State v. Turner , 2020 Ohio 1548 ( 2020 )

[Cite as State v. Turner, 2020-Ohio-1548.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BROWN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2019-05-005
: OPINION
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:
JONATHAN W. TURNER, :
Appellant. :
CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
Case Nos. CRI2018-2003 and CRI2018-2077
Zachary A. Corbin, Brown County Prosecuting Attorney, Mary McMullen, 740 Mt. Orab Pike,
Suite 1, Georgetown, Ohio 45121, for appellee
Law Office of Eric E. Willison, Eric E. Willison, 4876 Cemetery Road, Hilliard, Ohio 43026,
for appellant
PIPER, J.
{¶1} Appellant, Jonathan Turner, appeals his convictions in the Brown County Court of
Common Pleas for multiple counts of rape, gross sexual imposition, and felonious assault.
{¶2} Turner lived with his girlfriend ("Mother"), who had four children. Mother
worked second shift, and Turner watched the children while Mother was at work. Turner
began sexually abusing one of Mother's children, L.W., who was seven years old at the
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time. The sexual abuse ended three years later when Turner left the home. After Turner
moved out of the home, L.W. told Mother and a school guidance counselor about the abuse.
{¶3} Mother called 9-1-1 twice to report the abuse, but police did not come to her
home. Mother then went to the Brown County Sherriff's Office to report the abuse and
detectives began an investigation. Mother gave the detectives several pairs of the child's
panties, some of which she found buried beneath a pile of laundry in her home and some
of which were found under the child's bed in L.W.'s bedroom.
{¶4} Mother also took the child to the Mayerson Center for Safe and Healthy
Children and reported the abuse to the Brown County Department of Job and Family
Services. Mother further obtained a protection order against Turner.
{¶5} The child's panties were tested as part of the police investigation, and 15 pairs
of the panties testified positive for semen. Turner's DNA was a match for the semen found
on the panties, and on some pairs, Turner's DNA was mixed with L.W.'s. The police also
interviewed witnesses. Mother and one of her sons told officers that at different times, they
had found L.W. locked in her bedroom with Turner, that L.W. would sit on Turner's lap, and
that L.W. had bled from her vagina before the child began menstruating. The child's
guidance counselor relayed that the child had been suffering from anxiety, was withdrawn
and isolated, and began having panic attacks at school; once immediately after a math
problem that included the name, "Jon." The child also talked of self-harm and cutting herself
and was ultimately diagnosed with post-traumatic stress disorder ("PTSD").
{¶6} Turner was indicted for four counts of rape, three counts of gross sexual
imposition, and, in a related case, felonious assault based on L.W.'s PTSD. The cases
were consolidated, and Turner pled not guilty. A jury trial was scheduled for November 13,
2018 but not enough potential jurors reported, and the court declared a mistrial. Upon
agreement of the parties, the trial court rescheduled trial for April 8, 2019.
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{¶7} From the time of his arrest, Turner remained incarcerated and unable to post
bail. Three days before the trial date, Turner filed a motion to dismiss on speedy trial
grounds. On the first day of trial, the court denied Turner's motion to dismiss and the matter
proceeded. The jury found Turner guilty on all counts. The trial court sentenced Turner to
an aggregate sentence of life in prison without the possibility of parole. Turner now appeals
his convictions, raising the following assignments of error for review.
{¶8} Assignment of Error No. 1:
{¶9} THE TRIAL COURT ERRED WHEN IT ALLOWED APPELLEE TO REDACT
ITS POLICE INTERVIEW OF APPELLANT TO EXCLUDE ANSWERS SHOWING
APPELLANT'S WILLINGNESS TO TAKE A POLYGRAPH EXAMINATION AND THEN
SHOWED THE INCOMPLETE VIDEO TO THE JURY.
{¶10} Turner argues in his first assignment of error that the trial court erred in
allowing the state to redact questions and answers from Turner's videotaped police
interview related to Turner's willingness to take a polygraph test.
{¶11} A trial court's decision to admit or exclude evidence will not be reversed by a
reviewing court absent an abuse of discretion. State v. McLaughlin, 12th Dist. Clinton No.
CA2019-02-002, 2020-Ohio-969, ¶ 42. An abuse of discretion implies more than an error
of law or judgment; it suggests that the trial court acted in an unreasonable, arbitrary, or
unconscionable manner. State v. Babyak, 12th Dist. Madison No. CA2019-08-025, 2020-
Ohio-325, ¶ 11.
{¶12} Evidence regarding polygraph tests is generally excluded unless the
prosecution and defense jointly stipulate in writing to its admissibility, and the court in its
sound discretion decides to accept such evidence. State v. Fulton, 12th Dist. Clermont No.
CA2002-10-085, 2003-Ohio-5432, ¶ 17. This is true because "such tests have not been
recognized by the scientific community as being a reliable method for determining the
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veracity of the examinee." State v. Russell, 2d Dist. Montgomery No. 21458, 2008-Ohio-
774, ¶ 87.
{¶13} Moreover, "a defendant's professed willingness to submit to a polygraph test
is inadmissible and testimony concerning it can constitute prejudicial error." State v.
Banner, 8th Dist. Cuyahoga No. 94078, 2010-Ohio-5592, ¶ 22. See also State v. Raypole,
12th Dist. Fayette No. 80-CA-6, 1981 Ohio App. LEXIS 14286 (July 1, 1981) (affirming trial
court's decision to exclude a question asking whether the witness had agreed to submit to
a polygraph examination).
{¶14} The record indicates that during a police interview, detectives asked Turner
how and why his DNA was found on the child's panties. Turner tried to explain the presence
of his DNA and during the discussion, the detectives asked Turner if he was willing to submit
to a polygraph examination. Turner answered "yes." During trial, the trial court admitted
the videotaped interview, but reference to the polygraph examination and Turner's
willingness to take one was redacted.
{¶15} The law is clear in Ohio that polygraph examinations are generally distrusted,
and evidence related to their use is exceptionally limited. This is especially true where the
purported evidence is only a question regarding one's willingness to submit to an
examination and one's answer regarding that willingness. Had the jury heard the question
and answer, but were not provided the result of such examination, there is little doubt that
the jury would have speculated as to the results and why such were not provided during
trial.
{¶16} Even if some probative value had been inherent in Turner's willingness to
submit to a polygraph examination, any value would have been substantially outweighed
by the prejudicial impact of the results not being admitted and the resulting speculation from
the jury. See State v. Hamon, 5th Dist. Delaware No. 12 CAA 12 0089, 2015-Ohio-887, ¶
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22 (noting that polygraph examination results do "not have the accuracy entitling it to
admission in evidence. It follows that a refusal or willingness to take a test of which the
result would have been without value in evidence, likewise has no value for the fact finder").
{¶17} We find that the trial court did not abuse its discretion by refusing to admit
evidence of Turner's willingness to take the polygraph exam. Thus, Turner's first
assignment of error is overruled.
{¶18} Assignment of Error No. 2:
{¶19} THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT THE
APPELLANT'S MOTION TO DISMISS ON SPEEDY TRIAL ACT GROUNDS.
{¶20} Turner argues in his second assignment of error that the trial court erred in
denying his motion to dismiss on speedy trial grounds.
{¶21} The Sixth Amendment to the United States Constitution and Article I, Section
10 of the Ohio Constitution guarantee the right to a speedy trial. The statutory speedy trial
provisions set forth within R.C. 2945.71 are coextensive with the constitutional speedy trial
provisions. State v. King, 70 Ohio St.3d 158, 160 (1994).
{¶22} According to R.C. 2945.71(C)(2), "[a] person against whom a charge of felony
is pending * * *[s]hall be brought to trial within two hundred seventy days after the person's
arrest." R.C. 2945.91(E) further provides, "for purposes of computing time * * * each day
during which the accused is held in jail in lieu of bail on the pending charge shall be counted
as three days."
{¶23} When an appellant raises a violation of a speedy trial issue, an appellate court
must compute a "try-by date." State v. Watkins, 12th Dist. Warren No. CA2013-02-017,
2014-Ohio-177, ¶ 13. The court of appeals must count the days of delay chargeable to
either side and determine whether the case was tried within the statutory time limits. State
v. McCaleb, 12th Dist. Warren No. CA2016-12-103, 2017-Ohio-6944, ¶ 9. R.C. 2945.72(H)
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extends the time within which the defendant must be brought to trial for the period of any
continuance granted on the defendant's own motion, and the period of any reasonable
continuance granted other than upon the defendant's own motion. For example, a trial
court's crowded docket is a reasonable basis necessitating a continuance under R.C.
2945.72(H). State v. Noble, 12th Dist. Clinton No. CA2007-03-008, 2008-Ohio-355, ¶ 11.
{¶24} According to the record, the original trial commenced on November 13, 2018.
The parties began voir dire, and soon realized, based on their intention to execute
challenges to some of the jurors who reported, that there were not enough potential jurors
to continue. The parties agreed on record that there was not a possibility that a jury could
be empaneled, and also agreed that the trial court should declare a mistrial.
{¶25} The parties and trial court then engaged in discussions regarding a retrial
date. The parties recommended that the trial could take up to five days, and the court
offered a trial date that was rejected by defense counsel because of that date occurring
during the spring break of his children. The trial court then suggested a second trial date,
and the parties agreed to that trial date of April 8, 2019. The court then specifically
continued the case until the agreed-upon trial date, and noted that such was the first
available trial date "so there's no speedy trial time." At no point did Turner object or question
whether the continuance was necessary or reasonable.
{¶26} The record clearly indicates that the trial court reasonably continued the trial
given an inability to seat a jury on the initial trial date. The record also clearly indicates that
the trial court, with express input from the parties, chose the first available trial date based
on its docket and the need for a five-day jury trial. The reasonableness of the trial court's
continuance is aided by the fact that the trial court rescheduled Turner's trial immediately
upon learning of the inability to seat a jury so that the retrial could occur at the first possible
opportunity.
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{¶27} After reviewing the record, we find the time between the original trial and
eventual trial was tolled and Turner was tried within the prescribed timeframe required by
statute. Thus, Turner's speedy trial rights were not violated, and his second assignment of
error is overruled.
{¶28} Assignment of Error No. 3:
{¶29} THE TRIAL COURT ERRED WHEN IT REPEATEDLY ALLOWED THE
ADMISSION OF HEARSAY EVIDENCE.
{¶30} Turner argues in his final assignment of error that the trial court erred in
admitting hearsay testimony.
{¶31} As noted above, the admission of evidence rests within the trial court's
discretion and such decisions will not be reversed absent an abuse of discretion. State v.
Lark, 12th Dist. Fayette No. CA2018-03-004, 2018-Ohio-4940. Hearsay is 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. Evid.R. 801(C). Hearsay is inadmissible
unless it falls within one of the enumerated exceptions in the rules or is otherwise excepted.
State v. Villani, 12th Dist. Butler No. CA2018-04-080, 2019-Ohio-1831, ¶ 22.
A. Child's Statement Regarding Abuse
{¶32} Turner first challenges the admission of the child's statement to Mother
regarding Turner's abuse. "It is well established that extrajudicial statements made by an
out-of-court declarant are properly admissible to explain the actions of a witness to whom
the statement was directed." State v. Thomas, 61 Ohio St.2d 223, 232 (1980). A statement
is not hearsay when introduced to show its effect on the listener. State v. Osie, 140 Ohio
St.3d 131, 2014-Ohio-2966, ¶ 122.
{¶33} The record indicates that the child made a statement to Mother that Turner
had sexually abused her. Mother testified that after hearing the child's statement, she called
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9-1-1 given the child's allegation of abuse and called again when police did not respond.
Also, based on the child's statement regarding abuse, Mother went to the police station and
then took the child to the Mayerson Center. Mother would not have taken such actions but
for the child's disclosure to her. Thus, the hearsay testimony was used to explain Mother's
actions, not prove that Turner had in fact abused the child.
{¶34} Moreover, the trial court gave a limiting instruction that the statement could
only be used to explain why Mother reacted the way she did, but not to prove the truth of
the matter asserted that Turner abused the child. Thus, the evidence was properly
admitted.
B. 9-1-1 Call
{¶35} The trial court also admitted a recording of Mother's 9-1-1 call regarding the
child's statement that Turner sexually abused her. Testimony offered to explain the
investigative activities of witnesses, and not offered to prove the truth of the matters
asserted, is admissible. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 98.
{¶36} The record indicates that Mother called 9-1-1 after speaking with the child and
relayed to the dispatcher what the child told her. Mother was told an officer would respond
to take her report, but none ever came. As a result, Mother called 9-1-1 again, about an
hour later, and then went to make an in-person report after speaking with the dispatcher.
{¶37} The 9-1-1 call was used to show why Mother called twice and why she made
an in-person report at the police station, as well as how the investigation began based on
Mother's report. However, the call was not used to prove that Turner abused the child, and
the trial court gave a limiting instruction indicating as much. Thus, the trial court did not
abuse its discretion in permitting the evidence.
C. Statements to Guidance Counselor
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{¶38} The trial court allowed the child's school guidance counselor to testify to
statements the child made about the abuse she incurred. 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 are admissible as
a hearsay exception. Evid.R. 803(4). Medical diagnosis includes mental health, not just
physical symptoms, pain, or sensations so that statements made to mental health care
providers can be included within the confines of Evid.R. 803(4). In re S.A., 12th Dist. Butler
Nos. CA2017-07-092 thru CA2017-07-098, 2017-Ohio-8792, ¶ 41.
{¶39} In S.A., we considered whether statements made by an abused child to a
therapist could be admissible pursuant to Evid.R. 803(4) and determined that the
statements were admissible as an exception to the hearsay rule. Therein, the child
discussed traumatic events with her therapist to develop skills to cope with the events and
move forward. This court noted that the abuse suffered by the child was the type of
traumatic event underlying the child's depressive symptoms which her therapist hoped to
improve. As such, we determined that the child made the statements for the purpose of
receiving treatment for her mental health. The same reasoning applies to the case sub
judice wherein L.W. discussed her symptoms to seek treatment for her mental health
issues.
{¶40} The child's school guidance counselor, who had a bachelor's degree in
psychology and a master's degree in school counseling, testified that her role as a guidance
counselor includes "psychological treatment" for students. The counselor also provided
referrals to other outside sources for the purpose of medical treatment.
{¶41} The counselor testified that L.W. came to her with anxiety and panic attacks
while at school. At first, the two discussed ways to cope with anxiety, such as breathing
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exercises and meditation. The counselor charted L.W.'s "symptoms" over time and noted
that the child was withdrawing more, was becoming more isolated, and had difficulty making
eye contact. She also testified that when the child was ten years old, L.W. told her she
thought she had started her period the night before because her vagina was bleeding.1
Eventually, after meeting with the counselor over the course of two school years, L.W. told
the counselor about the sexual abuse. The counselor testified that she immediately
contacted children services, and that she told Mother to take the child to the Mayerson
Center for medical and psychological attention.
{¶42} After the child's disclosure, the counselor continued to provide mental health
support to the child, especially when the child suffered panic attacks at school. During
these times, the child would cry and could not stand up, and would be taken to the
counselor's office for help. For example, on one occasion, the child was brought to the
counselor's office after she broke down in math class when the class was working on a
problem that included the name "Jon." The counselor would then help the child work
through her panic attack until she was well enough to return to class.
{¶43} Based on these circumstances, the trial court did not abuse its discretion in
permitting the counselor's testimony about what the child told her as an exception to the
hearsay rule. While not all guidance counselors provide medical or psychological support
to their students, it is clear that L.W.'s guidance counselor was testifying specifically about
statements the child made to her for purposes of treatment. The child described her
symptoms and sensations, including mental and physical indications of her anxiety and
panic, as well as their cause, so that the counselor could help the child or refer her and
Mother to the proper treatments outside of school. Thus, according to Evid.R. 803(4), the
1. The child testified that she had not started to menstruate as she first believed, but had began bleeding
after being vaginally raped by Turner the previous night.
