COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68546 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION TOMMY L. COLE : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 20, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-310,676 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RONALD JAMES, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JOHN P. PARKER Attorney at Law 4403 St. Clair Avenue Cleveland, Ohio 44103 TIMOTHY E. McMONAGLE, J.: Defendant-appellant Tommy L. Cole appeals his conviction for two counts of rape. For the reasons set forth below, we affirm the decision of the trial court. On June 8, 1994, defendant-appellant was indicted for two counts of rape, both with a prior aggravated felony specification. Defendant-appellant pleaded not guilty, and the matter proceeded to a jury trial on January 9, 1995. For its case, the state presented the testimony of the prosecuting witness, fifteen-year-old Kabira G., the witness's grandmother and Cleveland Police Detective Essie Borders. Kabira testified that in March 1994, she stayed at an apart- ment which her mother and the defendant shared following their arrests in an unrelated matter. According to Kabira, her mother and the defendant asked her to stay at the apartment and look after their belongings. By March 25, 1994, the defendant was released from jail, but Kabira's mother was not. That night, as Kabira slept on a sofa in the living room of the apartment, she felt something touching her. She awoke and realized that the defendant was on top of her. He then forced her to engage in sexual conduct. Kabira began to cry, then suddenly noticed Laverne Smith, a tenant from the upstairs apartment "peeking around the corner" and running - 3 - out of the apartment. The defendant then got up and told Kabira that if she ever told anyone what had happened, he would kill her and kill himself. He then dressed and left the apartment. Several hours later, in the early morning of March 26, 1994, the defendant approached Kabira a second time and performed oral sex upon her. Kabira further testified that she told her boyfriend what had happened on the following day. He then reported it to Kabira's grandmother, and her grandmother, in turn, called the police. On cross-examination, Kabira acknowledged that the police report prepared in connection with the matter was dated April 26, 1994, or one month after it reportedly occurred. Kabira also stated on cross-examination that she could not leave the apartment after the incident because a refrigerator was blocking the back door and the defendant had locked the front door from the outside, and she had no keys to unlock it. She acknowl- edged that she did not call for anyone in the upstairs apartment to help her and that she and the defendant visited her mother in jail in the afternoon on March 26, 1994. The court refused to allow the defense to cross-examine Kabira regarding the fact that she was on probation and that, approximately three days after the allegations were described to her grandmother, she was charged with delinquency in connection with a robbery. The court did permit inquiry regarding whether - 4 - Kabira had run away from her grandmother's home and whether she had "had problems" with her grandmother. Kabira's grandmother testified that she has custody of the girl. She stated that Kabira liked the defendant but later developed a negative attitude toward him. The grandmother next testified that she learned of the incident through Kabira's boyfriend. She asked Kabira about it, and Kabira began to cry, then told her that she had been attacked. Kabira's grandmother then called the police. On cross-examination, the grandmother admitted that she had been convicted of welfare fraud. In addition, she acknowledged that she had problems with Kabira, that Kabira had run away and had problems in school, and that the defendant had given Kabira a car to drive and had later taken it away. Detective Borders testified that she talked to Kabira and Kabira's grandmother on April 20, 1994, then met with them on April 26, 1994. In addition, Det. Borders took statements from Laverne Smith and Kabira's mother; however, the court did not allow the statements into evidence. The defendant elected to offer evidence and testified on his own behalf. He also presented the testimony of John Alford, Wanda Cole, Quiandra Johnson and Claude Johnson. The defendant testified that Kabira had been staying at his apartment in March 1994, at the time that he and the girl's mother were arrested on an unrelated matter. The defendant was - 5 - subsequently released on March 24, 1994, but Kabira's mother was held in jail for a probation violation. Following his release, the defendant and two friends, Jimmy Ruffin and Denice Peoples, went looking for Kabira because she had taken the defendant's car but did not find her. On the following day, the day of the alleged attack, the group continued to look for Kabira and the car. Later that night, the defendant saw his sister Wanda and her friend on the porch of his apartment. He then let Ruffin and Peoples into the apartment, and he, Wanda and Wanda's friend continued to look for Kabira. The next day, March 26, 1994, he, Ruffin and Denice found Kabira at the home of her friend, Janice, and he then took her to visit her mother at the jail. The defendant further maintained that Laverne Smith was away visiting a sick uncle on March 25, 1994 and that Kabira and her mother fabricated the story about the attack to retaliate against him for having an affair with another woman. Wanda Cole testified that she and her friend, Tonya Ray, went to the defendant's apartment on the night he was released from jail. At this time, the defendant was with two friends, James Ruffin, whom she referred to as "Redd," and Denice. He left them at the apartment, then took Wanda and Tonya to look for Tonya's husband. By 2:30 a.m. on March 26, 1994, they dropped off Tonya Ray and returned to the apartment. The defendant then left with Redd and Janice to find Kabira and the missing car. - 6 - Quiandra Johnson testified that she is Kabira's cousin and that Kabira has a reputation for dishonesty. She and Claude Johnson, a longtime friend of the defendant, also testified that the defendant was a good person, had taken responsibility for caring for Kabira and had looked for her on many occasions when she had run away from home. John Alford testified that he is the owner of the apartment where the defendant lived. The defendant and Kabira's mother stayed in the downstairs portion of the duplex, and Alford, Wanda Cole and another woman lived in the upstairs apartment. According to Alford, the defendant purchased a car for Kabira and was teach- ing her to drive. Following the defendant's arrest in connection with this matter, Alford retrieved the car keys from Kabira and observed keys to the apartment in her possession at this time. The matter was subsequently submitted to the jury, and the defendant