593 N.E.2d 17 | Ohio Ct. App. | 1990
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *36 Appellant, Lynda Pegram Green, guardian ad litem of the minor child Marlana Presley, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Domestic Relations Division, denying the appellant guardian's motion to modify the appellee Debra L. Presley's visitation rights with her daughter Marlana Presley.
On September 21, 1988 pursuant to an agreement between the appellee father and the appellee mother, the trial court approved a judgment entry wherein the father was granted custody of Marlana. The judgment entry further provided that the appellee mother be given weekend visitation rights with Marlana. *37
"The trial court erred in not admitting into evidence testimony of a social worker as to statements made to her by the minor involved herein."
This assignment of error is well taken.
Evid.R. 803(4) excludes: *38
"Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."
"Although the wording of Evid.R. 803(4) requires that the statements be made for purposes of medical treatment, it doesnot on its face require that such statements be made to aphysician." (Emphasis added.)
In State v. Barnes, the testimony of the social worker was held properly admitted. The court stated, inter alia:
"[W]e are convinced that such an interpretation is sound for two reasons. First, the language of the rule itself does not require that such statements be made to physicians. * * * [C]ertainly nurses, orderlies and other hospital personnel might on occasion be privy to these statements. Since the rule does not limit its application to statements made to physicians, statements which satisfy its criteria should be admitted without imposing additional criteria not required by the legislature. Second, admission of statements made to persons other than physicians would still be subject to the same indicia of reliability * * * as long as they were being made for purposes of diagnosis and treatment." State v. Barnes, supra, at 32-33.
"[S]tatements by a child abuse victim that the abuser is a member of the victim's household are reasonably pertinent to diagnosis and treatment. [Citations omitted.] Familiar child abuse involves more than physical injury. The identity of the offender might be necessary for psychological diagnosis and treatment and, moreover, treatment may involve, at least in part, removal of the child from the situation."
Finally, our court of appeals has held that "the testimony of the social worker [as to statements made to her by the victim] * * * [was] admissible under Evid.R. 803(4)." State v. Nelson (Jan. 19, 1989), Cuyahoga App. No. *39 54905, unreported, 1989 WL 4146. See State v. Hurayt (Dec. 9, 1988), Cuyahoga App. No. 54662, unreported, 1988 WL 132592.
Several Ohio appellate courts have issued rulings supporting the evidentiary value of the social worker's testimony. SeeState v. Reger (May 14, 1986), Summit App. Nos. 12378 and 12384, unreported, 1986 WL 5699. State v. Negolfka (Nov. 19, 1987), Cuyahoga App. No. 52905, unreported, 1987 WL 20211. Since our own court of appeals has arrived at the same conclusion, holding simply that "the testimony of the social worker [as to statements made to her by the victim] * * * were admissible under Evid.R. 803(4)." State v. Nelson, supra, we affirm this trend to liberalize the Rules of Evidence when applying them in child abuse situations. The testimony of the social worker should have been admitted as a hearsay exception under Evid.R. 803(4).
For the foregoing reasons, the court erred by not permitting the testimony of the social worker.
This assignment of error is well taken.
"The trial court erred in not admitting into evidence testimony by the foster mother of the minor regarding statements made to her by said minor."
This assignment of error is not well taken.
The court observed as follows:
"Jenkins argues that the seven month interval between the rape and the victim's statements to [the social worker] violate the spontaneity requirement of the [803(2)] exception. Many courts have liberally interpreted the time requirement when the hearsay statements of sexually abused children are at issue. [Citations omitted.]"
"Related to the notion of a wide discretion in appellate review is a clear judicial trend to liberalize the requirements for an excited utterance when applied to young children victimized by sexual assaults. [Citations omitted.] The significance and trustworthiness of an excited utterance lies in the fact the words are uttered while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. [Citation omitted.] The limited reflective powers of a three-year-old, coupled with his inability to understand the enormity of ramifications of the attack upon him, sustain the trustworthiness of his communications. As a three-year-old, truly in the age of innocence, he lacked the motive or reflective capacities to prevaricate the circumstances of the attack." State v. Wagner,
A reviewing court will not disturb a trial judge's decision if it is supported by some competent, credible evidence.Cleveland v. Northeast Ohio Regional Sewer Dist. (Sept. 14, 1989), Cuyahoga App. No. 55709, unreported, 1989 WL 107162.
"The trial court erred in not admitting into evidence the testimony of a physician regarding his medical examination and findings pertaining to the minor in question."
This assignment of error is not well taken.
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
"The trial court erred in that it refused to admit into evidence the testimony of the minor in question without first conducting a proper competency examination, as required by the Ohio rules of evidence."
This assignment of error is not well taken.
The appellant, in her fourth assignment of error, argues that the trial court erred by not admitting into evidence the testimony of the minor in question. Specifically, the appellant guardian ad litem argues that the court did not conduct a proper competency examination.
"Every person is competent to be a witness except: (A) those of unsound mind, and children under ten (10) years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or relating them truly. * * *" *43
In Trickey v. Trickey (1952),
"In proceedings involving the custody and welfare of children the power of the trial court to exercise discretion is particularly important. The knowledge obtained through contactwith and observation of the parties and through independentinvestigation cannot be conveyed to a reviewing court by printedrecord." (Emphasis added.)
Therefore, assignment of error four is not well taken.
"The trial court erred in not making appropriate findings of fact and conclusions of law, upon timely motion therefor."
This assignment of error is not well taken. *44
The appellant, in her sixth assignment of error, argues that the trial court erred in not ruling upon the motion for a new trial. Specifically, the appellant argues that the post-decree motion to modify visitation is equivalent to a "trial."
This assignment of error is not well taken. *45
"Pursuant to O.C. Rule 59 counsel filed a motion for a new trial (No. 146147). This rule addresses itself to a new trial. In the instance at hand the court conducted a hearing on a motion. No trial was held. [Emphasis in original.]"
For the foregoing reasons, appellant's sixth assignment of error is without merit.
This cause is affirmed in part, reversed in part and remanded.
Judgment affirmed in part,reversed in partand cause remanded.
JOHN V. CORRIGAN, P.J., concurs.
JOHN F. CORRIGAN, J., concurs in judgment only.