2004 Ohio 2439 | Ohio Ct. App. | 2004
{¶ 2} On September 20, 2001, the victim ("K."), a seven-year old girl, was riding her bicycle near Root's residence. Upon Root's arrival at his residence, K. proceeded with Root to his apartment. After a period of time, Debra Wing ("Wing"), Root's neighbor and owner of the apartment building in which Root resided, went to Root's apartment to check on K. Upon entering the apartment, Wing observed the darkness of the apartment and heard a shower running, but did not see K. Wing knocked on the bedroom door1 and called K.'s name. After receiving no response, Wing exited Root's apartment.
{¶ 3} After failing to locate K. anywhere else, Wing contacted Debra Spangler ("Spangler"), K.'s mother, and informed her that she could not find K. and that Wing had last seen K. enter Root's apartment. Spangler immediately went to Root's apartment. Finding the bedroom door locked, Spangler pounded on the bedroom door while yelling K.'s name. Just as Spangler was going to attempt to kick the door open, K. opened the door.
{¶ 4} K. exited the room while adjusting her clothing. Spangler then noticed Root crouching and hiding in the dark bedroom. After removing K. from the apartment, Spangler contacted 911. In response to Spangler's general inquiry into the incident, K. immediately responded that Root had taken her into the bedroom and removed both of their clothing. K. then stated that Root laid her on the bed, kissed her, and squirted a liquid in her mouth. K. then told Spangler that Root sprayed the same liquid on her vaginal area and licked it off. K. further said that Root then tried to put his thing in her, but that it would not go. K. finally told Spangler that Root then retrieved a pink object, inserted batteries into it, and attempted to put it in her.
{¶ 5} The first officer on the scene directed Spangler to take K. to the hospital. While at the hospital, K. talked to Sergeant Anthony Emery ("Sgt. Emery") and told him the same account of the events as she relayed to Spangler. K. also described the sex objects Root used on her and the location of these objects. Sgt. Emery notified Detective Terry Moisio ("Det. Moisio") of this information. In searching Root's apartment, Det. Moisio found the sex objects in the exact locations as described by K. In speaking with Det. Moisio at the time of the search, Root informed Det. Moisio that K. was never in his apartment that day and that his bedroom door was never locked. The sex objects were later seized from Root's apartment. Subsequent testing of hairs retrieved from one of the sex objects revealed that the hair from the sex object was consistent with hair removed from K.'s head.
{¶ 6} During the physical rape examination at the hospital, K. again relayed the same account of the events to the medical staff. Also during this examination, Dr. Jeffrey Stover ("Dr. Stover") removed two strands of pubic hair from K.'s vaginal area. A mitochondrial DNA test on the pubic hairs later indicated that Root had the same DNA makeup of the pubic hairs.
{¶ 7} Root was subsequently charged with three counts of rape, with specification, in violation of R.C.
{¶ 8} The trial court held a joint sentencing and sexual predator hearing on February 28, 2003. Root was sentenced to nine years for each of the first two counts of rape, to be served concurrently, and to seven years on the third count of rape, to run consecutively to the first two counts, for a total sentence of 16 years. The trial court also found that Root was a sexually-oriented offender.
{¶ 9} Root timely appealed and raises the following assignments of error:
{¶ 10} "[1.] The Trial Court erred in allowing hearsay testimony of the alleged victim, [K.]
{¶ 11} "[2.] The Trial Court erred by allowing Sergeant Anthony Emery of the Conneaut Department [to] testify as to his opinions of the truthfulness of [K.'s] Statements.
{¶ 12} "[3.] Appellant's Trial Counsel rendered ineffective assistance of Counsel.
{¶ 13} "[4.] The Trial Court erred in denying Appellant's Motion for Acquittal upon the Counts of rape pursuant to Criminal Rule 29.
{¶ 14} "[5.] The Conviction is against the manifest weight of the evidence."
{¶ 15} In his first assignment of error, Root claims that the child abuse hearsay exception contained in Evid.R. 807 is the only hearsay exception applicable in child abuse cases. Thus, Root argues that, since the state failed to demonstrate that K. was unavailable and since the state did not put forth a good faith effort to produce her, the introduction of her hearsay statements, as testified to by her mother, by Sgt. Emery, and by Dr. Stover, was improper. Root further argues that the admission of these statements violated his constitutional right to confront the witness.
{¶ 16} Root states that he failed to object to the admission of the hearsay statements at trial. He did, however, object to the state's motion in limine regarding the use of the hearsay statements prior to trial and at the conclusion of the evidence. Although arguably Root did not properly object to the testimony, see State v. Chaiffetz, 3rd Dist. No. 9-98-20, 1999 Ohio App. LEXIS 2673, at *39, 1999-Ohio-801 (citations omitted); State v.Stewart (Dec. 8, 1997), 4th Dist. No. 96CA18, 1997 Ohio App. LEXIS 5625, at *12 (citations omitted), the record indicates that the trial court considered Root's objection in ruling that the statements were admissible hearsay. Thus, in the interests of justice, we will proceed as if Root preserved his objection for appeal.
