COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69597 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ERIC CONLEY : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 22, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-323254. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Louis Brodnik, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Daniel Scully, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, J.: Eric Conley, defendant-appellant, appeals his conviction of rape in violation of R.C. 2907.02. Defendant-appellant raises two assignments of error concerning the admissibility of certain evidence pertaining to defendant-appellant's medical examination and the sufficiency of the evidence. For the following reasons, we affirm defendant-appellant's conviction. I. STATEMENT OF FACTS Cathy and Noble Nixon are the parents of the victim, Princess Nixon. Cathy Nixon is also the sister of Eric Conley, defendant- appellant. During the time of the offense, Mr. Nixon would care for his child when Mrs. Nixon worked. However, when both parents were working, defendant-appellant would occasionally care for the child. Thus, in June of 1994, the only males who watched over Princess Nixon were her father and defendant-appellant. At some time in late June, 1994, Sadie Conley, the mother of defendant-appellant and Mrs. Nixon, noticed that Princess had a greenish, vaginal discharge. After Sadie Conley informed Mrs. Nixon of her observations, Princess was taken to the hospital where she tested positive for gonorrhea and subsequently tested positive for chlamydia as well. The initial test was conducted on July 1, 1994. Princess Nixon was approximately eighteen months old at this time. Since Princess had been a healthy baby up until that point, child abuse was suspected by the family and by the hospital. Mrs. Nixon would not allow her daughter to have contact with either her -3- husband or defendant-appellant. Mrs. Nixon talked with a social worker at the hospital who reported the test results to the police department pursuant to R.C. 2151.421 and to a Cuyahoga County social worker. On August 2, 1994, Mr. and Mrs. Nixon, her four children and defendant-appellant went to the hospital to be tested. Defendant- appellant was the only individual who tested positive for gonorrhea. All others tested negative for gonorrhea and chlamydia. On May 8, 1995, the Cuyahoga County Grand Jury returned a one count indictment charging defendant-appellant, Eric Conley, with one count of rape in violation of R.C. 2907.02(A)(1)(b) as the victim was less than two years old. Defendant-appellant pled not guilty. On August 21, 1995 and prior to trial, defense counsel presented a motion in limine arguing the court should prohibit the state from introducing certain medical evidence of the defendant-appellant's infection with gonorrhea. The motion was denied and the case proceeded to trial. The state presented the testimony of Cathy Nixon who verified the above-mentioned facts leading up to the medical examinations on August 2, 1994. Mr. Nixon, who had recently separated from his wife, did not appear at the trial although the state had planned to call him as a witness. The state also presented the testimony of Brenda Gilham who is the records' custodian at the hospital system where the victim was treated and where defendant-appellant was tested. Ms. Gilham -4- testified as to the veracity of the test results records regarding the victim, defendant-appellant and Mr. Nixon. The state also provided the testimony of Dr. Amy Richardson who is a child abuse specialist working at the Child Protection Program at Rainbow Babies' and Children's Hospital. Dr. Richardson testified she had conducted extensive testing on the victim. She also reviewed all relevant medical records and held an interview with the victim's mother. Dr. Richardson concluded there was definite evidence that the victim had been sexually abused. Dr. Richardson also narrowed the time frame in which the abuse occurred and determined which adults had access to the victim during this period. The state called Dr. Ho-A-Lim to the stand. Dr. Ho-A-Lim testified defendant-appellant appeared agitated before submitting to the test. Dr. Ho-A-Lim testified defendant-appellant tested positive for gonorrhea and would not allow him to test for chlamydia. Dr. Ho-A-Lim testified he tested Mr. Nixon for gonorrhea and chlamydia. Both results were negative. Finally, the state presented the testimony of Detective Berg of the Sex Crimes Child Abuse Unit of the Cleveland Police Department. As a result of information received from the Rainbow Babies' and Children's Hospital, Detective Berg conducted an investigation of the matter by reviewing the test results and interviewing a number of individuals including defendant-appellant