[Cite as State v. Ford, 2018-Ohio-3563.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105865
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
NATHAN FORD DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-598281-A
BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: September 6, 2018 ATTORNEY FOR APPELLANT
Rick L. Ferrara Rick L. Ferrara, Esq. 2077 East 4th Street Second Floor Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor Mary Weston Christine M. Vacha Daniel T. Van Assistant County Prosecutors The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, Nathan Ford (“Ford”), appeals his convictions for rape
and kidnapping. For the reasons set forth below, we affirm.
{¶2} In 2006, Ford was convicted of raping multiple victims over an eight-year
span between 1996 and 2004. He was sentenced to more than 100 years in prison for
these rapes and other offenses. This court affirmed his convictions in State v. Ford, 8th
Dist. Cuyahoga Nos. 88946 and 88947, 2007-Ohio-5722. Ford’s DNA was identified as
a match on sexual assault collection kits that were submitted to the Ohio Bureau of
Criminal Identification and Investigation (“BCI”) for testing and examination, which
resulted in the charges in the instant case.
{¶3} In August 2015, Ford was charged in a 13-count indictment for four separate
incidents involving four separate victims. Ford was charged with five counts of rape,
one count of aggravated robbery, five counts of kidnapping, and two counts of felonious
assault.1 Counts 1-5 relate to Jane Doe 1 (date of offense August 29, 1995); Counts 6-8
relate to Jane Doe 2 (later identified as K.H.) (date of offense November 5, 1998); Counts
9-11 relate to Jane Doe 3 (later identified as W.W.) (date of offense April 16, 2000); and
Counts 12-13 relate to Jane Doe 4 (later identified as A.W.) (date of offense July 24,
2000).
1 Ford’s charges also included firearm specifications and sexually violent predator specifications. {¶4} Prior to trial, the state of Ohio dismissed Counts 1, 2, 3, 4, 5, 7, and 10 of
the indictment. Consequently, the indictment was reordered as follows: Count 6
became Count 1; Count 8 became Count 2; Count 9 became Count 3; Count 11 became
Count 4; Count 12 became Count 5; and Count 13 became Count 6.
{¶5} The matter proceeded to a jury trial in June 2016. Ford waived the right to a
jury as to the sexually violent predator specifications. The following evidence was
adduced at trial.
Sexual Assault of K.H.
{¶6} On November 5, 1998, K.H. was walking home at night along West 65th
Street. As she reached the area of West 65th and Madison Avenue, she was approached
by an unknown African-American male, later determined to be Ford. K.H. testified that
Ford was friendly at first, and walked along the street with her for a few blocks. They
were at the intersection of West 65th Street and Franklin Avenue, when “out of
nowhere,” Ford put her in a choke hold and dragged her from the street, along a fence,
and behind a building. K.H. testified that Ford’s demeanor changed to being “vicious”
and “violent.” He forced her down onto the ground. Ford strangled her and punched
her in the face so hard that she lost consciousness more than once.
{¶7} Ford ordered her to lower her pants and take one pant leg off and leave one
on. Ford threatened to smash her face into the brick side of the building. Ford got on
top of her and penetrated her vagina with his penis. K.H. testified that Ford was not
wearing a condom and he ejaculated inside her vagina. Ford eventually stood up and told her not to move for five minutes. He “threw a couple dollars” at her and then left.
K.H. laid on the ground for a few minutes because she was in physical pain. She then
straightened herself up and began to walk home. On her way home, she flagged down
police officers and told them what happened. The police officers took K.H. to Lutheran
Hospital, where she was treated for her injuries and where medical professionals
completed a sexual assault kit examination. Samples were collected and included as part
of a rape kit, which was sealed and sent for testing years later. K.H. had bruising to her
eyes, and bruises on both hands, and a blister on her finger from hanging on to the fence.
{¶8} K.H. followed up with the Cleveland Police Department and looked through
mug shots trying to identify her attacker, but was unsuccessful. In 2015, Investigator
Sahir Hasan made contact with K.H. and interviewed her.
{¶9} Melissa Zielaskiewicz (“Zielaskiewicz”), a forensic scientist in the biology
DNA section at BCI, testified that the vaginal swabs from K.H.’s rape kit contained a full
male DNA profile consistent with Ford’s DNA. Zielaskiewicz testified that the odds of
the DNA profile on the vaginal swabs and the anal swabs being someone other than Ford
is “one in 12 quadrillion, 120 trillion unrelated individuals.” Zielaskiewicz’s results
were technically reviewed by two other scientists at BCI who agreed with her findings.
