In Re Orick , 2009 Ohio 2097 ( 2009 )

{¶ 10} I respectfully dissent from the majority decision to reverse this case based on the trial court's limitation of certain questions on cross-examination. As an initial matter, I note that the scope of cross-examination is a matter within the sound discretion of the trial court.O'Brien v. Angley (1980), 63 Ohio St. 2d 159, 163,17 O.O.3d 98, 407 N.E.2d 490. Consequently, the trial court's decision "will not be reversed unless there has been a clear and prejudicial abuse of discretion." Id. An abuse of discretion implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable.Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219,5 OBR 481, 450 N.E.2d 1140.

{¶ 11} The majority asserts that the trial court improperly limited cross-examination of the victim in two instances. I believe the majority misconstrues the evidentiary context of the questioning in both instances. More importantly, however, neither question would have had any determinative impact on the credibility evaluation of the victim by the trial court in this bench trial and therefore could not be the basis for reversible error in any event.

{¶ 12} The first question involved how Orick knew where the victim was going to be after school.

Q. Do you know whether he knew where you were going to be that day?

A. After —

Mr. Hinders: Objection, your Honor. That's self evident, I believe. He was there.

Mr. Sacher: She indicated, your Honor, that Bryant had never been at the Willow Street address before.

The Court: Okay. Back up. Exactly what is your question, Mr. Sacher?

Mr. Sacher: Whether she knows how Bryant knew that she was going to be there that day and where she was going to be.

Mr. Hinders: I believe I already objected to the speculative part of that as to how the victim would know how the defendant knew.

The Court: I will sustain that objection based on that. All right. Continue, please, Mr. Sacher.

{¶ 13} Although the majority claims that this was an improper limitation on cross-examination, the majority fails to consider the full line of questioning. Prior to asking the victim whether she knew how Orick knew she would be at a home other than her own after school, the victim was asked, "Did you tell him where you were going to be after school that day?," and "Did you invite him.* * *." The victim stated that she had not told Orick she would be at the location of the assault and that she did not invite him. Therefore, regardless of whether the question was asked on direct or cross-examination, it is clear that the victim would only be speculating as to how Orick found her at the location of the assault.

{¶ 14} The second line of questioning that Orick contends was improperly limited involved whether the victim resisted Orick's advances.

Q. What was your reaction to that? Did you try at all to defend yourself?

Mr. Hinders: I'm going to object, your Honor. That's specifically excluded in the statute. Resistance is not required, and the witness has already testified as to what occurred.

The Court: Any response, Mr. Sacher?

Mr. Sacher: Well, I know, your Honor, that force is an element involved here. And if force were exerted, I think it's relevant to know if there was any resistance.

The Court: The court is going to sustain the objection pursuant to 2907.02(D) of the statute under the rape shield, Mr. Sacher.

{¶ 15} Revised Code 2907.02, Ohio's rape shield law, provides:

(C) A victim need not prove physical resistance to the offender in prosecutions under this section.

(D) Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender, 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. 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.

{¶ 16} In the present case, although the trial court sustained the objection to the question regarding whether the victim defended herself based on R.C. 2907.02(D), we note that R.C. 2907.02(C) provides the pertinent section of the rape shield law. Accordingly, the trial court was correct in sustaining the state's objection even though it apparently cited the wrong subsection of the statute. And the majority is similarly mistaken in relying on R.C. 2907.02(D) instead of 2907.02(C) in determining that it was error to sustain the objection.

{¶ 17} More importantly, the majority argument that R.C. 2907.02(C) does not apply to the issue of the victim's consent demonstrates a fundamental misunderstanding of the rape shield law. The entire purpose of the provision in section (C) that the victim does not have to prove physical resistance is that the trier of fact should not be permitted to infer consent merely from the failure of the victim to physically resist. That is precisely why inquiry into the matter of physical resistance on cross-examination may properly be restricted by the trial court, as it was in this case. It also means that the trier of fact (in this case, the trial court), is permitted to presume that the victim did not physically resist and still find beyond a reasonable doubt that the victim did not consent to the sexual conduct — which is why the victim's answer to the excluded question was irrelevant in this case.

{¶ 18} At the very least, having concluded that there would be no probative value to the finding of physical resistance, I would follow the rationale of the Ohio Supreme Court and hold that this evidence was properly excluded when it was offered only to attack the victim's credibility. Statev. Gardner (1979), 59 Ohio St. 2d 14, 17, 13 O.O.3d 8,391 N.E.2d 337 (in order for the contested evidence to be admitted, its probative value must be more important than merely to attack the credibility of a witness); State v. Guthrie (1993),86 Ohio App. 3d 465, 467, 621 N.E.2d 551.

{¶ 19} In sum, I would hold that the trial court did not abuse its discretion, nor was there any conceivable reversible error in the court's disallowing either of these lines of questioning. Based on the foregoing, I would overrule Orick's second assignment of error and address the first assignment of error employing the proper standards of appellate review.