regarding the child abuse. According to Detective Berg, defendant-appellant stated that he was tested for gonorrhea. He also denied sexually abusing -5- the victim. This interrogation was recorded in a police report that was signed by defendant-appellant and admitted into evidence. After the state presented its witnesses, defendant-appellant's counsel motioned for acquittal. This motion was denied. Defense counsel then called to the stand both defendant-appellant and his mother, Sadie Conley. Mrs. Conley testified that she believed defendant-appellant did not have and never did have gonorrhea. Defendant-appellant testified he did not willingly go to the police station to give a statement. He also testified he never had gonorrhea and/or chlamydia. He further testified he was unaware of the purpose of his visit to the hospital on August 2, 1994 and he was never tested for gonorrhea or chlamydia as he would not allow the doctor to touch him. Defendant-appellant also testified that he told the officers he went to the doctors but refused to take the test and that the police report was in error when it quotes him as saying he was tested for gonorrhea. Finally, defendant-appellant testified he signed the police report without reading it because he "wanted to get out of there." On August 24, 1995, the jury returned a verdict of guilty. Defendant-appellant was sentenced to serve a life term of incarceration. Defense counsel filed a motion for a new trial on the basis of newly discovered evidence pursuant to Crim.R. 33(A)(6). Defense counsel argued that after the trial, Mrs. Nixon was told by the victim that it was her father, Mr. Noble Nixon, who -6- had sexually abused her. A hearing was held on October 27, 1995 and the motion was subsequently denied. This appeal follows. II. FIRST ASSIGNMENT OF ERROR Eric Conley, defendant-appellant, states as his first assignment of error: I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION IN LIMINE AND THEREBY ALLOWING THE STATE TO INTRODUCE MEDICAL EVIDENCE RESULTING FROM THE APPELLANT'S EXAMINATION BY A PHYSICIAN, IN VIOLATION OF THE PHYSICIAN-PATIENT PRIVILEGE AS PROVIDED BY EVID.R. 501 AND R.C. 2317.02. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT-APPELLANT'S MOTION IN LIMINE. Defendant-appellant argues the trial court abused its discretion in denying his motion in limine as it pertains to the written and testimonial evidence relating to the medical examination of defendant-appellant. Specifically, defendant- appellant argues the physician-patient privilege precludes the testimony of Dr. Ho-A-Lim regarding his examination, testing, and the subsequent positive test results for gonorrhea. Defendant-appellant argues the trial court based its denial exclusively by reason of a "judicial policy" exception to the physician-patient privilege which is not found in R.C. 2317.02(B). Moreover, the Ohio Supreme Court has held that statutory privileges cannot yield to judicially perceived public policy. Accordingly, defendant-appellant argues, the trial court abused its discretion in relying upon a public policy exception to the physician-patient privilege. -7- Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW: PHYSICIAN-PATIENT PRIVILEGE. Evidentiary rulings lie within the broad discretion of the trial court and will form the basis for reversal on appeal only upon an abuse of discretion which amounts to prejudicial error. Evid.R. 103(A); State v. Graham (1979), 58 Ohio St.2d 350. Thus the trial court's determination to allow the introduction of evidence relating to defendant-appellant's medical examination will only be reversed upon a finding that the trial court acted unreasonably, arbitrarily and/or unconscionably. See State v. Adams (1980), 62 Ohio St.2d 151. Evid.R. 501 states: The privilege of a witness, person, state, or political subdivision thereof shall be governed by statute enacted by the General Assembly or by principles of common law as interpreted by the courts of this state in the light of reason and experience. The General Assembly addressed the physician-patient privilege in R.C. 2317.02 which provides in pertinent part: The following persons shall not testify in certain respects: * * * (B)(1) A physician or a dentist concerning a communication made to him by his patient in that relation or his advise to his patient, except as otherwise provided in this division, division (B)(2), and division (B)(3) of this section, and except that, if the patient is deemed by section 2151.421 [2151.42.1] of the Revised Code to have waived any testimonial privilege under this -8- division, the physician may be compelled to testify on the same subject. * * * (4)(a) As used in divisions (B)(1) to (3) of this section, "communication" means acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a physician or dentist