State v. Lawson , 2014 Ohio 457 ( 2014 )

[Cite as State v. Lawson, 2014-Ohio-457.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 13CA18
:
vs. :
: DECISION AND JUDGMENT
CASPER LAWSON, : ENTRY
:
Defendant-Appellant. : Released: 02/04/14
APPEARANCES:
Chase R. Carter, Chillicothe, Ohio, for Appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for
Appellee.
McFarland, J.
{¶1} Casper Lawson appeals from his convictions and sentences
imposed by the Highland County Court of Common Pleas after a jury found
him guilty of two counts of rape, both first degree felonies, in violation of
R.C. 2907.02(A)(1)(b), one count of gross sexual imposition, a third degree
felony, in violation of R.C. 2907.05(A)(4), and fifteen counts of illegal use
of a minor in nudity oriented material or performance, all fifth degree
felonies, in violation of R.C. 2907.323(A)(3). On appeal, Appellant asserts
one assignment of error, contending that the trial court erred in allowing Ms.
Highland App. No. 13CA18 2
Cecilia Freihofer to testify to out-of-court statements by the victims, in
violation of the Rules of Evidence, specifically Evid.R. 803 and 807.
{¶2} Because the order appealed from is not a final, appealable order,
we lack jurisdiction to consider the merits of Appellant’s assignment of error
and therefore must dismiss the appeal. Accordingly, this matter is
dismissed.
FACTS
{¶3} Appellant, Casper Lawson, was indicted on January 21, 2013,
after a minor child, F.K. and her parents reported a sexual assault to the
Highland County Sheriff’s Department. As part of the report, F.K. and her
family provided law enforcement with a cell phone belonging to Appellant,
which contained several photographs believed to be of juveniles engaging in
sexual conduct. In response to the report, Appellant agreed to come to the
Sheriff’s office to be interviewed. A search warrant was subsequently
obtained and executed as to Appellant’s camper as well as the phone. Once
inside Appellant’s camper, a metal box was located and a VHS tape was
seized from it.1
1
It was determined that the VHS tape contained sexually graphic images of Appellant’s daughter Z.C.’s
half sister, S.C., who had spent the night at Appellant’s home on several occasions. S.C. and Z.C. shared
the same mother but had different fathers. S.C. was approximately thirteen years old at the time the video
was made.
Highland App. No. 13CA18 3
{¶4} As a result of the report that was made, the interview of
Appellant and the findings after the execution of the search warrant,
Appellant was indicted on two counts of rape, both first degree felonies, in
violation of R.C. 2907.02(A)(1)(b), one count of gross sexual imposition, a
third degree felony, in violation of R.C. 2907.05(A)(4), and twenty four
counts of illegal use of a minor in nudity oriented material or performance,
all fifth degree felonies, in violation of R.C. 2907.323(A)(3). The matter
was tried to a jury on July 11, 2013.
{¶5} The State presented several witnesses at trial, including Mitchell
Machor, a computer forensic analyst with the State of Ohio Bureau of
Criminal Investigation, Sergeant Richard Warner of the Highland County
Sheriff’s Department, F.K.,2 the child who made the initial report to law
enforcement and friend of Appellant’s daughter Z.C., Z.C.,3 Appellant’s
daughter, and S.C., Z.C.’s half sister. Of importance to the case sub judice,
the State also presented the testimony of Cecilia Freihofer, a forensic
interviewer and licensed social worker employed at the Mayerson Center for
Safe and Healthy Children, located at Cincinnati Children’s Hospital.
Appellant testified on his own behalf and presented no other witnesses.
2
F.K. was approximately nine years old at the time the abuse began and was approximately eleven years
old at the time the report was made to police.
3
Z.C. was approximately ten years old when the abuse incident occurred and was approximately twelve
years old when the report was made to police.
Highland App. No. 13CA18 4
{¶6} During trial, Appellant objected to the State’s use of Cecilia
Freihofer. Specifically, Appellant objected to the allowance of testimony
regarding statements made by F.K. and Z.C. during forensic interviews
conducted by Ms. Freihofer at the Mayerson Center. Over the objection of
Appellant, the trial court allowed the evidence pursuant to the Evid.R.
