State v. Dyer

[Cite as State v. Dyer, 2017-Ohio-426.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2015-L-121
- vs - :

DEREK A. DYER, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 14 CR
000951.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, Jenny B. Azouri, Assistant Prosecutor,
and Alana A. Rezaee, Assistant Prosecutor, Lake County Administration Building, 105
Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Thomas J. Tatarunas, Thomas J. Tatarunas, L.P.A., Inc., 7327 Center Street, Mentor,
OH 44060 (For Defendant-Appellant).

DIANE V. GRENDELL, J.

{¶1} Defendant-appellant, Derek Dyer, appeals his conviction for Felonious

Assault in the Lake County Court of Common Pleas. The issue before this court is

whether statements incriminating the defendant made by the victim of domestic

violence/assault are admissible: as excited utterances when they are made within an

hour of the assault; as statements made for medical treatment when they are made to

medical personnel on the evening of the assault; as prior inconsistent statements
despite the lack of a limiting instruction; and when they are contained in written

statements but not admitted for the truth of the matter asserted. For the following

reasons, we affirm Dyer’s convictions.

{¶2} On May 19, 2015, the Lake County Grand Jury returned a three-count

Indictment against Dyer, charging him with Felonious Assault, a felony of the second

degree in violation of R.C. 2903.11(A)(1); Domestic Violence, a felony of the third

degree in violation of R.C. 2919.25(A); and Domestic Violence, a felony of the third

degree in violation of R.C. 2919.25(B).

{¶3} On June 5, 2015, Dyer waived his right to be present at arraignment and

entered a plea of not guilty to all charges.

{¶4} On September 22, 2015, the State filed a Motion for Calling of Court

Witness pursuant to Evidence Rule 614(A). The State moved the trial court to call

Nicole Ramian as a court’s witness on the grounds that Ramian had recanted

statements she had made identifying Dyer as her assailant, Ramian and Dyer are in a

romantic relationship, and they have two children together.

{¶5} On the same date, the State filed a Motion in Limine to Determine

Admissibility of Victim’s Statements under Evid.R. 803(4).

{¶6} On September 24, 2015, Dyer opposed the State’s Motions.

{¶7} On September 25, 2015, a hearing was held on the State’s Motions, both

of which were granted by the trial court.

{¶8} On September 28 and 29, 2015, Dyer’s case was tried before a jury.

{¶9} The following evidence was presented on behalf of the State.

{¶10} Patrick Fink, a firefighter and paramedic for the City of Willoughby,

testified that, at sometime after midnight on May 9, 2014, he responded to a call at the

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Willoughby Brewing Company in Willoughby, Ohio. At the scene, he treated Nicole

Ramian for injuries. He described her as “very upset, very distraught [at] what

happened”; “she had blood on her mouth”; “inconsolable at times to what had gone on”;

but also as “coherent.” Ramian told Fink that “her boyfriend had hit her.” Fink spent

about fifteen minutes with Ramian while transporting her to Lake West Hospital.

{¶11} Doctor Joseph Golob, a trauma surgeon at Metro Health Hospital, testified

that he treated Ramian on the morning (after 7:00 a.m.) of May 9, 2014, at Metro Health

upon her transfer from Lake West for suspected subdural hematoma (or “blood on the

brain”). A CT scan and physical exam did not reveal subdural hematoma, but Ramian

did have a lacerated lip, nasal and jaw (maxilla) bone fractures, and a missing tooth.

On the GCS (“Glasgow Coma Scale”) she scored 15, which is “completely normal as far

as being awake and alert.” Ramian reported that her injuries were caused by being

punched by her boyfriend. She was prescribed narcotic medication for pain.

{¶12} Nicole Ramian was called to testify by the court. Dyer is the father of two

of her three children. She has been romantically involved with Dyer for about seven

years. In May 2014, she and Dyer were estranged on account of him “talking to another

girl.”

{¶13} On May 8, 2014, Ramian and her sister (Jennifer) went to the Willoughby

Brewing Company after dark. Over the course of an hour, she had two or three vodka

and cranberry drinks. Ramian also stated she had taken “a bar” of un-prescribed

Xanax. The combination of the vodka and Xanax made her feel “a little weird.”

