State v. KappState v. Kapp
- Reporters:
- ,
- Before:
- Rogers, Preston, Willamowski
F. Stephen Chamberlain for Appellant
Jana E. Emerick for Appellee
ROGERS, J.
{¶1} Defendant-Appellant, Richard O. Kapp, Sr., appeals the judgment of the Allen County Court of Common Pleas convicting him of two counts of rape and one count of gross sexual imposition, and ordering him to serve two consecutive life terms in prison as well as a consecutive five-year prison term. On appeal, Kapp argues that the trial court erred in declining to exclude hearsay statements made by the victim, and that the trial court erred in declining to grant a mistrial on the basis of alleged discovery violations by the State. Based upon the following, we affirm the judgment of the trial court.
{¶2} In October 2007, the Allen County Grand Jury indicted Kapp on two counts of rape in violation of
{¶3} In November 2007, Kapp filed a motion to suppress statements he made to law enforcement officers following the incident and a motion suggesting he was not competent to stand trial.
{¶4} In December 2007, the trial court found Kapp incompetent to stand trial.
{¶5} In November 2008, the trial court found that Kapp had been restored to competency and was competent to stand trial.
{¶6} In January 2009, the trial court overruled Kapp‘s motion to suppress and the case proceeded to jury trial, at which the following testimony was heard.
{¶7} Brenda E. testified that Kapp was her father and she was M.E.‘s mother; that, in September 2007, she, M.E., and her husband, Donald E., lived in a trailer next door to Kapp‘s trailer; that, on the evening of September 8, 2007, M.E. was next door at Kapp‘s trailer to visit; that she wanted M.E. to come home, so she walked over to Kapp‘s trailer and went inside without knocking; that Kapp was sitting on the floor with his pants undone, and M.E.‘s pants and underwear were down around her ankles; that Kapp got up, held his pants up, and ran into the bathroom; that she yelled at Kapp “[w]hat did you do to my daughter, you S.O.B. What did you do? She‘s your granddaughter” (trial tr., p. 32); that Kapp responded “nothing” (Id.); that Kapp offered no explanation for why his pants were undone or why M.E.‘s pants and underwear were down; that she asked M.E. what had happened and M.E. replied “nothing, mommy, nothing” (Id. at 41); that she believed she appeared noticeably upset because M.E. told her to “calm down” (Id. at 48); that she took M.E. home and observed that her vagina was abnormally
{¶8} Donald testified that, on September 8, 2007, Brenda came into the trailer crying and holding M.E.; that Brenda told him that she had seen Kapp and M.E. with their pants down; that he became very upset and went over to Kapp‘s trailer; that Kapp put his head down and started crying as soon as he saw him; that he asked Kapp what he did, and he replied “I don‘t have a girlfriend. I don‘t have a girlfriend” (Id. at 52); that he told Kapp he was sick, and Kapp kept his head down and would not look at him; that Kapp offered no explanation for the situation; that he attempted to punch Kapp, but missed and put a hole in the wall of the trailer; that Kapp did not say anything to him except that he did not have a girlfriend; that he went back to his trailer and spoke to the police; and, that he then accompanied Brenda and M.E. to the hospital.
{¶9} Deputy Brett Rider of the Allen County Sheriff‘s Office testified that, on September 8, 2007, he was dispatched to a child sex abuse complaint; that, initially, M.E.‘s demeanor was loud and bubbly, however, when he inquired about what had happened with Kapp, her demeanor changed, and she climbed into her mother‘s lap and would not speak above a whisper; and, that, after he finished speaking to M.E., he went over to Kapp‘s trailer.
{¶10} Investigator Sandra Miehls of the Allen County Sheriff‘s Office testified that, on September 8, 2007, she was dispatched to a child sex abuse complaint; that Deputy Rider was already present when she arrived at Kapp‘s trailer; that, before she could say anything, Kapp told her, “I can‘t watch kids” (Id. at 68); that she asked Kapp what had happened, and Kapp just shook his head; that Kapp then stated, “Kids ask for it. She wanted sex” (Id. at 68); that Kapp made comments of that nature throughout the interview, including, “[M.E.] came to visit me [and] she wanted it” (Id.), “I haven‘t had a girlfriend in a long time. Kids want it” (Id.), “[M.E.] asked for it. She wanted it - sex.” (Id. at 69); that Kapp also said, “give me a gun. I want to shoot myself” (Id.); that she asked Kapp if he had touched M.E., and he nodded his head yes; that she asked Kapp if he had touched M.E. in a sexual manner, and he nodded his head yes; that she asked Kapp where he had touched M.E., and he replied “privates” (Id.); that she asked Kapp if he had sexual intercourse with M.E., and he replied, “No. How could I? She‘s too little” (Id.); that she asked Kapp with what he had touched M.E.‘s vagina, and he replied “fingers, penis” (Id.); that Kapp also stated he put his tongue into M.E.‘s vagina and put his finger into her vagina “a little bit” (Id. at 70, 85); that Kapp stated several times that he needed a girlfriend and had not had a girlfriend in a long time; that he stated several times that he was sorry and would move from the area so it would not happen again; and, that she then arrested Kapp.
