[Cite as State v. Dyer, 2017-Ohio-426.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2015-L-121 - vs - :
DEREK A. DYER, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 14 CR 000951.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, Jenny B. Azouri, Assistant Prosecutor, and Alana A. Rezaee, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Thomas J. Tatarunas, Thomas J. Tatarunas, L.P.A., Inc., 7327 Center Street, Mentor, OH 44060 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Derek Dyer, appeals his conviction for Felonious
Assault in the Lake County Court of Common Pleas. The issue before this court is
whether statements incriminating the defendant made by the victim of domestic
violence/assault are admissible: as excited utterances when they are made within an
hour of the assault; as statements made for medical treatment when they are made to
medical personnel on the evening of the assault; as prior inconsistent statements despite the lack of a limiting instruction; and when they are contained in written
statements but not admitted for the truth of the matter asserted. For the following
reasons, we affirm Dyer’s convictions.
{¶2} On May 19, 2015, the Lake County Grand Jury returned a three-count
Indictment against Dyer, charging him with Felonious Assault, a felony of the second
degree in violation of R.C. 2903.11(A)(1); Domestic Violence, a felony of the third
degree in violation of R.C. 2919.25(A); and Domestic Violence, a felony of the third
degree in violation of R.C. 2919.25(B).
{¶3} On June 5, 2015, Dyer waived his right to be present at arraignment and
entered a plea of not guilty to all charges.
{¶4} On September 22, 2015, the State filed a Motion for Calling of Court
Witness pursuant to Evidence Rule 614(A). The State moved the trial court to call
Nicole Ramian as a court’s witness on the grounds that Ramian had recanted
statements she had made identifying Dyer as her assailant, Ramian and Dyer are in a
romantic relationship, and they have two children together.
{¶5} On the same date, the State filed a Motion in Limine to Determine
Admissibility of Victim’s Statements under Evid.R. 803(4).
{¶6} On September 24, 2015, Dyer opposed the State’s Motions.
{¶7} On September 25, 2015, a hearing was held on the State’s Motions, both
of which were granted by the trial court.
{¶8} On September 28 and 29, 2015, Dyer’s case was tried before a jury.
{¶9} The following evidence was presented on behalf of the State.
{¶10} Patrick Fink, a firefighter and paramedic for the City of Willoughby,
testified that, at sometime after midnight on May 9, 2014, he responded to a call at the
2 Willoughby Brewing Company in Willoughby, Ohio. At the scene, he treated Nicole
Ramian for injuries. He described her as “very upset, very distraught [at] what
happened”; “she had blood on her mouth”; “inconsolable at times to what had gone on”;
but also as “coherent.” Ramian told Fink that “her boyfriend had hit her.” Fink spent
about fifteen minutes with Ramian while transporting her to Lake West Hospital.
{¶11} Doctor Joseph Golob, a trauma surgeon at Metro Health Hospital, testified
that he treated Ramian on the morning (after 7:00 a.m.) of May 9, 2014, at Metro Health
upon her transfer from Lake West for suspected subdural hematoma (or “blood on the
brain”). A CT scan and physical exam did not reveal subdural hematoma, but Ramian
did have a lacerated lip, nasal and jaw (maxilla) bone fractures, and a missing tooth.
On the GCS (“Glasgow Coma Scale”) she scored 15, which is “completely normal as far
as being awake and alert.” Ramian reported that her injuries were caused by being
punched by her boyfriend. She was prescribed narcotic medication for pain.
{¶12} Nicole Ramian was called to testify by the court. Dyer is the father of two
of her three children. She has been romantically involved with Dyer for about seven
years. In May 2014, she and Dyer were estranged on account of him “talking to another
girl.”
{¶13} On May 8, 2014, Ramian and her sister (Jennifer) went to the Willoughby
Brewing Company after dark. Over the course of an hour, she had two or three vodka
and cranberry drinks. Ramian also stated she had taken “a bar” of un-prescribed
Xanax. The combination of the vodka and Xanax made her feel “a little weird.”
Eventually, she met Dyer in a semi-private area of the bar (the “VIP section”) where he
was celebrating his birthday. They began to argue verbally.
