State v. BowlegState v. Bowleg
{¶1} In these consolidated cases, the state of Ohio appeals from thе trial court‘s judgment granting the motion in limine of defendants-appellees Daniel Bowleg and Jackie J. Ray. We reverse and remand.
I. Background
{¶2} On March 29, 2013, Bowleg and Ray were indicted on one count of kidnapping in violation of
{¶3} The trial court held a hearing on the motions. The transcript of the hearing and L.J.‘s medical recоrds, which were admitted at the hearing, reveal the following. On March 31, 1993, L.J. reported to city of Cleveland police that she had been raped by three males between the hours of 3:30 a.m. and 5:00 a.m. while she was at a friend‘s house in Cleveland. Emergency Medical Serviсes personnel, accompanied by a Cleveland police officer,
45 y/o F brought in stating that she has been raped. She alleges assault by three men. She states there was vaginal penetration and she believe[s] ejaculation by all three assailants. She denies any rectal or oral pеnetration. She states that they did not use condoms. She denies any injury or other assaults.
{¶4} Dr. Pelini‘s physical exam of L.J. revealed alcohol on her breath but no marks or bruises on her body; the pelvic exam revealed no signs of trauma. A blood-alcohol test indicated that she had a blood-alcohol content of .145. Vaginal swabs were taken and after laboratory tests were conducted, L.J. was given Rocephin and prescribed Doxycycline (both antibiotics). A pregnancy test was negative.
{¶5} A sexual assault collеction kit was also performed on L.J. The nurse‘s notes from the sexual assault flowsheet state: “Pt. states she was not wearing underwear or pantyhose at the time of the assault. * * * States attacked by 3 people. Denies injury. * * * Pt. talking freely about assault.”
{¶6} Prior to dischаrge, L.J. was counseled about the risks of sexually transmitted diseases, including HIV infection, and advised to seek confidential testing. She was also advised to follow up with her own doctor in three days. L.J. died in 2008; her boyfriend is also now deceased.
{¶7} After the hearing, the trial court grаnted the motion in limine, holding that L.J.‘s medical records were testimonial pursuant to Crawford v. Washington, 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and therefore inadmissible at trial. It held a ruling on the motion to dismiss in abeyance pending the state‘s appeal of its ruling on the motion in limine.
II. Analysis
{¶8} In its single assignment of error, the state contends that the trial court erred in granting the defendants’ motion in limine because L.J.‘s statements to medical personnel contained in her medical records are nontestimonial and admissible under
{¶9} As an initial matter, we note that the trial court‘s judgment is a final, appealаble order because the trial court treated the motion in limine as a motion to suppress. “If a court treats a motion in limine as a final ruling on the question of admissibility of evidence, the ruling is equivalent to the grant of a motion to suppress and a final appealable order lies.” State v. Holmes, 8th Dist. Cuyahoga No. 67838, 1995 Ohio App. LEXIS 621, *3 (Feb. 23, 1995), citing State v. Davidson, 17 Ohio St.3d 132, 477 N.E.2d 1141 (1985).
{¶10} We apply a de novo standard of review to evidentiary questions raised under the Confrontation Clause. State v. Babb, 8th Dist. Cuyahoga No. 86294, 2006-Ohio-2209, ¶ 17.
{¶11} The Sixth Amendment‘s Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.” The United States Supreme Court has interpreted this to mean that the admission of an out-of-court statement of a witness who does not appear at trial is prohibited by the Confrontation Clause if the statement is testimonial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington. 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Accordingly, the issue is whether L.J.‘s statements contained in her medical records were testimonial in nature and therefore inadmissible pursuant to the Sixth Amendmеnt, or whether they were nontestimonial and admissible against Bowleg and Ray.
{¶12} Crawford did not define “testimonial” but stated generally that the core class of statements implicated by the Confrontation Clause includes statements “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. at 52.
{¶13} In State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, the Ohio Supreme Court considered whether hearsay statements by an adult rape victim to a nurse working in a specialized medical facility for sеxual assault victims were admissible when the victim was not available to
{¶14} In State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, the Ohio Supreme Court held that the statements of a child victim of sexual assault made to doctors and counselors about how her father had sexually abused her were not testimonial and were admissible because they had been made to medical personnel in the course of medical diagnosis and treatment. The court held that “[s]tatements made to medical personnel
{¶15} In this case, the state contends that L.J.‘s statements were made while she was seeking medical treatment and, therefore, were nontestimonial and admissible under
{¶16} We conclude that L.J.‘s statements were made for the purpose of medical diagnosis and treatment. First, prior to any treatment, she signed a consent form giving her consent for medical treatment:
Permission is hereby given to the emergency physical, attending and/or consulting physician, the authorities оf Fairview General Hospital and/or any house officer to perform such an operation, diagnostic or therapeutic procedure or examination (including the administration of an anesthetic) as in his/her or their judgment is deemed advisable. I also аuthorize release of information for insurance purposes.
{¶17} Notably absent is any authorization for her statements to be used in a future prosecution.
{¶18} Furthermore, despite Bowleg and Ray‘s argument to the contrary, neither L.J.‘s boyfriend nor law enforcement personnel were present when she was examined. The nurse‘s notes indicate that at 7:30 a.m., L.J. “spoke briefly” with the Cleveland police officer who accompanied her to the hospital. They also indicate that her boyfriend came into the examinаtion room at approximately 8 a.m. to visit and was escorted out at 8:25 a.m. before the examination began.
{¶19} And finally, L.J.‘s denial of any obvious physical injury is not dispositive of her need for medical treatment. As the Third District stated in State v. Wallace, 3d Dist. Union No. 14-10-20, 2011-Ohio-1728, ¶ 18:
A victim‘s statement that she had been raрed is relevant for medical diagnosis and treatment because it directs medical providers to examine the genital areas for physical injury,
administer a pregnancy test, and prescribe medications for the prevention of sexually transmitted diseases * * *. A patient‘s statements concerning how the alleged rape occurred can be relevant to show the “general cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Evid.R. 803(4) . For example, the viсtim‘s statements may guide medical personnel to the particular area(s) of the victim‘s body to be examined for injury, as well as indicate which areas may need more immediate treatment than others. State v. Menton, 7th Dist. No. 07 MA 70, 2009-Ohio-4640, ¶ 51 (“* * * the description of how the [sexual] assault took plаce, over how long of a period, how many times a person was hit, choked or penetrated, and what types of objects were inserted are all specifically relevant to medical treatment. They are part of the medical history. They аre the reason for the symptoms. They let the examiner know where to examine and what types of injuries could be latent.“)
{¶20} Here, the statements made by L.J. to Dr. Pelini and nurse Torok are not testimonial, because an objective witness under the same circumstanсes would not have reasonably believed that her statements would be used later for trial. The records indicate that prior to going to the emergency room, L.J. told the police that she had been raped by three men. A reasonable person in L.J.‘s place would have believed that her answers to any investigatory questions asked by the police in response to her report would be used at trial. State v. Lee, 9th Dist. Summit No. 22262, 2005-Ohio-996, ¶ 8. However, L.J. would have had no reason to believe that
{¶21} Because L.J.‘s statements contained in the medical records are not testimonial, they are admissible under
{¶22} Reversed and remanded.
It is ordered that appellant recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
TIM McCORMACK, J., CONCUR