State v. EctorState v. Ector
Nicole I. Khoury, for appellant.
* * * * *
COSME, J.
{¶ 1} Appellant, John Ector, appeals from a judgment of the Lucas County Common Pleas Court following two separate jury trials. In one trial, appellant was found guilty of two counts of gross sexual imposition, violations of
I. BACKGROUND
{¶ 3} The questionnaire at issue was filled out by P.C. at a Planned Parenthood clinic. She went to the cliniс at the urging of her aunt to obtain birth control pills because of her sexual relationship with her boyfriend. In filling out the questionnaire, P.C. did not use her mother‘s address or phone number as contact information. It is alleged that at least one of P.C.‘s responses on the questionnaire is in direct conflict with her statements to police аnd her trial testimony on an issue that is an element of each of the offenses charged.
{¶ 4} In a second trial on November 16, 2009, appellant was re-tried on these four counts. Appellant was convicted of two counts of gross sexual imposition. The jury could not agree on the two counts of rape. In that trial, appellant was allowed to cross-
{¶ 5} In a third trial on December 7, 2009, appellant was re-tried on the two rape counts. In this trial, appellant was allowed to cross-examine P.C. about the questionnaire. The trial court, however, declined to admit the questionnaire into evidence. Appellant did not testify in his defense.
{¶ 6} On December 17, 2009, appellant was sentenced on the two counts of gross sexual imposition and two counts of rape. Appellant appeals, raising two assignments of error.
II. ADMISSION OF QUESTIONNAIRE INTO EVIDENCE
{¶ 7} In his first assignment of error, appellаnt maintains:
{¶ 8} “Application of the rape shield law, by not allowing evidence to be directly admitted to the jury, resulted in a denial of John Ector‘s constitutional rights to present a full defense, his right to a fair trial and due process of law, in violation of the U.S. Constitution‘s Fifth, Sixth, and Fourteenth Amendments and Article I, Section 10 and 16 of the Ohio Constitution.”
{¶ 9} Appellant argues that the trial court abused its discretion in refusing to admit the questionnaire into evidence during the third trial.
{¶ 10} We agree that the questionnaire could have been admitted into evidence, but we find that the trial court‘s failure to do so did not materially prejudice appellant.
{¶ 12} Appellant then cross-examined P.C. about her responses to the questionnairе in an effort to attack her credibility. Implicit in appellant‘s cross-examination was the allegation that P.C. had fabricated the claim that she had been molested by her uncle because she did not want her mother to find out that she was sexually active with her boyfriend.
{¶ 13} Appellant argues that the trial court abused its discretion in refusing to admit the questionnaire into evidence so that the jury could physically have it, read it, and refer to it during deliberations.
{¶ 14} Appellee counters that the trial court did not abuse its discretion in refusing to admit the questionnaire into evidence, and relies upon
{¶ 15} In addressing appellant‘s first assignment of error, we consider: (A) whether one of the hearsay exceptions for the admissibility of the out-of-cоurt
A. Out-of-court statement
{¶ 16} In Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271, the Supreme Court of Ohio reaffirmed the longstanding test for appellate review of the admission of evidence:
{¶ 17} “Ordinarily, a trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence. The admission of relevant evidence pursuant to
{¶ 18} A trial court has broad discretion to determine whether a declaration should be admissible as a hearsay exception and its decision will not be reversed absent an abuse of that discretion. State v. Clark (1994), 71 Ohio St.3d 466, 469. See O‘Brien v. Angley (1980), 63 Ohio St.2d 159, 163; City of Parma v. Manning (1986), 33 Ohio App.3d 67, 69. The term “abuse of discretion” connotes more than an error of law; it implies that the court acted unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. See Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621; State v. Adams (1980), 62 Ohio St.2d 151, 157.
