[Cite as State v. Goings, 2012-Ohio-1793.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLANT,                              CASE NO. 8-11-03

        v.

DOMINIC GOINGS,                                           OPINION

        DEFENDANT-APPELLEE.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR10-11-0200

                                      Judgment Affirmed

                             Date of Decision: April 23, 2012




APPEARANCES:

        Gerald L. Heaton and Eric C. Stewart for Appellant

        Natalie J. Bahan for Appellee
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SHAW, P.J.

       {¶1} Although originally placed on our accelerated calendar, we elect,

pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.

       {¶2} Plaintiff-Appellant, State of Ohio, appeals from the judgment of the

Court of Common Pleas of Logan County granting Defendant-Appellee’s,

Dominic Goings (“Goings”), motion in limine requesting suppression of an

interview held between a child-victim (“K.S.”) and a social worker with Logan

County Children’s Services. On appeal, the State contends that the trial court

erred by suppressing the entire interview, as select portions of the interview

contained nontestimonial statements made for purposes of medical diagnosis or

treatment. Based on the following, we affirm the judgment of the trial court.

       {¶3} On November 9, 2010, the Logan County Grand Jury indicted Goings

on one count of gross sexual imposition in violation of R.C. 2907.05(A)(4), a

felony of the third degree. The indictment arose from an alleged incident where

Goings improperly touched the genital regions of K.S., a four-year-old girl. Later

that month, Goings entered a plea of not guilty to the sole count in the indictment.

       {¶4} In December 2010, Goings filed a motion in limine requesting

suppression of the interview between K.S. and Erica James (“James”), a social

worker with Logan County Children’s Services. Specifically, Goings argued that



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K.S.’s statements were testimonial in nature, were not made for purposes of

medical diagnosis or treatment, and thus were inadmissible.

       {¶5} In January 2011, the trial court held a hearing on Goings’ motion in

limine. During the hearing the State advised the trial court that it only sought

admission of select portions of the interview between James and K.S., arguing that

those portions contained statements made for purposes of medical diagnosis or

treatment.

       {¶6} James testified that she is a licensed social worker and is employed as

an investigative specialist and intake worker with Logan County Children’s

Services (“Logan County Children’s Services” or “Children’s Services”). James’

duties include reviewing reports submitted to Children’s Services, reviewing the

allegations therein, interviewing the parties involved, and determining whether the

child is abused or neglected.

       {¶7} James continued that K.S.’s case came to Children’s Services attention

via a phone call, in which the caller expressed concerns of possible sexual abuse.

A report was drafted, accepted for review, and assigned to James. Following

Children’s Services protocol, James contacted K.S.’s family within twenty-four

hours of receiving the report. Initially, James spoke with K.S.’s mother, Alisha,

notifying her of the allegations, the individuals involved, and scheduled K.S. for

an interview. James continued that she interviewed K.S. on August 6, 2010, at the

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Children’s Services facility. James, K.S., and Alisha were the only individuals

present during the interview. James testified that the purpose of the interview was

to determine the veracity of the allegations and whether the child required medical

or emotional treatment. James further testified that cases involving sexual abuse

of a child raise concerns of sexually transmitted diseases and vaginal tearing.

James testified that if she determined that K.S. required medical or emotional

treatment, that she would connect her and her family to the proper “community

resources.” Hearing Tr., p. 8.

       {¶8} James continued that during the interview she presented K.S. with an

anatomically correct drawing of a girl. K.S. labeled the vaginal region of the girl

as a “private area.” During the first half of the interview, James’ twice asked K.S.

whether anybody touched her “private area.” Interview Tr., pp. 8, 12. Initially

K.S. responded in the negative. After the second question, K.S. responded that her

father touches her “private area” to clean it, but James determined after further

questioning that nothing about these touches was inappropriate. James further

testified that she was the first to interject Goings’ name into her conversation with

K.S., and repeatedly did so throughout the interview. See Interview Tr., pp. 2, 4-

5, 18. At one point, James asked K.S. “I heard that [Goings] might have touched

your private parts. Did that happen or did somebody else touch your private parts

ever?” Interview Tr., pp. 18-19. K.S. acknowledged that Goings “accidently”

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touched her “private area.” Id. K.S. explained that Goings told her that there were

crickets and lighting bugs inside her “private area.” During this portion of the

interview K.S. became distracted, asking whether she could leave the interview

room. Interview Tr., p. 22. In response, James replied “In just a minute. * * *

Because, you know, I’ve got to make sure that if kids’ private parts get touched

that they don’t get hurt, okay? And so that’s why I’m trying to ask you all these

questions.” Id. Thereafter, K.S. further described what Goings did to her “private

area.” After determining the extent of the touching, James’ further inquired about

the location of the incident and whether Goings was clothed during the incident.

