Closed-circuit testimony is allowed in child sex abuse cases if certain standards are met. A recent case was the first time it was used in Stark County.

CANTON A local first occurred during a recent trial when two young children testified from closed-circuit television.

Earlier this month, Rory J. Bowers was convicted by a Stark County Common Pleas jury of one count of sexual battery and two counts of gross sexual imposition, all felonies. Judge Kristin Farmer sentenced the Canton man to 13 years in prison.

Perhaps most key to the conviction was the unusual form of testimony.

Questions are traditionally answered from a witness chair, while flanked by jurors and seated around 12 to 15 feet from the defendant.

The allegations stemmed from between July 2015 and July 2016, according to court records filed in the case by the Stark County Prosecutor's Office. Investigators said Bowers sexually assaulted one of the girls. The gross sexual imposition charges stemmed from touching of a sexual nature involving both victims, court records said.

Farmer granted a prosecution motion to allow the two girls to testify from outside the presence of the 33-year-old Bowers. It was believed to have been the first time a Stark County Common Pleas judge granted such a request, said Daniel Petricini, assistant Stark County prosecutor.

Petricini said it was apparently only the second time a prosecutor sought the motion locally. The state law allowing the closed-circuit testimony dates to the late 1990s, he said.

"I think it is useful, and I would certainly use every legal means at our disposal to hold these (defendants) accountable for abusing children, but it's very difficult, and only a small percentage of cases meet the requirements," Petricini said.

Split screen

Once the motion was granted it was the prosecution's responsibility to arrange the technology, he said.

During testimony by each of the two child witnesses, jurors watched a split video screen with both the attorney and child visible, Petricini said. The witness must be able to see the defendant on a monitor, he said.

In the Bowers case, the child witness, judge and attorneys were in one courtroom and the jurors and defendant were in another courtroom.

Other evidence presented by prosecutors included the testimony of a social worker, counselor and therapists as well as pictures drawn by the child victims during art therapy, Petricini said. Renderings were related to both the sexual abuse as well as to their coping and recovery from the trauma, the assistant prosecutor said.

In child sex abuse cases, it's not uncommon for prosecutors to reach plea agreements to avoid a child having to undergo the trauma of reliving events and testifying.

Granting the motion

The Stark County Public Defender's Office had objected to the use of closed-circuit testimony.

Ohio law allows closed-circuit testimony for witnesses under age 13 in a sex abuse case if one of three standards is met:

The persistent refusal of the child victim to testify despite judicial requests to do so.The inability of the child victim to communicate about the alleged violation or offense because of extreme fear, failure of memory or another similar reason.The substantial likelihood that the child victim will suffer serious emotional trauma from testifying.

Farmer granted the motion under the trauma-related standard.

At an earlier court hearing, a therapist had testified for prosecutors in support of the children testifying by video link in another courtroom.

Farmer noted that the witnesses exhibited trauma-related behavior, such as bed-wetting, dishonesty, hoarding food and engaging in negative attention-seeking behaviors.

Further, the court found the witnesses "have worked through their feelings and behaviors."

If the witnesses were required to testify in the courtroom in front of the defendant, Farmer ruled, "all of the prior therapy that they would have completed would be undone and ... the trauma-related behaviors would return.

"... The court finds that given the status of (the) recovery of the witnesses, the impact of such testimony would result in the return of the trauma-related behaviors, and, as such, serious emotional trauma."

Another view

Stark County Public Defender Tammi Johnson said she believes the law permitting the unorthodox form of testimony is inherently detrimental to the defense.

"I think it should be the exception," she said of closed-circuit testimony in child sex abuse cases. "I frankly think it should be limited much more than it is. I can certainly see it happening if there are some mental health issues with the child, and I'm talking on top of any trauma from any incident."

"Anytime an allegation of physical harm is made, the alleged victim of the said physical harm is generally to a certain extent afraid of testifying, be it a juvenile or be it an adult," Johnson said.

Johnson contends the age component of the applicable law should be lower than up to age 12. "I'm not sure age should be a deciding factor, and I think age is much more important to courts than it should be," she said.

Also at issue, Johnson said, is the basic constitutional principle that a criminal defendant gets to face their accuser.

"It gives the jury the impression someone is dangerous if they can't even be in the same room," she said of closed-circuit testimony. The defense is "already behind the eight ball (but) this makes it even worse. It's like, 'OK, he must be really bad if they're so scared of him,' but that's not one of the elements of the (criminal offense)."

Johnson said she anticipates the closed-circuit testimony to be questioned as part of an appeal filed in the Bowers case with the Canton-based 5th District Court of Appeals.

'Good use of the law'

Petricini believes closed-circuit testimony made a difference in the Bowers trial.

"Speaking to the jurors after the case, they said they really appreciated the children got to testify outside the presence of the jury," he said. "They said they really thought that was a good use of the law."

Petricini said he was originally concerned the unusual style of the testimony could have been a weakness in the case.

"I think it's very powerful for a jury to watch (young children) come in and climb into the witness stand and testify (to sex abuse)," he said. "And it's one of the most powerful things that we do when I prosecute a case like this. I think it's very effective to see that this little kid is willing to come in and point them out and say this is what happened."

"I was a little nervous it would backfire," Petricini added. "It's definitely something that would only be in a select few cases where we'd be able to file (the motion) in good faith."

Reach Ed at 330-580-8315 and ed.balint@cantonrep.com

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