was convicted of both counts of rape. The specifica- tions were later determined, and the defendant now appeals and assigns one error for our review. I. THE APPELLANT WAS DENIED DUE PROCESS AND THE RIGHT TO CONFRONT AND CROSS-EXAMINE HIS ACCUSER UNDER THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND ART. I, SEC. 10 OF THE OHIO CONSTITUTION WHEN THE COURT DENIED HIM THE RIGHT TO CROSS-EXAMINE HIS ACCUSER CONCERNING HER JUVENILE COURT RECORD IN VIOLATION OF DAVIS V. ALASKA (1974), 415 U.S. 308. - 7 - In this assignment of error, defendant-appellant challenges the trial court's refusal to allow cross-examination of Kabira regarding whether robbery charges were filed against her in the juvenile court and regarding her status as a juvenile probationer. The appellant maintains that these matters may establish a motive for her to "deflect the attention" to him and are, therefore, relevant to the issue of potential bias. R.C. 2151.358(H) sets forth a general rule of nondisclosure of juvenile proceedings and provides in pertinent part that "*** [t]he disposition of a child under the judgment rendered or any evidence given in court is not admissible as evidence against the child in any other case or proceeding in any other court ***." The Confrontation Clause, however, secures the right of cross- examination, Davis v. Alaska (1970), 415 U.S. 308, 315, and provides that "[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him ***." It is applicable to the states by operation of the Due Process Clause of the Fourteenth Amendment. Pointer v. Texas (1965), 380 U.S. 400. In Davis, supra, the Supreme Court weighed the competing interests of anonymity of juvenile proceedings and thorough cross- examination. In that case, the defendant was accused of breaking into a bar and stealing a safe. A key witness for the state, Richard Green, identified the defendant as one of the two men he had observed near his family's house following the burglary. Green - 8 - testified that he had observed defendant carrying a crowbar and standing next to a blue car and that the safe was later discovered at the same point where the vehicle had been parked. The defendant's attorney attempted to cross-examine Green for having been on probation as the result of a juvenile delinquency adjudi- cation for burglary. Counsel endeavored to establish that Green's identification of the defendant was suspect because it was (1) made to shift suspicion away from himself and (2) the result of undue pressure from the police due to fear of possible probation revocation. Counsel indicated, however, that Green's record would be revealed only as necessary to probe for bias and prejudice "and not generally to call Green's good character into question." Id., at 1108. The trial court prohibited the inquiry pursuant to a state law which protects the anonymity of juvenile offenders, and the defendant was subsequently convicted. The Supreme Court reversed the defendant's conviction and stated: *** the jurors were entitled to have the benefit of the defense theory before them so they could make an informed judgment as to the weight to place on Green's testimony. *** The accuracy and truthfulness of Green's testimony were key elements in the state's case against petitioner. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of Green's vulnerable status as a probationer, *** as well as of Green's possible concern that he might be a suspect in the investigation. *** While counsel was permitted to ask Green whether he was biased, counsel was unable to - 9 - make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. *** We do not and need not challenge the State's interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender. Cf. In re Gault, 387 U.S. 1, 25, 87 S.Ct. 1428, 1442, 18 L.Ed.2d 527 (1967). Here, however, petitioner sought to introduce evidence of Green's probation for the purpose of suggesting that Green was biased and, therefore, that his testimony either was not to be believed in his identification of petitioner or at least very carefully considered in that light. ***. In a concurring opinion, Justice Stewart wrote that the excluded cross-examination was necessary under the facts presented in order show the existence of possible bias, but the Court neither held nor suggested that the Constitution conferred a right in every case to impeach general credibility of a witness through cross- examination about past delinquency adjudications. In Ohio, Davis, supra, has been applied to allow cross- examination of a witness with his or her juvenile records where the defense presents "some plausible showing" that the records would be used for the specific purpose of showing a witness's potential bias and not merely to discredit the general character of the witness. State v. Lukens (1990), 66 Ohio App.3d 794, 802-803; State v. Pirman (1994), 94 Ohio App.3d 203, 210; see, also, State v. Willman (1991), 77 Ohio App.3d 344, 346; State v. Bayless (May 31, 1995), Crawford App. No. 3-94-15, unreported. - 10 - In this instance, defense counsel maintained that Kabira's disclosure was prompted by her desire to "deflect attention" away from herself in the juvenile proceedings. We note, however, that the charges at issue herein were not directly reported by Kabira, herself, but were, in fact, disclosed by her boyfriend to her grandmother, who, in turn, reported to the police. A review of the record fails to demonstrate any "plausible showing" that this disclosure was to "deflect attention" away from either her own pending probation status or her current charge of robbery. Fur- ther, there is no showing that the disclosure was any indication of her bias in the within matter. Thus, counsel failed to demon- strate how the introduction of Kabira's juvenile record would have resulted in anything more than a general attack on her character for truthfulness. Accord State v. Willman, supra, (defendant charged with attempted aggravated burglary at home of prosecuting witness failed to demonstrate how introduction of her juvenile record into evidence would have resulted in anything more than an attack upon her character for truthfulness); Cf. State v. Cox (1975), 42 Ohio St.2d 200, 204 (trial court's refusal to allow testimony on basis that such testimony would have led to disclo- sure of a witness's juvenile record was error where witness, appellant and witness's mother were together shortly before wit- ness's mother was murdered and proffered testimony would have demonstrated a deteriorating relationship between witness and her mother). - 11 - In any event, defendant-appellant presented ample evidence to demonstrate that Kabira had been in trouble many times and was a habitual runaway. Accordingly, we are unable to conclude that the trial court erred in disallowing further cross-examination regard- ing the robbery and probation claims. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J. and DIANE KARPINSKI, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .