COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68745 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOHN SMITH : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION JANUARY 25, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-314903 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES JOHN PARKER, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue RALPH KOLASINSKI, Assistant Cleveland, Ohio 44103 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Defendant-appellant John Smith appeals from his convictions following a jury trial for attempted rape (R.C. 2923.02/2907.02), three counts of gross sexual imposition (R.C. 2907.05), one count of attempted gross sexual imposition (R.C. 2923.02/2907.05) and five counts of endangering children (R.C. 2919.22) arising out of his relationship with his grandchildren who lived with him. Defendant contends that two of the children were not competent to testify; his constitutional rights were violated when the children were voir dired for competency out of his presence; that the court erred in allowing the social worker to testify as to her interview of the children and in admitting testimony and exhibits by a nurse. Defendant also contends the convictions were not supported by sufficient evidence and the verdicts were against the manifest weight of the evidence. We find no merit to the appeal and affirm. This case arose out of the alleged sexual molestation by defendant of his six grandchildren, ages 7 to 13 over a period of years. The grandmother, co-defendant Birdie Smith, pled guilty to six counts of child endangerment on the day of trial. Five of the children testified to episodes with their grandfather when he touched their private parts. Prior to trial, the court conducted a competency hearing of three of the minor victims under the age 10, out of the presence of the defendant, and found them competent to testify at trial. (Tr. 31-77). - 3 - The six children all testified, to wit: Carnell, Monica, LaBrenda, Lynette, India and Latrice. Carnell (age 13), testified that he lived with his grandpa; "sometimes he would treat us nice and sometimes bad"; "he would do nasty stuff"; "he takes off his clothes and he gets on top of me" and the "bed would be moving"; grandpa told him not to tell or he'd get a "whooping." He saw grandpa's private part which touched Carnell's stomach. He said his grandfather only did this to him one time. Monica (age 11), testified that her grandfather hurt her private part; he did not have any clothes on when he was on top of her and moving; that he did not have any clothes on when he hurt her; his private part was on "my private part"; and he "told me not to tell on him" or "I would get a whooping." LaBrenda (age 10), testified that grandpa would treat her "sometimes good" and "sometimes bad"; he would "get on me *** in his room" while his clothes were off and grandpa would "rock the bed"; that the defendant's penis touched her private part, and that he said "don't tell no one *** so he won't get himself in trouble" or he would "whoop" her "with a belt" if she told that her grandfather placed his private part on her private part; and that she was "afraid of him." She said her grandfather had done this to her more than three times. Lynette (age 9), testified that sometimes Grandpa Smith did not treat her well; he would get "on top of me *** in his room" "on - 4 - the bed"; he told her to take her clothes off and his would also be off; that grandpa would "show his private part to her and touch her private part with it; he "would have a belt in his hand" and if we don't listen to him "he turns us upside down and beats us"; he told "don't tell on him" or he will "get us *** he's beat us." India (age 8), testified that Grandpa Smith would touch her bottom part with his hand; her clothes would be off but grandpa's clothes would be on and he would "just touch us"; he told her "don't tell no one" because he "don't want to get in trouble"; and that he would "whoop us" if she told. The final grandchild, Latrice (age seven), testified that she had not been touched. A sex abuse social worker, Jacqueline Little, of the Department of Children and Family Services testified that on December 29, 1993, she met the six Smith children and interviewed them "one at a time" at the request of the children's case manager, Ms. Kubena. Over defense objections, she testified that the children, with the exception of Latrice, told her that the grandfather had molested them in the same fashion as they testified at trial. She recounted the interviews from her notes and it was corroborative of the children's trial testimony. Latrice, the youngest, also spoke to Ms. Little and denied that anyone had ever touched her. - 5 - Ms. Little referred the children for medical examination in order that "they should be checked for any sexually transmitted diseases and penetration, evidence of penetration." Ms. Kubena, the children's case manager who was also a social worker for Family Services, testified: that she was the case manager of the Smith children; that the children were living with John Smith from March 1990 through March 1992; that the children met Ms. Little on December 29, 1993; and as a result of the children seeing Ms. Little, Ms. Kubena took them to the Alpha Clinic at Metro Hospital for a sexual abuse examination in June and July 1994. The State's final witness was Marsha Thompson, a pediatric nurse practitioner at Alpha Clinic of Metro Health Medical Center. She examined the Smith children in June 1994. Ms. Thompson examined Carnell on June 1, 1994 and concluded he had a normal examination and did not find anything unusual based upon the type of abuse that occurred with Carnell. She examined the five female grandchildren and concluded from anatomical changes present that they each had been sexually abused. She presented medical reports and enlarged color photographs of the girls' vaginal areas. The defense presented no evidence and the jury returned guilty verdicts as previously mentioned. This appeal timely ensued. We will address the assignments of error in the order asserted. - 6 - I. THE TRIAL COURT ERRED IN FINDING TWO OF THE CHILDREN COMPETENT TO TESTIFY IN THAT IT DID NOT CONSIDER THE FIVE FACTORS REQUIRED IN STATE V. FRAZIER (1991), 61 OHIO ST.3D 247. Defendant argues that Lynette and India Smith, ages nine and eight respectively, should not have been deemed competent to testify based upon the Supreme Court's opinion in State v. Frazier (1991), 61 Ohio St.3d 247. Under Evid. R. 601(A), a child under ten years is not competent to testify if the child "appear[s] incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly." This determination must be made by the trial court through a voir dire examination. The Court in Frazier, supra, set out certain factors that the trial court must consider in reviewing the competency of the under- ten child: In determining whether a child under ten is competent to testify, the trial court must take into consideration (1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful. Frazier, at 251. "This Court will not disturb the trial court's determination that the witnesses were competent to testify absent a clear showing of an abuse of discretion." State v. Workman (1984), 14 Ohio App. - 7 - 385, 389. See, also, State v. Hogan (June 8, 1995), Cuyahoga App. No. 66956, unreported; State v. Kelly (1994), 93 Ohio App.3d 257, 263. In order to find an abuse of discretion, we must find that the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. State v. Kelly, supra at 263; State v. Bell (May 26, 1994), Cuyahoga App. No. 65356, unreported; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. In the present case, the trial court conducted the competency hearing of Lynette and India, prior to trial, with both defense counsel and the prosecutor present. Lynette's competency hearing (Tr. 31-43) reveals her answers to the court's questioning: by relating her age; the difference between a truth and a lie; that she will tell the court the truth; information about her school; identity of who the judge is and what she does; that she is in court to tell about her grandfather; about something she remembers happening at her grandfather's house; identifies her brothers and sisters with whom she currently resides; that she goes to church to sing in the choir and to hear the preacher preach and sing; that she learns about God at church in that He made us; that there are rules where she lives and if they are broken she is punished; the difference between the truth and a story and if you tell a story you get punished; that you tell the truth in the courtroom; and that she could picture in her mind what happened with her grandfather. - 8 - Contrary to defendant's argument, these are precisely the kind of questions and information that are sufficient to satisfy the five Frazier criteria. State v. Kelley, supra, at 262-63. India testified (Tr. 43-57) along the same lines recognizing the difference between telling the truth and lying and that you get punished for lying; and that she was in court to tell the truth about what happened with her grandfather. Upon a review of the voir dire examination, we find that the trial court satisfactorily inquired of these two children, in a manner sufficient to satisfy the requirements of Frazier, supra, and in determining their competence to testify. We find no abuse of discretion in allowing their testimony. Assignment of Error I is overruled. II. THE TRIAL COURT VIOLATED THE APPELLANT'S RIGHT TO MEET THE WITNESSES AGAINST HIM "FACE TO FACE" IN VIOLATION OF ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN THE COURT CONDUCTED COMPETENCY HEARINGS OF THE CHILDREN AND ORDERED THE APPELLANT OUT OF THE COURTROOM OVER COUNSEL'S OBJECTION. We find no constitutional error in the court's exclusion of the defendant from the courtroom during the children's voir dire. In Kentucky v. Stincer (1987), 482 U.S. 