State v. Wolfe

Defendant-appellant, Scott H. Wolfe, was charged in an eight-count indictment with four counts of rape, in violation of R.C. 2907.02; one count of kidnapping, in violation of R.C.2905.01; and three counts of gross sexual imposition, in violation of R.C. 2907.05, for sexually abusing his stepdaughter, Angela Petsche. Appellant pled not guilty to the charges and was subsequently tried before a jury of his peers.

The evidence at trial established that the alleged abuse occurred between November 1982 and November 1984. Angela was born on December 13, 1978 and, thus, was almost four years old in November 1982. At the time of the alleged abuse, Angela resided with her mother, Suzanne Wolfe, her sister, Michelle Petsche, her stepbrother, Michael Wolfe, and her stepfather, Scott Wolfe, appellant herein.

Angela testified that the abuse occurred during the weekdays when her sister was in school and her mother was at work and only her stepbrother and appellant were at home. The abuse did not occur on the weekends. Angela testified appellant would lock the stepbrother in a bedroom by jamming a book in the door and then force or carry her into the master bedroom. In the bedroom appellant disrobed the child victim and forced her to engage in oral, vaginal and anal sex. Appellant warned the child never to tell anyone and threatened that, if she did tell anyone, he would kill her and God would strike her down.

Angela first revealed the sexual abuse to a camp counselor in the summer of 1989, five years after the separation of appellant and Suzanne Wolfe. The camp counselor convinced Angela to tell her father, David Petsche, about the abuse. The father reported the abuse to the police and took Angela to the Rainbow Babies' and Children's Hospital, where she was physically examined by Dr. Jean Smelker and Dr. Harold Ray Fisher. Both of these doctors testified as experts at trial and both opined, based on their examinations, that Angela had been sexually abused.

The jury found appellant guilty on all counts as charged. The trial court sentenced appellant to concurrent life terms on rape counts one and two, and counts three and four, with count one and four to be served consecutively; five to twenty-five years on the kidnapping count to be served consecutive to the life sentences, and no sentence on the three counts of gross sexual imposition, which were determined to be allied offenses of similar import.

Appellant has filed a timely appeal and now presents six assignments of error.

Assignment No. 1 "The trial court committed reversible error in not permitting a board certified pediatrician to testify regarding a physical examination and medical records concerning the examination performed by a pediatrician in his office which occurred during the alleged sexual abuse, the standards of the American Board of Pediatrics regarding a preschool examination and the areas of the anatomy required to be examined in a preschool physical."

Under the first assignment of error, appellant contends the court erred in allowing Dr. James Posch to assert the physician/patient privilege. This contention is without merit.

Posch was subpoenaed to bring the medical records of Angela's prekindergarten physical of July 1984. The examination was conducted by Posch's retired partner, Dr. James Lavrich. Posch appeared with the records and asserted the physician/patient privilege, pursuant to R.C. 2317.02. Appellant argues that the physician/patient privilege was voluntarily waived by Angela testifying and by having the medical doctor who was chosen by the state to examine Angela testify; that the privilege does not exist in criminal proceedings; and that the privilege was waived by R.C. 2151.421(A)(1), which requires a physician to report any condition that reasonably indicates abuse of a child to the county department of human services.

These arguments are not well taken.

The trial court did not perform an in camera review of the medical records but had Posch's attorney, Stephen T. Parisi, review the records to see if they contained any exculpatory information. Parisi represented to the court that Posch never performed a vaginal, genital, anal and/or urinary examination of Angela, and that the records did not specifically show that such an examination was performed. Thus, regardless of the privilege issues, Posch was not competent to testify regarding the examination performed by Lavrich. Evid.R. 602.

The first assignment of error is without merit.

Assignment No. 2 "The trial court erred in failing to grant an overnight continuance to allow the defendant to secure the attendance of a medical doctor who examined the urinary, vaginal, and anal areas of the alleged victim during the period in which the alleged daily sexual and anal intercourse occurred."

In the second assignment of error, appellant contends the trial court improperly denied him a continuance so that he could present the testimony of Lavrich. This assignment of error is not well taken.

Appellant claims that he could not locate Lavrich prior to trial and was only able to obtain information of the whereabouts of Lavrich after Posch testified. Posch indicated that Lavrich lived in Richmond Heights and that his telephone number and address were readily available by calling Posch's office. Posch indicated through his counsel that the defense never asked for Lavrich's address or telephone number. If they had, Posch would have freely given it to them. Thus, there was some indication that had the defense been more diligent in their efforts to locate Lavrich, they could have done so prior to trial.

