# Petition for Writ of Certiorari — Dever v. Ohio

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 1009

## Text

() | Supreme Court, U.S,
9 0-6 63 4 FILED
OCT 29000
No. JOSEPH F. SPANIOL, JR,
— as

In The ai

Supreme Court of the United States
October Term, 1990

>

FREDERICK M. DEVEK, JR.,

Petitioner,
versus

THE STATE OF OHIO,
Respondent.

PETIL ION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEALS, FIRST APPELLATE
DISTRICT, HAMILTON COUNTY, OHIO

ANDREW B. DENNISON

200 Main Street

Batavia, Ohio 45103
Telephone (513) 732-6800

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING ©O., (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether the petition was denied his right of confron-
tation granted to him by the Sixth and Fourteenth
Amendments of the Constitution of the United States by
the admission of testimony, pursuant to Rule 803(4), Ohio
Rules of Evidence, in petitioner’s trial, over his objection,
from a physician concerning statements made to that
physician by a young child pertaining to sexual abuse
and the identification of the alleged perpetrator, where
there was no evidence of abuse or physical or emotional
injury, no evidence of the child-declarant’s motive in
making statements, for which the evidence was that the
child did not understand the purpose for questions and
examination, resulting in no evidence before the trial
court that the statements by the child pcssessed any
indicia of reliability, established a particularized guaran-
tee of trustworthiness, or met the firmly rooted purpose
of a Rule 803(4) admission, in which the admission of that
hearsay deprived petitioner of his rights under the Con-
frontation Clause.

ii

PARTIES TO THE PROCEEDING BEFORE THE
COURT OF APPEALS, FIRST APPELLATE
DISTRICT, HAMILTON COUNTY, OHIO

The caption of the case in this Court contains the
names of all parties.

iii
TABLE OF CONTENTS

Question Presented For Review ..............+++++00+5 i

Parties to the Proceedings Before the Court of
Appeals, First Appellate District, Hamilton

os Serer rT Tree eee eee ii
Opinions Below .............ccccccecteccessccecens 1
cee heen wa couse ceed nsereeeeescers 2
Constitutional, Statutory and Rule Provisions

CC GRSUSGRAWSh 55650 ess accosscvccccenevesce 2
Statement Of the Case ....... 2.2... ccc ccce cc ccccees 3
Reasons for Granting the Writ...................-- 10
PUSS kwyec kee sccsecccscsccscecsesevssscenes 12
ECAR 554 deb nde bet vase nicescsencvenwsis 20
0 aT tT tS eee eee eee App. 1

iv

TABLE OF AUTHORITIES

Pages
CASEs:
California v. Green, 399 U.S. 149 (1970) ............. 15
Cassidy v. State, 74 Md. App. 1, 535 A.2d 667

PRS) esha cecal cd ewes abs cckce eee be iatasenin 18
Chapman v. California, 386 U.S. 18 (1967)........... 20
Idaho v. Wright, __ U.S. __, 110 S.Ct. 3139 (1990)

oo SRL CERES A 0 Ha awk eek Ow uke besddes cad 10, 16, 17, 19
Lee « Eiimete, 476 US. SSO CISGS) . ww. wc ccc cc ccccss 18
Ohio v. Roberts, 448 U.S. 56 (1980).................. 15
Pointer v. Texas, 380 U.S. 400 (1965) ................ 10
State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220

GUO wee U bv aveddvesuardacseynecesasbncscseces passim
State v. Eastham, 39 Ohio St.3d 307, 530 N.E.2d

ig ike OC eee 13
United States v. Renville, 779 P.2d 430 (8th Cir.,

URES Seg Nee ey SRS Tare EN AI oe pe ONES 5, 18
CONSTITUTIONAL PROVISIONS:

Sixth Amendment, Constitution of the United

iia ee wo sedis cba aveoenanecd 2, 5, 10, 19, 20
Fourteenth Amendment, Constitution of the

SRR TSAR ray alias Saat AL Va Poa ae Te 2, 10
STATUTES:

Section 2907.02, Revised Code of Ohio............. 2,3

Section 2907.05, Revised Code of Ohio...... oe aot ss 2,3

Vv

TABLE OF AUTHORITIES —- Continued

Pages
RULEs:
Rule 102, Rules of Evidence, Title 23, Revised
I a ee eas CRA GRAOS 2, 16
Rule 601(A), Rules of Evidence, Title 23, Revised
eee ae whabeeaenen 2, §, 15
Rule 803(4), Rules of Evidence, Title 23, Revised
GE SE 5 da av KR bee NSndeiladndnd cecenene passim
Rule 803(24), Idaho Rules of Evidence ............. 17

Rule 804(A)(3), Rules of Evidence, Title 23,
ey RU GIs bs CG's a Gk 0 o's u'vcs ssasse 2, 9, 15

No.

+o
In The

Supreme Court of the United States

October Term, 1990
+

FREDERICK M. DEVER, JR.,
Petitioner,

versus

THE STATE OF OHIO,
Respondent.

,%
ag

PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEALS, FIRST APPELLATE
DISTRICT, HAMILTON COUNTY, OHIO

4

OPINIONS BELOW

The orders of the Supreme Court of Ohio overruling
petitioner’s motion for leave to appeal and his claimed
appeal as of right and the denial of petitioner’s motion
for rehearing are unreported and set forth as Appendices
A and B, respectfully. The opinion of the Court of
Appeals, First Appellate District, Hamilton County, Ohio,
affirming the conviction of petitioner is unreported and
set forth herein as Appendix C. The journal entry of the
Court of Common Pleas, Hamilton County, Ohio, finding
the child not competent to testify is unreported and set
forth herein as Appendix D.

-.
.

1

JURISDICTION

The Court of Appeals, First Appellate District, Ham-
ilton County, Ohio, affirmed the judgments and sentence
of the Court of Common Pleas, Hamilton County, Ohic,
on January 31, 1990. The Supreme Court of Ohio refused
to accept petitioner’s appeal and dismissed the motion
for leave to appeal and the appeal as of right on June 15,
1990. The Supreme Court of Ohio denied petitioner's
motio» for rehearing on July 25, 1990.

