Ricksecker v. Thomson , 2022 Ohio 2628 ( 2022 )

[Cite as Ricksecker v. Thomson, 2022-Ohio-2628.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
JOHN RICKSECKER, CASE NO. 2021-P-0095
Petitioner-Appellant,
Civil Appeal from the
-v- Court of Common Pleas,
Domestic Relations Division
DEREK THOMSON,
Respondent-Appellee. Trial Court No. 2020 DR 00125
OPINION
Decided: August 1, 2022
Judgment: Affirmed
L. Ray Jones, 215 West Washington Street, Medina, OH 44256 (For Petitioner-
Appellant).
Jonathan P. Jennings, Jennings Law Offices, LLC, 223 West Main Street, Ravenna, OH
44266 (For Respondent-Appellee).
JOHN J. EKLUND, J.
{¶1} Appellant, John Ricksecker, appeals the Portage County Court of Common
Pleas’ order denying his petition for a Domestic Violence Civil Protection Order (“CPO”)
on behalf of his son, L.R. (D.O.B. 4/08/12), against Appellee, Derek Thomson, L.R.’s
stepfather.
{¶2} In his sole assignment of error, Appellant contends that the court improperly
considered hearsay evidence in its judgment entry denying his petition for a CPO.
Specifically, Appellant challenges the admissibility of an email report prepared by Kirstie
Clapper, the family assessment specialist for the Portage County Department of Job and
Family Services (“JFS”).
{¶3} After a review of the record and applicable law, we find Appellant’s
assignment of error to be without merit. The court did consider inadmissible hearsay
evidence when it improperly included Ms. Clapper’s report in the judgment entry denying
Appellant’s petition and there is no hearsay exception that applies. However, the error
was harmless because there was other evidence considered that justified denying the
petition. For the following reasons, we affirm the judgment of the Portage County Court
of Common Pleas, Domestic Relations Division.
{¶4} It is undisputed that in March 2020, an incident occurred at Appellee’s home
involving L.R., where Appellee resides with L.R.’s mother, Bethany Thomson. The
incident occurred prior to L.R. attending a wresting banquet at school when Appellee and
L.R. were in the garage.
{¶5} Later that week, L.R. was staying with his father, Appellant, for scheduled
parenting time. L.R. had finished taking a shower when he walked downstairs without a
shirt on. Appellant noticed an L-shaped abrasion and bruising on L.R.’s left arm.
{¶6} After noticing the bruise, Appellant drove L.R. to the hospital where L.R.
was examined by Nurse Malley. Appellant told Nurse Malley that Appellee had thrown
L.R. down the steps at Appellee’s home. Nurse Malley testified that L.R. reported the
same occurrence of events when Appellant was in the room with him. Yet, when Nurse
Malley was alone with L.R. and asked him if his statements were “rehearsed” or “off-the-
cuff,” he did not respond. As a mandatory reporter of abuse, Nurse Malley made a
differential diagnosis of abuse and contacted Cuyahoga County JFS, Portage County
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Children Services, and the Parma Heights Police Department. Nurse Malley spoke briefly
with the police, and continued examining L.R. She determined through x-rays that L.R.
had no prior fractures, but was unable to form an objective opinion as to what caused the
current injury or whether L.R. had been abused in this instance.
{¶7} Following the examination, Appellant and L.R. spoke with police regarding
the incident and the police began an investigation.
{¶8} On March 19, 2020, Appellant and L.R. returned to the hospital for a re-
evaluation, which was conducted by Dr. Popa. Through reading her medical notes, Dr.
Popa testified that Appellant told her that Appellee had tried to choke L.R. in the past.
L.R. told Dr. Popa that when he told his father, “dad reached to his attorney and said
without any marks cannot [sic] do anything about it.” Dr. Popa also testified that because
of the current abuse allegations, she was required to bill the incident as “child physical
abuse…confirmed.” However, Dr. Popa testified that she did not make a final
determination of child abuse, but that she billed the incident as child abuse because “this
is a billing code; it’s how the medical software works.”
{¶9} Also, on March 19, 2020, the family assessment specialist, Ms. Clapper,
began her investigation in the matter. Ms. Clapper testified that she spoke to Appellant,
Appellee, Mrs. Thomson, L.R., and L.R.’s sister regarding the allegations and the incident.
She also testified that she conducted a home visit during her investigation. Ms. Clapper
found no signs of child abuse and made a final determination that L.R.’s injuries were
accidental. On March 24, 2020, she emailed a report of her findings to the Portage
County Sheriff’s Office in furtherance of the police investigation. As a result, the police
ended their investigation, filed no charges against Appellee, and found no abuse.
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{¶10} Ms. Clapper’s report to the police described statements that L.R. had made
to her including that: 1) L.R. believed the incident was an accident; 2) he was giving his
mom and Appellee a hard time that day; 3) Appellee’s knee must have hit him when they
were walking down the stairs, causing him to slip, fall, and cause the injury; 4) when he
slipped, his arm hit the wood railing on the staircase, which caused the L-shaped
abrasion; and 5) he had told Appellant that the incident was an accident. It also stated
that Ms. Clapper had been to the house and determined that the wood railing on the
staircase was consistent with L.R.’s bruise.
{¶11} On March 27, 2020, Appellant filed a petition for a Domestic Violence Civil
Protection Order against Appellee on L.R.’s behalf. On March 27, 2020, the court granted
a temporary ex parte CPO.
{¶12} On November 23, 2020, the court, through a magistrate, conducted a full
hearing on Appellant’s petition. Appellant, Appellee, and Ms. Clapper testified. Trial
deposition testimony of Nurse Malley and Dr. Popa was admitted into evidence.
{¶13} Appellee testified that L.R. was upset on the day of the incident, did not
want to attend a school wrestling banquet, walked away from Appellee, and that Appellee
“took hold of” L.R.’s arm causing L.R. to pull away from him. Appellee testified that he
was unaware of any injury resulting from the incident.
{¶14} Ms. Clapper testified that she had investigated the allegations, described
generally what she had done, and stated her conclusion that L.R.’s injuries were
accidental. Appellee then moved to admit his exhibit 1, a series of police and agency
reports, that included Ms. Clapper’s March 24, 2020 report. Appellee argued that the
entire exhibit qualified as a “business record” under OH Evid. R. 803(6) and was
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admissible. Appellant agreed that Ms. Clapper’s findings and recommendations in the
report were admissible, but asserted the rest of her report and the other components of
exhibit 1 were not. The magistrate took the arguments under advisement, including the
possible admissibility of Ms. Clapper’s report as a stand-alone exhibit, but did not rule on
the matter.
{¶15} The magistrate ultimately recommended denying Appellant’s petition and
terminating the ex parte order. Appellant timely filed objections thereto and moved for
written findings of fact and conclusions of law, which the magistrate issued.
{¶16} The court held a hearing on Appellant’s objections, and on August 20, 2021,
ruled on them and adopted the magistrate’s opinion. In its judgment entry, with respect to
Ms. Clapper’s report, the court stated, “that it does not consider the statements contained
within Ms. Clapper’s report for purposes of determining the truth of the matter asserted,
but instead, considers the information for purposes of assessing the credibility of the
witnesses.”
{¶17} Appellant now appeals the trial court’s apparent admission and
consideration of Ms. Clapper’s report.
{¶18} Appellant’s sole assignment of error states:
{¶19} “The Trial Court erred and committed reversible error n [sic] using
inadmissible, excluded hearsay evidence for purpose of assessing credibility of
witnesses, bottom pf [sic] page 15, page 16, and top of page 17 of the Court’s Judgment
Entry of August 30th, 2021 such evidence being hearsay, not subject to any exception
under Ohio Evid R 801, 806, 807 and 902, such being an abuse of discretion.”
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{¶20} In an action for a Domestic Violence CPO, the petitioner bears the initial
burden of proving by the preponderance of the evidence that the petitioner and/or the
petitioner's family or household members are in danger of domestic violence. Boals v.
Miller, 5th Dist. Ashland 2011-Ohio-1470, 2011 WL 1118464, ¶ 23.
{¶21} This court has held that whether evidence constitutes inadmissible hearsay
is a question of law subject to de novo review. Morford v. Morford, 2018-Ohio-3439, 118
N.E.3d 937, ¶ 12 (11th Dist.). “Determining whether the evidence is offered for an
impermissible purpose does not involve the exercise of discretion * * *, an appellate court
should scrutinize the [trial court's] finding under a de novo standard of review.” State v.
Hartman, 161 Ohio St. 3d 214, 2020-Ohio-4440, 161 N.E.3d 651, ¶ 22, citing State v.
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 17.
{¶22} Under his assignment of error, Appellant asserts that the trial court
improperly admitted Ms. Clapper’s report (Respondent’s Exhibit 1, page 6) because the
report is hearsay.