After K.S. answered these questions the interview came to an end.

       {¶9} James continued that based on her interview with K.S. it was unclear

whether Goings penetrated K.S.’s vagina. James testified that K.S. should be

taken to a hospital, but that it was not an emergency to do so. Judgment Entry, pp.

3-4. Specifically James testified that “I told [K.S.’s parents that] if they wanted to

take [K.S.] they could, but I didn’t demand they take her for a physical exam

either.” Hearing Tr., p. 13. Additionally, it appears that K.S.’s parents had

decided, of their own volition, to take K.S. to the emergency room, as evidenced

by James’ following testimony: “I didn’t say that [K.S.] immediately needed to be

taken. I told the parents - - we discussed it in the office about what [K.S.]



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disclosed * * *, and they had decided to take her - - go ahead and take her to the

emergency room to be examined.” Hearing Tr., p. 10.

      {¶10} K.S.’s parents informed James that they were going to take K.S. to

Mary Rutan Hospital the next day, which they did. James testified that she did not

convey K.S.’s interview or her findings to any medical professional, nor did she

connect K.S. and her family with any counseling or treatment services

immediately following the interview.

      {¶11} James continued that if her investigation revealed any actions that

may be criminal in nature, she is required to report the same to the police. As a

result of her interview with K.S., James filed a report with the Logan County

Sheriff’s Department.

      {¶12} In January 2011, the trial court filed its judgment entry granting

Goings’ motion in limine suppressing the entire interview.

      {¶13} It is from this judgment that the State appeals, presenting the

following assignment of error for our review.

                           Assignment of Error No. I

      THE TRIAL COURT ERRED IN SUPPRESSING
      STATEMENTS MADE BY THE FOUR-YEAR-OLD VICTIM
      TO THE LOGAN COUNTY CHILDREN SERVICES SOCIAL
      WORKER WHICH WERE MADE IN PART FOR MEDICAL
      DIAGNOSIS AND TREATMENT.



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       {¶14} In its sole assignment of error, the State contends that the trial court

erred in suppressing select portions of the interview between K.S. and James.

Specifically, the State contends that the selected statements were made for

purposes of medical diagnosis or treatment, and thus were nontestimonial. We

disagree.

       {¶15} Initially, we note that the present appeal is being taken from a

granting of a motion in limine. Upon denial or grant of a motion in limine there is

ordinarily no error preserved for review and such a preliminary ruling standing

alone is not a final appealable order. Gable v. Gates Mills, 103 Ohio St.3d 449,

2004-Ohio-5719, ¶ 34-35. However, the Ohio Supreme Court has held that the

State may appeal an evidentiary ruling that has the effect of excluding evidence as

if it were a motion to suppress. State v. Thieken, 3d Dist. No. 9-2000-09 (June 29,

2000). The Ohio Supreme Court has explained that:

       Any motion, however labeled, which, if granted, restricts the
       state in the presentation of certain evidence and, thereby,
       renders the state’s proof with respect to the pending charge so
       weak in its entirety that any reasonable possibility of effective
       prosecution has been destroyed, is, in effect, a motion to
       suppress. The granting of such a motion is a final order and
       may be appealed * * *.

State v. Davidson, 17 Ohio St.3d 132, at syllabus (1985); Crim.R. 12(K). Here,

the State has filed its certification pursuant to Crim.R. 12(K) that the trial court’s

ruling deprived the State of its ability to effectively prosecute Goings on the

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offense of gross sexual imposition. Therefore, we will treat the pre-trial ruling as

a ruling on a motion to suppress. See Thieken; State v. Noble, 9th Dist. No.

07CA009083, 2007-Ohio-7051, ¶ 7.

       {¶16} “Appellate review of a decision on a motion to suppress evidence

presents mixed questions of law and fact.” State v. Dudli, 3d Dist. No. 3-05-13,

2006-Ohio-601, ¶ 12, citing United States v. Martinez, 949 F.2d 1117 (11th Cir.

1992). The trial court serves as the trier of fact and is the primary judge of the

credibility of the witnesses and the weight to be given to the evidence presented.

State v. Johnson, 137 Ohio App.3d 847, 850 (12th Dist. 2000). Therefore, when

an appellate court reviews a trial court’s ruling on a motion to suppress, it must

accept the trial court’s findings of fact so long as they are supported by competent,

credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100.

The appellate court must then review the application of the law to the facts de

novo. Id., citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

       {¶17} The State contends that State v. Arnold, a relatively recent decision

from the Ohio Supreme Court, is controlling in the present case. 126 Ohio St.3d

290, 2010-Ohio-2742.      We agree.     At the outset Hearsay is defined as “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 not admissible unless an exception applies. Evid.R.

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802. The parties in this case do not dispute that the statements which the State

seeks to admit qualify as hearsay. Rather, the issue is whether the exception found

in Evid.R. 803(4) applies.

         {¶18} Under Evid.R. 803(4), even where a declarant is available to testify,

a hearsay statement by that declarant is admissible if the statement was:

         * * * [M]ade 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. (Emphasis added.)

         {¶19} Hearsay statements made to a social worker may be admissible if

they are made for purposes of medical diagnosis or treatment.           See State v.

Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267; State v. Chappell, 97 Ohio App.3d

515, 530-531 (8th Dist. 1994); State v. Reigle, 3d Dist. No. 5-2000-14 (Nov. 9,

2000).

         {¶20} The trial court’s consideration of the purpose of the child’s

statements will depend on the facts of the particular case. Muttart at ¶ 49. “At a

minimum, * * * a nonexhaustive list of considerations includes[:]” (1) whether the

child was questioned in a leading or suggestive manner; (2) whether a motive to

fabricate, such as a custody battle, existed; (3) whether the child understood the

need to tell medical personnel the truth; (4) the child’s age; and (5) the consistency



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of the child’s declarations. Muttart at ¶ 49; State v. Lukacs, 188 Ohio App.3d 597,

2010-Ohio-2364, ¶ 7.

      {¶21} In Arnold, the court analyzed whether admission of statements made

to a social worker violate the Confrontation Clause where “the interview serves

dual purposes: (1) to gather forensic information to investigate and potentially

prosecute a defendant for the offense and (2) to elicit information necessary for

medical diagnosis and treatment of the victim.” Arnold at ¶ 33. Thus, the court

analyzed statements made to a social worker acting in a dual capacity: as an agent

for the police and as an agent of medical personnel. Id.

      {¶22} In Arnold, the court first examined the child-victim’s statements that

served primarily an investigative purpose. These statements included the child’s

assertion “that Arnold shut and locked the bedroom door before raping her; her

descriptions of where her mother and brother were while she was in the bedroom

with Arnold, of Arnold’s boxer shorts, of him removing them, and of what

Arnold’s ‘pee-pee’ looked like; and her statement that Arnold removed her

underwear.” Id. at ¶ 34. During this line of questioning, the court determined that

the social worker was acting as an agent of the police because “[t]he primary

purpose of that portion of the interview was not to meet an ongoing emergency

but, rather, to further the state’s forensic investigation. Thus these statements

were testimonial in nature and their admission without a prior opportunity for

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cross-examination is prohibited by the Confrontation Clause.” Id. at ¶ 36, citing

Crawford v. Washington, 541 US 36. 68 (2004).

       {¶23} Next, the court examined other statements the child-victim made

during the same interview that were necessary for medical diagnosis. Id. at ¶ 37.

The court determined that the child-victim’s “statements that described the acts

that Arnold performed, including that Arnold touched her ‘pee-pee,’ that Arnold’s

‘pee-pee’ went inside her ‘pee-pee,’ that Arnold’s ‘pee-pee’ touched her ‘butt,’ * *

* were thus necessary for the proper medical diagnosis and treatment.” Id. at ¶ 38.

       {¶24} Ultimately Arnold concluded that statements in an interview at a

child advocacy center by a social worker regarding “medical diagnosis and

treatment are nontestimonial and are admissible without offending the

Confrontation Clause.” Id. at ¶ 44.      However, “statements * * * that serve

primarily a forensic or investigative purpose are testimonial and are inadmissible

pursuant to the Confrontation Clause when the declarant is unavailable for cross-

examination at trial.” Id. at ¶ 44.

       {¶25} In directing courts to the proper application of Arnold, the Ohio

Supreme Court held that a portion of any statement that has become testimonial

should be redacted from the otherwise admissible evidence, reflecting the

procedure for “unduly prejudicial portions of otherwise admissible evidence.” Id.

at ¶ 41. In sum, under Arnold, we must analyze whether any of the statements

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made by K.S. to Erica James, the Social Worker, were for the purposes of medical

diagnosis.   If any of the statements were made for the purposes of medical

diagnosis, they would be admissible under Arnold and therefore were improperly

excluded.

       {¶26} In determining the nature of separate sections of an interview,

Arnold emphasizes that it is not the subjective understanding of the one being

interviewed that is controlling, but what the circumstances objectively demonstrate

i.e., “circumstances that would lead an objective witness to reasonably believe”

the inquiry was testimonial or non-testimonial. Arnold at 294-296. On the other

hand, based on the above, statements that do not relate to acts against the victim or

statements that are not made to assist in an ongoing emergency are testimonial and

would be inadmissible.

       {¶27} In the case sub judice Erica James interviewed K.S. at Logan

County Children’s Services after K.S.’s mother reported a potential incident.

James testified that her purpose in conducting the interview with K.S. was to find

out if the allegations of sexual abuse were true or false and to try to figure out if

K.S. would need any medical or emotional treatment. Hearing Tr. at 8. The

interview was thus apparently intended to serve the dual capacity function

contemplated in Arnold. Arnold at ¶ 33.



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       {¶28} The State claims that two separate parts of James’ interview with

K.S. were made for the purposes of medical diagnosis and were therefore

nontestimonial and improperly excluded when the motion in limine was granted.

The first segment of the interview that the State argues is nontestimonial is a set of

preliminary questions where James asked K.S. to identify parts of a male and

female body on dolls to establish K.S.’s familiarity with the human body.

Interview Tr. p. 5-7.

       {¶29} Though these statements might have been a prelude to medical

diagnosis or treatment, they do not by themselves constitute statements for the

purposes of medical diagnosis. These questions would not cause an objective

person to believe they were for the purposes of medical diagnosis, as no questions

were asked to K.S. at that time regarding any medical issues she was having.

Furthermore, these questions do not call for answers which would describe acts

that were done to K.S., nor were the questions asked in an attempt to assist in an

ongoing emergency. Therefore we find these questions and answers were for the

primary purpose of gathering forensic information, not for the purpose of medical

diagnosis and treatment, and are therefore inadmissible.

       {¶30} The second segment of the interview that the State argues qualifies as

statements made for the purposes of medical diagnosis is where James begins to

specifically ask K.S. about the alleged incident with Dominic. See Interview Tr.,

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pp. 18-26. James brings Dominic’s name back into the conversation and asks K.S.

if Dominic ever touched her private parts. James then attempts to find out where

and how Dominic touched K.S.’s private parts. As part of this questioning, K.S.

often veers off topic with her answers. James, in an attempt to refocus K.S. after

she expressed a desire to leave the interview room, explained to K.S. that “I’ve got

to make sure that if kids’ private parts get touched that they don’t get hurt, okay?”

Interview Tr., p. 22.

       {¶31} Though this statement may arguably prompt a child to make

statements for purposes of medical diagnosis or treatment, it did not in this case as

K.S. responded that ‘yes’ she understood, then continued talking about lightning

bugs. Id. We note that K.S. was only four years old and may have had difficulty

grasping what she was being asked.         However, when viewing the interview

through an objective lens, we do not find that any excerpts of this segment of the

interview rise to the level of questions for medical diagnosis. On the contrary, it

seems clear that James was still acting in an investigatory capacity, attempting to

ascertain exactly what happened.

       {¶32} Moreover, throughout James’ questioning of K.S. James collected no

information that she forwarded to a medical facility. After the interview was

complete, James testified that K.S. should be taken to a hospital, but that it was not

an emergency to do so. Despite this recommendation, James conveyed no oral or

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written report of her interview or findings to any medical professional even though

she was aware, on the day of the interview, that K.S.’s parents were going to take

K.S. to Mary Rutan Hospital for a medical exam. Furthermore, James did not

testify to any working relationship with any qualified medical professional or that

she was acquiring information for a qualified medical professional.

       {¶33} James did, however, contact the police. As James took no steps to

alert medical authorities but did alert the police, we find that under these

circumstances she was acting as an agent of the police. Moreover, as there was no

ongoing emergency the statements could not fall under those made for medical

treatment or diagnosis as described in Arnold.

       {¶34} For all of the foregoing reasons, nothing in the interview supports a

conclusion that any part of the interview was directed to medical diagnosis or

treatment of K.S. under the dual purpose doctrine of Arnold.