The jurisdiction of this Court is founded upon the
presence of federal questions governed by the Constitu-
tion of the United States as a continuity of state appellate
review to provide procedural and substantive due pro-
cess safeguards within the state of Ohio’s criminal justice
system. The issue raised for review is denial of peti-
tioner’s right of confrontation vested to him by the Sixth
and Fourteenth Amendments of the Constitution of the
United States.

The jurisdiction of this Court is invoked under 28
U.S.C. Section 1257(3) and Part III of the Rules of this
Court.

—

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The Sixth and pertinent provisions of the Fourteenth
Amendments of the Constitution of the United States are
set forth in Appendix E. The pertinent provisions of
Section 2907.02, Revised Code of Ohio, and Section
2907.05, Revised Code of Ohio, are set forth in Appendix
F. Rules 102, 601(A), 803(4) and 804(A)(3), Rules of

Evidence, Title 23, Revised Code of Ohio, are set forth in
Appendix G.

>

STATEMENT OF THE CASE

Petitioner was convicted by jury of the crime of rape
in violation of § 2907.02, Revised Code of Ohio, and of
the offense of gross sexual imposition in violation of
§ 2907.05, Revised Code of Ohio. On October 12, 1988,
petitioner was sentenced for the rape offense by the
Court of Common Pleas, Hamilton County, Ohio, to a
term of incarceration in the Ohio penal system of not less
than 10 nor more than 25 years, with a provision for
actual incarceration of five years. The trial court imposed
no sentence for the offense of gross sexual imposition
finding that it merged with the crime of rape.

Petitioner’s convictions rested upon the testimony of
Ann Saluke, M.D., a pediatrician who examined peti-
tioner’s daughter on October 23, 1987, two days after the
alleged sexuai abuse averred in the indictment: October
21, 1987. Dr. Saluke was permitted to testify, over peti-
tioner’s objection on hearsay and Confrontation “lause
violation grounds, as to the following:

Q. Doctor, what did Kristen tell you hap-
pened?

A. Kristen told us that her father put his pee
pee in her mouth and there was some white
stuff that had a yucky taste and also that he put
his hands on her pee pee and his pee pee on her
pee pee and she identified her genital area as

pee pee.

Q. Did she identify what she meant by father’s
pee pee?

A. The same area.

Q. Okay, now did she describe that taste any
further besides yucky taste?

A. She described it as mashed potatoes with
butter.

At the time of Dr. Saluke’s examination petitioner’s
child was four and one-half years old. The duration of the
entire examination of the child was 30 minutes. Dr.
Saluke stated that there was no finding of abuse and the
examination and tests administered neither confirmed
nor disproved sexual abuse.

Dr. Saluke stated that she did not recall the child’s
specific responses of whether the child understood why
she was being asked questions by the physician. At the
commencement of the questioning, petitioner’s daughter,
according to Dr. Saluke, “seemed to kind of jump from
topic to topic and didn’t really seem to be answering our
questions and she kept looking at her mother and looking
around the room and changing the subject.” The child’s
mother left the room and Dr. Saluke then asked the child
what happened.

Petitioner objected to Dr. Saluke’s testimony of the
child-declarant’s statements on the basis that there was
no adequate showing by the prosecution that the child
understood the reason for the examination and the
request for identification of the purported offender; that
there was no evidence of any adequate understanding
between patient and physician and that the child did not
understand what was being asked or that identification

would be necessary for diagnosis or treatment bearing
upon motive for the response; that there was nothing to
establish reliability and trustworthiness of any statement;
and that the purpose was for investigation not medical
treatment from which petitioner was denied his right of
confrontation granted to him by the Sixth Amendment of
the Constitution of the United States.

The trial court overruled the objection finding that a
sufficient foundation was present within medical history
reasonably pertinent to treatment and that United States v.
Renville, 779 F.2d 430 (8th Cir., 1985) was controlling.

Dr. Saluke described the protocol and “customary”
practice of examining potentially abused children before
she related the declarant’s statements set forth above. No
testimony was presented by Dr. Saluke concerning how
the protocol and the “customary” practice generally
employed in child abuse cases was applied to petitioner’s
child.

Before trial a hearing was conducted by the Court of
Common Pleas on April 5, 1988, approximately five
months after the alleged abuse, to examine the child, then
five years of age, to determine her competency to testify
pursuant to Ohio Evid.R. 601(A). She recalled the past
Halloween (the period of the criminal allegation) and that
in that period she went to a hospital, talked with doctors,
remembered pictures presented to her and that she had
placed marks on those pictures. Referring to a picture
(apparently of the genitals) she was asked if that was a
“pee pee” and she responded that she didn’t know. When
asked whether she had been touched in the genital area
she replied, “no” and offered no reason for why she had

circled a portion of a picture exhibited to her. (That
picture was never made a part of the record). She further
stated that she had not seen that part (assumed to depict
the genitals) of her “daddy” before and that no one had
touched that part of her body in the past.

The child did not recall the names of persons with
whom she met, but recalled meeting with hospital per-
sonnel. She did not remember telling anyone that her
father had her touch his penis. The child did not recall
telling someone that “white stuff” came from “daddy’s
pee pee,” explaining that it was bubbles, and she didn’t
know whether the bubbles came from his penis. Respon-
ding to where it happened, she said it was in the bathtub
and that her father told her to count to 100, but she
counted to 11. (This information was directly related to
the subsequent trial testimony of Diane Potter). Asked
whether the bubbles ever got on her hands, she replied,
“no” and that she had not told anyone that it had. She
stated that she had never touched her father’s penis with
her hands and that he had never asked her to do so.

At that point, and without the opportunity for peti-
tioner to inquire of the child, the trial court excused the
child, precluding any examination by petitioner. The trial
court ruled that the child understood the difference
between truth and falsity and that she was a bright little
girl. The judge held: “[t]he problem is she just can’t relate
what happened in this instance two years ago if it did
occur, and for that reason I can’t find her competent
under Rule 601 to testify as a witness under this test.”
The court, however, was in error as to the two-year-time
interval: the offense was alleged to have happened on

October 21, 1987; the competency hearing was a little
over five months after the alleged abuse.

Petitioner filed a motion in limine with the trial court
on June 17, 1988, seeking the exclusion of any evidence of
statements made by the child on the grounds of hearsay
and denial of petitioner’s right of confrontation. That
motion was heard by the Court of Common Pleas on
August 29, 1988, at which time the trial court postponed a
ruling; the trial court recognized the issue to be the
reliability of the declarant’s statements and the substan-
tial guarantee of trustworthiness, vel non, associated with
the Sixth Amendment’s right of confrontation.

At trial the respondent presented two witnesses in
addition to Dr. Saluke: Diane Potter who lived in the
apartment above petitioner and Specialist Mike Wilson,
Mariemont, Ohio, Police Department, who received a
report from Ms. Potter and conducted an investigation.

Ms. Potter testified that on October 21, 1987, around
10:00 o’clock p.m. she was in her bathroom and heard the
child “whining” and her father “arguing”. She stated that
she heard the child crying and her father saying “come
on, it will take only a minute,” and the child responding,
“no, daddy, I’m sleeping.” The witness then “heard a
toilet seat” and knew that they were in the bathroom. At
that point Ms. Potter heard petitioner groaning and she
listened carefully. She heard petitioner tell his daughter
to count to 600 and heard her counting. She then heard
petitioner remark that it “feels rea! good,” and the child
say, “does that feel good daddy” with an affirmative
response from petitioner and his instruction to continue
to count. Ms. Patten then testified that she heard the child

say, “you got it all over my hand” and petitioner respond,
“yes, I got it all over you didn’t I.” Ms. Potter left her
house and telephoned the police.

Specialist Wilson received the telephone call from
Ms. Potter and at the officer’s request she came to the
police department where a detailed report was prepared.

The following day, October 22, 1987, the officer spoke
with the child’s mother and the child was removed from
the home to a relative’s residence without revealing the
reason to petitioner. On October 23, 1987, the policeman
spoke with petitioner and the tenor of that discussion is
not reported. That same day Specialist Wilson spoke with
the child and her mother and they were taken by the
officer to be interviewed by a social-worker member of
the sexual abuse intervention team for the Hamilton
County Department of Human Services. The officer’s
information was communicated to the social worker. An
interview of the child was conducted by the social
worker, in the presence of the officer, of approximately
30-to-40 minutes. The tenor of that discussion and the
circumstances of the interview is not in the record. The
child and her mother were taken by officer Wilson to
Children’s Hospital where the child was examined by Dr.
Saluke.

On appeal the confrontation issue was raised and
preserved although the appellate court did not directly
address that issue in its decision affirming the conviction.
The Court of Appeals affirmed petitioner’s conviction on
the authority of State v. Boston, 46 Ohio St.3d 108, 545
N.E.2d 1220 (1989), decided during the pendency of peti-
tioner’s appeal. The appellate court incorrectly stated the

dates of the offense and interviews of the child as Febru-
ary rather than the correct month as October, and incor-
rectly placed the age of the child as three and one-half
years old when she was in fact four and one-half years
old, which was of significance in the erroneous finding
that the child was three and one-half years at the time of
the alleged offenses and five and one-half years of age at
the time of the proceedings. This in part may have been
the result of the appellate court adopting the statement of
the trial court’s determination of the competency issue in
which the trial court erroneously stated: “[t]he problem is
she just can’t relate what happened in this instance two
years ago, if it did occur.”

The Court of Appeals followed the State v. Boston,
supra, guidelines, but disregarded the Ohio admissibility
test requiring specific and independent evidence of phys-
ical or emotional abuse. The appellate court further con-
cluded that “the trial court precluded the victim from
testifying because she could not remember the events
constituting the alleged crime.” The record, however,
does not suppozt a finding by either the trial or appellate
courts to conclude that the child could not remember the
events, rather an inference was drawn by both courts that
while the child remembered things very well she stated
that nothing happened and it is that statement from
which the erroneous conclusion was reached that the
child didn’t remember the events which constituted a
crime. A lack of memory of the subject matter to qualify
the child as an unavailable witness pursuant to Evidence
Rule 804(A)(3) was not warranted from the record.

10

Petitioner presented the constitutional issue to the
Supreme Court of Ohio, but that court declined jurisdic-
tion to address the issue and denied rehearing although
petitioner advised that court of this Court’s decision
released June 27, 1990, Idaho v. Wright, __ U.S. __, 110
S.Ct. 3139, which was submitted as adequate authority on
the constitutional issue raised by this case.

sa.
vv

REASONS FOR GRANTING THE WRIT

Petitioner seeks a review by this Court to recognize
his deprivation of confrontation in a criminal prosecution
as granted te him by the Sixth Amendment of the Consti-
tution of the United States and as the Confrontation
Clause is made applicable to the states by the Fourteenth
Amendment. Pointer v. Texas, 380 U.S. 400, 403, 406 (1965).

Prior to trial and during a witness-competency hear-
ing the court terminated the examination and released the
child witness precluding petitioner from making any
inquiry or otherwise exercising his right of confrontation.
During the trial, over petitioner’s objection on hearsay
and Confrontation Clause repugnancy grounds, the
examining physician, who found no evidence of any
physical or emotional sexual abuse and concluded that
there was neither confirmed nor disproved sexual abuse,
was permitted to state what the child had allegedly told
that physician, including the identity of the alleged per-
petrator, petitioner. The physician’s testimony was
received by the trial court pursuant to Ohio’s Evid.R.
803(4). However, the respondent offered no evidence to

11

support an indicia of reliability and a particularized guar-
antee of trustworthiness of the child’s statements to the
physician, relying solely upon the hearsay exception cod-
ified in Ohio Evid.R. 803(4). Significuntly, the physician
could not state that the child, age four and one-half years,
understood or appreciated the purpose for the questions
or examination, or in any manner responded with a
motive which sought medical treatment.