3 {¶14} Ramian was struck in the face. She “assumed” that Dyer struck her
because she had thrown a drink at him, but did not see him punch her. She didn’t
remember exactly what happened and thought that she had blacked out. All that
Ramian could “for real remember is waking up in Metro.”
{¶15} In written statements, signed by Ramian and dated May 9, 2014, at 1:35
a.m., Dyer is identified as her attacker. The statements advised Ramian that by signing
them she wished to press domestic violence charges against Dyer. Ramian, however,
had no memory of writing or signing the statements.
{¶16} Ramian recalled that on May 12, 2014, she made a statement to her
dentist that she assumed Dyer had punched her because she threw a drink at him.
{¶17} Ramian testified that she subsequently (also May 12) spoke with a friend,
Lea (Leatice) Curry, who also was at the Willoughby Brewing Company on the night of
May 8. Ramian went with Curry to the police station and indicated that she no longer
wished to press charges against Dyer.
{¶18} Lieutenant Richard T. Ashton of the Willoughby Police Department
testified that, on the night in question, he was working security at the Willoughby
Brewing Company. At about 12:35 a.m. (May 9), Ramian approached him: “she’s
crying and yelling, and covering, holding her face.” There was blood on her face. He
asked her what happened and she advised that “the father of her kids punched her in
the face, knocked her tooth out.”
{¶19} Lieutenant Ashton led Ramian to the kitchen (since it was quieter) where
she identified Dyer as her assailant. Ramian spoke coherently and did not seem to be
impaired. Lieutenant Ashton, accompanied by Ramian’s sister, tried without success to
locate Dyer in the bar.
4 {¶20} Officer Paul Sciarrino of the Willoughby Police Department testified that,
on the morning of May 9, he responded to a call at the Willoughby Brewing Company.
Upon his arrival, Lieutenant Ashton briefed him about the situation. He spoke with
Ramian in the kitchen. He described her as “hysterical” (crying and upset), “holding a
towel that was bloody to her face.” She repeated to him several times that “he knocked
my front teeth out,” he being Dyer, the father of her children.
{¶21} Officer Sciarrino met with Ramian again at Lake West Hospital to obtain
written statements and photographs. In speaking with her, Officer Sciarrino testified
that Ramian did not appear intoxicated or otherwise impaired in any way.
{¶22} Officer Sciarrino testified that on May 14 he was advised by Ramian that
she did not wish to press charges against Dyer.
{¶23} Doctor Jennifer Becker, a dentist with Hudec Dental, evaluated Ramian on
May 12, 2014. Ramian was emotional and teary during the examination. Ramian was
missing a front tooth and a couple of other teeth were fractured. Ramian explained that
she had been punched in her face by her boyfriend.
{¶24} Jennifer Williams, an emergency department nurse at Lake West Hospital,
assessed a “tearful” Ramian at about 1:00 a.m. on May 9. Ramian’s blood alcohol level
was 0.08, which would be consistent with the consumption of two or three drinks that
evening. Ramian was coherent and cooperative in her interactions with Williams. She
asked what happened and Ramian replied that “she was punched in the face, closed
fist, by her boyfriend.” Ramian also stated that she was not sure if she had lost
consciousness and that the incident happened quickly.
{¶25} The following evidence was presented on behalf of Dyer.
5 {¶26} Leatice Curry testified that he knows both Dyer and Ramian. He was at
the Willoughby Brewing Company on the night in question independently of Dyer and
Ramian. He noted Ramian was “out of character” and not a “normal drunk.” He
observed her swearing at Dyer and throw her drink, which landed on several people
around Dyer. He saw a man wearing a gray hoodie and black sweatpants punch
Ramian and, then, walk into the crowd. Ramian was knocked down, but not out. Curry
tried to follow the assailant but was unable to do so. He reported what he saw to a
bouncer.
{¶27} Curry spoke with Ramian the next day and told her that it was not Dyer but
an unidentified man in a gray hoodie who had punched her. Curry accompanied
Ramian to the police station and tried to make a statement, but the police would not
accept it.
{¶28} Dyer testified that he is currently in a relationship with Ramian (“the love of
my life”) and that they are raising their two children together.
