATE THE ALLEGED VICTIM'S STORY, AND THERE WERE
INCONSISTENCIES INHERENT IN THE ALLEGED VICTIM'S STORY."
{¶ 19} Assignment of Error No. 6:
{¶ 20} "THE SENTENCE OF THR [sic] TRIAL COURT IS CONTRARY TO LAW AND
SHOULD BE REVERSED."
{¶ 21} In his first assignment of error, appellant argues the trial court erred during the
SVP specifications hearing by allowing Deputy Lunsford to testify about the contents of a
police report that was inadmissible hearsay. See State v. Leonard, 104 Ohio St. 3d 54, 2004-
Ohio-6235, ¶ 111. Appellant acknowledges that he failed to object to Deputy Lunsford's
testimony but contends that the trial court's error in allowing the testimony and the police
report constitute "plain error," since the police report was the only evidence the state
-5-
Preble CA2012-03-003
presented to show the existence of one of the factors listed in R.C. 2971.01(H)(2), which
permitted the trial court to determine that he was a sexually violent predator, and therefore, to
convict him of the SVP specifications. We find appellant's argument unpersuasive.
{¶ 22} In order to prevail on a claim of plain error, a criminal defendant must show that
the trial court committed some error regarding a constitutional provision, statute, case law or
rule; the error was obvious; and that, but for the alleged error, the outcome of the trial or
proceeding clearly would have been otherwise. See, e.g., State v. Hale, 119 Ohio St. 3d 118,
126, 2008-Ohio-3426, ¶ 53.
{¶ 23} R.C. 2941.148, which governs SVP specifications, provides in relevant part:
(A)(1) The application of Chapter 2971. of the Revised Code to
an offender is precluded unless one of the following applies:
(a) The offender is charged with a violent sex offense, and the
indictment, count in the indictment, or information charging the
violent sex offense also includes a specification that the offender
is a sexually violent predator * * *.
***
(B) In determining for purposes of this section whether a person
is a sexually violent predator, all of the factors set forth in
divisions (H)(1) to (6) [sic] of section 2971.01 of the Revised
Code that apply regarding the person may be considered as
evidence tending to indicate that it is likely that the person will
engage in the future in one or more sexually violent offenses.
R.C. 2971.01(H) states in relevant part:
(H)(1) "Sexually violent predator" means a person who, on or
after January 1, 1997, commits a sexually violent offense and is
likely to engage in the future in one or more sexually violent
offenses.
(2) For purposes of division (H)(1) of this section, any of the
following factors may be considered as evidence tending to
indicate that there is a likelihood that the person will engage in
the future in one or more sexually violent offenses:
***
-6-
Preble CA2012-03-003
(b) The person has a documented history from childhood, into
the juvenile developmental years, that exhibits sexually deviant
behavior.
(c) Available information or evidence suggests that the person
chronically commits offenses with a sexual motivation.
{¶ 24} The trial court cited two reasons for finding appellant guilty of the SVP
specifications. The first was based on the testimony offered during the trial which showed
that this conduct repeatedly happened over a two-year period of time. This reason amounts
to a determination by the trial court that "[a]vailable information or evidence suggests that
[appellant] chronically commits offenses with a sexual motivation[,]" and therefore the trial
court found the existence of the factors listed under R.C. 2971.01(H)(2)(c). Under R.C.
2971.01(H)(1), this factor may be considered as evidence tending to indicate that there is a
likelihood that appellant will engage in the future in one or more sexually violent offenses.
{¶ 25} The trial court's second reason for finding appellant to be a sexually violent
predator is appellant's admission that when he was a teenager he sexually abused his sister.
This additional reason represents a finding by the trial court that the state established the
factor listed under R.C. 2971.01(H)(2)(b), i.e., "[t]he person has a documented history from
childhood, into the juvenile developmental years, that exhibits sexually deviant behavior."
This factor may also may be considered as evidence tending to indicate that there is a
likelihood that appellant will engage in the future in one or more sexually violent offenses."
R.C. 2971.01(H)(1).
{¶ 26} The hearsay argument regarding the Dayton Police Department report only
challenges the evidence used to establish the additional factor cited by the trial court in
finding appellant guilty of the sexual predator specifications. However, appellant's hearsay
argument does not challenge the evidence presented at trial which the trial court found
established its first reason for finding appellant guilty of the SVP specifications, i.e., for
-7-
Preble CA2012-03-003
finding appellant chronically commits offenses with a sexual motivation. R.C.
2971.01(H)(2)(c).
{¶ 27} Critically, only one of the factors listed in R.C. 2971.01(H)(2)(a)-(f) had to be
shown for the trial court to find that appellant is a sexually violent predator. See State v.