A four and one-half-year-old child possessing no
apparent or discernible injury, physical or emotional, of
whom the record reflects does not understand the pur-
pose for the questions and examination, is not an individ-
ual to whom her statements can be ascribed as reliable
and trustworthy in responses to questions by a physician
in accord with the purpose for a firmly rooted hearsay
exception recognized by Evid.R. 803(4). The failure to
show a particularized guarantee of trustworthiness and
the presence of some indicia of reliability by the respon-
dent deprives petitioner of his right of confrontation.

+.
vr

12

ARGUMENT

Whether the petitioner was denied his right of confron-
tation granted to him by the Sixth and Fourteenth
Amendments of the Constitution of the United States
by the admission of testimony, pursuant to Rule 803(4),
Ohio Rules of Evidence, in petitioner’s trial, over his
objection, from a physician concerning statements made
to that physician by a young child pertaining to sexual
abuse and the identification of the alleged perpetrator,
where there was no evidence of abuse or physical or
emotional injury, no evidence of the child-declarant’s
motive in making statements, for which the evidence
was that the child did not understand the purpose for
questions and examination, resulting in no evidence
before the trial court that the statements by the child
possessed any indicia of reliability, established a partic-
ularized guarantee of trustworthiness, or met the firmly
rooted purpose of a Rule 803(4) admission, in which the
admission of that hearsay deprived petitioner of his
rights under the Confrontation Clause.

Statements made to a physician during examination
for purposes of medical diagnosis and treatment are tra-
ditionally trustworthy and reliable as recognized under
the common law and as codified by Ohio’s Evid.R. 803(4)
and its counterpart in federal courts, and in several sister-
states. The essence of this hearsay exception codified in
Evid.R. 803(4) is the circumstantial guarantees of trust-
worthiness of statements made for the purpose of treat-
ment being found to exist in a person’s motive for
seeking treatment.

Ohio recognizes the reliability of statements made by
patients to physicians as derived from the presumption
that the patient will be truthful about one’s physical
condition because of the risk of harmful treatment result-
ing from false statements, motivating the declarant to tell

13
the truth. State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d
1220, 1225, 1233 (1989); State v. Eastham, 39 Ohio St.3d

307, 530 N.E.2d 409, 413 (1988). (H. Brown, J., concur-
ring).

The rationale of Evid.R. 803(4) to create a hearsay
exception and to remove implication of the Confrontation
Clause in the admission of a young child’s statements to a
physician requires a showing by the proponent of the
statements that there is some indicia of reliability and a
particularized guarantee of trustworthiness for the
admission of the statements. At the least, the proponent
for admission of the out-of-court statements must estab-
lish that the child understood the purpose for the ques-
tions seeking the statements and was motivated to tell the
truth for purposes of the examination leading to diag-
nosis and potential treatment. In short, the state of mind
of the declarant at the time that the statements were
made must be established as being within the rationale of
Evid.R. 803(4).

Ohio has recognized the state-of-mind fault in the
Evid.R. 803(4) admission of a child-declarant’s statements
through the testimony of a physician: “[w]e have serious
reservations, in this case, that this is correct and in other
cases as well where the child involved is of tender years.”
State v. Boston, 545 N.E.2d, at 1233. The court acknowl-
edges that in order to comply with Evid.R. 803(4), the
child’s statement must have been motivated by her desire
for medical diagnosis or treatment. State v. Boston, 545
N.E.2d, at 1234. The Boston plurality observed that to
avoid the predicament of ascertaining a very young
child’s motivation in child abuse cases, some Ohio courts
have applied Evid.R. 803(4) and, in other jurisdictions its

14

pertinent counterpart, as if there were no motivational
component. Id.

The Boston court acknowledges that several authori-
ties considering the application of Evid.R. 803(4) in child
abuse cases involving young children admit testimony of
experts concerning a declarant’s out-of-court statements
without considering the motive of the child in making the
statement. 545 N.E.2d, at 1234. “The reason is that we
really know that such a young child is not giving the
doctor the information for the required purposes required
by Evid.R. 803(4). More than likely, the child does not
even want to be seeing the doctor!” State v. Boston, 545
N.E.2d, at 1234. The use of Evid.R. 803(4) under such
circumstances fails to establish the purpose required by
the rule and a fortiori the reliability of the child’s out-of-
court statements to a physician.

The underlying rationale attributing reliability for
the admission of a child-declarant’s out-of-court state-
ments through an examining physician pursuant to
Evid.R. 803(4) is significantly undermined. Where the
facts of this case implicating the Confrontation Clause
consist of the 30-minute interview by the physician which
produced no discernable evidence of sexual abuse cou-
pled with the child’s unresponsiveness to the physician’s
interview and the physician’s acknowledgement that she
didn’t know if the child understood the reason or pur-
pose for the questioning and the examination, one must
conclude that there is no indicia of reliability and signifi-
cant absence of any guarantee of trustworthiness to be
attached io the declarant’s out-of-court statements.

od

15

Petitioner’s child was not subjected to cross-examina-
tion at the competency hearing based upon the trial
court’s determination that she was incompetent to testify
under Evid.R. 601(A). That court terminated the child’s
examination without cross-examination by petitioner. The
child was not presented at trial to testify. The damning
hearsay testimony was admitted in the course of trial on
the basis of the child’s determination of incompetency as
a witness pursuant to Evid.R. 601(A) and on appeal by
the determination by the appellate court that the child
was an unavailable witness pursuant to Evid.R. 804(A)(3).

California v. Green, 399 U.S. 149, 159 (1970), controls
on the proposition that the child’s unavailability for
cross-examination precluded petitioner from testing her
truthfulness.

Applying the constitutional standard announced by
Ohio v. Roberts, 448 U.S. 56, 65 (1980), admission of the
out-of-court statements of an unavailable declarant does
not infringe on a defendant’s right of confrontation if the
proponent of the statement makes a good-faith effort to
produce the declarant and the proposed hearsay state-
ments have sufficient indicia of reliability to satisfy the
fundamental reason and policy of the hearsay exception
being used.