{¶29} Dyer admitted to having two prior Domestic Violence convictions, not
involving Ramian, as well as convictions for drug-related offenses and Attempted
Abduction.
{¶30} Dyer admitted that, on May 8, 2014, he and Ramian were separated
because he had been caught “messing with another girl.” He was at the Willoughby
Brewing Company to celebrate his birthday in the VIP section. He arrived sometime
after 10:00 p.m.
{¶31} Dyer met with Ramian upon arriving at Willoughby Brewing Company, and
they argued briefly about money. Dyer also met Curry that evening, and invited him to
join him in the VIP section.
6 {¶32} Dyer met Ramian a second time at about 12:30 a.m. and they resumed
arguing. When Ramian threw her drink, Dyer turned to avoid it. Someone shouted,
“bitch,” and, when Dyer turned back around, he saw Ramian being punched. He then
went looking for the man who punched her, described as wearing black jeans and a
grey sweater, until he learned that “he was being looked for.” Dyer became scared, left
the bar and went home.
{¶33} Dyer called Ramian repeatedly in the days following the incident, but
without being able to make contact with her.
{¶34} On September 30, 2015, the jury returned its verdict finding Dyer guilty of
all charges.
{¶35} The trial court proceeded immediately to sentencing, merging the two
Domestic Violence counts into the Felonious Assault count. The court sentenced Dyer
to six years’ imprisonment, advised him that he would be subject to three years of
mandatory post release control, and charged him with the costs of prosecution.
{¶36} On October 29, 2015, Dyer filed a Notice of Appeal. On appeal, Dyer
raises the following assignment of error:
{¶37} “[1.] The trial court’s improper admission of numerous hearsay statements
and failure to properly instruct the jury of said statements[’] non-substantive nature as
well as the trial court improperly instructing the jury that such statements were
substantive evidence constituted plain error and deprived Appellant of his right to a fair
trial.”
{¶38} In this assignment of error, Dyer complains that the trial court admitted out
of court statements identifying him as Ramian’s assailant without providing a limiting
7 instruction that such statements were not substantive in nature and could only be used
for purposes of impeachment.
{¶39} Our standard of review in the present case is both abuse of discretion and
plain error.
{¶40} With respect to the admission of Ramian’s out-of-court statements, the
standard is abuse of discretion. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d
1056 (1991) (“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”); State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d
343 (1987), paragraph two of the syllabus (“[t]he admission or exclusion of relevant
evidence rests within the sound discretion of the trial court”).
{¶41} With respect to the failure to provide a limiting instruction, Dyer failed to
request such an instruction or to object to the jury instructions as given, thereby waiving
all but plain error. Crim.R. 30(A) (“[o]n appeal, a party may not assign as error the
giving or the failure to give any instructions unless the party objects before the jury
retires to consider its verdict”); State v. Williford, 49 Ohio St.3d 247, 251, 551 N.E.2d
1279 (1990) (“[w]e have repeatedly held that a failure to object before the jury retires in
accordance with the second paragraph of Crim.R. 30(A), absent plain error, constitutes
a waiver”).
{¶42} “Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.” Crim.R. 52(B). “Notice of
plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
8 {¶43} The plain error standard also applies in instances where testimony is
admitted without objection by the defendant. State v. Slagle, 65 Ohio St.3d 597, 604,
605 N.E.2d 916 (1992) (“[a]s a general rule an appellate court will not consider an
alleged error that the complaining party did not bring to the trial court’s attention at the
time the alleged error is said to have occurred”).
{¶44} “‘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.” Evid.R. 801(C). “It is axiomatic that hearsay evidence is inadmissible unless
it falls within the specific hearsay exceptions enumerated in the Rules of Evidence.”
State v. DeMarco, 31 Ohio St.3d 191, 195, 509 N.E.2d 1256 (1987).
{¶45} Dyer identifies seven out of court statements made by Ramian and
admitted at trial in which he was identified as the assailant: (1) an oral statement to
Lieutenant Ashton; (2) an oral statement to Officer Sciarrino; (3) an oral statement to
Fink (paramedic); (4) an oral statement to Williams (nurse) also quoted in the medical
records; (5) an oral statement to Dr. Golob; (6) an oral statement to Dr. Becker; and (7)
two written statements for Officer Sciarrino.