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child's statements regarding the abuse she incurred was admissible as an exception to the
hearsay rule.
{¶44} However, and even if the testimony did not qualify as a statement for purposes
of medical diagnosis, we would not find the admission of the testimony to be reversible
error.2 Instead, the testimony was cumulative to other testimony and evidence, including
the child's own testimony of the abuse, which was subject to cross-examination. Also, there
was overwhelming evidence of guilt, including DNA evidence demonstrating the sexual
nature of Turner's abuse of the child.
D. Mother's Statements to L.W.'s Grandmother
{¶45} L.W.'s grandmother ("Grandmother") testified that Mother called her and told
her that the child had disclosed Turner's abuse. A statement relating to a startling event or
condition made while the declarant was under the stress or excitement caused by the event
or condition is admissible as an excited utterance exception to the hearsay rule. Evid.R.
803(2). An out-of-court statement qualifies as an excited utterance if "(1) the statement was
made in reaction to a startling event; (2) the statement was made under the stress of
excitement caused by the event; and (3) the statement relates to the event. State v.
Cooperstein, 12th Dist. Warren No. CA2018-09-117, 2019-Ohio-4724, ¶ 86.
{¶46} Mother called Grandmother and told her about Turner's abuse of the child.
Grandmother testified that Mother was "hysterical," "crying," and "sobbing" during the phone
call and that Mother could not be understood sometimes during the call. Thus, (1) Mother's
phone call to Grandmother was made in reaction to the startling event of her daughter
2. Mental health diagnosis and treatment has not always been included when analyzing Evid.R. 803(4). State
v. Eastham, 39 Ohio St.3d 307 (1988). In Eastham, Justice Brown determined in a concurring opinion that a
guidance counselor was not included as a medical provider subject to Evid.R. 803(4) because the counselor
did not provide treatment or diagnosis of a physical condition. In so deciding, Justice Brown relied on the
theory that statements made for a "mental health condition * * * are not imbued with the same aura of reliability"
as those regarding physical conditions. This theory has been expressly rejected since the time of Justice
Brown's concurrence in Eastham. State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267.
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revealing sexual abuse, (2) Mother's statements were under the stress of learning of the
abuse because she was hysterical and still very emotional at the time she was talking to
Grandmother, and (3) the phone conversation related to L.W. disclosing the abuse. The
record clearly establishes that Grandmother's testimony about Mother's statements was
properly admitted as an excited utterance.
E. Mayerson Center Interview
{¶47} During trial, the state played the recording of the child's interview at the
Mayerson Center over Turner's objection. Evid.R. 801(D)(1)(b) permits the admission of
statements made by the declarant prior to trial that are consistent with his or her testimony.
Evid. R. 801(D)(1)(b) permits the rehabilitation of a witness whose credibility has been
attacked by means of a charge that she recently fabricated her story by admitting into
evidence a consistent statement made by the witness prior to the time of the suggested
invention or of the emergence of the motive to falsify, as tending to rebut the charge.
{¶48} In order for this exception to apply, the declarant must be subject to cross-
examination and the statement must be offered to rebut an accusation that the declarant
lied or was improperly influenced in her testimony. State v. Glossip, 12th Dist. Warren No.
CA2006-04-040, 2007-Ohio-2066, ¶ 31. To be admissible, prior consistent statements
must have been made before the existence of any motive or influence to falsify testimony.
Id. at ¶ 32.
{¶49} After L.W. was cross-examined, the state presented the recording of L.W.'s
forensic interview at the Mayerson Center. The trial court determined that the recording
was admissible because cross-examination was an implied challenge of fabrication based
on the questions asked by defense counsel.