Sexual Assault of W.W.
{¶10} W.W. did not testify at trial. W.W. was an international student from
China, attending Cleveland State University (“CSU”) at the time of the attack. On April
16, 2000, Officer Alanna Smith (“Officer Smith”), who was employed by Cleveland State University Police Department at the time, was dispatched to Stilwell Hall, which housed
the engineering department. Officer Smith spoke with W.W., who described her
assailant as a black male, approximately 25-35 years of age, 5’10” to 6” tall, with short
hair and a mustache. The victim described the male as wearing gray clothing. Officer
Smith transported W.W. to St. Vincent’s Charity Hospital for a sexual assault
examination.
{¶11} Dr. Therese Wolpaw, M.D. (“Dr. Wolpaw”) testified that she treated W.W.
on April 16, 2000. At the time, she was employed as an emergency room physician at St.
Vincent’s Charity Hospital. In treating W.W., Dr. Wolpaw took a history from W.W. as
follows:
This is a 27 year-old otherwise healthy woman who was well until this afternoon when she states that she was raped. She was working at [CSU] where she is an engineering student. She went to the restroom and was followed by a man into the restroom. She states that he told her that he wanted to have sex with her and that if she refused he would hurt her and kill her.
She states that she fought him and that he hit her in the head, nose, neck, right eye and stomach. She continued to fight him but he was much bigger than she was. Consequently he went on and penetrated her vagina. She states that he wore a condom. She does not recall any oral penetration but thinks that there may have been some rectal contact. At this present time she has a great deal of pain along the back right side of her head, over her nose, along her neck and in her right eye. She states that her vision is not disturbed but her eye is painful.
{¶12} Dr. Wolpaw conducted a physical examination and noted W.W.’s injuries.
Computer tomographic (“CT”) scans revealed that W.W. suffered multiple fractures to
her nose, and a fracture to the socket of her right eye. She had abrasions to her right eye, nose, and ears, and blood along her inner thighs. Dr. Wolpaw testified that W.W.’s
facial injuries were consistent with being punched in the face. Dr. Wolpaw collected a
sexual assault kit from W.W. W.W.’s clothing was also collected, which consisted of
one short-sleeve sweater, one long-sleeve sweater, one bra, and one pair of socks.
{¶13} Sergeant Richard Flaherty (“Sergeant Flaherty”), a detective with the CSU
Police Department, was employed as a patrol officer at CSU in 2000. He responded to
the scene of the incident. Sergeant Flaherty received the radio broadcast of the suspect
described as an African-American male, 5’10”, muscular build, and with gray clothing.
As part of his investigation, Sergeant Flaherty learned that W.W. was a student at CSU
and Ford had been a student at CSU between 1988 and 1993.
{¶14} Andrew Sawin (“Sawin”), a forensic scientist in the DNA section of the
BCI, testified that testing detected a male DNA profile on a cutting from W.W.’s shirt.
Lynda Evelyth (“Evelyth”), a forensic scientist with the BCI, compared the DNA profile
from W.W.’s shirt with the known standard of Ford’s DNA. Evelyth testified that Ford
could not be excluded as a contributor of the DNA from the shirt and based upon the
database, the proportion of the population that could not be excluded is 1 in 1,441,000
unrelated individuals. Evelyth concluded that the DNA profile on W.W.’s shirt matched
Ford’s DNA. Evelyth’s conclusions were technically reviewed by two other scientists at
BCI, who agreed with her findings.
Sexual Assault of A.W. {¶15} A.W. testified that sometime after midnight on July 24, 2000, she was
driving down Clark Avenue intending to go to a corner store near West 56th Street to buy
cigarettes. She was 19 years old at the time. A.W. parked her car on Clark Avenue, in
front of Clark Elementary School, and walked over to the front of the store. As she
approached the store, she realized that it was closed. She turned around and started
walking back to her car when a stranger, later identified as Ford, approached her. Ford
said something to her. A.W. does not remember exactly what he said, but remembers
that Ford initially spoke to her in a friendly tone. Suddenly, Ford became aggressive and
grabbed her. He pulled A.W. across the street and onto the property of Clark Elementary
School. He dragged her around the corner of the building to a grassy area behind the
school.
{¶16} Ford placed his hand around A.W.’s throat and covered her mouth with his
other hand. He “choke slammed” her to the ground and put his weight on top of her.
A.W. testified that Ford “was trying to calm me down so he could remove his hand from
my mouth without having to worry about me screaming.” A.W. recalled
“hyperventilating” and “ freaking out.” Ford ordered A.W. to undress and lay her clothes
on the grass as if she was putting a blanket down. A.W. complied because she feared
that if she did not, she would not be able to get away, and Ford would hurt her. Ford
forced A.W. to perform fellatio on him and then he penetrated her vagina with his penis.
A.W. cried while she was being raped. She does not remember Ford using a condom. {¶17} After Ford finished, he instructed A.W. to keep quiet and stay where she
was at. He left with her pants. After he fled, A.W. waited until she felt he was far
enough away and grabbed her remaining clothes. She found her pants on a guardrail, put
them on and came out from behind the school. She got in her car and drove around
trying to find him.
{¶18} Unable to locate Ford, A.W. then drove to the Cleveland division of police
second district police station. She was taken to MetroHealth Medical Center where she
consented to a sexual assault kit examination that included, among other things,
collections from her vagina. Later in July 2000, A.W. responded to the Cleveland Police
Department, Sex Crimes Unit, where she looked through mug shots in vain, trying to
identify her attacker. She eventually stopped going back to look through mug books
because her attacker’s face was a blur to her, and she did not want to make a mistake and
identify the wrong person. A.W. did not hear anything else about her case for 15 years,
until she was contacted by Investigator Hasan.
{¶19} Dr. Mohak Dave, M.D. (“Dr. Dave”), testified that he was employed by
MetroHealth Medical Center as an emergency room physician when A.W. came to the
hospital on July 24, 2000. Upon arrival at the E.R., A.W. was “tearful, tremulous, [and
had] red marks [on her] neck.” Dr. Dave described A.W.’s neck injuries as “abrasions in
a ring fashion to the neck,” which was consistent with someone having grabbed A.W.
around her neck. {¶20} A.W. told Dr. Dave that she was forced to perform oral and vaginal
intercourse with an unknown male about one hour prior to arriving at the hospital. Dr.
Dave treated A.W. and collected specimens from her body as part of a sexual assault kit
examination, including collections from her vagina.
{¶21} Evelyth testified that she analyzed the vaginal swabs and the anal swabs
from A.W.’s rape kit and discovered a full male DNA profile consistent with Ford’s
DNA. Evelyth communicated her confidence in the DNA match with the odds of the
DNA profile on the vaginal swabs and the anal swabs being someone other than Ford is
“one in 12 quadrillion, 120 trillion” unrelated individuals. Evelyth detected another male
DNA profile on A.W.’s underwear, which belonged to A.W.’s boyfriend at the time of
her attack. Evelyth’s conclusions were technically reviewed by two other scientists at
Ford’s Defense
{¶22} Dr. Barry Layton, Ph.D. (“Dr. Layton”) is a neuropsychologist and was the
sole witness for the defense. Dr. Layton testified that he evaluated Ford “in an attempt to
understand [Ford’s] mental state at the time of the rapes and associated crimes that are the
subject of this trial.” In preparing his report for this case, Dr. Layton reviewed: Ford’s
medical records from the Ohio Department of Rehabilitation and Correction, his own
neuropsychological evaluation that he conducted in 2006, a 2005 competency evaluation,
a 2006 sanity evaluation, a 2006 sexual predator evaluation, a March 2016 competency
and sanity report, and an October 2016 sanity evaluation. {¶23} Dr. Layton testified that he conducted a clinical interview of Ford and
administered several psychological tests that resulted in “reasonably normal” findings.
When Dr. Layton interviewed Ford in 2006, he took a “history” from Ford, wherein Ford
told Dr. Layton about his life. When Dr. Layton conducted his 2017 report, he took a
much more extensive history from Ford. As a result, Dr. Layton uncovered more detail
about Ford’s early upbringing, childhood, and adulthood. Dr. Layton also got more
detail as to Ford’s history in the prison system after 2006 until the present. According to
Layton, Ford viewed the earth as a construct where “orchestrators” poisoned his food and
attempted to kill him. The poisoning caused him horrible pains in his body, especially
his abdomen. Ford identified the “orchestrators” as women who not only poisoned him,
but also prevented Ford from receiving the therapy that he needed to get rid of the pain.
According to Ford, the therapy was sex, so Ford used sex as means of therapy for his
condition. Dr. Layton testified that Ford suffered from “acute psychosis” when he
committed the rapes.
State’s Rebuttal Witness
{¶24} The state called Dr. Thomas Swales, Ph.D. (“Dr. Swales”) as a rebuttal
witness to Dr. Layton. Dr. Swales testified that psychosis is a psychiatric symptom, not a
diagnosis. On cross-examination, the state questioned Dr. Layton about malingering (a
gross exaggeration of symptoms of illness to avoid consequence) and if Ford was
malingering. Dr. Swales testified that for every neuropsychological case evaluation, some test for malingering is always administered. Dr. Swales further testified that he has
administered malingering tests hundreds of times.
{¶25} Dr. Swales examined Ford and conducted evaluations to determine Ford’s
competency to stand trial and Ford’s sanity at the time of the act. Dr. Swales testified
that Dr. Layton’s report was not clear on what type of evaluation Dr. Layton was
conducting — evaluation for competency or sanity at the time of the act. Dr. Swales
testified, “it seemed [Dr. Layton’s report] gloss[ed] over a great deal of evidence that [he]
had reviewed that for some reason Dr. Layton had not reviewed.” Dr. Swales further
testified that he had some concerns about Dr. Layton’s report. First, whether all of the
information available in the test data was included in Dr. Layton’s report. Second,
Dr. Swales testified that Dr. Layton diagnosed Ford with a delusional disorder (a
completely irrational belief because of an underlying medical condition), yet Dr. Swales
did not find any evidence in Ford’s medical records of a medical condition. Third, Dr.
Swales was concerned with why Dr. Layton diagnosed Ford with a delusion disorder, but
did not see any analysis of why Ford “would have a delusion that would account for him
allegedly raping women. It didn’t make sense.”
{¶26} Dr. Swales’s review of the examinations and evaluations show a concern
that Ford was malingering psychiatric problems. Dr. Swales opined that Ford did not
have a severe mental disease at the time of the offenses. He further opined that Ford
knew the wrongfulness of his actions at the time of the offenses. Dr. Swales believed
that Ford has a malingered psychosis as opposed to a true psychosis. Most people with psychotic disorders are not able to go to school and not able to work because of the
dysfunction the psychosis creates.
{¶27} At the conclusion of trial, the jury found the defendant guilty of rape as
charged in Counts 1, 3, and 5. The jury also found the defendant guilty of kidnapping as
charged in Counts 2, 4, and 6.
{¶28} The trial court held a sentencing hearing in September 2017, as well as the
sexual predator hearing. The court found Ford to be a sexually violent predator. With
regard to his sentence, the court determined that Counts 1 and 2 do not merge; and Counts
5 and 6 do not merge. The trial court found Counts 3 and 4 merge. For purposes of
sentencing, the state elected to proceed on Count 3. The trial court sentenced Ford to a
sentence of 20 years to life on each remaining count and ran them each consecutively for
an aggregate sentence of 100 years to life. This sentence was run consecutive to Ford’s
existing sentences.
{¶29} Ford now appeals, raising the following six assignments of error for review.
Assignment of Error One
Defense counsel provided constitutionally ineffective assistance by raising a mental state defense that inculpated [Ford] and revealed his multiple prior convictions for rapes to the jury, causing extreme prejudice.
Assignment of Error Two
The trial court erred in failing to grant defense counsel’s motion for mistrial after the State cross-examined a witness regarding [Ford’s] criminal record.
Assignment of Error Three The trial court violated [Ford’s] Sixth Amendment rights in failing to dismiss counts related to an alleged victim that did not appear in court to testify.
Assignment of Error Four
The trial court erred in allowing irrelevant testimony from [Dr.] Wolpaw and [Sergeant] Flaherty regarding the details of [W.W.’s] attack and attacker, which had far greater chance to be prejudicial than probative.
Assignment of Error Five
Insufficient evidence supported [Ford’s] convictions as to W.W.
Assignment of Error Six
The manifest weight of the evidence did not support [Ford’s] convictions as to W.W.
