State v. Tebelman , 2010 Ohio 481 ( 2010 )

[Cite as State v. Tebelman, 2010-Ohio-481.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-09-01
v.
ROBERT D. TEBELMAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2008 CR 62
Judgment Affirmed
Date of Decision: February 16, 2010
APPEARANCES:
Esteban R. Callejas for Appellant
Todd C. Shroeder for Appellee
Case No. 12-09-01
SHAW, J.
{¶1} Appellant-Defendant Robert D. Tebelman (“Tebelman”) appeals
from the April 13, 2009 Judgment Entry of the Common Pleas Court of Putman
County, Ohio, convicting him of one count of rape in violation of R.C.
2907.02(A)(1)(b) where the victim is less than thirteen years of age and sentencing
him to life imprisonment without parole.
{¶2} The facts relevant to this appeal are as follows. Tebelman and Lacy
began dating in February 2006. At the time, Lacy was living in Columbus Grove
with her two year old daughter, G.B. Shortly thereafter, Lacy and G.B. moved
into Tebelman’s apartment in Ada where he was finishing his undergraduate
degree. On Christmas of 2007, Lacy asked her father, Rodney, if she, G.B., and
Tebelman could move in with him to allow them to save money to get a place of
their own. Rodney agreed and by March of 2008 the three were completely
moved in. Rodney owned a two story house in Columbus Grove and lived on the
downstairs level. Tebelman, Lacy, and G.B. occupied the three rooms on second
level where Tebelman and Lacy shared one room, G.B. had her own room, and the
third room, referred to as the “Junk” room, was used for storage. Although, the
residents treated each level as separate apartment units, all four occupants shared
the kitchen and only bathroom which were both located on the first floor.
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{¶3} Tebelman took on most of the responsibility for being G.B.’s
primary caretaker because Lacy had an injured back which limited her mobility,
and relegated her to the upstairs level. Lacy and Tebelman split the care of G.B.
accordingly. Lacy would set out G.B’s clothes upstairs while Tebelman would
take on the downstairs duties of cooking G.B. breakfast, fixing her hair, and
making sure she bathed and brushed her teeth. In the fall of 2008, G.B. turned five
and started Kindergarten at Columbus Grove Elementary. Tebelman then added
escort to and from the bus stop, which was located at the end of the lane, as part of
this daily routine.
{¶4} On November 4, 2008, Tebelman deviated from the routine and
drove G.B to school. Lacy bought a bus ticket to travel to Grand Rapids and
Tebelman needed to inform the school that G.B. would be absent for the rest of the
week. When G.B. arrived at the school, she was visibly upset. She cried and
complained that she did not want to be at school. According to her teacher this
was unusual behavior for G.B who was a generally happy child and had never
come to school crying prior to this occasion.
{¶5} A short time later, G.B. calmed and settled into the school day which
progressed normally until an episode later that afternoon. G.B. asked to use the
restroom and was gone for five minutes, a typical length of time for a child to be
gone when using the bathroom. During this time period the school’s maintenance
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supervisor was walking down the hall and as he passed the restrooms he heard the
stall doors slamming shut and a little girl’s voice calling “Mommy, Mommy,
where are you?” (Trial Trans. p.363). From the hallway, he asked the girl if she
was alright. The door opened and G.B. exited the bathroom. The maintenance
supervisor asked G.B. if she was looking for her mother and she replied “yes.” He
then asked if she knew where her classroom was, to which she replied “yes” and
returned to her classroom to finish out the day.
{¶6} After school, Tebelman met G.B. at the bus stop. Lacy’s bus left a
few hours earlier. Before leaving, Lacy arranged for G.B. to stay with Kim
Fletcher, G.B.’s paternal grandmother, while she was out of town. Although Lacy
originally planned for Kim to pick G.B. up from the bus stop, Kim phoned Lacy to
tell her that she could not pick up G.B. until 6:30 p.m. because she had to work.
Lacy then relayed the change of plans to Tebelman. G.B. and Tebelman remained
at the house alone for a few hours until Kim arrived. Kim picked up G.B. around
6:30 p.m. and drove her back to Delphos where Kim lived with her husband,
Mark, G.B.’s grandfather.
{¶7} Kim had a meeting to attend at 7:00 p.m. so she dropped G.B. off
with Mark. Kim’s meeting lasted about an hour. During this time, Mark watched
hunting shows on T.V. in the living room while G.B. played in the dining room,
which the Fletchers made into G.B.’s playroom for when she visited. Around 7:15
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p.m. Mark’s friend, Ron, stopped by to visit. He left a half hour later and returned
a little after eight with his wife, Peggy, and Kim who were at the meeting together.
Upon Kim returning home, Mark informed her that he noticed G.B. grabbing
herself in the vaginal area and suggested she look into it.
{¶8} Once Peggy and Ron left, about twenty minutes later, Kim asked
G.B. if she was “hurting down there” and G.B. answered, “Yes, Grandma. I’m
peeing hot pee.” (Trial Trans. 388). Kim initially thought that G.B.’s discomfort
was related to a yeast infection she had been diagnosed and treated for a month
earlier. Kim took G.B. to the bathroom, located off the living room, to apply the
topical vaginal cream prescribed for the yeast infection. G.B. pulled her pants
down and spread her legs. Kim noticed redness from her vagina to her anus as
well as a little bit of dried blood. She asked G.B. what happened. G.B. continued
to complain of “hot pee.” (Id.) Kim then asked if anyone had touched down
there. G.B. did not respond and appeared embarrassed. Kim asked again. G.B.
then stated “Robbie did,” referring to Tebelman. (Trial trans. p. 389). Kim
inquired further and G.B. in detail disclosed that she and Tebelman played various
“games” which involved Tebelman inserting objects into her anus. She also
disclosed that Tebelman inserted his fingers into her “who-who,” G.B.’s name for
vagina, while he bathed her.
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{¶9} In shock, Kim called Chris, her son and G.B’s father, to tell him
what G.B. disclosed to her. Chris calmed his mother and they decided to take G.B
to the hospital after work the next day. Given the emotionally charged
circumstances, they thought it best at the time to let heated feelings subside before
taking G.B. to the hospital. The next morning, on November 5, 2008, Kim
arranged for a neighbor, Robin Priest, to come over and watch G.B. while she
worked. Robin spent the day playing with G.B. At some point during the day,
G.B. unprovoked mentioned that her vaginal area burned and that Tebelman hurt
her. Not knowing the circumstances, Robin did not respond to G.B.’s statements
and continued to watch G.B. until Kim arrived home.
{¶10} Unable to stay composed, Kim left work early and came home to
gather some clothes for G.B. As they planned, she called G.B.’s father who then
met her at the hospital. They arrived at St. Rita’s hospital in Lima around 5:30
p.m. They were informed a few hours later that the hospital did not have anyone
to perform a Sexual Assault Nurse Examination (“SANE”) and directed them to
the Toledo Hospital where a SANE nurse was on duty.
{¶11} After midnight on November 6, 2008 Kim, Chris, and G.B. arrived
at the Toledo Hospital where Kelly Michael, a SANE nurse, examined G.B.
During the examination, G.B. expressed discomfort in her vagina and stated that
Tebelman hurt her. She also told the SANE nurse that Tebelman played the
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porcupine game with her and inserted a book into her rectum. The examination
revealed a small tear in her vagina and two lacerations on her anus. The anal
lacerations and the description of the games G.B said she and Tebelman played
prompted Michael to call Dr. Robert Wood to further examine G.B. Dr. Wood
confirmed the SANE findings.
{¶12} On November 10, 2008, Robert Tebelman was indicted on one count
rape in violation of R.C. 2907.02(A)(1)(b), a felony in the first degree, with three
additional specifications: 1) G.B. was less than ten years old at the time of the
offense, 2) Tebelman did purposely compel the G.B. to submit by force or threat
of force, and 3) Tebelman caused serious physical harm to G.B. On March 23,
2009, the trial court found G.B. competent to testify against Tebelman. A jury
trial was held on April 6, 7, 8, 2009, where several witnesses testified including
G.B. At the close of the evidence, the jury found Tebelman guilty of rape and the
three specifications. On April 13, 2009, the trial court sentenced Tebelman to life
imprisonment with no parole pursuant to R.C. 2907.02(B).
{¶13} Tebelman now appeals, asserting four assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED WHEN IT FOUND THE
ALLEGED VICTIM WAS COMPETENT TO TESTIFY IN
VIOLATION OF TEBELMAN’S RIGHTS TO DUE PROCESS
AND A FAIR TRIAL PURSUANT TO EVID. R. 601(A), THE
FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO
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THE UNITED STATES CONSITUTION, AND ARTICLE 1,
SECTION 10 OF THE OHIO CONSTITUTION.
ASSIGMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN PERMITTING THE
INTRODUCTION OF INADMISSIBLE HEARSAY IN
VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE
OHIO CONSTITUTION.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT VIOLATED TEBELMAN’S RIGHT TO
DUE PROCESS UNDER THE FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE
OHIO CONSTITUTION WHEN IT UPHELD THE JURY
VERDICT AS IT WAS NOT SUPPORTED BY THE
SUFFICIENCY OF THE EVIDENCE AND WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT FAILED TO CONSIDER THE
SENTENCING STATUTES IN R.C. § 2929.11-2929.14 AND
ABUSED ITS DISCRETION IN SENTENCING TEBELMAN
TO THE MAXIMUM SENTENCE.
The First Assignment of Error
{¶14} In his first assignment of error, Tebelman argues that the trial court
erred in determining that G.B., who was five years old at the time of the trial, was
competent to testify against him.
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{¶15} As an initial matter, we note that the State, in its brief, asserts that
this Court should review this issue for plain error rather than as an abuse of
discretion because Tebelman failed to object to the competency finding at the trial
court level. See In re Williams (1997), 116 Ohio App.3d 237, 241, 687 N.E.2d
507. Generally, in order to prevail under the plain error standard, an appellant
must demonstrate that the outcome of his case would clearly have been different
but for the error that he alleges. State v. Waddell (1996), 75 Ohio St.3d 163, 166,
661 N.E.2d 1043. Whereas, an abuse of discretion implies that the court's attitude
is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio
St.2d 151, 157, 404 N.E.2d 144.
{¶16} The competency of a witness to testify at trial is governed by Evid.
R. 601 which states in pertinent part:
Every person is competent to be a witness except:
(A) Those of unsound mind, and children under ten years of
age, who appear incapable of receiving just impressions of the
facts and transactions respecting which they are examined, or
of relating them truly.
{¶17} The Ohio Supreme Court specifically addressed the competency
requirements of Evid. R. 601(A) as they relate to a child under the age of ten in
State v. Frazier (1991), 61 Ohio St.3d 247, 250-51, 574 N.E.2d 483. The court
outlined the responsibility of the trial court in determining whether a child is
competent to testify:
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It is the duty of the trial judge to conduct a voir dire
examination of a child under ten years of age to determine the
child’s competency to testify. Such determination of
competency is within the sound discretion of the trial judge.
The trial judge has the opportunity to observe the child’s
appearance, his or her manner of responding to the questions,
general demeanor and any indicia of ability to relate the facts
accurately and truthfully. Thus, the responsibility of the trial
judge is to determine through questioning whether the child of
tender years is capable of receiving just impressions of facts and
events and to accurately relate them. See State v. Wilson (1952),
156 Ohio St. 525, 46 O.O. 437, 103 N.E.2d 552.
Frazier, 61 Ohio St.3d at 250-251.
{¶18} Moreover, the court articulated five factors a trial court is to consider
in determining the competency of a child under ten years of age which include:
(1) the child’s ability to receive accurate impressions of fact or
to observe acts about which he or she will testify, (2) the child’s
ability to recollect those impressions or observations, (3) the
child’s ability to communicate what was observed, (4) the child’s
understanding of truth and falsity and (5) the child’s
appreciation of his or her responsibility to be truthful.
Id.
On March 23, 2009, the trial court held a hearing to determine whether G.B.
satisfied the above standards. As prescribed by the Frazier Court, the trial judge
conducted a voir dire examination of G.B. in which he asked her specific
questions relevant to establishing her competency to testify. The following are
excerpts from the competency hearing transcript as they relate to the above
considerations.
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{¶19} G.B. testified that she understood the concepts of truth and falsity
and the consequences for telling a lie.
Q: If somebody came in here and said right now it’s raining
really hard, is that a truth or a lie?
A: Lie, lie.
Q: You think that’s a lie?
A: (Witness nods head.)
Q: Okay. Why do you think that’s a lie?
A: Because it’s not raining right now.
Q: Right, it’s not raining, is it? I see some sun out there. And
so if somebody came in here and said it’s snowing really hard, is
that the truth or is that a lie?
A: A lie.
(Trans. of Competency Hrg., p. 98, lines 11-24).
Q: Okay. What would happen if somebody told you a lie, do
you think, [G.B.]?
A: They would get in trouble.
Q: Okay. And what kind of trouble do you think would
happen if you told a lie?
A: Then you would get in trouble.
Q: And if you told a lie to your mom, —
A: Then I would get in trouble.
Q: —or to your dad—let’s say you told a lie to your dad or
your grandpa and grandma, let’s say you went home and you
told a lie to your grandpa or grandma, what would happen if
you told a lie?
A: Spanking or corner or a timeout.
Q: Timeout or a spanking or sit in the corner? You said the
corner, is that, what do you mean by that?
A: That means if you stand in the corner like that corner over
there.
Q: Okay. You think you would have to go stand in the corner?
A: (Witness nods head.)
Q: Okay. And so if you tell a lie, you think that might happen,
that you would get into trouble?
A: Yeah. No, if you tell a lie, you’ll get in trouble.
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Q: Okay. And what happens if you tell the truth?
A: Then if you tell the truth, that means you’re really good.
Q: If you tell the truth, that means you’re going to what?
A: Be good.
(Id., p. 99, line 22-p. 101, line 6).
{¶20} G.B.’s testimony revealed that she appreciated her responsibility to
be truthful at the hearing.
Q: Okay. [G.B.], I wanted to ask you some questions about
why we’re here. Is that okay?
A: (Witness nods head.)
Q: Do you know why we’re here?
A: To talk to the truth.
Q: To talk to the truth? Why do you think that’s why we’re
here?
A: Because of him. (Indicating).
Q: Because of him? And when you’re pointing and you say to
“him,” who are you pointing to?
A: To Rob.
(Trans. of Competency Hrg., p. 96, lines 5-15).
Q: Why do you think it’s because of him?
A: Because he hurt.
Q: Okay. Because he hurt you; is that what you are saying?
A: (Witness nods head.)
Q: All right. Let’s back up a little bit, [G.B.]. Can I ask you a
couple of other questions? Do you know what this room is or
what this building is, what that’s called.
A: I know what this building is. It’s the courtroom.
Q: Yeah, that’s right. Very good. It’s called a courtroom.
And do you know what a courtroom is for?
A: To tell the truth in it.
Q: Okay to tell the truth.
A: Yes. If you close the doors, then other people won’t hear it.
Q: Okay. And let’s talk about telling the truth. It’s important
here to tell the truth.
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A: I know the truth.
(Id., p. 96, line, 22-p.97, line 17).
{¶21} As to the remaining three factors, G.B. extensively demonstrated her
ability to receive accurate impressions of fact and to observe acts relating to the
incident about which she was to testify. Moreover, G.B. clearly showed her
ability to recollect and effectively communicate those impressions and
observations.
Q: Okay. [G.B], we’re going to talk about some things today.
Is that okay?
A: Okay.
Q: And one of the things that I’m going to ask is that you
always tell the truth. Do you think you can do that?
A: (Witness nods head.)
Q: Can you promise that you’ll do that?
A: Yeah.
Q: All right. And when I’m talking to you it’s important that
you keep your promise. Is that okay?
A: Yeah
Q: All right. Good. [G.B.], one of the things that we’re going
to be talking about is why we are here and why you’ve come to
court today, okay?
A: Okay.
Q: All right. Tell me, tell me again why you think we are
here?
A: Because of him.
Q: Okay.
A: He hurt.
Q: Tell me about that, [G.B.].
A: He hurt me right here. (Indicating)
Q: Okay. He hurt you, and how did he hurt you, [G.B.]?
A: (Indicating)
Q: And what does that mean?
A: Fingers.
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Q: With his finger?
A: Um-hum. (Witness nods head.)
Q: And what did he do?
A: He sticked it in something.
Q: Okay. And where did he, where did he put his finger?
A: Right here. (Indicating)
Q: Okay. And where is that, [G.B.].
A: Right here. (Indicating)
Q: Can you tell me what that means?
A: It’s all the way down here. (Indicating)
Q: Okay, all the way down in like your private area?
A: Yes.
Q: Okay. Do you have a name for that? What do you call that
when you talk about it with people?
A: Who-whos.
Q: Your who-whos? Okay. And when you said, [G.B.], that he
put his finger, can you tell me what he did?
A: He put it in my who-who.
Q: He put his finger in your who-who?
A: Yes.
(Trans. of Competency Hrg., p. 101, line 10-p.103, line14)
Q: Where were you living when that happened at, [G.B.]?
A: I was living with my mommy. She was in her bedroom
sleeping and I was in my bedroom and I closed the door behind
Robbie.
Q: [G.B.], let’s go back for a minute. When said you were
living with your mommy, do you remember the house you were
living at?
A: Yeah, Columbus Grove house.
Q: And tell me about the house.
A: I lived in Columbus Grove, Ohio.
Q: Columbus Grove?
A: Ohio.
Q: Ohio, okay. And who lived in the same house you were
living in?
A: My mommy and my Robbie when he was nice.
Q: Okay, your mom and Robbie.
A: When Robbie was nice.
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(Id., p. 104, line 4-25).
Q: So let’s go back, [G.B.]. You were in your bedroom, right?
A: Right.
Q: And Robbie came in?
A: Yep.
Q: And what happened after that?
A: He hurted my who-who.
Q: And where were you at when that happened? Where in
your bedroom?
A: My bedroom.
Q: Where on the floor or on the bed or in a chair? Where were
you at?
A: I was on my computer playing some games and Robbie
came in.
Q: And so you were in a chair?
A: Um-hum. Playing one of my games.
Q: And tell me what he did.
A: He hurted my who-who.
(Id., p. 109, line 25-p. 110 line 16).
{¶22} In addition to the testimony excerpted above, G.B. demonstrated that
she knew her full name, birth date, and age; the city she lived in at the time of the
incident and where she resided thereafter and who she lived with in both cities
including the names of the pets. G.B. clearly articulated that she was sitting in a
courtroom for the sole reason to tell the truth. She described the surroundings
where the incident with the defendant occurred and the manner in which he
touched her and that the first person she told about the incident was her Grandma
Kim.
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{¶23} Tebelman contends that this testimony does not establish G.B.’s
competency because she made references to porcupines, blueberry bushes, and
Dora the Explorer. He argues that the trial court should have inquired whether she
could discern fiction from reality. In reviewing the entire transcript, we find that
these references are rare and are used only to place adult actions into a child’s
context. Thus, they are not pertinent enough to detract from the trial court’s
overall competency determination.
{¶24} G.B.’s testimony clearly established that she satisfied the standards
in Frazier and as such we cannot find that the trial court abused its discretion.
Moreover, even assuming, arguendo, that the trial court erred in finding G.B.
competent to testify, we find no plain error. In addition to G.B.’s testimony, there
was medical testimony introduced which corroborated G.B.’s statements admitted
at trial. Thus, we find that there was substantial evidence warranting the jury to
convict Tebelman of rape and therefore we cannot say that the outcome of the trial
would have been different if the court had not permitted G.B. to testify at trial. In
sum, the testimony elicited from G.B. at her competency hearing so clearly
established her competency under the Frazier standards that we cannot find the
trial court erred in finding her competent to testify under either standard of review.
Tebelman’s first assignment of error is, therefore, overruled.
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The Second Assignment of Error
{¶25} In his second assignment of error, Tebelman maintains that the trial
court erred in permitting the introduction of inadmissible hearsay. Specifically,
Tebelman asserts that the statements G.B. made to Kim Fletcher, Robin Priest,
Jess Stokeland1 and the medical professionals constituted hearsay and were
improperly admitted at trial.
{¶26} The State argues G.B.’s statements to Fletcher and Priest were
properly admitted under the excited utterance exception to the rule against
hearsay. An excited utterance is defined as “[a] statement relating to a startling
event or condition made while the declarant was under the stress of excitement
caused by the event or condition.” Evid.R. 803(2).
{¶27} The admission of a statement as an excited utterance under Evid.R.
803(2) is generally within the sound discretion of the trial court. State v. Smith
(1986), 34 Ohio App.3d 180, 190-91, 517 N.E.2d 933. An appellate court will not
reverse the trial court’s decision absent an abuse of discretion. State v. Brown
(1996), 112 Ohio App.3d 583, 601, 679 N.E.2d 361. Moreover, the trial court has
1
In his brief, Tebelman asserts that the admission of G.B.’s statements to Jess Stokeland was improper as
inadmissible hearsay. However, upon review of the record, we note that G.B. never made any statements
to Jess Stokeland. In fact, Stokeland’s testimony focused on the mental state of Kim Fletcher upon learning
of G.B.’s alleged sexual abuse. Because Stokeland did not testify to G.B.’s statements, we will not review
her testimony under this assignment of error. In addition, in his reply brief, Tebelman first makes mention
of his complaint about the admissibility of Misty Bates’ testimony wherein she testifies to statements G.B.
made to her about Tebelman sexually abusing her. The testimony of Misty Bates was not raised in his
Appellant's brief or the brief of the appellee, and so is not a proper matter presented in a reply brief filed
pursuant to App.R. 16(C).
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broad discretion to determine whether a declaration should be admissible as a
hearsay exception. State v. Dever (1992), 64 Ohio St.3d 401, 410, 596 N.E.2d
436, 444. For an alleged excited utterance to be admissible, four prerequisites
must be satisfied: (1) the event must be startling enough to produce a nervous
excitement in the declarant, (2) the statement must have been made while the
declarant was still under the stress of excitement caused by the event, (3) the
statement must relate to the startling event, and (4) the declarant must have
personally observed the startling event. State v. Taylor (1993), 66 Ohio St.3d 295,
300-301, 612 N.E.2d 316.
{¶28} The trial court initially found that statements G.B. made to Kim
Fletcher were admissible as excited utterances when it overruled Tebelman’s
motion in limine. Kim testified that she took G.B. into the bathroom when G.B.
began to complain of “peeing hot pee.” Kim originally thought a yeast infection,
for which G.B had previously been diagnosed and treated with a prescription
cream, caused her discomfort. When Kim examined G.B.’s vaginal area to apply
the topical cream, she noticed irritation and redness from G.B.’s vagina to her
rectum. Kim also testified that she noticed dried blood in that area. This
prompted Kim to ask G.B. what happened. G.B. continued to complain of “hot
pee.” Kim testified that it was when she asked G.B. if anyone had touched her
“down there” that G.B.’s demeanor noticeably changed. She held her head down,
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looked embarrassed, and showed a reluctance to answer that specific question.
Kim asked G.B again and G.B. answered, “Robbie did.” Kim asked G.B. what
Tebelman did to her and in response G.B. disclosed in detail the “games” that she
and Tebelman played. These games consisted of a “porcupine game” which
involved Tebelman sticking a “spike” in her “bottom.” She also disclosed that
Tebelman put a small “book” in her “bottom.” Kim testified that she asked G.B. if
there was any other incident. In response, G.B. showed Kim her finger and
disclosed that Tebelman put his finger in her vagina when he was giving her a
bath. She further disclosed that Tebelman apologized for hurting her and she did
not want to tell anyone because Tebelman had told her that if she did, he would be
taken away from her.
{¶29} In analyzing whether a statement is an excited utterance, the Ohio
Supreme Court noted that, “[t]he controlling factor is whether the declaration was
made under such circumstances as would reasonably show that it resulted from
impulse rather than reason and reflection.” State v. Humphries (1992), 79 Ohio
App.3d 589, 598, 607 N.E.2d 921. Additionally, we note that the above test has
been liberally applied to out-of-court statements made by child declarants who are
alleged victims of sexual abuse. In re D.M., 158 Ohio App.3d 780, 793, 2004-
Ohio-5858, 822 N.E.2d 433. The reason for liberalizing the scrutiny of this test is
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in recognition that young children are more trustworthy than adult declarants
because of their limited reflection powers. See Taylor, 66 Ohio St.3d at 304.
{¶30} In the instant case, G.B. clearly exhibited distress while she
disclosed to Kim the circumstances surrounding the rape. G.B. experienced
physical discomfort directly related to the injuries she sustained from the rape at
the time she made the statements to Kim. G.B.’s initial reluctance to disclose the
rape to Kim stemmed not from a motive to fabricate but from a fear that
Tebelman, her primary caretaker, would be taken away from her if she told anyone
what he did to her. G.B., barely five years old, demonstrated her inability to
understand the serious nature of the rape and its implications by couching
Tebelman’s actions in terms of games they played. G.B’s limited reflective
powers and her inability to appreciate the ramifications of what had happened to
her demonstrate the trustworthiness of her statements. See State v. Wagner
(1986), 30 App.3d 261, 264, 508 N.E.2d 164 (stating that the limited power of
reflection coupled with an inability to comprehend “the enormity or ramifications
of the attack upon him sustain the trustworthiness of these communications”).
{¶31} Tebelman argues, however, that the fact that G.B. made these
statements in response to Kim’s questions deprive them of being spontaneous and
therefore exclude them as being excited utterances. In State v. Wallace, the Ohio
Supreme Court noted the contrary:
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[T]he admission of a declaration as an excited utterance is not
precluded by questioning which: (1) is neither coercive nor
leading, (2) facilitates the declarant’s expression of what is
already the natural focus of the declarant’s thoughts, (3) and
does not destroy the domination of the nervous excitement over
the declarant’s reflective facilities.
State v. Wallace, 37 Ohio St.3d 87, 93, 524 N.E.2d 466.
{¶32} As noted above, at the time G.B. made the statements to Kim, she
had already expressed physical discomfort from the injuries caused by the rape. It
is only after Kim noticed redness and dried blood around G.B.’s vaginal and
rectum areas that she asked G.B. what happened. Kim’s questioning of G.B.
simply served to facilitate G.B.’s expression rather than to cause reflection.
{¶33} G.B. made similar disclosures to Robin Priest the next day. Kim
asked Robin to babysit G.B. while she went to work. Robin testified that she and
G.B. were at the park when G.B. exhibited discomfort in her genital region and
unprompted, stated that she hurt and it burned and that Robbie did it. Robin
testified that she did not comment on G.B.’s statement and that the conversation
ended. G.B. experienced the same physical burning and discomfort she had when
she made the initial disclosures to Kim. Clearly, G.B. was still under the stress of
excitement when she made these comments to Robin.
{¶34} Furthermore, even if G.B.’s statements to Kim and Robin did not
qualify as excited utterances, the admission of this evidence constituted harmless
error. G.B.’s testimony describing the sexual abuse by Tebelman, in conjunction
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with the medical testimony corroborating that G.B. sustained injuries consistent
with the described abuse, could have sustained a guilty verdict absent any
improper admission these statements.
{¶35} Tebelman also summarily asserts that the trial court erred by
admitting the statements G.B. made to “medical professionals.” In total, five
medical professionals testified at trial, four on behalf of the State and one for the
defense. Dr. Megan McGraw, a witness for the State, conducted a follow up
examination of G.B. McGraw performed a physical examination and did not re-
interview G.B. Thus, she did not testify to any statements G.B. made to her. The
remaining medical professionals who testified to statements made by G.B. were
Kelly Michael, Dr. Robert Wood, Dr. Randall Schlievert, and Diane Gable.
{¶36} The State argues that the statements G.B. made to these witnesses
were properly admitted under Evid. R. 803(4) which states in part:
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.
{¶37} When analyzing the admissibility of a statement under this exception
to the hearsay rule, the primary inquiry is whether the statements were made for
purpose of diagnosis and treatment rather than for some other purpose. The trial
court’s consideration of the purpose of these statements depends on the facts of a
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particular case. This is especially true when assessing a child’s statements made
to medical professionals. The trial court should consider factors such as the
child’s age, the child’s motive to fabricate, the consistency of the child’s
declarations, and whether the child appreciated the need to be truthful to medical
personnel.2 See State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d
944. Additionally, the trial court should consider the manner in which the medical
professional elicited a disclosure of abuse from the child. Id. We address each of
the medical professionals in turn.
{¶38} When G.B. arrived at the Toledo Hospital on November 6, 2008,
Kelly Michael, a SANE nurse, was the first to examine her. Michael testified that
she worked at the hospital for nine years and in that time performed approximately
80 adult and 50 child SANE cases. Michael testified that G.B. was aware she was
in a hospital because she was “sick” and she understood that Michael, as a nurse,
was there to help her. Michael asked G.B. where she hurt. G.B. answered, “my
who-who” and pointed to her vaginal area. Michael then asked G.B. why it hurt.
G.B. replied stating that Tebelman played a porcupine game with her. Michael
testified that she does not like to interrupt the patient, whether a child or an adult,
so she permitted G.B. to continue to talk about the porcupine game. G.B.
described the game as one involving a stick, blueberries, a flower and a leaf and
2
It should be noted that statements made to a social worker or therapist may also be admitted under this
rule if found to have been made for purpose of diagnosis or treatment. Muttart, 116 Ohio St.3d at 15.
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stated that Tebelman stuck the leaf up her “who-who.” Michael further testified
that she examined G.B.’s vagina and rectum. As Michael examined G.B.’s
rectum, G.B. told her that Robbie had put a book inside her “butt” and she pointed
to where he touched her.
{¶39} G.B.’s disclosure about the games she and Tebelman played and the
injuries to G.B.’s vagina and anus prompted Michael to ask Dr. Wood, the
Emergency Room doctor on duty, to examine G.B. Dr. Wood testified that he
introduced himself to G.B. and asked if she was feeling any discomfort and how
her injuries occurred. Dr. Wood testified that G.B. told him the injuries occurred
from her mother’s boyfriend.
{¶40} Diane Gable also testified on behalf of the State. As a licensed
social worker, Gable testified that she engaged in play therapy with G.B. to assist
her in coping with her abuse. Gable testified that she explained to G.B. her role as
a counselor and G.B. acknowledged that her father wanted her to see Gable “to get
better.” During the therapy sessions, G.B. made disclosures to Gable about the
abuse. In one such instance, Gable testified that she worked with G.B. to
distinguish between safe and unsafe touching and used a picture of a girl in a
swimsuit as a demonstrative aid. Gable testified that G.B. pointed to the area
between the girl’s legs and stated that Tebelman touched her “who-who” with a
porcupine. Gable further testified that when G.B. discussed the abuse she
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oscillated between stating that Tebelman used a porcupine and his finger. Gable
testified that throughout the several therapy sessions she conducted, G.B.
consistently indentified Tebelman as the perpetrator and continued to state that he
put his finger in her who-who and that they played the porcupine game in which
he inappropriately touched her “butt.”
