State v. Heiney
| Decision Date | 24 August 2018 |
| Docket Number | No. L-16-1042,L-16-1042 |
| Citation | 117 N.E.3d 1034,2018 Ohio 3408 |
| Parties | STATE of Ohio, Appellee v. Jake Paul HEINEY, Appellant |
| Court | Ohio Court of Appeals |
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Deborah K. Rump, Toledo, for appellant.
DECISION AND JUDGMENT
{¶ 1} The defendant-appellant, Jake Paul Heiney, appeals the February 29, 2016 judgment of conviction finding him guilty of two counts of gross sexual imposition and one count of tampering with records. The Lucas County Court of Common Pleas sentenced him to 180 days in jail, 90 days in the county work release program, fined him $5,000, and designated him a Tier 1 sex offender. For the following reasons, we affirm.
{¶ 2} Heiney is an orthopedic surgeon who ran his own medical practice, called Cutting Edge Orthopedics. He operated two offices, one in Sylvania, Ohio, and the other in Lambertville, Michigan. In this case, Heiney is alleged to have touched two female patients inappropriately while examining them at his Sylvania office in early 2015. The patients, referred to as "M.S." and "K.O.," offered the following testimony at trial.
{¶ 3} M.S., a 42-year-old woman, first treated with Heiney in 2010. In 2014, she returned to Heiney with complaints of left shoulder pain and weakness. M.S. treated with Heiney a total of four times for left shoulder pain. The pain was localized to her left shoulder; it did not radiate to her chest, breast area, or any other area. The first two appointments were uneventful.
{¶ 4} M.S.'s third appointment occurred on January 8, 2015. Heiney examined M.S. with the door closed but unlocked; no one else was in the room at the time. M.S. was wearing a tank top with thin straps and a bra, and she was seated at the exam table. Heiney asked if he could pull the straps down so that he could examine her shoulder, and M.S. said, "Okay." While preparing to give M.S. an injection, Heiney explained that he would put gauze inside her bra because he "didn't [want to] get anything on [her] pretty pink bra." M.S. "tried to ignore" and "blow off" the comment, although it "felt weird." According to M.S., Heiney then "pulled out the cup of my bra and he * * * tucked [the gauze] like all the way underneath my breast, and the back of his hand was brushing
my breast as he kept tucking [the gauze] down." Heiney gave M.S. the injection.
{¶ 5} According to the indictment, the alleged criminal conduct occurred during M.S.'s fourth and final appointment on February 12, 2015. M.S. complained of "progressively * * * worse" shoulder pain, although still localized to the shoulder. During the exam, M.S. sat upright on the exam table. She testified that Heiney "asked if it was okay * * * to take my arm out of my shirt this time." At the last appointment, Heiney had only sought permission to lower the straps of her bra and tank top. M.S. said, "okay" because, as she explained, Heiney helped M.S. pull her arm out of her shirt, and then examined her left bicep by placing pressure on her arm with his hands. M.S. experienced discomfort to her bicep because he "press[ed] so hard for so long." Heiney told her that pain from her breast can radiate to the arm, and he asked to perform a "breast exam," to which she agreed. According to M.S., Heiney pulled the cup of her bra down, which completely exposed her breast. He "pushed on my breast all over the top and underneath and then he squeezed it between his fingers, and he pushed on it some more." While examining her breast, Heiney asked if it hurt, and M.S. said "no." She testified, "I didn't have any pain * * * because [my breast] wasn't hurting me to begin with." M.S. felt "uncomfortable" and "pretend[ed to be] somewhere else."
{¶ 6} Heiney then examined her neck, and they discussed the fact that M.S. was also experiencing headaches. Next, Heiney asked to examine M.S.'s breast again, which he did by "push[ing] on it a couple times." He then prepared to give M.S. an injection in her arm. Heiney, again, pulled the cup of her bra away from her body, and placed a piece of gauze "deep inside the bra under [her] breast." He also commented that "women always [wear] white bras to the doctor." No one was in the office at the time, and M.S. does not recall that Heiney wore gloves during his examination of her.
{¶ 7} After her appointment, M.S. felt "embarrassed * * * angry [and] ashamed." She did not return for further treatment. Two weeks later, M.S. requested and received her medical chart from Heiney's office.
{¶ 8} M.S. then sought treatment from Dr. Christopher Foetisch, also an orthopedic surgeon, who told her that her shoulder was dislocating and needed surgery. They also discussed how Dr. Foetisch conducts physical exams, and based on that conversation as well as her own feelings, M.S. concluded that Heiney's conduct had been improper.
