State v. Muttart
| Decision Date | 11 October 2007 |
| Docket Number | No. 2006-1488.,No. 2006-1293.,2006-1293.,2006-1488. |
| Citation | 2007 Ohio 5267,116 Ohio St.3d 5,875 N.E.2d 944 |
| Parties | The STATE of Ohio, Appellant and Cross-Appellee, v. MUTTART, Appellee and Cross-Appellant. |
| Court | Ohio Supreme Court |
Robert A. Fry, Hancock County Prosecuting Attorney, and Mark C. Miller, Assistant Prosecuting Attorney, for appellant and cross-appellee.
Maria Santo, for appellee and cross-appellant.
Laura A. Perkovic, urging affirmance on behalf of amicus curiae Ohio Association of Criminal Defense Lawyers.
Davis & Young, Richard M. Garner, and Beverly A. Adams, Cleveland, for amicus curiae TIG Insurance Company.
{¶ 1} After trial by jury, appellee and cross-appellant, Dennis Muttart, was convicted of three counts of raping a child under 13 years of age in violation of R.C. 2907.02(A)(1)(b). He was sentenced to three consecutive terms of life imprisonment. On appeal, two of the convictions were affirmed, and one was reversed.
{¶ 2} Upon review, we recognized a conflict among the courts of appeals, 111 Ohio St.3d 1408, 2006-Ohio-5083, 854 N.E.2d 1089, and asserted discretionary jurisdiction over an appeal by the state and a cross-appeal by Muttart, 111 Ohio St.3d 1411, 2006-Ohio-5083, 854 N.E.2d 1091, and 111 Ohio St.3d 1496, 2006-Ohio-6250, 857 N.E.2d 1232. We consolidated the appeals and now address two issues: whether a child's out-of-court statements to medical personnel are admissible pursuant to Evid.R. 803(4) in the absence of a judicial determination of the competency of the child as a witness and whether the admission of those hearsay statements violated appellant's Sixth Amendment rights of confrontation as those rights were recognized in Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177.
{¶ 3} We conclude that the child victim's statements were properly admitted, even in the absence of a competency hearing, and that their admission did not offend the Confrontation Clause. We therefore affirm Muttart's convictions.
{¶ 4} On March 21, 2003, Muttart's former wife, Angela Hinojosa, noticed unusual behavior in her young children, daughter A.M., then four and a half years old, and son M.M., then almost six years old. The children had just returned to her home from a three-day visit with their father, Muttart, at Muttart's mother's home in Findlay.1
{¶ 5} Upon the children's return home on March 21, 2003, Hinojosa was concerned that M.M. was having a panic attack. Hinojosa also noticed that A.M. was acting very nervous when she returned from the visit with her father and that she had come home with her imaginary friend, "Kelly." At the time, however, Hinojosa was focused primarily on M.M.'s behavior because she feared that he was exhibiting symptoms of an anxiety disorder, from which she and other members of her family suffered.
{¶ 6} After calling Muttart to inquire whether anything unusual had happened during the visit and being told that nothing had, Hinojosa contacted her children's doctor, Dr. Donald Johnson, on Monday, March 24. She scheduled an appointment for M.M. to see Johnson the following day.
{¶ 7} Elizabeth McQuistion, a former neighbor and friend of Hinojosa's, happened to visit Hinojosa on Monday afternoon. Hinojosa expressed concern about M.M.'s behavior to McQuistion. She mentioned that A.M. was starting to have Kelly present more often.
{¶ 8} During this conversation with McQuistion, Hinojosa also recalled that at least six months earlier her children had said they had a "big secret" — and made an accusation that Muttart had made A.M. "suck his pee pee." Hinojosa testified that she had telephoned Muttart at the time of the children's prior statement and that he had denied the accusation. Hinojosa testified that although she had spoken with a local police officer about the children's statements, she was referred to police in the town in Michigan in which Muttart lived. Hinojosa testified that she had called the police in Michigan but that her call was not returned. It does not appear that Hinojosa took any additional action at that time in response to the children's disclosures.
{¶ 9} After her conversation with Hinojosa, McQuistion left Hinojosa's house "very shaken up" but returned later that evening with Vickie Higgins, a friend of McQuistion's whom Hinojosa had never met. The three women sat in the living room with A.M., and Hinojosa asked A.M. to tell Higgins about Kelly. According to Hinojosa's testimony, A.M.'s behavior changed; she "got weird," appeared "very, very scared," curled into a fetal position on the couch, and started to cry, saying that she could not tell anyone who Kelly was.