730, the United States Supreme Court found no constitutional violation in the exclusion of the defendant from the competency hearing of two child witnesses in a sexual abuse case. The Court stated as follows: Because respondent had the opportunity for full and effective cross-examination of the two witnesses during trial, and because of the nature of the competency hearing at issue in - 9 - this case, we conclude that respondent's rights under the Confrontation Clause were not violated by his exclusion from the competency hearing of the two girls. In the instant case, defendant was likewise available to effectively cross-examine the children during their trial testimony and we find that his constitutional rights were not violated by being excluded from the voir dire hearing. In State v. Kelly (1994), 93 Ohio App.3d 257, the appellate court, citing Stincer, supra, concurred with the trial court's decision to exclude the defendant from the courtroom, at the State's request, during the competency hearing of two children. See, also, State v. McMillan (1989), 62 Ohio App.3d 565, 568 (defendant's Confrontation Clause rights were not violated when both defendant and defendant's counsel were excluded from a child witness' competency hearing since witness was subject to full and complete cross-examination at trial). Defendant asserts that his confrontation rights under the Ohio Constitution, Art. I, 10 are broader than those under the United States Constitution. There is support for that proposition. State v. Storch (1993), 66 Ohio St.3d 280. The Ohio Constitution specifies that "In any trial, in any court, the party accused shall be allowed *** to meet the witnesses face to face ***." We do not find that this guarantee extends to competency voir dire examinations where the decision is being made as to whether or not a person should be a witness and no substantive testimony is given. - 10 - State v. McMillan, supra, at 568; State v. Brown (1988), 48 Ohio App.3d 286. We find no abuse of discretion in the exclusion of the defendant herein from the competency hearing. The presence of the grandfather at such a hearing may have proved too intimidating for the children, particularly where he had previously threatened them. This assignment of error is overruled. III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ALLOWING HEARSAY TESTIMONY FROM A SOCIAL WORKER WHOSE FUNCTION WAS NEITHER DIAGNOSTIC NOR TREATMENT AND SUCH TESTIMONY VIOLATED EVIDENCE RULE 803(4), THE FIFTH, SIXTH AND FOURTEEN AMENDMENTS OF THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 9 AND 16 OF THE OHIO CONSTITUTION. Defendant argues that the testimony of the social worker, Ms. Little, was hearsay and does not fall within the hearsay exception of Evid. R. 803(4). Her testimony corroborated the children's prior trial testimony. Evid. R. 803(4) permits statements made for purpose of medical diagnosis or treatment as an exception to the hearsay rule. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms; pain or sensations, or the inception of general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. It is settled in Ohio that statements made for the purposes of medical diagnosis or treatment are admissible under Evid. R. 803(4). See State v. Boston (1989), 46 Ohio St.3d 108, 121-22; State v. Dever (1992), 64 Ohio St.3d 401, paragraph two of - 11 - syllabus; State v. Bidinost (June 28, 1993), Cuyahoga App. No. 62925, unreported at 11. Out of court statements made to a social worker by abused children are admissible "[a]s long as they were being made for purposes of diagnosis and treatment." Presley v. Presley (1990), 71 Ohio App.3d 34, 38. This Court addressed the matter recently in State v. Chappell (1994), 97 Ohio App.3d 515, 531 held: We are equally not prepared to hold that a social worker by merely being a social worker is automatically included in the category of individuals who can render treatment or diagnose sex abuse victims. The inclusion of a social worker into this select group of care providers must depend on her function. Where a social worker's function does not include diagnosis or treatment (whether it be mental or physical treatment of a child sex abuse victim), any statement made to the social worker cannot be admissible under the exception to the hearsay rule in Evid.R. 803(4). * * * A careful review of the record shows that the function of the social worker in the instant case is neither diagnosis nor treatment. She just wanted to determine if further investigation was warranted after getting the child's statement. Those not allowed or certified as medical experts or clinical therapists cannot be accorded as a matter of law the privilege of giving medical diagnosis or treatment for evidentiary purposes just because they come into contact with children. The State argues in the case herein that the testimony of the social worker is admissible as she interviewed the children for the purpose of determining whether they needed additional