{¶ 9} M.S. filed a complaint against Heiney with the State Medical Board of Ohio ("SMBO") on April 1, 2015. In it, M.S. complained of "sexual misconduct" and "inappropriate" conduct by Heiney during the January 8, 2015 and February 12, 2015 appointments. Under cross-examination, M.S. denied that Heiney made any inappropriate comments to her, and she did not think that Heiney had an erection during his examination of her.
{¶ 10} K.O., a 33-year-old woman, treated with Heiney on one occasion, March 12, 2015. She complained of left-sided pain in her shoulder, low back, and hip. K.O. reported that the pain radiated down her left arm, into her hand and "occasionally" into her buttock, all the way down her leg into her knee. K.O. met with Heiney in an exam room. No one else was present. During the first part of the exam, Heiney manipulated her left arm in different positions, asking if the movements caused any pain. As described by K.O.:
And then he * * * asked me if I was experiencing any discharge from my breast, and I said no. So he told me to take * * * my arm out of my sleeve and my bra strap as well, and then he held my arm like this with his one hand and with the other hand he pulled my bra down, and then gave me a breast exam and asked me if I had any pain, which I said no. And then he held my arm in a different positon and then gave me a second breast exam, the whole time when my bra had been down at this point, and then he pulled my bra back up and held my arm in a couple different positons asking me, * * * ["]does this hurt, does this hurt["] and feeling around in my arm. And then * * * a third time he pulled my bra down again, said ["]one more time["], and gave me a third breast exam.
{¶ 11} K.O. described his palpation of her breast as "padding of his fingers and just going around," but during his third examination, he "cupped" her breast.
{¶ 12} K.O. momentarily left the exam room so that an x-ray could be taken of her neck. When she returned, Heiney examined her low back. K.O. described the examination:
I was facing him and he was feeling a little bit [of] my hip * * * and asking me what hurt and where. And then he asked me to turn around and face the table and touch my toes, so I did. At that point he grabbed my pants and my underwear and pulled them down to right above my knees, and then started to feel around on my behind and on my side and in my upper thigh region where his fingers kind of brushed against my private area.
{¶ 13} When asked to elaborate, K.O. testified that while he was "grabbing the inner part of the thigh and the lower part of the butt" with his hand, Heiney's fingers brushed up against her genitalia. K.O. said that she was "extremely" surprised when Heiney pulled down her pants and that he gave her no warning that he was going to do so, nor did he give her any explanation as to why it was necessary. With K.O. still bent over, Heiney asked her if she could bend over any farther. When she said that she could not, he stopped touching her, and K.O. "grabbed my pants and stood up quick to pull them up." Heiney announced, "well, I'm done." K.O. testified that Heiney was not wearing gloves.
{¶ 14} After the appointment, K.O. prepared a typed-written statement of what had occurred. K.O. did not mention that Heiney had brushed his hand by her vaginal area or "cupped" her breast because, she testified, she did not know how detailed the statement should be and because she was "extremely" embarrassed. Two days after the incident, K.O. reported Heiney's conduct to the Toledo Police, which redirected her to the Sylvania Police Department because the incident occurred in Sylvania. On March 15, 2015, now three days after her appointment, K.O. met with the Sylvania Police and signed the statement.
{¶ 15} K.O.'s case was assigned to Sylvania Police Detective Laura Bliss. As part of her investigation, Detective Bliss contacted Investigator Amy Myers with the SMBO. Although there were no other complaints pending with the SMBO at that time, M.S. filed her complaint with the SMBO shortly thereafter, on April 15, 2015. Investigator Myers then contacted Detective Bliss and notified her of M.S.'s complaint against Heiney, and the two coordinated their respective investigations going forward.
{¶ 16} Detective Bliss and Investigator Myers jointly interviewed K.O. and recorded the conversation. K.O. told them that Heiney's fingers actually rubbed against her genitals when he examined her low back. At Bliss's suggestion, K.O. requested a copy of her medical records from Heiney's office.
{¶ 17} Detective Bliss conducted a videotaped interview of Heiney at the police station on May 6, 2015 regarding K.O.'s complaint. Heiney's records indicate that, within hours of his police interview, Heiney viewed and printed K.O.'s electronic medical record ("E.M.R."). The next day, Heiney asked one of his medical assistants, Jennifer Downard, to make an "add-on" to the E.M.R. by...
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