2008 Ohio 3471 | Ohio Ct. App. | 2008
{¶ 2} In 2005, appellant and Wendy Otto were married and living together with their two children — a four-year old girl and a five-year old boy. On the evening of *2 December 7, 2005, all four fell asleep in their living room. Otto awoke to find that appellant and her daughter were no longer in the room. She heard noises upstairs and went to her bedroom to investigate. The bedroom door was locked, so she yelled for appellant to open the door. When he did, Otto saw that appellant's boxers were not on properly. She also saw her daughter lying on the couple's air mattress. Otto did not initially think anything was wrong, but when she pulled a blanket off of her daughter, she discovered that her daughter's underwear was down around her feet. At that point, Otto was concerned about what had happened and told appellant to leave. Appellant told Otto that he was not doing anything and that nothing happened. Otto called 911 and appellant left the house.
{¶ 3} Members of the Columbus Police and Fire Departments arrived at the house within minutes. Charles Fritz, a Columbus firefighter, observed the four-year old girl and thought she acted withdrawn and anxious. Fritz asked her what had happened, and she told him that someone had touched her in her private parts. Fritz took Otto and both children to Children's Hospital, where a rape kit was collected from Otto's daughter.
{¶ 4} The next day, Otto took her daughter to the Child and Family Advocacy Center at Children's Hospital. A licensed social worker, Kerri Marshall, interviewed the child about the previous night's events. Although the child was alone in the room with the interviewer, other people watched the interview from another room via closed-circuit television: a detective, a nurse practitioner, a victim's advocate, and a case worker from Franklin County Children Services. The interview was recorded. During the interview, the child accused appellant of conduct that would constitute sexual abuse. After the interview, the nurse practitioner, Gail Hornor, performed a physical examination of the *3 child. She observed recent abrasions on the child's hymen, the tissue inside the labia that surrounds the vagina.
{¶ 5} A Franklin County grand jury subsequently indicted appellant for two counts of rape in violation of R.C.
{¶ 6} At appellant's trial, the trial court ruled that the victim was unavailable to testify. The trial court allowed the State to present, in lieu of the victim's live testimony, her recorded interview from the Child and Family Advocacy Center. Nurse Hornor testified that she examined the victim after the interview. She stated that the abrasions on the victim's hymen were recent and indicated that an object penetrated the labia in an attempt to penetrate the vagina one to three days before the examination. The jury found appellant guilty of rape by vaginal intercourse but not guilty of the other rape count. The jury also found that the victim was less than 10 years of age. The trial court, after designating appellant a sexual predator, sentenced him to life in prison. R.C.
{¶ 7} Appellant appeals and assigns the following errors:
*4First Assignment of Error:
The trial court violated Defendant's right to confrontation as guaranteed by the
Sixth Amendment to the United States Constitution, and Section10 , ArticleI of the Ohio Constitution, by admitting into evidence the out of court declarations by the alleged victim.
Second Assignment of Error:
The trial court erred in admitting the out of court declarations of the alleged victim contrary to the Rules of Evidence because the statements were not admissible under Evidence Rule 803(4). Third Assignment of Error:
Appellant's conviction is not supported by sufficient evidence.
Fourth Assignment of Error:
Appellant's conviction is against the manifest weight of the evidence.
{¶ 8} Appellant contends in his first assignment of error that the admission of the victim's out-of-court videotaped interview violated his constitutional right to confront witnesses. We disagree.
{¶ 9} The
{¶ 10} The State argues that we should apply a plain error standard to this assignment of error because appellant did not object to the admission of the victim's videotaped interview. We disagree. Before Marshall was allowed to testify about the child's statements, appellant's counsel objected on the record and asked to proffer his *5 objection. Marshall was then questioned outside the presence of the jury to allow the trial court to determine the admissibility of her testimony. After the trial court ruled to admit her testimony, it noted appellant's objection and stated that the objection would be preserved for purposes of appeal. Therefore, a plain error review is not appropriate.
{¶ 11} In Crawford v. Washington (2004),
{¶ 12} The Crawford Court did not have to define what the term "testimonial" meant because the statements in that case were taken by police officers in the course of a police interrogation, which the court noted would be testimonial under any definition of the word.Crawford, at 52-53, 68 ("Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.").
{¶ 13} Two years later, in Davis v. Washington (2006),
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are *6 testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Id. at 822. In Davis, the "interrogation" was performed by a 911 telephone operator. The Davis Court noted that such an individual "may at least be an agent of law enforcement" when questioning 911 callers. Therefore, the Davis Court considered the operator's questioning to be acts of the police. Id. at fn. 2. The Davis Court held that the circumstances surrounding the questioning by the 911 telephone operator indicated that the primary purpose of the questioning was to enable police to meet an ongoing emergency and, therefore, the responses were nontestimonial. Id. at 828.
