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9th District appellate court orders new trial in child sex case
TRACEY BLAIR
Legal News Reporter
Published: May 7, 2020
The 9th District Court of Appeals has ordered a new trial in a child sex case, finding the trial court disregarded evidence of victim fabrication.
Anthony Bryant appealed his convictions and sentence in Wayne County Common Pleas Court for two counts of gross sexual imposition.
According to appellate records, 5-year-old R.S. reported to her grandmother that Bryant had touched her private areas with his private area. R.S.’s mother took her to the Wayne County Child Advocacy Center for an interview the next day.
The Grand Jury indicted Bryant for four counts of rape with sexually violent predator specifications, two counts of sexual battery with sexually violent predator specifications, and two counts of GSI with sexually violent predator specifications.
During a bench trial, R.S. did not testify to any penetration. The trial court dismissed the rape and sexual battery counts, but found Bryant guilty of the GSI counts and the specifications.
Bryant was sentenced to five years in prison for each count, to run consecutively.
On appeal, Bryant argued the trial court incorrectly excluded evidence that R.S. fabricated her testimony.
Specifically, R.S.’s mother testified on cross-examination that R.S. had told her that the sexual contact never happened and that R.S.’s grandmother had told R.S. to say that it had happened. The trial court initially allowed the testimony over the state’s objection.
The next day, however, when the state attempted to present evidence to bolster R.S.’s testimony, the court told the state that the testimony about R.S.’s grandmother telling R.S. to fabricate the allegations was “not in the case.” The trial court then started examining the witness on its own before finally sustaining the objection and not allowing the accusation that R.S. had made up her testimony or that the grandmother had told her to accuse Bryant.
The state conceded the trial court mistakenly interchanged the ruling it had made the previous day regarding whether R.S. fabricated the allegations with a ruling it had made regarding whether R.S.’s grandmother knew that Bryant was a registered sexual offender.
“Unlike when the trial court ruled on the sexual-offender knowledge issue, the trial court did not ask R.S.’s mother any questions with respect to her testimony that R.S. had made up the allegations and that R.S.’s grandmother had influenced her to make them up,” 9th District Judge Jennifer Hensal wrote in her opinion.
The state argued Bryant forfeited his argument because he did not object when the trial court changed its ruling on the admissibility of R.S. mother’s testimony.
However, the panel found that R.S.’s mother’s testimony makes it less probable that Bryant had improperly touched the alleged victim.
“Upon review of the record, we conclude that the trial court’s decision to admit the testimony but later state that it was not going to consider the testimony and assert that it was ‘not in the case’ because of its confusion over what it had ruled the previous day was arbitrary and constituted an abuse of the trial court’s discretion with respect to evidentiary decisions,” Hensal wrote.
The state argued the trial court’s error was harmless because there were issues regarding the credibility of R.S.’s mother and because the allegations were supported by R.S.’s testimony under oath in court and the statements she made previously during her interview at the child advocacy center.
The state noted the child was able to draw a picture of what Bryant did to her at the advocacy center without prompting. She was also specifically asked at trial whether she had ever told anyone that it did not happen and answered “[n]o.” R.S. also denied at trial that her grandmother had told her to say it happened.
Prosecutors said R.S.’s mother told Bryant a few months after the allegations that they are “ride or die,” meaning that she will love him forever.
Following R.S.’s accusation, R.S.’s mother had the child spend the night at her grandmother’s while she spent the night with Bryant. R.S.’s mother collected bond money for Bryant’s release and offered to move her and R.S. into a shelter so that Bryant could have a place to stay if he was released on bond.
The state also argued that, even though the trial court found that R.S. gave “extremely inconsistent statements,’ it still found the elements of GSI proven beyond a reasonable doubt.
However, there was no physical evidence that Bryant had sexual contact with R.S.
“R.S.’s testimony was the only direct evidence that the offenses occurred and her ‘extremely inconsistent statements’ about what happened were, in fact, what convinced the trial court to acquit Mr. Bryant of the rape and sexual battery offenses,” Hensal added. “If the trial court had considered R.S.’s mother’s testimony that R.S. told her that the incident did not occur, it may have also altered its conclusion that the state had established Mr. Bryant’s guilt of GSI beyond a reasonable doubt.
“Accordingly, upon review of the record, we conclude that Mr. Bryant may have been prejudiced by the trial court’s error and that the state has failed to demonstrate that the error was harmless beyond a reasonable doubt.”
Appellate Judge Thomas Teodosio concurred, while 9th District Judge Donna Carr concurred in part but dissented on the issue of the admissibility of R.S.’s mother’s testimony, citing State v. Briggs (2019-Ohio-5290).
In the trial court, Bryant claimed only that the R.S.’s mother’s testimony was admissible for purposes of impeachment. On appeal, Bryant does not develop any argument related to impeachment or cite to Evid.R. 613(B), Carr said in her dissenting opinion.
“Instead, on appeal, Bryant argues that the failure to allow the testimony violated his right to due process and that the evidence was relevant, citing Evid.R. 401 and 402,” Carr wrote. “In addition, Bryant asserts that evidence of fabrication of rape charges is also admissible. As Bryant did not make the arguments he now makes on appeal in the trial court, I would conclude that he forfeited them. Further, because he has not argued plain error on appeal, I would overrule his assignment of error on that basis.”
The case is cited State v. Bryant, 2020-Ohio-1175.