COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68750 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JEFFREY TALANI : : Defendant-appellant : : DATE OF ANNOUNCEMENT : JANUARY 11, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-313066 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: MICHAEL S. NOLAN, ESQ. VALERIE R. ARBIE, ESQ. Assistant County Prosecutor Assistant Public Defender 8th Floor, Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, J. Defendant-appellant, Jeffrey Talani appeals his conviction for rape in violation of R.C. 2907.02 and gross sexual imposition in violation of R.C. 2907.05. Danielle Triscari, the victim, testified that when she was nine years old Talani raped her. The victim stated that her brother passed away and the night before the funeral, February 18, 1983, she stayed over Talani's house at the request of her parents. The victim stated that she was asleep on the couch in the living room and Talani woke her up and told her to go to the basement with him. The victim testified that an adult movie was playing on the television in the basement. Talani ordered her to remove her clothes, made her touch his penis, and anally raped her. The victim testified that Talani, a city of Brooklyn Heights Police Officer, told her that if she ever told anyone about the incident he would kill her parents. The victim never reported the incident to anyone, not even to the police when she was questioned in 1987 about separate charges against Talani. Triscari stated that in 1994, she was treated for colitis and she informed her doctor that she had been anally raped years earlier. Her doctor sent her to see psychologist Martha Keyes to discuss the rape. In April 1994, the victim went to see Keyes and for the first time revealed the events that occurred on February 18, 1983. - 3 - Linda Triscari, the victim's mother testified that after February 13, 1983 her daughter was withdrawn and quiet. In days that followed, the victim blurted out that it was all the Linda's fault. Linda did not understand what her daughter meant. Annette Algie, another sexual abuse victim of Talani, testified that Talani had sexually abused her in 1987. Algie stated that while Talani was the chief of police he forced her to rub his penis to ejaculation, anally and digitally penetrated her. Talani was convicted of sexually abusing Algie and was serving his sentence during the trial now on appeal. Martha Keyes, testified that she had received a bachelor's degree from Ohio Sate University, a master's degree in community counseling from Kent Sate University in 1990 and began her Ph.D studies in 1991. She has completed all her class studies for her Ph.D at Kent State. She is working on her remaining requirements of residency at the V.A. hospitals in Cleveland and the defense of her dissertation. Keyes has also worked for private psychological firms for five years and has seen over 150 clients. As part of this private practice, Keyes saw the victim on ten to twelve occasions beginning on April 13, 1994. The purpose of the visits was to alleviate the victim's anxiety and her depression with regard to the sexual abuse incident. Keyes stated that the first time she saw the victim she was incredibly teary and could barely get words out of her mouth. She was nervous, fidgeting and was distraught. It took several sessions before the victim could - 4 - talk about the incident. Keyes also stated the events of the incident as the victim had told her. Talani's first assignment of error states: I. THE INCLUSION OF PREJUDICIALLY EXTRANEOUS TESTIMONY DENIED APPELLANT A FAIR TRIAL AS GUARANTEED HIM BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Talani claims that the inclusion of prejudicially extraneous testimony denied him a fair trial as guaranteed by the Constitution. Specifically, Talani asserts that he was denied a fair trial by the admission of other acts evidence by the testimony of Algie who stated that in 1987 she was seven years old and was sexually abused by Talani on four separate occasions. The admissibility of other-acts evidence is cautiously limited, specially in prosecutions for sexual offenses. State v. Decker (1993), 88 Ohio App.3d 544, 548. The rape statute and the gross sexual imposition statute include subsections that limit the admissibility of evidence of other sexual activity by the defendant. Both R.C. 2907.02(D) and 2907.05(D) provide the following: "Evidence of specific instances of the defendant's sexual activity, opinion evidence of the defendant's sexual activity, and reputation evidence of the defendant's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant's past sexual activity with the victim, or is admissible against the defendant under section 2945.59 of the Revised Code, and only to the extent that the court