{¶ 14} Shortly after the Supreme Court of the United States decidedDavis, the Supreme Court of Ohio decided State v. Stahl,
{¶ 15} The Supreme Court of Ohio declined to apply the primary purpose test articulated in Davis in determining whether or not the statements were testimonial. It did so because of the difference in the nature of the questioning that led to the statements in each of the two cases. The court distinguished the statements in Davis, which were *7 made in response to questioning by agents of law enforcement officers, from the statements in Stahl, which were made in response to questioning by a medical professional at a medical facility. The court concluded that the primary purpose of the questioning in Stahl was to determine proper medical treatment for the victim — not to conduct a criminal investigation. Id. at ¶ 25.
{¶ 16} In light of this factual distinction, the Stahl court applied the "objective witness" test articulated in Crawford. Stahl at ¶ 36;Crawford, at 52. Under that test, a testimonial statement includes one "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Stahl at ¶ 36. In making this determination, a court should focus on the declarant's expectation at the time of making the statement; the intent of the questioner would only be relevant if it could affect the declarant's expectations. Id. The Stahl court determined that the victim's statements were nontestimonial because no reasonable person in the victim's position would believe that her statements were made for prosecutorial purposes.
{¶ 17} The Supreme Court of Ohio revisited the confrontation clause inState v. Siler,
{¶ 18} As this review of confrontation clause cases indicates, the Supreme Court of Ohio applies different tests to determine whether or not statements are testimonial based on the identity of the questioner and the purpose of the questioning. Siler, at ¶ 28 ("Stahl is factually distinguishable from the instant case based on the identity of the interrogator and the purpose of the questioning."). If the questioner is a law enforcement officer or an agent thereof, the court applies the primary purpose test to determine whether the statements are testimonial. Siler. If the questioner is not a law enforcement officer or agent thereof, the court applies the objective witness test.Stahl.
{¶ 19} Thus, in the case at bar, we must first examine the identity of the questioner in order to determine whether or not the victim's statements were testimonial. Appellant contends that the Child and Family Advocacy Center serves a law enforcement function and that, necessarily, its employees should be considered as police agents. We disagree.
{¶ 20} Child advocacy centers, such as the Child and Family Advocacy Center at Children's Hospital, were established in 2005 by the adoption of R.C.
{¶ 21} Although this court has not specifically addressed whether interviewers at the Child and Family Advocacy Center are police agents, we have considered challenges to the admissibility of statements made during interviews at the center in a number of cases. In State v.Edinger, Franklin App. No. 05AP-31,
{¶ 22} In Martin, supra, this court again found a child's statements made to a social worker at the center to be nontestimonial after considering the factors set forth in Edinger. Id. at ¶ 21. See, also,State v. Jordan, Franklin App. No. 06AP-96,
{¶ 23} Although not faced with a confrontation clause challenge, this court in In re M.E.G., Franklin App. No. 06AP-1256,
{¶ 24} Finally, this court considered another confrontation clause challenge to statements made during an interview at the center inState v. D.H., Franklin App. No. 07AP-73,
{¶ 25} We concluded in D.H. that the statements made in the interview were nontestimonial. Id. at ¶ 53. In so doing, we applied the objective witness test articulated in Stahl and determined that one could "reasonably conclude that the interview * * * was for medical diagnosis and treatment, and not for the availability of a criminal trial." Id. We again noted that simply because information gathered in the interview was subsequently *11
used by the State does not alter the result. Id.; see, also, State v.Muttart,
{¶ 26} In the present case, Otto brought her daughter to the center; law enforcement did not initiate the interview. Kerri Marshall, a licensed social worker employed by Children's Hospital, interviewed the child alone in a room. Although other people watched the interview from another room via closed-circuit television, these people did not enter the interview room and the child was unaware of their presence. There is no indication that any law enforcement officers were involved in the interview. Marshall testified that the purpose of the interview was for medical diagnosis and treatment. She told the child at the beginning of the interview that the child would be examined by a nurse after the interview.
{¶ 27} Following the interview, Marshall shared the information she learned with Nurse Horner, who then performed a complete physical examination of the child. Horner testified that the details Marshall provided guided her exam of the victim and was important to insure an accurate diagnosis. For example, if Marshall told Horner that the victim stated that her vagina was touched by a penis, Horner would make sure that the victim was tested for sexually transmitted diseases.