       {¶35} Accordingly, we overrule the State’s sole assignment of error.

       {¶36} Having found no error prejudicial to the State herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

PRESTON, J., concurs.

/jlr



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ROGERS, J., Concurring Separately.

       {¶37} While I concur in the result reached by the majority opinion, I write

separately to emphasize other facts which support the majority’s determination

that none of K.S.’s statements during her interview with the social worker were

made for purposes of medical diagnosis or treatment.

       {¶38} First and foremost, I find it necessary to consider the status of the

interviewer. By status I mean that person’s relationship to medical and/or police

personnel. Logically, if no relationship to medical personnel or facilities exists,

then there is no exception to the hearsay rule available under Evid. R. 803(4).

       {¶39} Here, the individual conducting the interview of K.S. is employed by

a children’s services agency and has as a principal duty to determine whether child

protective services are warranted. If abuse is indicated, that person had a legal

responsibility to report the suspected abuse to the appropriate police agency. She

had no further responsibility or purpose. There was no pre-existing relationship

with medical personnel, she had not been requested to make medical inquiries, the

record does not disclose any medical training that would qualify her to make a

medical diagnosis, and she, in fact, did not report any findings to any medical

personnel despite having knowledge that K.S. would be taken to Mary Rutan

Hospital the following day.



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       {¶40} Based on these findings alone, the necessary conclusion is that none

of the statements from K.S. were made for the purpose of medical diagnosis

and/or treatment, and no further discussion is required.

       {¶41} The majority does properly rely on State v. Arnold, 126 Ohio St.3d

290, 2010-Ohio-2742, but seems to ignore the underlying facts of the status of the

individual conducting the interview in that case. That person was employed by a

child-advocacy center and the acknowledged purpose of the interview was to

glean both forensic and medical information. As described, both medical and law-

enforcement personnel watch the interview from a separate room. The child is

told that he or she will be examined by a doctor or nurse after the interview. The

nurse or doctor doing the examination then “relies on information obtained during

[the] interview to determine what examination and tests are needed.” Arnold, at ¶

31-32. Nothing in the current case approaches the circumstances that existed in

Arnold.

       {¶42} If one finds that further inquiry is necessary to determine the purpose

of K.S.’s statements, I would also find that the environment in which the interview

occurred would not have prompted a child like K.S. to make statements for

purposes of medical diagnosis or treatment. The Supreme Court of Ohio has

explained that “[o]nce the child is at the doctor’s office, the probability of

understanding the significance of the visit is heightened and the motivation for

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diagnosis and treatment will normally be present.” State v. Dever, 64 Ohio St.3d

401, 410 (1992); see also State v. Kapp, 3d Dist. No. 1-09-12, 2009-Ohio-5081, ¶

20, State v. Alkire, 12th Dist. No. CA2008-09-023, 2009-Ohio-2813, ¶ 42 (the

court noted the child’s awareness of being in a medical setting), State v. Azbell,

4th Dist. No. 04CA11, 2005-Ohio-1704, ¶ 190.          Where, however, the facts

establish that the interview took place in a business office or some other non-

medical setting, such an environment militates against a finding that the child’s

statements were made for purposes of medical diagnosis or treatment. State v.

Griffith, 11th Dist. No. 2001-T-0136, 2003-Ohio-6980, ¶ 65 (finding that a child-

victim’s interview with a social worker in a room containing a love-seat,

children’s toys, and a table and chairs would not “notify the victim of any medical

purpose for the pending interview”); see also In re Corry M., 134 Ohio App.3d

274, 283 (11th Dist. 1999) (typically-dressed social worker carrying anatomically

correct doll would not lead child to believe that she is speaking with the social

worker for purposes of medical diagnosis or treatment).

      {¶43} Here, the interview took place at Logan County Children’s Services.

There is no evidence that Logan County Children’s Services is attached to or

associated with a hospital, like the Child Advocacy Center in Arnold, or a quasi-

medical facility such as a family practice. There is no evidence that the room in

which the interview took place had the trappings of a doctor’s office or medical

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exam room. Instead, the social worker testified that the interview took place in

one of the agency’s visitation rooms. Lastly, there is no evidence that the social

worker was dressed in a manner which would suggest to a child that she was

speaking to someone who had a medical background or was in a location for the

purpose of medical diagnosis or treatment.

       {¶44} Accordingly, I agree with the majority’s conclusion that none of

K.S.’s statements were made for purposes of medical diagnosis or treatment.

/jlr




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