State v. Kapp , 2009 Ohio 5081 ( 2009 )

[Cite as State v. Kapp, 2009-Ohio-5081.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-09-12
v.
RICHARD KAPP, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2007 338
Judgment Affirmed
Date of Decision: September 28, 2009
APPEARANCES:
F. Stephen Chamberlain for Appellant
Jana E. Emerick for Appellee
Case No. 1-09-12
ROGERS, J.
{¶1} Defendant-Appellant, Richard O. Kapp, Sr., appeals the judgment of
the Allen County Court of Common Pleas convicting him of two counts of rape
and one count of gross sexual imposition, and ordering him to serve two
consecutive life terms in prison as well as a consecutive five-year prison term. On
appeal, Kapp argues that the trial court erred in declining to exclude hearsay
statements made by the victim, and that the trial court erred in declining to grant a
mistrial on the basis of alleged discovery violations by the State. Based upon the
following, we affirm the judgment of the trial court.
{¶2} In October 2007, the Allen County Grand Jury indicted Kapp on two
counts of rape in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree,
with specifications that the victim was under ten years of age, and one count of
gross sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the third
degree. The indictment stemmed from an incident during which Kapp allegedly
engaged in oral sex with and digitally penetrated his five-year-old granddaughter,
M.E.
{¶3} In November 2007, Kapp filed a motion to suppress statements he
made to law enforcement officers following the incident and a motion suggesting
he was not competent to stand trial.
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{¶4} In December 2007, the trial court found Kapp incompetent to stand
trial.
{¶5} In November 2008, the trial court found that Kapp had been restored
to competency and was competent to stand trial.
{¶6} In January 2009, the trial court overruled Kapp’s motion to suppress
and the case proceeded to jury trial, at which the following testimony was heard.
{¶7} Brenda E. testified that Kapp was her father and she was M.E.’s
mother; that, in September 2007, she, M.E., and her husband, Donald E., lived in a
trailer next door to Kapp’s trailer; that, on the evening of September 8, 2007, M.E.
was next door at Kapp’s trailer to visit; that she wanted M.E. to come home, so
she walked over to Kapp’s trailer and went inside without knocking; that Kapp
was sitting on the floor with his pants undone, and M.E.’s pants and underwear
were down around her ankles; that Kapp got up, held his pants up, and ran into the
bathroom; that she yelled at Kapp “[w]hat did you do to my daughter, you S.O.B.
What did you do? She’s your granddaughter” (trial tr., p. 32); that Kapp
responded “nothing” (Id.); that Kapp offered no explanation for why his pants
were undone or why M.E.’s pants and underwear were down; that she asked M.E.
what had happened and M.E. replied “nothing, mommy, nothing” (Id. at 41); that
she believed she appeared noticeably upset because M.E. told her to “calm down”
(Id. at 48); that she took M.E. home and observed that her vagina was abnormally
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red; that she told Donald what she had observed, and he went over to Kapp’s
trailer; and, that she called the police and took M.E. to the hospital.
{¶8} Donald testified that, on September 8, 2007, Brenda came into the
trailer crying and holding M.E.; that Brenda told him that she had seen Kapp and
M.E. with their pants down; that he became very upset and went over to Kapp’s
trailer; that Kapp put his head down and started crying as soon as he saw him; that
he asked Kapp what he did, and he replied “I don’t have a girlfriend. I don’t have
a girlfriend” (Id. at 52); that he told Kapp he was sick, and Kapp kept his head
down and would not look at him; that Kapp offered no explanation for the
situation; that he attempted to punch Kapp, but missed and put a hole in the wall
of the trailer; that Kapp did not say anything to him except that he did not have a
girlfriend; that he went back to his trailer and spoke to the police; and, that he then
accompanied Brenda and M.E. to the hospital.
{¶9} Deputy Brett Rider of the Allen County Sheriff’s Office testified
that, on September 8, 2007, he was dispatched to a child sex abuse complaint; that,
initially, M.E.’s demeanor was loud and bubbly, however, when he inquired about
what had happened with Kapp, her demeanor changed, and she climbed into her
mother’s lap and would not speak above a whisper; and, that, after he finished
speaking to M.E., he went over to Kapp’s trailer.