{¶ 28} In light of these circumstances, we conclude that Marshall did not act as an "agent of the police" when she questioned the victim. She was not an employee of the State but, rather, was employed by the hospital. She testified that her purpose in *12 interviewing the child was for medical diagnosis and/or treatment. She passed along the information she obtained to a nurse who used that information to guide the physical examination of the victim. Other than passive observation, there was no police involvement during the interview and the victim did not have any indication of a police presence. The fact that the interview was recorded and subsequently provided to the State for use in the prosecution of a sexual offense does not make Marshall an agent of the police or a law enforcement officer. In re M.E.G., at ¶ 29; cf. Muttart, at ¶ 62.
{¶ 29} Because Marshall was not acting as a police agent during her questioning of the child, we must apply the objective witness test to determine whether or not the child's statements were testimonial.Stahl, at ¶ 36. Under that test, a testimonial statement includes one "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. In making this determination, a court should focus on the declarant's expectation at the time of making the statement; the intent of the questioner is only relevant if it could affect the declarant's expectations. Id.
{¶ 30} Here, there is no evidence that the child realized that her statements would be available for use at a later trial. The child was only four-years old at the time of the interview. It is highly unlikely that she realized her statements would be available for later use.Martin, at ¶ 21 (noting that it would be "highly unlikely" that a six-year old would realize that her statements were to be available for use at a later trial). The interview occurred at Children's Hospital and not a jail or police headquarters. There were no police officers or other law enforcement officials in the interview room. Marshall testified that she attempted to ask open-ended questions and avoided leading questions. *13 Marshall also told the child at the beginning of the interview that she would be examined by a nurse after the interview. In light of these facts, we conclude that an objective witness would not reasonably believe that the statements made in the interview would be available for use at a later trial. Accordingly, the victim's statements during the interview were nontestimonial.
{¶ 31} Courts in other states have found similar statements to be nontestimonial. State v. Arroyo (Conn. 2007),
{¶ 32} We recognize that courts in some states have found statements in similar situations to be testimonial because the interviewer acted as a police agent or proxy. However, the excessive amount of police involvement in those cases distinguishes them from the case at bar, where there was only passive police involvement in the interview. See, e.g., In re S.R. (Pa. 2007),
{¶ 33} In other cases, courts have also found statements to be testimonial where the purpose of the interview was to gather evidence or to preserve or develop testimony for trial. Snowden, at 326 (purpose of interview to develop testimony in contemplation of later trial);State v. Mack (Or. 2004),
{¶ 34} Inherent in the duties of medical personnel seeking to help a child abuse victim is to attempt to determine what happened to the child. Such an inquiry does not mean that the medical personnel are acting as law enforcement officers whose primary purpose is to gather evidence. Here, Marshall acted without police involvement during the interview and questioned the child so that the child could be properly treated. Marshall provided the information she obtained from the child to the examining nurse, who then examined the child based on that information. The primary purpose of Marshall's interview was to gather information for the child's proper treatment and diagnosis and not to produce evidence for a future prosecution, even though such evidence may have been produced as a result of the interview. For these reasons, we find that the child's statements are not testimonial for purposes of the Confrontation Clause. Accordingly, the admission of those statements did not violate appellant's
{¶ 35} Appellant contends in his second assignment of error that the child's interview was improperly admitted pursuant to Evid.R. 803(4) because the statements were not made for purposes of medical diagnosis or treatment. We disagree.
{¶ 36} Initially, we note that a trial court has broad discretion to determine whether a declaration should be admissible under a hearsay exception. State v. Dever (1992),
{¶ 37} This court has repeatedly determined that statements made to a social worker at the Child and Family Advocacy Center may be admissible under Evid.R. 803(4) if they were made for purposes of medical diagnosis or treatment. State v. Vance, Franklin App. No. 06AP-1016,
{¶ 38} The Supreme Court of Ohio in Muttart identified a number of factors that a court should consider when determining whether a child's statements were for medical diagnosis or treatment. Id. at ¶ 49. Applying those considerations, we note that Marshall testified that the purpose of the interview was for medical diagnosis or treatment and that she tried to avoid leading or suggestive questions in the interview. There was no indication of a motive to fabricate, such as a custody dispute, and the child was only four-years old. We also note that Marshall told the child at the beginning of the interview that she would be examined by a nurse after the interview. Marshall repeated all of the information she obtained in the interview to Hornor, the nurse who then examined the child. Hornor testified that she used that information to guide her physical examination of the child. The child's statements were made for purposes of medical diagnosis or treatment. The fact that other people, including law enforcement officers, watched the interview did not change that purpose. Martin, at ¶ 17. *17
{¶ 39} Because the child's statements were made for the purpose of medical diagnosis or treatment, Evid.R. 803(4) did not prohibit the admission of the child's statements. See, also, State v. Walker, Hamilton App. No. C-060910,
{¶ 40} Appellant's third and fourth assignments of error contend that his rape conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Thompkins (1997),
{¶ 41} In State v. Jenks (1991),
An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
Id., at paragraph two of the syllabus.
