Upon reviewing the briefs and record in this case, I am constrained to conclude that the trial court committed four separate errors, each of which warrants the reversal of the court's judgment. Accordingly, I respectfully dissent from the decision of the majority.
In finding appellant's first assignment to be without merit, the majority holds that Posch was not competent to testify as to the pre-kindergarten examination because he had no personal knowledge of the matter. Although I would agree that Posch certainly could not testify as to what actually occurred during Lavrich's examination, he was competent to testify concerning the typical procedure followed in this type of examination. Moreover, Posch was qualified to give expert testimony concerning the meaning of any *Page 633 relevant statements which may have been in the records, and to give general testimony as to the detection of sexual abuse of young children. Further, he could testify as to the existence of any duty owed by a physician to report suspected child abuse.
The majority emphasizes that Posch's counsel told the trial court that the records did not indicate whether Lavrich had actually examined the relevant areas of the child's anatomy in this instance. As the issue of whether the trial court properly relied upon counsel's representation was not raised, I will ignore it other than to comment that such a technique is not mentioned anywhere in the Rules of Evidence. It is my opinion that if it were established that there was a duty to check for signs of sexual abuse at that time, unless the records specifically showed that the genital area was not examined, appellant could have argued that the lack of any such record supported the conclusion that Lavrich did not find signs of abuse. While this would not have been conclusive, it would have been a very relevant piece of evidence for the jury to consider.
In concluding that Posch was competent to testify as to certain matters, I believe that appellant's arguments as to the physician/patient privilege should be addressed. For the following reasons, I also conclude that the trial court erred in excluding Posch's proposed testimony.
In arguing that the trial court erred in applying the privilege to exclude Posch's testimony, appellant has raised three arguments for consideration. First, appellant submits that as a general proposition, the physician/patient privilege does not apply in criminal proceedings.
To the contrary, Evid.R. 101(B) specifically provides that the rule governing privileges, Evid.R. 501, is applicable "at all stages of all actions, cases, and proceedings conducted under these rules." In addition, our Supreme Court has recently held that courts of this state "may not create a public policy limitation upon the physician-patient privilege in order to allow otherwise clearly inadmissible evidence to be received in drunk driving cases." State v. Smorgala (1990), 50 Ohio St.3d 222,553 N.E.2d 672, first paragraph of the syllabus. While the court did not address the exact issue, the Smorgala decision supports the conclusion that the physician/patient privilege must be observed in a criminal case.
Next, appellant maintains that the proposed testimony should have been admitted into evidence because the child waived the privilege by testifying at trial. Historically, Ohio has recognized the rule that the act of voluntarily testifying constitutes a waiver of the privilege by the patient as to the specific topic of the testimony. See, e.g., Baker v. Indus.Comm. (1939), 135 Ohio St. 491, 14 O.O. 392, 21 N.E.2d 593;Ramey v. Mets (1964), 3 Ohio App.2d 329, *Page 634 32 O.O.2d 434, 210 N.E.2d 449; Covington v. Sawyer (1983), 9 Ohio App.3d 40, 9 OBR 43, 458 N.E.2d 465. This general rule has also been applied in the criminal context. State v. Bowers (Aug. 31, 1982), Jefferson App. No. 81-J-32, unreported, 1982 WL 6178.
However, in relation to this precedent, it should be noted that the majority of these courts relied upon specific statutory language concerning the effects of the testimony by the patient. See, e.g., Baker, supra. However, the current version of the statute governing the physician/patient privilege, R.C.2317.02(B), does not contain similar language. This is in spite of the fact that R.C. 2317.02(A), which sets forth the attorney/client privilege, specifically provides that an attorney may be compelled to testify if the client testifies voluntarily. See, also, R.C. 2317.02(G)(1)(d).
Notwithstanding the absence of the traditional language in the new statute, some courts have continued to follow the old rule, and allowed a physician to testify if the patient has already done so. See Garrett v. Jeep Corp. (1991), 77 Ohio App.3d 402, 602 N.E.2d 691. From both a technical and a public policy perspective, this writer is unable to discern any reason why this particular waiver rule should not continue to be applied to the physician/patient privilege.
However, in light of the holding in Smorgala, supra, it is clear that the courts of this state must apply the physician/patient privilege as it is specifically set forth in the statute.1 Accordingly, I conclude that as a general proposition, a patient does not waive the privilege simply by testifying at trial.
Nevertheless, as appellant correctly notes in the third part of his first assignment, the privilege statute does set forth a specific exception which is applicable in this instance. R.C.2317.02(B)(1) provides that a physician can be compelled to testify if the patient was deemed to have waived the privilege under R.C. 2151.421. This latter statute states, inter alia, that if a physician becomes aware of any incidence of child abuse while acting in his professional capacity, he must immediately report his suspicions to the appropriate authorities. Section (A)(3) of the statute then provides that the patient will be deemed to have waived the testimonial privilege if (1) the patient is under eighteen years of age; (2) the physician knows or suspects that the patient has or will suffer any injury that indicates abuse or neglect; and (3) the *Page 635 physician/patient relationship did not arise from the patient's attempt to secure an abortion without notifying her parents. Apparently, this statute was in effect at the time of the examination as there was no issue raised on this point.
Obviously, the purpose of R.C. 2151.421 is to encourage physicians not only to report cases of possible abuse to the authorities, but also to be able to testify as to the report's basis in the subsequent trial. Typically, of course, the physician's testimony would be used by the state to establish that abuse had occurred.
However, there would seem to be no impediment to interpreting R.C. 2151.421 to also allow the physician to testify on behalf of the defendant, if the testimony is relevant to the specific charge. As to this point, I would note that R.C.2317.02(B)(1)(c) provides that if the patient initiates any type of civil action, she is deemed to have waived the privilege for the purposes of that action. Under those circumstances, the physician would be able to testify for or against her.
While R.C. 2317.02(B)(1)(c) does not refer to criminal actions, R.C. 2151.421 should be interpreted in the same manner,i.e., to allow the physician to testify on behalf of either the state or the defendant. As the charges are based upon allegations of physical abuse involving the child, it should follow that the privilege has been waived as to any physician who might have information pertaining to the facts of the case. Any other interpretation would be patently unfair to the defendant, and should be avoided when the statute does not specifically prohibit waiver.
In the case before this court, all three requirements of R.C.2151.421(A)(3) were satisfied; as a result, I would conclude that the child had waived the privilege as to the medical records and Lavrich. Moreover, as noted above, Posch was clearly competent to testify as to certain matters concerning the examination. Accordingly, I find the first assignment to be well taken.
As to the second assignment, the majority holds that the trial court did not err in denying appellant's request for a continuance in order to secure the presence of Lavrich. This holding is based upon the fact that counsel had been dilatory in finding Lavrich prior to trial.
While I would agree that counsel's action appeared to be fairly casual, I, nevertheless, conclude that a short continuance to the next morning was warranted because the implications of the proposed evidence were simply too critical to ignore.
The charges in this case were based upon the allegation that appellant had sexually abused the child many times over a two-year period. If the medical *Page 636 records or Lavrich's testimony indicated that a proper examination of the young child's genitals was done and no indications of abuse were found, the credibility of the child's statements would certainly be called into question. As to this point, I would emphasize that if such an examination was done by Lavrich, it would have been the only one conducted contemporaneously with the alleged abuse.
Certainly, any testimony which Lavrich might have given would not be conclusive as to the ultimate issues before the jury. However, his testimony could be very damaging potentially to the state's case. Under these circumstances, I conclude that appellant's request for a short continuance should have been granted. Thus, the second assignment also has merit.
Under his third assignment, appellant contends that the trial court erred in failing to excuse a juror who stated that he had been sexually abused as a child. In relation to this argument, the majority holds that the record supports the court's conclusion that the juror could be impartial and fair, notwithstanding the fact that the juror had stated that he could understand why the child would wait so long to tell someone of the alleged abuse.
As a general matter, I would agree that a trial court has the discretion to seat a juror who states that he will be able to render an impartial verdict. This is true even if the juror initially indicates that he may be biased toward the defendant or the state. See Crim.R. 24(B)(9).
Nevertheless, I feel that the instant juror should have been excused by the trial court because of the very specific and personal nature of his bias. Notwithstanding his later statement as to his ability to be fair and impartial, the juror's initial statement clearly indicated that he would be more apt to believe the child than would another individual who never had such an experience.
In this respect, this juror was inherently different from the jurors at issue in the other cited cases who had also been victims of crimes other than rape or abuse. Unlike crimes such as robbery, one of the primary issues in a sexual abuse case is the credibility of the victim's statement as to the occurrence of the alleged events. Did the event actually happen? An ability to comprehend and understand the "delay" factor in sex abuse cases is an appropriate topic about which an expert witness could educate lay people. Here a juror has indicated an "expertise" with this "delay" concept. In essence, he has admitted to having made a credibility assessment of the victim based on his experience. It would be very difficult for that juror, no matter how hard he might try, to limit his determination of the child's credibility to the trial evidence and not upon his own specific experience. The existence of such a preconceived standard of credibility is inherently unfair to the defendant. *Page 637
In addition, this juror's inclusion in the jury also raises the spectre that his personal expertise and experience regarding the victim's credibility might have directly influenced other jurors during the deliberations. In this respect, appellant's right to a fair and impartial trial could well have been jeopardized. Thus, I conclude that the trial court abused its discretion in not excusing the juror in question.
In addition to the foregoing, I find it necessary to address a separate matter which appellant has not raised in his brief before this court. The testimony of the child at trial indicated that in order to conduct the alleged sexual abuse, appellant would take her into the master bedroom of the home. In my opinion, this evidence was not sufficient to establish that appellant committed the offenses of rape and kidnapping with a separate animus. Thus, I conclude that appellant's conviction for kidnapping should be reversed as plain error.
R.C. 2941.25(A) provides that if certain conduct of the defendant can be considered to constitute two or more allied offenses of similar import, he can only be convicted of one of the offenses. Section (B) of this statute then provides that where the defendant's actions result in two or more offenses of the same or similar kind, he can be convicted of each if he had a separate animus as to each.
In applying R.C. 2941.25(A), the Supreme Court has held that kidnapping is an offense of similar import to rape. State v.Donald (1979), 57 Ohio St.2d 73, 11 O.O.3d 242, 386 N.E.2d 1341. As to Section (B), the court has also delineated two "guidelines" for determining whether kidnapping and a second offense, such as rape, have been committed with a separate animus:
"(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independence of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions;
"(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions." State v. Logan (1979), 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345, syllabus.
In Logan, prior to the rape, the defendant forced the victim to go with him down an alley, around a corner, and down a flight of steps. Finding that a separate animus had not existed for both offenses, the Logan court reversed the kidnapping conviction. *Page 638
Along the same lines, this court has held that merely forcing the victim into the bedroom of her own apartment is not sufficient to demonstrate a separate animus for kidnapping and rape. State v. Dotson (Oct. 13, 1989), Lake App. No. 88-L-13-157, unreported, 1989 WL 120810. The court also emphasized that the duration of the restraint was not substantial.
As to the issue of a separate animus, I feel that the facts of this case are indistinguishable from those in Dotson. Moreover, like the Dotson court, I believe that appellant's conviction for both rape and kidnapping constitutes a "plain error" which this court should rule upon regardless of whether the issue was raised at the trial level. See State v. Craft (1977), 52 Ohio App.2d 1, 6 O.O.3d 1, 367 N.E.2d 1221.
For the foregoing reasons, I would reverse appellant's conviction for kidnapping. I would also reverse and remand the action for a new trial on the four counts of rape.
1 Evid.R. 501 states that the law of privileges "shall be governed by statute enacted by the General Assembly or by principles of common law as interpreted by the courts of this state in light of reason and experience." In Smorgala, the court held that it could not create a common-law exception to the physician/patient privilege because the legislature had enacted a specific provision on this area of the law. Thus, R.C.2317.02(B) is controlling as to this issue.