finds that - 5 - the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value." R.C. 2945.59 provides: "In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior to subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant." The testimony of Algie was properly admitted since such testimony tended to show the motive, plan and identity of Talani. See State v. Hill (1992), 64 Ohio St.3d 313, 322. Furthermore, the Ohio Supreme Court stated the following: "Much confusion about R.C. 2945.59 might be avoided if it were observed that no where therein do the words 'like' or 'similar' appear. The statute permits the showing of 'other acts' when such other acts 'tend to show' certain things. If such other acts do in fact 'tend to show' any of those things they are admissible notwithstanding they may not be 'like' or 'similar' to the crime charged. Id. (citation omitted). Talani asserts that the abuse Algie testified to involved different acts and therefore her testimony should not have been permitted. Applying Hill, supra, to the present case, we find that it is not necessary for the exact acts to be committed. Instead, if the other acts tend to show motive, scheme, plan or system the - 6 - testimony can be admitted. In this case, Algie testimony tended to showed Talani's motive, scheme or plan. Talani raped Algie in the same manner that he raped the victim. Talani brought nine year old Algie to his basement, adult movies were on the television and he anally raped her. Talani brought the seven year old victim to his basement, adult movies were playing on the television and he anally raped her. We do not find the trial court committed error when it permit Algie to testify. Hill, supra. Talani claims that the four year time difference between rapes was cause for Algie not to be permitted to testify and he cites State v. Lewis (1990), 66 Ohio App.3d 37 as his authority. In Lewis the court found that testimony by Lewis' ex-girlfriend that he raped her four years earlier was too temporally remote to have probative value as to Lewis's intent and therefore the testimony should have been excluded pursuant to R.C. 2945.59. Lewis was not convicted of raping the ex-girlfriend nor was Lewis even prosecuted for the allegations. We find these facts distinguishable from the facts in this case and therefore we will not follow Lewis. Accordingly, Talani's first assignment of error is overruled. Talani's second assignment of error states: II. THE COURT ERRED WHEN IT IMPROPERLY ALLOWED A PSYCHOLOGY STUDENT TO TESTIFY AND INTRODUCE HEARSAY STATEMENTS THAT WERE NOT ADMISSIBLE PURSUANT TO EVID.R. 803(4). Talani complains that the trial court erred by allowing Martha Keyes to testify and to introduce hearsay statements that were not admissible pursuant to Evid.R. 804(4). Specifically, Talani claims - 7 - that Keyes should not have been permitted to testify because she has not finished her doctorate degree and therefore is not licensed to practice in the state of Ohio. Evid.R. 803(4) allows into evidence, as an exception to the hearsay rule, "[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." It is settled law in Ohio that statements made for the purposes of medical diagnosis or treatment are admissible under Evid.R. 803(4). See State v. Dever (1992), 64 Ohio St.3d 401, 407. This court held in State v. Shepherd (July 1, 1993), Cuyahoga App. No. 62894, unreported, that a clinical therapist charged with the medically related task of treating a patient for the psychological and emotional trauma associated with sexual abuse is permitted to testify pursuant to Evid.R. 803(4). In the present case, the evidence is clear that the victim was referred by her doctor to see Keyes for a diagnosis and treatment for the her trauma related to the sexual abuse incident. Although Keyes had not obtained her Ph.D. at the time she saw the victim, she was employed as a resident at the Cleveland VA Medical Center and as a psychotherapist at Clinical Counseling Associates. - 8 - Applying Shephard, supra, we find the trial court did not err when it permitted Keyes to testify. Accordingly, Talani's second assignment of error is overruled. Talani's third assignment of error states: III. THE TRIAL COURT ERRED IN FAILING TO DISMISS THE CHARGES AGAINST APPELLANT WHERE THE STATE FAILED TO INDICT WITHIN THE STATUE OF LIMITATIONS PURSUANT TO R.C. 2901.13. Talani complains that the trial court erred when it failed to dismiss the charges against him when the state failed to indict within the statute of limitations pursuant to R.C. 2901.13. Specifically, Talani asserts that pursuant to R.C. 2901.13(A)(1) and 2151.421 the state had six years from the time the victim turned eighteen years old or reported the sexual abuse to a responsible adult. Talani claims the statute should have started to run