[Cite as State v. Dalton, 2019-Ohio-4364.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28262
:
v. : Trial Court Case No. 2018-CR-1340
:
MARK DALTON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 25th day of October, 2019.
...........
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270,
Beavercreek, Ohio 45431
Attorney for Defendant-Appellant
.............
FROELICH, J.
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{¶ 1} Following a bench trial, the trial court found Mark Dalton guilty of one count
of retaliation (against victim) in violation of R.C. 2921.05(B), a third-degree felony, and
sentenced him to 24 months in prison, to be served consecutively to his sentence in
Montgomery County C.P. No. 2017 CR 3384. The judgment of the trial court will be
affirmed.
Factual and Procedural Background
{¶ 2} On March 28, 2018, Dalton pled guilty in Case No. 2017 CR 3384 to one
count of gross sexual imposition (by force) in violation of R.C. 2907.05(A)(1), a fourth-
degree felony. That charge related to an incident that occurred in February 2017 and
involved K.R., who was a minor at the time of the offense. According to K.R., after the
incident of sexual abuse, Dalton “said if I (K.R.) told anyone, he was going to kill me.” (Tr.
p. 17.) She nonetheless reported the incident to the police about eight days after it
occurred.
{¶ 3} Prior to sentencing in Case No. 2017 CR 3384, Dalton was screened at the
Montgomery County jail by Laurie Johnson, a screening specialist and clinician with the
MonDay Community Correctional Institution (“MonDay”), to determine if he would be
eligible for the MonDay program as an alternative to traditional incarceration. Johnson
reported that while she was questioning Dalton about his mental health status, Dalton told
her “he had a [sic] suicidal ideation after he was charged with this [gross sexual
imposition] offense because it was so devastating for him.” (Tr. p. 43.) Johnson said that
Dalton then spoke about the victim (K.R.), stating, “When I get out, I will retaliate; there
will be blood; I will kill her; she must know what she has done to me.” (Id. at 44.) Johnson
said she wrote down Dalton’s words verbatim; she also described Dalton as angry and
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his tone as flat when he spoke those words.
{¶ 4} Johnson testified that her position entails a duty to disclose instances when
a defendant threatens to harm him/herself or another person. She therefore reported
Dalton’s comments about self-harm to Samaritan Behavioral Health1 and his comments
about the victim to a supervisor at MonDay. Johnson said she thereafter related Dalton’s
comments about K.R. to Detective Joshua Spears, who had investigated the gross sexual
imposition case, and to the trial judge to whom that case was assigned. She prepared a
report informing the judge that Dalton had been rejected as a candidate for the MonDay
program due to his comments. (See Tr. Exh. 3.) Dalton subsequently was charged with
retaliation, and the new case was assigned to a different judge.
{¶ 5} Dalton waived a jury as to the retaliation charge. At his bench trial, both K.R.
and Johnson testified regarding the separate threats each personally heard Dalton make
against K.R.2 K.R. also testified that the prosecutor from the gross sexual imposition case
advised her about the later threat Dalton made while awaiting sentencing. In addition,
Kelsie Carson, the assistant prosecutor from the earlier case, testified that information
communicated to her about the statements Dalton made caused her to be concerned for
K.R.’s safety. She said she communicated with K.R. and K.R.’s grandmother to relay her
concerns and to discourage them from appearing for Dalton’s sentencing.
{¶ 6} Finally, Det. Spears testified that he had participated in the investigation of
1
Johnson later explained that Samaritan Behavioral Health manages mental health
concerns reported among inmates at the jail. (Tr. pp. 72-73.)
2
Although Dalton apparently did object to K.R.’s testimony about threats Dalton made
directly to her (see Tr. p. 84-85), Dalton did not object to Johnson’s trial testimony on the
subject of Dalton’s statements during his MonDay screening. (See Tr. pp. 22-83.)
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K.R.’s allegations against Dalton. He said that sometime after Dalton’s guilty plea to gross
sexual imposition, Johnson contacted him (Spears) to advise him that Dalton “had made
a threat that he would retaliate against [K.R.]; he would kill her; he would seek
vengeance[;] and there would be blood.” (Tr. pp. 98-99.) Det. Spears said he viewed that
threat as significant because Dalton reportedly had made similar statements to the victim
“multiple times.” (Id., p. 99.) Det. Spears contacted prosecutor Carson, K.R., K.R.’s
grandmother, and K.R.’s victim advocate to make them aware of Dalton’s latest threat.