{¶46} The first three of these statements, those made to Lieutenant Ashton,
Officer Sciarrino, and Fink are fairly admissible under the excited utterance exception to
the hearsay rule.
{¶47} Under this exception, “[a] statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the
event or condition” is not excluded by the rule against hearsay. Evid.R. 803(2).
Essential to admissibility of statements under this exception is that “the statement or
declaration, even if not strictly contemporaneous with its exciting cause, was made
9 before there had been time for such nervous excitement to lose a domination over his
reflective faculties, so that such domination continued to remain sufficient to make his
statements and declarations the unreflective and sincere expression of his actual
impressions and beliefs.” (Citation omitted.) State v. Taylor, 66 Ohio St.3d 295, 301,
612 N.E.2d 316 (1993). “[T]he lapse of time between the startling event and the out-of-
court statement is not dispositive in the application of Evid.R. 803(2) * * * [r]ather, the
question is whether the declarant is still under the stress of nervous excitement from the
event.” State v. Boston, 46 Ohio St.3d 108, 118, 545 N.E.2d 1220 (1989).
{¶48} Lieutenant Ashton, Officer Sciarrino, and Fink encountered Ramian within
an hour of the assault when she was clearly still under the stress of excitement caused
by the attack.
{¶49} The next two statements related by Nurse Williams and Dr. Golob were
the subject of the Motion in Limine filed by the State, arguing for their admission as
statements made for the purpose of medical diagnosis and treatment.1 Under the
medical diagnosis or treatment exception, “[s]tatements 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” are not
excluded by the hearsay rule. Evid.R. 803(4).
{¶50} A recurrent issue with respect to the medical diagnosis or treatment
exception is whether statements identifying and incriminating the defendant are
admissible. This court has followed the general rule “that a statement as to the identity
1. On appeal, the State asserts that the statements to Nurse Williams and Dr. Golob also constitute excited utterances. While arguable, there is no indication in the record that the trial court considered them as such when ruling on their admission.
10 of the perpetrator of a criminal act, which is not reasonably related or necessary to
medical diagnosis, is not admissible under Evid.R. 803(4).” State v. Ashford, 11th Dist.
Trumbull No. 99-T-0015, 2001 WL 137595, 8 (Feb. 16, 2001) (cases cited); State v.
Smith, 8th Dist. Cuyahoga No. 90476, 2008-Ohio-5985, ¶ 38 (“[a]bsent some evidence
that the identity of the perpetrator is necessary for medical purposes, statements
identifying an assailant are not properly admitted pursuant to Evid.R. 803(4)”) (citation
omitted).
{¶51} In the present case, the trial court found Dyer’s identity reasonably related
to medical diagnosis or treatment:
[A] doctor has to know who she’s going home to. And if she’s going
home to an assailant, the doctor has a duty not to discharge her
into the custody of a potential assailant. A doctor has a duty not to
put her into the same position that may have brought her for
medical treatment. So that’s all part of medical diagnosis. The
identity of the perpetrator is part of the medical diagnosis in a
physical assault case. So it’s my ruling that all of that will be
admitted.
{¶52} The trial court’s justification for its ruling was echoed in the testimony of
Nurse Williams, who stated that treatment includes “patient safety” and that, if the
situation had occurred, Dyer would have been prevented from having contact with
Ramian. Compare State v. Flowers, 9th Dist. Summit No. 25841, 2012-Ohio-3783, ¶ 23
(“[t]his Court [the Ninth District] has consistently held that a description of the encounter
and even identification of the perpetrator are within the exception, as statements made
for purposes of diagnosis or treatment”) (citations omitted).
11 {¶53} We find the admission of the statements by Nurse Williams and Dr. Golob
to be harmless error as they were cumulative to the properly admitted statements of
Lieutenant Ashton, Officer Sciarrino, and Fink identifying Dyer as the assailant. State v.
Williams, 38 Ohio St.3d 346, 350, 528 N.E.2d 910 (1988) (the erroneous admission of
hearsay, cumulative to the testimony of other witnesses at trial, constitutes harmless
error); Smith, 2008-Ohio-5985, at ¶ 39.
{¶54} The sixth statement was introduced through the testimony of Ramian’s
dentist, Dr. Becker, and was made on May 12 (three days after the assault), the same
day that Ramian indicated that she no longer wished to press charges against Dyer.
{¶55} Dr. Becker testified that Ramian identified her boyfriend as the person who
had punched her. Ramian testified that she told Dr. Becker “I assumed he punched my
teeth out, cause that’s who I threw my drink at.” The trial court admitted the testimony
as a prior inconsistent statement.
{¶56} “Extrinsic evidence of a prior inconsistent statement by a witness is
admissible * * * [i]f the statement is offered solely for the purpose of impeaching the
witness, the witness is afforded a prior opportunity to explain or deny the statement and
the opposite party is afforded an opportunity to interrogate the witness on the statement
or the interests of justice otherwise require;” and “[t]he subject matter of the statement is
* * * [a] fact that is of consequence to the determination of the action other than the
credibility of a witness.” Evid.R. 613(B)(1) and (2)(a).
{¶57} Applying this Rule, Ohio courts have regularly allowed the introduction of a
witness’ prior inconsistent statement solely for the purposes of impeaching that witness’
credibility, not as substantive evidence of the defendant’s guilt. State v. McKelton, __
Ohio St.3d __, 2016-Ohio-5735, __ N.E.3d __, ¶ 125. Accordingly, “[s]tatements
12 admitted under Evid.R. 613(B) require a limiting instruction to inform the jury that the
prior statements were only to be considered for impeachment purposes.” State v.
Armstrong, 11th Dist. Trumbull Nos. 2001-T-0120 and 2002-T-0071, 2004-Ohio-5635, ¶
109; State v. Fields, 8th Dist. Cuyahoga No. 88916, 2007-Ohio-5060, ¶ 17; Evid.R. 105
(“[w]hen evidence which is admissible as to one party or for one purpose but not
admissible as to another party or for another purpose is admitted, the court, upon
request of a party, shall restrict the evidence to its proper scope and instruct the jury
accordingly”).
{¶58} As noted above, Dyer did not request a limiting instruction or otherwise
object to the jury instructions as given, thus limiting our review to plain error. The
absence of a limiting instruction in the present case does not rise to that level, having
had no conceivable influence on the outcome of the trial. Ramian’s identification of
Dyer as her assailant was properly put before the jury at least three times through the
testimony of Lieutenant Ashton, Officer Sciarrino, and Fink. Moreover, Ramian did not
deny making a statement to Dr. Becker implicating Dyer, although at trial she
equivocated with respect to her identification of Dyer. In light of the considerable
substantive evidence of Dyer’s guilt and the obvious import of Dr. Becker’s testimony as
impeaching Ramian’s subsequent equivocation, the failure to give a limiting instruction
with respect to Dr. Becker’s testimony was inconsequential. McKelton at ¶ 130 (lack of
limiting instruction with respect to a witness’ prior inconsistent statement was not
“outcome-determinative” where other witnesses testified substantively as to the same
statement); State v. Kimbrough, 11th Dist. Lake No. 97-L-274, 1999 WL 540909, 10
(July 9, 1999) (“the admission of extrinsic evidence of Layfield’s [prior inconsistent]
13 statement was harmless error” where “the remaining evidence, standing alone,
constitute[d] overwhelming proof of the defendant’s guilt”).
{¶59} The final statements that Dyer contends were improperly before the jury
are written statements by Ramian describing the assault written within an hour of the
assault for Officer Sciarrino. The substance of these statements mirrors Officer
Sciarrino’s testimony as to what Ramian told him following the assault. Dyer did not
object to the admission of these written statements, thus, we are limited to notice plain
error affecting substantial rights. Evid.R. 103(A)(1) and (D) (“[e]rror may not be
predicated upon a ruling which admits or excludes evidence unless a substantial right of
the party is affected, and * * * timely objection or motion to strike appears of record
stating the specific ground of objection,” although “[n]othing in this rule precludes taking
notice of plain errors affecting substantial rights”).
