COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69843 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION JOHN E. TAYLOR, JR. : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 17, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-320301. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Ralph Kolasinski Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Fred Middleton, Esq. 620 Leader Building Cleveland, Ohio 44114 SWEENEY, JAMES D., P.J.: Defendant-appellant John E. Taylor, Jr., appeals from his jury 1 trial conviction of one count of Rape [R.C. 2903.07] , where the female victim was under thirteen years of age. For the reasons adduced below, we affirm. A review of the record on appeal indicates that the trial court conducted a hearing in July 1995, prior to the commencement of the trial, relative to the competency of the victim, Sade Hardrick (d.o.b. May 28, 1986), to testify. Miss Hardrick testified to the following (R. 66-85): (1) the correct date of the competency hearing and her birthdate; (2) the name of her elementary school and her present grade, studies, and teacher; (3) the address of her home and who she lives with, including the ages of her siblings; (4) the identity of her church and the fact that she goes there on Sundays; (5) she knows the defendant's full name and his nickname of "J.T.," and the fact that the defendant lived on the upper floor of the house where she lived at the time of the offense; (6) she lived on the first floor of the house with her 1 R.C. 2907.02(A)(1)(b) provides: (A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies: * * * (b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person. - 3 - parents and two siblings; (7) defendant lived on the second floor of the house, and "Jerry" lived on the third floor of the structure; (8) her opinion of the defendant is that he is "mean" because of something the defendant did to her, so she does not like him; (9) while on the second floor of the house, at a time when her mother and Aunt Shletha were working together, the defendant touched her in her "private part" (R. 72-73); (10) it's good to tell the truth and bad to not tell the truth, and doing something bad is wrong; (11) she has failed to tell the truth in the past to her parents and has received whippings for lying, even though her parents do not like to whip her; (12) she could not recall the exact date of the offense other than it happened in the Summer of 1994 when her mother and aunt were working together; (13) she did not tell her parents about the offense right away; (14) she first told of the offense to a doctor when she went for an examination in January-February of 1995; (15) if she were to not tell the truth in court, she believed that God would punish her, because you swore on a Bible to tell the truth; (16) she was not coached as to her testimony. At the close of the hearing, the court declared the victim competent to testify pursuant to Evid.R. 601. The trial then commenced. Subsequent to opening arguments, the prosecution presented the testimony of eight witnesses, the first of whom was the victim, who repeated her earlier testimony from the competency hearing, adding in pertinent part the following (R. 104-237): (1) the defendant - 4 - was the boyfriend of the witness's Aunt, Shletha Hardrick; (2) she was on the floor of the second-floor apartment when the defendant touch her private parts with his private parts; (3) upon the direction of the defendant, she got down on the floor on her back, removed her jeans and panties; (4) the defendant removed his underwear and inserted his finger, against her will, into her vagina; (5) this insertion hurt her so he put some petroleum jelly on the vaginal area of the victim; (6) as the witness lay on her back, the defendant, against her will, laid on top of her and inserted his private part into her private part, which caused her pain; (7) the defendant sought a promise from the witness not to tell anyone, and the victim agreed not to tell; (8) the witness told of the molestation to a doctor at a hospital visit, which was several months after the offense; (9) she told no one until the doctor visit because she feared that her father would whip her; (10) the father took the girl to the hospital, at the request of the mother, because there was bleeding from the victim's genital area; (11) after telling the doctor of the offense, then telling the father, she was interviewed by the police and counselors from the Department of Human Services; (12) when she first talked to the doctor, she told the doctor that the cause of the vaginal bleeding was from having fallen from a bicycle, then she told the real cause for the injuries; (13) her mother worked the evening shift at work at the time of the offense; (14) her younger brother and sister were asleep on one of the two couches in the living room where the - 5 - television was at the time of the offense, the same room where the offense occurred; (15) she washed up and dressed after the offense in the second floor bathroom and went to sleep on the living room couch, awakening when her mother came to pick them up after work; (16) she thinks it was a cold day on the date of the offense, and the windows and doors of the second floor were closed. The second witness for the prosecution was Dr. Rachel Mathew, M.D., who testified in pertinent part as follows (R. 238-278): (1) she is a board certified pediatrician employed by Kaiser Permanente; (2) she examined the victim when the victim was brought to the hospital complaining of stomach pains, overly frequent urination and bleeding from the vagina; (3) she saw the victim two times at the hospital, the first time on February 1 and the second time on February 2; (4) the victim denied having fallen down recently; (5) examination revealed bleeding from the vagina, which was swollen and reddened, and three types of tears to the vagina, which tears were between 1 to 2 centimeters in length; (6) the bleeding was fresh, indicating recent trauma, to-wit, within 24 to 48 hours; (7) the examination of the vagina caused obvious physical pain to the victim, precluding the use of a rape kit during the first visit; (8) during the second visit, the victim told a story of having fallen off a bicycle about last year around Thanksgiving before telling about the offense on the past Monday night, at approximately 10:00 p.m., and the identity of the perpetrator; (9) sexual abuse would cause this type of trauma to the genitals; (10) - 6 - she completed a rape kit during the second visit and notified County Human Services; (11) hearing from the victim during the second visit that the offense happened on Monday night, the witness, without looking at a calendar, inserted on the report form the date of January 31, 1995 for the date of the offense; (12) no sperm was present during the examination and no sexually transmitted disease was noted; (13) the injuries to the victim were consistent with an act of sexual abuse occurring at 10:00 p.m. on the Monday before the first hospital visit. The third witness for the prosecution was Mr. Charles Hardrick, the father of the victim, who corroborated the testimony of the previous witnesses concerning his involvement with the discovery of the abuse, adding the following (R. 279-318): (1) his two other children, who are twins and the siblings of the victim, are four years old; (2) the victim's Aunt Shletha is the witness's sister; (3) he took the victim to the hospital first on Wednesday, February 1, 1995; (4) the victim was not yet menstruating at the time, so they (the parents) were concerned when they found blood in the victim's underwear on Tuesday evening, January 31, 1995, and decided to take the victim to the hospital the next day for an examination; (5) he was told by Dr. Mathews that the victim had been traumatized and her vagina torn in three places; (6) his daughter has been involved in counseling since the event and the examination; (7) after the offense, but before the examination, the - 7 - victim was withdrawn, and had nightmares in her sleep, which behaviors were not normal for the girl. The fourth witness for the prosecution was Ms. Valerie Phillips, a social worker employed by the County's Department of Children and Family Services, who testified as follows (R. 329- 337): (1) she interviews children who are the suspected victims of sexual abuse; (2) she first received information on this case on February 2, 1995, as a result of a call from the hospital which examined the victim; (3) she interviewed the victim on February 2, 1995 at 3:00 p.m. in the office of the prosecutor's sex crimes unit at the Justice Center; (4) the victim repeated her story of the offense to the witness. The fifth witness for the prosecution was Miss Anne Crowley, who is employed as a therapist with the Guidance Centers of Cleveland, and who testified as follows (R. 338-361): (1) she counseled the victim beginning in late March of 1995; (2) during the counselling, in late May to late June of 1995, the victim drew a series of pictures depicting what was done to her during the offense with handwritten annotations by the victim explaining what the pictures were; (3) the parents of the victim also participated in group therapy sessions; (4) she saw the victim for counselling a total of thirteen times. The sixth witness for the prosecution was Cleveland Police Patrolman William Feador, who testified as follows (R. 363-375): (1) on February 1, 1995, he received an assignment to meet the - 8 - victim at the hospital at approximately 5:00 p.m.; (2) he conferred with the family of the victim and spoke with the victim individually, at which time she told of the offense; (3) he wrote a report on the assignment and informed his authorities of the report, who then took over the investigation. The seventh witness for the prosecution was Dr. Laura Ann Gerak, Ph.D., a child psychologist, who testified as follows (R. 391-418): (1) she began counselling the victim on February 10, 1995, following a referral from Dr. Mathews; (2) she has seen the victim approximately fourteen times as a therapist; (3) at the