{¶50} We find no abuse of discretion in the trial court's determination. By virtue of
cross-examination and the questions posed to the child, defense counsel implied that the
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child fabricated information or was improperly influenced in her testimony. For example,
during cross-examination, defense counsel suggested through questions that L.W. had
relayed information that she had actually overheard in "grownup conversations." Defense
counsel also suggested that blood from L.W.'s vagina was actually from constipation, rather
than from being vaginally raped. Counsel also asked whether L.W. was "a hundred percent
accurate" in regard to her telling what the child called the "Something Very Bad Story."
When the child answered that she had been accurate, counsel referenced "a lot of
discrepancies * * *." Counsel also asked L.W. whether she realized how serious the
situation was.
{¶51} When all of the cross-examination questions are considered in context, the
record indicates that defense counsel's strategy was to suggest that the child's testimony
had been influenced or that she was not relaying accurate and consistent information and
therefore must not be telling the truth. Thus, the trial court did not abuse its discretion in
determining the recording of L.W.'s interview was admissible as a hearsay exception.
F. Statements to the Mayerson Center Social Worker
{¶52} The state presented testimony from a social worker with the Mayerson Center
who testified about statements the child made to her during a forensic interview. As noted
above, statements made for the purpose of medical diagnosis are an exception to the
hearsay rule. Specifically, statements made to a social worker for the purposes of medical
diagnosis and treatment are an exception to the hearsay rule. State v. Arnold, 126 Ohio
St.3d 290, 2010-Ohio-2742.
{¶53} In Arnold, the Ohio Supreme Court differentiated between statements made
for medical diagnosis and those for investigatory purposes during a forensic interview at a
treatment center. The court held that the child-victim's statements to the social worker were
for the purpose of medical diagnosis when the child identified the perpetrator, discussed
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the type of abuse alleged, gave a time frame of the alleged abuse, and identified the areas
where the child had been touched.
{¶54} L.W. gave similar information to the Mayerson Center social worker, who
testified that she shares information taken from the forensic interview with the medical staff
at the Mayerson Center to determine what treatment the child needs. Specifically, the social
worker testified that she consults with the nurses and physicians and receives medical
recommendations based on what a child-victim tells her.
{¶55} Regarding L.W., the social worker testified that the child identified Turner as
her abuser, described several different incidents of inappropriate sexual contact, and that
the child identified the areas Turner touched her and forced her to touch him. L.W. told the
social worker that Turner touched her vagina with his hands, put his penis inside her vagina
and mouth on multiple occasions, and that Turner kissed her mouth and put his mouth on
her chest. L.W. also referred to Turner's ejaculations as "his sweat" and told her that it was
"wet, sticky, and gross." The social worker testified that as a result of the child's disclosures,
the child had a full medical evaluation performed and was given treatment
recommendations moving forward, including psychological referrals.
{¶56} The information given the social worker is the same as that discussed in
Arnold and found admissible by the Ohio Supreme Court. We find the trial court did not
abuse its discretion in permitting the statements as a hearsay exception for the purposes
of medical diagnosis and treatment.
G. Statements Made to Psychotherapist
{¶57} The child's psychotherapist testified about the statements L.W. made to her
about the abuse. These statements were made specifically for the purpose of medical
diagnosis, as the psychotherapist used the statements to diagnose the child with post-
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traumatic stress disorder and treat her accordingly. Thus, the trial court did not abuse its
discretion in admitting the testimony.
H. Cumulative Error
{¶58} Turner also argues that the cumulative effect of admitting the hearsay
statements resulted in reversible error. According to the doctrine of cumulative error, a
reviewing court "will reverse a conviction when the cumulative effect of errors deprives a
defendant of a fair trial even though each of the instances of trial-court error does not
individually constitute cause for reversal." State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-
1966, ¶ 140. Harmless or nonprejudicial errors cannot become prejudicial by sheer number
of alleged errors alone. State v. Wilson, 12th Dist. Warren No. CA2018-03-022, 2019-Ohio-
338, ¶ 25.
{¶59} Despite Turner's multiple assertions that the trial court abused its discretion
in permitting hearsay evidence, there is no danger of an unfair trial because each of the trial
court's decisions were correct. As such, cumulative error does not apply, and Turner's final
assignment of error is overruled.
{¶60} Judgement affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.
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