The State Of Ohio v. Brooks
| Decision Date | 02 July 2009 |
| Docket Number | No. 91730.,91730. |
| Citation | 2009 Ohio 3286,186 Ohio App.3d 694,930 N.E.2d 342 |
| Parties | The STATE of Ohio, Appellee,v.BROOKS, Appellant. |
| Court | Ohio Court of Appeals |
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William D. Mason, Cuyahoga County Prosecuting Attorney, and Brian M. McDonough, Assistant Prosecuting Attorney, for appellee.
Michael P. Maloney, Westlake, for appellant.
{¶ 1} Defendant-appellant, Hugh Brooks, appeals from his convictions for gross sexual imposition and kidnapping. For the reasons set forth below, we reverse the judgment and remand the matter to the trial court to vacate defendant's convictions.
{¶ 2} On December 21, 2007, defendant was indicted on three counts of gross sexual imposition upon A.B., a child under the age of 13 (age three), with a sexually-violent-predator specification, and one count of kidnapping of a child under the age of 13, with sexual motivation and sexually-violent-predator specifications. Defendant pleaded not guilty, and the charges proceeded to a jury trial on March 11, 2008. The sexually-violent-predator specification was tried to the court, however.1
{¶ 3} The state presented the testimony of the child's mother, maternal grandmother, paternal grandmother, and father, nurse Nanci Hedberg, social worker Amy Houk, Lakewood Police Officer William McCarthy, and Detective Larry Kirkwood.
{¶ 4} The mother testified that defendant is her former boyfriend and that A.B. is her son. The paternal grandmother has custody of A.B., and at the time of the events at issue, the mother and defendant lived in the upstairs of a house and the maternal grandmother lived downstairs. Because the upstairs bathroom is not functional, the mother, defendant, and A.B. used the downstairs bathroom, the door to which did not have a lock. The mother further testified that she sometimes bathed A.B. by putting him in the bath with her.
{¶ 5} On Thursday, November 1, 2007, the paternal grandmother dropped A.B. off for a weekend visit with his mother. The following day, A.B.'s mother was scheduled to take a placement test at Cuyahoga Community College. She had a migraine and asked defendant and the maternal grandmother to watch A.B. so she could take a nap. When she awoke hours later A.B. was dressed in play clothes and no longer wearing pajamas.
{¶ 6} The maternal grandmother testified that she awoke from a nap and heard water running in the bathroom. She next heard A.B. tearfully saying, “No, no, no, no, no.” The maternal grandmother knocked on the unlocked door and asked what was going on. Defendant replied, “We're taking a bath, mama.” About a minute later, A.B. walked out of the bathroom wrapped in a towel and defendant followed, wearing jeans, a shirt, and no shoes or socks. Defendant's hair was wet, a wet towel was hanging in the bathroom, and toys were in the tub. Defendant, A.B., and his mother left the apartment a few minutes later.
{¶ 7} That night, the mother and A.B. stayed with a friend and slept on an air mattress. When they awoke, A.B. had diaper rash, so she gave him a bath. When they returned home on Monday morning, the owner of the apartment complained that the mother had not paid her rent and ordered her to leave. The police were summoned and were present when the paternal grandmother arrived to pick up A.B.
{¶ 8} The paternal grandmother testified that A.B. was upset and thought that the maternal grandmother had to go to jail. A.B. later complained of a headache, did not have an appetite, and screamed during the night. The following morning, the paternal grandmother took A.B. to the emergency room at St. John West Shore Hospital. According to the paternal grandmother, A.B. winced in pain when the doctor examined his shoulder area and the doctor determined that those muscles were tense.
{¶ 9} The paternal grandmother subsequently spoke to her son and to the maternal grandmother. As a result of this communication, the paternal grandmother picked A.B. up from daycare and questioned him as to whether he had taken a bath with defendant and whether defendant had touched him. According to the paternal grandmother, A.B. said that he had taken a bath with defendant and that defendant touched him on the “butt” and “pee pee” and made him touch the defendant's “butt.”
{¶ 10} The paternal grandmother took A.B. back to the St. John West Shore emergency room. Hospital personnel instructed her to take him to Fairview Hospital. She then informed a nurse at Fairview of what A.B. had said about the defendant. She admitted that A.B. had no redness or soreness anywhere on his body at this time. She further admitted on cross-examination that in her police statement, she additionally reported that A.B. had said that his mother was present during the inappropriate touching and that defendant touched his mother on her “butt.” The paternal grandmother additionally admitted to telling the police that A.B. told a nurse that a “snake licked and kissed his belly and down there at his mommy's house.” The nursing notes indicate only that A.B. was asked to point out his belly button and he said There is no mention of licking or “down there.” Later, the paternal grandmother informed the police that
{¶ 11} Nurse Nanci Hedberg testified that A.B. was brought in for suspected child abuse from six days earlier and that behavioral changes were reported by the paternal grandmother. Physical findings were normal. Nurse Hedberg further testified that during the examination, she asked A.B. where his belly button was and he stated, He did not answer her questions regarding the snake, then changed the subject. The written report likewise states that A.B. said that the “snake kisses me on my belly” and did not, as the paternal grandmother had maintained, indicate that he said that it kissed or licked him “down there.”
{¶ 12} Lorain County Children Services social worker Amy Houk testified that she interviewed A.B. at the Child Advocacy Center in Lorain. In the videotaped interview, she showed him anatomical drawings and talked to him about who can and cannot touch his body. According to this witness, A.B. was not comfortable talking about these subjects and repeatedly stated that no one had improperly touched him. Houk then interviewed A.B. at the paternal grandmother's house. During this interview, A.B. said that “the monster touched his pee pee and butt” and that the monster lived at his mother's house. Houk also observed the police interrogation of the defendant. At the close of her investigation, Houk reported that there was “indicated sexual abuse * * * but there is no evidence to back it up.”
{¶ 13} Detective Kirkwood testified that he interviewed the defendant on November 15, 2007. According to this witness, at the start of the interview and before the detective began his questioning, defendant stated that A.B. sees monsters in the toilet and that is why he soils his pants. Det. Kirkwood stated that soiling can be indicative of abuse and that he found the remark to be unusual. Defendant also referred to A.B.'s mother as his fiancée, but he acknowledged that he had not actually asked her to marry him. Defendant admitted that he had taken two baths with A.B. During the first, the mother was bathing A.B. and defendant walked into the room. At this time, A.B. asked defendant to get into the tub, the mother agreed, and remained in the room the entire time. During the second instance, which the maternal grandmother overheard, defendant stated that he washed A.B. with a sponge and did not inappropriately touch him. The detective noted that defendant was nervous and shaking. Defendant denied being sexually abused as a child but stated that his father had abused a brother.
{¶ 14} The jury convicted defendant of all charges, and the trial court acquitted him of the sexually-violent-predator specifications. The trial court sentenced defendant to four years of imprisonment and ten years of community control sanctions.2 The trial court also determined that defendant is a Tier II sex offender in connection with the gross-sexual-imposition convictions and a Tier III offender as to the kidnapping conviction. Defendant now appeals and assigns six errors for our review.
{¶ 15} In the fourth assignment of error, defendant contends that the trial court erred in permitting admission of the child's hearsay statement to his grandmother. The trial court ruled that the statements were admissible pursuant to Evid.R. 803(4), statements made for the purposes of medical diagnosis or treatment.
{¶ 16} Evid.R. 803 provides:
{¶ 17} “The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
{¶ 18} “(4) Statements for purposes of medical diagnosis or treatment.
{¶ 19} “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.”
{¶ 20} The Staff Notes explain:
{¶ 21} “The exception is limited to those statements made by the patient which are reasonably pertinent to an accurate diagnosis and should not be a conduit through which matters of no medical significance would be admitted.”
{¶ 22} In child-abuse cases, hearsay testimony is admissible, even from nonmedical personnel under Evid.R. 803(4), as long as those statements were made in the course of physical or psychological treatment. State v. Sopko, Cuyahoga App. No. 90743, 2009-Ohio-140, 2009 WL 97705, citing State v. McWhite (1991), 73 Ohio App.3d 323, 597 N.E.2d 168, and State v. Chappell (1994), 97 Ohio App.3d 515, 646 N.E.2d 1191.
{¶ 23} The rationale behind the medical-diagnosis...
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