State v. McCluskey

2018 Ohio 4859

• Court: Ohio Court of Appeals
• Decided: December 4, 2018
• Docket: 17CA3604
• Status: Published

Opinion

[Cite as State v. McCluskey, 2018-Ohio-4859.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : : Case No. 17CA3604 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY ERIC MCCLUSKEY, : : Defendant-Appellant. : Released: 12/04/18 _____________________________________________________________ APPEARANCES:

Timothy Young, Ohio State Public Defender, and Nikki Trautman Baszynski, Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Assistant Ross County Prosecuting Attorney, Chillicothe, Ohio, for Appellee. _____________________________________________________________

McFarland, J.

{¶1} This is an appeal from a Ross County Court of Common Pleas

judgment entry convicting Appellant, Eric McClusky, of one count of

felonious assault, a second-degree felony in violation of R.C. 2903.11, one

count of endangering children, a second-degree felony in violation of R.C.

2919.22, and one count of assault, a first-degree misdemeanor in violation of

R.C. 2903.13. On appeal, Appellant contends that the trial court erred when

it admitted statements made to medical professionals by the three-year-old Ross App. No. 17CA3604 2

victim that were irrelevant to medical diagnosis or treatment. Here we

conclude that Appellant failed to preserve this issue for appeal, and because

we fail to find plain error in the trial court's admission of the statements at

issue, Appellant's sole assignment of error is overruled. Accordingly, the

decision of the trial court is affirmed.

FACTS

{¶2} Appellant was indicted on January 6, 2017 by a Ross County

grand jury on one count of felonious assault, a second-degree felony in

violation of R.C. 2903.11, one count of endangering children, a second-

degree felony in violation of R.C. 2919.22, and one count of assault, a first-

degree misdemeanor in violation of R.C. 2903.13. The indictment alleged

that Appellant knowingly caused serious physical harm to the victim, J.H.,

on or about November 10-11, 2016, that he recklessly abused a child under

age eighteen, which resulted in serious physical harm to the child involved,

and also that he knowingly caused physical harm to another, R.H. The

record before us indicates that R.H. is Appellant’s girlfriend and J.H. is

R.H.’s three-year old son.

{¶3} The indictment stemmed from an investigation which was

triggered after J.H. was transported to Adena Medical Center via ambulance,

from his home, with serious injuries that medical staff ultimately determined Ross App. No. 17CA3604 3

were the result of non-accidental trauma, or child physical abuse. A review

of the record reveals that the child resided with his mother and grandmother

at his grandmother’s residence at the time he was injured. Grandmother left

and went to work on the night in question and the child was put to bed in a

bedroom with Appellant while his mother slept on the couch. The following

morning when Grandmother returned from work and was making breakfast,

Appellant came out of the bedroom, ate breakfast, and then stated that

someone might want to check on the child. When R.H. and Grandmother

checked, they discovered the child had wet the bed, his face was swollen, he

had bruising around his eyes and he was not acting normal. Thereafter, as

R.H. began trying to care for her child, an altercation ensued between

Appellant and R.H., resulting in Appellant knocking a plate of food out of

R.H.’s hands and head-butting her, causing an injury to her eye and cheek

bone. Ultimately an ambulance was called for the child, despite protests by

Appellant, who was essentially downplaying the child’s injuries and stating

he would be blamed because he was the only male there.

{¶4} The record indicates that both R.H. and Grandmother reported to

paramedics that the child had suffered an injury while jumping on stumps.

The child also stated he had fallen while playing. However, upon arrival to

the emergency room, the child informed Dr. Jason Collins that “Eric did this Ross App. No. 17CA3604 4

to me in the bathroom” in response to Dr. Collins asking him what

happened, or who had done this to him. Noting extreme swelling of the

child’s face and head, Dr. Collins ordered a CT scan of the head. Thereafter

Nurse Heidi Norman, the sexual assault nurse examiner (SANE), was asked

to evaluate the child. Upon noting multiple bruises, varying in color and

degree, throughout the child’s body, as well as severe swelling of the child’s

head, the nurse asked the child what happened. The child asked if he was

safe, and when reassured he was safe he informed her that “Eric hit my head

off the spicket [sic] in the bath tub over and over again until I fell asleep and

when I woke up he was hitting my head off the bathroom door handle.” The

child also told the nurse that “If Eric doesn’t do it then his mommy does it to

him.” As he was telling her this he held up his fist, which he had to support

with his other hand. After the nurse’s evaluation additional testing was

ordered which revealed a wrist fracture. The record also indicates law

enforcement was present and appeared to have been in the room while the

nurse was taking photographs for inclusion in the medical record.

{¶5} The child was thereafter transferred to Nationwide Children’s

Hospital in Columbus, Ohio. Upon arrival he was examined by Dr. Heather

Williams. Additional testing ordered by Dr. Williams revealed the child also

had a fractured tooth and additional fractures on the hand opposite of the Ross App. No. 17CA3604 5

fractured wrist. Her examination resulted in a determination that the injuries

sustained by the child were the result of non-accidental trauma and that her

medical diagnosis was for “child physical abuse.” Social Worker Tishia

Richardson also spoke with the child while he was at Nationwide Children’s

Hospital. The child told Richardson that his brother, C.H., hurt him and

indicated his mother hurt him with her foot.1 When Richardson asked the

child if “Eric did something” the child nodded yes. Richardson then asked

the child to tell her about it but the child remained silent. The child was

thereafter referred to the Child Protection Center where he was interviewed

by Ashley Muse. The record indicates the interview with Muse was ended

because the child was not participating.

{¶6} The matter went to trial on May 23rd and May 24th, 2017. The

State presented the testimony of Toni Stinson (grandmother), Eric Price

(paramedic), Heidi Norman (Adena Medical Center Emergency Room

SANE), R.H. (the child’s mother), Tishia Richardson (Nationwide

Children’s Hospital Social Worker), Dr. Heather Williams (Nationwide

Children’s Hospital Physician), and Detective John Winfield (Ross County

Sheriff’s Office) in support of its case. The State also presented video

1 The record indicates C.H. was the child’s sibling and also resided in the house with J.H., R.H. and Grandmother. R.H. has four other children between the ages of eight years old and four months old who resided in the house also. It appears that C.H. was six years old at the time of trial and would have been five years old at the time the child made the statements at issue. Ross App. No. 17CA3604 6

deposition testimony of Dr. Jason Collins (Adena Medical Center

Physician). Additionally, Appellant presented one witness in his defense,

Ashley Muse (Child Protection Center Interviewer). The detailed testimony

by the individuals pertinent to this appeal will be fully discussed below

under our analysis of Appellant’s assignment of error.

{¶7} The jury ultimately found Appellant guilty on all counts, as

charged in the indictment. The trial court merged counts one and two for

purposes of sentencing and sentenced Appellant to a seven-year prison term

on count one. The trial court sentenced Appellant to a six-month term of

imprisonment on count three, and ordered the prison terms imposed on

counts one and three to be served concurrently. The trial court also

sentenced Appellant to a mandatory three-year term of post-release control.

It is from the trial court’s June 27, 2017 judgment entry of sentence that

Appellant now brings his timely appeal, setting forth one assignment of error

for our review.

ASSIGNMENT OF ERROR

"I. THE TRIAL COURT ERRED WHEN IT ADMITTED STATEMENTS MADE TO MEDICAL PROFESSIONALS BY THE THREE-YEAR-OLD VICTIM THAT WERE IRRELEVANT TO MEDICAL DIAGNOSIS OR TREATMENT." Ross App. No. 17CA3604 7

Argument

{¶8} In his sole assignment of error, Appellant contends the trial court

erred when it admitted statements made to medical professionals by the

three-year-old victim that were irrelevant to medical diagnosis or treatment.

Appellant asserts that the issue presented for review involves whether, under

Evid.R. 803(4), a court may admit hearsay statements if they were made for

a medical purpose, before considering the "totality of circumstances."

Appellant further questions whether the trial court erred when it admitted

statements from a three-year-old, which were elicited for the purpose of

identifying the person who caused the injuries, when the child's statements

were inconsistent about the cause of injuries. Appellant claims he was

prejudiced as a result of the erroneous admissions of the child’s statements.

Thus, Appellant’s sole assignment of error asserts a violation of state

evidentiary rules. The State contends the statements at issue were properly

admitted under the Evid.R. 803(4) exception to the hearsay rule, as the

child's statements were made to medical professionals for the purposes of

medical diagnosis and treatment.

Preservation of Error for Appeal

{¶9} We initially note that the statements complained of by Appellant

were the subject of a motion to exclude filed prior to trial. A hearing was Ross App. No. 17CA3604 8

held on the motion two months prior to trial and the trial court issued a

ruling from the bench denying the motion to exclude. Although not

specifically titled as such, the motion to exclude was essentially a pre-trial

motion in limine. Evid.R. 103 governs rulings on evidence and the version

in effect at the time of both the motion hearing and the trial provided, in

pertinent part, as follows:

"(A) Effect of Erroneous Ruling. Error may not be predicated

upon a ruling which admits or excludes evidence unless a

substantial right of the party is affected; and

(1) Objection. In case the ruling is one admitted evidence, a

timely objection or motion to strike appears of record stating

the specific ground of objection, if the specific ground was not

apparent from the context; or

(2) Offer of proof. In case the ruling is one excluding

evidence, the substance of the evidence was made known to the

court by offer or was apparent from the context within which

questions were asked. Offer of proof is not necessary if

evidence is excluded during cross-examination."

If a trial court denies a motion in limine, such a decision is simply a

tentative, interlocutory ruling as to whether certain evidence is admissible. Ross App. No. 17CA3604 9

See State v. Grubb, 28 Ohio St.3d 199, 201, 503 N.E.2d 142 (1986); also see

e.g. Gable v. Gates Mills, 103 Ohio St.3d 449, 2004–Ohio–5719, 816

N.E.2d 1049, at ¶ 35. To properly preserve an objection to that specific

evidence for purposes of appeal, an objection to the court's ruling must be

made when the evidentiary issue arises at trial. State v. Hall, 57 Ohio App.3d

144, 145, 567 N.E.2d 305 (8th Dist.1989); State v. Jackson, 4th Dist.

Washington No. 12CA16, 2013–Ohio–2628, ¶ 19; State v. Hafer, 4th Dist.

Hocking No. 87CA21, 1988 WL 118700 (Nov. 3, 1998).

{¶10} Here, although Appellant's pre-trial motion in limine was

denied, he failed to further lodge objections to the admission of the

statements at trial. As will be discussed in more detail below, the record

reflects that several medical professionals, including an emergency room

doctor, a SANE nurse, and a social worker each testified to statements made

to them by the child victim herein while he was a patient at Adena Medical

Center and Nationwide Children's Medical Center, and that Appellant failed

to object to their testimony during trial. Further, many of the statements

testified to by these individuals were contained in the medical records,

which were not expressly included in the pre-trial motion in limine, and

which were admitted without objection during the trial. Thus, we conclude

Appellant has waived all but plain error with respect to the admission of the Ross App. No. 17CA3604 10

child's statements, which were admitted through testimony, as well as

medical records. See Crim.R. 52(B); Evid.R. 103(A)(1) & (D).2

{¶11} Generally, appellate courts take notice of plain error under

Crim.R. 52(B) with the utmost caution, only under exceptional

circumstances and only to prevent a manifest miscarriage of justice. State v.

Gardner, 118 Ohio St.3d 420, 2008–Ohio–2787, 889 N.E.2d 995, ¶ 78; State

v. Patterson, 4th Dist. Washington No. 05CA16, 2006–Ohio–1902, ¶ 13.

Plain error should be noticed if the error seriously affects the fairness,

integrity or public reputation of judicial proceedings. State v. Bundy, 4th

Dist. Pike No. 11CA818, 2012–Ohio–3934, 974 N.E.2d 139, ¶ 66. The

Supreme Court of Ohio has stated that appellate courts should

conservatively apply plain-error review, and notice plain error in situations

that involve more than merely theoretical prejudice to substantial rights.

State v. Steele, 138 Ohio St.3d 1, 2013–Ohio–2470, 3 N.E.3d 135, ¶ 30.

{¶12} We further note that Appellant seems to concede in his

appellate brief that he has waived all but plain error by urging us to employ a

review under Crim.R. 52(B), which governs plain error. However, in

response to the State's notation in its brief that Appellant failed to properly

object to the allegedly offending statements at trial, Appellant then argued in 2 The version of Evid.R. 103 in effect at the time of the underlying proceedings provided in section (D) that "[n]othing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court." Ross App. No. 17CA3604 11

his reply brief that the motion in limine was sufficient to preserve the error

for appeal. Appellant contends that Evid.R. 103(A) further states as follows:

"Once the court rules definitely on the record, either before or

at trial, a party need not renew an objection or offer of proof to

preserve a claim of error for appeal."

{¶13} Nonetheless, Appellant's argument is without merit. Although

Evid.R. 103 was indeed revised and does currently contain this additional

language, the effective date of the revision was July 1, 2017, approximately

two months after Appellant's jury trial took place. Thus, this provision is not

applicable in the present case and did not act to preserve the error for appeal.

Instead, the version of the rule with an effective date of July 1, 1980 was in

effect and required further objection at trial after the denial of the motion in

limine in order to preserve error for review on appeal. Thus, we must

employ a plain error analysis.

Standard of Review

{¶14} Generally, “[d]ecisions involving the admissibility of evidence

are reviewed under an abuse-of-discretion standard of review.” State v.

Wright, 2017-Ohio-9041, 101 N.E.3d 496, ¶ 24 (4th Dist.); quoting Estate of

Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, 989

N.E.2d 35, ¶ 22; citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, Ross App. No. 17CA3604 12

840 N.E.2d 1032; State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972

N.E.2d 528, ¶ 19. When, however, an appellant alleges that a trial court's

evidentiary ruling was “ ‘based on an erroneous standard or a

misconstruction of the law,’ ” an appellate court reviews the trial court's

evidentiary ruling using a de novo standard of review. Wright, supra, at

¶ 25; quoting Wray v. Wessell, 4th Dist. Scioto Nos. 15CA3724 and

15CA3725, 2016-Ohio-8584, ¶ 13; citing Morris at ¶ 16; quoting

Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership, 78 Ohio App.3d

340, 346, 604 N.E.2d 808 (2nd Dist.1992); Med. Mut. of Ohio v. Schlotterer,

122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13 (stating that

“[w]hen a court's judgment is based on an erroneous interpretation of the

law, an abuse-of-discretion standard is not appropriate”); Painter and Pollis,

Ohio Appellate Practice, Appendix G (2015) (stating that although trial court

decisions involving the admission of evidence are generally reviewed as a

discretionary matter, but they are subject to de novo review if a clear legal

rule applies. “For example, a trial court does not have discretion to admit

hearsay into evidence”).

{¶15} Here, however, as set forth above, Appellant failed to preserve

this issue for review and, as a result, this Court is limited to a plain error

review. “To constitute plain error, a reviewing court must find (1) an error Ross App. No. 17CA3604 13

in the proceedings, (2) the error must be a plain, obvious or clear defect in

the trial proceedings, and (3) the error must have affected ‘substantial rights’

(i.e., the trial court's error must have affected the trial's outcome).” State v.

Lewis, 4th Dist. Ross No. 14CA3467, 2015-Ohio-4303, ¶ 9; quoting State v.

