STATE OF OHIO, Plаintiff-Appellee, vs. ERIC MCCLUSKEY, Defendant-Appellant.
Case No. 17CA3604
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
Released: 12/04/18
[Cite as State v. McCluskey, 2018-Ohio-4859.]
McFarland, J.
DECISION AND JUDGMENT ENTRY
Timothy Young, Ohio State Public Defender, and Nikki Trautman Baszynski, Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Assistant Ross County Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
McFarland, J.
{¶1} This is an appeal from a Ross County Court of Common Pleas judgment entry convicting Appellant, Eric McClusky, of one count of felonious assault, a second-degree felony in violation of
FACTS
{¶2} Appellant was indicted on January 6, 2017 by a Ross County grand jury on one count of felonious assault, a second-degree felony in violation of
{¶3} The indictment stemmed from an investigation which was triggered after J.H. was transported to Adena Medical Center via ambulance, from his home, with serious injuries that medical staff ultimately determined
{¶4} The record indicates that both R.H. and Grandmother reported to paramedics that the child had suffered an injury while jumping on stumps. The child also stated he had fallen while playing. However, upon arrival to the emergency room, the child informed Dr. Jason Collins that “Eric did this
{¶5} The child was thereafter transferred to Nationwide Children‘s Hospital in Columbus, Ohio. Upon arrival he was examined by Dr. Heather Williams. Additional testing ordered by Dr. Williams revealed the child also had a fractured tooth and additional fractures on the hand opposite of the
{¶6} The matter went to trial on May 23rd and May 24th, 2017. The State presented the testimony of Toni Stinson (grandmother), Eric Price (paramedic), Heidi Norman (Adena Medical Center Emergency Room SANE), R.H. (the child‘s mother), Tishia Richardson (Nationwide Children‘s Hospital Social Worker), Dr. Heather Williams (Nationwide Children‘s Hospital Physician), and Detective John Winfield (Ross County Sheriff‘s Office) in support of its case. The State also presented video
{¶7} The jury ultimately found Appellant guilty on all counts, as charged in the indictment. The trial court merged counts one and two for purposes of sentencing and sentenced Appellant to a seven-year prison term on count one. The trial court sentenced Appellant to a six-month term of imprisonment on count three, and ordered the prison terms imposed on counts one and three to be served concurrently. The trial court also sentenced Appellant to a mandatory three-year term of post-release control. It is from the trial court‘s June 27, 2017 judgment entry of sentence that Appellant now brings his timely appeal, setting forth one assignment of error for our review.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED WHEN IT ADMITTED STATEMENTS MADE TO MEDICAL PROFESSIONALS BY THE THREE-YEAR-OLD VICTIM THAT WERE IRRELEVANT TO MEDICAL DIAGNOSIS OR TREATMENT.”
{¶8} In his sole assignment оf error, Appellant contends the trial court erred when it admitted statements made to medical professionals by the three-year-old victim that were irrelevant to medical diagnosis or treatment. Appellant asserts that the issue presented for review involves whether, under
Preservation of Error for Appeal
{¶9} We initially note that the statements complained of by Appellant were the subject of a motion to exclude filed prior to trial. A hearing was
“(A) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and
(1) Objection. In case the ruling is one admitted evidence, a timely objection or motion to strike appears of record stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Offer of proof is not necessary if evidence is excluded during cross-examination.”
If a trial court denies a motion in limine, such a decision is simply a tentative, interlocutory ruling as to whether certain evidence is admissible.
{¶10} Here, although Appellant‘s pre-trial motion in limine was denied, he failed to further lodge objections to the admission of the statements at trial. As will be discussed in more detail below, the record reflects that several medical professionals, including an emergency room doctor, a SANE nurse, and a social worker each testified to statements made to them by the child victim herein while he was a patient at Adena Medical Center and Nationwide Children‘s Medical Center, and that Appellant failed to object to their testimony during trial. Further, many of the statements testified to by these individuals were contained in the medical records, which were not expressly included in the pre-trial motion in limine, and which were admittеd without objection during the trial. Thus, we conclude Appellant has waived all but plain error with respect to the admission of the
{¶11} Generally, appellate courts take notice of plain error under
{¶12} We further note that Appellant seems to concеde in his appellate brief that he has waived all but plain error by urging us to employ a review under
“Once the court rules definitely on the record, either before or at trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”
{¶13} Nonetheless, Appellant‘s argument is without merit. Although
Standard of Review
{¶14} Generally, “[d]ecisions involving the admissibility of evidence are reviewed under an abuse-of-discretion standard of review.” State v. Wright, 2017-Ohio-9041, 101 N.E.3d 496, ¶ 24 (4th Dist.); quoting Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, 989 N.E.2d 35, ¶ 22; citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160,
{¶15} Here, however, as set forth above, Appellant failed to preserve this issue for review and, as a result, this Court is limited to a plain error review. “To constitute plain error, a reviewing court must find (1) an error
Legal Analysis
{¶16} Now, as to the substantive portion of this appeal, we begin by considering the statements Appellant claims were admitted in error by the trial court. Appellant claims that several statements made by the child victim herein, age three, to various medical professionals while he was being treated in the emergency room at Adena Medical Center and then at Nationwide Children‘s Hospital after he was transferred, constituted inadmissible hearsay. Appellant does not, however, claim a violation of his right of confrontation. These statements complained of are as follows:
- “On November 11, 2016, at Adena, J.H. told Dr. Jason Collins that ‘Eric did this to me in the bathroom.’ ”
- “On November 11, 2016, at Adena, J.H. told Nurse Heidi Norman that ‘Eric hit me in the head, with his fist and
when he doesn‘t hit me, mommy does.’ He also told Nurse Norman ‘I get hit with the door handle by mommy and Eric.’ ” - “On November 12, 2016, at Nationwide Children‘s Hospital, J.H. told Social Worker Tishia Robinson [sic] that his brother C.H. hurt him. He also told Ms. Richardson that his mother hurt him with her foot. When asked whether Mr. McCluskey had hurt him, J.H. remained silent.”
- “On November 18, 2016, at the Child Protection Center, J.H. was asked by Interviewer Ashley Muse whether Eric punched him. J.H. shook his head no. He was asked again, and again he shook his head no.”3
As indicated above, the State contends the child‘s statements were properly admitted under
{¶17} Statements made outside of the courtroom, offered at trial to prove the truth of what they assert, are generally inadmissible as “hearsay” unless an exception applies. State v. Knauff, 4th Dist. Adams No. 10CA900, 2011-Ohio-2725, at ¶ 27;
“The following are not excluded by the hearsay rule, even though thе declarant is available as a witness:
* * *
(4) Statements for Purposes of Medical Diagnosis or Treatment. 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.”
Such statements are only admissible “insofar as reasonably pertinent to diagnosis or treatment.”
{¶18} Appellant contends that the statements admitted at trial through the testimony of these medical professionals, to the extent they served to identify Appellant as the perpetrator, were not pertinent to medical diagnosis and treatment, and further did not satisfy the reliability threshold of
” ‘The first “factor” is the “selfish-motive” doctrine, i.e., “the belief that the declarant is motivated to speak truthfully to a physician because of the patient‘s self-interest in obtaining an accurate diagnosis and effective treatment.” ’ Id. quoting State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, at ¶ 34, citing State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988) (Brown, J., concurring). Another factor courts consider is the medical professional‘s subjective reliance on the statement, because “physicians, by virtue of their training and experience, are quite competent to determine whether particular information given to them in the course of a professional evaluation is ‘reasonably pertinent to diagnosis or treatment [,]’ and are not prone to rely upon inaccurate or false data in making a diagnosis or in prescribing a course of treatment.” Id. at ¶ 41, 530 N.E.2d 409, quoting King v. People (Colo.1990), 785 P.2d 596, 602.
In Muttart, the Supreme Court of Ohio observed that the professional reliance factor is of “great import” in cases of child abuse. Id.’ ” Quoting Knauff, supra, at ¶ 28.
