State v. Kearns

71 N.E.3d 681

2016 Ohio 5941

STATE of Ohio, Plaintiff–Appellee,

v.Sheila KEARNS, Defendant–Appellant.

No. 15AP–244.

Court of Appeals of Ohio, Tenth District, Franklin County.

Sept. 22, 2016.

On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee. Argued: Sheryl L. Prichard.

On brief: Oglesby & Oglesby, and Geoffrey L. Oglesby, Sandusky, for appellant. Argued: Geoffrey L. Oglesby.

DORRIAN, P.J.

{¶ 1} Defendant-appellant, Sheila Kearns, appeals from a judgment of the Franklin County Court of Common Pleas finding her guilty, pursuant to a jury verdict, of four counts of disseminating matter harmful to juveniles, in violation of R.C. 2907.31, felonies of the fifth degree. Because we find the trial court did not err or commit plain error, and the verdict was supported by sufficient evidence and was not against the manifest weight of the evidence, we affirm.

I. Facts and Procedural History

{¶ 2} On February 26, 2014, plaintiff-appellee, State of Ohio, indicted appellant on five counts of disseminating matter harmful to juveniles, in violation of R.C. 2907.31, felonies of the fifth degree. The indictment alleged that appellant, "with knowledge of its character or content, did recklessly * * * furnish, * * * exhibit, * * * or present to a * * * group of juveniles, * * * to wit: East High School Class * * *: Spanish 3 [2, 3, 2, 2], Period 2 [3, 6, 7, 8], any material or performance that is obscene or harmful to juveniles, the said [class] being thirteen (13) years of age or older, to wit: thirteen to seventeen (13–17) years of age." (Emphasis added.) (Indictment at 1.)

{¶ 3} The events giving rise to the indictment occurred on April 11, 2013 at East High School in Columbus, Ohio. While serving as a permanent substitute teacher, appellant showed the movie "The ABC's of Death " to five Spanish language classes. The movie opens with the following statement: "The following feature film was created by 26 directors from around the world. Each director was given a letter of the alphabet and asked to choose a word. They then created a short tale of death that related to their chosen word. They had complete artistic freedom regarding the content of their segments." (State's Ex. A.) Following this statement were 26 short vignettes corresponding to each letter of the alphabet. The vignettes depicted, simulated, or implied very graphic violence; blood and gore; activities involving bodily functions of elimination; cruelty to animals; anal or vaginal sex or other penetration, masturbation, sadomasochism, prostitution, and, most disturbingly, child molestation and rape.

{¶ 4} Immediately after one of the classes, students reporting to choir class appeared "excited, appalled [and in] disbelief about what they had seen." (Tr. Vol. I at 29.) This prompted the teacher, Elizabeth Carle, to tell the assistant principal, Carl D. Chamberlain, that he should look into this because the movie being shown in Spanish class was "inappropriate." (Tr. Vol. I at 34.) Chamberlain went to check on appellant's eighth period class. When he entered the room, the movie was being projected on a screen. Chamberlain testified that he walked in and sat down. He observed a scene involving a surf board and implied drowning. Then, appellant fast-forwarded through several scenes. The fast-forwarding stopped and Chamberlain saw "[bare] female breasts show[ing] on the screen." (Tr. Vol. I at 65–66.) At that point, Chamberlain directed appellant to stop the movie and remove it from the DVD player.

{¶ 5} Chamberlain took the DVD and, along with the school safety and security specialist, viewed the DVD to see what the students had been watching. Chamberlain did not watch the entire movie because the last scene he watched "was a simulation of child rape, and that was where [he] had to stop." (Tr. Vol. I at 67.) Chamberlain informed the school principal, who in turn removed appellant from the classroom and informed the school superintendent, Franklin County Children Services, and Columbus Police Officer Alan Blackmon, the school resource officer. Blackmon contacted Columbus Police Detective Lolita Perryman of the Exploited Children's Unit. Chamberlain interviewed appellant at the end of the day. Appellant admitted to showing the movie to five of her classes, but stated that no one class saw the entire movie. Rather, she began the movie with each class where she left off with the previous class. Appellant reported to Chamberlain that the entire movie had been seen at least collectively by her five classes. Classes at East High School run approximately 47 minutes each. Chamberlain testified there were minor children in each class. The movie, in its entirety, without the credits was 1 hour, 58 minutes, and 14 seconds.

{¶ 6} Trial commenced on January 12, 2015 and continued through January 15, 2015. The jury returned verdicts of guilty on four of the five counts of disseminating matter harmful to juveniles, all being felonies of the fifth degree. The jury entered a not guilty verdict on the first count in the indictment, corresponding to the first class in which appellant showed the movie. The verdict forms presented to the jury for Counts 2 through 5 included the following statement: "We further find that the material displayed was/was not (circle one) obscene." (Emphasis sic.) On each of the verdict forms, the jury circled the term "was" indicating that they found the material to be obscene.

{¶ 7} On March 4, 2015, the court sentenced appellant to a period of three years of community control. As a requirement of community control, the court required appellant to serve 90 days at the Franklin County Corrections Center, said days stayed upon the filing of this appeal. As a further condition of community control, appellant was required to surrender her teacher's certificate. The court further indicated that if appellant violated the terms of community control, she would receive a prison term of eight months on each count to be served consecutive to each other.

II. Assignments of Error

{¶ 8} Appellant appeals and assigns the following six assignments of error for our review:

[I.] THE COURT ERRED AND ABUSED ITS DISCRETION BY GIVING A "MOTIVE INSTRUCTION" BUT NOT ALLOWING COUNSEL TO QUESTION WITNESSES REGARDING MOTIVE.

[II.] THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW.

[III.] THE TRIAL COURT, ERRED AND ABUSED ITS DISCRETION BY INCORRECTLY STATING THE LAW AS THE LAW RELATES TO A CULPABLE MENTAL STATE IN A JURY INSTRUCTION BY GIVING A DEFINITION OF "KNOWLEDGE" THAT WAS NOT IN EFFECT AT THE TIME OF THE ALLEGED OFFENSE.

[IV.] THE TRIAL COURT ERRED BY ALLOWING THE STATE OF OHIO [TO] "DEFINE" PRU[R]IENT INTEREST WHILE CURTAILING DEFENSE COUNSEL FROM REFERRING TO TERMS.

[V.] THE TRIAL COURT ERRED BY NOT GIVING AN INSTRUCTION ON AN AFFIRMATIVE DEFENSE.

[VI.] THE TRIAL COURT ERRED WHEN THE COURT FAILED TO GRANT APPELLANT'S MOTION FOR ACQUITTAL.

For ease of discussion, we address appellant's assignments of error out of order.

III. R.C. 2907.31 Disseminating Matter Harmful to Juveniles

{¶ 9} R.C. 2907.31 states:

(A) No person, with knowledge of its character or content, shall recklessly do any of the following:

(1) Directly sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile, a group of juveniles, a law enforcement officer posing as a juvenile, or a group of law enforcement officers posing as juveniles any material or performance that is obscene or harmful to juveniles.

{¶ 10} Also relevant, R.C. 2907.31(F) states:

Whoever violates this section is guilty of disseminating matter harmful to juveniles. If the material or performance involved is harmful to juveniles, except as otherwise provided in this division, a violation of this section is a misdemeanor of the first degree.If the material or performance involved is obscene, except as otherwise provided in this division, a violation of this section is a felony of the fifth degree.

(Emphasis added.)

{¶ 11} Appellant was convicted of four felonies of the fifth degree. Therefore, pursuant to R.C. 2907.31(F), the jury in this case was required to find that the movie involved was not only harmful to juveniles, but also was obscene.

IV. First Assignment of Error—Curtailing Line of Cross–Examination

{¶ 12} In her first assignment of error, appellant argues the trial court erred by giving a motive instruction to the jury and allowing the state to refer to motive in opening statements, yet not permitting cross-examination of Detective Perryman regarding whether she found any type of motive as to why appellant showed the movie to the students. Appellant argues that she should have been permitted to show "lack of motive." (Appellant's Reply Brief at 5.) In response, the state argues that the trial court properly instructed the jury on motive pursuant to Ohio Jury Instructions ("OJI") CR Section 417.01 and that there was no error in curtailing appellant's cross-examination of Detective Perryman because the question called for speculation, and motive need not be proven. Finally, the state argues that if there was error, it was not prejudicial because Detective Perryman testified that appellant showed the movie because she said it contained Spanish and she was going to discuss the Spanish alphabet.

{¶ 13} Cross-examination is permitted on all relevant matters and on matters affecting credibility. Evid.R. 611(B). However, a trial court has discretion to limit the scope of cross-examination taking into account the particular facts of a case. State v. Canada, 10th Dist. No. 14AP–523, 2015-Ohio-2167, 2015 WL 3540402, ¶ 55, citing State v. Bone, 10th Dist. No. 05AP–565, 2006-Ohio-3809, 2006 WL 2053398, ¶ 49. Thus, a trial court has wide latitude to impose reasonable limits on cross-examination based on concerns that interrogation is repetitive or only marginally relevant. Id., citing State v. Treesh, 90 Ohio St.3d 460, 480–81, 739 N.E.2d 749 (2001). A...