medical treatment. - 12 - Little testified that the children's case manager had referred the children to her. (Tr. 403). She admitted that at the time she interviewed the children, they were already in therapy as they had been exhibiting strange behavior. (Tr. 402). After interviewing the children, Little recommended that the children be checked for sexually transmitted diseases and for penetration, although she was not sure whether they had already been checked. (Tr. 403, 407- 408). As a result of this recommendation, over six months later, the children were taken to the Alpha Sex Abuse Clinic for a sex abuse examination. (Tr. 418). Since the children were already in therapy, it is highly questionable whether Ms. Little's interview falls within the scope of Evid. R. 803(4). It seems the interview was done in order to determine whether further investigation into the sex abuse allegations was necessary, especially since a detective watched the interviews of the children through a two-way mirror. Nevertheless, we find that defendant was not prejudiced by the admission of this testimony. In determining whether the admission of hearsay evidence unduly prejudiced defendant, "*** the evidence in favor of conviction, absent hearsay, must be so overwhelming that the admission of those statements was harmless beyond a reasonable doubt." State v. Kidder (1987), 32 Ohio St.3d 279, 284. See, also, State v. Sorrels (1991), 71 Ohio App.3d 162, 165. We find the error here was not so prejudicial as to require reversal. - 13 - The children's testimony overwhelmingly supports a conviction of defendant on the crimes charged. Further, the testimony of the social worker was basically the same testimony the children gave, and the children were available for cross-examination; therefore the testimony of the social worker is not any more harmful than the testimony of the children themselves. See State v. Chappell, supra at 535 (the victim testified at trial and was subjected to full cross-examination by appellant's trial counsel before the jury; therefore the social worker's testimony is not any more damaging than the testimony of the declarant herself at trial); State v. Self (1990), 56 Ohio St.3d 73, 82 (psychotherapist's testimony relating to victim's statements was hearsay, however, admission was harmless given fact victim was subject to cross-examination); State v. Fenton (1990), 68 Ohio App.3d 412, 428 (admission of hearsay was harmless error, given the statements were cumulative and evidence of guilt was overwhelming based on victim's testimony); State v. Stokes (1991), 72 Ohio App.3d 735, 741-42 (inadmissible hearsay of counselor was harmless, given evidence of defendant's overwhelming guilt and fact that victim provided direct evidence of the testimony). Assignment of Error III is overruled. - 14 - IV. WHETHER THE TESTIMONY AND EXHIBITS OF NURSE THOMPSON CONCERNING THE PHYSICAL EVIDENCE OF EACH CHILD'S GENITALIA WAS NOT RELEVANT AND THE PROBATIVE VALUE WAS NOT OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE. Defendant argues that the testimony of Nurse Thompson and the photographic exhibits were not relevant and their probative value was outweighed by danger of prejudice. Defense counsel failed to object to Nurse Thompson's testimony and the admission of the photographs. He therefore waived these objections for purposes of appellate review. State v. Nicholas (1993), 66 Ohio St.3d 431, 435-436; State v. Bradley (1989), 42 Ohio St.3d 136, 140. Accordingly, consideration regarding the admission of the evidence must be considered, if at all, under the plain error rule. State v. Nicholas, supra at 436. "Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise." Id. at 436, citing, State v. Long (1978), 53 Ohio St.2d 91, paragraph two of syllabus; State v. Greer (1988), 39 Ohio St.3d 236, 252. Given the testimony of the children regarding their grandfather's actions, we cannot say the outcome of the trial would have been different if this evidence was omitted. Therefore, the plain error doctrine does not apply. This assignment of error is overruled. - 15 - V. THE VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE. VI. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE CONVICTIONS FOR ATTEMPTED RAPE, ATTEMPTED GROSS SEXUAL IMPOSITION AND ENDANGERING CHILDREN. Defendant argues that the jury's guilty verdicts on the attempted rape count, attempted gross sexual imposition count and child endangering counts were against the manifest weight of the evidence and not supported by sufficient evidence. These assignments of error have no merit. Defendant was found guilty of attempting to rape his ten year old granddaughter, Labrenda. Defendant contends that since there was no evidence of penetration, he could not be found guilty of attempted rape. R.C. 2923.02, which defines attempt, provides in pertinent part: (A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct which, if successful, would constitute or result in the