Dickess, 174 Ohio App.3d 658, 2008-Ohio-39, 884 N.E.2d 92, ¶ 31 (4th

Dist.); citing State v. Hill, 92 Ohio St.3d 191, 749 N.E.2d 274 (2001), and

State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

Legal Analysis

{¶16} Now, as to the substantive portion of this appeal, we begin by

considering the statements Appellant claims were admitted in error by the

trial court. Appellant claims that several statements made by the child

victim herein, age three, to various medical professionals while he was being

treated in the emergency room at Adena Medical Center and then at

Nationwide Children's Hospital after he was transferred, constituted

inadmissible hearsay. Appellant does not, however, claim a violation of his

right of confrontation. These statements complained of are as follows:

1. “On November 11, 2016, at Adena, J.H. told Dr. Jason

Collins that ‘Eric did this to me in the bathroom.’ ”

2. “On November 11, 2016, at Adena, J.H. told Nurse Heidi

Norman that ‘Eric hit me in the head, with his fist and Ross App. No. 17CA3604 14

when he doesn't hit me, mommy does.’ He also told

Nurse Norman ‘I get hit with the door handle by mommy

and Eric.’ ”

3. “On November 12, 2016, at Nationwide Children's

Hospital, J.H. told Social Worker Tishia Robinson [sic]

that his brother C.H. hurt him. He also told Ms.

Richardson that his mother hurt him with her foot. When

asked whether Mr. McCluskey had hurt him, J.H.

remained silent.”

4. “On November 18, 2016, at the Child Protection Center,

J.H. was asked by Interviewer Ashley Muse whether Eric

punched him. J.H. shook his head no. He was asked

again, and again he shook his head no.”3

As indicated above, the State contends the child's statements were properly

admitted under Evid.R. 803(4) as statements made for medical diagnosis or

treatment.

{¶17} Statements made outside of the courtroom, offered at trial to

prove the truth of what they assert, are generally inadmissible as “hearsay”

unless an exception applies. State v. Knauff, 4th Dist. Adams No. 10CA900, 3 We do not address Appellant's argument regarding the testimony of Ashley Muse as a review of the record reveals that the State did not call Ms. Muse as witness at trial. Ms. Muse was a defense witness. Thus, any error in the admission of her testimony was invited by Appellant. Ross App. No. 17CA3604 15

2011-Ohio-2725, at ¶ 27; Evid.R. 801(C); Evid.R. 802; State v. DeMarco,

31 Ohio St.3d 191, 195, 509 N.E.2d 1256 (1987). Out-of-court statements

made for purposes of medical diagnosis or treatment are hearsay, but are

admissible in court under the hearsay exception provided in Evid.R. 803(4).

Id. Evid.R. 803(4) provides as follows:

“The following are not excluded by the hearsay rule, even

though the declarant is available as a witness:

***

(4) Statements for Purposes of Medical Diagnosis or Treatment.

Statements made for purposes of medical diagnosis or treatment

and describing medical history, or past or present symptoms,

pain, or sensations, or the inception or general character of the

cause or external source thereof insofar as reasonably pertinent

to diagnosis or treatment.”

Such statements are only admissible “insofar as reasonably pertinent to

diagnosis or treatment.” Evid.R. 803(4). Id.

{¶18} Appellant contends that the statements admitted at trial through

the testimony of these medical professionals, to the extent they served to

identify Appellant as the perpetrator, were not pertinent to medical diagnosis

and treatment, and further did not satisfy the reliability threshold of Evid. R. Ross App. No. 17CA3604 16

803(4), as the child made inconsistent statements as to how his injuries

occurred and who caused them. In deciding whether hearsay is reliable

enough for admission under Evid.R. 803(4), courts look at several factors.

As this Court recently noted in State v. Rutherford, 4th Dist. Pike No.

17CA883, 2018-Ohio-2638, at ¶ 19:

“ ‘The first “factor” is the “selfish-motive” doctrine, i.e., “the

belief that the declarant is motivated to speak truthfully to a

physician because of the patient's self-interest in obtaining an

accurate diagnosis and effective treatment.” Id. quoting State v.

Muttart, 116 Ohio St.3d 5, 2007–Ohio–5267, 875 N.E.2d 944,

at ¶ 34, citing State v. Eastham, 39 Ohio St.3d 307, 312, 530

N.E.2d 409 (1988) (Brown, J., concurring). Another factor

courts consider is the medical professional's subjective reliance

on the statement, because “physicians, by virtue of their

training and experience, are quite competent to determine

whether particular information given to them in the course of a

professional evaluation is ‘reasonably pertinent to diagnosis or

treatment [,]’ and are not prone to rely upon inaccurate or false

data in making a diagnosis or in prescribing a course of

treatment.” Id. at ¶ 41, 530 N.E.2d 409, quoting King v. People Ross App. No. 17CA3604 17

(Colo.1990), 785 P.2d 596, 602. In Muttart, the Supreme Court

of Ohio observed that the professional reliance factor is of

“great import” in cases of child abuse. Id.’ ” Quoting State v.

Knauff, supra, at ¶ 28.