first meeting, the victim indicated to the witness that the offender was the defendant; (4) the victim indicated to the witness that the defendant molested her once, but specifics were not discussed; (5) the victim expressed fear of the defendant; (6) initially, the victim indicated that sexual abuse by the defendant occurred in October-November of 1994, then revised that statement to include the offense in late January; (7) it is common in cases of juvenile sexual abuse for the victim to be inconsistent with dates and time due to the fact that children have difficulty conceptualizing time and often try to block out the offense from memory. At this point the prosecution rested subject to the admission of exhibits. The defense then made a motion for acquittal pursuant to Crim.R. 29. Subsequent to lengthy oral argument, the trial court denied the motion for acquittal, while agreeing with the - 9 - defense to confine the jury to whether a rape occurred between January 29 to February 1, 1995. In the defendant's case-in-chief, the defense offered the testimony of three witnesses. The first witness for the defense was Miss Shletha Hardrick, the victim's aunt, who testified in pertinent part as follows (R. 447-483): (1) at the time of the offense in late January of 1995, the defendant was her fiance, and Mr. Alvin Ward was living with them and sleeping on a living room couch; (2) the defendant is the father of her three children (ages three, five and seven); (3) ill feelings between the victim's family and the witness's family developed over the Christmas 1994 period due to financial concerns over a debt of $130.00 owed by the witness, so the respective parents forbade their children from going to the other family's living quarters; (4) she observed the victim in the witness's home on Monday, January 30, 1995, for several minutes, but the victim went back downstairs and never returned to the apartment; (5) the witness was home the entire evening of Monday, January 30, 1995, and the victim was not at the apartment during that time, nor was the defendant there; (6) on Sunday, January 29, 1995, the witness was at her mother's home, returning to the apartment between 7:00 and 8:00 p.m., at which time her family ate dinner and watched television before going to bed around 11:00 p.m.; (7) on January 31, 1995, she was with her family the entire evening and she did not see the victim the entire day; (8) while at her mother's home on the evening of January 31, - 10 - 1995, she overheard her brother (the victim's father) telephone their mother, in which conversation the topic of the daughter/victim's ability to menstruate was discussed; (9) at no point in late January of 1995 did the defendant babysit the victim; (10) the defendant did, on occasion, babysit the victim and her siblings during the period of May 1994 to February 1995, specifically no later than the last week of October 1994, when the witness and the victim's mother ceased working together on evening shifts. The second witness for the defense was Mr. Alvin T. Ward, who testified in pertinent part as follows (R. 484-512): (1) the previous witness is his niece, with whom he was living from the second week of January 1995, to February 1995; (2) he and the defendant, who spent the entire day together, watched the National Football League's Super Bowl together on television on the evening of Sunday, January 29, 1995, before going to sleep around 11:00 p.m. that evening; (3) the victim was not at the apartment the entire time of January 29, 1995; (4) on Monday, January 30, 1995, the witness arrived home from work around 4:00 p.m., finding the defendant there; (5) no one besides the witness, the defendant, Miss Hardrick and the defendant's three children came to the apartment the rest of that day, January 30, 1995; (6) the witness was with the defendant the entire evening of January 30, 1995; (7) on Tuesday, January 31, 1995, the witness was picked up at 8:00 p.m. at a friend's house by Miss Hardrick and the defendant, at - 11 - which time the trio returned to the apartment for the evening; (8) the victim was not at the apartment during the evenings of those three days in January, nor did the defendant babysit the victim during those days; (9) the witness worked during the day on normal business days, usually arriving home shortly before the defendant. The defendant testified on his own behalf as the third witness for the defense, generally corroborating the testimony of the other defense witnesses, adding in pertinent part as follows (R. 513- 545): (1) he stayed at home on the morning and afternoon of Tuesday, January 31, 1995, due to a work shutdown caused by a power outage; (2) he denied ever having sexual contact with the victim; (3) on Monday, January 30, 1995, he was home alone from 10:30 a.m. to 4:30 p.m., at which time Mr. Ward came home. At this point the defense rested. The defense then renewed its motion for acquittal, which the court again denied. (R. 552.) Subsequent to closing arguments, the court issued its jury instructions. Following its