803(4) hearsay exception, which excepts from hearsay statements made for
the purposes of medical diagnosis or treatment. It is the allowance of the
testimony of Cecilia Freihofer that is the subject of the current appeal.
{¶7} After hearing the evidence, the jury found Appellant guilty of
both rape counts, the single count of gross sexual imposition, as well as
fifteen counts of the twenty-four counts of illegal use of a minor in nudity
oriented material of performance. In its July 12, 2013, entry of conviction
the trial court stated that the jury found Appellant not guilty of eight counts
of illegal use of a minor in nudity oriented material or performance,
specifically, counts 5, 9, 12, 13, 14, 17, 19 and 20. Appellant was sentenced
to a total of 165 months imprisonment for the fifteen counts of illegal use of
a minor in nudity oriented material or performance, to be served
consecutively to 60 months on the count of gross sexual imposition. In
addition to that Appellant was sentenced to two terms of life imprisonment,
to be served consecutively to each other and consecutively to the 225
Highland App. No. 13CA18 5
months imposed on the other counts. It is from this decision that Appellant
now brings his appeal, setting forth a single assignment of error for our
review.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED BY LETTING MS. CECILIA
FREIHOFER TESTIFY TO COMMENTS MADE TO HER BY THE
VICTIMS [Z.C.] AND [F.K.] OVER OBJECTIONS BY THE
DEFENSE AS TO HEARSAY.”
LEGAL ANALYSIS
{¶8} In his sole assignment of error, Appellant contends that the trial
court erred by letting Ms. Cecilia Freihofer testify to comments made to her
by the victims, over Appellant’s objections, which were based upon hearsay
grounds. Before we reach Appellant's assignment of error, we must address
a threshold jurisdictional issue. Ohio appellate courts have appellate
jurisdiction over “final orders.” Section 3(B)(2), Article IV of the Ohio
Constitution. If a judgment is not a final order, an appellate court has no
jurisdiction to consider it and the appeal must be dismissed. State v. Carver,
4th Dist. Scioto No. 10CA3377, 2012-Ohio-3479, ¶ 5; Davison v. Rini, 115
Ohio App. 3d 688, 692, 686 N.E.2d 278 (4th Dist. 1996); Prod. Credit Assn.
v. Hedges, 87 Ohio App.3d 207, 210, 621 N.E.2d 1360, FN.2 (4th Dist.
1993); Kouns v. Pemberton, 84 Ohio App.3d 499, 501, 617 N.E.2d 701 (4th
Dist. 1992). Furthermore, even if the parties do not raise jurisdictional
Highland App. No. 13CA18 6
issues on appeal, an appellate court is required to raise them sua sponte. See
In re Murray, 52 Ohio St.3d 155, 159-160, 556 N.E.2d 1169, FN.2 (1990);
Whitaker-Merrell v. Geupel Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922(1972).
{¶9} As indicated above, Appellant was indicted on a twenty-seven
count indictment, which included two counts of rape, one count of gross
sexual imposition and twenty-four counts of illegal use of a minor in nudity
oriented material or performance. The jury found Appellant guilty of both
rape counts, the gross sexual imposition count, and fifteen of the twenty-four
counts of illegal use of a minor in nudity oriented material or performance.
Thus, Appellant was found guilty of eighteen counts of the twenty-seven
count indictment. The trial court, in its entry of conviction, noted that the
jury found Appellant not guilty of counts 5, 9, 12, 13, 14, 17, 19 and 20. As
such, only twenty-six counts of the twenty-seven count indictment have been
disposed of. A review of the record indicates that while the jury instructions
initially referenced twenty-seven counts, at some point in the text they began
to reference only twenty-six counts. Further, there are only twenty-six
verdict forms in the record. In fact, our review of the record indicates that
count twenty-seven remains pending. When an indictment count remains
unresolved and is still pending, there is no final order. In re B.J.G., 4th Dist.
Highland App. No. 13CA18 7
Adams No. 10CA894, 2010-Ohio-5195, ¶ 7. Because our review of the
record indicates that count twenty-seven remains unresolved and is still
pending, there is no final order and we must, therefore, dismiss the appeal
for lack of jurisdiction.
APPEAL DISMISSED.
Highland App. No. 13CA18 8
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED. Costs herein are assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland
County Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: ___________________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.