offense. R.C. 2907.02, which defines rape, provides in pertinent part: (A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender *** when either of the following apply: (b) the other person is less than thirteen years of age, whether or not the offender knows the age of such person. As this Court held in State v. Travis (April 5, 1990), Cuyahoga App. No. 56825, unreported at 11: In order to find attempted rape, the jury need only find beyond a reasonable doubt that - 16 - defendant purposely took a substantial step toward committing the rape. State v. Henderson (1988), 39 Ohio St.3d 24, 27, citing, State v. Woods (1976), 48 Ohio St.2d 127. "To constitute a substantial step, the conduct must be strongly corroborative of the actor's criminal purpose." Woods, supra, paragraph one of the syllabus The testimony and evidence herein are sufficient to enable the trier of fact to find beyond a reasonable doubt that defendant was guilty of attempted rape. Labrenda testified that her grandfather and she were not wearing clothes when he got on top of her. She stated that her grandfather "rocked the bed" and that their "private parts" touched. These facts are sufficient to establish the elements of attempted rape. See, also, State v. Robinson (1990), 67 Ohio App.3d 743, 746 (evidence sufficient to prove attempted rape as record reflects that even though defendant and victim were fully clothed the defendant's lower body was positioned between victim's legs). Defendant was also found guilty of committing attempted gross sexual imposition on his thirteen year old grandson. Defendant argues that since the grandson was fully clothed and because the testimony of the grandson was that the grandfather's penis only touched the boy's stomach, no sexual contact occurred as the defendant did not touch the boy's erogenous zone. R.C. 2907.05 defines gross sexual imposition in pertinent part as: (A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender *** when any of the following applies: - 17 - (4) The other person, or one of the other persons is less than thirteen years of age, whether or not the offender knows the age of such person. R.C. 2907.01 "Definitions" defines "Sexual Conduct" as: (B) "Sexual Contact" means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person. Based on the evidence presented, a jury could reasonably find that defendant attempted to have sexual contact with Carnell. Carnell testified that although he himself had clothes on, his grandfather was naked when he laid on top of Carnell and that his grandfather's "private part" was touching Carnell's stomach. He stated that while his grandfather was lying on top of him, "the bed be moving." Based on this testimony, the evidence was sufficient to support a conviction of attempted gross sexual imposition. Defendant was also found guilty of five counts of child endangerment under R.C. 2919.22(A). Defendant claims that no evidence was presented that defendant was in loco parentis or had a duty of care, protection or support of the children, and that therefore he could not be convicted of child endangerment. R.C. 2919.22(A) defines child endangering in pertinent part as follows: (A) No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age *** shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. - 18 - Testimony presented at trial showed that the children, along with their mother, lived with the grandparents in the grandparents' home for two and a half years. Therefore, the jury had sufficient evidence on which to find the defendant had "custody and control" over the children. See State v. Kirk (March 24, 1994), Franklin App. No. 93AP-726, unreported (By listing in the alternative various individuals who come into contact with a child, the statute includes within its scope those individuals who have something less than a legal relationship to a child. Defendant had custody and control over the child as he had more than a casual relationship with the child even though the child's grandparents had legal custody of the child as he saw the child every day; the child used to live with him; he was married to the child's mother); State v. Schoolcraft (May 29, 1992), Portage No. 91-P-2340, unreported (Appellant exerted control over the child victim as he was babysitting, and control alone has been found to be sufficient to satisfy the element of R.C. 2919.22(A); "custody or control must mean something other than loco parentis, or the phrase becomes superfluous"). These assignments of error have no merit as the evidence clearly was sufficient to support the elements of the crimes asserted and the convictions were not against the manifest weight of the evidence. - 19 - Assignments of Error V and VI are overruled. Judgment affirmed. - 20 - It is ordered that appellee recover of appellant its 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 Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, J., and O'DONNELL, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .