[Cite as State v. Bowleg, 2014-Ohio-1433.]


                 Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                               Nos. 100263 and 100264




                                    STATE OF OHIO
                                                   PLAINTIFF-APPELLANT

                                             vs.

                          DANIEL BOWLEG, ET AL.
                                                   DEFENDANTS-APPELLEES




                                 JUDGMENT:
                           REVERSED AND REMANDED


                                Criminal Appeal from the
                       Cuyahoga County Court of Common Pleas
                     Case Nos. CR-13-572944-B and CR-13-572944-A

        BEFORE: Keough, P.J., E.A. Gallagher, J., and McCormack, J.

        RELEASED AND JOURNALIZED: April 3, 2014
[Cite as State v. Bowleg, 2014-Ohio-1433.]
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
Brian M. McDonough
Joseph J. Ricotta
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

For Daniel Bowleg

Oscar E. Rodriguez
1220 West 6th Street, Suite 303
Cleveland, Ohio 44113

For Jackie J. Ray

Michael J. Goldberg
The Goldberg Law Firm
323 Lakeside Avenue, Suite 450
Cleveland, OH 44113
[Cite as State v. Bowleg, 2014-Ohio-1433.]
KATHLEEN ANN KEOUGH, P.J.:

        {¶1} In these consolidated cases, the state of Ohio appeals from the

trial court’s judgment granting the motion in limine of defendants-appellees

Daniel Bowleg and Jackie J. Ray. We reverse and remand.

                                             I. Background

        {¶2} On March 29, 2013, Bowleg and Ray were indicted on one count

of kidnapping in violation of R.C. 2905.01(A)(4) and one count of rape in

violation of R.C. 2907.02(A)(2). The indictments stemmed from the alleged

rape of L.J.        on March 31, 1993.            As part of the state attorney general’s

recent sexual assault kit testing initiative, L.J.’s sexual assault collection kit

was submitted to the Ohio Bureau of Criminal Identification and

Investigation for testing and examination. Bowleg and Ray were identified

as matches for the DNA and subsequently indicted.                 They pleaded not guilty

and filed a motion to dismiss the indictment for pre-indictment delay and a

motion in limine to exclude L.J.’s medical records.

        {¶3} The trial court held a hearing on the motions. The transcript of

the hearing and L.J.’s medical records, which were admitted at the hearing,

reveal the following. On March 31, 1993, L.J. reported to city of Cleveland

police that she had been raped by three males between the hours of 3:30 a.m.

and 5:00 a.m. while she was at a friend’s house in Cleveland. Emergency

Medical Services personnel, accompanied by a Cleveland police officer,
transported L.J. to Fairview Hospital at approximately 7:15 a.m., where she

was treated in the emergency room by Dr. David Pelini and registered nurse

Lili Torok. Dr. Pelini’s notes in the medical records state in pertinent part:

      45 y/o F brought in stating that she has been raped.      She alleges
      assault by three men. She states there was vaginal        penetration
      and she believe[s] ejaculation by all three assailants.    She denies
      any rectal or oral penetration. She states that they      did not use
      condoms. She denies any injury or other assaults.

      {¶4} Dr. Pelini’s physical exam of L.J. revealed alcohol on her breath

but no marks or bruises on her body; the pelvic exam revealed no signs of

trauma. A blood-alcohol test indicated that she had a blood-alcohol content

of .145.    Vaginal swabs were taken and after laboratory tests were

conducted, L.J. was given Rocephin and prescribed Doxycycline (both

antibiotics). A pregnancy test was negative.

      {¶5} A sexual assault collection kit was also performed on L.J. The

nurse’s notes from the sexual assault flowsheet state: “Pt. states she was not

wearing underwear or pantyhose at the time of the assault. * * * States

attacked by 3 people. Denies injury. * * * Pt. talking freely about assault.”



      {¶6} Prior to discharge, L.J. was counseled about the risks of sexually

transmitted diseases, including HIV infection, and advised to seek

confidential testing. She was also advised to follow up with her own doctor

in three days. L.J. died in 2008; her boyfriend is also now deceased.
[Cite as State v. Bowleg, 2014-Ohio-1433.]
        {¶7} After the hearing, the trial court granted the motion in limine,

holding that L.J.’s medical records were testimonial pursuant to Crawford v.

Washington, 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and

therefore inadmissible at trial. It held a ruling on the motion to dismiss in

abeyance pending the state’s appeal of its ruling on the motion in limine.

                                             II. Analysis

        {¶8} In its single assignment of error, the state contends that the trial

court erred in granting the defendants’ motion in limine because L.J.’s

statements to medical personnel contained in her medical records are

nontestimonial and admissible under Evid.R. 803(4).

        {¶9} As an initial matter, we note that the trial court’s judgment is a

final, appealable order because the trial court treated the motion in limine as

a motion to suppress. “If a court treats a motion in limine as a final ruling

on the question of admissibility of evidence, the ruling is equivalent to the

grant of a motion to suppress and a final appealable order lies.” State v.

Holmes, 8th Dist. Cuyahoga No. 67838, 1995 Ohio App. LEXIS 621, *3 (Feb.

23, 1995), citing State v. Davidson, 17 Ohio St.3d 132, 477 N.E.2d 1141

(1985).

        {¶10} We apply a de novo standard of review to evidentiary questions

raised under the Confrontation Clause. State v. Babb, 8th Dist. Cuyahoga

No. 86294, 2006-Ohio-2209, ¶ 17.
[Cite as State v. Bowleg, 2014-Ohio-1433.]
        {¶11}       The Sixth Amendment’s Confrontation Clause provides that

“[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be

confronted with the witnesses against him * * *.”          The United States

Supreme Court has interpreted this to mean that the admission of an

out-of-court statement of a witness who does not appear at trial is prohibited

by the Confrontation Clause if the statement is testimonial, unless the

witness is unavailable and the defendant had a prior opportunity to

cross-examine the witness. Crawford v. Washington. 541 U.S. 36, 53-54, 124

S.Ct. 1354, 158 L.Ed.2d 177 (2004). Accordingly, the issue is whether L.J.’s

statements contained in her medical records were testimonial in nature and

therefore inadmissible pursuant to the Sixth Amendment, or whether they

were nontestimonial and admissible against Bowleg and Ray.

        {¶12} Crawford did not define “testimonial” but stated generally that

the core class of statements implicated by the Confrontation Clause includes

statements “made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later

trial.” Id. at 52.

        {¶13}       In State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855

N.E.2d 834, the Ohio Supreme Court considered whether hearsay statements

by an adult rape victim to a nurse working in a specialized medical facility for

sexual assault victims were admissible when the victim was not available to
testify at trial.    The court adopted the objective-witness test outlined in

Crawford      for   out-of-court   statements   made   to   non-law-enforcement

personnel, and concluded that in determining whether a statement is

testimonial for Confrontation Clause purposes, courts should focus on the

expectation of the declarant when making the statement. Id. at paragraph

two of the syllabus. Applying the objective-witness test, the court found that

the victim’s statements were made to a medical professional at a medical

facility for the primary purpose of receiving medical treatment and not

investigating past events related to criminal prosecution. Id. at ¶ 25. The

court held that the statements made by the rape victim to the nurse were

nontestimonial because the victim “could have reasonably believed that

although the examination conducted at the [sexual assault] unit would result

in scientific evidence being extracted for prosecution purposes, the statement

would be used primarily for health-care purposes.” Id. at ¶ 47.

      {¶14}     In State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875

N.E.2d 944, the Ohio Supreme Court held that the statements of a child

victim of sexual assault made to doctors and counselors about how her father

had sexually abused her were not testimonial and were admissible because

they had been made to medical personnel in the course of medical diagnosis

and treatment. The court held 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 that the Confrontation

Clause was designed to avoid.” Id. at ¶ 63. The court also noted that “[t]he

fact that the information gathered by the medical personnel in this case was

subsequently used by the state does not change the fact that the statements

were not made for the state’s use.” Id. at ¶ 62.     See also State v. Arnold,

126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775,        ¶ 41 (“Statements

made for medical diagnosis and treatment are nontestimonial.”).

      {¶15} In this case, the state contends that L.J.’s statements were made

while she was seeking medical treatment and, therefore, were nontestimonial

and admissible under Evid.R. 803(4), the medical records exception to the

hearsay rule.    Bowleg and Ray, on the other hand, contend that L.J.’s

statements were testimonial because she was at the emergency room solely

for the purpose of collecting evidence to support a sexual assault

investigation.   They argue that because L.J. denied any injury, she must

have believed that she did not need medical attention and, therefore, went to

the emergency room only to provide evidence that could be used in a future

prosecution. They argue further that her boyfriend and a Cleveland police

officer were in the room when the interview was conducted, so any statements

by L.J. were made to facilitate the investigation.
[Cite as State v. Bowleg, 2014-Ohio-1433.]
        {¶16} We conclude that L.J.’s statements were made for the purpose

of medical diagnosis and treatment. First, prior to any treatment, she signed

a consent form giving her consent for medical treatment:

        Permission is hereby given to the emergency physical, attending
        and/or consulting physician, the authorities of Fairview General
        Hospital and/or any house officer to perform such an operation,
        diagnostic or therapeutic procedure or examination (including the
        administration of an anesthetic) as in his/her or their judgment is
        deemed advisable. I also authorize release of information for
        insurance purposes.

        {¶17} Notably absent is any authorization for her statements to be used

in a future prosecution.

        {¶18}        Furthermore, despite Bowleg and Ray’s argument to the

contrary, neither L.J.’s boyfriend nor law enforcement personnel were present

when she was examined. The nurse’s notes indicate that at 7:30 a.m., L.J.

“spoke briefly” with the Cleveland police officer who accompanied her to the

hospital. They also indicate that her boyfriend came into the examination

room at approximately 8 a.m. to visit and was escorted out at 8:25 a.m. before

the examination began.

        {¶19} And finally, L.J.’s denial of any obvious physical injury is not

dispositive of her need for medical treatment. As the Third District stated in

State v. Wallace, 3d Dist. Union No. 14-10-20, 2011-Ohio-1728, ¶ 18:

        A victim’s statement that she had been raped is relevant for
        medical diagnosis and treatment because it directs medical
        providers to examine the genital areas for physical injury,
     administer a pregnancy test, and prescribe medications for the
     prevention of sexually transmitted diseases * * *. A patient’s
     statements concerning how the alleged rape occurred can be
     relevant to show the “general cause or external source thereof
     insofar as reasonably pertinent to diagnosis or treatment.”
     Evid.R. 803(4). For example, the victim’s statements may guide
     medical personnel to the particular area(s) of the victim’s body to
     be examined for injury, as well as indicate which areas may need
     more immediate treatment than others. State v. Menton, 7th
     Dist. No. 07 MA 70, 2009-Ohio-4640, ¶ 51 (“* * * the description
     of how the [sexual] assault took place, over how long of a period,
     how many times a person was hit, choked or penetrated, and
     what types of objects were inserted are all specifically relevant to
     medical treatment. They are part of the medical history. They
     are the reason for the symptoms. They let the examiner know
     where to examine and what types of injuries could be latent.”)

     {¶20}   Here, the statements made by L.J. to Dr. Pelini and nurse

Torok are not testimonial, because an objective witness under the same

circumstances would not have reasonably believed that her statements would

be used later for trial.   The records indicate that prior to going to the

emergency room, L.J. told the police that she had been raped by three men.

A reasonable person in L.J.’s place would have believed that her answers to

any investigatory questions asked by the police in response to her report

would be used at trial.      State v. Lee, 9th Dist. Summit No. 22262,

2005-Ohio-996, ¶ 8. However, L.J. would have had no reason to believe that
her same statements about the alleged rape, when subsequently made to the

medical personnel at the hospital emergency room, would be used for

anything other than medical treatment. Id. Furthermore, L.J. could have

reasonably believed that although one purpose of the examination in the

emergency room was to collect physical evidence for prosecution purposes, her

statements would be used primarily for health-care purposes.       Stahl, 111

Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, at ¶ 47.

     {¶21} Because L.J.’s statements contained in the medical records are

not testimonial, they are admissible under Evid.R. 803(4), which provides a

hearsay exception for “[s]tatements made for purposes of medical diagnosis or

treatment and describing medical history, or past or present symptoms, pain,

sensation, or the inception or general character of the cause or external

source thereof insofar as reasonably pertinent to diagnosis or treatment.”

Accordingly, the trial court erred in granting Bowleg and Ray’s motion in

limine to suppress the medical records.        The assignment of error is

sustained.

     {¶22} Reversed and remanded.

     It is ordered that appellant recover from appellees costs herein taxed.
     The court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
TIM McCORMACK, J., CONCUR
[Cite as State v. Bowleg, 2014-Ohio-1433.]