{¶23} 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). Hearsay is generally inadmissible unless it falls into one of
the applicable exceptions. Evid.R. 802.
{¶24} Under the definition of hearsay, we must first determine whether the report
contains statements someone other than the declarant made. Evid.R. 801. Ms. Clapper’s
report included her description of statements made by L.R. concerning what occurred and
contained the words: “he stated,” L.R. “advised,” and L.R. “reported.” L.R. was the one
who made the statements. Ms. Clapper only related the statements in her report.
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Therefore, L.R.’s statements to Ms. Clapper, and as noted in her report, are statements
made by someone other than the declarant.
{¶25} Next, we must determine whether the statements were offered to prove the
truth of the matter asserted. Evid.R. 801. Many of the matters asserted in the Clapper
report are described in ¶ 10. At the November 23, 2020 hearing, when Appellee’s counsel
argued to admit the full exhibit 1 into evidence, the magistrate asked “you are attempting
to utilize for the truth of the matter asserted. Correct?” Appellee replied ”yes.” Although
the trial court stated that it did not consider the statements to prove the truth of the matter
asserted, the definition of hearsay under Evid. R. 801(C) applies to a statement that is
“offered in evidence to prove the truth of the matter asserted.” (Emphasis added).
Appellee acknowledged that it was offered for its truth. Therefore, under Evid. R. 802,
the statements were not admissible absent an exception.
{¶26} Within his assignment of error, Appellant states that Ms. Clapper’s report is
not subject to hearsay exceptions under evidence rules 801, 806, 807, and 902. Finding
no exception applies, we, however, considered Evid.R. 803(6), the “business record”
exception, which Appellee argued at the full CPO hearing.
{¶27} Evid.R. 803(6) provides the exception to hearsay for Records of Regularly
Conducted Activity:
A memorandum, report, record, or data compilation, in any
form, of acts, events, or conditions, made at or near the time
by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted
business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record, or
data compilation, all as shown by the testimony of the
custodian or other qualified witness or as provided by Rule
901(B)(10), unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness.
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{¶28} “To qualify for admission under Rule 803(6), a business record must
manifest four essential elements: (i) the record must be one regularly recorded in a
regularly conducted activity; (ii) it must have been entered by a person with knowledge of
the act, event or condition; (iii) it must have been recorded at or near the time of the
transaction; and (iv) a foundation must be laid by the ‘custodian’ of the record or by some
‘other qualified witness.’” State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d
31, ¶ 171.
{¶29} To properly authenticate business records, a witness must testify as to the
regularity of the business activity involved in the creation of the record. John Soliday Fin.
Grp., L.L.C. v. Pittenger, 190 Ohio App. 3d 145, 2010-Ohio-4861, 940 N.E.2d 1035, ¶ 35
(5th Dist.).
{¶30} Ms. Clapper’s testimony is barren of evidence that her report was something
“regularly recorded.” She testified only that her investigations were a regularly conducted
activity, not that reports stating her findings and conclusions to law enforcement were
regularly recorded.
{¶31} We find that Ms. Clapper’s report is inadmissible hearsay and, by admission
of Appellee, was offered for its truth, not to weigh witness credibility. We also find that no
exception to hearsay applies in this instance. However, we find this error to be harmless.
When reviewing evidentiary rulings in protection order cases, appellate courts may find
the trial court’s failure to strike or not admit hearsay testimony to be harmless error if the
evidence necessary to make the ruling was not based upon hearsay statements. L.T.C.
v. G.A.C., 8th Dist. Cuyahoga No. 107110, 2019-Ohio-789, ¶ 34.
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{¶32} Here, the court did not only consider Ms. Clapper’s report. In most of the
judgment entry, the court discussed the other evidence, which was not objected to as
hearsay, and stated that Appellant did not meet his burden of proof because he only
offered his version of events without evidence supporting his claims. The court also relied
heavily on the remaining evidence, including the deposition testimony from Nurse Malley
and Dr. Popa, to determine that the evidence did not demonstrate that L.R. had been
abused and did not enhance Appellant’s credibility. Instead, the court found that the other
evidence negatively influenced Appellant’s credibility. In other words, the petitioner did
not meet his burden of proof notwithstanding Ms. Clapper’s report.
{¶33} The judgment of the Portage County Court of Common Pleas, Domestic
Relations Division, is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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