State v. Harvey

[Cite as State v. Harvey, 2014-Ohio-2683.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. William B. Hoffman., P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 13-CA-109
DUSTIN C. HARVEY :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case No.
2013CR351

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 9, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT MATTHEW J. KUNSMAN
Licking County Prosecutor MORROW, GORDON, & BYRD, LTD.
PAULA M. SAWYERS 33 W. Main Street
Assistant Prosecuting Attorney Box 4190
20 S. Second Street, 4th Floor Newark, OH 43058-4190
Newark, OH 43055
[Cite as State v. Harvey, 2014-Ohio-2683.]

Gwin, P.J.

{¶1} Defendant-appellant Dustin C. Harvey appeals his conviction entered by

the Licking County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

Facts & Procedural History

{¶2} On June 12, 2013, an indictment was filed in the Licking County Court of

Common Pleas charging appellant with two counts of rape, first degree felonies, in

violation of R.C. 2907.02(A)(1)(b), two counts of rape, first degree felonies, in violation

of R.C. 2907.02(A)(2), and seven counts of gross sexual imposition, felonies of the third

degree, in violation of R.C. 2907.05(A)(4). Appellant entered a plea of not guilty on

June 18, 2013. Appellant filed a motion to determine competency of witness E.H. and a

motion to suppress appellant’s statements on August 7, 2013. After the trial court held

a hearing on the motions, the court found E.H. competent to testify and denied

appellant’s motion to suppress. The trial court also denied appellant’s motion in limine

to exclude the use of the term “victim” in reference to E.H.

{¶3} A jury trial commenced on November 7, 2013. The following evidence

was adduced at trial. Appellant is the biological father of E.H., a child who was born on

November 20, 2005. Jean Mekolites (“Mekolites”), E.H.’s maternal grandmother,

testified she lived with E.H., E.H.’s mother, and appellant at 17 Conley Avenue in

Newark, Ohio. Subsequently, from October 2012 until April of 2013, appellant, E.H.,

and E.H.’s mother resided at 51 Dougherty Circle in Newark, Ohio. Mekolites testified

that after appellant left the home on approximately April 10, 2013, E.H. told her

appellant had made her watch “people doing it” on the computer. A report was made to

the Newark Police Department and Licking County Children’s Services. Upon the
Licking County, Case No. 13-CA-109 3

recommendation of Licking County Children’s Services, Mekolites and E.H.’s mother

took E.H. to Kid’s Place to be evaluated. Mekolites testified that in late May of 2013 she

had lunch with E.H. at school. E.H. was agitated, scared, jumping around and informed

Mekolites that appellant had spanked her that morning. Mekolites stated that, prior to

the police officer coming to the home to check for evidence, they cleaned E.H.’s

bedroom and got E.H. a new bed at her request. Mekolites testified she never

witnessed anything inappropriate between appellant and E.H. and appellant never

asked her to clean E.H.’s room or buy a new mattress.

{¶4} Kelly Morrison (“Morrison”), a certified pediatric nurse practitioner with

Licking Memorial Health Professionals, testified she works at Kid’s Place, which is a

center owned by Licking Memorial Hospital for the evaluation of children who have

disclosed physical or sexual abuse. With respect to her experience in evaluating sexual

abuse cases, Morrison reported that she has performed approximately 450-500 child

sexual abuse examinations over the last twelve (12) years. Morrison detailed the

evaluation procedure of a child who comes in with a sexual abuse allegation including

acquiring medical history from the adult accompanying the child, obtaining medical

history from the child him or herself, and a physical examination. Morrison examined

E.H. on April 17, 2013. She testified as to the procedure she followed in conducting her

evaluation of E.H. Morrison obtained the first portion of E.H.’s history from E.H.’s

mother. Morrison then talked to E.H. to gather the second portion of her history,

including baseline questions to determine her developmental level, determine the

language E.H. utilized and the detail with which she was able to use language, and

determine if E.H. had any delays.
Licking County, Case No. 13-CA-109 4

{¶5} When Morrison inquired as to why E.H. was there, E.H. told her she was

there for a check-up. Morrison utilized anatomically correct female and male drawings

and asked E.H. if anyone had touched or bothered her private parts before. E.H. told

her appellant had. Morrison testified that E.H. verbally and with the anatomically correct

drawings told her appellant touched inside her “bosy” (E.H.’s term for the vaginal area)

and in between her bottom with his penis, hands, and fingers. Morrison stated E.H.

described the feeling as a “poke” and that “it hurt.” Further, that E.H. told Morrison

appellant placed his penis in her mouth and something came out that was “gooey and

gross” that “made her choke.” Following the interview, Morrison completed a physical

examination of E.H. She found no physical evidence which was diagnostic. Morrison

stated she was not surprised at the lack of physical evidence given the nature of the

abuse reported and the timing involved because the female anatomy of a young girl is

stretchy and heals very quickly. Out of the 450-500 exams Morrison completed,

approximately 40% of them were conducted on females between ages 4-8 and Morrison

remembers only three of those cases where there was physical evidence of abuse.

Further, Morrison testified that evidence is showing about 80% to 85% of child sexual

abuse cases across the county involve no physical findings. Based on her exam,

Morrison testified that, to a reasonable degree of medical certainty, it was sexual abuse.

On cross-examination, Morrison testified her diagnosis was made based on E.H.’s

history and that if she eliminates the history there is no evidence E.H. has ever been

sexually abused. Morrison’s report, submitted into evidence, details the history from the

accompanying adult, the history from E.H., the normal physical examination, details of

the developmental screen, and Morrison’s impressions.
Licking County, Case No. 13-CA-109 5

{¶6} E.H. testified appellant touched her front private with his front private part,

that appellant touched her front, back, and mouth with his private part, and when he

touched his front private part to her private parts on the front and back, his front “went

in.” E.H. stated these incidents started while she was living with appellant at the “bug

house,” the house on Conley Avenue, but also happened at the other places they lived

with appellant. E.H. testified when appellant put his thing in her mouth something came

out in her mouth. E.H. first told Grandma Jean about these incidents because E.H.

knew she was not going to get in trouble because appellant was out of the home. E.H.

testified that after she told Grandma Jean and her mom about these incidents, her mom

let appellant back into the home and appellant left a handprint on E.H.’s bottom when

appellant spanked her because “she told on him.”

{¶7} Charles Scott (“Scott”) of the Newark Police Department testified he

conducted an alternative light source testing for seminal stains and urine on E.H.’s bed

and found no visible substances. However, Scott was not surprised he did not find any

substances because he was advised E.H.’s bedroom was cleaned and the mattress

was removed after the alleged incidents.

{¶8} Steven Vanoy (“Vanoy”), a detective at the Newark Police Department,

interviewed appellant on May 30, 2013 and placed him under arrest during the

interview. Vanoy recorded the interview with appellant (State’s Exhibit 11). Appellant

initially denied abusing E.H. However, Vanoy testified appellant’s demeanor then

changed and appellant said on two occasions he went into the bathroom and directed

E.H. to rub her vagina. Subsequently, appellant stated he rubbed E.H.’s vagina

approximately seven times. Appellant repeatedly denied penetrating E.H. However,
Licking County, Case No. 13-CA-109 6

when Vanoy asked appellant whether E.H. was lying about the allegations, appellant

said E.H. would not lie, but appellant could not remember anything other than the

incidents he previously mentioned and did not know what happened with E.H. because

he was abusing drugs every day for approximately five (5) years.

{¶9} Appellant rested after the close of appellee’s case and moved for a

judgment of acquittal pursuant to Ohio Criminal Rule 29 as to the four counts of rape

after the close of appellee’s case and prior to the submission of the case to the jury.

The trial court denied appellant’s motion. The jury found appellant guilty on all eleven

(11) counts of the indictment. Appellant renewed his Criminal Rule 29 motion for

judgment of acquittal as to the four rape counts prior to sentencing and the trial court

again denied appellant’s motion. The trial court sentenced appellant to a prison term of:

fifteen years to life on each count one and count two of rape, six years on each count

three and four of rape, and three years on each count of gross sexual imposition, counts

five through eleven. The trial court ordered the sentences on all counts to run

concurrently for a cumulative prison sentence of fifteen (15) years to life. The trial court

advised appellant he would be required to register as a Tier III sex offender under

Chapter 2950 of the Ohio Revised Code.

{¶10} Appellant now appeals and assigns the following as error:

{¶11} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

PERMITTING AN EXPERT WITNESS TO TESTIFY AS TO HER OPINION

REGARDING THE VERACITY OF THE ALLEGED VICTIM’S DETAIL OF EVENTS.
Licking County, Case No. 13-CA-109 7

{¶12} "II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

ALLOWING EXPERT TESTIMONY ON THE ULTIMATE ISSUE WITHOUT PROPER

FOUNDATION.

{¶13} "III. THE TRIAL COURT ERRED BY NOT DECLARING A MISTRIAL

WHEN SEVERAL WITNESSES FOR THE APPELLEE PROVIDED TESTIMONY THAT

WAS ADVERSE, IRRELEVANT, INADMISSIBLE, AND HIGHLY PREJUDICIAL TO

APPELLANT.

{¶14} "IV. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL AS IS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS

OF THE UNITED STATES CONSTITUTION."

I.

{¶15} Appellant first argues the trial court erred in allowing Morrison to testify

regarding whether E.H.’s medical examination was consistent with E.H.’s statements

concerning abuse and such testimony violated the ruling by the Ohio Supreme Court in

State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989). We disagree.

{¶16} In State v. Boston, the Ohio Supreme Court held that in child sexual abuse

cases, an expert may not give his opinion as to the child’s veracity. 46 Ohio St.3d 108,

545 N.E.2d 1220 (1989). However, this court has found that Boston does not apply

when the child victim testifies and is subject to cross-examination or that any error is

harmless when the jury hears testimony about the abuse from the victim. State v.

Curren, 5th Dist. No. 04 CA 8, 2005-Ohio-4315; State v. Hill, 5th Dist. No. CT2009-

0044, 2010-Ohio-4295; State v. Fuson, 5th Dist. Knox No. 97 CA 000023, 1998 WL

518259 (Aug. 11, 1998); State v. Kelly, 93 Ohio App.3d 257, 638 N.E.2d 153 (5th Dist.
Licking County, Case No. 13-CA-109 8

1994). In this case, E.H. testified and was subject to cross-examination. The jury was

able to witness her demeanor and judge her credibility independent of Morrison’s

testimony.

{¶17} Further, Morrision did not express any opinion that E.H. was telling the

truth or that her statements were believable, credible, honest, or accurate. Morrison

never commented on E.H.’s credibility or the veracity of E.H.’s statements. The

testimony related to the examination of E.H. and her medical diagnosis as a result of

that examination. Accordingly, appellant’s first assignment of error is overruled.

II.

{¶18} Appellant argues the trial court erred by allowing Morrison to testify

because Morrison’s opinion lacked proper foundation. We disagree.

{¶19} A trial court possesses broad discretion with respect to the admission of

evidence and an appellate court will not disturb evidentiary rulings absent an abuse of

discretion. State v. Roberts, 156 Ohio App.3d 352, 805 N.E.2d 594, 2004-Ohio-962

(9th Dist.). An abuse of discretion is more than a mere error in judgment; it is a

“perversity of will, passion, prejudice, partiality, or moral delinquency.” Pons v. Ohio

State Med. Bd. 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). When applying an

abuse of discretion standard, an appellate court may not substitute its judgment for that

of the trial court. Id.

{¶20} Pursuant to Evid.R. 702:

A witness may testify as an expert if all of the following

apply:
Licking County, Case No. 13-CA-109 9

(A) The witness’ testimony either relates to matters beyond

the knowledge or experience possessed by lay persons or

dispels a misconception common among lay person;

(B) The witness is qualified as an expert by specialized

knowledge, skill, experience, training, or education regarding

the subject matter of the testimony;

(C) The witness’ testimony is based on reliable scientific,

technical or other specialized information. * * *

{¶21} Appellant argues Morrison’s testimony was not based upon any scientific,

technical, or other specialized information and thus Evid.R. 702(C) is not met. In State

v. Boston, the Ohio Supreme Court held that: “1) pursuant to Evid.R. 702, 703, 704, and

705, the use of expert testimony in child abuse cases is ‘perfectly proper,’ 2) the expert

may offer his opinion as to whether the child is a victim of sexual abuse; and 3) the

expert may not offer his opinion as to the veracity and/or credibility of the child’s

statements concerning the abuse.” 46 Ohio St.3d 108, 126-29, 545 N.E.2d 1220

(1989).

{¶22} Further, “an expert is permitted to give his opinion as to whether a child

has been sexually abused where that opinion is based upon the expert’s medical

examination of the victim, the victim’s statements to the expert, and the victim’s history.”

State v. France 9th Dist. Summit No. 15198, 1992 WL 41285 (March 4, 1992); In re

Brooks, 5th Dist. Licking No. 07-CA-74, 2008-Ohio-119. This rule has also been

extended to nurses. In re Brooks, 5th Dist. Licking No. 07-CA-74, 2008-Ohio-119.
Licking County, Case No. 13-CA-109 10

{¶23} We find the testimony and report (State’s Exhibit 3) provide an adequate

foundation to admit Morrison’s opinion that E.H. was abused as her opinion was based

on her training and experience in evaluating approximately 450-500 children in child

sexual abuse cases, her interview with E.H., the language used by E.H., her review of

the anatomically correct drawings with E.H., the medical record and history of E.H., and

the physical exam of E.H. As noted above, an expert can testify, based upon a medical

examination and other patient information, that a child was the victim of sexual abuse.

State v. France, 9th Dist. Summit No. 15198, 1992 WL 41285 (March 4, 1992); In re

Brooks, 5th Dist. Licking No. 07-CA-74, 2008-Ohio-119. Morrison’s opinion was based

on her medical examination and E.H.’s history. The fact that Morrison’s physical

examination did not produce any physical evidence of the abuse was still medically

significant to Morrison because Morrison stated between 80% to 85% of child sexual

abuse cases across the country involve no physical findings and out of the exams

Morrison completed on females between the age of 4-8 (approximately 40% of the 450-

500 exams she has completed over twelve years at Kid’s Place), Morrison remembers

only three of those cases where there was physical evidence of abuse. Appellant’s

second assignment of error is overruled.

III.

{¶24} Appellant argues the trial court erred by not declaring a mistrial due to

prejudicial testimony by Mekolites and Vanoy. In her testimony, Mekolities stated

appellant was arrested for domestic violence and her daughter was a resident of a

domestic violence shelter. Vanoy testified appellant had a civil protection order in place
Licking County, Case No. 13-CA-109 11

against him and had an exchange with trial counsel during his cross-examination

regarding his interview with appellant that appellant contends was prejudicial.

{¶25} The granting of a mistrial rests within the sound discretion of the trial court

as it is in the best position to determine whether the situation at hand warrants such

action. State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991). “A mistrial

should not be ordered in a criminal case merely because some error or irregularity has

intervened * * *.” State v. Reynolds, 49 Ohio App.3d 27, 550 N.E.2d 490 (2nd Dist.

1988). A trial court should not grant a mistrial unless “the ends of justice so require and

a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 580 N.E.2d 1

(1991). This court will not second-guess a determination by a trial court not to declare a

mistrial absent an abuse of discretion. State v. Glover, 35 Ohio St.3d 18, 19, 517

N.E.2d 900 (1988).

{¶26} In this case, with regards to the testimony about domestic violence and

the civil protection order against appellant, appellant’s trial counsel objected to the

testimony and, in each instance, the trial court sustained the objection, ordered the

testimony stricken, and instructed the jury to disregard the testimony. Further, in the

jury instructions provided by the trial court, the trial court informed the jury that

“statements or answers, if any, that were stricken from by the Court or which you were

instructed to disregard are not to be considered as evidence either. Do not speculate

as to why the court did sustain any objections * * *.” Upon review of the record, we find

it was not unreasonable, arbitrary, or unconscionable for the trial court to admonish the

jury to ignore the stricken testimony rather than to grant a mistrial. See State v. Pryor,

5th Dist. Stark No. 2013CA00016, 2013-Ohio-5693. Curative instructions are presumed
Licking County, Case No. 13-CA-109 12

to be an effective way to remedy errors that occur during the trial. State v. Treesh, 90

Ohio St.3d 460, 480, 2001-Ohio-4, 739 N.E.2d 749. The comments were isolated in the

trial and were not so prejudicial that an impartial verdict could not be reached. Further,

each statement was immediately followed by a short, authoritative instruction to the jury

to disregard the statements that sufficed to remedy any possible error regarding the

struck testimony. The jury was again reminded to disregard the statements in the jury

instructions. Further, upon review of the remainder of Vanoy’s testimony at issue, we

find the statements were either covered by the trial court’s decision on the motion to

suppress or were not so prejudicial that an impartial verdict could not be reached.

Accordingly, appellant’s third assignment of error is overruled.

IV.

{¶27} In his fourth assignment of error, appellant contends defense counsel was

ineffective when he failed to move for a mistrial after Mekolites and Vanoy provided

testimony that was adverse, irrelevant, inadmissible, and prejudicial to appellant. We

disagree.

{¶28} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel’s performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel’s

essential duties to appellant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed. 2d 674 (1984). The second prong is whether the appellant was prejudiced by

counsel’s ineffectiveness. Id. “Prejudice from defective representation sufficient to

justify a reversal of a conviction exists only where the result of the trial was unreliable or
Licking County, Case No. 13-CA-109 13

the proceeding fundamentally unfair because of the performance of trial counsel.” State

v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965.

{¶29} In determining whether counsel’s representation fell below an objective

standard of reasonableness, judicial scrutiny of counsel’s performance must be highly

deferential. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Because of

the difficulties inherent in determining whether effective assistance of counsel was

rendered in any given case, a strong presumption exists that counsel’s conduct fell

within the wide range of reasonable professional assistance. Id.

{¶30} In this case, trial counsel’s performance did not fall below an objective

standard of reasonable representation involving a substantial violation of any of his

essential duties to appellant. Trial counsel objected to the testimony at issue and

moved for acquittal pursuant to Crim.R. 29 at the close of appellee’s case, at the close

of all evidence, and during the sentencing hearing. The trial court provided the jury with

curative instructions on all parts of the testimony appellant contends was adverse,

inadmissible, or prejudicial and further instructed the jury not to consider the stricken

testimony. As discussed above, it was not unreasonable, arbitrary, or unconscionable

for the trial court to admonish the jury to ignore the stricken testimony rather than to

grant a mistrial and the curative instructions provided were an effective way to remedy

any errors that occurred during the testimony at issue. Accordingly, appellant’s fourth

assignment of error is overruled.
Licking County, Case No. 13-CA-109 14

{¶31} Based upon the foregoing, appellant’s assignments of errors are overruled

and the judgment of the Licking County Common Pleas Court is affirmed.

By Gwin, J.,

Hoffman, P.J., and

Wise, J., concur