Ineffective Assistance of Counsel
{¶30} In the first assignment of error, Ford argues that defense counsel was
ineffective for presenting the “psychosis defense,” which Ford claims is not recognized in
Ohio. Ford claims this defense prejudicially harmed him because his mental health
history was introduced, which included his prior convictions.
{¶31} In order to establish ineffective assistance of counsel, Ford must
demonstrate that: (1) counsel’s performance fell below an objective standard of
reasonable representation, and (2) he was prejudiced by that performance. Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice
is established when the defendant demonstrates “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
{¶32} A review of the record in the instant case reveals that Ford sought to put his
mental status before the jury. At a pretrial prior to when the trial was set to commence
on October 17, 2016, Ford requested a continuance to further an opportunity to obtain
medical records that would assist with his defense. The trial court initially indicated that
it would not allow a continuance and indicated that trial would start as scheduled. Ford
told the court that he did not want to participate in the trial if the trial court was not going
to give him a fair opportunity to present his case. Trial counsel renewed his request for
a continuance.
{¶33} After further consideration, the trial court granted Ford’s request and
continued the trial to allow Ford to explore the condition of involuntary intoxication or
some other medical condition that could have some impact. Ford was afforded an
opportunity to retain another expert at the state’s expense and was allowed the
opportunity to put Dr. Layton on the stand. While on the stand, Dr. Layton testified that
Ford suffered from “acute psychosis” and also testified that Ford had prior rape
convictions. Dr. Layton’s report, which was introduced into evidence, also referenced
the convictions.
{¶34} By calling Dr. Layton as a defense witness, Ford was provided with the
opportunity he requested — testimony that would assist with his defense. “‘[A]
reviewing court may not second-guess decisions of counsel that can be considered matters of trial strategy. State v. Smith (1985), 17 Ohio St.3d 98, 17 477 N.E.2d 1128.’” State
v. Hines, 8th Dist. Cuyahoga No. 90125, 2008-Ohio-4236, ¶ 21, quoting State v. Baker,
159 Ohio App.3d 462, 466, 2005-Ohio-45, 824 N.E.2d 162 (2d Dist.). Indeed,
“‘[d]ebatable strategic and tactical decisions may not form the basis of a claim of
ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy was
available.”’ Id., quoting Baker.
{¶35} Here, Ford fails to argue what would have happened had defense counsel
decided to forego any expert testimony. Moreover, there was overwhelming evidence of
Ford’s guilt through the DNA evidence. Zielaskiewicz communicated her confidence in
the DNA match with respect to K.H. with the odds of the DNA profile on the vaginal
swabs and the anal swabs being someone other than Ford as “one in 12 quadrillion, 120
trillion unrelated individuals.” Evelyth communicated her confidence in the DNA match
with respect to A.W. with the odds of the DNA profile on the vaginal swabs and the anal
swabs being someone other than Ford as “one in 12 quadrillion, 120 trillion unrelated
individuals.” Evelyth further testified that Ford could not be excluded as a contributor of
the DNA from W.W.’s shirt and, based upon the database, the proportion of the
population that could not be excluded is 1 in 1,441,000 unrelated individuals. Thus, we
cannot say defense counsel was ineffective because the defense Ford wanted to pursue
was unsuccessful.
{¶36} The first assignment of error is overruled
Motion for Mistrial {¶37} In the second assignment of error, Ford argues the trial court should have
declared a mistrial after the state questioned Dr. Layton about Ford’s previous rape
convictions.
{¶38} “The decision whether to grant a mistrial rests within the sound discretion of
the trial court and will not be disturbed absent an abuse of discretion.” State v. Rucker,
8th Dist. Cuyahoga No. 105628, 2018-Ohio-1832, ¶ 18, citing State v. Treesh, 90 Ohio
St.3d 460, 480, 2001-Ohio-4, 739 N.E.2d 749; Crim.R. 33. The granting of a mistrial is
necessary only when a fair trial is no longer possible. Id., citing State v. Franklin, 62
Ohio St.3d 118, 127, 580 N.E.2d 1 (1991).
{¶39} In the instant case, Ford called only one witness to testify at trial — Dr.
Layton. On direct examination, Dr. Layton testified extensively regarding his first
evaluation of Ford in 2006. He further testified that he met with Ford eight times in
connection with the instant case between December 2016 and a week prior to trial. Dr.
