IN THE SUPREME COURT OF OHIO In re C.S., appellant. Case No. 12-1405 On Appeal from the Franklin County Court of Appeals, Tenth Appellate District Court of Appeals Case No. 11AP-667 MEMORANDUM OF APPELLEE, THE STATE OF OHIO, IN OPPOSITION OF JURISDICTION RON O'BRIEN 0017245 Franklin County Prosecuting Attorney and KATHERINE PRESS 0023422 (COUNSEL OF RECORD) Assistant Prosecuting Attorney 373 South High Street, 13' floor Columbus, Ohio 43215 (614) 525-4440 (614) 525-6072 (fax) kjpress@franklincountyohio.gov COUNSEL FOR APPELLEE, THE STATE OF OHIO YEURA R. VENTERS 0014879 Franklin County Public Defender and TIMOTHY E. PIERCE 0041245 (COUNSEL OF RECORD) 373 S. High Street, 12th floor Columbus, Ohio 43215 (614) 525-8857 COUNSEL FOR APPELLANT, C.S. (,i.tl{jt±jt i;tluftt SUPRLE COUi 7 Ur JHftJ
TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION NOR IS IT OF PUBLIC OR GREAT GENERAL INTEREST 1 STATEMENT OF THE CASE AND THE FACTS 2 PROPOSITION OF LAW ONE 4 STATEMENTS MADE FOR THE PURPOSE OF MEDICAL DIAGNOSIS AND TREATMENT ARE NON-TESTIMONIAL IN NATURE AND ARE ADMISSIBLE PURSUANT TO EVIDENCE RULE 803(4). STATE v. ARNOLD, 126 OHIO ST. 3D 290, FOLLOWED. PROPOSITION OF LAW TWO 8 RELEVANT CORROBORATING EVIDENCE NOT OBJECTIONABLE ON SPECIFIC EVIDENTIARY GROUNDS IS PROPERLY ADMITTED. CONCLUSION 0 CERTIFICATE OF SERVICE 11
TABLE OF AUTHORITIES CASES: Crawford v. Washington, 541 U.S. 36, 59; 124 S. Ct. 1354, fn. 9(2004) 4 In rem.e.g., Tenth Dist. Nos. 06AP-1256, 06AP-1257, 06AP-1258, 06AP-1259, 06AP-1263, 06AP-1264, 06AP-1265, P32, 2007-Ohio-4308 In re T.L, 127 Ohio St. 3d 9, 2010-Ohio-4936, 935 N.E.2d 840 8 State v. Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144 (1980) 5 State v. Arnold, 126 Ohio St. 3d 290, 2010-Ohio-2742 4 State v. Ball, 07AP-818, 2008-Ohio- 2648, P21 5 State v. Bays, 87 Ohio St. 3d 15, 1999-Ohio-216. 7 State v. Cashin, Tenth Dist. No. 09AP-367, *P16, 2009-Ohio-6419 5 State v. Conway, 109 Ohio St. 3d 412, *P59, 2006-Ohio-2815, 848 N.E.2d 810 7 State v. Daniels, First Dist. No. C-090566, 2010-Ohio-5258 7 State v. Dever, 64 Ohio St. 3d 401, 1992-Ohio-41, 596 N.E.2d 436 1 State v. Edinger, Franklin App. No. 05AP-32, 2006-Ohio-1527 5 State v. Gutierrez, Third Dist. No. 5-10-14, 2011-Ohio-3126 6 State v. Hurst, Tenth Dist. No. 98AP-1549 (March 7, 2000) 8 State v. Hymore, 9 Ohio St. 2d 122, 128, 224 N.E.2d 126 (1967) 4 State v. Jordan, Franklin App. No. 06AP-96, 2006-Ohio-6224 5 State v. Just, Ninth Dist. No. 12CA0002, 2012-Ohio-4094 6 State v. Knauff, Fourth Dist. No. 10CA900, 201-Ohio-2725 6 State v. Lancaster, 25 Ohio St. 2d 83, 267 N.E.2d 291, syllabus four (1971) 8 State v. Marrero, Tenth Dist. No. 10AP-344, 2011-Ohio-1390 4 ii
TABLE OF AUTHORITIES, continued State v. Muttart, 116 Ohio St. 3d 5, 2007-Ohio-5267 4 State v. Parsons, Tenth Dist. No. 06AP-410, 2007-Ohio-1204 7 State v. Rucker, First Dist. No. C-110082, 2012-Ohio-185 6 State v. Tomlinson, 33 Ohio App. 3d 278, 281, 515 N.E.2d 963 (1986) 7 State v. Wallace, Third Dist. No. 14-10-20, 201 1-Ohio-1728 6 State v. Wallace, Union App. No. 14-10-20, *P18, 2011-Ohio-1728 6 State v. Stowers, 81 Ohio St. 3d 260, 1998-Ohio-632 8 United States v. Sumner, 204 F.3d 1182, 1185 (8th Cir. 2000) 9 STATUTES: Ohio Rules of Evidence, Rule 801 8 Ohio Rules of Evidence, Rule 803 5 Staff Note, Evid. R. 801(D)(1)(c) 8 iii
EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION NOR IS IT OF PUBLIC OR GREAT GENERAL INTEREST This Court has consistently ruled that statements made for purposes of medical diagnosis and treatment are, within the discretion of the court, properly admitted pursuant to Evidence Rule 803(4). See, State Y. Arnold, 126 Ohio St. 3d 290, 2010-Ohio-2742, State v. Muttart, 116 Ohio St. 3d 5, 2007-Ohio-5267, State v. Dever, 64 Ohio St. 3d 401, 1992-Ohio-41, 596 N.E.2d 436. Absent a demonstration of improper influence, a child's statement in these circumstances is admissible and the juvenile magistrate, as the trier of fact, is entitled to accord whatever weight to the statement he determines appropriate. Id., at 413. Evid. R. 801(D)(1)(b) is irrelevant to this discussion because, at trial, the child's statement was admitted pursuant to Evid. R. 803(4). Appellant's claim that such corroborating statements are inadmissible merely because they are, to some degree, cumulative to the victim's in-court identification is contrary to the Rules of Evidence and the essential purpose of a trial with the presentation of multiple witnesses providing evidence from unique experiences and perspectives. Appellant's unhappiness with the decision below is insufficient to compel further review. This case does not involve a substantial constitutional question nor is it of great public or general interest as prevailing law resolves appellant's claims. Appellee, the State of Ohio, respectfully requests that jurisdiction be denied. 1
STATEMENT OF THE CASE AND THE FACTS Appellee, the State of Ohio, accepts appellants Statement of the Case and Facts with the following additions and clarifications: During Kerri Marshall Wilkinson's interview of Z.J., the victim in this case, a prosecuting attomey was not present and one Sexual Abuse detective observed. Marshall Wilkinson did not recall whether she spoke to the officer while the interview was taking place. Marshall Wilkinson's interview, after gathering biographical information from Z.J., began as follows: Kerri Wilkinson: No one else? Okay. And, how come you're in here today? Z.J.: Because when I was up in my in my grandma's house, there was a problem that had (inaudible) her nephew and her grandson. Kerri Wilkinson: One of her nephew and grandson or her - Z.J.: Her grandson. Kerri Wilkinson: Oh, okay. And, which grandma is this? Z.J.: (inaudible). KerriWilkinson: Okay. And who's her grandson that there was a problem with? Z.J.: Charles. KerriWilkinson: Okay. Do you know his last name? Z.J.: Stanford. Kerri Wilkinson: Stanford? How old is Charles Stanford? Z.J.: 17. Kerri Wilkinson: Uh-huh (affirmative response), okay. And, when did this happen? Z.J.: Last - last Thursday-Thursday night (inaudible). I woke up and when I opened my eyes up - I opened my eyes and (inaudible) on the bed and then when I went back to sleep he started touching me. 2
No law enforcement officer was present during the interview and no law enforcement officer suggested questions to be asked. Z.J. testified that her grandmother was in her chair, asleep, during the assault. 3
PROPOSITION OF LAW ONE STATEMENTS MADE FOR THE PURPOSE OF MEDICAL DIAGNOSIS AND TREATMENT ARE NON-TESTIMONIAL IN NATURE AND ARE ADMISSIBLE PURSUANT TO EVIDENCE RULE 803(4). STATE v. ARNOLD, 126 OHIO ST. 3D 290, FOLLOWED. Initially, it must be recognized that the Confrontation Clause is not implicated in this case. The victim testified and was subject to cross-examination. When the declarant appears for cross-examination at trial, "the Confrontation Clause placed no constraints at all on the use of his prior testimonial statements." Crawford v. Washington, 541 U.S. 36, 59; 124 S. Ct. 1354, fn. 9(2004). "The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." Id. See also, State v. Marrero, Tenth Dist. No. 10AP-344, 2011-Ohio-1390. Even when a victim does not testify, statements made for the purpose of medical diagnosis and treatment are non-testimonial in nature and are admissible pursuant to Evidence Rule 803(4). State v. Arnold, 126 Ohio St. 3d 290, 2010-Ohio-2742. "Statements 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." State v. Muttart, 116 Ohio St. 3d 5, 2007- Ohio-5267. The out-of-court statement from the victim, Z.J., was admitted pursuant to Evidence Rule 803(4). "The trial court has broad discretion in the admission and exclusion of evidence and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, [an appellate] court should be slow to interfere." State v. Hymore, 9 Ohio St. 2d 122, 128, 224 N.E.2d 126 (1967). See also, State v. Dever, supra, 64 Ohio St. 3d at 410. An abuse of discretion is more than mere error; abuse of discretion connotes a 4