{¶60} The trial court indicated in the pre-trial hearing that the written statements
would be admissible, not to prove the truth of the matter asserted, but as relevant to the
issue of Ramian’s coherence and ability to perceive events at the time of the assault.
Ramian claimed that, in addition to the vodka drinks, she had taken Xanax which may
have contributed to her inability to remember events. Dyer and Curry both testified,
contrary to the other witnesses that interacted with Ramian that evening, that she was
noticeably drunk. The court stated:
They’ll be able to see her statements * * * to judge not the truth of
the matter asserted, but whether she was of proper composition to
write the statement out. So her credibility will be an issue * * *.
And the statements haven’t been offered, but I would think that
there is a separate purpose, since you’ve raised the issue through
14 her testimony, that she may have been so out of it with the
combination of the Xanax and the 3 drinks, whether she could even
write out a statement, or form an opinion as to her observations.
So in order to fulfill the fact finding purpose of the trial, those will be
admissible.
{¶61} As the trial court articulated a cogent rationale for the admission of the
written statements as nonhearsay, their admission does not constitute plain error or
even an abuse of discretion (had an objection been duly raised).2
{¶62} Lastly, Dyer argues the trial court erred by not admitting Ramian’s written
statement of May 12, 2014, wherein she advised the police that she was recanting her
prior statements which identified Dyer as the assailant. Dyer maintains that the
statement is not hearsay as a prior consistent statement. “A statement is not hearsay if
* * * [t]he declarant testifies at trial or hearing and is subject to cross-examination
concerning the statement, and the statement is * * * consistent with declarant’s
testimony and is offered to rebut an express or implied charge against declarant of
recent fabrication or improper influence or motive.” Evid.R. 801(D)(1)(b).
{¶63} The trial court ruled the May 12 written statement was inadmissible noting
that the prior written statements (made within an hour of the assault) “were done under
circumstances quite different than this one. She’s had time to reflect before she wrote
2. Since they were not admitted for the truth of the matter asserted, it is arguable that a limiting instruction would have been appropriate with respect to the written statements. For the reasons set forth in connection with the admission of Dr. Becker’s testimony, the lack of such instruction does not constitute plain error. Dyer’s reliance on State v. Armstrong, 11th Dist. Trumbull Nos. 2001-T-0120 and 2002-T-0071, 2004-Ohio-5635, is misplaced. In Armstrong, this court held that the lack of a limiting instruction on the use of impeachment evidence was “fatal and plain error.” Id. at ¶ 109. Armstrong is distinguishable, however, in that the impeachment evidence at issue therein “comprised the only direct link between appellant and the murder-for-hire scheme,” and “the remaining evidence, standing alone, was inconclusive or suspect circumstantial evidence.” Id. at ¶ 121. In the present case, there was significant evidence of Dyer’s guilt of which the written statements were merely duplicative.
15 this one [on May 12]. * * * This was done after everything has calmed down and after
she’s had time to reflect, after she’s been worked on by Lea Curry and Derek Dyer.”
{¶64} We find no abuse of discretion. The purpose of allowing a prior consistent
statement is to rebut the implication that Ramian changed her testimony due to
influence or pressure exerted by Dyer. Her May 12 written statement to the police does
not serve this purpose because it was made after Dyer had repeatedly contacted
Ramian to deny his involvement and after she had discussed the matter with Curry, who
accompanied her to the police station when she wrote the statement. Admission of the
May 12 statement would not have served the purpose of the Rule. Additionally, Ramian
was allowed to testify that she returned to the police station on May 12 because she
wanted to change or correct her prior written statements and Officer Sciarrino testified
that Ramian was at the police station on May 12 and that she expressed a desire not to
press charges and wrote a third statement at this time.
{¶65} The sole assignment of error is without merit.
{¶66} For the foregoing reasons, Dyer’s conviction for Felonious Assault is
affirmed. Costs to be taxed against the appellant.
TIMOTHY P. CANNON, J., concurs in judgment only with a Concurring Opinion,
THOMAS R. WRIGHT, J., concurs in judgment only with a Concurring Opinion.
