State v. Malone

[Cite as State v. Malone, 2012-Ohio-449.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY

STATE OF OHIO, :

Plaintiff-Appellant, : Case No. 11CA2 & 11CA3

vs. :

JEFF T. MALONE, : DECISION AND JUDGMENT ENTRY

Defendant-Appellee. :

_________________________________________________________________

APPEARANCES:

COUNSEL FOR APPELLANT: Laina Fetherolf, Hocking County Prosecuting Attorney, and
William L. Archer Jr., Hocking County Assistant
Prosecuting Attorney, 88 South Market Street, Logan, Ohio
43138

COUNSEL FOR APPELLEE: Timothy P. Gleeson, Gleeson Law Office, 47 Market
Street, Ste. 204, P.O. Box 148, Logan, Ohio 43138

CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 2-2-12

ABELE, P.J.

{¶ 1} This is an appeal from a Hocking County Common Pleas Court judgment that

granted a motion in limine and ordered the suppression or exclusion of certain evidence from the

trial of Jeff T. Malone, defendant below and appellee herein. The State of Ohio, plaintiff below

and appellant herein, assigns the following error for review:

“THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
SUPPRESSED THE MEDICAL DIAGNOSIS TESTIMONY OF
THE CHILDREN’S HOSPITAL SOCIAL WORKER.”
HOCKING, 11CA2 & 11CA3 2

{¶ 2} On August 14, 2008, Lois Stepney, a Social Worker with the Columbus Children's

Hospital Child Advocacy Center (CAC) interviewed K.D., a minor child. K.D. reportedly told

her mother that appellant had touched her in her vaginal area1 and this information was,

somehow, conveyed to Stepney.2 On June 17, 2010, Jennifer Westgate, also a CAC Social

Worker interviewed N.H., another minor child. The child apparently made “disclosures” of a

nature that prompted further action against appellant.

{¶ 3} On August 13, 2010, the Hocking County Grand Jury returned an indictment that

charged appellant with (1) two counts of gross sexual imposition in violation of R.C.

2907.05(A)(4), and (2) two counts of sexual imposition in violation of R.C. 2907.06(A)(1).

Initially, appellant agreed to plead guilty to two counts of sexual imposition in exchange for the

dismissal of the gross sexual imposition charges. However, on November 12, 2010 the trial

court granted appellant's motion to withdraw his guilty pleas. A month later, appellant filed a

motion and sought to exclude any evidence that arose from the two CAC interviews. Appellant

argued that this particular evidence is “testimonial” and, thus, impermissible under a recent Ohio

Supreme Court decision. See State v. Arnold, 126 Ohio St.3d 290, 933 N.E.2d 775,

2010-Ohio- 2742. At the January 18, 2011, hearing on the motions, the social workers who

conducted the interviews testified and, later that day, the trial court granted appellant’s motion.

The court found, after hearing witness testimony and reviewing DVDs of the interviews, that the

1
Appellant is the mother’s cousin and was, apparently, babysitting K.D. at the time of the incident.
2
It is not clear from the record whether this information was conveyed to Lois Stepney by K.D. herself or by K.D.’s
mother.
HOCKING, 11CA2 & 11CA3 3

interviews “were not performed for medical diagnosis or treatment[.]”3

{¶ 4} The appellant asserts that the trial court erred by granting appellee’s motion. Our

analysis begins with a recitation of the appropriate standard of review. As the appellant

correctly notes, rulings on motions in limine are typically reviewed under an abuse of discretion

standard. See State v. Black, 172 Ohio App.3d 716, 876 N.E.2d 1255, 2007-Ohio-3133, at ¶11;

State v, Williams, Lucas App. Nos. L–10–1019, L–10–1020 L–10–1021, 2011-Ohio-2702, at

¶29. The term “abuse of discretion” means more than an error of law or judgment; rather, it

implies that a trial court's attitude is unreasonable, arbitrary or unconscionable. See State v.

Herring (2002), 94 Ohio St.3d 246, 255, 762 N.E.2d 940; State v. Clark (1994), 71 Ohio St.3d

466, 470, 644 N.E.2d 331; State v. Adams (1980), 60 Ohio St.2d 151, 157, 404 N.E.2d 144. In

reviewing for an abuse of discretion, appellate courts must not substitute their judgment for that

of the trial court. See State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d

728, 732, 654 N.E.2d 1254; In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 137-138, 566 N.E.2d

1181.

{¶ 5} We believe that the Ohio Supreme Court's recent case in Arnold, supra, is

dispositive of the case sub judice. In Arnold, the Court reviewed evidence obtained through

the same procedures used in this case. In other words, Arnold dealt with interviews conducted

3
From that order, the appellant filed both a motion for leave to appeal (11CA2) and a notice of appeal (11CA3). On
February 18, 2011, this Court issued an entry that noted that the appellant could appeal as of right and, thus, its motion for
leave had been rendered moot. We now consolidate these cases and proceed to review the assignment of error on its merits.
Additionally, although the appellant and the trial court treated the motion as a motion in limine which, generally,
would not constitute a final appealable order because even if the motion is granted pre-trial a party must nevertheless raise an
objection at trial to preserve any error, in criminal cases the prosecution may immediately appeal the granting of a pre-trial
motion, however labeled, that may restrict the state in the presentation of evidence and is, in essence, a motion to suppress
evidence. See Crim.R. 12(J); State v. Davidson (1985), 17 Ohio St.3d 132, 477 N.E.2d 1141.
 HOCKING, 11CA2 & 11CA3 4

by Columbus Children’s Hospital CAC social workers. The Ohio Supreme Court also detailed

the manner in which the interviews were conducted:

“The objective of a child-advocacy center like the CCFA is neither exclusively
medical diagnosis and treatment nor solely forensic investigation. ‘The purpose of
a Children's Advocacy Center is to provide a comprehensive, culturally
competent, multidisciplinary response to allegations of child abuse in a dedicated,
child friendly setting.’

‘Prior to the development of the Children's Advocacy Center model, ‘traditional child abuse
investigations often subject(ed) the child to multiple interviews.’ A child-advocacy center's
‘number one goal’ is to reduce trauma to a child-abuse victim by coordinating the interview to
include professionals from multiple agencies, which, in turn, can reduce the number of
interviews needed and improve the quality of the investigation, the diagnosis, and the
recommendation for treatment. Additionally, ‘[t]hey help children avoid the trauma of repeating
their story at various stops along the legal and judicial path.’ These interdisciplinary teams often
include law-enforcement professionals, prosecutors, medical and mental-health personnel, and
child advocates.

At the CCFA, Marshall, a social worker employed by Nationwide Children's Hospital, interviews
children who are suspected victims of physical or sexual abuse. The purpose of the interview is
to gather as much information as possible. The interview is both recorded on a DVD and
transmitted to another room via closed-circuit television. Typically, a nurse practitioner or
doctor, a children's services caseworker, and a law-enforcement representative watch the
interview from a separate room. Marshall does not inform the child that the team members are
watching the interview, but does tell him or her that he or she will be examined by a doctor or
nurse after the interview.

After Marshall interviews the child, she meets with the doctor or nurse practitioner who will
perform the medical examination to review the child's statements. The nurse or doctor conducts
the appropriate medical examination based on the child's statements during the interview. The
nurse or doctor relies on information obtained during Marshall's interview to determine what
examination and tests are needed. For example, information regarding the identity of the
perpetrator, the age of the perpetrator, the type of abuse alleged, and the time frame of the abuse
allows the doctor or nurse to determine whether to test the child for sexually transmitted
infections.” (Citations omitted.) Id. at ¶¶ 29-32.4

4
The acronym “CCFA,” to which the Ohio Supreme Court refers in the Arnold case, stands for the “Center for Child and Family
Advocacy.” See http://www.nationwidechildrens.org/ccfa. We presume this encompasses the CAC and will continue to refer to it as CAC in
order to remain consistent with the testimony of the two social workers.
HOCKING, 11CA2 & 11CA3 5

{¶ 6} The Ohio Supreme Court held that, to the extent the evidence obtained during the

interviews was to assist police in a “forensic investigation” of abuse, it is “testimonial” and, thus,

the Confrontation Clause of the Sixth Amendment bars its introduction at trial. Id. at ¶36.

However, to the extent that evidence is obtained to medically diagnose and treat a child, the

evidence is non-testimonial and not barred from admission at trial. Id. at ¶41.

{¶ 7} The procedural distinction between the case at bar and Arnold is that in Arnold,

there does not appear to have been any factual determination as to whether the evidence obtained

during the interviews was testimonial or non-testimonial. In the case sub judice, however, the

trial court explicitly found that the interviews “were not performed for medical diagnosis or

treatment[.]” Thus, this particular evidence is testimonial in nature and to reverse the trial court’s

judgment, we would be required to overturn that factual finding.

{¶ 8} Our review of the two interviews reveals that although Stepney and Westgate

testified as to the general procedures used when interviewing potential victims of sexual abuse,

their testimony was rather vague as it pertains to the examination of K.D. and N.H. Moreover,

although evidence showed that K.D. had a “redness in the vaginal area not present before,”

Westgate gave no testimony concerning medical problems with N.H. Insofar as the redness in

K.D.’s vaginal area was concerned, Stepney testified that K.D.’s mother took her to another

doctor before she brought her to CAC to determine if a “yeast infection” was present. This

suggests that a medical or diagnostic exam was performed of K.D. before she appeared at CAC.

In short, we find little evidence to support the view the CAC interviews were performed for the

diagnosis or treatment of a medical condition. Here, the trial court, sitting as the trier of fact,

had the duty to assess witness credibility and assign whatever weight it deemed appropriate. See
HOCKING, 11CA2 & 11CA3 6

State v. Dye (1998), 82 Ohio St.3d 323, 329, 695 N.E.2d 763; State v. Williams (1995), 73 Ohio

St.3d 153, 165, 652 N.E.2d 721. The justification for this view is obvious: a trier of fact is in

the best position to view witnesses, to observe their demeanor, gestures and voice inflections and

to use those observations to weigh witness credibility. See Myers v. Garson (1993), 66 Ohio

St.3d 610, 615, 614 N.E.2d 742; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80,

461 N.E.2d 1273. Here, with respect to Stepney and Westgate, the court may not have believed

the sum total of their testimony. It is axiomatic that a trier of fact is not required to accept even

uncontroverted testimony from any witness if it chooses not to do so. We also emphasize that

had the members of this court served as the trier of fact, it is possible that we would not have

come to the same conclusion. Nevertheless, we again note that our function as an appellate

court is to serve as a court of review and we must defer to the trier of fact when determining

issues of fact.

{¶ 9} In sum, we find no reason in the case sub judice to reverse the trial court’s factual

finding that the interviews “were not performed for medical diagnosis and treatment[.]”

Consequently, the evidence is testimonial and, pursuant Arnold, inadmissible. Accordingly, we

hereby overrule the appellant's assignment of error and affirm the trial court's judgment.

JUDGMENT AFFIRMED.

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee recover of appellant costs

herein taxed.

The Court finds there were reasonable grounds for this appeal.
HOCKING, 11CA2 & 11CA3 7

It is ordered that a special mandate issue out of this Court directing the Hocking County

Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

Harsha, J. & Kline, J.: Concur in Judgment & Opinion

For the Court

BY:
Peter B. Abele
Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.