Eventually, she met Dyer in a semi-private area of the bar (the “VIP section”) where he

was celebrating his birthday. They began to argue verbally.

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 {¶14} Ramian was struck in the face. She “assumed” that Dyer struck her

because she had thrown a drink at him, but did not see him punch her. She didn’t

remember exactly what happened and thought that she had blacked out. All that

Ramian could “for real remember is waking up in Metro.”

{¶15} In written statements, signed by Ramian and dated May 9, 2014, at 1:35

a.m., Dyer is identified as her attacker. The statements advised Ramian that by signing

them she wished to press domestic violence charges against Dyer. Ramian, however,

had no memory of writing or signing the statements.

{¶16} Ramian recalled that on May 12, 2014, she made a statement to her

dentist that she assumed Dyer had punched her because she threw a drink at him.

{¶17} Ramian testified that she subsequently (also May 12) spoke with a friend,

Lea (Leatice) Curry, who also was at the Willoughby Brewing Company on the night of

May 8. Ramian went with Curry to the police station and indicated that she no longer

wished to press charges against Dyer.

{¶18} Lieutenant Richard T. Ashton of the Willoughby Police Department

testified that, on the night in question, he was working security at the Willoughby

Brewing Company. At about 12:35 a.m. (May 9), Ramian approached him: “she’s

crying and yelling, and covering, holding her face.” There was blood on her face. He

asked her what happened and she advised that “the father of her kids punched her in

the face, knocked her tooth out.”

{¶19} Lieutenant Ashton led Ramian to the kitchen (since it was quieter) where

she identified Dyer as her assailant. Ramian spoke coherently and did not seem to be

impaired. Lieutenant Ashton, accompanied by Ramian’s sister, tried without success to

locate Dyer in the bar.

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 {¶20} Officer Paul Sciarrino of the Willoughby Police Department testified that,

on the morning of May 9, he responded to a call at the Willoughby Brewing Company.

Upon his arrival, Lieutenant Ashton briefed him about the situation. He spoke with

Ramian in the kitchen. He described her as “hysterical” (crying and upset), “holding a

towel that was bloody to her face.” She repeated to him several times that “he knocked

my front teeth out,” he being Dyer, the father of her children.

{¶21} Officer Sciarrino met with Ramian again at Lake West Hospital to obtain

written statements and photographs. In speaking with her, Officer Sciarrino testified

that Ramian did not appear intoxicated or otherwise impaired in any way.

{¶22} Officer Sciarrino testified that on May 14 he was advised by Ramian that

she did not wish to press charges against Dyer.

{¶23} Doctor Jennifer Becker, a dentist with Hudec Dental, evaluated Ramian on

May 12, 2014. Ramian was emotional and teary during the examination. Ramian was

missing a front tooth and a couple of other teeth were fractured. Ramian explained that

she had been punched in her face by her boyfriend.

{¶24} Jennifer Williams, an emergency department nurse at Lake West Hospital,

assessed a “tearful” Ramian at about 1:00 a.m. on May 9. Ramian’s blood alcohol level

was 0.08, which would be consistent with the consumption of two or three drinks that

evening. Ramian was coherent and cooperative in her interactions with Williams. She

asked what happened and Ramian replied that “she was punched in the face, closed

fist, by her boyfriend.” Ramian also stated that she was not sure if she had lost

consciousness and that the incident happened quickly.

{¶25} The following evidence was presented on behalf of Dyer.

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 {¶26} Leatice Curry testified that he knows both Dyer and Ramian. He was at

the Willoughby Brewing Company on the night in question independently of Dyer and

Ramian. He noted Ramian was “out of character” and not a “normal drunk.” He

observed her swearing at Dyer and throw her drink, which landed on several people

around Dyer. He saw a man wearing a gray hoodie and black sweatpants punch

Ramian and, then, walk into the crowd. Ramian was knocked down, but not out. Curry

tried to follow the assailant but was unable to do so. He reported what he saw to a

bouncer.

{¶27} Curry spoke with Ramian the next day and told her that it was not Dyer but

an unidentified man in a gray hoodie who had punched her. Curry accompanied

Ramian to the police station and tried to make a statement, but the police would not

accept it.

{¶28} Dyer testified that he is currently in a relationship with Ramian (“the love of

my life”) and that they are raising their two children together.

{¶29} Dyer admitted to having two prior Domestic Violence convictions, not

involving Ramian, as well as convictions for drug-related offenses and Attempted

Abduction.

{¶30} Dyer admitted that, on May 8, 2014, he and Ramian were separated

because he had been caught “messing with another girl.” He was at the Willoughby

Brewing Company to celebrate his birthday in the VIP section. He arrived sometime

after 10:00 p.m.

{¶31} Dyer met with Ramian upon arriving at Willoughby Brewing Company, and

they argued briefly about money. Dyer also met Curry that evening, and invited him to

join him in the VIP section.

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 {¶32} Dyer met Ramian a second time at about 12:30 a.m. and they resumed

arguing. When Ramian threw her drink, Dyer turned to avoid it. Someone shouted,

“bitch,” and, when Dyer turned back around, he saw Ramian being punched. He then

went looking for the man who punched her, described as wearing black jeans and a

grey sweater, until he learned that “he was being looked for.” Dyer became scared, left

the bar and went home.

{¶33} Dyer called Ramian repeatedly in the days following the incident, but

without being able to make contact with her.

{¶34} On September 30, 2015, the jury returned its verdict finding Dyer guilty of

all charges.

{¶35} The trial court proceeded immediately to sentencing, merging the two

Domestic Violence counts into the Felonious Assault count. The court sentenced Dyer

to six years’ imprisonment, advised him that he would be subject to three years of

mandatory post release control, and charged him with the costs of prosecution.

{¶36} On October 29, 2015, Dyer filed a Notice of Appeal. On appeal, Dyer

raises the following assignment of error:

{¶37} “[1.] The trial court’s improper admission of numerous hearsay statements

and failure to properly instruct the jury of said statements[’] non-substantive nature as

well as the trial court improperly instructing the jury that such statements were

substantive evidence constituted plain error and deprived Appellant of his right to a fair

trial.”

{¶38} In this assignment of error, Dyer complains that the trial court admitted out

of court statements identifying him as Ramian’s assailant without providing a limiting

7
instruction that such statements were not substantive in nature and could only be used

for purposes of impeachment.

{¶39} Our standard of review in the present case is both abuse of discretion and

plain error.

{¶40} With respect to the admission of Ramian’s out-of-court statements, the

standard is abuse of discretion. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d

1056 (1991) (“a trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with

the rules of procedure and evidence”); State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d

343 (1987), paragraph two of the syllabus (“[t]he admission or exclusion of relevant

evidence rests within the sound discretion of the trial court”).

{¶41} With respect to the failure to provide a limiting instruction, Dyer failed to

request such an instruction or to object to the jury instructions as given, thereby waiving

all but plain error. Crim.R. 30(A) (“[o]n appeal, a party may not assign as error the

giving or the failure to give any instructions unless the party objects before the jury

retires to consider its verdict”); State v. Williford, 49 Ohio St.3d 247, 251, 551 N.E.2d

1279 (1990) (“[w]e have repeatedly held that a failure to object before the jury retires in

accordance with the second paragraph of Crim.R. 30(A), absent plain error, constitutes

a waiver”).

{¶42} “Plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.” Crim.R. 52(B). “Notice of

plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

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 {¶43} The plain error standard also applies in instances where testimony is

admitted without objection by the defendant. State v. Slagle, 65 Ohio St.3d 597, 604,

605 N.E.2d 916 (1992) (“[a]s a general rule an appellate court will not consider an

alleged error that the complaining party did not bring to the trial court’s attention at the

time the alleged error is said to have occurred”).

{¶44} “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). “It is axiomatic that hearsay evidence is inadmissible unless

it falls within the specific hearsay exceptions enumerated in the Rules of Evidence.”

State v. DeMarco, 31 Ohio St.3d 191, 195, 509 N.E.2d 1256 (1987).

{¶45} Dyer identifies seven out of court statements made by Ramian and

admitted at trial in which he was identified as the assailant: (1) an oral statement to

Lieutenant Ashton; (2) an oral statement to Officer Sciarrino; (3) an oral statement to

Fink (paramedic); (4) an oral statement to Williams (nurse) also quoted in the medical

records; (5) an oral statement to Dr. Golob; (6) an oral statement to Dr. Becker; and (7)

two written statements for Officer Sciarrino.

{¶46} The first three of these statements, those made to Lieutenant Ashton,

Officer Sciarrino, and Fink are fairly admissible under the excited utterance exception to

the hearsay rule.

{¶47} Under this exception, “[a] statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by the

event or condition” is not excluded by the rule against hearsay. Evid.R. 803(2).

Essential to admissibility of statements under this exception is that “the statement or

declaration, even if not strictly contemporaneous with its exciting cause, was made

9
before there had been time for such nervous excitement to lose a domination over his

reflective faculties, so that such domination continued to remain sufficient to make his

statements and declarations the unreflective and sincere expression of his actual

impressions and beliefs.” (Citation omitted.) State v. Taylor, 66 Ohio St.3d 295, 301,

612 N.E.2d 316 (1993). “[T]he lapse of time between the startling event and the out-of-

court statement is not dispositive in the application of Evid.R. 803(2) * * * [r]ather, the

question is whether the declarant is still under the stress of nervous excitement from the

event.” State v. Boston, 46 Ohio St.3d 108, 118, 545 N.E.2d 1220 (1989).

{¶48} Lieutenant Ashton, Officer Sciarrino, and Fink encountered Ramian within

an hour of the assault when she was clearly still under the stress of excitement caused

by the attack.

{¶49} The next two statements related by Nurse Williams and Dr. Golob were

the subject of the Motion in Limine filed by the State, arguing for their admission as

statements made for the purpose of medical diagnosis and treatment.1 Under the

medical diagnosis or treatment exception, “[s]tatements 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” are not

excluded by the hearsay rule. Evid.R. 803(4).

{¶50} A recurrent issue with respect to the medical diagnosis or treatment

exception is whether statements identifying and incriminating the defendant are

admissible. This court has followed the general rule “that a statement as to the identity

1. On appeal, the State asserts that the statements to Nurse Williams and Dr. Golob also constitute
excited utterances. While arguable, there is no indication in the record that the trial court considered
them as such when ruling on their admission.

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of the perpetrator of a criminal act, which is not reasonably related or necessary to

medical diagnosis, is not admissible under Evid.R. 803(4).” State v. Ashford, 11th Dist.

Trumbull No. 99-T-0015, 2001 WL 137595, 8 (Feb. 16, 2001) (cases cited); State v.

Smith, 8th Dist. Cuyahoga No. 90476, 2008-Ohio-5985, ¶ 38 (“[a]bsent some evidence

that the identity of the perpetrator is necessary for medical purposes, statements

identifying an assailant are not properly admitted pursuant to Evid.R. 803(4)”) (citation

omitted).

{¶51} In the present case, the trial court found Dyer’s identity reasonably related

to medical diagnosis or treatment:

[A] doctor has to know who she’s going home to. And if she’s going

home to an assailant, the doctor has a duty not to discharge her

into the custody of a potential assailant. A doctor has a duty not to

put her into the same position that may have brought her for

medical treatment. So that’s all part of medical diagnosis. The

identity of the perpetrator is part of the medical diagnosis in a

physical assault case. So it’s my ruling that all of that will be

admitted.

{¶52} The trial court’s justification for its ruling was echoed in the testimony of

Nurse Williams, who stated that treatment includes “patient safety” and that, if the

situation had occurred, Dyer would have been prevented from having contact with

Ramian. Compare State v. Flowers, 9th Dist. Summit No. 25841, 2012-Ohio-3783, ¶ 23

(“[t]his Court [the Ninth District] has consistently held that a description of the encounter

and even identification of the perpetrator are within the exception, as statements made

for purposes of diagnosis or treatment”) (citations omitted).

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 {¶53} We find the admission of the statements by Nurse Williams and Dr. Golob

to be harmless error as they were cumulative to the properly admitted statements of

Lieutenant Ashton, Officer Sciarrino, and Fink identifying Dyer as the assailant. State v.

Williams, 38 Ohio St.3d 346, 350, 528 N.E.2d 910 (1988) (the erroneous admission of

hearsay, cumulative to the testimony of other witnesses at trial, constitutes harmless

error); Smith, 2008-Ohio-5985, at ¶ 39.

{¶54} The sixth statement was introduced through the testimony of Ramian’s

dentist, Dr. Becker, and was made on May 12 (three days after the assault), the same

day that Ramian indicated that she no longer wished to press charges against Dyer.

{¶55} Dr. Becker testified that Ramian identified her boyfriend as the person who

had punched her. Ramian testified that she told Dr. Becker “I assumed he punched my

teeth out, cause that’s who I threw my drink at.” The trial court admitted the testimony

as a prior inconsistent statement.

{¶56} “Extrinsic evidence of a prior inconsistent statement by a witness is

admissible * * * [i]f the statement is offered solely for the purpose of impeaching the

witness, the witness is afforded a prior opportunity to explain or deny the statement and

the opposite party is afforded an opportunity to interrogate the witness on the statement

or the interests of justice otherwise require;” and “[t]he subject matter of the statement is

* * * [a] fact that is of consequence to the determination of the action other than the

credibility of a witness.” Evid.R. 613(B)(1) and (2)(a).

{¶57} Applying this Rule, Ohio courts have regularly allowed the introduction of a

witness’ prior inconsistent statement solely for the purposes of impeaching that witness’

credibility, not as substantive evidence of the defendant’s guilt. State v. McKelton, __

Ohio St.3d __, 2016-Ohio-5735, __ N.E.3d __, ¶ 125. Accordingly, “[s]tatements

12
admitted under Evid.R. 613(B) require a limiting instruction to inform the jury that the

prior statements were only to be considered for impeachment purposes.” State v.

Armstrong, 11th Dist. Trumbull Nos. 2001-T-0120 and 2002-T-0071, 2004-Ohio-5635, ¶

109; State v. Fields, 8th Dist. Cuyahoga No. 88916, 2007-Ohio-5060, ¶ 17; Evid.R. 105

(“[w]hen evidence which is admissible as to one party or for one purpose but not

admissible as to another party or for another purpose is admitted, the court, upon

request of a party, shall restrict the evidence to its proper scope and instruct the jury

accordingly”).

{¶58} As noted above, Dyer did not request a limiting instruction or otherwise

object to the jury instructions as given, thus limiting our review to plain error. The

absence of a limiting instruction in the present case does not rise to that level, having

had no conceivable influence on the outcome of the trial. Ramian’s identification of

Dyer as her assailant was properly put before the jury at least three times through the

testimony of Lieutenant Ashton, Officer Sciarrino, and Fink. Moreover, Ramian did not

deny making a statement to Dr. Becker implicating Dyer, although at trial she

equivocated with respect to her identification of Dyer. In light of the considerable

substantive evidence of Dyer’s guilt and the obvious import of Dr. Becker’s testimony as

impeaching Ramian’s subsequent equivocation, the failure to give a limiting instruction

with respect to Dr. Becker’s testimony was inconsequential. McKelton at ¶ 130 (lack of

limiting instruction with respect to a witness’ prior inconsistent statement was not

“outcome-determinative” where other witnesses testified substantively as to the same

statement); State v. Kimbrough, 11th Dist. Lake No. 97-L-274, 1999 WL 540909, 10

(July 9, 1999) (“the admission of extrinsic evidence of Layfield’s [prior inconsistent]

13
statement was harmless error” where “the remaining evidence, standing alone,

constitute[d] overwhelming proof of the defendant’s guilt”).

{¶59} The final statements that Dyer contends were improperly before the jury

are written statements by Ramian describing the assault written within an hour of the

assault for Officer Sciarrino. The substance of these statements mirrors Officer

Sciarrino’s testimony as to what Ramian told him following the assault. Dyer did not

object to the admission of these written statements, thus, we are limited to notice plain

error affecting substantial rights. Evid.R. 103(A)(1) and (D) (“[e]rror may not be

predicated upon a ruling which admits or excludes evidence unless a substantial right of

the party is affected, and * * * timely objection or motion to strike appears of record

stating the specific ground of objection,” although “[n]othing in this rule precludes taking

notice of plain errors affecting substantial rights”).

{¶60} The trial court indicated in the pre-trial hearing that the written statements

would be admissible, not to prove the truth of the matter asserted, but as relevant to the

issue of Ramian’s coherence and ability to perceive events at the time of the assault.

Ramian claimed that, in addition to the vodka drinks, she had taken Xanax which may

have contributed to her inability to remember events. Dyer and Curry both testified,

contrary to the other witnesses that interacted with Ramian that evening, that she was

noticeably drunk. The court stated:

They’ll be able to see her statements * * * to judge not the truth of

the matter asserted, but whether she was of proper composition to

write the statement out. So her credibility will be an issue * * *.

And the statements haven’t been offered, but I would think that

there is a separate purpose, since you’ve raised the issue through

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 her testimony, that she may have been so out of it with the

combination of the Xanax and the 3 drinks, whether she could even

write out a statement, or form an opinion as to her observations.

So in order to fulfill the fact finding purpose of the trial, those will be

admissible.

{¶61} As the trial court articulated a cogent rationale for the admission of the

written statements as nonhearsay, their admission does not constitute plain error or

even an abuse of discretion (had an objection been duly raised).2

{¶62} Lastly, Dyer argues the trial court erred by not admitting Ramian’s written

statement of May 12, 2014, wherein she advised the police that she was recanting her

prior statements which identified Dyer as the assailant. Dyer maintains that the

statement is not hearsay as a prior consistent statement. “A statement is not hearsay if

* * * [t]he declarant testifies at trial or hearing and is subject to cross-examination

concerning the statement, and the statement is * * * consistent with declarant’s

testimony and is offered to rebut an express or implied charge against declarant of

recent fabrication or improper influence or motive.” Evid.R. 801(D)(1)(b).

{¶63} The trial court ruled the May 12 written statement was inadmissible noting

that the prior written statements (made within an hour of the assault) “were done under

circumstances quite different than this one. She’s had time to reflect before she wrote

2. Since they were not admitted for the truth of the matter asserted, it is arguable that a limiting
instruction would have been appropriate with respect to the written statements. For the reasons set forth
in connection with the admission of Dr. Becker’s testimony, the lack of such instruction does not
constitute plain error. Dyer’s reliance on State v. Armstrong, 11th Dist. Trumbull Nos. 2001-T-0120 and
2002-T-0071, 2004-Ohio-5635, is misplaced. In Armstrong, this court held that the lack of a limiting
instruction on the use of impeachment evidence was “fatal and plain error.” Id. at ¶ 109. Armstrong is
distinguishable, however, in that the impeachment evidence at issue therein “comprised the only direct
link between appellant and the murder-for-hire scheme,” and “the remaining evidence, standing alone,
was inconclusive or suspect circumstantial evidence.” Id. at ¶ 121. In the present case, there was
significant evidence of Dyer’s guilt of which the written statements were merely duplicative.

15
this one [on May 12]. * * * This was done after everything has calmed down and after

she’s had time to reflect, after she’s been worked on by Lea Curry and Derek Dyer.”

{¶64} We find no abuse of discretion. The purpose of allowing a prior consistent

statement is to rebut the implication that Ramian changed her testimony due to

influence or pressure exerted by Dyer. Her May 12 written statement to the police does

not serve this purpose because it was made after Dyer had repeatedly contacted

Ramian to deny his involvement and after she had discussed the matter with Curry, who

accompanied her to the police station when she wrote the statement. Admission of the

May 12 statement would not have served the purpose of the Rule. Additionally, Ramian

was allowed to testify that she returned to the police station on May 12 because she

wanted to change or correct her prior written statements and Officer Sciarrino testified

that Ramian was at the police station on May 12 and that she expressed a desire not to

press charges and wrote a third statement at this time.

{¶65} The sole assignment of error is without merit.

{¶66} For the foregoing reasons, Dyer’s conviction for Felonious Assault is

affirmed. Costs to be taxed against the appellant.

TIMOTHY P. CANNON, J., concurs in judgment only with a Concurring Opinion,

THOMAS R. WRIGHT, J., concurs in judgment only with a Concurring Opinion.

__________________________________

TIMOTHY P. CANNON, J., concurring in judgment only.

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 {¶67} I respectfully concur with the judgment of the lead opinion in affirming

appellant’s conviction.

{¶68} I agree, as the lead opinion notes, that the admission of testimony from

Dr. Golob and Nurse Williams was error, albeit harmless. However, I write to clarify that

the trial court does not have “discretion” to admit hearsay. With regard to some

evidentiary rulings, such as relevancy, the trial court must exercise discretion as to the

admissibility of the evidence. In contrast, hearsay is simply inadmissible unless a valid

exception exists. Evid.R. 802. Clearly, there are times when the trial court must make

a factual determination as to whether an exception exists, but if the trial court

determines a statement is hearsay, and no exception exists, there is no discretion to

allow its admission. Jack F. Neff Sand & Gravel, Inc. v. Great Lakes Crushing, Ltd.,

11th Dist. Lake No. 2012-L-145, 2014-Ohio-2875, ¶23.

{¶69} The lead opinion notes that the “trial court found Dyer’s identity reasonably

related to medical diagnosis or treatment” when it issued a ruling at a hearing on a

motion in limine. When the trial court made that ruling, it was prior to trial and prior to

any testimony in that regard. There was no evidence introduced at trial that the identity

of the perpetrator was necessary to the medical providers for the diagnosis and

treatment of the victim.

{¶70} The lead opinion states, “[t]he trial court’s justification for its ruling was

echoed in the testimony of Nurse Williams, who stated that treatment includes ‘patient

safety.’” Nurse Williams testified that if appellant had come to the hospital while Ms.

Ramian was a patient, she would have noted that he had come to the hospital in the

medical record because “we’re there to protect the patient. I would have involved

17
security, probably would not have let him back at that point.” However, this testimony

does not reflect “treatment” as explained by the staff notes to Evid.R. 803(4).

{¶71} The staff notes of Evid.R. 803(4) state, “[t]he circumstantial guaranty of

trustworthiness of [statements for purposes of medical diagnosis or treatment] is derived

from the assumption that a person will be truthful about his physical condition to a

physician because of the risk of harmful treatment resulting from untruthful statements.”

In the present case, untruthfulness about the identity of the perpetrator did not create a

risk that the patient would receive harmful treatment or an incorrect diagnosis.

{¶72} The lead opinion cites to this court’s decision in State v. Ashford, 11th

Dist. Trumbull No. 99-T-0015, 2001 Ohio App. LEXIS 583 (Feb. 16, 2001). That case

involved a minor child who was the victim of sexual abuse, and the court found the

identity of the abuser may have been pertinent to the “psychological treatment and

diagnosis” of the victim, in that it may have been necessary to remove the child from the

home. These facts are distinguishable from the present case. Here, there is no

indication or testimony from either Dr. Golob or Nurse Williams that knowing the

perpetrator’s identity was necessary for the psychological treatment and diagnosis of

the victim. As a result, I agree it was error to admit the testimony.

__________________________________

THOMAS R. WRIGHT, J., concurs in judgment only with a Concurring Opinion.

{¶73} I agree with the majority’s conclusion as clarified by the concur in

judgment only with a concurring opinion regarding discretion. Nevertheless, I write

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separately since the lead opinion finds harmless error without first analyzing why the

perpetrator’s identity is inadmissible under Evid.R. 803(4).

{¶74} Here, the assailant’s identity was not pertinent to diagnosis or treatment,

and thus lacks circumstantial trustworthiness. Staff Notes, Evid.R. 803(4). The Tenth

District Court of Appeals has said it well: “[T]he underlying rationale of the exception

has remained the same; namely, the commonsense notion that you have a strong

incentive to tell the truth and get it right when describing your condition to a doctor who

could wield a sharp scalpel.” (Citation omitted.) State v. Clary, 73 Ohio App.3d 42, 596

N.E.2d 554, *52 (1991). As there were no adverse diagnosis or treatment

consequences to the victim in the event of misidentification, actual or perceived, the

perpetrator’s identity is inadmissible under Evid.R. 803(4).

{¶75} I acknowledge that circumstances may arise in which an assailant’s

identity is pertinent to diagnosis or treatment. However, this is not that case.

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