{¶ 42} Whether the evidence is legally sufficient is a question of law, not fact. Thompkins, at 386. Indeed, in determining the sufficiency of the evidence, an appellate court must "give full play to the responsibility of the trier of fact fairly to resolve conflicts in *18
the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson v. Virginia (1979),
{¶ 43} In order to convict appellant of rape, the State had to prove beyond a reasonable doubt that he engaged in sexual conduct with the victim when she was less than 13 years of age. R.C.
{¶ 44} In the child's interview that was played to the jury, she stated that appellant did "pee-pees" with her.2 She said that this was the reason appellant was now in jail. She said that appellant took his boxers off and touched his pee-pee with her pee-pee and that she did not like the way it felt. She also stated that appellant's pee-pee went inside *19 her pee-pee. This evidence alone would be sufficient to prove that appellant engaged in sexual conduct with the child.
{¶ 45} Aside from the child's statements, however, there was additional evidence of appellant's conduct. Otto testified that the door of her bedroom was locked with appellant and her daughter inside the room. When he unlocked the door, Otto saw appellant's boxers were not on correctly. She then pulled a blanket off her daughter and saw that her daughter's underwear was down around her ankles. Hornor, the nurse who examined the child, observed recent abrasions on the child's hymen, which indicated to her that something penetrated the child's labia.
{¶ 46} The State presented sufficient evidence for a rational trier of fact to have found the essential elements of rape by vaginal penetration proven beyond a reasonable doubt. See State v. Roberts, Hamilton App. No. C-040547,
{¶ 47} Appellant's manifest weight of the evidence claim requires a different review. The weight of the evidence concerns the inclination of the greater amount of credible evidence offered to support one side of the issue rather than the other. State v. Brindley, Franklin App. No. 01AP-926, 2002-Ohio-2425, at ¶ 16. When presented with a challenge to the manifest weight of the evidence, an appellate court, after "`reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly *20
lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered."'Thompkins, supra, at 387, quoting State v. Martin (1983),
{¶ 48} A defendant is not entitled to a reversal on manifest weight grounds merely because inconsistent evidence was presented at trial.State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-958, at ¶ 21. The trier of fact is free to believe or disbelieve all or any of the testimony. State v. Jackson (Mar. 19, 2002), Franklin App. No. 01AP-973;State v. Sheppard (Oct. 12, 2001), Hamilton App. No. C-000553. The trier of fact is in the best position to take into account inconsistencies, along with the witnesses' manner and demeanor, and determine whether the witnesses' testimony is credible. State v. Williams, Franklin App. No. 02AP-35, 2002-Ohio-4503, at ¶ 58; State v. Clarke (Sept. 25, 2001), Franklin App. No. 01AP-194. Consequently, although an appellate court must act as a "thirteenth juror" when considering whether the manifest weight of the evidence requires reversal, it must also give great deference to the fact finder's determination of the witnesses' credibility. State v. Covington, Franklin App. No. 02AP-245, 2002-Ohio-7037, at ¶ 28; State v. Hairston, Franklin App. No. 01AP-1393, 2002-Ohio-4491, at ¶ 74.
{¶ 49} Appellant claims that his conviction is against the manifest weight of the evidence because the child's statements were confused, meandering, and the product of leading questions. We disagree. While the child's statements, at times, are not clear, one cannot expect absolute clarity from a four-year old. The child simply described what happened in her own words. The questioning, while at times pointed, consisted mainly of *21 open-ended questions in an attempt to encourage the child to talk and was not unduly suggestive.
{¶ 50} Additionally, other evidence supports the child's accusation. Otto described finding her daughter alone in a bedroom with appellant with her underwear down to her ankles. A fireman who responded to the scene testified that the child told him that someone had touched her in her private parts. Finally, Nurse Hornor performed a physical examination of the child and observed fresh abrasions on her hymen. These abrasions indicated to her that something recently penetrated the child's labia.
{¶ 51} In light of this evidence, we cannot say that the jury clearly lost its way. Appellant's conviction for rape is not against the manifest weight of the evidence. Appellant's fourth assignment of error is overruled.
{¶ 52} Having overruled appellant's four assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRYANT and SADLER, JJ., concur.