Layton testified that his purpose in meeting with Ford was to understand Ford’s mental
state at the time of the rapes. Dr. Layton testified that he took a history from Ford,
wherein Ford described his life in detail to Dr. Layton. Defense counsel asked Dr.
Layton to describe the statements Ford made during his 2017 interviews. Dr. Layton
even testified that he believed Ford’s statements to him were trustworthy. Dr. Layton
testified on direct examination that all of this information came directly from Ford’s
statements and the results of the previous tests he administered on Ford. {¶40} Through Dr. Layton’s testimony, Ford was essentially allowed to testify
without taking the stand. Defense counsel elicited from Dr. Layton numerous and
extensive statements made by Ford himself, on topics such as his childhood, his memories
of the crimes committed in the instant case, and “the orchestrators” — the purported
cause of his behavior. Defense counsel also elicited testimony from Dr. Layton that he
believed Ford’s statements.
{¶41} Thereafter, on cross-examination, the state sought to impeach Ford’s
statements under Evid.R. 806. Evid.R. 806 permits the impeachment of a declarant when
the “hearsay statement, or a statement defined in Evid.R. 801(D)(2), (c), (d), or (e), has
been admitted in evidence, the credibility of the declarant may be attacked, and if attacked
may be supported, by any evidence that would be admissible for those purposes if
declarant had testified as a witness.” Id. at (A). In conjunction with Evid.R. 806,
Evid.R. 609 allows the state to attack the credibility of a witness by evidence of a prior
conviction for the purpose of impeaching that witness.
{¶42} In the instant case, at sidebar, the state reasoned that impeachment of Ford
was proper because defense counsel had effectively elicited Ford’s testimony through Dr.
Layton. As a result, Ford’s own credibility became relevant, especially since Dr. Layton
testified he believed Ford. The trial court agreed with the state and allowed it to question
Dr. Layton regarding whether he was aware that Ford had various convictions. Dr.
Layton testified that he was not “specifically aware” of those convictions, despite previously testifying that he prepared his 2006 report after Ford had been convicted of
eight separate rapes.
{¶43} The trial court found that:
[Dr. Layton] through his direct testimony, did in effect tell the jury what [Ford] told him about his history, about his education, about his employment, about his childhood, many things, so in effect through Dr. Layton [Ford] was in fact testifying. He said he only knew about his education, childhood, et cetera, a good portion of it from that time line that [Ford] supplied to him. He read verbatim to the jury. So in effect since he, [Ford], testified through Dr. Layton, [the state] can then attempt to impeach [Ford] through Dr. Layton.
{¶44} We agree. Ford essentially testified without taking the stand and could be
impeached. Ford’s strategy was to introduce his excuses for his conduct. In light of the
foregoing, we cannot say the trial court abused its discretion when it did not declare a
mistrial after the state questioned Dr. Layton about Ford’s prior rape convictions.
{¶45} Therefore, the second assignment of error is overruled.
Confrontation Clause
{¶46} In the third assignment of error, Ford argues that his right under the Sixth
Amendment to confront his witness was violated when the trial court did not dismiss the
counts relating to W.W., who did not testify at trial. Ford challenges testimony from Dr.
Wolpaw who treated W.W. and Sergeant Flaherty. Ford contends that the statements
made by W.W. to Dr. Wolpaw and Sergeant Flaherty were testimonial and subject to the
Confrontation Clause.
{¶47} The Sixth Amendment’s Confrontation Clause provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.” The United States Supreme Court has interpreted this to
mean that the admission of an out-of-court statement of a witness who does not appear at
trial is prohibited by the Confrontation Clause if the statement is testimonial, unless the
witness is unavailable and the defendant had a prior opportunity to cross-examine the
witness. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004).
{¶48} At issue in the instant case is whether W.W.’s statements contained in her
medical records and her description of Ford were testimonial in nature and therefore
inadmissible under the Sixth Amendment, or whether they were nontestimonial and
admissible
{¶49} Crawford did not define the term “testimonial,” but stated generally that the
core class of statements implicated by the Confrontation Clause includes statements
“made under circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.” Id. at 52.
{¶50} In State v. Stahl, 111 Ohio St.3d 186, 187, 2006-Ohio-5482, 855 N.E.2d
834, the Ohio Supreme Court considered whetherhearsay statements by an adult rape
victim to a nurse working in a specialized medical facility for sexual assault victims were
admissible when the victim was not available to testify at trial. The court adopted the
objective-witness test outlined in Crawford for out-of-court statements made to
non-law-enforcement personnel, and concluded that in determining whether a statement is
testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant when making the statement. Id. at paragraph two of the syllabus.
Applying this objective-witness test, the Stahl court found that the victim’s statements
were made to a medical professional at a medical facility for the primary purpose of
receiving medical treatment and not investigating past events related to criminal
prosecution. Id. at ¶ 25. The court held that the statements made by the rape victim to
the nurse were nontestimonial because the victim “could have reasonably believed that
although the examination conducted at the [sexual assault] unit would result in scientific
evidence being extracted for prosecution purposes, the statement would be used primarily
for health-care purposes.” Id. at ¶ 47.
{¶51} In State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶
63, the Ohio Supreme Court held that the statements of a child victim of sexual assault
made to doctors and counselors about how her father had sexually abused her were not
testimonial and were admissible because they had been made to medical personnel in the
course of medical diagnosis and treatment. The Muttart court held that “[s]tatements
made to medical personnel for purposes of diagnosis or treatment are not inadmissible
under Crawford, because they are not even remotely related to the evils that the
Confrontation Clause was designed to avoid.” Id. The court also noted that “[t]he fact
that the information gathered by the medical personnel in this case was subsequently used
by the state does not change the fact that the statements were not made for the state’s
use.” Id. at ¶ 62. See also State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 41 (“Statements made for medical diagnosis and treatment are
nontestimonial.”).
{¶52} In this case, just as in Stahl and Muttart, the testimony of Dr. Wolpaw was
admissible. Dr. Wolpaw’s primary purpose in speaking with W.W. was for treatment
and diagnosis. Dr. Wolpaw testified that she took a history from W.W. to inform her
treatment of W.W. and to prepare W.W. The statements made by W.W. were in response
to questions by Dr. Wolpaw for the purposes of informing her treatment and preparing her
patient. W.W. stated that she was followed by a man, later identified as Ford, into the
restroom who told her that he wanted to have sex with her and that if she refused he
would hurt her and kill her. W.W. fought with Ford and he hit her in the head, nose,
neck, right eye and stomach.
{¶53} A patient’s statements concerning how the alleged rape occurred can be relevant to show the “general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Evid.R. 803(4). W.W.’s statements about her rape were relevant for medical diagnosis and treatment because they guided medical personnel to the particular area(s) of the her body to be examined for injury, as well as indicate which areas may need more immediate treatment than others. State v. Bowleg, 8th Dist. Cuyahoga Nos. 100263 and 100264, 2014-Ohio-1433, ¶ 19, citing State v. Wallace, 3d Dist. Union No. 14-10-20, 2011-Ohio-1728, citing State v. Menton, 7th Dist. Mahoning No. 07 MA 70, 2009-Ohio-4640, ¶ 51
(“the description of how the [sexual] assault took place, over how long of a period, how many times a person was hit, choked or penetrated, and what types of objects were inserted are all specifically relevant to medical treatment. They are part of the medical history. They are the reason for the symptoms. They let the examiner know where to examine and what types of injuries could be latent.”)
{¶54} Accordingly, we find that the statements made by W.W. to Dr. Wolpaw are
not testimonial because an objective witness under the same circumstances would not have reasonably believed that her statements would be used later for trial. Indeed,
“questioning by a nurse or other medical professional during an emergency-room
examination would appear to serve a primarily health-care-related function.” Stahl at ¶
47.
{¶55} With regard to Sergeant Flaherty’s testimony, we note that his testimony
was as to his involvement in the case. He stated that when he arrived on scene, he
already had a description of a potential suspect. A suspect search was then conducted.
He also learned that W.W. was a student at CSU at the time of the incident. Sergeant
Flaherty’s testimony discussed his involvement of the case, his testimony was not
hearsay, and therefore, it does not violate the Confrontation Clause.
{¶56} Accordingly, the third assignment of error is overruled.
Prejudicial Testimony
{¶57} In the fourth assignment of error, Ford argues that the hearsay statements by
W.W. to Dr. Wolpaw and the police were highly prejudicial and inadmissible under
Evid.R. 403(A), which mandates the exclusion of relevant evidence “if its probative value
is substantially outweighed by the danger of unfair prejudice, of confusion of the issues,
or of misleading the jury.”
