State v. Dever

596 N.E.2d 436, 64 Ohio St. 3d 401
Ohio Supreme Court·Decided August 19, 1992·No. No. 91-1498·Published·Cited by 260 cases

Opinions

Alice Robie Resnick, J.

This case presents the continuing problem of reaching just results in child abuse cases involving statements made by young children during the course of a medical examination. We must consider the admissibility of the statements at trial pursuant to the hearsay exception contained in Evid.R. 803(4). The principal dilemma arises in attempting to apply to children evidentiary rules which were drafted with adults in mind. In applying these rules of evidence to children, we encounter considerable problems in devising a reasonable and workable application. Nevertheless, we continue to strive for balance in this troublesome area of the law. As was noted in State v. Boston, supra, 46 Ohio St.3d at 113, 545 N.E.2d at 1226: “ * * * [I]t is the goal of all the members of the judiciary that results are reached that are equitable and fair to both society and defendants who find themselves charged with the crime of child abuse.”

In considering the circumstances in the instant case, we must address two principal issues: (1) Did the trial judge abuse his discretion in allowing Dr. Saluke to repeat at trial statements Kristen made to her during the medical examination as an Evid.R. 803(4) hearsay exception? 1 and (2) What, if any, is the impact of the Confrontation Clause of the Sixth Amendment to the United States Constitution2 on our inquiry?

For the reasons which follow, after careful consideration, we resolve the first issue by finding no abuse of discretion on the part of the trial judge in admitting the hearsay testimony pursuant to Evid.R. 803(4). As to the second issue, we determine that Evid.R. 803(4), as applied to the circumstances of this case, is a firmly rooted hearsay exception; we apply the analysis contained in [405] White v. Illinois (1992), 502 U.S.-, 112 S.Ct. 736, 116 L.Ed.2d 848, to that conclusion; and we find no violation of Dever’s right of confrontation. We therefore reverse the judgment of the court of appeals, and reinstate Dever’s conviction.

I

The initial issue for our consideration is whether the trial court abused its discretion in admitting into evidence Kristen’s hearsay statement to Dr. Saluke under Evid.R. 803(4). A related question, which directly affects the Confrontation Clause issue presented in Part III of this opinion, is whether the Evid.R. 803(4) exception, in the circumstances of this case, is a firmly rooted hearsay exception.

Because this court wrestled with many issues raised in similar circumstances in State v. Boston, supra, a detailed examination of that case is required.

A

Boston involved a defendant who was tried and convicted of gross sexual imposition based on an incident involving his two-and-one-half-year-old daughter. The defendant had been given weekend visitation rights with his daughter pending a divorce from his wife. After being with the father one weekend, the child awoke during the night screaming. The mother questioned the child, who related, “Daddy put something up my bucket.” Upon finding redness around the child’s vagina and anus, the mother took the child to a doctor the next day. Although the doctor found no specific evidence of abuse, he referred the mother to Akron Children’s Hospital. The director of the hospital’s Child Abuse Team, a pediatrician, later examined the child. The child told the pediatrician that “Dáddy put a telephone in here and it hurt.” Based on the child’s statements, her medical history, and the examination (which revealed a whitish discharge and redness around the labia minora, and a hymenal opening larger than normal), the doctor made a diagnosis of probable vaginal penetration and possible rectal penetration. A psychologist, an expert in child sexual abuse, counselled the child, and determined that the child was not falsifying, and that she had been a victim of sexual abuse.

At defendant’s trial, the prosecution attempted to present the child’s testimony. The trial judge conducted a voir dire examination of the child, and [406] found her incompetent to testify.3 However, hearsay statements made by the child to her mother, to the doctor who had diagnosed probable vaginal penetration, and to the psychologist were admitted at trial. In addition, the court permitted opinion testimony that the child had not fantasized her accusation. The jury returned a verdict of guilty of gross sexual imposition, and the defendant was sentenced. Upon appeal, the court of appeals affirmed the judgment of conviction. Id., 46 Ohio St.3d at 108-111, 545 N.E.2d at 1222-1225.

This court, in reversing the judgment of conviction and remanding to the trial court, addressed a number of evidentiary issues which arise within the context of a child abuse case.4 Especially relevant to the instant case is Boston’s discussion of Evid.R. 803(4), the hearsay exception involving statements made for purposes of medical diagnosis or treatment, including the motivational component of Evid.R. 803(4), the effect of Ohio’s Evid.R. 102 on Evid.R. 803(4), and the admissibility of statements by a child identifying the perpetrator in an abuse prosecution.

B

Evid.R. 803(4) allows into evidence, as an exception to the hearsay rule, “[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 [407] insofar as reasonably pertinent to diagnosis or treatment.” Ohio’s Evid.R. 803(4) is identical to Fed.R.Evid. 803(4).

In essence, Boston found that the admissibility of statements for medical treatment or diagnosis pursuant to Evid.R. 803(4) depends upon the motivation of the declarant to make the statement. “ ‘ * * * The rule’s narrow limitation is based upon the belief that the declarant’s subjective motive generally guarantees the statement’s trustworthiness. Since the effectiveness of the treatment depends upon the accuracy of information given to the physician, the declarant is motivated to tell the truth. * * * Id., 46 Ohio St.3d at 121, 545 N.E.2d at 1233, quoting State v. Eastham (1988), 39 Ohio St.3d 307, 312, 530 N.E.2d 409, 413 (H. Brown, J., concurring). Serious problems arise in admitting the statements when a “child of tender years” is the declarant because that child will often not be personally motivated to seek treatment. “ * * * [S]uch a young child is not giving the doctor the information for the purposes required by Evid.R. 803(4). More than likely, the child does not even want to be seeing the doctor[.]” Boston, supra, 46 Ohio St.3d at 122, 545 N.E.2d at 1234.

C

While Boston noted that many courts have applied Evid.R. 803(4) in child abuse prosecutions when the declarant is a young child without considering the motivational component of that hearsay exception, Boston concluded that such an interpretation is inconsistent with Ohio’s version of Evid.R. 102. Id., 46 Ohio St.3d at 121-122, 545 N.E.2d at 1233-1234.

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State v. Dever, 596 N.E.2d 436, 64 Ohio St. 3d 401 (Ohio 1992).

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