Williams, 8th Dist. No. 80615, 2002-Ohio-4423, ¶ 54 (finding that, while none of the specific
factors listed under R.C. 2971.02(H)(2)(a)-(e) pertained to Williams, the catch-all provision in
R.C. 2971.02(H)(2)(f) did apply and there was evidence to support the trial court's
determination that Williams was a sexually violent predator).
{¶ 28} The trial court found the factor in R.C. 2971.01(H)(2)(c) to be present and then
found an additional factor in R.C. 2971.01(H)(2)(b) to be present. Appellant challenges the
admissibility of the evidence relevant to the trial court's finding that the R.C. 2971.01(H)(2)(b)
factor exists. However, the challenged evidence does not affect the trial court's finding that
the factor listed in R.C. 2971.01(H)(2)(c) exists. Under these circumstances, appellant has
failed to show that the outcome of the proceedings would have been clearly different but for
the alleged error, and therefore, he cannot prevail on his plain error claim.
{¶ 29} Accordingly, appellant's first assignment of error is overruled.
{¶ 30} In his second assignment of error, appellant argues his defense counsel
provided him with ineffective assistance by failing to object to the introduction of the police
report discussed in the first assignment of error. However, appellant cannot prevail on his
ineffective assistance claim because, even without the objectionable police report, the
outcome of appellant's trial would not have been different. See Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052 (1984).
{¶ 31} Consequently, appellant's second assignment of error is overruled.
{¶ 32} In his third assignment of error, appellant asserts the trial court erred by
allowing Dr. Vavul-Roediger to provide expert testimony regarding the subject of child
-8-
Preble CA2012-03-003
psychology when she was not qualified to render such an opinion. Appellant argues that
while Dr. Vavul-Roediger was qualified to give an expert opinion on the physiology of a child
who has been sexually abused, she was not qualified to testify about the reasons why a child
might delay in disclosing sexual abuse, because this would require "some sort of
qualifications in child psychology," which she was not shown to possess. We find this
argument unpersuasive.
{¶ 33} Evid.R. 702 states in pertinent part:
A witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond
the knowledge or experience possessed by lay persons or
dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding the
subject matter of the testimony;
(C) The witness' testimony is based on reliable scientific,
technical, or other specialized information.
{¶ 34} While an expert witness is not required to be the best witness on the particular
subject in question, his or her testimony must assist the trier of fact in the search for the truth.
Nichols v. Hanzel, 110 Ohio App. 3d 591, 597-598 (4th Dist.1996). A witness may be
qualified to testify as an expert on one subject but not qualified to testify as an expert on
another related subject. Campbell v. The Daimler Group, Inc., 115 Ohio App. 3d 783, 793
(10th Dist.1996). However, the question of whether a witness possesses the necessary
knowledge, skill, experience, or training to testify as an expert in a given subject matter is a
question left to the trial court's sound discretion. Id.
{¶ 35} Dr. Vavul-Roediger's curriculum vitae shows that she has extensive knowledge,
training and experience in forensic pediatrics or child abuse pediatrics. She is a member of
the Ohio Chapter of the American Academy of Pediatrics and its section on child abuse and
-9-
Preble CA2012-03-003
neglect, and the American Professional Society on the abuse of children. She has also been
a faculty member and clinical instructor at various universities and has testified as an expert
in 60 to 100 cases in both criminal and juvenile court proceedings.
{¶ 36} Dr. Vavul-Roediger testified that she has gained, through her training and
experience, "some basic understanding of psychology in the area of children[.]" Dr. Vavul-
Roediger was permitted to testify, over appellant's objection, as follows:
[J]ust in my training and, obviously, the experiences I've had with
other patients speaking generally, not with regard to this child
necessarily, children obviously, and as well adolescents, for a
variety of reasons my [sic] delay their disclosure about
maltreatment.
Many times out of embarrassment. Clearly out of fear of the
alleged perpetrator. Maybe for being threatened or bribed.
Occasionally children, obviously, have been worried that if they
tell, they will be in trouble.
Occasionally children and adolescents are fearful what will
happen to the alleged perpetrator if they disclose being
maltreated. And I feel that most importantly many children
simply are fearful of the unknown. What will happen if I do tell.
{¶ 37} A review of Dr. Vavul-Roediger's qualifications, training and experience shows
that she was fully qualified to provide expert testimony on the matters about which she
testified, and therefore the trial court did not abuse its discretion in allowing her to provide
such testimony on those matters.
{¶ 38} In light of the foregoing, appellant's third assignment of error is overruled.
{¶ 39} In his fourth assignment of error, appellant contends the trial court erred by
permitting the state to inquire into evidence adduced from a police report that it failed to
properly disclose until the last business day before trial, where the state had the report in its
possession for ten months before trial. This argument also lacks merit.