decision that was arbitrary, unconscionable, or unreasonable. State v. Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144 (1980). In this case, the victim was interviewed at Children's Hospital by Kerri Marshall Wilkinson preliminarily to the child's medical examination by the doctor. The interview was not scheduled by the police detective who was later assigned to the case and the detective did not discuss the matter with the child's guardian until after the medical exam was completed. The detective observed the interview but was not involved in the interview itself and did not suggest questions to Marshall Wilkinson for her to ask to illicit additional information. Statements are properly admitted pursuant to Evid. R. 803(4) when the purpose for the statement is for the initiation of medical diagnosis or treatment. State v. Cashin, Tenth Dist. No. 09AP-367, *P16, 2009-Ohio-6419. That other people, including a police detective, observe the interview via closed-circuit television does "'not change the essential purpose of the interview' and render the child victim's statements to a social worker inadmissible under Evid. R. 803(4)." State v. Ball, 07AP-818, 2008-Ohio- 2648, P21, citing State v. Jordan, Franldin App. No. 06AP-96, 2006-Ohio-6224 and State v. Edinger, Franklin App. No. 05AP-32, 2006-Ohio-1527. The victim's statements were properly admitted pursuant to Evidence Rule 803(4). Marshall Wilkinson, a social worker employed by Nationwide Children's Hospital, questioned Z.J. in a non-leading, open-ended fashion. Marshall Wilkinson repeatedly explained that the purpose for her interview was to determine what, if anything, had happened to the child and to give the physician that information for use during the physical examination. No law enforcement officer was present during the interview and no law enforcement officer suggested questions to be asked. Following the interview, Marshall 5
Wilkinson relayed the information directly to the physician's assistant. A victim's statement that she was sexually assaulted, and specifically describing how she was assaulted, directs medical providers to the relevant area to be examined and provides information pertinent to specific treatment or therapy needed. See, State v. Wallace, Union App. No. 14-10-20, *P18, 2011-Ohio-1728. As the 10th District Court observed in State v. Edinger, supra, absent a controlling police presence, merely because a social worker is a member of a team of professionals does not transform the worker into a government official. Appellant attempts to expand Arnold, supra, to situations where the victim testifies at trial and is subject to cross-examination. Appellant, however, concedes that Crawford controls only when the victim does not testify. Arnold, in accord with Crawford, detennined that it was erroneous to admit statements in violation of the Confrontation Clause but did not extend its holding to prior statements admitted when the victim appears at trial. The 10th District, as well as the juvenile court, considered Arnold and found it distinguishable because the declarant testified. See, Decision below, and Judgment Entry, J.C. No. 08JU-04-5937 (January 11, 2011). Every court of appeals, subsequent to Arnold, presented with the same argument and a trial where the victim testified and was crossexamined, has ruled similarly. See, State v. Just, Ninth Dist. No. 12CA0002, 2012-Ohio- 4094, State v. Rucker, First Dist. No. C-110082, 2012-Ohio-185; State v. Gutierrez, Third Dist. No. 5-10-14, 2011-Ohio-3126; State v. Knauff, Fourth Dist. No. 10CA900, 201-Ohio- 2725; State v. Wallace, Third Dist. No. 14-10-20, 2011-Ohio-1728; State v. Daniels, First Dist. No. C-090566, 2010-Ohio-5258. The claim that a social worker acted as a law enforcement officer and obtained statements for forensic purposes is relevant only when there is a claimed violation of the Confrontation Clause. State v. Wallace, supra, *P 19. 6
