State v. Bowleg

[Cite as State v. Bowleg, 2014-Ohio-1433.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 100263 and 100264
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
DANIEL BOWLEG, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-13-572944-B and CR-13-572944-A
BEFORE: Keough, P.J., E.A. Gallagher, J., and McCormack, J.
RELEASED AND JOURNALIZED: April 3, 2014
[Cite as State v. Bowleg, 2014-Ohio-1433.]
ATTORNEYS FOR APPELLANT
Timothy J. McGinty
Cuyahoga County Prosecutor
Brian M. McDonough
Joseph J. Ricotta
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
For Daniel Bowleg
Oscar E. Rodriguez
1220 West 6th Street, Suite 303
Cleveland, Ohio 44113
For Jackie J. Ray
Michael J. Goldberg
The Goldberg Law Firm
323 Lakeside Avenue, Suite 450
Cleveland, OH 44113
[Cite as State v. Bowleg, 2014-Ohio-1433.]
KATHLEEN ANN KEOUGH, P.J.:
{¶1} In these consolidated cases, the state of Ohio appeals from the
trial court’s judgment granting the motion in limine of defendants-appellees
Daniel Bowleg and Jackie J. Ray. We reverse and remand.
I. Background
{¶2} On March 29, 2013, Bowleg and Ray were indicted on one count
of kidnapping in violation of R.C. 2905.01(A)(4) and one count of rape in
violation of R.C. 2907.02(A)(2). The indictments stemmed from the alleged
rape of L.J. on March 31, 1993. As part of the state attorney general’s
recent sexual assault kit testing initiative, L.J.’s sexual assault collection kit
was submitted to the Ohio Bureau of Criminal Identification and
Investigation for testing and examination. Bowleg and Ray were identified
as matches for the DNA and subsequently indicted. They pleaded not guilty
and filed a motion to dismiss the indictment for pre-indictment delay and a
motion in limine to exclude L.J.’s medical records.
{¶3} The trial court held a hearing on the motions. The transcript of
the hearing and L.J.’s medical records, which were admitted at the hearing,
reveal the following. On March 31, 1993, L.J. reported to city of Cleveland
police that she had been raped by three males between the hours of 3:30 a.m.
and 5:00 a.m. while she was at a friend’s house in Cleveland. Emergency
Medical Services personnel, accompanied by a Cleveland police officer,
transported L.J. to Fairview Hospital at approximately 7:15 a.m., where she
was treated in the emergency room by Dr. David Pelini and registered nurse
Lili Torok. Dr. Pelini’s notes in the medical records state in pertinent part:
45 y/o F brought in stating that she has been raped. She alleges
assault by three men. She states there was vaginal penetration
and she believe[s] ejaculation by all three assailants. She denies
any rectal or oral penetration. She states that they did not use
condoms. She denies any injury or other assaults.
{¶4} Dr. Pelini’s physical exam of L.J. revealed alcohol on her breath
but no marks or bruises on her body; the pelvic exam revealed no signs of
trauma. A blood-alcohol test indicated that she had a blood-alcohol content
of .145. Vaginal swabs were taken and after laboratory tests were
conducted, L.J. was given Rocephin and prescribed Doxycycline (both
antibiotics). A pregnancy test was negative.
{¶5} A sexual assault collection kit was also performed on L.J. The
nurse’s notes from the sexual assault flowsheet state: “Pt. states she was not
wearing underwear or pantyhose at the time of the assault. * * * States
attacked by 3 people. Denies injury. * * * Pt. talking freely about assault.”
{¶6} Prior to discharge, L.J. was counseled about the risks of sexually
transmitted diseases, including HIV infection, and advised to seek
confidential testing. She was also advised to follow up with her own doctor
in three days. L.J. died in 2008; her boyfriend is also now deceased.
[Cite as State v. Bowleg, 2014-Ohio-1433.]
{¶7} After the hearing, the trial court granted the motion in limine,
holding that L.J.’s medical records were testimonial pursuant to Crawford v.
Washington, 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and
therefore inadmissible at trial. It held a ruling on the motion to dismiss in
abeyance pending the state’s appeal of its ruling on the motion in limine.
II. Analysis
{¶8} In its single assignment of error, the state contends that the trial
court erred in granting the defendants’ motion in limine because L.J.’s
statements to medical personnel contained in her medical records are
nontestimonial and admissible under Evid.R. 803(4).
{¶9} As an initial matter, we note that the trial court’s judgment is a
final, appealable order because the trial court treated the motion in limine as
a motion to suppress. “If a court treats a motion in limine as a final ruling
on the question of admissibility of evidence, the ruling is equivalent to the
grant of a motion to suppress and a final appealable order lies.” State v.
Holmes, 8th Dist. Cuyahoga No. 67838, 1995 Ohio App. LEXIS 621, *3 (Feb.
23, 1995), citing State v. Davidson, 17 Ohio St.3d 132, 477 N.E.2d 1141(1985).
{¶10} We apply a de novo standard of review to evidentiary questions
raised under the Confrontation Clause. State v. Babb, 8th Dist. Cuyahoga
No. 86294, 2006-Ohio-2209, ¶ 17.
[Cite as State v. Bowleg, 2014-Ohio-1433.]
{¶11} The Sixth Amendment’s Confrontation Clause provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be
confronted with the witnesses against him * * *.” The United States
Supreme Court has interpreted this to mean that the admission of an
out-of-court statement of a witness who does not appear at trial is prohibited
by the Confrontation Clause if the statement is testimonial, unless the
witness is unavailable and the defendant had a prior opportunity to
cross-examine the witness. Crawford v. Washington. 541 U.S. 36, 53-54, 124
S.Ct. 1354, 158 L.Ed.2d 177 (2004). Accordingly, the issue is whether L.J.’s
statements contained in her medical records were testimonial in nature and
therefore inadmissible pursuant to the Sixth Amendment, or whether they
were nontestimonial and admissible against Bowleg and Ray.
{¶12} Crawford did not define “testimonial” but stated generally that
the core class of statements implicated by the Confrontation Clause includes
statements “made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later
trial.” Id. at 52.
{¶13} In State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855
N.E.2d 834, the Ohio Supreme Court considered whether hearsay statements
by an adult rape victim to a nurse working in a specialized medical facility for
sexual assault victims were admissible when the victim was not available to
testify at trial. The court adopted the objective-witness test outlined in
Crawford for out-of-court statements made to non-law-enforcement
personnel, and concluded that in determining whether a statement is
testimonial for Confrontation Clause purposes, courts should focus on the
expectation of the declarant when making the statement. Id. at paragraph
two of the syllabus. Applying the objective-witness test, the court found that
the victim’s statements were made to a medical professional at a medical
facility for the primary purpose of receiving medical treatment and not
investigating past events related to criminal prosecution. Id. at ¶ 25. The
court held that the statements made by the rape victim to the nurse were
nontestimonial because the victim “could have reasonably believed that
although the examination conducted at the [sexual assault] unit would result
in scientific evidence being extracted for prosecution purposes, the statement
would be used primarily for health-care purposes.” Id. at ¶ 47.
{¶14} In State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875
N.E.2d 944, the Ohio Supreme Court held that the statements of a child
victim of sexual assault made to doctors and counselors about how her father
had sexually abused her were not testimonial and were admissible because
they had been made to medical personnel in the course of medical diagnosis
and treatment. The court held that “[s]tatements 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.” Id. at ¶ 63. The court also noted that “[t]he
fact that the information gathered by the medical personnel in this case was
subsequently used by the state does not change the fact that the statements
were not made for the state’s use.” Id. at ¶ 62. See also State v. Arnold,
126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 41 (“Statements
made for medical diagnosis and treatment are nontestimonial.”).
{¶15} In this case, the state contends that L.J.’s statements were made
while she was seeking medical treatment and, therefore, were nontestimonial
and admissible under Evid.R. 803(4), the medical records exception to the
hearsay rule. Bowleg and Ray, on the other hand, contend that L.J.’s
statements were testimonial because she was at the emergency room solely
for the purpose of collecting evidence to support a sexual assault
investigation. They argue that because L.J. denied any injury, she must
have believed that she did not need medical attention and, therefore, went to
the emergency room only to provide evidence that could be used in a future
prosecution. They argue further that her boyfriend and a Cleveland police
officer were in the room when the interview was conducted, so any statements
by L.J. were made to facilitate the investigation.