__________________________________
TIMOTHY P. CANNON, J., concurring in judgment only.
16 {¶67} I respectfully concur with the judgment of the lead opinion in affirming
appellant’s conviction.
{¶68} I agree, as the lead opinion notes, that the admission of testimony from
Dr. Golob and Nurse Williams was error, albeit harmless. However, I write to clarify that
the trial court does not have “discretion” to admit hearsay. With regard to some
evidentiary rulings, such as relevancy, the trial court must exercise discretion as to the
admissibility of the evidence. In contrast, hearsay is simply inadmissible unless a valid
exception exists. Evid.R. 802. Clearly, there are times when the trial court must make
a factual determination as to whether an exception exists, but if the trial court
determines a statement is hearsay, and no exception exists, there is no discretion to
allow its admission. Jack F. Neff Sand & Gravel, Inc. v. Great Lakes Crushing, Ltd.,
11th Dist. Lake No. 2012-L-145, 2014-Ohio-2875, ¶23.
{¶69} The lead opinion notes that the “trial court found Dyer’s identity reasonably
related to medical diagnosis or treatment” when it issued a ruling at a hearing on a
motion in limine. When the trial court made that ruling, it was prior to trial and prior to
any testimony in that regard. There was no evidence introduced at trial that the identity
of the perpetrator was necessary to the medical providers for the diagnosis and
treatment of the victim.
{¶70} The lead opinion states, “[t]he trial court’s justification for its ruling was
echoed in the testimony of Nurse Williams, who stated that treatment includes ‘patient
safety.’” Nurse Williams testified that if appellant had come to the hospital while Ms.
Ramian was a patient, she would have noted that he had come to the hospital in the
medical record because “we’re there to protect the patient. I would have involved
17 security, probably would not have let him back at that point.” However, this testimony
does not reflect “treatment” as explained by the staff notes to Evid.R. 803(4).
{¶71} The staff notes of Evid.R. 803(4) state, “[t]he circumstantial guaranty of
trustworthiness of [statements for purposes of medical diagnosis or treatment] is derived
from the assumption that a person will be truthful about his physical condition to a
physician because of the risk of harmful treatment resulting from untruthful statements.”
In the present case, untruthfulness about the identity of the perpetrator did not create a
risk that the patient would receive harmful treatment or an incorrect diagnosis.
{¶72} The lead opinion cites to this court’s decision in State v. Ashford, 11th
Dist. Trumbull No. 99-T-0015, 2001 Ohio App. LEXIS 583 (Feb. 16, 2001). That case
involved a minor child who was the victim of sexual abuse, and the court found the
identity of the abuser may have been pertinent to the “psychological treatment and
diagnosis” of the victim, in that it may have been necessary to remove the child from the
home. These facts are distinguishable from the present case. Here, there is no
indication or testimony from either Dr. Golob or Nurse Williams that knowing the
perpetrator’s identity was necessary for the psychological treatment and diagnosis of
the victim. As a result, I agree it was error to admit the testimony.
THOMAS R. WRIGHT, J., concurs in judgment only with a Concurring Opinion.
{¶73} I agree with the majority’s conclusion as clarified by the concur in
judgment only with a concurring opinion regarding discretion. Nevertheless, I write
18 separately since the lead opinion finds harmless error without first analyzing why the
perpetrator’s identity is inadmissible under Evid.R. 803(4).
{¶74} Here, the assailant’s identity was not pertinent to diagnosis or treatment,
and thus lacks circumstantial trustworthiness. Staff Notes, Evid.R. 803(4). The Tenth
District Court of Appeals has said it well: “[T]he underlying rationale of the exception
has remained the same; namely, the commonsense notion that you have a strong
incentive to tell the truth and get it right when describing your condition to a doctor who
could wield a sharp scalpel.” (Citation omitted.) State v. Clary, 73 Ohio App.3d 42, 596
N.E.2d 554, *52 (1991). As there were no adverse diagnosis or treatment
consequences to the victim in the event of misidentification, actual or perceived, the
{¶75} I acknowledge that circumstances may arise in which an assailant’s
identity is pertinent to diagnosis or treatment. However, this is not that case.