Even assuming error in admitting portions of the victim's videotaped statement, such error is generally harmless where the declarant of the hearsay statement is cross-examined on the same matters and the seemingly erroneous evidence is cumulative in nature." In re M.E.G., Tenth Dist. Nos. 06AP-1256, 06AP-1257, 06AP-1258, 06AP-1259, 06AP-1263, 06AP-1264, 06AP-1265, P32, 2007-Ohio-4308; State v. Tomlinson, 33 Ohio App. 3d 278, 281, 515 N.E.2d 963 (1986). See also, State v. Arnold, supra., In re T.L, 127 Ohio St. 3d 9, 2010-Ohio-4936, 935 N.E.2d 840, and State v. Conway, 109 Ohio St. 3d 412, *P59, 2006 Ohio 2815, 848 N.E.2d 810... As found by the Tenth District Court of Appeals below, any potential error was harmless. See, Arnold. The victim testified and was cross-examined. Moreover, the challenged statements were cumulative to the unchallenged testimony and added nothing of substance to the determination, merely providing a context for the unchallenged relevant declarations. In a bench trial such as this to the juvenile magistrate, it is presumed that the court considers only the relevant, material, and competent of that admitted at trial. State v. Parsons, Tenth Dist. No. 06AP-410, 2007-Ohio-1204; State v. Bays, 87 Ohio St. 3d 15, 1999-Ohio-216. The juvenile court below did not abuse its discretion admitting into evidence the child-victim's statement made during her medical evaluation. The first proposition of law merits no further review. 7
PROPOSITION OF LAW TWO RELEVANT CORROBORATING EVIDENCE NOT OBJECTIONABLE ON SPECIFIC EVIDENTIARY GROUNDS IS PROPERLY ADMITTED. No claim of recent fabrication was made at.trial and the child's out-of-court statement was not admitted pursuant to Evid. R. 801(D)(1)(b). As set forth previously, the victim's statement was admitted for purposes of medical diagnosis or treatment. Evid. R. 803(4). The trial court's decision to introduce evidence is affirmed on appeal absent an abuse of its broad discretion resulting in material prejudice to the accused. State v. Hymore, 9 Ohio St. 2d 122, 128; 224 N.E.2d 126 (1967): Appellant asserts that the victim Z.J.'s prior statement was improperly admitted because it "bolstered" her testimony. The purpose of a trial is specifically designed and intended to corroborate or "bolster" the victim's claims. A frequently successful defense strategy incorporates the claim that nothing presented corroborated the victim's version of events. A party is permitted to introduce testimony "to 'bolster' or corroborate another witness's testimony as long as the testimony is relevant and not objectionable on specific evidentiary grounds." State v. Hurst, Tenth Dist. No. 98AP-1549 (March 7, 2000), citing State v. Stowers, 81 Ohio St. 3d 260, 1998-Ohio-632. See also, State v. Marrero, Tenth Dist. No. IOAP-344, *P56, 2011-Ohio-1390. Further support is found in the Rules of Eyidence. For example, Evid. R. 801(D)(1)(c), allowing a third person, under specified circumstances, to provide testimony regarding an out-of-court identification, is specifically intended to allow "corroboration of the testimony of the identifying witness as to the identity of the accused." See, State v. Lancaster, 25 Ohio St. 2d 83, 267 N.E.2d 291, syllabus four (1971), and Staff Note, Evid. R. 801(D)(1)(c). 8
Appellant cites nothing that addresses the well-recognized "fnmly rooted" hearsay exception codified in Evidence Rule 803(4) that pennits the admission of statements that are made for medical purposes. See, United States v. Sumner, 204 F.3d 1182, 1185 (8th Cir. 2000). Because certain evidence is not admitted under one Rule does not preclude its admission under another. The victim testified at trial, was subject to cross-examination, and her out-of-court statements were admitted pursuant to Evid. R. 803(4). The second proposition of law merits no further review. 9
CONCLUSION Based on the foregoing, the within appeal does not present a question of such constitutional substance or of such public or great general interest as would warrant further review by this Court. It is respectfully submitted that jurisdiction should be declined. Respectfully submitted, RON O'BRIEN Prosecuting Attorney Franklin County, Ohio KATHERINE PRESS 0021422 Assistant Prosecuting Attorney 373 South High Street, 13`" Floor Columbus, Ohio 43215 614-525-4440 COUNSEL FOR APPELLEE, THE STATE OF OHIO 10
CERTIFICATE OF SERVICE I certify that a copy of the foregoing was hand-delivered, this 14th day of September, 2012, to TIMOTHY E. PIERCE, 0041245, Counsel for Appellant, Office of the Franklin County Public Defender, 373 S. High Street, 12th floor, Columbus, Ohio 43215. KATHERINE J. PRESS 002B422 Assistant Prosecuting Attoiney 11