to diagnose, treat, prescribe, or act for a patient. A "communication" may include, but is not limited to, any medical or dental, office, or hospital communication such as a record, chart, letter, memorandum, laboratory test and results, x-ray, photograph, financial statement, diagnosis, or prognosis. The Ohio Supreme Court has held "[t]he purpose of this privilege is to encourage patients to make full disclosure of their symptoms and condition to their physicians without fear that such matters will later become public." State v. Antill (1964), 176 Ohio St. 61, 64-65. Since R.C. 2317.02(B) provides that communications between physician and patient are confidential, it is in derogation of the common law and must be strictly construed. See Weis v. Weis (1947), 147 Ohio St. 416, paragraph four of syllabus. The statute is worded so that the privilege applies unless it is waived, and then goes on to list instances when the waiver occurs. If the situation does not meet one of the waivers expressly set forth in the statute, the privilege is not waived. State v. Smorgala (1990), 50 Ohio St.3d 222; State, ex rel. Lambdin v. Brenton (1970), 21 Ohio St.2d 21. -9- Since the physician-patient privilege is substantive in nature, exceptions may only be created by the legislature. As the Ohio Supreme Court has held, "[j]udicial policy preferences may not be used to override valid legislative enactments, for the General Assembly should be the final arbiter of public policy." Smorgala, supra at 223. See, also, Cline v. Finney (1991), 71 Ohio App.3d 571. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING EVIDENCE PERTAINING TO THE MEDICAL EXAMINATION OF DEFENDANT- APPELLANT. We agree with defendant-appellant that the trial court erred in denying his motion in limine based solely upon what it perceived to be public policy considerations in light of Smorgala, supra. However, for the reasons hereinafter stated, we find the trial court did not abuse its discretion in admitting the evidence regarding defendant-appellant's medical examination. Initially, we note that defendant-appellant failed to preserve the court's error in admitting the "privileged communications." Defendant-appellant obviously relied on the in limine ruling as a final ruling on the privilege issue. However, an in limine ruling is only preliminary or interlocutory in nature and the trial court has an opportunity to change its mind in the course of trial. For this reason, a party prejudiced by an in limine ruling may not rest on its contention at that time, but must preserve the error by offering the excluded evidence or raising its objections anew to the objectionable evidence when the issue -10- arises again at trial. See State v. Grubb (1986), 28 Ohio St.3d 199, paragraph one and two of syllabus: The effect of the granting of a motion in limine in favor of the state in a criminal proceeding is to temporarily prohibit the defendant from making reference to evidence which is the subject of the motion. At trial it is incumbent upon a defendant, who has been temporarily restricted from introducing evidence by virtue of a motion in limine, to seek the introduction of the evidence by proffer or otherwise in order to enable the court to make a final determination as to its admissibility and to preserve any objection on the record for purposes of appeal. (State v. Gilmore [1986], 28 Ohio St.3d 190, applied.) "A denial of a motion in limine does not preserve error for review. A proper objection must be raised at trial to preserve the error." State v. Brown (1988), 38 Ohio St.3d 305, paragraph three of syllabus. See, also, State v. Hill (1996), 75 Ohio St.3d 195, 203; State v. Maurer (1984), 15 Ohio St.3d 239, 259; State v. Cherukuri (1992), 79 Ohio App.3d 228, 232 (claim of physician-patient privilege raised in limine as to admission of emergency room nurses' testimony not subsequently preserved by objection at trial); State v. Ambrosia (1990), 67 Ohio App.3d 552, 561. At the trial below, defendant-appellant made no effort to preserve the claim of privilege by objecting to the State's introduction of Dr. Ho-A-Lim's testimony or the medical records. Secondly, defendant-appellant did not go to the doctor for purposes of diagnosis and treatment. There was a family agreement that those to whom the child was exposed would all go to be tested. The family went as a group to the Express Care -11- Clinic to be tested on August 2, 1994. Defendant-appellant was tested for gonorrhea, but refused to be tested for chlamydia. Defendant-appellant agreed to be tested to satisfy the family members of his innocence, presumably under the misguided perception that, because he was not exhibiting any symptoms, he did not have gonorrhea. Dr. Ho-A-Lim did not regard him as a patient and never treated him. (Tr. 283). The