{¶58} We note that appellate courts review a trial court’s decision regarding the
admission of any evidence under an abuse of discretion standard. State v. Norton, 8th
Dist. Cuyahoga No. 102017, 2015-Ohio-2516, ¶ 19, citing State v. Sage, 31 Ohio St.3d
173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. {¶59} In the instant case, Ford does not argue how the trial court abused its
discretion in allowing Dr. Wolpaw’s testimony or the testimony of the police. As
discussed above, Dr. Wolpaw’s testimony was proper under Evid.R. 803(4). The
testimony was used to show the treatment of W.W. Additionally, with regard to Sergeant
Flaherty’s testimony, his statements were not offered for the truth of the matter asserted,
but were offered to explain the investigation. Therefore, the trial court did not abuse its
discretion in allowing this evidence to be admitted at trial.
{¶60} Accordingly, the fourth assignment of error is overruled.
Sufficiency of the Evidence — W.W.
{¶61} In the fifth assignment of error, Ford argues the state presented insufficient
evidence to support the convictions involving W.W. because she did not testify at trial.
{¶62} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460,
2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the
evidence as follows:
Raising the question of whether the evidence is legally sufficient to support
the jury verdict as a matter of law invokes a due process concern. State v.
Thompkins (1997), 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
In reviewing such a challenge, “[t]he relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v.
Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶63} We are mindful that, in considering the sufficiency of evidence, a certain
perspective is required. State v. Eley, 56 Ohio St.2d 169, 172, 383 N.E.2d 132 (1978).
“This court’s examination of the record at trial is limited to a determination of whether
there was evidence presented, ‘which, if believed, would convince the average mind of
the defendant’s guilt beyond a reasonable doubt.’” Id., quoting Atkins v. State, 115 Ohio
St. 542, 546, 155 N.E. 189 (1926). It is the minds of the jurors, rather than a reviewing
court, that must be convinced. State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356
(1982).
{¶64} Ford states that he incorporates “the fact and law regarding Crawford” and
argues that there was insufficient evidence that Ford was the perpetrator. Our review of
the evidence reveals otherwise. W.W.’s statements to the police and Dr. Wolpaw and the
photographic evidence of her injuries indicate that she was beaten and raped.
Furthermore, the DNA evidence collected during her sexual assault examination matched
Ford’s DNA. This evidence, when viewed in a light most favorable to the state, is
sufficient to sustain Ford’s convictions relating to W.W. See State v. Echols, 8th Dist.
Cuyahoga No. 102504, 2015-Ohio-5138, ¶ 30-35 (where this court considered the
medical record evidence of a sexual assault victim in rejecting the defendant’s claim that
there was insufficient evidence to convict the defendant.)
{¶65} Thus, the fifth assignment of error is overruled. Manifest Weight of the Evidence — W.W.
{¶66} In the sixth assignment of error, Ford argues his convictions, as they relate
to W.W., are against the manifest weight of the evidence.
{¶67} In contrast to a sufficiency argument, a manifest weight challenge questions
whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No.
92266, 2009-Ohio-3598, ¶ 13, citing Thompkins, 78 Ohio St.3d at 390, 1997-Ohio-52,
678 N.E.2d 541. The Ohio Supreme Court in State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, stated:
[T]he reviewing court asks whose evidence is more persuasive — the state’s or the defendant’s? * * * “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” [Thompkins at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.
{¶68} Moreover, an appellate court may not merely substitute its view for that of
the jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight
grounds is reserved for “‘the exceptional case in which the evidence weighs heavily
against the conviction.’” Id., quoting Martin. {¶69} Ford contends that he was deprived of the opportunity to impeach W.W.’s
credibility because she did not testify at trial. We find his argument unpersuasive. As
stated above, the jury heard that W.W. was followed by Ford into the restroom and then
brutally raped. The DNA evidence in the sexual assault kit matched Ford’s DNA.
Based on this evidence, we cannot say that the “jury lost its way” and this is the
exceptional case in which the evidence weighs heavily against the conviction.
{¶70} Accordingly, the sixth assignment of error is overruled.
{¶71} Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and FRANK D. CELEBREZZE, JR., J., CONCUR