The essence of the Confrontation Clause issue raised
here is the admission of the child’s statements through
Dr. Saluke absent any evidence of a “particularized guar-
antee of trustworthiness;” those statements did not have
sufficient indicia of reliability to satisfy the essential pol-
icy and reason of the hearsay exception utilized for
admission. Cf. Ohio v. Roberts, 448 U.S., at 66. Frustration

16

of the purpose of Evid.R. 803(4) to carve from ii a rule of
trustworthiness never within its basic rationale does not
pass Confrontation Clause muster.

Irrespective of the child’s availability, the Ohio rule
and the constitutional requirement is that the child-
declarant’s out-of-court statements are admissible if those
statements meet the rationale and policy of a firmly-
rooted exception to the hearsay rule, such as Evid.R.
803(4). Admission under the Ohio rule is subject to the
out-of-court-statements having an indicia of reliability
from a consideration of factors such as the age of the
child, the presence of corroborative physical evidence,
the child’s relationship to the person to whom the state-
ments were made, and the terminology used by the child.
State v. Boston, 545 N.EB.2d, at 1238-1239.

There is no indicia of reliability and no guarantee of
trustworthiness of the declarant’s statements in the
record within the purpose and scope of Evid.R. 803(4), or
any showing by respondent of independent evidence
supporting an indicia of reliability.

This Court has considered Confrontation Clause
repugnancy in the context of the admission of testimony
by an examining physician of out-of-court statements of a
two and one-half-year-old child. Idaho v. Wright, __ U.S.
___, 110 S.Ct. 3139 (1990). There the testimony was admit-
ted under Idaho’s residual hearsay exception, Bvid.R.
803(24), of which Ohio has no comparable evidence rule.
Ohio’s Evid.R. 102 is significantly different from the
Idaho and federal rule. Ohio’s Evid.R. 102 requires that
the evidence rules be construed in a manner consistent

—s

—-

17

with the common law. State v. Boston, 545 N.E.2d, at
1229-1230.

The factual similarity of Wright is remarkable when
compared to the record of this case. 110 S.Ct., at
3143-3145.

Idaho’s residual hearsay exception, Idaho Rule Evid.
803(24), as found by this Court, is not a firmly rooted
hearsay exception for Confrontation Clause purposes;
however, admission under a firmly rooted hearsay excep-
tion satisfies the constitutional requirement of reliability
because of the weight accofded the judicial and legisla-
tive experience in assessing the trustworthiness of certain
types of out-of-court statements. 110 S.Ct., at 3147. The
weight accorded judicial end legislative experience
underlying Evid.R. 803(4) as a firmly-rooted exception is
absent for the admission of the out-of-court statements of
a child who does not understand the purpose for the
questions and examination and where there is no show-
ing of the mental state and motive of the child-declarant
to indicate an indicia of reliability and trustworthiness.
Some evidence must be submitted by the proponent of
the circumstances surrounding the statement as a require-
ment for admission of the out-of-court statement to estab-
lish its reliability where the policy and purpose of Evid.R.
803(4) is not met.

The ” ‘medical treatment’ exceptions to the hearsay
rule are based upon the belief that the persons making
such statements are highly unlikely to lie.” 110 S.Ct., at
3149. The record here demonstrates total inability to
ascribe an understanding and related truthfulness of the
child’s statement to Dr. Saluke. Ohio questions the

18

reliability of a child declarant as the proper subject for
Evid.R. 803(4) application as associated with the ques-
tioned state of mind of the child declarant. State v. Boston,
supra, 545 N.E.2d, at 1225, 1233, 1234; see, Cassidy v. State,
74 Md. App. 1, 535 A.2d 666, 687 (1988), criticizing the
rationale of United States v. Renville, 779 F.2d 430 (8th Cir.,
1985).

This record fails to establish any factor which
“relate[s] to whether the child declarant was particularly
likely to be telling the truth when the statement was
made,” [110 S.Ct., at 3150] especially where, in consider-
ing the circumstances of the interview, there is a failure to
establish the underlying rationale for admission of the
statement.

To remove Confrontation Clause violation the hear-
say admitted must be so trustworthy that cross-examina-
tion of the declarant would be of marginal utility. 110
S.Ct., at 3150. Cross-examination of the declarant as iden-
tified by this record was simply not of marginal utility.
The absence of any background supplied by the propo-
nent leading to the declarant’s statements were factors
bearing upon petitioner’s Confrontation Clause chal-
lenge. Cf. 110 S.Ct., at 3150.

Petitioner is mindful that “[c]orroboration of a child’s
allegations of sexual abuse by medical evidence of abuse,
for example, sheds no light on the reliability of the child’s
allegations regarding the identity of the abuser. There is a
very real danger that a jury will rely on partial corrobora-
tion to mistakenly infer the trustworthiness of the entire
statement. Furthermore, we recognize the similarity
between harmless-error analysis and the corroboration
inquiry when we noted in Lee [v. Illinois, 476 U.S. 530

19

(1986)] that the harm of ‘admission of the [hearsay] state-
ment [was that it] poses too serious a threat to the accu-
racy of the verdict to be countenanced by the Sixth
Amendment.’ ” 110 S.Ct., at 3151. The corroborating testi-
mony of Ms. Potter, upon whom the Court of Appeals
placed reliance, produces several innocent inferences and
but a single sinister inference. Nonetheless and contrary
to the view of the Court of Appeals, such testimony does
not bootstrap the statements into reliable and trustworthy
statements made by a child to a physician.

Conversely, the offenses of rape and gross sexual
imposition and the identity of the offender for which
petitioner was found guilty and imprisoned are captured
in this record within the brevity of Dr. Saluke’s testimony
of the child-declarant’s statements consisting of three
sentences in the record. There is nothing else. That evi-
dence posed too serious a threat to the accuracy of the
verdict to be countenanced by the Sixth Amendment.

The circumstances presented by this record establish
that the respondent failed to show that the child’s state-
ments to Dr. Saluke possessed sufficient “particularized
guarantees of trustworthiness” under the Confrontation
Clause to overcome the presumption of inadmissibility.
110 S.Ct., at 3152-3153.

Petitioner was twice deprived of his right of confron-
tation: at the competency hearing and in the admission of
Dr. Saluke’s testimony of the child’s statemen:s at trial
absent any foundation of the circumstances required to
establish the reliability of the hearsay statements except
that those statements were made to a physician which is
indistinguishable from the facts of Idaho v. Wright, supra.

20

The verdict of guilt as to both charges was sustained
only by the child-declarant’s statements. The admission
of those statements was repugnant to the Confrontation
Clause of the Sixth Amendment and cannot be deemed
harmless error. Chapman v. California, 386 U.S. 18 (1967).

+

CONCLUSION

For the reasons set forth, certiorari should be
granted.

Respectfully submitted,

ANDREW B. DENNISON
200 Main Street
Batavia, Ohio 45103
(513) 732-6800

Attorney for Petitioner

App. 1

APPENDIX A
THE SUPREME COURT OF OHIO
1990 TERM
To wit: June 13, 1990

State of Ohio,

Appellee,
v. Case No. 90-502
Frederick Dever, Jr., ENTRY
Appellant.

(Filed June 15, 1990)

Upon consideration of the motion for leave to appeal
from the Court of Appeals for Hamilton County, and the
claimed appeal as of right from said Court, it is ordered
by the Court that said motion is overruled and the appeal
is dismissed sua sponte for the reason that no substantial
constitutional question exists therein.

COSTS:
Motion Fee, $40.00, paid by G. David Yaros.

(Court of Appeals No. C880712)

/s/ Thomas J. Moyer
THOMAS J. MOYER
Chief Justice

App. 2

APPENDIX B
THE SUPREME COURT OF OHIO
1990 TERM
To wit: July 25, 1990
State of Ohio, : Case No. 90-502
Appellee, REHEARING
v. s ENTRY
Frederick Dever, Jr., : (Hamilton County)
Appellant. :

(Filed July 25, 1990)
IT IS ORDERED by the Court that rehearing in this
case be, and the same is hereby, denied.
(Court of Appeals No. C880712)

/s/ Thomas J. Moyer
; ER
Chief Justice

App. 3

APPENDIX C
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, ; APPEAL NO.
- Plaintiff-Appellee, Bo gel
vs. : B-875350
FREDERICK DEVER, JR., OPINION.

Defendant-Appellant.

PRESENTED TO THE CLERK
OF COURTS FOR FILING
(Filed January 31, 1990)

COURT OF APPEALS

Criminal Appeal from: Court of Common Pleas
Judgment Appealed from is: Affirmed
Date of Judgment Entry on Appeal: January 31, 1990

Arthur M. Ney, Prosecuting Attorney, Leonard Kirschner,
Esq., Christian J. Schaefer, Esq., and James E. Butler, Esq.,
420 Hamilton County Courthouse, Court and Main
Streets, Cincinnati, Ohio 45202, for Plaintiff-Appellee,

Yaros & Yaros and G. David Yaros, Esq., 615 East Seventh
Street, Cincinnati, Ohio 45202, for Defendant-Appellant.

HILDEBRANDT, J.

Defendant-appellant Frederick Dever, Jr., appeals
from the judgment of the Hamilton County Court of
Common Pleas in which he was found by intervention of

App. 4

a jury to be guilty of rape.’ For the reasons that follow,
we affirm the trial court’s judgment.

On February 21, 1987, the appellant resided with his
wife and adopted daughter, Kristen, on the first floor of a
two-family residence located in the village of Mariemont,
Ohio. Diane Potter resided on the second floor of the
building. At approximately 10:00 p.m., Potter was in her
bathroom preparing to shower when she heard the appel-
lant and Kristen talking.? At trial, Potter testified as fol-
lows:

I heard Kristen crying and I heard [appellant]
saying come on, come on, it will only take a
minute and Kristen kept saying no, Daddy, I’m
sleeping and he kept saying come on, come on,
Kristen, come on, it is only going to take a
minute. She said no, Daddy, I’m sleeping and
then finally she said o.k. and I guess — I could
hear them talking and it was just mumbling and
it seemed like it was getting closer but I wasn’t
really paying attention at that time because I
figured, I didn’t really know what he was get-
ting her up for but I figured it was something
she had to do.

* * *

And I heard — anyway, I heard the voices getting
louder and then I heard the toilet seat so I knew

1 The appellant had been charged with rape, R.C. 2907.02,
and gross sexual imposition, R.C. 2907.05. The jury returned
guilty verdicts as to each count. The trial court, finding that the
charges were of similar import, imposed a sentence on the rape
count only.

2 Appellant’s wife was as work at the time of the events
sub judice.

‘at ire

App. 5

they were in the bathroom because that’s where
the toilet is.

.. . Then I heard them talking, I heard [appel-
lant] groaning, he groaned three times very
loudly and that was what made me really start
listening, I didn’t turn on the water, I just lis-
tened and I heard him tell Kristen to count to
600 and I heard her counting and then he said
oh, that feels so good and she said oh, does that
feel good, Daddy, and he said yes, and he told
her to keep counting and she stopped and he
said come on, just count to 20, just count to 20,
and she said no, I don’t want to. I could hear
mumbling and then I heard her say, oh, daddy,
you got it all over my hand and he said yes, I
got it all over you, didn’t I, and then I just left
the house, and went next door and called the
police.

T.p. 171-72.3

Potter reported the foregoing conversation to Special-
ist Mike Wilson of the Mariemont Police Department.
Wilson concluded that Potter’s accusations warranted an
investigation. The following day, Wilson informed the
appellant’s wife of Potter’s allegations, and arranged for
the removal of the child from the appellant’s control. The
next day, February 23, Wilson arranged for the interven-
tion of the sexual abuse team of the Hamilton County
Department of Human Services (“HCDHS”). Wilson
informed the HCDHS team that the appellant was the
alleged perpetrator. With the aid of HCDHS, Kristen was
examined by Ann Saluke, M.D., at Children’s Hospital.

