[Cite as State v. Turner,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BROWN COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2019-05-005

: OPINION - vs - 4/20/2020 :

JONATHAN W. TURNER, :

Appellant. :

CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS Case Nos. CRI2018-2003 and CRI2018-2077

Zachary A. Corbin, Brown County Prosecuting Attorney, Mary McMullen, 740 Mt. Orab Pike, Suite 1, Georgetown, Ohio 45121, for appellee

Law Office of Eric E. Willison, Eric E. Willison, 4876 Cemetery Road, Hilliard, Ohio 43026, for appellant

PIPER, J.

{¶1} Appellant, Jonathan Turner, appeals his convictions in the Brown County Court of

Common Pleas for multiple counts of rape, gross sexual imposition, and felonious assault.

{¶2} Turner lived with his girlfriend ("Mother"), who had four children. Mother

worked second shift, and Turner watched the children while Mother was at work. Turner

began sexually abusing one of Mother's children, L.W., who was seven years old at the Brown CA2019-05-005

time. The sexual abuse ended three years later when Turner left the home. After Turner

moved out of the home, L.W. told Mother and a school guidance counselor about the abuse.

{¶3} Mother called 9-1-1 twice to report the abuse, but police did not come to her

home. Mother then went to the Brown County Sherriff's Office to report the abuse and

detectives began an investigation. Mother gave the detectives several pairs of the child's

panties, some of which she found buried beneath a pile of laundry in her home and some

of which were found under the child's bed in L.W.'s bedroom.

{¶4} Mother also took the child to the Mayerson Center for Safe and Healthy

Children and reported the abuse to the Brown County Department of Job and Family

Services. Mother further obtained a protection order against Turner.

{¶5} The child's panties were tested as part of the police investigation, and 15 pairs

of the panties testified positive for semen. Turner's DNA was a match for the semen found

on the panties, and on some pairs, Turner's DNA was mixed with L.W.'s. The police also

interviewed witnesses. Mother and one of her sons told officers that at different times, they

had found L.W. locked in her bedroom with Turner, that L.W. would sit on Turner's lap, and

that L.W. had bled from her vagina before the child began menstruating. The child's

guidance counselor relayed that the child had been suffering from anxiety, was withdrawn

and isolated, and began having panic attacks at school; once immediately after a math

problem that included the name, "Jon." The child also talked of self-harm and cutting herself

and was ultimately diagnosed with post-traumatic stress disorder ("PTSD").

{¶6} Turner was indicted for four counts of rape, three counts of gross sexual

imposition, and, in a related case, felonious assault based on L.W.'s PTSD. The cases

were consolidated, and Turner pled not guilty. A jury trial was scheduled for November 13,

2018 but not enough potential jurors reported, and the court declared a mistrial. Upon

agreement of the parties, the trial court rescheduled trial for April 8, 2019.

-2- Brown CA2019-05-005

{¶7} From the time of his arrest, Turner remained incarcerated and unable to post

bail. Three days before the trial date, Turner filed a motion to dismiss on speedy trial

grounds. On the first day of trial, the court denied Turner's motion to dismiss and the matter

proceeded. The jury found Turner guilty on all counts. The trial court sentenced Turner to

an aggregate sentence of life in prison without the possibility of parole. Turner now appeals

his convictions, raising the following assignments of error for review.

{¶8} Assignment of Error No. 1:

{¶9} THE TRIAL COURT ERRED WHEN IT ALLOWED APPELLEE TO REDACT

ITS POLICE INTERVIEW OF APPELLANT TO EXCLUDE ANSWERS SHOWING

APPELLANT'S WILLINGNESS TO TAKE A POLYGRAPH EXAMINATION AND THEN

SHOWED THE INCOMPLETE VIDEO TO THE JURY.

{¶10} Turner argues in his first assignment of error that the trial court erred in

allowing the state to redact questions and answers from Turner's videotaped police

interview related to Turner's willingness to take a polygraph test.

{¶11} A trial court's decision to admit or exclude evidence will not be reversed by a

reviewing court absent an abuse of discretion. State v. McLaughlin, 12th Dist. Clinton No.

CA2019-02-002,

. An abuse of discretion implies more than an error

of law or judgment; it suggests that the trial court acted in an unreasonable, arbitrary, or

unconscionable manner. State v. Babyak, 12th Dist. Madison No. CA2019-08-025, 2020-

Ohio-325, ¶ 11.

{¶12} Evidence regarding polygraph tests is generally excluded unless the

prosecution and defense jointly stipulate in writing to its admissibility, and the court in its

sound discretion decides to accept such evidence. State v. Fulton, 12th Dist. Clermont No.

CA2002-10-085,

. This is true because "such tests have not been

recognized by the scientific community as being a reliable method for determining the

-3- Brown CA2019-05-005

veracity of the examinee." State v. Russell, 2d Dist. Montgomery No. 21458, 2008-Ohio-

774, ¶ 87.

{¶13} Moreover, "a defendant's professed willingness to submit to a polygraph test

is inadmissible and testimony concerning it can constitute prejudicial error." State v.

Banner, 8th Dist. Cuyahoga No. 94078,

, ¶ 22. See also State v. Raypole,

12th Dist. Fayette No. 80-CA-6,

(July 1, 1981) (affirming trial

court's decision to exclude a question asking whether the witness had agreed to submit to

a polygraph examination).

{¶14} The record indicates that during a police interview, detectives asked Turner

how and why his DNA was found on the child's panties. Turner tried to explain the presence

of his DNA and during the discussion, the detectives asked Turner if he was willing to submit

to a polygraph examination. Turner answered "yes." During trial, the trial court admitted

the videotaped interview, but reference to the polygraph examination and Turner's

willingness to take one was redacted.

{¶15} The law is clear in Ohio that polygraph examinations are generally distrusted,

and evidence related to their use is exceptionally limited. This is especially true where the

purported evidence is only a question regarding one's willingness to submit to an

examination and one's answer regarding that willingness. Had the jury heard the question

and answer, but were not provided the result of such examination, there is little doubt that

the jury would have speculated as to the results and why such were not provided during

trial.

{¶16} Even if some probative value had been inherent in Turner's willingness to

submit to a polygraph examination, any value would have been substantially outweighed

by the prejudicial impact of the results not being admitted and the resulting speculation from

the jury. See State v. Hamon, 5th Dist. Delaware No. 12 CAA 12 0089,

, ¶

-4- Brown CA2019-05-005

22 (noting that polygraph examination results do "not have the accuracy entitling it to

admission in evidence. It follows that a refusal or willingness to take a test of which the

result would have been without value in evidence, likewise has no value for the fact finder").

{¶17} We find that the trial court did not abuse its discretion by refusing to admit

evidence of Turner's willingness to take the polygraph exam. Thus, Turner's first

assignment of error is overruled.

{¶18} Assignment of Error No. 2:

{¶19} THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT THE

APPELLANT'S MOTION TO DISMISS ON SPEEDY TRIAL ACT GROUNDS.

{¶20} Turner argues in his second assignment of error that the trial court erred in

denying his motion to dismiss on speedy trial grounds.

{¶21} The Sixth Amendment to the United States Constitution and Article I, Section

10 of the Ohio Constitution guarantee the right to a speedy trial. The statutory speedy trial

provisions set forth within R.C. 2945.71 are coextensive with the constitutional speedy trial

provisions. State v. King,

(1994).

{¶22} According to R.C. 2945.71(C)(2), "[a] person against whom a charge of felony

is pending * * *[s]hall be brought to trial within two hundred seventy days after the person's

arrest." R.C. 2945.91(E) further provides, "for purposes of computing time * * * each day

during which the accused is held in jail in lieu of bail on the pending charge shall be counted

as three days."

{¶23} When an appellant raises a violation of a speedy trial issue, an appellate court

must compute a "try-by date." State v. Watkins, 12th Dist. Warren No. CA2013-02-017,

. The court of appeals must count the days of delay chargeable to

either side and determine whether the case was tried within the statutory time limits. State

v. McCaleb, 12th Dist. Warren No. CA2016-12-103,

. R.C. 2945.72(H)

-5- Brown CA2019-05-005

extends the time within which the defendant must be brought to trial for the period of any

continuance granted on the defendant's own motion, and the period of any reasonable

continuance granted other than upon the defendant's own motion. For example, a trial

court's crowded docket is a reasonable basis necessitating a continuance under R.C.

2945.72(H). State v. Noble, 12th Dist. Clinton No. CA2007-03-008,

.

{¶24} According to the record, the original trial commenced on November 13, 2018.

The parties began voir dire, and soon realized, based on their intention to execute

challenges to some of the jurors who reported, that there were not enough potential jurors

to continue. The parties agreed on record that there was not a possibility that a jury could

be empaneled, and also agreed that the trial court should declare a mistrial.

{¶25} The parties and trial court then engaged in discussions regarding a retrial

date. The parties recommended that the trial could take up to five days, and the court

offered a trial date that was rejected by defense counsel because of that date occurring

during the spring break of his children. The trial court then suggested a second trial date,

and the parties agreed to that trial date of April 8, 2019. The court then specifically

continued the case until the agreed-upon trial date, and noted that such was the first

available trial date "so there's no speedy trial time." At no point did Turner object or question

whether the continuance was necessary or reasonable.

{¶26} The record clearly indicates that the trial court reasonably continued the trial

given an inability to seat a jury on the initial trial date. The record also clearly indicates that

the trial court, with express input from the parties, chose the first available trial date based

on its docket and the need for a five-day jury trial. The reasonableness of the trial court's

continuance is aided by the fact that the trial court rescheduled Turner's trial immediately

upon learning of the inability to seat a jury so that the retrial could occur at the first possible

opportunity.

-6- Brown CA2019-05-005

{¶27} After reviewing the record, we find the time between the original trial and

eventual trial was tolled and Turner was tried within the prescribed timeframe required by

statute. Thus, Turner's speedy trial rights were not violated, and his second assignment of

error is overruled.

{¶28} Assignment of Error No. 3:

{¶29} THE TRIAL COURT ERRED WHEN IT REPEATEDLY ALLOWED THE

ADMISSION OF HEARSAY EVIDENCE.

{¶30} Turner argues in his final assignment of error that the trial court erred in

admitting hearsay testimony.

{¶31} As noted above, the admission of evidence rests within the trial court's

discretion and such decisions will not be reversed absent an abuse of discretion. State v.

Lark, 12th Dist. Fayette No. CA2018-03-004,

. Hearsay is a statement,

other than one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted. Evid.R. 801(C). Hearsay is inadmissible

unless it falls within one of the enumerated exceptions in the rules or is otherwise excepted.

State v. Villani, 12th Dist. Butler No. CA2018-04-080,

.

A. Child's Statement Regarding Abuse

{¶32} Turner first challenges the admission of the child's statement to Mother

regarding Turner's abuse. "It is well established that extrajudicial statements made by an

out-of-court declarant are properly admissible to explain the actions of a witness to whom

the statement was directed." State v. Thomas,

(1980). A statement

is not hearsay when introduced to show its effect on the listener. State v. Osie,

,

.

{¶33} The record indicates that the child made a statement to Mother that Turner

had sexually abused her. Mother testified that after hearing the child's statement, she called

-7- Brown CA2019-05-005

9-1-1 given the child's allegation of abuse and called again when police did not respond.

Also, based on the child's statement regarding abuse, Mother went to the police station and

then took the child to the Mayerson Center. Mother would not have taken such actions but

for the child's disclosure to her. Thus, the hearsay testimony was used to explain Mother's

actions, not prove that Turner had in fact abused the child.

{¶34} Moreover, the trial court gave a limiting instruction that the statement could

only be used to explain why Mother reacted the way she did, but not to prove the truth of

the matter asserted that Turner abused the child. Thus, the evidence was properly

admitted.

B. 9-1-1 Call

{¶35} The trial court also admitted a recording of Mother's 9-1-1 call regarding the

child's statement that Turner sexually abused her. Testimony offered to explain the

investigative activities of witnesses, and not offered to prove the truth of the matters

asserted, is admissible. State v. Skatzes,

,

, ¶ 98.

{¶36} The record indicates that Mother called 9-1-1 after speaking with the child and

relayed to the dispatcher what the child told her. Mother was told an officer would respond

to take her report, but none ever came. As a result, Mother called 9-1-1 again, about an

hour later, and then went to make an in-person report after speaking with the dispatcher.

{¶37} The 9-1-1 call was used to show why Mother called twice and why she made

an in-person report at the police station, as well as how the investigation began based on

Mother's report. However, the call was not used to prove that Turner abused the child, and

the trial court gave a limiting instruction indicating as much. Thus, the trial court did not

abuse its discretion in permitting the evidence.

C. Statements to Guidance Counselor

-8- Brown CA2019-05-005

{¶38} The trial court allowed the child's school guidance counselor to testify to

statements the child made about the abuse she incurred. 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 diagnosis or treatment are admissible as

a hearsay exception. Evid.R. 803(4). Medical diagnosis includes mental health, not just

physical symptoms, pain, or sensations so that statements made to mental health care

providers can be included within the confines of Evid.R. 803(4). In re S.A., 12th Dist. Butler

Nos. CA2017-07-092 thru CA2017-07-098,

.

{¶39} In S.A., we considered whether statements made by an abused child to a

therapist could be admissible pursuant to Evid.R. 803(4) and determined that the

statements were admissible as an exception to the hearsay rule. Therein, the child

discussed traumatic events with her therapist to develop skills to cope with the events and

move forward. This court noted that the abuse suffered by the child was the type of

traumatic event underlying the child's depressive symptoms which her therapist hoped to

improve. As such, we determined that the child made the statements for the purpose of

receiving treatment for her mental health. The same reasoning applies to the case sub

judice wherein L.W. discussed her symptoms to seek treatment for her mental health

issues.

{¶40} The child's school guidance counselor, who had a bachelor's degree in

psychology and a master's degree in school counseling, testified that her role as a guidance

counselor includes "psychological treatment" for students. The counselor also provided

referrals to other outside sources for the purpose of medical treatment.

{¶41} The counselor testified that L.W. came to her with anxiety and panic attacks

while at school. At first, the two discussed ways to cope with anxiety, such as breathing

-9- Brown CA2019-05-005

exercises and meditation. The counselor charted L.W.'s "symptoms" over time and noted

that the child was withdrawing more, was becoming more isolated, and had difficulty making

eye contact. She also testified that when the child was ten years old, L.W. told her she

thought she had started her period the night before because her vagina was bleeding.1

Eventually, after meeting with the counselor over the course of two school years, L.W. told

the counselor about the sexual abuse. The counselor testified that she immediately

contacted children services, and that she told Mother to take the child to the Mayerson

Center for medical and psychological attention.

{¶42} After the child's disclosure, the counselor continued to provide mental health

support to the child, especially when the child suffered panic attacks at school. During

these times, the child would cry and could not stand up, and would be taken to the

counselor's office for help. For example, on one occasion, the child was brought to the

counselor's office after she broke down in math class when the class was working on a

problem that included the name "Jon." The counselor would then help the child work

through her panic attack until she was well enough to return to class.

{¶43} Based on these circumstances, the trial court did not abuse its discretion in

permitting the counselor's testimony about what the child told her as an exception to the

hearsay rule. While not all guidance counselors provide medical or psychological support

to their students, it is clear that L.W.'s guidance counselor was testifying specifically about

statements the child made to her for purposes of treatment. The child described her

symptoms and sensations, including mental and physical indications of her anxiety and

panic, as well as their cause, so that the counselor could help the child or refer her and

Mother to the proper treatments outside of school. Thus, according to Evid.R. 803(4), the

1. The child testified that she had not started to menstruate as she first believed, but had began bleeding after being vaginally raped by Turner the previous night.

- 10 - Brown CA2019-05-005

child's statements regarding the abuse she incurred was admissible as an exception to the

hearsay rule.

{¶44} However, and even if the testimony did not qualify as a statement for purposes

of medical diagnosis, we would not find the admission of the testimony to be reversible

error.2 Instead, the testimony was cumulative to other testimony and evidence, including

the child's own testimony of the abuse, which was subject to cross-examination. Also, there

was overwhelming evidence of guilt, including DNA evidence demonstrating the sexual

nature of Turner's abuse of the child.

D. Mother's Statements to L.W.'s Grandmother

{¶45} L.W.'s grandmother ("Grandmother") testified that Mother called her and told

her that the child had disclosed Turner's abuse. A statement relating to a startling event or

condition made while the declarant was under the stress or excitement caused by the event

or condition is admissible as an excited utterance exception to the hearsay rule. Evid.R.

803(2). An out-of-court statement qualifies as an excited utterance if "(1) the statement was

made in reaction to a startling event; (2) the statement was made under the stress of

excitement caused by the event; and (3) the statement relates to the event. State v.

Cooperstein, 12th Dist. Warren No. CA2018-09-117,

.

{¶46} Mother called Grandmother and told her about Turner's abuse of the child.

Grandmother testified that Mother was "hysterical," "crying," and "sobbing" during the phone

call and that Mother could not be understood sometimes during the call. Thus, (1) Mother's

phone call to Grandmother was made in reaction to the startling event of her daughter

2. Mental health diagnosis and treatment has not always been included when analyzing Evid.R. 803(4). State v. Eastham,

(1988). In Eastham, Justice Brown determined in a concurring opinion that a guidance counselor was not included as a medical provider subject to Evid.R. 803(4) because the counselor did not provide treatment or diagnosis of a physical condition. In so deciding, Justice Brown relied on the theory that statements made for a "mental health condition * * * are not imbued with the same aura of reliability" as those regarding physical conditions. This theory has been expressly rejected since the time of Justice Brown's concurrence in Eastham. State v. Muttart,

,

.

- 11 - Brown CA2019-05-005

revealing sexual abuse, (2) Mother's statements were under the stress of learning of the

abuse because she was hysterical and still very emotional at the time she was talking to

Grandmother, and (3) the phone conversation related to L.W. disclosing the abuse. The

record clearly establishes that Grandmother's testimony about Mother's statements was

properly admitted as an excited utterance.

