[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.

/jlr




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