The record indicates that the defense had the trial continued from January 22, 1990 until March 4, 1991, either by obtaining a continuance or by disregarding the trial court's denial of a continuance and failing to appear for trial. The record further indicates that the defense filed a discovery response on December 4, 1990 wherein it listed both Posch and Lavrich as potential witnesses. Thus, appellant had plenty of time to locate Lavrich prior to the trial on March 4, 1991.

After Posch testified, defense counsel obtained the information regarding Lavrich and sent a special process server to serve a subpoena requiring Lavrich to appear the following day at 9:00 a.m.

Based on the information obtained during the in camera discussions surrounding Posch's assertion of the doctor/patient privilege and the contents of the medical records, the trial court stated:

"At best the testimony of Dr. Lavrich would be that at some point prior to kindergarten, there was a visual examination of the little girl, at best would indicate there was nothing visible vaginally or anally. That is the best testimony. If that is the best testimony, that is submission to wait for, we will allow him to testify if he shows up prior to the conclusion of our charging the conference. It is now about two minutes to two. The Defense is going to rest and if the doctor shows up prior to our coming back into court before argument, I will allow you to reopen and present that evidence but I am not going to wait until tomorrow morning."

Lavrich failed to appear and the court proceeded to final argument and the charging of the jury.

It is well settled that the decision whether to grant or deny a continuance is within the sound discretion of the trial court. Absent an abuse of that discretion, this court will not reverse the trial court. State v. Sowders (1983), 4 Ohio St.3d 143, 4 OBR 386, 447 N.E.2d 118; State v. Unger (1981), 67 Ohio St.2d 65,67, 21 O.O.3d 41, 43, 423 N.E.2d 1078, 1080; State v.Holdsworth (Feb. 21, 1992), Portage App. No. 90-P-2231, unreported, 1992 WL 35040. Abuse of discretion connotes more than an error of law or judgment. It implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151,157-158, 16 O.O.3d 169, 172-173, 404 N.E.2d 144, 148-149. Based on the foregoing, we cannot conclude that the trial court abused its discretion in denying the continuance.

The second assignment of error is without merit.

Assignment No. 3 "The trial court erred in not permitting additional questioning of a prospective juror and in failing to excuse the juror for cause."

In the third assignment of error, appellant argues that the trial court should have allowed the defense additional questioning of a juror and should have excused that juror for cause. This argument is without merit.

After the defense used its last peremptory challenge, the next juror requested a conference in chambers, where he revealed that he was a victim of child abuse and that he could understand why a child would take so long to report a molestation. The record shows that defense counsel was afforded considerable latitude in questioning the juror. The trial court denied defense counsel's request to remove the juror for cause. The court explained:

"[The juror] indicated that he has an understanding of why a child may not come forward. There is a premise. That premise is finding that the child was abused. I think he indicated that he is perfectly able to find that premise and certainly able to judge the credibility of all the parties equally in this case including the young lady who I assume is going to testify.

"I have had the opportunity in chambers up close to personally observe [the juror] and I questioned myself [sic] and by both counsel and I feel that he can be fair, unbiased and unprejudiced witness [sic] and will not let this former incident interfere with his judgment. So I will let him remain."

No prejudicial error can be assigned to the examination of prospective jurors absent a clear abuse of discretion. State v.Durr (1991), 58 Ohio St.3d 86, 568 N.E.2d 674; State v. Ellis (1918), 98 Ohio St. 21, 120 N.E. 218. Based on our review of the record, we conclude that the trial court determined that the juror could be fair and impartial and properly exercised its discretion in allowing the juror to remain. Furthermore, defense counsel was allowed to question the juror at length, and appellant does not show that the trial court improperly limited the defense counsel's inquiry or the appellant has been prejudiced in any way.

The third assignment of error is not well taken.

Assignment No. 4 "The trial court erred in overruling the motion of the defendant for an independent psychological and physical examination of the alleged victim."

Under the fourth assignment of error, appellant argues that he is entitled to an independent psychological and physical examination of the victim when the state utilizes a psychologist and a doctor to examine the child and to render opinions on sexual abuse. Appellant requested an independent psychological and physical examination of the victim, which the trial court denied.

In support of his argument, appellant relies on the concurring opinions in State v. Boston (1989), 46 Ohio St.3d 108, 545 N.E.2d 1220. In Boston, the court held at the syllabus:

"An expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant."

The concurring opinions agreed that a rule should be adopted which would allow the defendant to have his own expert or have a court-appointed expert examine the child and make a report to the court which would make such report available to both sides, the state and the defendant. This, however, was not the holding in Boston or "the proper subject of syllabus law." Id. at 131,545 N.E.2d at 1242. The concurring justices did agree with the majority that such a rule is for the Ohio Supreme Court Advisory Committee and the General Assembly to establish.

Thus, under the holding of Boston, appellant is not entitled to have his own expert examine the child. Appellant's counsel admitted as much at trial when he conceded that under present law, appellant is not entitled to such examination.

The holding of Boston has been interpreted to preclude a defendant from offering expert opinion testimony to attack the child victim's veracity or to show that the child was susceptible to suggestion or influence and is lying. Just asBoston precludes an expert from testifying as to the veracity of the victim, so it also precludes expert testimony to attack the veracity or credibility of the victim. See State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552 N.E.2d 894, 899; State v.Cantlebarry (1990), 69 Ohio App.3d 216, 590 N.E.2d 342.

Based on the foregoing, we conclude that the trial court did not err in overruling appellant's motion. The fourth assignment of error is without merit.

Assignment No. 5 "The trial court erred in allowing Dr. Jean Smelker to render an opinion regarding the alleged abuse."

In the fifth assignment of error, appellant argues the trial court erred in allowing Dr. Smelker to give her expert opinion that Angela was a sexually abused child.

Based on the child's behavior, the physical findings, which included a thickened rim on the hymen and a white line running down the posterior fourchette, and the history given by the child, Dr. Smelker opined that "I believe Angela presented as a sexually abused child." Appellant argues that this opinion is a non-opinion and does not assist the trier of fact but confuses the trier of fact. This argument is without merit.

In Boston, supra, the court set forth guidelines in dealing with sexual abuse cases. The court specifically held that in such cases expert testimony is perfectly proper, pursuant to Evid.R. 702, 703, 704, and 705, and such experts are not limited to persons with scientific or technical knowledge but include other persons who have acquired "specialized knowledge" through experience, training and education. Id., 46 Ohio St.3d at 126,545 N.E.2d at 1237. "[A]n expert's opinion testimony on whether there was sexual abuse would aid jurors in making their decision and is, therefore, admissible pursuant to Evid.R. 702 and 704."Id. at 128, 545 N.E.2d at 1239. However, an expert may not testify as to the expert's opinion regarding the veracity of the child's statements. Id. at 129, 545 N.E.2d at 1240.

Appellant does not argue that Dr. Smelker improperly testified as to the veracity of Angela's statement that appellant sexually abused her. Thus, it is clear that under the law as set forth in Boston, supra, Smelker's testimony was properly admitted. Furthermore, there is no evidence to support appellant's allegation that the jury was confused.

Accordingly, the fifth assignment of error is overruled.

Assignment No. 6 "The trial court erred in not allowing the defendant to cross-examine the witnesses regarding abuse and neglect of the alleged victim by her mother."

In the sixth assignment of error, appellant argues that the trial court erred in not allowing him to cross-examine the child's father and the two experts regarding an affidavit the father filed in the domestic relations case in which custody of the abused child was in dispute. The father's affidavit alleged that Angela was physically, emotionally, and mentally abused and neglected by her mother.

In ruling on the state's motion in limine, the trial court warned appellant's counsel not to inquire into the domestic relations matters without the court's permission. However, the trial court indicated that it might allow examination regarding the affidavit if appellant could establish a sufficient "tie."

Evid.R. 611(B) states:

"Cross-examination shall be permitted on all relevant matters and matters affecting credibility."

Relevant evidence is evidence which has a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R. 401. The scope of the cross-examination is solely within the sound discretion of the trial court. State v. Acre (1983), 6 Ohio St.3d 140, 6 OBR 197,451 N.E.2d 802; Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 24 O.O.3d 322, 436 N.E.2d 1008.

Appellant failed to establish, to the trial court's satisfaction, a sufficient "tie" or show that the domestic relations matter was relevant to the charges against the appellant and, thus, the trial court properly exercised its discretion in not permitting cross-examination on these matters which were not relevant.

The sixth assignment of error is without merit.

Based on the foregoing, the judgment of the trial court is affirmed.

Judgment affirmed.

EDWARD J. MAHONEY, J., concurs.

CHRISTLEY, P.J., dissents.

EDWARD J. MAHONEY, J., retired, of the Ninth Appellate District, sitting by assignment.