3 Potter explained that she could hear and understand the
foregoing exchange through a heating duct that was common
to both bathrooms. See, also, State’s Exhibit 1.

App. 6

Although Dr. Saluke’s physical examination neither
confirmed nor disproved a history of sexual conduct,
during the exam Kristen told the doctor that she had
sexual contact with appellant.

Before the trial, the trial judge determined Kristen’s |
competency to testify. At the conclusion of the pretrial
hearing, the court stated:

All right, I have to conclude the rule says those
children under ten years of age who ppPear inca-
pable of receiving just on gas of the facts and
transactions respecting w they are examined or
relating them truly and there is no question that
Kristen understands the truth and the difference
between the truth and false statements and that
she is a bright little girl. The problem is she just
can’t relate what happened in this instance two
years ago, if it did occur, and for that reason I can’t .
find her competent under [Evid. R.] 601 to testify
as a witness under this test.

* * *

T.p. 20. At trial, Dr. Saluke was permitted to testify, over
the appellant’s objection, concerning Kristen’s statements
to her, as follows: :

Kristen told us that her father put his pee pee in
her mouth and there was some white stuff that had
a yucky taste and also that he put his hands on her
pee pee and his pee pee on her pee pee and she
identified her genital area as the peepee.

T.p. 209-10.

‘ Kristen was three and one-half years of age at the time of
the alleged offenses and five and one-half years of age at the
time of the proceedings below.

¢
App. 7

At the conclusion of the evidence, the jury returned
the verdicts described above and the appellant was sen-
tenced as it appears ot record. Appellant now urges on
appeal that the trial court erred by allowing Dr. Saluke to
testify concerning what Kristen had told her about the
crime sub judice. We are unpersuaded.

The Supreme Court of Ohio recently ruled on the use
of a child’s statement of identification made to an exam-
ining physician, under circumstances similar to the case
before us, in State v. Boston (1989), 46 Ohio St. 3d 108, 545
N.E.2d 1220. In Boston, the abused girl awakened scream-
ing during the night following a period of visitation with
her estranged father. The child told her mother,
“*** Daddy put something up my bucket [vagina}.” Id.,
at 108, 545 N.E.2d at __. The mother then observed
redness in the vicinity of the child’s genitals.

The following day the child was examined by a pedi-
atrician, but the child refused to permit the doctor to
touch her. The doctor’s visual examination of the child’s
vaginal and anal areas yielded nothing to note

An internal physical examination of the child was not
made until approximately one month later, during which
time the father continued to visit her. Upon internal
examination, the doctor made findings that were consis-
tent with sexual conduct.5 During the examination, the
child told the doctor that the father was the perpetrator.

5 At trial, the pediatrician testified that the child suffered
probable vaginal penetration and possible anal penetration.

(Continued on following page)

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App. 8

The child was also examined by a psychologist who
observed the child “ * * * play with [anatomically correct]
dolls in a sexually precocious manner, [heard] the child
use slang terms for genitalia, and noted signs of autono-
mic hyperactivity — typical of victims of child sex abuse.”
Id., at 120, 545 N.E.2. at ___ (footnote omitted).

At Boston’s trial, the mother and the two experts (the
pediatrician and the psychologist) were permitted to tes-
tify about what the child told them concerning the iden-
tity of the perpetrator. The experts were further
permitted to opine that the child’s statements to them
were truthful.

During the pretrial hearing to determine the three-
year-old child’s competency to testify, the child answered
initial questions, sometimes by a nod of the head. She
denied having been hurt and she made it clear that she
did not want to talk to the judge. The court found the
child incompetent to testify. During the trial, the court
further explained its ruling:

The child seems frightened, and considering the
age of the child, considering and general fact of
this particular case the Court based its incompe-
tency or fact that the child was not allowed to be
called on that and not on the ability of the child
to understand its obligation to tell the truth and
its ability to communicate.

Id., at 114, 545 N.E.2d at __ (Emphasis omitted).

(Continued from previous page)

She further stated that “probable” meant 95-99 percent cer-
tainty while “possible” meant greater than fifty percent cer-
tainty.

App. 9

In Boston, the Supreme Court of Ohio interpreted the
trial court’s ruling as having found the child to be
unavailable as contemplated by Svid. R. 804(A) rather
than incompetent to testify as prescribed by Evid. R. 601.
The court explained:

Thus, the trial judge really found (the vic-
tim) unavailable as a witness rather than incom-
petent to be a witness. We recognize that
appellant contends (admittedly with some effi-
cacy) that such a finding is not supported by the
record. However, the determination of compe-
tency (and availability) is within the sole discre-
tion of the trial court and absent a showing of an
abuse of discretion, such a determination will
not be disturbed by a reviewing court. We find
no abuse of discretion here.

Id., at 115, 545 N.E.2d at __ (Emphasis omitted).

In Boston, the Supreme Court of Ohio reversed the
father’s conviction of gross sexual imposition because the
trial court denied him a fair trial by permitting the
experts to testify that, in their opinion, the child told
them the truth when she identified the father as the
perpetrator. Id., at 128-29, 545 N.E.2d at ___. The Supreme
Court also determined that the use of expert testimony in
child abuse cases is proper, id. at 120, 545 N.E.2d at __,
and set down guidelines for the use of such expert testi-
mony. Among those guidelines, the court directed:

(F) When a child declarant is unavailable and

does not testify either at a hearing or trial and

no exception to the hearsay rule is a oo

and when “indicia of reliability” are absent, to

satisfy the requirements of the Confrontation

Clause the out-of-court statements must have a

— “guarantee of trustworthiness.”
o show that there is a “guarantee of trust-

App. 10

worthiness,” the proponent of a child’s out-of-
court statements must prove that a good-faith
effort has been made to produce the child as a
witness, there must be specific evidence of
abuse, either physical or emotional, and there
must be no apparent motive to falsify the out-of-
court statements.

Id., at 127, 545 N.3.2d at __ (Emphasis omitted). The

court thea held:
*** [A]n out-of-court statement of an allegedly
abused child of tender years, including identi-
fication of a perpetrator, made to a qualified
expert in child abuse, is admissible if the expert
has independent evidence of physical or emo-
tional abuse of the child, the child has no appar-
ent motive for fabricating the statement and the
child has been found unavailable after a good-
faith effort to produce the child in court.