[Cite as State v. Bowleg, 2014-Ohio-1433.]
{¶16} We conclude that L.J.’s statements were made for the purpose
of medical diagnosis and treatment. First, prior to any treatment, she signed
a consent form giving her consent for medical treatment:
Permission is hereby given to the emergency physical, attending
and/or consulting physician, the authorities of Fairview General
Hospital and/or any house officer to perform such an operation,
diagnostic or therapeutic procedure or examination (including the
administration of an anesthetic) as in his/her or their judgment is
deemed advisable. I also authorize release of information for
insurance purposes.
{¶17} Notably absent is any authorization for her statements to be used
in a future prosecution.
{¶18} Furthermore, despite Bowleg and Ray’s argument to the
contrary, neither L.J.’s boyfriend nor law enforcement personnel were present
when she was examined. The nurse’s notes indicate that at 7:30 a.m., L.J.
“spoke briefly” with the Cleveland police officer who accompanied her to the
hospital. They also indicate that her boyfriend came into the examination
room at approximately 8 a.m. to visit and was escorted out at 8:25 a.m. before
the examination began.
{¶19} And finally, L.J.’s denial of any obvious physical injury is not
dispositive of her need for medical treatment. As the Third District stated in
State v. Wallace, 3d Dist. Union No. 14-10-20, 2011-Ohio-1728, ¶ 18:
A victim’s statement that she had been raped is relevant for
medical diagnosis and treatment because it directs medical
providers to examine the genital areas for physical injury,
administer a pregnancy test, and prescribe medications for the
prevention of sexually transmitted diseases * * *. A patient’s
statements concerning how the alleged rape occurred can be
relevant to show the “general cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment.”
Evid.R. 803(4). For example, the victim’s statements may guide
medical personnel to the particular area(s) of the victim’s body to
be examined for injury, as well as indicate which areas may need
more immediate treatment than others. State v. Menton, 7th
Dist. No. 07 MA 70, 2009-Ohio-4640, ¶ 51 (“* * * the description
of how the [sexual] assault took place, over how long of a period,
how many times a person was hit, choked or penetrated, and
what types of objects were inserted are all specifically relevant to
medical treatment. They are part of the medical history. They
are the reason for the symptoms. They let the examiner know
where to examine and what types of injuries could be latent.”)
{¶20} Here, the statements made by L.J. to Dr. Pelini and nurse
Torok are not testimonial, because an objective witness under the same
circumstances would not have reasonably believed that her statements would
be used later for trial. The records indicate that prior to going to the
emergency room, L.J. told the police that she had been raped by three men.
A reasonable person in L.J.’s place would have believed that her answers to
any investigatory questions asked by the police in response to her report
would be used at trial. State v. Lee, 9th Dist. Summit No. 22262,
2005-Ohio-996, ¶ 8. However, L.J. would have had no reason to believe that
her same statements about the alleged rape, when subsequently made to the
medical personnel at the hospital emergency room, would be used for
anything other than medical treatment. Id. Furthermore, L.J. could have
reasonably believed that although one purpose of the examination in the
emergency room was to collect physical evidence for prosecution purposes, her
statements would be used primarily for health-care purposes. Stahl, 111
Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, at ¶ 47.
{¶21} Because L.J.’s statements contained in the medical records are
not testimonial, they are admissible under Evid.R. 803(4), which provides a
hearsay exception for “[s]tatements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present symptoms, pain,
sensation, or the inception or general character of the cause or external
source thereof insofar as reasonably pertinent to diagnosis or treatment.”
Accordingly, the trial court erred in granting Bowleg and Ray’s motion in
limine to suppress the medical records. The assignment of error is
sustained.
{¶22} Reversed and remanded.
It is ordered that appellant recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
TIM McCORMACK, J., CONCUR
[Cite as State v. Bowleg, 2014-Ohio-1433.]