{¶19} The Muttart Court also provided a non-exhaustive list of additional factors that a court should weigh when considering whether out-of-court statements obtained from a young child are admissible under this exception:
” ‘(1) Whether medical professionals questioned the child in a leading or suggestive manner and whether the medical professional followed proper protocol in eliciting a disclosure of abuse;
(2) Whether the child had a reason to fabricate, e.g., a pending legal proceeding or bitter custody battle;
(3) Whether the child understood the need to tell the medical professional the truth; and
(4) Whether the age of the child could indicate the presence or absence of an ability to fabricate a story.’ ” Rutherford at ¶ 20; quoting Knauff at ¶ 29; quoting Muttart at ¶ 49.
{¶21} With respeсt to the part of the child‘s statement that identified Appellant as the perpetrator, statements by children regarding the identity of their abusers are routinely admitted as being pertinent to medical diagnosis and treatment, especially in situations involving sexual abuse.
{¶22} Based upon the foregoing, we conclude the manner in which the doctor questioned the child was not leading or suggestive. Further, there are no factors present here to suggest the child had a motive to fabricate. The child made the statement to the physician in answer to a direct question and made the statement after being transported to the emergency room via ambulance, which setting lends itself to a determination that the child understood, to the extent a three year old can understand, the need to be truthful. Finally, the young age of the child here, in our view, would indicate the absence of an ability to fabricate. As such, we conclude the statement thе child made to Dr. Collins in the emergency room was admissible as a statement made for purposes of medical diagnosis and treatment and was properly admitted under
{¶23} Second, we conclude the statements made by the child to Nurse Heidi Norman at the emergency room at Adena Medical Center were admissible as statements made for medical diagnosis and treatment. Appellant challenges the admission of two different statements the child made to Nurse Norman, 1) “Eric hit me in the head, with his fist and when he doesn‘t hit me, mommy does;” and “I get hit with the door handle by
{¶24} We initially note that the record contradicts Appellant‘s assertion regarding the presence of the detective. Nurse Norman testified that the only person present in the room with her when she spoke to the child was a social worker. Although the medical records indicate the detective was in the room when the nurse took photographs of the child for inclusion in the medical records, there is no indication that he was in the room when the child made the statements, or that the detective directed her acts of taking photographs. In fact, the detective took separate photographs for investigatory purposes. Further, Nurse Norman testified that the questions she asked the child were geared towards discovering the “mechanism of injury” and to medically treat the child. She testified that she simply asked the child how he obtained his injuries. In response, the child asked her if he was safe. Once she confirmed he was safe, the child answered her question. She further testified that her notes were entered into the system for review
{¶25} Importantly, aside from the statements complained-of above, Nurse Norman also testified at trial as follows:
“Jonathan said Eric hit my head off the spicket in the bath tub over and over again until I fell asleep and when I woke up he was hitting my head off the bathroom door handle.”
Appellant did not object to this additional testimony that occurred at trial that appears to have supplemented the statemеnt contained in the medical record, nor does he challenge this statement on appeal.
{¶26} Based upon the foregoing, and for the same reasons we find the statement made to Dr. Collins was admissible, we find these statements to be admissible as well. Nurse Norman‘s questions were not asked in a leading or suggestive manner, there are no factors present indicating a reason to fabricate, and the child‘s young age suggests an inability to fabricate. Further, the fact that the child asked if he was safe suggests he understood the nurse was there to help him and that he needed to tell the truth.
{¶27} At this stage we address Appellant‘s argument that the child‘s statements were sometimes inconsistent as to how he was injured and who injured him. First, Nurse Norman testified that the child was essentially
{¶28} Appellant also argues that the child initially reported to a paramedic that he was injured while playing, a statement which was corroborated by his mother and grandmother, who stated the child had fallen while jumping on stumps, and that this inconsistency with the statements he made to Dr. Collins and Nurse Norman call into question the reliability of his statements. The record indicates that he made the initial statement to the paramedic while he was in the presence of his mother. His mother was not present when he made the statements to the emergency room staff. As noted in State v. Muttart, supra, at ¶ 41:
“We are aware, of course, of the possibility that parents of abused children may give false information to a physician, including denials or deliberate misidentifications, see United States v. Yazzie (C.A.9, 1995), 59 F.3d 807, 813, and that a victim might deny abuse to the physician, particularly when in the company of the abuser. Such falsehoods may be a survival strategy or may reflect a complex psychodynamic or phenomena that untrained persons may not understand fully. Although physicians and psychotherapists are not infallible when diagnosing abuse, we believe that their education, training, experience, and expertise make them at least as well equipped as judges to detect and consider those possibilities. Accord [State v. Dever, 64 Ohio St. 3d 401, 411, 596 N.E.2d 436 (1992)]; cf. Parham v. J.R. (1979), 442 U.S. 584, 609, 99 S.Ct. 2493, 61 L.Ed.2d 101.”
Thus, the statement made to the paramedic may have been made as result of the child‘s survival instincts, as later indicated when he asked Nurse Norman if he was safe. Further, the record indicates the child‘s mother was still under investigation at the time of Appellant‘s trial. However, the possibility that she may have also played a role in the child‘s injuries does not negate
{¶29} Next, we consider Appellant‘s argument regarding the child‘s statements to Social Worker Tishia Richardson in the emergency room at Nationwide Children‘s Hospital. Appellаnt points to the child‘s statements to Ms. Richardson, which were made after he was transferred, and which indicated that his brother, C.H., hurt him, that his mother hurt him with her foot, and when asked whether Appellant hurt him, the fact that the child remained silent, as further examples of the child‘s inconsistency. Again, for purposes of admissibility, these statements were also made for medical treatment and diagnosis, as testified to by Ms. Richardson herself. For all the same reasons the statements made to Dr. Collins and Nurse Norman were admissible, so were these.
{¶30} A review of trial transcripts does indicate the child told Ms. Richardson that C.H. hurt him. When asked if a big person also hurt him he said “mommy.” When she asked him to tell her more about mommy the child pointed to his foot. Ms. Richardson then asked if his mommy hurt his foot and he said “no, mommy‘s foot” and pointed to his chest area, but he did not elaborate. Finally, when Ms. Richardson asked the child if “Eric did something” the child nodded yes. She then asked the child to tell her about
{¶31} Finally, as indicated above, we do not considеr Appellant‘s arguments regarding the admissibility of statements made to Ashley Muse at the Child Protection Center, as she was called by the defense, not the State. Any error in the admission of her statements would have been invited by Appellant. Regarding Appellant‘s assertion there was another inconsistency due to the fact that the child shook his head no when asked if Appellant punched him, we note that the child reported to Nurse Norman that Appellant had hit him, and that when Appellant didn‘t, that his mommy did. When the child made this statement to Nurse Norman he held up his fist.
“Q: At some point you started asking him questions?
A: Yes.
Q: And you asked him if Eric punched him?
A: I don‘t recall that specifically.
Q: You asked him twice about Eric injuring him, correct?
A: I recall asking about the cast and his eye injury.
Q: Okay but you don‘t recall saying or asking him if Eric punched him?
A: I don‘t recall.
Q: Did you ask him if Eric caused him an injury?
A: I believe so.
Q: And his response was a shake of the head negative?
A: Correct. Q: Okay and you asked him a second time about Eric causing Eric hurting him and he again shook his head no.?
A: I believe so.
Q: And you didn‘t ask him about any other persons who may have hurt him?
A: I didn‘t.
Q: Is there anything that would refresh your recollection about what you asked or what he said?
A: I‘m sure the video.
Q: Okay but short of watching the video, did you take notes of it?
A: I did.
Q: Did you bring those with you?
A: Yes.
Q: Would thos [sic] refresh your recollection about you asking him any questions?
A: Probably.
Q: Okay, well, if you want to look at those and see if they refresh your recollection?
A: They don‘t say specifically about asking questions about Eric punching or doing something to him. Q: Okay but they do indicate that you asked if Eric injured him?
A: They do not. I can read what my notes say if you would like.
Q: No, but the purpose of the interview was to determine whether or not if Eric injured him or hurt him?
A: No. The purpose of the interview was to see what happened.
Q: Okay but you didn‘t ask him about his mother injuring him?
A: No I did not.
* * *
Q: You‘re unsure exactly what you asked Jonathon?
A: Not exactly my questions, I can read through my notes, but --
Q: Well, we‘ll try going back through this again. Did you ask him if Eric punched him?
A: I don‘t recall saying ‘punch‘.
Q: Okay did you ask him if Eric did anything to hurt him?
A: I believe so. Q: He shook his head no?
A: Correct.”
{¶32} However, on re-direct examination Ms. Muse testified that because the child was not participating in the interview and did not want to talk about his injuries, she ended the interview. This testimony appears as follows:
“Q: And part of the reason this interview was only eight to ten minutes long was you got the answers you didn‘t want which were shakes of the head no and you ended it?
A: That‘s not correct.
Q: But you didn‘t ask him about his mother injuring him did you?
A: He wasn‘t participating in the interview so I ended it.
Q: Well, what‘s participating? You asked a question ‘Did Eric injure you’ and he shook his head no.
A: Generally when a child has visible injuries and you ask them about those injuries, you try to get them to open up and talk about that, he was not wanting to do that.”
{¶34} Additionally, at least with respect to the statements made to Dr. Collins, Nurse Norman, and Social Worker Tishia Richardson, the statements were not only submitted to the jury through the testimony of the individual witnesses, but also through the mеdical records, which were not the subject of the pre-trial motion in limine, and were admitted without objection at trial. As a general rule, authenticated medical records are admissible at trial. State v. Kingery, 12th Dist. Fayette No. CA2009-08-014, 2010-Ohio-1813, ¶ 32. “Although potentially replete with hearsay problems, medical records are admissible under the exception to hearsay rule
{¶35} Here, however, we have already determined that the identity of the person who injured the child was reasonably pertinent to medical diagnosis and treatment, as it guided the determination as to what type of testing and the extent of testing that needed to be ordered, and also due to the need to establish a safe discharge plan for the child. Further, and importantly, not only did Appellant fail to object to the admission of the medical records during trial, he raises no argument regarding their admission on appeal. Thus, to the extent the medical records were properly in evidence, it can reasonably be stated that the testimony of the medical professionals, which included the same statements of the child as contained
{¶36} Moreover, and although Apрellant does not challenge the admission of the child‘s statements at issue based upon Confrontation Clause grounds, the United States Supreme Court recently held that a three-year-old child‘s statements made to his preschool teacher indicating he had been physically abused by his mother‘s boyfriend were not testimonial. Ohio v. Clark, 135 S.Ct. 2173, -- U.S. -- (2015). In reaching its decision, the Court reasoned that the statements “were not made with the primary purpose of creating evidence for Clark‘s prosecution[,]” and that the statements “occurred in the context of an ongoing emergency involving suspected child abuse.” The Clark court further noted as follows in reaching its decision:
“* * * their [the teachers] questions and L.P.‘s answers were primarily aimed at identifying and ending the threat. * * * The teachers’ questions were meant to identify the abuser in order to protect the victim from future attacks.” Id. at 2181”
{¶37} Again, although Appellant does not challenge the child‘s statements on Confrontation Clause grounds here, the reasoning of the Court
{¶38} The Court opined that the question presented involved “whether statements made to persons other than law enforcement officers are subject to the Confrontation Clause.” Id. at 2180. Ultimately, the Court reasoned that statеments made to teachers were not like statements made to law enforcement, as there was no indication the teacher‘s primary purpose was to gather evidence, but instead their objective was to identify the abuser in order to protect the child, in part because “they needed to know whether it was safe to release [the child] to his guardian at the end of the day.” Id. at 2181. The same rationale applies here. Three of the four medical professionals who testified at trial stated that identifying the abuser was relevant to medical diagnosis and treatment, not only because it would guide
{¶39} The Clark Court further reasoned that the fact the teachers had mandatory reporting obligations “cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for prosecution.” Id. at 2183. Again, this reasoning is applicable to first responders in the form of emergency room doctors, nurses and social workers charged with trying not only to medically treat a child, but also charged with providing effective and safe discharge planning, and who are also statutory mandatory reporters. Here, these medical professionals cooperated with law enforcement and contacted
{¶40} In light of the foregoing, we cannot find that the trial court erred, let alone committed plain error, in admitting any of the individual statements complained of by Appellant. As such, his sole assignment of error is overruled. Accordingly, the decision of the trial court is affirmed.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and that costs bе assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J. & Harsha, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.