Appeals court overturns man's convictions

By ED RUNYAN
VINDICATOR TRUMBULL STAFF
WARREN -- The 11th District Court of Appeals has overturned the convictions of a 45-year-old Youngstown man accused of fondling an 11-year-old Hubbard girl in 2001.
The court overturned the convictions of Hervey H. Dunn, formerly of Sunshine Street, on 20 counts of gross sexual imposition involving a family acquaintance. He remains incarcerated in Madison Correctional Institute.
His four-year sentence was handed down by Trumbull County Common Pleas Court Judge W. Wyatt McKay in 2003. He began serving the prison sentence Jan. 28, 2004.
Errors
The court agreed with three of Dunn's assignments of error:
UThe trial court erred in denying Dunn's motion to strike the testimony of a social worker that interviewed the alleged victim.
UThe trial court erred when it denied an objection by Dunn's defense attorney that testimony from a confidential meeting Dunn had with a crisis counselor was inadmissible.
UThe trial court erred when it admitted into evidence a report by the counselor based on the meeting.
LuWayne Annos, assistant Trumbull County prosecuting attorney, said her office will meet with the victim's family and decide whether it should try the case again, offer a plea agreement to Dunn, dismiss the case or appeal it to the Ohio Supreme Court.
The decision said the court should not have allowed evidence to be presented that came from a social worker who interviewed the victim.
The appeals court said that admission of such evidence is allowed only if the child understands the reason for the interview is for diagnosis of a medical or psychological issue. The court looked at the type of room the child was interviewed in, the way the social worker was dressed and the things the child was told and determined that the child would not perceive the interview to be of a medical nature.
Interview with counselor
The court also indicated that part of the interview Dunn had with his crisis counselor should not have been admitted into evidence because the details would be prejudicial to the jury. The objectionable parts were Dunn's comments about the police investigation, his debating whether to run from police, his drug use, his demeanor and his educational level.
The ruling agrees that Dunn's admissions to fondling the girl were not privileged information and could be used in court. Those comments are not privileged because this type of communication indicates a "clear or present danger to other individuals."
runyan@vindy.com