Id.

In the cause sub judice, as in Boston, the trial court
precluded the victim from testifying because she could
not remember the events constituting the alleged crimes.
In both cases, the trial court concluded that the child
could comprehend the differences between truthful and
false statements and relate facts truly. See Evid. R. 601.
Regardless of the trial judge’s staternents in this case
concerning Kristen’s competency to testify, we believe
that Kristen, whom the state attempted to qualify as a
witness, was unavailable under the Supreme Court's rea-
soning in Boston, and pursuant to Evid. R. 804. The rule
states in pertinent part:

(A) Definition of Unavailability.

“Unavailability as a witness” includes situations
in which the declarant: |

App. 11

* . *

(3) testifies to a lack of memory of the subject
matter of this statement.

See supra at 6-7. We therefore hold that the element of
unavailability, under the Supreme Court’s Boston guide-
lines concerning the admissibility of a sexually abused
child’s out-of-court statement to an expert,® has been
satisfied. See supra at 8.

Furthet, we find no evidence from which the trial
court could have concluded that Kristen was fabricating
the events set forth in her statement to Dr. Saluke. Rather,
we find there was a guarantee of trustworthiness in the
child’s statement because the events concerning the crime
related by Kristen would ordinarily have been far afield
from the knowledge of a three-and-one-half-year-old
child.

The fact that Dr. Saluke did not find evidence of
physical or emotional abuse differentiates this case from
Boston. However, we place great significance upon what
Ms. Potter heard. Specialist Wilson, the investigating offi-
cer, made certain that he related, in great detail, the
events leading up to Dr. Saluke’s examination of Kristen
to the HCDHS sexual abuse team. See. t.p. 54-55. Further-
more, Dr. Saluke acknowledged at trial that she was
aware the appellant was the alleged perpetrator prior to
Kristen’s out-of-court statement to her. See. t.p. 215.

6 The expertise of Dr. Saluke, who had administered to
approximately two hundred fifty child-abuse victims, was not
challenged below.

App. 12
We, therefore, hold that, under the facts of this case,
Kristen’s out-of-court statement was admissible during
the proceedings below. Accordingly, we overrule the
appellant’s solitary assignment of error and affirm the
trial court’s judgment.

KLUSMEIER, P.J., and UTZ, J., CONCUR.
PLEASE NOTE:

The Court has placed of record its own entry in this
case on the date of the release of this Opinion.

es ee ee, ee ee eee een Se ene, ee Ol a ee ee ie Ee es ee ee!

App. 13

APPENDIX D
COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO

State of Ohio

Plaintiff __ /8/ Gorman, J.
-vs- No: B875350
Frederick Dever :
Defendant
Entry

(Filed April 5, 1988)

Upon hearing in open court under E.R. 601, the Court
hereby determines the [alleged /s/ RHG] victim Kristen
Nicole Dever not competant to testify as of this date.

Judge
/s/ James E. Butler, AP

/s/ Louis Rubenstein
Attorney for Def

App. 14

APPENDIX E
Constitution of the United States
AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury
of the State and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the wit-
nesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assis-
tance of Counsel for his defence.

(Effective 1791)

AMENDMENT XIV
[Pertinent Provision]

Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person
of life, liberty, cr property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.

a et

App. 15

APPENDIX F
Section 2907.02, Revised Code of Ohio (Rape.)

(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 either of the following

apply:

(a) For the purpose of preventing resistance, the
offender substantially impairs the other person’s judg-
ment or control by administering any drug or intoxicant
to the other person, surreptitiously or by force, threat of
force, or deception.

(b) The other person is less than thirteen years of
age, whether or not the offender knows the age of such
person.

(2) No person shall engage in sexual conduct with
another when the offender purposely compels the other
person to submit by force or threat of force.

(B) Whoever violates this section is guilty of rape,
an aggravated felony of the first degree. If the offender
under division (A)(1)(b) of this section purposely com-
pels the victim to submit by force or threat of force,
whoever violates division (A)(1)(b) of this section shall be
imprisoned for life.

(C) A victim need not prove physical resistance to
the offender in prosecutions under this section.

” * *

App. 16

Section 2907.05, Revised Code of Ohio (Gross sex-
ual imposition.)

(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; or cause two or more other persons, to have
sexual contact when any of the following apply:

* » *

(3) 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.

(B) Whoever violates this section is guilty of gross
sexual imposition. Violation of division (A)(1) or (2) of
this section is a felony of the fourth degree. Violation of
division (A)(3) of this section is a felony of the third
degree.

(C) A victim need not prove physical resistance to
the offender in prosecutions under this section.

* * *

App. 17

APPENDIX G
Rules of Evidence, Title 23, Revised Code of Ohio
RULE 102. PURPOSE AND CONSTRUCTION

The purpose of these rules is to provide procedures
for the adjudication of causes to the end that the truth
may be ascertained and proceedings justly determined.
These rules shall be construed to state the common law of
Ohio unless the rule clearly indicates that a change is
intended and shall not supersede substantive statutory
provisions.

RULE 601. GENERAL RULE OF COMPETENCY

Every person is competent to be a witness except:

(A) Those of unsound mind, and children under ten
(10) 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 and;

* ” a”

RULE 803. HEARSAY EXCEPTIONS;
AVAILABILITY OF DECLARANT MATERIAL

The following are not excluded by the hearsay rule,
even though the declarant is available as a witness:

App. 18

ay * 7 *

(4) Statements for Purposes of Medical Diagnosis
or Treatment. Statements 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 diag-
nosis or treatment.

—~é

RULE 804. HEARSAY EXCEPTIONS;
DECLARANT UNAVAILABLE

(A) Definition of Unavailability. “Unavailability as
a witness” includes situations in which the declarant:

* * »

(3) testifies to a lack of memory of the subject mat-
ter of his statement; or

* * *

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0991%3A1. Public record. Not legal advice.