{¶41} Dr. Schlievert testified for the defense. He performed a follow up
examination of G.B. to assess her physical injuries and also stated that he did not
re-interview G.B. Like Dr. Wood, his conversation with G.B. was limited to
introductions and asking her if she understood why she was at his office. Dr.
Schlievert testified that G.B. did not disclose any statements about the abuse. He
testified that G.B. was conversational until he asked her if anything happened to
her “butt.” He testified that G.B. became very emotional and yelled “no” and then
stated that “I don’t live with Robbie any more because I don’t like him.” Dr.
Schlievert further testified that he did not conduct any type of interview because
G.B.’s emotional state was not conducive to participate in a discussion.
{¶42} In reviewing the record it is clear that the primary purpose for the
medical professionals’ interaction with G.B. was to provide medical treatment. In
each of these instances the trial court properly admitted G.B.’s statements as an
exception to the hearsay rule under Evid.R. 803(4). There is no indication that any
of the medical professionals solicited G.B.’s disclosures in a leading manner. In
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most cases, G.B. voluntarily disclosed the details of the abuse. There was no
indication G.B. had a motive to fabricate her statements. At the time G.B. made
these statements, she understood that she was receiving some type of assistance to
make her “better.” Additionally, G.B. consistently told the same version of events
to each medical professional over a six month period. All of these factors are
indicia of reliability that demonstrate the trial court did not abuse its discretion in
finding G.B.’s statements were made for the purposes of medical diagnosis and
treatment. Tebelman’s second assignment of error is therefore overruled.
The Third Assignment of Error
{¶43} In his third assignment of error, Tebelman argues that his conviction
was not supported by sufficient evidence and was against the manifest weight of
the evidence.
{¶44} In the former, the court must determine whether the evidence
submitted is legally sufficient to support all of the elements of the offense charged.
State v. Thompkins (1997), 78 Ohio St.3d 380, 386-87, 678 N.E.2d 541. In the
latter, the appeals court acts as a “thirteenth juror” to determine whether the trier
of fact lost its way and created such a manifest miscarriage of justice that the
conviction must be overturned and a new trial ordered. Id. at 387. Specifically,
we must determine whether the State has presented evidence which, if believed,
would convince the average mind of the defendant’s guilt beyond a reasonable
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doubt. The test is, viewing the evidence in a light most favorable to the
prosecution, could any rational trier of fact have found the essential elements of
the crime proven beyond a reasonable doubt. Id. at 390; State v. Jenks (1991), 61
Ohio St.3d 259, paragraph two of the syllabus, 574 N.E.2d 492. See also, State v.
Eley (1978), 56 Ohio St.2d 169, 383 N.E.2d 132; State v. Barns (1986), 25 Ohio
St.3d 203, 492 N.E.2d 192.
{¶45} Tebelman was convicted of one count of rape in violation of R.C.
2907.02(A)(1)(b). The relevant elements are as follows:
No person shall engage in sexual conduct with another who is
not the spouse of the offender or who is the spouse of the
offender but is living separate and apart from the offender,
when any of the following applies:
***
[T]he other person is less than thirteen years of age, whether or
not the offender knows the age of the other person.
In addition to the elements above, the prosecution had to prove the following three
specifications. G.B. was under ten years of age, Tebelman compelled her to
submit by force or threat of force, and Tebelman caused G.B. to suffer serious
physical harm.
{¶46} Several facts emerge from the record which are undisputed on
appeal. G.B. had just turned five years old when the incident occurred, and was
thereby well under ten years of age. Tebelman and G.B had a very close
relationship. Tebelman lived with G.B. and her mother for two and a half years
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and they all lived together in Columbus Grove at the time the incident occurred.
Tebelman testified that he played a large role as G.B.’s caretaker. Although G.B.
never referred to Tebelman as a father figure, by all accounts G.B. adored him
affectionately calling him her Robbie.
{¶47} The medical testimony from both the State and the defense witnesses
was overwhelmingly indicative of anal rape. Pictures of G.B.’s injuries were
admitted at trial showing two lacerations on her anus. Dr. Schlievert, a witness for
the defense, testified that had those injuries been inflicted on any other part of the
body, such as the arm, leg, or face, they would have required stitches. In addition,
G.B. independently complained of pain and discomfort in her genital area over a
three day period, from November 4 to November 6, 2008, to Kim and Mark
Fletcher, Robin Priest and Kelly Michael. Michael testified that, during the SANE
examination, G.B. pointed to her rectum where she claimed Robbie touched her
and where the lacerations were also present. Michael testified that this area was
still very tender and continued to cause G.B. to experience pain. Furthermore, Dr.
McGraw conducted a follow up examination of G.B. on November 19, 2008, and
testified that one of the lacerations on G.B.’s anus remained significant and
noticeably deeper than a superficial tear despite the passing of a two week period.
Dr. McGraw also testified the area where the laceration was located was still “very
tender” to the touch when she examined G.B.
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{¶48} In sum, the testimony of these witnesses demonstrated that the
injuries to five-year old G.B. were significant and that she suffered prolonged pain
over a period of at least two weeks. Accordingly, in our view, there is no question
that the evidence was sufficient to establish that G.B.’s injuries constituted serious
physical harm.