{¶ 40} "The granting or overruling of discovery motions in a criminal case rests within
the sound discretion of the trial court." State v. Miller, 12th Dist. No. CA2002-02-004, 2002-
- 10 -
Preble CA2012-03-003
Ohio-6109, ¶ 19. The state's violation of a rule of discovery constitutes reversible error only if
(1) the violation was willful, (2) foreknowledge of the information not disclosed, or not
disclosed in a timely manner, would have benefitted the accused in the preparation of his
defense, and (3) the accused was prejudiced by the violation. State v. Scudder, 71 Ohio
St.3d 263, 269 (1994). Crim.R. 16(E)(3) grants wide authority to the trial court in fashioning
an appropriate remedy for a discovery violation, and the trial court's decision as to what
remedy to grant will not be overturned absent an abuse of that discretion, i.e., where the
decision is arbitrary, unconscionable or unreasonable. State v. Smith, 12th Dist. No.
CA2008-03-064, 2009-Ohio-5517, ¶ 31.
{¶ 41} On the Friday before the start of appellant's trial, the state provided appellant
with a Computer Aided Dispatch (CAD) report of a call his wife had made to the sheriff's
office when she thought appellant had gone missing. The state was unaware of the
existence of the CAD report until a police deputy gave it to the prosecutor's office on the
same Friday it was disclosed. There was no showing of a willful violation of the state's duties
under Crim.R. 16. Moreover, appellant made no attempt to ask for a continuance to allow
him to prepare his defense in light of the new information contained in the CAD report.
Therefore, appellant cannot show he was prejudiced as a result of the state's alleged
untimely disclosure of the report. State v. Wiles, 59 Ohio St. 3d 71, 80 (1991).
{¶ 42} As a result, appellant's fourth assignment of error is overruled.
{¶ 43} In his fifth assignment of error, appellant asserts that his convictions on the
charges were against the manifest weight of the evidence. We disagree. This case boils
down to the credibility of W.C. and appellant. W.C.'s testimony, if believed, is sufficient to
sustain every element of every count and specification of which appellant was convicted.
{¶ 44} Consequently, appellant's fifth assignment of error is overruled.
- 11 -
Preble CA2012-03-003
{¶ 45} In his sixth assignment of error, appellant contends the trial court erred in
sentencing him to life in prison without the possibility of parole for his convictions on two
counts of rape in violation of R.C. 2907.02(A)(2). We agree with this argument.
{¶ 46} Sentencing for a conviction of rape in violation of R.C. 2907.02(A) is governed
by R.C. 2971.03(A). The trial court was permitted under R.C. 2971.03(A) to impose a life
sentence without the possibility of parole on appellant for his conviction on Count One of the
indictment. However, the trial court was not permitted to impose a life sentence without the
possibility of parole on appellant for his convictions on Counts Two and Five of the indictment
for rape in violation of R.C. 2907.02(A)(2). Under R.C. 2971.03(A)(3), the trial court was
permitted to sentence appellant for those offenses to an indefinite term of not less than ten
years in prison and a maximum term of life imprisonment, but it is not mandatory for a trial
court to impose a term of life imprisonment on the offender, and any term of life
imprisonment the trial court imposes on the offender is subject to the possibility of parole.
State v. Austin, 1st Dist. No. C-110804, 2012-Ohio-4232, ¶ 26.
{¶ 47} The state initially conceded error on appellant's sixth assignment of error but
then withdrew its concession at oral arguments and requested that we consider the
assignment of error in light of State v. Wagers, 12th Dist. No. CA2009-06-018, 2010-Ohio-
2311. In that case, Wagers was convicted of four counts of rape in violation of R.C.
2907.02(A)(1)(b) and one count of rape in violation of R.C. 2907.02(A)(2), and was
sentenced to five concurrent terms of life imprisonment without parole for those offenses.
This court affirmed the trial court's judgment, including Wager's sentence for his conviction
on one count of rape in violation of R.C. 2907.02(A)(2), for which he received life
imprisonment without parole, to be served concurrently with his sentences for his four
convictions for rape in violation of R.C. 2907.02(A)(1)(b).
- 12 -
Preble CA2012-03-003
{¶ 48} The state made no attempt at oral argument to explain how Wagers should
apply to this case in light of R.C. 2971.03(A). In any event, it is clear that under that section,
a trial court may not impose a sentence of life imprisonment without the possibility of parole
on an offender who has been convicted of rape in violation of R.C. 2907.02(A)(2). To the
extent we said anything to the contrary in Wagers, either expressly or implicitly, that part of
our decision in Wagers is hereby overruled.
{¶ 49} Accordingly, appellant's sixth assignment of error is sustained.
{¶ 50} The judgment of the trial court is affirmed except for the portion of the judgment
sentencing appellant to life in prison without the possibility of parole on his convictions for two
counts of rape in violation of R.C. 2907.02(A)(2). That portion of appellant's sentence is
reversed, and this cause is remanded for resentencing in accordance with this opinion.
S. POWELL and RINGLAND, JJ., concur.
- 13 -