{¶ 19} A reviewing court should be slow to interfere unless the court has clearly abused its discretion and a party hаs been materially prejudiced thereby. State v. Maurer (1984), 15 Ohio St.3d 239, 264. The trial court must determine whether the probative
{¶ 20} Thus, if a statement is offered for some purpose other than to prove the truth of the matter asserted, admissibility should be governed by the standards of relevancy and prejudice.
{¶ 21} The questionnaire, if offered for the truth of what it asserted, is hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
{¶ 22} In this case, the questionnaire was offered both to impeach the credibility and veracity of P.C., and as substantive evidence.
{¶ 23}
{¶ 24}
{¶ 25} “The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
{¶ 26} “* * *
{¶ 27} “(4) * * * 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 genеral character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
{¶ 28} It is well-settled in Ohio that statements made for the purposes of medical diagnosis or treatment are admissible under
{¶ 29} Here, the written questionnaire was clearly designed to elicit resрonses upon which diagnosis or treatment could be predicated. See State v. Chappell (1994), 97 Ohio App.3d 515, 529; State v. Vaughn (1995), 106 Ohio App.3d 775, 780. See, also,
{¶ 30} In State v. Brewer, 6th Dist. No. E-01-053, 2003-Ohio-3423, ¶ 28, this court observed that the hearsay exception for statements pertinent to medical treatment “* * * is based upon the belief that the declarant‘s subjective motive generally guarantees
{¶ 31} In this case, P.C.‘s responses to the questionnaire could have been admitted into evidence under the exclusion to the hearsay rule in
B. Due Process Rights
{¶ 32} Appellant complains that his due proсess rights were violated because the trial court refused to admit the questionnaire. We have concluded that the questionnaire was admissible under
{¶ 33} A trial court has discretion to exclude evidence if its probative value is substantially outweighed by consideration of needless presentation of cumulative evidencе.
{¶ 34} Appellant was not materially prejudiced because, as he admits, the questionnaire was read essentially in its еntirety by both parties to the jury. As well, appellant was afforded the opportunity to, and did, thoroughly cross-examine P.C. concerning the contradictory statements. Appellant does not allege that he was unable to bring to the jury‘s attention any other inconsistent statements or any other issues with the questionnaire, or that he did not have the opportunity to fully cross-examine P.C.
{¶ 36} In this case, appellant was not denied the opportunity to cross-examine C.P. about the questionnaire. Cross-examination is the primary means by which the credibility of a witness is tested. Davis v. Alaska (1974), 415 U.S. 308, 316. See State v. Au (Sept. 15, 2010), 5th Dist. No. 09-CA-108. Exposing a witness‘s motivation in testifying is a proper and important function of the right of cross-examination. Greene v. McElroy (1959), 360 U.S. 474, 496; State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, ¶ 35.
{¶ 37} Although appellant argues that evidence of his acquittal of both counts of rape in the second trial and his conviction of both counts of rape in the third trial is evidence оf the prejudice resulting from the trial court‘s refusal to admit the questionnaire, we decline to attribute the absence of the questionnaire from the jury room as the sole reason for the jury‘s verdict. As appellee pointed out, appellant testified in the second trial, but not the third. Appellant‘s decision not to testify in thе third trial may have had more to do with the jury‘s decision to convict of rape in the third trial than the jury‘s inability to see a document that had been fully discussed during trial.
{¶ 39} Accordingly, appellant‘s first assignment of error is not well-taken.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
{¶ 40} In his second assignment of error, appellant maintains:
{¶ 41} “The appellant was denied his right under the Sixth and Fourteenth Amendments of the United States Constitution to the Effective Assistance of Counsel When Defense Counsel failed to protect his rights during trial.” [Sic.]
{¶ 42} Appellant claims that the trial court committed plain error when it allowed P.C.‘s mother to testify that P.C. told her that appellant had molested her.
{¶ 43} We disagree.