deliberations, the jury returned a verdict of guilty. The court, recognizing that the offense was non-probationable, then sentenced the defendant to 5 to 25 years imprisonment plus court costs. (R. 633.) This timely appeal followed presenting seven assignments of error. The first and second assignments will be discussed together since they both argue matters pertaining to the testimony of the child-victim. - 12 - I THE COURT COMMITTED REVERSIBLE ERROR WHEN IT IMPROPERLY ALLOWED THE COMPLAINING WITNESS TO TESTIFY WITHOUT HAVING BEEN SWORN UNDER OATH OR AFFIRMATION OVER OBJECTION OF THE DEFENDANT. II A WITNESS UNDER AGE (10) TEN WAS NOT COMPETENT TO TESTIFY WHEN THE WITNESS NEVER EVIDENCED AN UNDERSTANDING OF AN OATH AND NO OATH WAS ADMINISTERED IN THE COMPETENCY HEARING NOR THE STATE'S CASE-IN-CHIEF. Evid.R. 601 provides in pertinent part the following: Every person is competent to be a witness except: (A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly. Evid.R. 603 provides as follows: Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so. R.C. 2317.30 provides as follows: Before testifying, a witness shall be sworn to testify the truth, the whole truth, and nothing but the truth. To overcome the rebuttable presumption that children under ten years of age are incompetent to testify, State v. Lee (1983), 9 Ohio App.3d 282, the trial court must determine whether the witness has the intellectual capacity to recount the facts accurately, and must further determine whether the witness understands the - 13 - necessity of telling the truth. Id. at 283. Also State v. Workman (1984), 14 Ohio App.3d 385, 388. This determination by the trial court will be overturned on appeal only where an abuse of discretion is demonstrated. State v. Lee, supra, at 283; State v. Hogan (June 8, 1995), Cuyahoga App. No. 66956, unreported. Additionally, the "Ohio Supreme Court has held that an oath or affirmation is a prerequisite to the testimony of a witness and it is error for a trial court to rely upon unsworn testimony in reaching its decision." Cleveland v. Cuyahoga Metropolitan Housing Authority (January 24, 1991), Cuyahoga App. No. 57954, unreported, citing Allstate Ins. Co. v. Rule (1980), 64 Ohio St.2d 67. However, it is equally clear that no particular recantation of words is necessary so long as the officer who administers the oath or affirmation and the person receiving it understand that the truth is sought in the testimony to follow. Walker v. State (1910), 18 Ohio C.C.(N.S.) 1. Additionally, in noting that no specific words are required, the Staff Notes to Evid.R. 603 indicate that the rule is designed to provide "flexibility in dealing with children." In the present case, both at the voir dire of the child victim and prior to the child victim testifying at trial, the trial court questioned the witness as to her ability to tell the truth, the difference between truths and lies, the consequences for not telling the truth and the ability of the witness to relate just impressions of the facts in compliance with Evid.R. 601. The child - 14 - stated to the court that she would tell the truth. Accordingly, we conclude that the trial court complied with the requirement of Evid.R. 603. See State v. Frazier (1991), 61 Ohio St.3d 247; State v. Almond (September 20, 1990), Cuyahoga App. No. 57483, unreported, 1990 Ohio App. LEXIS 4085. The first and second assignments of error are overruled. III A VIOLATION OF THE DEFENDANT'S DUE PROCESS RIGHTS OCCURRED WHEN THE COURT DISREGARDED THE PRINCIPLE THAT IN A CRIMINAL PROSECUTION THE STATE MUST, IN RESPONSE TO A REQUEST FOR A BILL OF PARTICULARS OR DEMAND FOR DISCOVERY, SUPPLY SPECIFIC DATES AND TIMES WITH REGARD TO AN ALLEGED OFFENSE WHERE IT POSSESSES SUCH INFORMATION. Appellant argues that the Bill of Particulars provided by the State during discovery did not provide the date of the offense, that the State provided the date of the offense for the first time during the trial, and that the Bill of Particulars date of the offense was in conflict with the date of the offense provided at trial. This argument is without merit. The record reflects that the Bill of Particulars, which was filed on March 31, 1995 (approximately three months before the scheduled trial), lists the date and place of the offense as between "the 29th day of January, 1995 to the 1st day of February, 1995," in the apartment which was the defendant's home. This date of offense matched the date of the offense contained in the indictment. The trial court limited the jury to the date of the offense contained in the Bill of Particulars. The date of the - 15 - offense which formed the basis for the State's theory of the case clearly related to the time frame for the offense as identified by the treating physician, Dr. Mathew. We find that the State complied with its duty to provide discovery on the matters which it had knowledge of and did not change the dates of the offense to the detriment of the defendant. The third assignment of error is overruled. IV THE COURT COMMITTED REVERSIBLE ERROR WHEN AN EXPERT