purpose in going to the doctor for tests was to discover who infected the baby -- defendant-appellant did not go for the purpose of diagnosis and treatment, i.e., the communication was not made to the doctor by the patient "in that relation" as required by R.C. 2317.02(B). See Niemann v. Cooley (1994), 93 Ohio App.3d 81, 92-93: Furthermore, it is essential to any determination of these privileges to know the nature and purpose of the professional help sought. R.C. 2713.02(B) [sic] protects communications made by a patient to a medical doctor "in that relation." "Communication" is defined as "acquiring, recording, or transmitting any information, in any manner, concerning any facts, opinions, or statements necessary to enable a physician (or dentist) to diagnose, treat, prescribe, or act for a patient." (Feb. 13, 1991), Hamilton App. No. C-890531, unreported, 1991 WL 17213, since the physician- patient privilege is in derogation of the common law, Ohio courts have strictly construed it to afford protection only to those relationships enumerated in the statute, meaning only to those instances in which medical treatment was sought. Hence, if the medical examination is for another purpose, such as a physical examination made by company doctors to determine employability, the privilege does not attach. Id; see, also, Suetta v. Carnegie-Illinois Steel Corp. (App.1955), 75 Ohio Law Abs. 487, 144 N.E.2d 292; McMillen v. Indus. Comm. (App.1941), 34 Ohio Law Abs. 435, 37 N.E.2d 632; New York Cent. Rd. Co. v. Wiler (1931), 124 Ohio St. 118, 177 N.E. 205. In -12- Wiler, for example, an examination by a company physician "to inform the company of the physical condition of the [examinee], to enable the company to intelligently determine whether it could safely and profitably continue him as one of its employees" was not considered privileged. Id. at 122, 177 N.E. at 206. Third, it appears from the facts before this Court that defendant-appellant did not voluntarily consult with Dr. Ho-A- Lim. Defendant-appellant himself denied at trial that he was even tested by Dr. Ho-A-Lim. He testified that he went to the clinic at the behest of his sister. The patient-physician privilege does not attach when the visit is not voluntary and the physician does not examine or treat the patient to alleviate medical complaints. Again, the purpose of the privilege is to encourage open disclosure by the patient to the doctor in order to facilitate proper diagnosis and treatment. In re Decker (1984), 20 Ohio App.3d 203, 204; In re Smith (1982), 7 Ohio App.3d 75, 78. In the case of In re Winstead (1980), 67 Ohio App.2d 111, the court held: The crucial prerequisite for creation of the privilege is the voluntary consultation by the patient. This must be present to create the privilege in the patient, for if the patient is not voluntarily seeking help, then the underlying rationale for the privilege is not present, i.e., the promotion of free and full discourse between physician and patient. Id. at 114. Fourth, there was no expectation of confidentiality. Communications to a physician which were intended to be shared -13- with third parties (in this case, the family) are not made in the confidentiality of the physician-patient relationship. This is further manifested by the fact that the mother of the victim, who happens to be the sister of defendant-appellant, knew and testified, without objection, that the defendant-appellant tested positive for gonorrhea. (Tr. 246). The source of her information was not disclosed. If this information was communicated to her by her brother, the defendant-appellant, it demonstrates that there was no expectation of confidentiality when defendant submitted to the test. Finally, assuming arguendo that the trial court did error in admitting the evidence relating to defendant-appellant's medical examination, we find any error to be deemed harmless. Undisputed evidence was presented at trial establishing only two males were alone with the victim during the period she was infected with gonorrhea and chlamydia. It was undisputed that one of those males, Mr. Nixon, tested negative for gonorrhea and chlamydia. The other male, defendant-appellant, testified he went to the doctor's office and refused to be tested for both sexually transmittible diseases. However, defendant-appellant's testimony not only contradicts the testimony of other individuals called to the stand, but it contradicts his own sworn written statement made to the police. Mrs. Nixon testified defendant-appellant tested positive for gonorrhea on August 2, 1994. Moreover, Dr. Ho-A-Lim testified defendant-appellant came to his office and was tested on August -14- 2, 1994. The fact defendant-appellant went to the physician's office and permitted a test to be performed is outside the scope of the