{¶ 7} Dalton did not testify and presented no witnesses or exhibits. The trial court
permitted, and both parties filed, post-trial briefs regarding the relevant issues. In his post-
trial brief, Dalton asserted for the first time that Johnson should not have been permitted
to testify about any statements Dalton made during the MonDay screening, given certain
representations made within MonDay’s forms as to the confidentiality of information
provided. (See Tr. pp. 120-124.) The trial court found Dalton guilty of retaliation as
charged. The court’s final judgment of conviction sentenced him to 24 months in prison,
to be served consecutively to his sentence in Case No. 2017 CR 3384.
{¶ 8} Dalton appeals from that judgment, raising two assignments of error:
1) The trial court erred in finding [Dalton] guilty for retaliation (against victim)
when the statements that inculpated [Dalton] were improperly admitted.
2) The trial court erred in finding [Dalton] guilty for retaliation (against victim)
when the conviction is against the manifest weight of the evidence.
Assignment of Error #1 – Improper Admission of Evidence
{¶ 9} R.C. 2921.05(B) provides that “[n]o person, purposely and by force or by
unlawful threat of harm to any person or property, shall retaliate against the victim of a
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crime because the victim filed or prosecuted criminal charges.” Dalton was convicted
under that provision based on Johnson’s testimony that Dalton, during the MonDay
screening process, told Johnson that when he was released, he would “retaliate” by killing
the victim of his sexual abuse for “what she ha[d] done” to him. (See Tr. p. 45.)
{¶ 10} Dalton now contends that Johnson’s testimony was admitted in
contravention of federal confidentiality rules that prohibit the disclosure of information
provided by a patient for purposes of diagnosis, treatment, or referral for treatment, see
42 C.F.R. 2.1-2.12, and that the admission of that evidence amounted to plain error. In
support of his argument, Dalton advances language that appears on a waiver form he
and Johnson signed in relation to the MonDay screening. Through that form, entitled
“Authorization for Release of Information,” Dalton expressly authorized MonDay to
disclose “Confidential Patient Information” to the Montgomery County Common Pleas
Court. (See Tr. State’s Exh. 1a.) The same form further provided in pertinent part:
* * * This information has been disclosed/exchanged to/with you from
records protected by Federal Confidentiality Rules (42 CFR Part 2). The
Federal rules prohibit you from making any further disclosure of the
information unless further disclosure [is] expressly permitted by the written
consent of the person to whom it pertains or as otherwise permitted by 42
CFR part 2. * * * The Federal rules restrict any use of the information to
criminally investigate or prosecute any alcohol or drug abuse patient.
(Id.)
{¶ 11} The decision whether to admit or exclude evidence is within the sound
discretion of the trial court, and “unless the trial court clearly abused its discretion and a
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party was materially prejudiced as a result, reviewing courts should be slow to interfere.”
State v. Hottenstein, 2015-Ohio-4787, 43 N.E.3d 463, ¶ 13 (2d Dist.), citing King v.
Niswonger, 2d Dist. Darke No. 2013-CA-1, 2014-Ohio-859, ¶ 12, quoting Waste Mgt. of
Ohio, Inc. v. Mid-America Tire, Inc., 113 Ohio App.3d 529, 533, 681 N.E.2d 492 (2d
Dist.1996). A judge conducting a bench trial also is given considerable latitude as to
procedural and evidentiary matters. Id., citing Walsh v. Smith, 2d Dist. Montgomery No.
25879, 2014-Ohio-1451, ¶ 17. An abuse of discretion implies that the trial court’s attitude
was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983).
{¶ 12} Failure to object to the admission of evidence waives all but plain error.
State v. Rhines, 2d Dist. Montgomery No. 24203, 2011-Ohio-3615, ¶ 18, citing State v.
Ballew, 76 Ohio St.3d 244, 251, 776 N.E.2d 369 (1996). “Plain error exists ‘if the trial
outcome would clearly have been different, absent the alleged error in the trial court
proceedings.’ ” State v. Kessel, 2019-Ohio-1381, ___ N.E.3d ___, ¶ 33 (2d Dist.), quoting
State v. Bahns, 185 Ohio App. 3d 805, 2009-Ohio-5525, 924 N.E.2d 1025, ¶ 25 (2d Dist.).