in 1987, when the victim was questioned about Talani concerning another sexual abuse case and had the opportunity to inform the police about the incident in 1983. The law in Ohio is clear, the statute of limitations begins to run on a child abuse prosecution once the child abuse victim attains the age of 18 and understands the criminal nature of the act or when the victim reports the sexual abuse to a person listed in R.C. 2151.421. State v. Weiss (1994), 96 Ohio App.3d 379. In the present case, the victim was born on January 1, 1974. She turned eighteen on January 1, 1992. Therefore, the state had until January 1, 1998, six years after the victim turned eighteen to prosecute Talani. Furthermore, the victim testified that she - 9 - did not communicate to anyone that Talani sexually abused her in 1983 until April 1994. The fact that the state could not produce records of the interview it conducted with the victim in 1987 does not prejudice Talani because the victim testified that in 1987 she did not tell the police that Talani sexually abused her. Accordingly, Talani's third assignment of error is overruled. Talani's fourth assignment of error states: IV. MR. TALANI'S RIGHTS PURSUANT TO ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN HE WAS NOT PROVIDED FULL DISCOVERY PURSUANT TO CRIM.R. 16. Talani asserts that he was denied his constitutional right to due process because he was not provided full discovery pursuant to Crim.R. 16. Specifically, Talani claims that he requested information regarding the 1987 interview with the victim conducted by the Cleveland Police Department and the police department's failure to comply with this discovery request was a violation of his constitutional rights. Furthermore, Talani maintains that he was only given an excised version of Keyes' report prepared for the state and he should have been given the entire report. First we will address the discovery pertaining to the 1987 interview with victim. Initially we note that the Cuyahoga County Sheriff's Department conducted the investigation against Talani in 1987-88. Sergeant Mester of the sheriff's department managed the investigation and he informed the state that he searched the file - 10 - and could not find a "police report" regarding an interview with the victim. Before the trial commenced, the court conducted a hearing during which the state again informed Talani's trial counsel that a record of a 1987 interview with the victim did not exist. The court then questioned Talani's counsel whether she had attempted to speak with Sgt. Mester regarding the 1987 interview. Talani's counsel had not spoken with Sgt. Mester and the court informed Talani's counsel that it was her obligation to speak with him before the trial commenced. If Sgt. Mester refused to speak to Talani's counsel then the court stated it would voir dire him before the trial started. Talani's counsel did not object to this arrangement. We do not agree with Talani that he was not provided full discovery regarding the 1987 interview with the victim. The record clearly shows that the file did not contain a copy of an interview with the victim. Moreover, we note that the trial court offered to assist Talani by requiring Sgt. Mester to appear before the court for voir dire purposes. Apparently Talani chose not to speak with Sgt. Mester or have the trial court voir dire him if he was uncooperative. Since Talani did not follow up with Sgt. Mester, we will not permit him to now claim that his rights were violated. Next, we address the issue regarding Keyes' report. Talani's trial counsel requested to review all of Keyes' notes regarding the victim. The state informed the court that it had given Talani's - 11 - counsel the verbatim portion of Keyes' report that demonstrated what the victim told her about this particular incident. The court permitted Talani's counsel to look at Keyes' report pertaining to the incident and refused to allow her to look at Keyes' notes regarding other matters because they were privileged. Furthermore, Keyes was only questioned on direct examination about the information the victim told her concerning the incident in 1983. We do not believe that the trial court erred when it did not permit Talani's counsel to review Keyes' notes. R.C. 2317.02 creates a privilege for communications such as Keyes' professional notes about the victim not pertaining to the criminal matter at hand. Niemann v. Cooley (1994), 93 Ohio App.3d 81, 92. Accordingly, we find that the trial court did not err when it would not permit Talani to look at Keyes' notes. Therefore, Talani's fourth assignment of error is overruled. Judgment affirmed. - 12 - 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. LEO M. SPELLACY, C.J. JAMES D. SWEENEY, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .