[Cite as State v. McCauley , 2023

- Ohio

- 2133.]

COURT OF APPEALS

TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, ET AL. : JUDGES:

:

: Hon. W. Scott Gwin, P.J.

Plaintiff

- Appellant : Hon. Patricia A. Delaney, J.

: Hon. Andrew J. King, J.

- vs

- :

: Case No. 2022AP100043

:

JUSTIN MCCAULEY :

:

:

Defendant

- Appellee : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County

Court of Common Pleas, Case No.

2021CR040131

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: June 26, 2023

For Plaintiff

- Appellee State of Ohio: For Defendant

- Appellee:

KRISTINE BEARD CHRISTOPHER DELACRUZ

TUSC. CO. PROSECUTOR’S OFFICE 108 E. High St., Suite 3

125 East High Ave. New Philadelphia, OH 44663

New Philadelphia, OH 44663

For Victim

- Appellants RM, RP, and NP

ELIZABETH WELL

LATINA BAILEY

Ohio Crime Victim Justice Center

3976 North Hampton Drive

Powell, OH 43065Tuscarawas County, Case No. 2022AP100043 2

Delaney, J.

{¶1} Appellants in this matter are minor complainant R.M. and parents R.P. and

N.P. They appeal from the October 5, 2022 Judgment Entry of the Tuscarawas County

Court of Common Pleas overruling their request for R.P. and N.P. to be present

throughout trial as designated victims or victim representatives. Appellees are plaintiff

state of Ohio and Defendant Justin McCauley.

FACTS AND PROCEDURAL HISTORY

{¶2} This matter arose on April 23, 2021, when Defendant was indicted upon two

counts of gross sexual imposition involving two different minor complainants. Defendant

entered pleas of not guilty and moved for separate trials on each of the two counts. The

trial court granted the motion for separate trials and ordered that Count I, involving minor

R.M., would be tried first, beginning on September 27, 2022.

{¶3} At the final pretrial on September 15, 2022, the state and Defendant moved

for separation of witnesses. The parties anticipated calling R.M.’s parents, R.P. and N.P.,

as material witnesses, and Defendant objected to the parents’ presence in the courtroom

throughout the trial.

{¶4} R.M.’s counsel from the Ohio Crime Victims Justice Center was present

throughout the trial court proceedings as a victim advocate. On September 29, 2022,

counsel argued R.P. and N.P. were also victims of the offense alleged in Count I and

were entitled to be present in the courtroom throughout the trial pursuant to Marsy’s Law.

In the alternative, counsel argued R.P. and N.P. should be permitted to be present in the

courtroom throughout trial as R.M.’s “victim representatives” pursuant to R.C. 2930.09.Tuscarawas County, Case No. 2022AP100043 3

{¶5} The trial court disagreed and found that R.P. and N.P. would not be

designated as “victims;” nor would they serve as R.M.’s representatives because they

were both potentially material witnesses at trial. The trial court offered to continue the

matter to permit a different family member to be present and serve as R.M.’s victim

representative, but counsel stated a victim advocate from their office could be present

and they (R.M., R.P., and N.P.) did not want the matter to be continued.

{¶6} The matter proceeded to trial by jury on Count I regarding R.M.’s

allegations. Defendant was found not guilty.

{¶7} On October 5, 2022, the trial court journalized a Judgment Entry

memorializing the verdict of not guilty and stating the following in pertinent part:

* * * *.

Prior to opening statements and the presentation of evidence,

both parties made motions for separation of witnesses. The Court

granted both motions. Attorney Latina Bailey appeared on behalf of

R.M., N.P., and R.P. Attorney Bailey argued that N.P. and R.P. are

victims pursuant to the Ohio Constitution and Revised Code. The

Court disagreed and concluded that the alleged victim shall be

limited to the alleged victim designated in the indictment. The Court

also ruled that the alleged victim, R.M., can be present throughout

the trial or a representative as long as the representative is not a

material witness in the trial. The Court also informed the alleged

victims’ counsel that a continuance would be granted to allow for a

representative to be present.Tuscarawas County, Case No. 2022AP100043 4

Counsel for R.M. declined the Court’s offer. The Court also

had a brief discussion with R.M.’s counsel regarding any possible

appeal that R.M. might want to pursue, and the Court was informed

that it was the wishes of her clients to have the matter proceed.

* * * *.

The Court further FINDS that the Not Guilty verdict returned

by the Jury relative to Count One of the Indictment in this case

requires that Count One of the Indictment be dismissed with

prejudice to refiling.

* * * *.

{¶8} R.M., N.P., and R.P. now appeal from the trial court’s Judgment Entry of

October 5, 2022, and raise three assignments of error:

ASSIGNMENTS OF ERROR

{¶9} “I. THE TRIAL COURT ERRED WHEN IT RULED THAT R.P. AND N.P.

DID NOT MEET THE DEFINITION OF “VICTIM” IN OHIO CONSTITUTION, ARTICLE I,

SECTION 10A(D).”

{¶10} “II. THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW R.P. OR

N.P. TO BE DESIGNATED VICTIM REPRESENTATIVE FOR R.M. PURSUANT TO

OHIO CONSTITUTION, ARTICLE I, SECTION 10A(B) AND REVISED CODE SECTION

2930.02.”

{¶11} “III. THE TRIAL COURT ERRED WHEN IT DENIED R.P. AND N.P. THE

RIGHT TO BE PRESENT DURING TRIAL.”Tuscarawas County, Case No. 2022AP100043 5

ANALYSIS

I., II., III.

{¶12} Appellants R.M., N.P., and R.P.’s assignments of error are related and will

be addressed together. Because we find the issues presented are moot and no justiciable

controversy exists, we dismiss the instant appeal.

{¶13} “Mootness is a jurisdictional question because the Court ‘is not empowered

to decide moot questions or abstract propositions.’ ” State v. Battigaglia

, 5th Dist. Stark

No. 2020CA00157, 2021

- Ohio

- 2758, ¶ 11, citing State v. Feister

, 5th Dist. Tuscarawas

No. 2018 AP 01 0005, 2018

- Ohio

- 2336, ¶ 28, internal citations omitted. Ohio courts have

long exercised judicial restraint in cases that are not actual controversies. Battigaglia

,

supra, citing Fortner v. Thomas

, 22 Ohio St.2d 13, 14, 257 N.E.2d 371, 372 (1970).

{¶14} The Ohio Supreme Court has interpreted a “justiciable matter” to mean the

existence of an actual controversy, a genuine dispute between adverse parties. State v.

Wolfe

, 5th Dist. Licking No. 2020CA00021, 2020

- Ohio

- 5501, ¶ 45, citing State ex rel.

Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas

, 74 Ohio St.3d 536, 542,

660 N.E.2d 458 (1996). In order for a justiciable question to exist, the “threat” to a party's

position “must be actual and genuine and not merely possible or remote.” Wolfe

, supra,

citing M6 Motors, Inc. v. Nissan of N. Olmsted, L.L.C.

, 2014

- Ohio

- 2537, 14 N.E.3d 1054,

¶ 17, citing Mid

– Am. Fire & Cas. Co. v. Heasley

, 113 Ohio St.3d 133, 2007

- Ohio

- 1248,

863 N.E.2d 142, ¶ 9.

{¶15} In the instant case, Defendant has been found not guilty by the jury upon

Count I, relating to the allegations of R.M. No real or actual controversy exists between

Defendant, R.M., N.P., and R.P. The requested relief would provide no rights or relief toTuscarawas County, Case No. 2022AP100043 6

any of the appellants because the case is concluded; the issues they presented to this

Court are moot.

{¶16} Finally, we note that pursuant to Marsy’s Law upon which appellants

partially rely, timely appeal could have been made from the trial court’s decision at the

final pretrial, before the case proceeded to jury trial. Ohio Constitution, Article I, Section

10a(B) states the following:

The victim, the attorney for the government upon request of

the victim, or the victim's other lawful representative, in any

proceeding involving the criminal offense or delinquent act against

the victim or in which the victim's rights are implicated, may assert

the rights enumerated in this section and any other right afforded to

the victim by law. If the relief sought is denied, the victim or the

victim's lawful representative may petition the court of appeals for the

applicable district, which shall promptly consider and decide the

petition.

{¶17} The possibility of an immediate appeal was discussed at the motions

hearing on September 29, 2022, but appellants did not appeal and noted they wanted the

trial to proceed.

{¶18} Now that Count I was tried to verdict, no justiciable controversy remains and

appellants’ issues regarding the status of parents as designated victims or

representatives are not properly before this Court.Tuscarawas County, Case No. 2022AP100043 7

CONCLUSION

{¶19} For the foregoing reasons, the instant appeal is dismissed as moot.

By: Delaney, J.,

Gwin, P.J. and

King, J., concur.