{¶ 17} Evidentiary rulings are within the discretion of the trial court and will not be overturned absent an abuse of discretion. State v. Long (1978),
{¶ 18} Evid.R. 807 "recognizes a hearsay exception for the statements of children in abuse situations." Evid.R. 807, Staff Notes. "This exception[, however,] is in addition to the exceptions enumerated in Evid.R. 803 and 804." Id. Thus, Root's claim that Evid.R. 807 is the exclusive hearsay exception in child abuse cases is misplaced. Since the record reveals that the trial court admitted the hearsay statements under Evid.R. 803(2) and Evid.R. 803(4), rather than Evid.R. 807, we will now examine whether the trial court abused its discretion in admitting the statements under these two hearsay exceptions.
{¶ 19} Evid.R. 803(2) provides a hearsay exception for statements "relating to a startling event * * * made while the declarant was under the stress of excitement caused by the event," even if the "declarant is available as a witness." "In determining whether a statement qualifies as an excited utterance, the court should consider `(1) the lapse of time between the event and the statement, (2) the mental and physical condition of the declarant, (3) the nature of the statement, and (4) the influence of intervening circumstances.'" State v.Ashford (Feb. 16, 2001), 11th Dist. No. 99-T-0015, 2001 Ohio App. LEXIS 583, at *13-*14, quoting State v. Humphries (1992),
{¶ 20} "[I]n cases involving hearsay statements of children in the prosecution of the children's alleged abusers, if the hearsay statement at issue falls within a firmly rooted exception, * * * its admission does not violate the defendant's right of confrontation." State v. Dever,
{¶ 21} In this case, K.'s statement to Spangler clearly falls within Evid.R. 803(2). The statements were made within minutes of K. exiting Root's apartment. Spangler described K.'s condition as "panic-stricken" and "terrified." K.'s statement was detailed and was provided after a general question as to what happened, rather than the result of provocation or prodding. Given these facts, we find that the trial court did not abuse its discretion in admitting K.'s hearsay statements through Spangler. See State v.Boston (1989),
{¶ 22} Regarding K.'s statement to Sgt. Emery, this statement likewise falls within the excited utterance exception to hearsay. K.'s statement was made to Sgt. Emery within 45 minutes of K. exiting Root's apartment. Moreover, K.'s statement was made without any prodding or provocation. Although the statement to Sgt. Emery potentially could have been influenced by some intervening cause, the statement was substantially the same as the statement to Spangler and there was no indication of any such influence. Thus, we find that the trial court did not abuse its discretion in admitting these statements under Evid.R. 803(2). See State v. Taylor (1993),
{¶ 23} Moreover, since, as discussed above, K.'s statements to Spangler and Sgt. Emery fall within the excited utterance exception, a firmly rooted hearsay exception, see Porter v.Baker (1955),
{¶ 24} Evid.R. 803(4) provides for the admissibility of "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, * * * or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment," even if the declarant is available. "The cornerstone of admissibility under Evid.R. 803(4) is whether the statements are reasonably pertinent to diagnosis or treatment." State v. Miller (1988),
{¶ 25} In this case, Dr. Stover testified regarding the statement K. gave as part of her medical history. Prior to trial, the trial court conducted a hearing, wherein the trial court found that K. was competent to testify and that her statements were "not coached" and were spontaneous.2 Moreover, prior to testifying regarding the contents of K.'s statement, Dr. Stover testified about the importance, in treating the child-victim of a sexual assault, of receiving information regarding the assault, including the identity of the assailant. These statements "assist the doctor in treating any actual injuries the child may have, in preventing future abuse of the child, and in assessing the emotional and psychological impact of the abuse on the child." Id. at 413, citing United States v.Renville (C.A. 8, 1985),
{¶ 26} Since we found above that the statement K. gave as part of her medical history falls within the medical exception to hearsay, a firmly rooted hearsay exception, the admission of this statement does not violate Root's right to confrontation.Dever,
{¶ 27} Root's first assignment of error is without merit.
{¶ 28} In his second assignment of error, Root argues that Sgt. Emery's testimony regarding his opinion as to the veracity of K.'s statement was improper. Root acknowledges his failure to object to this testimony at trial, but he claims that the trial court committed plain error in admitting this testimony. Unlike the statements admitted under Root's first assignment of error, Sgt. Emery's testimony regarding the veracity of K.'s statement was not the subject of the motion in limine. Thus, Root wholly failed to object to the veracity statement, requiring an examination of this assignment of error under the plain error standard.