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{¶10} Investigator Sandra Miehls of the Allen County Sheriff’s Office
testified that, on September 8, 2007, she was dispatched to a child sex abuse
complaint; that Deputy Rider was already present when she arrived at Kapp’s
trailer; that, before she could say anything, Kapp told her, “I can’t watch kids” (Id.
at 68); that she asked Kapp what had happened, and Kapp just shook his head; that
Kapp then stated, “Kids ask for it. She wanted sex” (Id. at 68); that Kapp made
comments of that nature throughout the interview, including, “[M.E.] came to visit
me [and] she wanted it” (Id.), “I haven’t had a girlfriend in a long time. Kids want
it” (Id.), “[M.E.] asked for it. She wanted it – sex.” (Id. at 69); that Kapp also said,
“give me a gun. I want to shoot myself” (Id.); that she asked Kapp if he had
touched M.E., and he nodded his head yes; that she asked Kapp if he had touched
M.E. in a sexual manner, and he nodded his head yes; that she asked Kapp where
he had touched M.E., and he replied “privates” (Id.); that she asked Kapp if he had
sexual intercourse with M.E., and he replied, “No. How could I? She’s too little”
(Id.); that she asked Kapp with what he had touched M.E.’s vagina, and he replied
“fingers, penis” (Id.); that Kapp also stated he put his tongue into M.E.’s vagina
and put his finger into her vagina “a little bit” (Id. at 70, 85); that Kapp stated
several times that he needed a girlfriend and had not had a girlfriend in a long
time; that he stated several times that he was sorry and would move from the area
so it would not happen again; and, that she then arrested Kapp.
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{¶11} Karen Hatfield, a registered nurse at Lima Memorial Hospital,
testified that she was trained as a sexual assault nurse examiner (hereinafter
“S.A.N.E.”); that, when a child is brought into the facility for a sexual assault
examination, she first assesses the child’s temperature, pulse, and respirations, and
inquires of the parents whether the child has experienced any health problems,
hospitalizations, or possible genital injuries; that she then asks the child why he or
she was brought into the facility. Thereafter, Hatfield attempted to testify as to
what M.E. told her during the course of the medical exam, and Kapp objected to
the testimony on the basis that it was hearsay, and that the hearsay exception for
statements made for purpose of medical treatment did not apply because no
evidence was provided that M.E. had suffered any injury. The trial court
overruled Kapp’s objection, and Hatfield testified that she asked M.E., “what
happened tonight,” and M.E. immediately replied, “she was at grandpa’s and that
grandpa had pulled her pants and underpants down and then pulled his pants and
underpants down and sat on the floor. He asked her to sit on the floor. She said
that he pushed her down several times on the floor. She kept getting back up.
Then she told me that he got on top of her and pulled his thing out and put his
thing in her mouth and in her thing. She told me that she smacked him in the face
and then he hit her thing” (Id. at 95-96); that she asked M.E. what her “thing”
meant, and M.E. pointed to her genital area (Id. at 98); that she physically
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examined M.E. and did not notice anything unusual; that she completed a rape kit;
that, at M.E.’s follow-up appointment, Brenda informed her that she believed
Kapp had genital herpes; that M.E. tested negative for herpes and other sexually
transmitted diseases; that the majority of instances of sexual assault leave no
physical signs; and, that sexually transmitted diseases are not always transferred
when someone has sexual contact with another.
{¶12} Subsequent to Nurse Hatfield’s testimony, the State rested.
Thereafter, Kapp moved for a mistrial on the basis of a discovery violation.
Specifically, Kapp contended that the State had failed to disclose that a rape kit
had been completed prior to Nurse Hatfield’s testimony, and that this evidence
was required to be disclosed pursuant to Crim.R. 16. The trial court overruled
Kapp’s motion on the basis that this evidence was not exculpatory, as the kit had
never been tested, and also found that the kit was referred to in multiple places in
the medical records disclosed to Kapp, giving him sufficient notice of its
existence. Kapp then moved for acquittal pursuant to Crim.R. 29, which the trial
court overruled. Thereafter, the defense declined to present any evidence and
rested.
{¶13} Subsequently, the jury found Kapp guilty of both counts of rape and
the count of gross sexual imposition. The trial court ordered Kapp to serve a
mandatory sentence of life in prison, without parole, on each rape conviction, and
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to serve a five-year prison term on the gross sexual imposition conviction, with all
sentences to be served consecutively. Additionally, the trial court designated
Kapp to be a Tier III sex offender.
{¶14} It is from his conviction and sentence that Kapp appeals, presenting
the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED WHEN IT DID NOT EXCLUDE
THE HEARSAY STATEMENTS OF THE MINOR CHILD
UPON OBJECTION BY THE DEFENDANT.
Assignment of Error No. II
THE TRIAL COURT ERRED IN NOT GRANTING A
MISTRIAL TO THE DEFENDANT FOR DISCOVERY
VIOLATIONS MADE BY THE STATE OF OHIO.
Assignment of Error No. I
{¶15} In his first assignment of error, Kapp contends that the trial court
erred in declining to exclude hearsay statements of M.E. upon his objection.
Specifically, Kapp argues that Nurse Hatfield should not have been permitted to
testify as to the statements M.E. made to her about what occurred during the
incident because the statements were testimonial in nature and were not made for
medical diagnostic purposes. We disagree.
{¶16} The admission or exclusion of evidence “lies within the broad
discretion of the trial court, and a reviewing court should not disturb evidentiary
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decisions in the absence of an abuse of discretion that has created material
prejudice.” State v. Kesler, 3d Dist. No. 13-06-09, 2006-Ohio-6340, ¶33.
Accordingly, our review is limited to determining whether the trial court acted
unreasonably, arbitrarily, or unconscionably. Id., citing State v. Barnes, 94 Ohio
St.3d 21, 23, 2002-Ohio-68.
{¶17} The Sixth Amendment to the United States Constitution provides, in
pertinent part, that “[i]n all criminal prosecutions, the accused shall enjoy the right
* * * to be confronted with the witnesses against him * * *.” Concerning the Sixth
Amendment, the United States Supreme Court has held that “[w]here testimonial
evidence is at issue, however, the Sixth Amendment demands what the common
law required: unavailability and a prior opportunity for cross examination.”
Crawford v. Washington (2004), 541 U.S. 36, 68. Although the Court did not
define the term “testimonial,” it gave as examples “all ex parte in-court testimony
or its functional equivalent; extrajudicial statements contained in formalized
testimonial materials (e.g., affidavits, depositions, prior testimony, confessions);
and a class of statements that are made “ ‘“under circumstances which would lead
an objective witness reasonably to believe that the statement would be available
for use at a later trial.”’ ”” State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267,
¶60, quoting State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, ¶19, quoting
Crawford, 541 U.S. at 51-52. In Muttart, the Supreme Court of Ohio recognized
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that, “ ‘“[w]here nontestimonial hearsay is at issue, it is wholly consistent with the
Framers’ design to afford the States flexibility in their development of hearsay law
* * * and as would an approach that exempted such statements from Confrontation
Clause scrutiny all together.”’ ” 2007-Ohio-5267, at ¶59, quoting Stahl, 2006-
Ohio-5482, at ¶16, quoting Crawford, 541 U.S. at 68; see, also, Davis v.
Washington (2006), 547 U.S. 813.
{¶18} Evid.R. 803(4) provides that the hearsay rule will not exclude
“[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[,]” even where the declarant is available as a
witness. In Muttart, supra, the Supreme Court of Ohio specifically considered
situations involving a child’s statement made to a S.A.N.E. nurse and the
applicability of Evid.R. 803(4), finding that “[s]tatements made to medical
personnel for purposes of diagnosis or treatment are not inadmissible under
Crawford, because they are not even remotely related to the evils which the
Confrontation Clause was designed to avoid.” (Citations omitted.) 2007-Ohio-
5267, at ¶63.
{¶19} Further, Muttart held that, “[i]n cases in which a statement was made
for purposes of medical diagnosis or treatment, the question is not whether the
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statement is reliable; the presumption is that it is. The salient inquiry here is not
[the child’s] competency but whether her statements were made for purposes of
diagnosis and treatment rather than for some other purpose.” 2007-Ohio-5267, at
¶47. In determining the child’s purpose in making the statements, the Supreme
Court of Ohio directed courts to consider the following nonexhaustive list of
factors: “(1) whether the child was questioned in a leading or suggestive manner,
(2) whether there is a motive to fabricate, such as a pending legal proceeding such
as a ‘bitter custody battle,’ and (3) whether the child understood the need to tell
the physician the truth.” (Citations omitted.) 2007-Ohio-5267, at ¶49.
{¶20} Here, the record does not suggest that M.E. was questioned in a
leading or suggestive matter. In fact, Nurse Hatfield testified that she merely
asked M.E., “what happened tonight?” and that M.E. immediately told her what
had happened. Additionally, Nurse Hatfield testified that she “just let [M.E.] talk”
and let her take the lead in the conversation. (Trial tr., p. 108). Additionally,
Kapp does not allege that M.E. or her parents had any motive to fabricate the
accusations, nor is any motive apparent from the record. Finally, Nurse Hatfield
testified that her inquiries of M.E. took place in the medical facility and were
preceded by assessments of her temperature, pulse, and respirations. Thus, the
evidence suggests that M.E. knew she was in a medical setting at the time of her
disclosures and that her statements would be used for purposes of medical
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diagnosis and treatment. Thus, we find that, considering the factors set forth in
Muttart, supra, M.E.’s purpose in making the statements about the incident with
Kapp was for medical diagnosis and treatment, and, consequently, the statements
fell under the exception to the hearsay rule set forth in Evid.R. 803(4). It follows
that, as the statements satisfied a hearsay exception, the trial court did not err in
declining to exclude the statements.
{¶21} Accordingly, we overrule Kapp’s first assignment of error.
Assignment of Error No. II
{¶22} In his second assignment of error, Kapp contends that the trial court
erred in declining to grant a mistrial despite alleged discovery violations made by
the State. Specifically, Kapp argues that the mistrial should have been granted
because the State failed to disclose prior to trial that Nurse Hatfield had completed
a rape kit. We disagree.
{¶23} We review a trial court’s decision regarding a Crim.R. 16 discovery
sanction under an abuse of discretion standard. State v. Gibson, 3d Dist. No. 1-06-
74, 2007-Ohio-3345, ¶12. An abuse of discretion implies that the trial court’s
judgment was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶24} Crim.R. 16 governs discovery and inspection, and provides, in
pertinent part:
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(B) Disclosure of evidence by the prosecuting attorney
(1) Information subject to disclosure.
***
(d) Reports of examination and tests. Upon motion of the
defendant the court shall order the prosecuting attorney to
permit the defendant to inspect and copy or photograph any
results or reports of physical or mental examinations, and of
scientific tests or experiments, made in connection with the
particular case, or copies thereof, available to or within the
possession, custody or control of the state, the existence of which
is known or by the exercise of due diligence may become known
to the prosecuting attorney.
***
(E) Regulation of discovery
(3) Failure to comply. If at any time during the course of the
proceedings it is brought to the attention of the court that a
party has failed to comply with this rule or with an order issued
pursuant to this rule, the court may order such party to permit
the discovery or inspection, grant a continuance, or prohibit the
party from introducing in evidence the material not disclosed, or
it may make such other order as it deems just under the
circumstances.
Crim.R. 16(B)(1)(d), (E)(3).
{¶25} The Supreme Court of Ohio has held that the State’s violation of
Crim.R. 16 is only reversible “‘when there is a showing that (1) the prosecution’s
failure to disclose was willful, (2) disclosure of the information prior to trial would
have aided the accused's defense, and (3) the accused suffered prejudice.’” State
v. Orsborne, 3d Dist. No. 1-06-94, 2007-Ohio-5776, ¶44, quoting State v. Jackson,
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107 Ohio St.3d 53, 2005-Ohio-5981, ¶131, citing State v. Parson (1983), 6 Ohio
St.3d 442, 445.
{¶26} Here, Kapp argues that the trial court should have granted his motion
for a mistrial because the State failed to disclose prior to trial that Nurse Hatfield
had completed a rape kit. Kapp contends that the State violated its duty to provide
him with “reports of examination and tests” as required by Crim.R. 16, and that
knowledge of the completion of the kit would have aided his defense if analysis of
the kit revealed a lack of trace evidence. However, as stated by the trial court in
overruling Kapp’s motion for a mistrial, the rape kit was referenced in multiple
places in the medical records disclosed to Kapp, giving him sufficient notice of its
existence. This fact negates Kapp’s argument that the State willfully failed to
disclose the kit’s existence, and that he suffered prejudice as a result.
Additionally, it is difficult for Kapp to argue that he suffered prejudice regarding
the rape kit, given that M.E.’s accusations were corroborated by testimony that
Kapp admitted to touching M.E.’s vagina with his penis and to putting his tongue
and finger into her vagina. Even further, as stated by the trial court, although the
kit was completed, it was never sent to the laboratory to be tested for trace
evidence. Consequently, Kapp cannot demonstrate that disclosure of the kit’s
existence prior to trial would have aided in his defense—as it is unknown whether
the test results would have been favorable or unfavorable to him. Thus, we do not
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find that the trial court erred in declining to grant a mistrial, as Kapp demonstrated
neither a discovery violation nor resulting prejudice.
{¶27} Accordingly, we overrule Kapp’s second assignment of error.
{¶28} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, P.J. and WILLAMOWSKI, J., concur.
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