{¶11} Karen Hatfield, a registered nurse at Lima Memorial Hospital, testified that she was trained as a sexual assault nurse examiner (hereinafter “S.A.N.E.“); that, when a child is brought into the facility for a sexual assault examination, she first assesses the child‘s temperature, pulse, and respirations, and inquires of the parents whether the child has experienced any health problems, hospitalizations, or possible genital injuries; that she then asks the child why he or she was brought into the facility. Thereafter, Hatfield attempted to testify as to what M.E. told her during the course of the medical exam, and Kapp objected to the testimony on the basis that it was hearsay, and that the hearsay exception for statements made for purpose of medical treatment did not apply because no evidence was provided that M.E. had suffered any injury. The trial court overruled Kapp‘s objection, and Hatfield testified that she asked M.E., “what happened tonight,” and M.E. immediately replied, “she was at grandpa‘s and that grandpa had pulled her pants and underpants down and then pulled his pants and underpants down and sat on the floor. He asked her to sit on the floor. She said that he pushed her down several times on the floor. She kept getting back up. Then she told me that he got on top of her and pulled his thing out and put his thing in her mouth and in her thing. She told me that she smacked him in the face and then he hit her thing” (Id. at 95-96); that she asked M.E. what her “thing” meant, and M.E. pointed to her genital area (Id. at 98); that she physically
{¶12} Subsequent to Nurse Hatfield‘s testimony, the State rested. Thereafter, Kapp moved for a mistrial on the basis of a discovery violation. Specifically, Kapp contended that the State had failed to disclose that a rape kit had been completed prior to Nurse Hatfield‘s testimony, and that this evidence was required to be disclosed pursuant to
{¶13} Subsequently, the jury found Kapp guilty of both counts of rape and the count of gross sexual imposition. The trial court ordered Kapp to serve a mandatory sentence of life in prison, without parole, on each rape conviction, and
{¶14} It is from his conviction and sentence that Kapp appeals, presenting the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED WHEN IT DID NOT EXCLUDE THE HEARSAY STATEMENTS OF THE MINOR CHILD UPON OBJECTION BY THE DEFENDANT.
Assignment of Error No. II
THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL TO THE DEFENDANT FOR DISCOVERY VIOLATIONS MADE BY THE STATE OF OHIO.
Assignment of Error No. I
{¶15} In his first assignment of error, Kapp contends that the trial court erred in declining to exclude hearsay statements of M.E. upon his objection. Specifically, Kapp argues that Nurse Hatfield should not have been permitted to testify as to the statements M.E. made to her about what occurred during the incident because the statements were testimonial in nature and were not made for medical diagnostic purposes. We disagree.
{¶16} The admission or exclusion of evidence “lies within the broad discretion of the trial court, and a reviewing court should not disturb evidentiary
{¶17} The
{¶18}
{¶19} Further, Muttart held that, “[i]n cases in which a statement was made for purposes of medical diagnosis or treatment, the question is not whether the
{¶20} Here, the record does not suggest that M.E. was questioned in a leading or suggestive matter. In fact, Nurse Hatfield testified that she merely asked M.E., “what happened tonight?” and that M.E. immediately told her what had happened. Additionally, Nurse Hatfield testified that she “just let [M.E.] talk” and let her take the lead in the conversation. (Trial tr., p. 108). Additionally, Kapp does not allege that M.E. or her parents had any motive to fabricate the accusations, nor is any motive apparent from the record. Finally, Nurse Hatfield testified that her inquiries of M.E. took place in the medical facility and were preceded by assessments of her temperature, pulse, and respirations. Thus, the evidence suggests that M.E. knew she was in a medical setting at the time of her disclosures and that her statements would be used for purposes of medical
{¶21} Accordingly, we overrule Kapp‘s first assignment of error.
Assignment of Error No. II
{¶22} In his second assignment of error, Kapp contends that the trial court erred in declining to grant a mistrial despite alleged discovery violations made by the State. Specifically, Kapp argues that the mistrial should have been granted because the State failed to disclose prior to trial that Nurse Hatfield had completed a rape kit. We disagree.
{¶23} We review a trial court‘s decision regarding a
{¶24}
(B) Disclosure of evidence by the prosecuting attorney
(1) Information subject to disclosure.
* * *
(d) Reports of examination and tests. Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, made in connection with the particular case, or copies thereof, available to or within the possession, custody or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney.
* * *
(E) Regulation of discovery
(3) Failure to comply. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances.
{¶25} The Supreme Court of Ohio has held that the State‘s violation of
{¶26} Here, Kapp argues that the trial court should have granted his motion for a mistrial because the State failed to disclose prior to trial that Nurse Hatfield had completed a rape kit. Kapp contends that the State violated its duty to provide him with “reports of examination and tests” as required by
{¶27} Accordingly, we overrule Kapp‘s second assignment of error.
{¶28} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and WILLAMOWSKI, J., concur.