WITNESS WAS ALLOWED TO TESTIFY AS TO THE EXPERT'S OPINION OF THE VERACITY OF THE STATEMENTS OF A CHILD DECLARANT OVER THE OBJECTION OF THE DEFENDANT. The testimony of which the appellant complains was elicited from Dr. Laura Gerak. Appellant argues that Dr. Gerak expressed her expert opinion concerning the truthfulness of the child witness's statements in violation of case law precluding such opinion. See State v. Boston (1989), 48 Ohio St.3d 108. Reviewing the testimony at issue reveals that Dr. Gerak did not give her opinion as to the truthfulness of the victim's statements concerning the date of the offense. Instead, Dr. Gerak testified concerning how a child of the victim's age perceives and communicates the concept of time, which often leads to inconsistencies in the child's testimony relative to aspects regarding time. It was Dr. Gerak's expert opinion that children around the age of eight years old form their concept of time in a conceptual basis versus a concrete basis, preventing the child from - 16 - accurately expressing time, and it is this conceptual basis of time which explains the discrepancy in dates by the victim. The doctor did not state that it was her opinion that the child's statements regarding the dates of the offense were truthful. Further, it is common according to the doctor, for children to block out the offense while at the same time admitting that the offense happened, thus explaining why a child's story of an offense switches around a lot. The fourth assignment of error is overruled. V PRIOR INCONSISTENT STATEMENTS OF A WITNESS DO NOT CONSTITUTE SUBSTANTIVE EVIDENCE IN A CRIMINAL TRIAL AND THEY ARE EVIDENCE WITHOUT PROBATIVE VALUE. In this assignment, appellant argues that the court erred in admitting the child-victim's handwritten statements (Defendant's Exhibits A and B) made to social worker Anne Crowley during counseling sessions, which statements noted the date and perpetrator of the offense, on the basis that such prior statements are unsworn. These two exhibits are defense exhibits, offered by the defense without objection by the prosecution. Even if such statements were unsworn, which we do not concede and need not address for purposes of this appeal, any error in their admission into evidence was invited by the defense and the appellant cannot on appeal seek to undo that error and any prejudice it may have - 17 - caused at trial. State v. Kneip (1993), 87 Ohio App.3d 342. The fifth assignment of error is overruled. VI THE COURT COMMITTED PREJUDICIAL ERROR WHEN IT ALLOWED OUT-OF-COURT STATEMENTS OF PRIOR IDENTIFICATION THAT ARE NOT SUBJECT TO CROSS EXAMINATION UNDER OATH AND FOUND RELIABLE BY A JUDGE TO BE ADMITTED AT TRIAL THROUGH A THIRD PERSON TO WHOM THE IDENTIFICATION WAS MADE. Appellant argues that pre-trial statements of the victim, which identified the defendant as the offender, made to a number of State witnesses (Dr. Mathew, Anne Crowley, Valerie Phillips, Officer Feador, Dr. Gerak), were hearsay when recounted at trial and should not have been admitted. This argument is without merit. The extra-judicial statements of the child-victim made to the social workers, clinical therapists and doctors, which were made for the purpose of medical diagnosis and treatment of the victim, are admissible under Evid.R. 803(4). State v. Dever (1992), 64 Ohio St.3d 401; State v. Spencer (June 6, 1996), Cuyahoga App. No. 69490, unreported, at 6-7, 1996 WL 304083. Furthermore, while being mindful that a trial court is given broad discretion in determining whether the declarant was still under the influence of nervous excitement at the time the statement was made, the statement made to the police officer is admissible as an excited utterance exception to the hearsay rule under Evid.R. 803(2). State v. Spencer, supra, at 7, citing State v. Wagner (1986), 30 Ohio App.3d 261, 262. Even if we were to characterize the statement made to the officer as hearsay, any error in its - 18 - admission was harmless given the plethora of other testimony concerning the victim's recounting of the offense and the perpetrator. The sixth assignment of error is overruled. VII THE STATE FAILED TO PROVE ITS CASE BEYOND A REASONABLE DOUBT AND THE CASE SHOULD BE DISMISSED BASED ON THE MANIFEST WEIGHT OF THE EVIDENCE. In this assignment, appellant argues that the conviction was not supported by either the sufficiency or the weight of the evidence. Appellant's argument is supported by relying solely on his arguments contained in the previous assignments of error. Having found these previous assignments to be without merit, we conclude that the conviction was supported by the weight and sufficiency of the evidence. See Jackson v. Virginia (1979), 443 U.S. 307; State v. Jenks (1991), 61 Ohio St.3d 259; State v. DeHass (1967), 10 Ohio St.2d 230; State v. Martin (1983), 20 Ohio App.3d 172. The seventh assignment of error is overruled. Judgment affirmed. - 19 - 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. ANN DYKE, J., and TERRENCE O'DONNELL, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .