         [Cite as State v. Maley, 2013-Ohio-3452.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-120599
                                                         TRIAL NO. B-1200674
        Plaintiff-Appellee,                          :
                                                                 O P I N I O N.
  vs.                                                :

THURMELL MALEY,                                      :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 9, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michael J. Trapp, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                        OHIO FIRST DISTRICT COURT OF APPEALS




D INKELACKER , Judge.

       {¶1}     In one assignment of error, defendant-appellant Thurmell Maley

challenges her conviction for felonious assault. She argues that the trial court erred

when it allowed the victim to remain in the courtroom in spite of the fact that she

had requested a separation of witnesses. We disagree. The Ohio Constitution, the

Revised Code, and the Rules of Evidence allow a victim to be present during a

criminal proceeding, and the trial court did not err when it allowed the victim to be

present in this case.

                         Victim Allowed to Remain in Courtroom

       {¶2}     At trial, Maley asked the trial court to issue an order to separate the

witnesses. She argued that having both the investigating officer and the victim of the

offense in the courtroom during the entire trial would be a violation of her constitutional

right to a fair trial. She feared that the victim would be able to hear other testimony and

tailor his version to the accounts presented to the trial court. The trial court issued a

separation order as to all other witnesses, but allowed the victim to remain in the

courtroom pursuant to R.C. 2930.09 and Evid.R. 615. The trial court determined that

Maley had failed to show a fair trial required the exclusion of the victim. Maley was

found guilty of felonious assault and sentenced to a four-year prison term.

                                  Standard of Review

       {¶3}     Maley asserts that the issue raised under her assignment of error is a

question of law requiring a de novo review. But the decision to allow a victim to remain

in the courtroom during a trial is left to the discretion of the trial court. See State v.

Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.3d 1173, ¶ 96. A trial court only




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                      OHIO FIRST DISTRICT COURT OF APPEALS



abuses its discretion when its decision is unreasonable, arbitrary, or unconscionable.

State v. Adams, 62 Ohio St.2d 151, 157-58, 404 N.E.2d 144 (1980).

                            The Victim’s Right to be Present

       {¶4}     The Ohio Constitution was amended in 1994 to explicitly provide for the

rights of victims of crimes. The relevant section reads:

         Victims of criminal offenses shall be accorded fairness, dignity, and

         respect in the criminal justice process, and, as the General Assembly

         shall define and provide by law, shall be accorded rights to reasonable

         and appropriate notice, information, access, and protection and to a

         meaningful role in the criminal justice process.

(Emphasis added.) Ohio Constitution, Article I, Section 10a. As part of the legislation

designed to carry out the mandate in that amendment, the General Assembly enacted

R.C. 2930.09, which provides:

         [a] victim in a case may be present whenever the defendant or alleged

         juvenile offender in the case is present during any stage of the case

         against the defendant or alleged juvenile offender that is conducted on

         the record, other than a grand jury proceeding, unless the court

         determines that exclusion of the victim is necessary to protect the

         defendant’s or alleged juvenile offender’s right to a fair trial * * *.

                 General Claims of Possible Prejudice are Insufficient

       {¶5}     Maley argues that the trial court violated Evid.R. 615 in denying her

motion for a separation of witnesses. But Evid.R. 615(B)(4) states that a victim of a

charged offense may not be excluded to the extent that the victim’s presence is

authorized by statute. R.C. 2930.09 grants a victim the right to be present throughout

the entirety of a court’s proceedings, unless exclusion is required to ensure a fair trial.


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                       OHIO FIRST DISTRICT COURT OF APPEALS



        {¶6}     In the present case, Maley moved for separation of witnesses. The trial

court granted the request, but it allowed the victim to remain. Maley objected, arguing

that allowing the victim to hear other witnesses’ testimony would defeat the purpose of

the separation of witnesses and would deny her right to a fair trial. The trial court

overruled Maley’s objection, finding that she had failed to show how the victim’s

presence would prejudice her.

        {¶7}     Maley’s argument below, and the argument made here, are nothing

more than general assertions that having the victim present and able to hear testimony

allowed for the possibility of an unfair trial. If this court were to hold that such an

argument is sufficient to prevent the victim from attending court proceedings, it would

render the statute meaningless. We hold that for a defendant to show that a victim’s

presence would result in an unfair trial, she must present particularized evidence that

the victim’s testimony will be so affected by the victim’s presence during the testimony of

other witnesses that her right to a fair trial would be violated. General assertions that it

is possible are insufficient.

                                       Conclusion

        {¶8}     Based on the record, the trial court did not abuse its discretion when it

allowed the victim to remain in the courtroom. And Maley was not denied a fair trial as

a result. Each witness, including the victim, was thoroughly cross-examined. Maley’s

argument that the victim “tailored” his testimony to what he heard from the police

officers is negated by his cross-examination. Because Maley failed to prove that the trial

court abused its discretion in allowing the victim to remain in the courtroom throughout

the trial, we overrule her sole assignment of error.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}    The judgment of the trial court is affirmed.

                                                                      Judgment affirmed.


C UNNINGHAM , P.J., and D E W INE , J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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