{¶49} On appeal, the only issue Tebelman contests is whether the
prosecution offered sufficient evidence to identify and convict him as the
perpetrator. The majority of Tebelman’s argument hinges on trial court’s
determination of G.B.’s competency to testify and the admissibility of G.B.’s
statements to people around her and medical professionals as to his identity.
Tebelman asserts that there were many people with the opportunity to commit the
rape. On the other hand, in G.B.’s testimony and in the numerous times she retold
the story to other witnesses, Tebelman was consistently identified as the person
who raped her.
{¶50} Thus, after viewing all the evidence in a light most favorable to the
prosecution, the evidence was sufficient for a rational trier of fact to find beyond a
reasonable doubt that Tebelman committed the offense of rape. Moreover, given
the overwhelming evidence presented at trial in support of a guilty verdict, this
Court cannot find that the jury lost its way in convicting Tebelman of this offense.
Accordingly, Tebelman’s third assignment of error is overruled.
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The Fourth Assignment of Error
{¶51} In his final assignment of error, Tebelman argues that the trial court
abused its discretion because it failed to consider the sentencing statutes in R.C.
2929.11-2929.14 when it sentenced Tebelman to the maximum sentence, life
imprisonment with no parole.
{¶52} Trial courts have full discretion to impose a prison sentence within
the statutory range. State v. Mathis, 109 Ohio St.3d 54, 62, 846, 2006-Ohio-855,
N.E.2d 1. Although a trial court is no longer required to make findings or give
their reasons for imposing a maximum sentence, it is still required to consider the
principles of sentencing set forth in R.C. 2929.11. However, as this Court has
noted, “the trial court is not required to discuss the factors on the record or even to
state on the record that it has considered the statutory language.” State v. Scott,
2008-Ohio-86, ¶ 49.
{¶53} R.C. 2907.02(B) provides that if the offender during or immediately
after the commission of the offense caused serious physical harm to the victim or
if the victim is under the age of ten, the offender is subject to life imprisonment
without parole. The sentencing judge is therefore permitted to sentence Tebelman
to life without parole upon finding either that the child was under the age of ten at
the time of the offense or that the victim suffered serious physical harm as a result
of the offense. In this case, the sentencing judge and the jury found both factors
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present.3 As such, by acting clearly within its statutory authority, the trial court
did not abuse its discretion in sentencing Tebelman to life imprisonment with no
parole. Tebelman fourth assignment of error is overruled.
{¶54} Based on the foregoing, the April 13, 2009 Judgment of the Court of
Common Pleas of Putnam County, Ohio sentencing Tebelman to life
imprisonment without parole for his conviction for rape is affirmed.
Judgment Affirmed
PRESTON, P.J., concurs.
/jlr
ROGERS, J., concurring separately.
{¶54} While I concur with the result reached by the majority, I feel it
necessary to make two observations.
{¶55} First, the hearsay exceptions defined in Evid.R. 803(4) are limited to
statements made for the purpose of medical diagnosis or treatment. The original
theory and purpose of the exception contained in Evid.R. 803(4) were to promote
accurate diagnosis and treatment of physical injuries and/or disease by physicians.
3
Both the jury and the judge found Tebelman guilty of all three specifications including that Tebelman
compelled G.B to submit by force or threat of force, in addition to G.B. being under the age of ten and
Tebelman causing her serious physical harm.
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Nowhere in this portion of Evid.R. 803(4) is there an exception included for social
workers or therapists. Unless and until the proper method of amendment to the
Rules of Evidence has been followed, this Court and the Ohio Supreme Court
should avoid any attempt to include such persons or professions within the stated
exception. If an extension of the rule is desired, let it proceed in the required
manner for amendments to the Rules of Evidence.
{¶56} It appears that some of the discussion between licensed social
worker Diane Gable and G.B. was simply sex education, but it led to statements
about the abuse which the majority accepts as proper exception under Evid.R.
803(4). Although I think that these statements provided to the social worker
should have been excluded in this case, I find any such error to be harmless due to
the amount of properly admitted evidence.
{¶57} Second, the majority opinion takes the term “serious physical harm”
too lightly.
{¶58} R.C. 2901.01(A) contains the following definition for serious
physical harm.
(5) "Serious physical harm to persons" means any of the
following:
(a) Any mental illness or condition of such gravity as would
normally require hospitalization or prolonged psychiatric
treatment;
(b) Any physical harm that carries a substantial risk of death;
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Case No. 12-09-01
(c) Any physical harm that involves some permanent
incapacity, whether partial or total, or that involves some
temporary, substantial incapacity;
(d) Any physical harm that involves some permanent
disfigurement or that involves some temporary, serious
disfigurement;
(e) Any physical harm that involves acute pain of such
duration as to result in substantial suffering or that involves any
degree of prolonged or intractable pain.
R.C. 2901.01(A)(5)(a)-(e).
{¶59} Only R.C. 2901.01(A)(5)(e) could possibly apply in this case.
Although the majority discusses lacerations, and pain and discomfort that may
have lasted for two weeks, I do not find that these constitute serious physical harm
as defined by the statute.
{¶60} However, R.C. 2907.02(B) provides that, when the victim is less
then ten years of age, the trial court may impose a sentence of life imprisonment
without parole. Therefore, I find no error in the sentence imposed in this case.
/jlr
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