{¶19} The Muttart Court also provided a non-exhaustive list of

additional factors that a court should weigh when considering whether out-

of-court statements obtained from a young child are admissible under this

exception:

“ ‘(1) Whether medical professionals questioned the child in a

leading or suggestive manner and whether the medical

professional followed proper protocol in eliciting a disclosure

of abuse;

(2) Whether the child had a reason to fabricate, e.g., a pending

legal proceeding or bitter custody battle;

(3) Whether the child understood the need to tell the medical

professional the truth; and

(4) Whether the age of the child could indicate the presence or

absence of an ability to fabricate a story.’ ” Rutherford at ¶ 20;

quoting Knauff at ¶ 29; quoting Muttart at ¶ 49. Ross App. No. 17CA3604 18

{¶20} In this case, for the reasons that follow, we cannot conclude that

the trial court committed plain error in admitting the statements of the

medical professionals listed above. First, we conclude the statement made

by the child to Dr. Jason Collins at the emergency room at Adena Medical

Center was admissible as a statement made for medical diagnosis and

treatment. The transcript from the motion hearing held before trial reveals

that Dr. Collins, in order to determine “the mechanism of injury,” asked the

child either “what happened” or “who did this to him” and the child

responded “Eric did this to me in the bathroom.” When asked why the name

of the individual who inflicted the injury was important, Dr. Collins

answered “* * * it’s important we find out who it is so we make sure that we

don’t discharge the child in the hands that could have done this to them to

protect the child who is unable to protect themselves.” Dr. Collins further

testified that it was important to understand whether an adult or a child

inflicted the injuries, because if it was an adult “we’d order extensive cat-

scans because there could be a lot more internal injuries that you wouldn’t

pick up on. Like just simple x-rays, if it was another child pushing him or

hitting them.” Dr. Collins conceded on cross-examination that the name of

the actual adult was not medically necessary strictly for medical treatment,

but maintained it was pertinent as to the question of whether “am I Ross App. No. 17CA3604 19

discharging him back into the same person that caused the injuries.” Dr.

Collins further testified that based upon the child’s statement that Appellant

injured him, he ordered CT scans of the child’s brain and spine and made the

decision to transport him to Nationwide Children’s Hospital.

{¶21} With respect to the part of the child’s statement that identified

Appellant as the perpetrator, statements by children regarding the identity of

their abusers are routinely admitted as being pertinent to medical diagnosis

and treatment, especially in situations involving sexual abuse. Evid.R.

803(4) (provides for admission of statements that describe “the inception or

general character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment”); see also State v.

Rutherford, supra, at ¶ 28; citing State v. Robinson, 4th Dist. Pickaway No.

85-CA-12, 1986 WL 11935 (Oct. 22, 1986). Further, in State v. Arnold, 126

Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 32, the Supreme Court

of Ohio noted that in child sexual abuse cases, “information regarding the

identity of the perpetrator, the age of the perpetrator, the type of abuse

alleged, and the time frame of the abuse allows the doctor or nurse to

determine whether to test the child for sexually transmitted infections.” Just

as the identity of the perpetrator is relevant or pertinent in the area of sexual Ross App. No. 17CA3604 20

abuse of children, we believe it is just as pertinent in the area of physical

abuse of children.

{¶22} Based upon the foregoing, we conclude the manner in which

the doctor questioned the child was not leading or suggestive. Further, there

are no factors present here to suggest the child had a motive to fabricate.

The child made the statement to the physician in answer to a direct question

and made the statement after being transported to the emergency room via

ambulance, which setting lends itself to a determination that the child

understood, to the extent a three year old can understand, the need to be

truthful. Finally, the young age of the child here, in our view, would

indicate the absence of an ability to fabricate. As such, we conclude the

statement the child made to Dr. Collins in the emergency room was

admissible as a statement made for purposes of medical diagnosis and

treatment and was properly admitted under Evid.R. 803(4).

{¶23} Second, we conclude the statements made by the child to Nurse

Heidi Norman at the emergency room at Adena Medical Center were

admissible as statements made for medical diagnosis and treatment.

Appellant challenges the admission of two different statements the child

made to Nurse Norman, 1) “Eric hit me in the head, with his fist and when

he doesn't hit me, mommy does;” and “I get hit with the door handle by Ross App. No. 17CA3604 21

mommy and Eric." Appellant challenges the part of the statements

identifying him as the perpetrator, and also points to the child’s

inconsistency regarding who inflicted his injuries, suggesting that the

statements were unreliable. Appellant also argues the nurse’s interview of

the child was not for medical purposes, claiming that a police detective was

in the room when she was talking to the child.

{¶24} We initially note that the record contradicts Appellant’s

assertion regarding the presence of the detective. Nurse Norman testified

that the only person present in the room with her when she spoke to the child

was a social worker. Although the medical records indicate the detective

was in the room when the nurse took photographs of the child for inclusion

in the medical records, there is no indication that he was in the room when

the child made the statements, or that the detective directed her acts of

taking photographs. In fact, the detective took separate photographs for

investigatory purposes. Further, Nurse Norman testified that the questions

she asked the child were geared towards discovering the “mechanism of

injury” and to medically treat the child. She testified that she simply asked

the child how he obtained his injuries. In response, the child asked her if he

was safe. Once she confirmed he was safe, the child answered her question.

She further testified that her notes were entered into the system for review Ross App. No. 17CA3604 22

by the physician and that based upon her observations and evaluation of the

child, additional tests were ordered which revealed a wrist fracture.

{¶25} Importantly, aside from the statements complained-of above,

Nurse Norman also testified at trial as follows:

“Jonathan said Eric hit my head off the spicket in the bath tub

over and over again until I fell asleep and when I woke up he

was hitting my head off the bathroom door handle.”

Appellant did not object to this additional testimony that occurred at trial

that appears to have supplemented the statement contained in the medical

record, nor does he challenge this statement on appeal.

{¶26} Based upon the foregoing, and for the same reasons we find the

statement made to Dr. Collins was admissible, we find these statements to be

admissible as well. Nurse Norman’s questions were not asked in a leading

or suggestive manner, there are no factors present indicating a reason to

fabricate, and the child’s young age suggests an inability to fabricate.

Further, the fact that the child asked if he was safe suggests he understood

the nurse was there to help him and that he needed to tell the truth.

{¶27} At this stage we address Appellant’s argument that the child’s

statements were sometimes inconsistent as to how he was injured and who

injured him. First, Nurse Norman testified that the child was essentially Ross App. No. 17CA3604 23

covered in bruises that varied in color, suggesting different stages of healing.

The child also had multiple fractures and other injuries. He had skull and

orbital fractures, a wrist fracture and later diagnosed partially-healed hand

fractures, as well as a fractured tooth. It may have been difficult for the

child to differentiate who caused which injury and at what time. Further, the

medical records, testimony and photographs indicate the child was severely

injured. His head was swollen and bruised and one of his eyes was

completely swollen shut. He had multiple bruises all over his body, literally

from his head to his feet. Clearly this child had suffered a multitude of

injuries and was physically compromised at the time he was taken to the

emergency room.

{¶28} Appellant also argues that the child initially reported to a

paramedic that he was injured while playing, a statement which was

corroborated by his mother and grandmother, who stated the child had fallen

while jumping on stumps, and that this inconsistency with the statements he

made to Dr. Collins and Nurse Norman call into question the reliability of

his statements. The record indicates that he made the initial statement to the

paramedic while he was in the presence of his mother. His mother was not

present when he made the statements to the emergency room staff. As noted

in State v. Muttart, supra, at ¶ 41: Ross App. No. 17CA3604 24

“We are aware, of course, of the possibility that parents of

abused children may give false information to a physician,

including denials or deliberate misidentifications, see United

States v. Yazzie (C.A.9, 1995), 59 F.3d 807, 813, and that a

victim might deny abuse to the physician, particularly when in

the company of the abuser. Such falsehoods may be a survival

strategy or may reflect a complex psychodynamic or

phenomena that untrained persons may not understand fully.

Although physicians and psychotherapists are not infallible

when diagnosing abuse, we believe that their education,

training, experience, and expertise make them at least as well

equipped as judges to detect and consider those possibilities.

Accord [State v. Dever, 64 Ohio St. 3d 401, 411, 596 N.E.2d

436]; cf. Parham v. J.R. (1979), 442 U.S. 584, 609, 99 S.Ct.

2493, 61 L.Ed.2d 101.”

Thus, the statement made to the paramedic may have been made as result of

the child’s survival instincts, as later indicated when he asked Nurse Norman

if he was safe. Further, the record indicates the child’s mother was still

under investigation at the time of Appellant’s trial. However, the possibility

that she may have also played a role in the child’s injuries does not negate Ross App. No. 17CA3604 25

the statements the child made regarding Appellant, especially as to the

critical and recent injury which led him to be transported to the hospital.

{¶29} Next, we consider Appellant’s argument regarding the child’s

statements to Social Worker Tishia Richardson in the emergency room at

Nationwide Children’s Hospital. Appellant points to the child’s statements

to Ms. Richardson, which were made after he was transferred, and which

indicated that his brother, C.H., hurt him, that his mother hurt him with her

foot, and when asked whether Appellant hurt him, the fact that the child

remained silent, as further examples of the child’s inconsistency. Again, for

purposes of admissibility, these statements were also made for medical

treatment and diagnosis, as testified to by Ms. Richardson herself. For all

the same reasons the statements made to Dr. Collins and Nurse Norman

were admissible, so were these.

{¶30} A review of trial transcripts does indicate the child told Ms.

Richardson that C.H. hurt him. When asked if a big person also hurt him he

said “mommy.” When she asked him to tell her more about mommy the

child pointed to his foot. Ms. Richardson then asked if his mommy hurt his

foot and he said “no, mommy’s foot” and pointed to his chest area, but he

did not elaborate. Finally, when Ms. Richardson asked the child if “Eric did

something” the child nodded yes. She then asked the child to tell her about Ross App. No. 17CA3604 26

it but the child remained silent. Ms. Richardson testified that she did not

specifically ask the child if Appellant had hurt him. Again, although there

was some inconsistency related to the child naming C.H., the child was

consistent in also identifying his mother and Appellant. Contrary to

Appellant’s assertion, Ms. Richardson did not specifically ask if Appellant

hurt him. Rather, when asked if Eric “did something” the child nodded yes,

but then refused to elaborate. We cannot conclude, based upon the record,

that Ms. Richardson’s testimony contained statements by the child revealing

an extent of inconsistency indicating a lack of reliability. Further, because

these statements were admitted, the jury was able to hear, consider and

properly weigh any inconsistency when making its decision.

{¶31} Finally, as indicated above, we do not consider Appellant’s

arguments regarding the admissibility of statements made to Ashley Muse at

the Child Protection Center, as she was called by the defense, not the State.

Any error in the admission of her statements would have been invited by

Appellant. Regarding Appellant’s assertion there was another inconsistency

due to the fact that the child shook his head no when asked if Appellant

punched him, we note that the child reported to Nurse Norman that

Appellant had hit him, and that when Appellant didn’t, that his mommy did.

When the child made this statement to Nurse Norman he held up his fist. Ross App. No. 17CA3604 27

Thus, the child never used the word “punched” in describing how he had

sustained his injuries. Further, although Appellant asserts the child shook

his head no when asked if Appellant had ever punched him, Appellant

mischaracterizes the testimony of Ashley Muse. The trial transcript

indicates the following testimony by Ms. Muse in response to defense

counsel’s questioning. Although lengthy, we believe setting forth the

following testimony is vital to a proper analysis of this portion of

Appellant’s argument.

“Q: At some point you started asking him questions?

A: Yes.

Q: And you asked him if Eric punched him?

A: I don’t recall that specifically.

Q: You asked him twice about Eric injuring him, correct?

A: I recall asking about the cast and his eye injury.

Q: Okay but you don’t recall saying or asking him if Eric

punched him?

A: I don’t recall.

Q: Did you ask him if Eric caused him an injury?

A: I believe so.

Q: And his response was a shake of the head negative? Ross App. No. 17CA3604 28

A: Correct.

Q: Okay and you asked him a second time about Eric causing

Eric hurting him and he again shook his head no.?

Q: And you didn’t ask him about any other persons who may

have hurt him?

A: I didn’t.

Q: Is there anything that would refresh your recollection about

what you asked or what he said?

A: I’m sure the video.

Q: Okay but short of watching the video, did you take notes of

it?

A: I did.

Q: Did you bring those with you?

Q: Would thos [sic] refresh your recollection about you asking

him any questions?

A: Probably.

Q: Okay, well, if you want to look at those and see if they

refresh your recollection? Ross App. No. 17CA3604 29

A: They don’t say specifically about asking questions about

Eric punching or doing something to him.

Q: Okay but they do indicate that you asked if Eric injured

him?

A: They do not. I can read what my notes say if you would

like.

Q: No, but the purpose of the interview was to determine

whether or not if Eric injured him or hurt him?

A: No. The purpose of the interview was to see what

happened.

Q: Okay but you didn’t ask him about his mother injuring him?

A: No I did not.

Q: You’re unsure exactly what you asked Jonathon?

A: Not exactly my questions, I can read through my notes, but

–

Q: Well, we’ll try going back through this again. Did you ask

him if Eric punched him?

A: I don’t recall saying ‘punch’.

Q: Okay did you ask him if Eric did anything to hurt him? Ross App. No. 17CA3604 30

Q: He shook his head no?

A: Correct.”

{¶32} However, on re-direct examination Ms. Muse testified that

because the child was not participating in the interview and did not want to

talk about his injuries, she ended the interview. This testimony appears as

follows:

“Q: And part of the reason this interview was only eight to ten

minutes long was you got the answers you didn’t want

which were shakes of the head no and you ended it?

A: That’s not correct.

Q: But you didn’t ask him about his mother injuring him did

you?

A: He wasn’t participating in the interview so I ended it.

Q: Well, what’s participating? You asked a question ‘Did Eric

injure you’ and he shook his head no.

A: Generally when a child has visible injuries and you ask

them about those injuries, you try to get them to open up

and talk about that, he was not wanting to do that.” Ross App. No. 17CA3604 31

{¶33} Further, on cross-examination the State was able to draw out

testimony from Ms. Muse that aside from answering a few questions during

the rapport-building part of her interview with the child, the child did not

answer any substantive questions or otherwise participate in the interview.

Thus, it is unclear from our review of the record whether the child was

affirmatively denying Appellant had injured him, or whether he was refusing

to answer the questions posed to him. It appears from Ms. Muse’s testimony

that she construed his actions as not participating. Regardless, to the extent

this testimony indicated an inconsistency in the child’s statements, the jury

was able to hear, evaluate and weigh that inconsistency in their

deliberations.

{¶34} Additionally, at least with respect to the statements made to Dr.

Collins, Nurse Norman, and Social Worker Tishia Richardson, the

statements were not only submitted to the jury through the testimony of the

individual witnesses, but also through the medical records, which were not

the subject of the pre-trial motion in limine, and were admitted without

objection at trial. As a general rule, authenticated medical records are

admissible at trial. State v. Kingery, 12th Dist. Fayette No. CA2009-08-014,

2010-Ohio-1813, ¶ 32. “Although potentially replete with hearsay

problems, medical records are admissible under the exception to hearsay rule Ross App. No. 17CA3604 32

for records of regularly conducted activity set forth in Evid.R. 803(6). Id.;

citing State v. Humphries, 79 Ohio App.3d 589, 607 N.E.2d 921 (1992). As

further explained in Kingery, “[a]bsent some evidence that the identity of the

perpetrator is necessary for medical purposes, however, statements

identifying an assailant are not properly admitted pursuant to Evid.R. 803(4)

and Evid.R. 803(6), unless there was an independent basis for their

admission.” Id. at ¶ 34; citing State v. Smith, 8th Dist. Cuyahoga No. 90476,

2008-Ohio-5985, ¶ 38; in turn citing Mastran v. Ulrich, 37 Ohio St.3d 44,

48, 523 N.E.2d 509 (the identity of the person who struck [the victim] was

not reasonably pertinent to diagnosis or treatment).