physician-patient privilege as defined by R.C. 2317.02(B). See, e.g., Hunter v. Hawkes Hosp. of Mt. Carmel (1989), 62 Ohio App.3d 155. Finally, defendant-appellant's testimony contradicts his own sworn statement he made to the police indicating that he did in fact go to the hospital on August 2, 1994 and was tested for gonorrhea but did not know the results. Understanding the trier of fact is primarily responsible for judging the weight of the evidence and credibility of the witnesses, State v. DeHass (1967), 10 Ohio St.2d 230, we find it reasonable for the jury to have concluded defendant-appellant was lying on the stand when he testified he did not submit to a test for gonorrhea on August 2, 1994. Given the negative test results of the only other male who had contact with the victim during the period in which she was raped, it was reasonable for the jury to infer defendant-appellant not only tested for gonorrhea, but tested positive for gonorrhea. See, also, State v. Wash (April 15, 1992), Summit App. No. 91-CA-005166, 005167, unreported. Again assuming arguendo the trial court abused its discretion in admitting the evidence in question, we find there still exists sufficient evidence from which a reasonable jury could have convicted defendant-appellant of rape beyond a reasonable doubt. For all of the above mentioned reasons, the trial court did not abuse its discretion in denying defendant-appellant's motion in limine. -15- Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Eric Conley, defendant-appellant, states as his second assignment of error: THE TRIAL COURT VIOLATED APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE CONSTITUTIONS OF THE UNITED STATES AND OF THE STATE OF OHIO BY DENYING HIS MOTIONS FOR ACQUITTAL WHEN THE EVIDENCE PRESENTED WAS INSUFFICIENT TO SUSTAIN HIS CONVICTION AS A MATTER OF LAW. A. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTIONS FOR ACQUITTAL. Defendant-appellant argues the trial court erred when it denied his motions for acquittal. Specifically, defendant- appellant argues according to the evidence produced at trial, the fact defendant-appellant had gonorrhea on August 2, 1994, while Mr. Nixon did not, is not conclusive as to which male had gonorrhea in June, when the victim was abused. Since the state failed to prove that Mr. Nixon did not have gonorrhea at the time the victim was abused, defendant-appellant argues no reasonable jury could logically conclude that only defendant-appellant, and not Mr. Nixon, could have infected the victim. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW: MOTION FOR ACQUITTAL. Under Crim.R. 29, a trial court "shall not order an entry of acquittal if the evidence is such that reasonable minds can reach -16- different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. "A motion for judgment of acquittal under Crim.R. 29(A) should be granted only where reasonable minds could not fail to find reasonable doubt." State v. Apanovitch (1987), 33 Ohio St.3d 18, 23. Thus, the test an appellate court must apply in reviewing a challenge based on a denial of a motion for acquittal is the same as a challenge based on the sufficiency of the evidence to support a conviction. See State v. Bell (May 26, 1994), Cuyahoga App. No. 65356, unreported. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: [T]he relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley [(1978), 56 Ohio St.2d 169]. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. C. AS THERE EXISTED SUFFICIENT EVIDENCE TO SUPPORT DEFENDANT- APPELLANT'S CONVICTION, THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S MOTIONS FOR ACQUITTAL. In the case sub judice, evidence was presented which establishes the eighteen-month-old victim was infected with -17- gonorrhea sometime in June of 1994. Moreover, evidence was presented which established the only two males who were alone with the victim during this time were Mr. Nixon and defendant- appellant. Evidence was presented that established defendant- appellant tested positive for gonorrhea on August 2, 1994. Finally, Mr. Nixon tested negative for gonorrhea and chlamydia approximately one month later. We find that the evidence presented at trial, if believed, could convince the average mind that defendant-appellant infected the victim with gonorrhea. Accordingly, a reasonable jury could have concluded defendant- appellant raped the victim. The trial court did not err in denying defendant-appellant's motions for acquittal. Defendant-appellant's second assignment of error is not well taken. Judgment affirmed. -18- 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 Common Pleas Court 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. JAMES D. SWEENEY, P.J., and JAMES M. PORTER, J., CONCURS. DAVID T. MATIA 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 .