{¶ 13} We find no error in the trial court’s admission and consideration of
Johnson’s testimony about the threatening statements Dalton made during his MonDay
screening. The federal regulations at issue are directed exclusively to the “confidentiality
of substance use disorder patient records.” (Emphasis added.) 42 C.F.R. 2.1; see also
42 C.F.R. 2.2(b)(2) (subject regulations “are intended to ensure that a patient receiving
treatment for a substance use disorder * * * is not made more vulnerable by reason of the
availability of their patient record than an individual with a substance use disorder who
does not seek treatment”). Consistent with that limited scope, 42 C.F.R. 2.12(e)(3)
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specifies that “[t]he restrictions on disclosure of information” found within such regulations
“apply to any information which would identify the patient as having or having had a
substance use disorder.” (Emphasis added.)
{¶ 14} Dalton’s statements to Johnson about his threatening feelings or intentions
toward K.R. had no relevance as to his “having or having had a substance use disorder,”
nor do they convey any information that would identify him as having any such disorder.
To the contrary, Johnson’s testimony made clear, and Dalton does not dispute, that
Dalton’s threatening statements emerged in the context of an assessment of his mental
health status. Where a defendant’s incriminating statements did not relate to any
substance abuse, the federal confidentiality rules do not apply. See State v. Johnson, 163
Ohio App.3d 132, 2005-Ohio-4243, 836 N.E.2d 1243, ¶ 37-41 (10th Dist.). Disclosure of
Dalton’s statements did not implicate 42 C.F.R. 2, so those federal confidentiality rules
posed no obstacle to his statements’ admission.
{¶ 15} Further, 42 C.F.R. 2’s confidentiality restrictions pertain only to “substance
use disorder patient records which are maintained in connection with the performance of
any part 2 program.” (Emphasis added.) 42 C.F.R. 2.2(a). Nothing in the record
demonstrates that the MonDay program qualifies as a “part 2 program” to which the
subject regulations apply. The trial court did not err for that additional reason.
{¶ 16} Moreover, 42 C.F.R. 2.2(b) provides in pertinent part:
(1) * * * If any circumstance exists under which disclosure is permitted, that
circumstance acts to remove the prohibition on disclosure but it does not
compel disclosure. * * *
***
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(3) Because there is a criminal penalty for violating the regulations, they are
to be construed strictly in favor of the potential violator in the same manner
as a criminal statute.
(Emphasis added.)
{¶ 17} Pursuant to 42 C.F.R. 2.2(b)(3), the trial court would have acted within its
discretion by construing the federal confidentiality restrictions narrowly so as to excuse
Johnson from complying with those rules. Moreover, as Johnson noted repeatedly
throughout her testimony, mental health professionals in Ohio may be legally obligated to
report to law enforcement a client or patient’s “explicit threat of inflicting imminent and
serious physical harm to or causing the death of one or more clearly identifiable potential
victims,” if the professional “has reason to believe that the client or patient has the intent
and ability to carry out the threat.” R.C. 2305.51(B)(4). See also Estates of Morgan v.
Fairfield Family Counseling Ctr., 77 Ohio St.3d 284, 308, 673 N.E.2d 1311 (1997) (“the
duty to protect others is imposed when the medical professional knows or should know
that the patient is likely to cause harm to others”). (Emphasis sic.) Even when
confidentiality otherwise might attach to a patient’s disclosures, “an exception [to
confidentiality] exists for disclosures necessary to protect individual or public welfare.”
(Bracketed material sic.) Id. at 303, quoting Littleton v. Good Samaritan Hosp. & Health
Ctr., 39 Ohio St.3d 86, 98, 529 N.E.2d 449 (1988), fn.19.
{¶ 18} 42 C.F.R. 2.2(b)(1) expressly states that the prohibition on disclosure is
lifted “[i]f any circumstance exists under which disclosure is permitted.” Although the trial
court was not compelled to permit disclosure under these circumstances, see id., it would
not have abused its discretion by concluding that the statements attributed to Dalton
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amounted to an explicit and sufficiently credible threat against K.R. to warrant disclosure
of those statements to law enforcement officials despite any confidentiality restriction that
otherwise might apply to those statements. Accordingly, even if Dalton’s threatening
statements had been subject to 42 C.F.R. 2’s provisions (which we do not find they were),
42 C.F.R. 2.2(b)(1) recognizes an exception under which the trial court reasonably could
have decided that those statements should be admitted into evidence.
{¶ 19} Finally, a criminal fine is the exclusive remedy 42 C.F.R. 2.3 provides for
any violation of the federal confidentiality regulations. Because 42 C.F.R. 2 was not
enacted as an evidentiary rule, it does not serve as an appropriate basis for the
suppression or exclusion of evidence.
{¶ 20} Dalton’s first assignment of error is overruled.
Assignment of Error #2 – Manifest Weight of the Evidence
{¶ 21} Dalton’s remaining assignment of error maintains that his conviction was
against the manifest weight of the evidence because the greater weight of the evidence
indicated Dalton had no reason to believe his statements regarding K.R. would be relayed
to her. Again relying on his supposed expectation that any information provided to
Johnson would be kept in confidence, and citing State v. Farthing, 146 Ohio App.3d 720,
767 N.E.2d 1242, ¶ 16 (2d Dist.2001), Dalton suggests that information conveyed to a
mental health provider under an expectation of confidentiality cannot constitute an
“unlawful threat of harm.” We disagree.
{¶ 22} A weight-of-the-evidence argument “challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” State v. Jones, 2d Dist. Montgomery No. 28179, 2019-Ohio-
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2940, ¶ 13, quoting State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525,
¶ 12. When evaluating whether a conviction was against the manifest weight of the
evidence, the appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider witness credibility, and determine whether, in resolving
conflicts in the evidence, the trier of fact “clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.” State
v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin,
20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 23} In the opinion Dalton cites, this Court stated:
The retaliation statute [R.C. 2921.05(A)] does not require that any threat of
harm be communicated directly to the person threatened by the person
doing the threatening. Rather, we have held that, where “the defendant was
either aware that the threats would be communicated to the intended victim
by the third person or could reasonably have expected the threats to be so
conveyed,” he is guilty of the type of unlawful threat of harm required by the
retaliation statute. * * * Because [defendant] Farthing did not communicate
with [the putative victim] directly, we must determine whether he conveyed
a threat of harm to anyone who could reasonably have been expected by
Farthing to make that threat known to [the putative victim].
(Citation omitted.) Farthing at ¶ 16. Continuing our analysis, we concluded that although
Farthing’s expressions to a mental health counselor “of anger and lust” toward his former
parole officer “did indicate very unhealthy thought processes about” that woman, the
“feelings” or “sexual delusions” Farthing articulated were not “an unlawful threat of harm
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toward” the woman. Id. at ¶ 18.
{¶ 24} Contrary to Dalton’s proposed interpretation, we did not find that Farthing’s
professional relationship with his mental health counselor “prohibited the defendant’s
statements from being used for a retaliation charge.” (See Merit Brief of Appellant, p. 13.)
Rather, our holding was based on a determination that Farthing’s “delusional [sexual]
fantasies” about his parole officer, although lurid, were not a direct threat of violence. Our
reference to the “professional training and experience” of Farthing’s counselor was
unrelated to any obligation to maintain confidentiality; instead, this Court was observing
that while Farthing’s actual words might be perceived as troubling from the perspective
of a professional familiar with the behavioral patterns of “anger rapists,” those words did
not amount to “an unlawful threat of harm” toward his former parole officer. Farthing at
¶ 18.
{¶ 25} In contrast, the undisputed evidence in this case shows that Dalton
unequivocally told Johnson that he wanted to “kill” the victim who had brought charges
against him. While Dalton did not identify K.R. by name, that omission did not preclude
the trial court from finding that the greater weight of the evidence proved beyond a
reasonable doubt that Dalton was guilty of the offense of retaliation.
{¶ 26} We previously concluded that Johnson was not bound to hold in confidence
any mental health information shared by Dalton, and that her duty to report credible
threats of harm could negate any confidentiality restrictions that did apply. In addition, the
form on which Dalton’s argument relies expressly authorized Johnson to disclose to the
trial court the information she gathered from and about Dalton; indeed, reporting to the
court as part of the presentence investigation was the very purpose of the MonDay
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referral. The form also explicitly stated that “further disclosure” could be made “as
otherwise permitted by 42 CFR part 2.” (Tr. State’s Exh. 1a.) As discussed above,
disclosure of threats to kill another person falls squarely within that exception to the
federal confidentiality restrictions. Applying the standard set forth in Farthing, above, we
cannot say that the trial court lost its way by determining that Dalton reasonably could
have expected that Johnson, an employee of the MonDay program to whom he
expressed the threat against K.R.’s life, would convey that threat either directly to K.R. or
to persons who would share the information with K.R. See Farthing, 146 Ohio App.3d
720, 767 N.E.2d 1242, at ¶ 16.
{¶ 27} Dalton’s second assignment of error is overruled.
Conclusion
{¶ 28} The judgment of the trial court will be affirmed.
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WELBAUM, P.J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck
Heather N. Jans
Thomas M. Kollin
Hon. Richard Skelton
State v. Dalton
Combined Opinion