State v. Butcher , 2007 Ohio 118 ( 2007 )

{¶ 84} As an initial matter, I agree with the majority that the admission of Mary Beth Askew's identification testimony of appellant as the perpetrator was hearsay not subject to a recognized exception and therefore, should not have been admitted. However, I do not agree, in the context of the remaining evidence and testimony, that the admission of this statement constituted prejudicial error requiring reversal of appellant's convictions. Accordingly, I respectfully dissent.

{¶ 85} A decision to admit or exclude testimony is a matter within the sound discretion of the trial court and will not be overturned absent a clear abuse of discretion whereby the defendant has suffered materialprejudice. (Emphasis added.) Hores v. Weaver, 11th Dist. Nos. 2004-T-0045, 2004-T-0047, and 2004-T-0048, 2005-Ohio-6076, 2005 WL 3047498, at ¶ 17, citing Quinn v. Paras, 8th Dist. No. 82529, 2003-Ohio-4952, 2003 WL 22146526, at ¶ 31; Statev. Brazzon, 11th Dist. No. 2001-T-0050, 2003-Ohio-6088,2003 WL 22697976, at ¶ 13; State v. Long (1978),53 Ohio St. 2d 91, 98, 7 O.O.3d 178, 372 N.E.2d 804; State v. Sage (1987), 31 Ohio St. 3d 173, 31 OBR 375, 510 N.E.2d 343, at paragraph two of the syllabus. In applying an abuse-of-discretion standard, the appellate court is not free to substitute its judgment for that of the trial court. (Citation omitted.) In re Jane Doe 1 (1991),57 Ohio St. 3d 135, 137-138, 566 N.E.2d 1181.

{¶ 86} The testimony of Mary Beth Askew was hearsay, not subject to an exception, and admission of that testimony was error. However, the inquiry does not end there. A reviewing court next must determine whether this error is harmless or prejudicial.

{¶ 87} Under Evid.R. 103(A) and Crim.R. 52(A), error is harmless unless substantial rights of the defendant are affected. State v. Hicks (Aug. 16, 1991), 6th Dist. No. L-83-074, 1991 WL 156534, at *5. For nonconstitutional errors, the test is whether "there is substantial evidence to support the guilty verdict even after the tainted evidence is cast aside." State v. Cowans (1967), 10 Ohio St. 2d 96,104, 39 O.O.2d 97, 227 N.E.2d 201. Where constitutional error in the admission of evidence exists, "such error is harmless beyond a reasonable doubt if the remaining evidence, standing alone, constitutes overwhelming proof of the defendant's guilt."State v. Williams (1983), 6 Ohio St. 3d 281, 6 OBR 345,452 N.E.2d 1323, at paragraph six of the syllabus.

{¶ 88} The admission of Mary Beth's hearsay statements of the victims was harmless error under either test. Both of the victims testified as to the events that occurred, and their testimony was in substantial accord with regard to all relevant facts. The victims were subject to cross-examination, and the jury was free to consider the weight and credibility of their testimony. Moreover, the victims' testimony was corroborated by physical evidence "consistent with anal penetration." Dr. Dewar testified that in most cases of alleged sexual abuse, such physical evidence is the exception rather than the rule. Based upon this evidence, even if Mary Beth's testimony had not been admitted, the jury had substantial evidence to convict appellant.

{¶ 89} The same could be said for the statements from Bethany Askew and Dr. Dewar. Interestingly, appellant chooses not to directly challenge the admissibility of the statements of Dr. Dewar and Bethany Askew, instead challenging his conviction on the basis of a claim of ineffective assistance of counsel.

{¶ 90} The United States Supreme Court has adopted a two-part test for determining whether trial counsel was ineffective: "First, the defendant must show that counsel's performance was deficient," meaning that they "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Stricklandv. Washington (1984), 466 U.S. 668, 687, 104 S. Ct. 2052,80 L. Ed. 2d 674. "Second, the defendant must show that the deficient performance prejudiced the defense." (Emphasis added.) Id.

{¶ 91} In Ohio, there exists a strong presumption that a licensed attorney is competent. State v.Smith (1985), 17 Ohio St. 3d 98, 100, 17 OBR 219,477 N.E.2d 1128. Reversal of a conviction, therefore, places the burden on the defendant to show that counsel's deficient performance raises a reasonable probability that, but for counsel'serrors, the result of the trial would have been different. (Citation omitted.) State v. Bradley (1989),42 Ohio St. 3d 136, 142, 538 N.E.2d 373.

{¶ 92} Defense counsel made no objection at trial to the testimony of either Bethany or Dr. Dewar identifying appellant as the perpetrator of the sexual abuse.³⁴ Accordingly, he has waived all but plain error. SeeState v. Santiago, 10th Dist. No. 02AP-1094, 2003-Ohio-2877, 2003 WL 21291025, at ¶ 11 (failure to object to the introduction of hearsay evidence at trial waives all claims of error except plain error).

{¶ 93} Pursuant to Crim.R. 52(B), a plain error or defect affecting substantial rights may be noticed if not brought to the attention of the court. Long,53 Ohio St.2d at 94, 7 O.O.3d 178, 372 N.E.2d 804. Plain error is to be invoked only in exceptional circumstances to avoid a miscarriage of justice. (Citation omitted.) Id.

{¶ 94} The test for plain error is enunciated under Crim.R. 52(B). In order for Crim.R. 52(B) to apply, a reviewing court must find that (1) there was an error, i.e., a deviation from a legal rule; (2) that the error was plain, i.e., that there was an "obvious" defect in the trial proceedings; and (3) that the error affected "substantial rights," i.e., affected the outcome of the trial. (Citations omitted.) State v.Barnes, 94 Ohio St. 3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240.

{¶ 95} With regard to the testimony of Bethany Askew, the majority indulges in a presumption in order to justify its conclusion that the statements were hearsay within hearsay and thus, inadmissible. This conclusion ignores the fact that it is an equally reasonable presumption that Bethany, as the children's mother, heard this information directly from the girls and also fails to take into account the context in which the two challenged statements were actually made.

{¶ 96} As the majority correctly states, hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." (Emphasis added.) Evid.R. 801(C).

{¶ 97} While on the surface, it may appear that the statements of Bethany Askew are substantially similar to those of her mother, Mary Beth, a review of the first statement reveals that its purpose was not to prove the truth of the matter asserted, i.e. that Butcher had intercourse with the girls, but rather to pinpoint the date of D's last visit to Butcher's home. Bethany's second statement presents a closer case. However, even if the second statement was impermissible hearsay, the statement was "merely cumulative and superfluous," with the testimony of her mother and was therefore harmless. Williams, 6 Ohio St.3d at 291, 6 OBR 345,452 N.E.2d 1323.

{¶ 98} With respect to Dr. Dewar's testimony, Evid.R. 803(4) creates an exception from the hearsay rule for "Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." (Citation omitted.) State v.Dever, 64 Ohio St. 3d 401, 406-407, 596 N.E.2d 436. The rule "extends the common-law doctrine to admit statements made to a physician * * * without regard to the purpose of the examination or the need for the patient's history," thus "enabling thedoctor to testify * * * even when no treatment iscontemplated." (Citation omitted and emphasis added.)State v. Boston (1989), 46 Ohio St. 3d 108, 121,545 N.E.2d 1220.

{¶ 99} Statements in furtherance of diagnosis or treatment are presumed reliable because the effectiveness of the treatment depends on the accuracy of the information related. Id. Furthermore, "statements made by a child during a medical examination identifying the perpetrator of sexual abuse, if made for the purpose of diagnosis and treatment, are admissible pursuant to Evid.R. 803(4), when such statements are made for the purposes enumerated in that rule." Dever,64 Ohio St.3d at 414, 596 N.E.2d 436. "[P]ursuant toDever, statements made by a child to a medical professional are not automatically excluded simply because the child did not possess the initial motivation to seek diagnosis or treatment, but rather were directed there by an adult. Once at the medical professional's office, however, it must be established that the child's statements were made for the purposes of medical diagnosis or treatment." In reCorry (11th Dist.1999), 134 Ohio App. 3d 274, 282,730 N.E.2d 1047.

{¶ 100} In the case of a child of tender years, Dever recommended that trial courts consider the circumstances surrounding the child's making of the statements to medical personnel before admitting the statements under Evid.R. 803(4). 64 Ohio St.3d at 410, 596 N.E.2d 436. Such circumstances include "the type of environment the child was placed in, the attire of the [healthcare professional], the presence of other medical professionals, or any other circumstance which would heighten the child's awareness that the questions asked were for the purpose of medical diagnosisor treatment." (Emphasis added.) State v.Griffith, 11th Dist. No. 2001-T-0136, 2003-Ohio-6980,2003 WL 22994540, at ¶ 59.

{¶ 101} Unlike all of the cases that appellant cites as supporting his argument, Dr. Dewar testified that she had conducted the interviews with the girls herself. Cf.Corry, 134 Ohio App.3d at 283, 730 N.E.2d 1047 ("while the white lab coats and medical instruments traditionally seen at a doctor's office might signal in a child's mind the seriousness of the situation and the necessity to tell the truth, such as existed in Dever, there is no indication that a typically dressed social worker * * * would evoke a similar reaction in the eyes of a child.") (Emphasis sic).

{¶ 102} Moreover, prior to Dr. Dewar's testimony, which related the girls' statements identifying appellant as their abuser, she testified that the identity of an alleged abuser is an important consideration to determine the "risk of transmission of sexually transmitted diseases" and because of "safety issues of the child." During her testimony, Dr. Dewar testified about the procedures she followed while conducting an interview and about her physical examination of each of the girls. Dewar also testified that the examinations were made for the purpose of medical diagnosis.

{¶ 103} A trial court should exclude testimony under the rule of Dever "only in cases where there is affirmative evidence of improper motivation." (Citation omitted.) State v. Sheppard, 164 Ohio App. 3d 372,2005-Ohio-6065, 842 N.E.2d 561, at ¶ 35.

{¶ 104} Appellant objects to the admission of the aforementioned statements because the trial court failed to voir dire T and D in order to establish a foundation for the admission of the testimony.

{¶ 105} This court has held that although a voir dire of the child is desirable, Dever "does not actually mandate a voir dire." State v. Cornwell (Feb. 27, 1998), 11th Dist. No. 95-T-5379. Moreover, courts have found that "failure to conduct such a voir dire * * * is not fatal to the admissibility of evidence under Evid.R. 803(4), if the medical professionals and child are available for cross-examination." Sheppard, 164 Ohio App. 3d 372,2005-Ohio-6065, 842 N.E.2d 561, at ¶ 36; State v.Kelly (1994), 93 Ohio App. 3d 257, 264, 638 N.E.2d 153;State v. Crum (Oct. 26, 1998), 9th Dist. No. 97-CA-0134, 1998 WL 818055, at *5; State v. Slane (Oct. 22, 1999), 6th Dist. No. F-98-020, 1999 WL 961453, at *16-17;State v. Demiduk (June 24, 1998), 7th Dist. No. 96-C0-16, 1998 WL 355864, at *5-7. Such was the case here.

{¶ 106} Under the circumstances presented herein, where both victims and Dr. Dewar testified and were subject to cross-examination, and where the undisputed physical evidence was consistent with their testimony, I cannot conclude that the admission of the aforementioned testimony was plain error.

{¶ 107} Even if any of the aforementioned statements had been excludable as hearsay, "trial counsel's failure to make objections is within the realm of trial tactics and does not establish ineffective assistance of counsel." (Citation omitted.) State v. Bradford, 9th Dist. No. 22441, 2005-Ohio-5804, 2005 WL 2861481, at ¶ 27; see alsoState v. Holloway (1988), 38 Ohio St. 3d 239, 244,527 N.E.2d 831, citing State v. Lytle (1976),48 Ohio St. 2d 391, 396-397, 358 N.E.2d 623 ("The failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel. To prevail * * * a defendant must * * * show * * * a substantial violation of any of defense counsel's essential duties * * * and * * * that he was materially prejudiced by counsel's ineffectiveness").

{¶ 108} Here, appellant has failed to demonstrate either a substantial violation of counsel's duties or material prejudice. Since there was no plain error in the admission of the testimony of Bethany Askew or Dr. Dewar, there can be no ineffective assistance claim for failure of defense counsel to object.

{¶ 109} For these reasons, I respectfully dissent. The judgment of the Ashtabula County Court of Common Pleas should be affirmed.

³⁴ With respect to the identification testimony of Dr. Dewar, the trial court conditionally granted a motion in limine excluding these statements "depend[ent] upon the evidence establishing a recognized exception to the hearsay rule." At trial, however, defense counsel made no objection to the admission of this testimony. See, McCabe/Marra Co. v.Dover (1995), 100 Ohio App. 3d 139, 160, 652 N.E.2d 236 ("a ruling on a motion in limine is a tentative, interlocutory, precautionary ruling by a court in anticipation of its ruling on evidentiary issues at trial"); Statev. Stewart (Dec. 15, 1997), 4th Dist. No. 96CA18,1997 WL 766459, at *4, fn. 4 (the grant or denial of a motion in limine will not preserve error for review, absent a proper objection made at trial).