{¶ 29} "[A]n appellate court will not consider any error which * * * [the complaining party] could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court." Statev. Glaros (1960),
{¶ 30} In the absence of an objection, however, the trial court may rule evidence inadmissible to avoid plain error. Crim.R. 52(B). Plain error is to be invoked "only under exceptional circumstances to prevent a manifest miscarriage of justice." State v. Phillips,
{¶ 31} "An expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant."Boston,
{¶ 32} In this case, Sgt. Emery testified that he "thought [K.] * * * was being truthful." While this testimony was improper and should have been excluded, there was sufficient evidence to support the conviction, as discussed below. Therefore, we cannot say that the admission of such evidence created a manifest miscarriage of justice. The trial court did not commit plain error in admitting the testimony because the outcome of the trial would not have been different in the absence of the error. Statev. Jones (1996),
{¶ 33} Root's second assignment of error is without merit.
{¶ 34} Root claims in his third assignment of error that he was provided ineffective assistance of trial counsel for counsel's failure to object to the hearsay statements discussed above, as well as Sgt. Emery's veracity statement.
{¶ 35} To establish a claim of ineffective assistance of counsel, "the defendant must show that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland v. Washington (1984),
{¶ 36} "[T]he proper standard for attorney performance is that of reasonably effective assistance * * * [and] the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-688. A court "must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689. Thus, a defendant "must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id., quoting Michel v. Louisiana (1955),
{¶ 37} "To establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Seiber (1990),
{¶ 38} In this case, since we already found that the trial court did not abuse its discretion in admitting the hearsay statements, we cannot find that Root's counsel was ineffective for failing to object to this testimony. Moreover, although counsel arguably did not properly object to the hearsay statements, as discussed above, the record reveals that the trial court considered the merits of counsel's objection in ruling on the motion in limine. Thus, "[b]ecause `objections tend to disrupt the flow of a trial, [and] are considered technical and bothersome by the fact-finder,' * * * [and because, as such,] competent counsel may reasonably hesitate to object in the jury's presence," State v. Campbell,
{¶ 39} In regards to counsel's failure to object to the veracity testimony, although trial counsel should have objected to such testimony, the failure to do so had no effect on the judgment, as discussed under the second assignment of error. Thus, since Root is unable to prove he was prejudiced by this purported ineffective assistance of counsel, he is not entitled to a reversal on this claim. See State v. Demetris, 11th Dist. No. 2001-T-0025, 2002-Ohio-3711, at ¶ 68 (in light of the admissible testimony and the physical evidence, the defendant was not denied a fair trial by his counsel's failure to object to inadmissible testimony).
{¶ 40} Root's third assignment of error is without merit.
{¶ 41} In his fourth assignment of error, Root argues that, in light of the trial court's admission of inadmissible hearsay, his motion for acquittal was improperly denied.
{¶ 42} Pursuant to Crim.R. 29, a motion for judgment of acquittal should be granted "if the evidence is insufficient to sustain a conviction." In other words, a trial court "shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978),
{¶ 43} In this case, we found above that the trial court did not abuse its discretion in admitting the hearsay statements. Therefore, construing the evidence in favor of the prosecution, including the mitochondrial DNA match between the pubic hairs discovered in K.'s vaginal area and Root's DNA, the consistency between the hair removed from the sex object and K.'s own hair, the testimony of Wing regarding her attempt to gain access to Root's apartment, and the testimony from Spangler, Sgt. Emery, and Dr. Stover regarding K.'s account of the incident, we find that the evidence was sufficient so that a rational trier of fact could have found the essential elements beyond a reasonable doubt. The trial court did not err in overruling Root's motion for acquittal.
{¶ 44} Root's fourth assignment of error is without merit.
{¶ 45} In his final assignment of error, Root asserts that, absent the inadmissible hearsay testimony, the jury clearly lost its way in its finding of guilt.
{¶ 46} In reviewing a manifest weight argument, we must conduct an "examination of the entire record and [determine] whether the evidence produced attains the high degree of probative force and certainty required of a criminal conviction."State v. Getsy,
{¶ 47} In this case, a jury reasonably could have concludedthat all the elements of rape had been proven beyond a reasonabledoubt. The jury heard testimony from Spangler, Sgt. Emery, andDr. Stover regarding K.'s account of the incident, all of whichwere similar in content, and which we already determined theadmission of such testimony was not an abuse of discretion, asdiscussed above. The jury also heard testimony from Wingregarding her attempts to gain access to Root's apartment. Thestate proffered substantial physical evidence, i.e. the pubichairs discovered in K.'s vaginal area during the rapeexamination, which matched Root's DNA, and a hair retrieved fromthe sex object, which was consistent with hair from K.'s head. Insupport of this physical evidence, the state proffered testimonyfrom the forensic specialists regarding the testing performed onthe samples and the results. Although Root denied the accusationsduring his testimony, the weight to be given the evidence deduced at trial and the credibility of the witnesses are within the purview of the trier of fact. State v. DeHass (1967),
{¶ 48} Root's fifth assignment of error is without merit.
{¶ 49} For the foregoing reasons, we hold that Root's assignments of error are meritless. The decision of the Ashtabula County Court of Common Pleas is affirmed.
Judgment affirmed.
Ford, P.J., and Rice, J., concur.