{¶ 10} Higgins asked A.M. who Kelly was; A.M. told Higgins that Kelly was an imaginary friend who went with her to "Daddy Dennis's house." A.M. also stated to Higgins that she could not tell the secret but that Kelly could.
{¶ 11} A.M., acting as if she were Kelly, then pointed repeatedly to her teeth and throat, tapped her teeth, and made a "horrible throat sound like she couldn't swallow," according to Hinojosa's testimony. She then said that the secret was that "Daddy Dennis made her suck his pee pee in the bathroom at Grandma Judy's."
{¶ 12} Higgins called the police from Hinojosa's home, and an officer from the Findlay Police Department soon arrived. After the officer, Higgins, and McQuistion left the home, in response to a subsequent inquiry by her mother, A.M. stated that similar sexual conduct happened every time she went to see Daddy Dennis. A.M. also said that Muttart promised her a Barbie doll if she did not disclose the abuse and that if she told her mother or grandmothers, her mother would be taken to jail.2
{¶ 13} Hinojosa testified that she found the March disclosure by A.M. to be more credible than the prior one because A.M. was older and could describe the incidents in greater detail. She also claimed that in a phone call to Muttart after the police had left her home, Muttart eventually admitted that the allegations were true.
{¶ 14} Concerned that A.M. might have contracted a sexually transmitted disease from Muttart, Hinojosa took A.M. to the appointment she had scheduled previously for M.M. Dr. Johnson performed medical tests to determine whether A.M. had contracted any infection or disease but, lacking expertise in the area of child sexual abuse, also referred Hinojosa to Dr. Randal Schlievert, a specialist in the treatment of sexually abused children in the Child Maltreatment Clinic at Mercy Children's Hospital in Toledo.
{¶ 15} On April 14, 2003, A.M. was seen in the clinic. Initially, Julie Jones, a social worker and the assistant director of the child-abuse program, met with A.M. and took her to an examination room. Jones then explained to A.M. that she would be examined by Schlievert and that the doctor "was going to check her body from head to toe and make sure that all parts of her body were okay." Jones also collected a social and medical history from her, an important step in preparing for Schlievert's examination.
{¶ 16} According to Jones's testimony at a pretrial hearing, A.M. told Jones that she knew she was in a "kid's room hospital." During the interview, A.M. disclosed to Jones, by pointing to her genital area, that Muttart put "this" in her mouth and that "pee came out of it." She also stated that Muttart had "put his pee pee in her pee pee" and that it "hurtie, hurt." A.M. stated to Jones that similar conduct had happened "a whole bunch of times" at her paternal grandmother's home and in Michigan and that she had "tried to get out of the bathroom but he locked the door." Further, A.M. reported that Muttart "would always say that he would get me a Barbie and he didn't."
{¶ 17} Consistent with her practice, Jones informed Dr. Schlievert of A.M.'s statements. A physical examination revealed no signs of abnormality in A.M.'s external genitalia, and additional tests for sexually transmitted diseases were negative. Dr. Schlievert's impression, however, was that "the overall evaluation indicates that she was a sexually abused child." In reaching that conclusion, Dr. Schlievert noted in his report, "The details of [A.M.'s] disclosure (including locking the bathroom door, promising gifts, and description of apparent ejaculation) indicate that she experienced the acts." Finally, he stated,
{¶ 18} In June 2003, Hinojosa's mother took A.M. to the Family Resource Center in Findlay for psychotherapy. Betty Humphries, a clinical counselor and therapist, interviewed A.M. to obtain a social history that would be used for diagnostic and therapeutic purposes. A.M. did not allege abuse to Humphries in that interview but reported that she was afraid of monsters and did not want to see Muttart.
{¶ 19} During subsequent play therapy with Connie Crego-Stahl, another clinical counselor and therapist at the Family Resource Center, A.M. eventually told her that she had a secret; thereafter, she told her the secret: "Dennis made me suck his pee pee, and I tried to get out of the bathroom, but he locked the door and I don't know how." Additionally, A.M. told Crego-Stahl that she was afraid to go to Muttart's house and that Muttart told her that if she did not keep the behavior secret, her mother would go to jail. Crego-Stahl eventually concluded that A.M. suffered from posttraumatic stress disorder that had been caused by sexual abuse.
{¶ 20} In October 2003, Muttart was indicted on three counts of rape of a child less than 13 years of age, with a penalty specification that the victim was also under ten years old. See R.C. 2902.02(A)(1)(b) and (B). The jury was instructed that the first two counts were based on the allegations of oral rape and the third was for vaginal rape.
{¶ 21} Muttart subsequently moved to preclude the state...
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