{¶35} Here, however, we have already determined that the identity of

the person who injured the child was reasonably pertinent to medical

diagnosis and treatment, as it guided the determination as to what type of

testing and the extent of testing that needed to be ordered, and also due to

the need to establish a safe discharge plan for the child. Further, and

importantly, not only did Appellant fail to object to the admission of the

medical records during trial, he raises no argument regarding their admission

on appeal. Thus, to the extent the medical records were properly in

evidence, it can reasonably be stated that the testimony of the medical

professionals, which included the same statements of the child as contained Ross App. No. 17CA3604 33

in the medical records, was largely duplicative. Thus, assuming arguendo

the statements of the child were improperly admitted through the testimony

of the medical professionals, any error was harmless in light of the

admission of the medical records.

{¶36} Moreover, and although Appellant does not challenge the

admission of the child's statements at issue based upon Confrontation Clause

grounds, the United States Supreme Court recently held that a three-year-old

child's statements made to his preschool teacher indicating he had been

physically abused by his mother's boyfriend were not testimonial. Ohio v.

Clark, 135 S.Ct. 2173, -- U.S. -- (2015). In reaching its decision, the Court

reasoned that the statements “were not made with the primary purpose of

creating evidence for Clark's prosecution[,]” and that the statements

“occurred in the context of an ongoing emergency involving suspected child

abuse.” The Clark court further noted as follows in reaching its decision:

“* * * their [the teachers] questions and L.P.’s answers were

primarily aimed at identifying and ending the threat. * * * The

teachers’ questions were meant to identify the abuser in order to

protect the victim from future attacks.” Id. at 2181”

{¶37} Again, although Appellant does not challenge the child's

statements on Confrontation Clause grounds here, the reasoning of the Court Ross App. No. 17CA3604 34

set forth in Clark is applicable to the question of the reliability of the

statements made by the child, which is a factor for consideration under the

Muttart analysis. For instance, the Clark Court stated that the child' age (age

three, the same as the child victim in this case) “further confirms that the

statements in question were not testimonial because statements by very

young children will rarely, if ever, implicate the Confrontation Clause.” Id.

at 2176. The Court further noted that “[a]s a historical matter, moreover,

there is strong evidence that statements made in circumstances like these

were regularly admitted at common law.” Id.

{¶38} The Court opined that the question presented involved “whether

statements made to persons other than law enforcement officers are subject

to the Confrontation Clause.” Id. at 2180. Ultimately, the Court reasoned

that statements made to teachers were not like statements made to law

enforcement, as there was no indication the teacher's primary purpose was to

gather evidence, but instead their objective was to identify the abuser in

order to protect the child, in part because “they needed to know whether it

was safe to release [the child] to his guardian at the end of the day.” Id. at

2181. The same rationale applies here. Three of the four medical

professionals who testified at trial stated that identifying the abuser was

relevant to medical diagnosis and treatment, not only because it would guide Ross App. No. 17CA3604 35

the extent of the testing ordered, but also because they needed to be sure

they didn't release the child to the abuser.4 As set forth above, “physicians,

by virtue of their training and experience, are quite competent to determine

whether particular information given to them in the course of a professional

evaluation is ‘reasonably pertinent to diagnosis or treatment [,]’ and are not

prone to rely upon inaccurate or false data in making a diagnosis or in

prescribing a course of treatment.” State v. Eastham, supra at ¶ 41 (internal

citations omitted).

{¶39} The Clark Court further reasoned that the fact the teachers had

mandatory reporting obligations “cannot convert a conversation between a

concerned teacher and her student into a law enforcement mission aimed

primarily at gathering evidence for prosecution.” Id. at 2183. Again, this

reasoning is applicable to first responders in the form of emergency room

doctors, nurses and social workers charged with trying not only to medically

treat a child, but also charged with providing effective and safe discharge

planning, and who are also statutory mandatory reporters. Here, these

medical professionals cooperated with law enforcement and contacted

4 Doctor Heather Williams at Nationwide Children’s Hospital testified it was not her role to determine who did the abuse, but rather her role was to “make a medical assessment of my interpretation of the injuries, but it is not my role to determine who did it.” However, Dr. Williams also noted in her testimony that Tishia Richardson was involved in “discussion formulating a safety plan with Chidren [sic] Services and they were considering any concerns they might have had about mom at the time.” The State notes that Dr. Williams and Dr. Collins had differing roles. While Dr. Collins was the emergency room physician tasked with treating the child’s injuries, Dr. Williams’ role was to offer an opinion as to whether the injuries were accidental or intentional. Ross App. No. 17CA3604 36

Children's Services as part of their mandatory reporting obligations. This

conduct did not convert the primary purpose of their interactions with the

child to one of collection of evidence for later prosecution, rather than

obtaining pertinent information, including the identity of the abuser, for

medical diagnosis and treatment purposes, which we believe includes

establishing a safe discharge plan for the child.

{¶40} In light of the foregoing, we cannot find that the trial court

erred, let alone committed plain error, in admitting any of the individual

statements complained of by Appellant. As such, his sole assignment of

error is overruled. Accordingly, the decision of the trial court is affirmed.

JUDGMENT AFFIRMED. Ross App. No. 17CA3604 37

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that costs be assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J. & Harsha, J.: Concur in Judgment and Opinion.

For the Court,

BY: ______________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.