{¶ 44} A reviewing court may not reverse a conviction for ineffective assistance of counsel unless the defendant shows first that counsel‘s рerformance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. See Strickland v. Washington (1984), 466 U.S. 668, 687. “To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reаsonable probability that, were it not for counsel‘s error, the result of the trial would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus. A “reasonable probability” in this
{¶ 45} When conducting its inquiry, “[a] reviewing court must strongly presume that ‘counsel‘s conduct falls within the wide range of reasonable professional assistance,’ and must ‘eliminate the distorting effects of hindsight, * * * and * * * evaluate [counsel‘s] conduct from counsel‘s perspective at the time.‘” Id., quoting Strickland, 466 U.S. at 689. In Ohio, a properly licensed attorney is presumed competent and the burden of proving ineffectiveness is the defendаnt‘s. State v. Smith (1985), 17 Ohio St.3d 98, 100.
{¶ 46} Appellant‘s second assignment of error is predicated on counsel‘s purported ineffectiveness in failing to object to the admission of the mother‘s statements as hearsay. Appellant complains that trial counsel should have objected to the following colloquy between the prosecutor and P.C.‘s mоther about what P.C. told her mother:
{¶ 47} “Q. And you kept asking her, and then she told you. What did she tell you?
{¶ 48} “A. She told me that she had been molested.
{¶ 49} “Q. I‘m sorry?
{¶ 50} “A. She told me that she had been molested. She told me.
{¶ 51} “Q. Did she tell you by whom?
{¶ 52} “A. Yes.
{¶ 53} “Q. And who did she say?
{¶ 54} “A. John Ector.
{¶ 55} “Q. Did she tell you details about --
{¶ 57} This testimony that appellant complains of occurred during the second trial (November 16, 2009), following which he was convicted of two counts of gross sexual imposition. Although appellant‘s trial counsel did not object to this line of questioning, trial counsel‘s decision to make or not make objections does not establish ineffective assistance of counsel. State v. Windham, 9th Dist. No. 05CA0033, 2006-Ohio-1544, ¶ 24, citing State v. Taylor, 9th Dist. No. 01CA007945, 2002-Ohio-6992, ¶ 76; State v. Guenther, 9th Dist. No. 05CA008663, 2006-Ohio-767, ¶ 74.
{¶ 58} In the present case, the testimony was part of a line of questioning in whiсh the prosecutor elicited from the witness why she called the police to report that her daughter had been molested. Answers given in this type of questioning are not hearsay because the witness did not give this information for the truth of the matter asserted. Instead, the mother was explaining her reasoning for taking a certain action.
{¶ 59} Testimony which explains the actions of a witness to whom a statement is directed is not hearsay. In State v. Thomas (1980), 61 Ohio St.2d 223, 232, the Supreme Court of Ohio held:
{¶ 60} “The testimony at issue was offered to explain the subsequent investigative activities of the witnesses. It was not offered to prove the truth of the matter asserted. It is well established that extrajudicial statements made by an out-of-court declarant are
{¶ 61} See State v. Byrd, 8th Dist. No. 82145, 2003-Ohio-3958, ¶ 39. See, also,
{¶ 62} We find that the mother‘s statements about P.C. being molested did not constitute impermissible hearsay. Furthermore, P.C. testified to the same matters. State v. Griffin, 8th Dist. No. 80499, 2002-Ohio-4288, ¶ 97. We therefore conclude that appellant‘s trial counsel was not ineffective for failing to object to the witness‘s admissible testimony. We cannot say that appellant was prejudiced by trial counsel‘s failure to object to the mother‘s statement. Nor can we say that the outcome of the trial would have been any different if the mother‘s statements had not been admitted.
{¶ 63} Accordingly, appellant‘s second assignment of error is not well-taken.
IV. CONCLUSION
{¶ 64} The trial court did not abuse its discretion in failing to admit the questionnaire even though it was admissible under
{¶ 65} On consideration whereof, this court finds that appellant was not prejudiced or prevented from having a fair trial. Accordingly, the judgment of the Lucas County
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J. _______________________________
JUDGE
Mark L. Pietrykowski, J. _______________________________
Keila D. Cosme, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.