E. Mayerson Center Interview

{¶47} During trial, the state played the recording of the child's interview at the

Mayerson Center over Turner's objection. Evid.R. 801(D)(1)(b) permits the admission of

statements made by the declarant prior to trial that are consistent with his or her testimony.

Evid. R. 801(D)(1)(b) permits the rehabilitation of a witness whose credibility has been

attacked by means of a charge that she recently fabricated her story by admitting into

evidence a consistent statement made by the witness prior to the time of the suggested

invention or of the emergence of the motive to falsify, as tending to rebut the charge.

{¶48} In order for this exception to apply, the declarant must be subject to cross-

examination and the statement must be offered to rebut an accusation that the declarant

lied or was improperly influenced in her testimony. State v. Glossip, 12th Dist. Warren No.

CA2006-04-040,

. To be admissible, prior consistent statements

must have been made before the existence of any motive or influence to falsify testimony.

Id. at ¶ 32.

{¶49} After L.W. was cross-examined, the state presented the recording of L.W.'s

forensic interview at the Mayerson Center. The trial court determined that the recording

was admissible because cross-examination was an implied challenge of fabrication based

on the questions asked by defense counsel.

{¶50} We find no abuse of discretion in the trial court's determination. By virtue of

cross-examination and the questions posed to the child, defense counsel implied that the

- 12 - Brown CA2019-05-005

child fabricated information or was improperly influenced in her testimony. For example,

during cross-examination, defense counsel suggested through questions that L.W. had

relayed information that she had actually overheard in "grownup conversations." Defense

counsel also suggested that blood from L.W.'s vagina was actually from constipation, rather

than from being vaginally raped. Counsel also asked whether L.W. was "a hundred percent

accurate" in regard to her telling what the child called the "Something Very Bad Story."

When the child answered that she had been accurate, counsel referenced "a lot of

discrepancies * * *." Counsel also asked L.W. whether she realized how serious the

situation was.

{¶51} When all of the cross-examination questions are considered in context, the

record indicates that defense counsel's strategy was to suggest that the child's testimony

had been influenced or that she was not relaying accurate and consistent information and

therefore must not be telling the truth. Thus, the trial court did not abuse its discretion in

determining the recording of L.W.'s interview was admissible as a hearsay exception.

F. Statements to the Mayerson Center Social Worker

{¶52} The state presented testimony from a social worker with the Mayerson Center

who testified about statements the child made to her during a forensic interview. As noted

above, statements made for the purpose of medical diagnosis are an exception to the

hearsay rule. Specifically, statements made to a social worker for the purposes of medical

diagnosis and treatment are an exception to the hearsay rule. State v. Arnold,

,

.

{¶53} In Arnold, the Ohio Supreme Court differentiated between statements made

for medical diagnosis and those for investigatory purposes during a forensic interview at a

treatment center. The court held that the child-victim's statements to the social worker were

for the purpose of medical diagnosis when the child identified the perpetrator, discussed

- 13 - Brown CA2019-05-005

the type of abuse alleged, gave a time frame of the alleged abuse, and identified the areas

where the child had been touched.

{¶54} L.W. gave similar information to the Mayerson Center social worker, who

testified that she shares information taken from the forensic interview with the medical staff

at the Mayerson Center to determine what treatment the child needs. Specifically, the social

worker testified that she consults with the nurses and physicians and receives medical

recommendations based on what a child-victim tells her.

{¶55} Regarding L.W., the social worker testified that the child identified Turner as

her abuser, described several different incidents of inappropriate sexual contact, and that

the child identified the areas Turner touched her and forced her to touch him. L.W. told the

social worker that Turner touched her vagina with his hands, put his penis inside her vagina

and mouth on multiple occasions, and that Turner kissed her mouth and put his mouth on

her chest. L.W. also referred to Turner's ejaculations as "his sweat" and told her that it was

"wet, sticky, and gross." The social worker testified that as a result of the child's disclosures,

the child had a full medical evaluation performed and was given treatment

recommendations moving forward, including psychological referrals.

{¶56} The information given the social worker is the same as that discussed in

Arnold and found admissible by the Ohio Supreme Court. We find the trial court did not

abuse its discretion in permitting the statements as a hearsay exception for the purposes

of medical diagnosis and treatment.

G. Statements Made to Psychotherapist

{¶57} The child's psychotherapist testified about the statements L.W. made to her

about the abuse. These statements were made specifically for the purpose of medical

diagnosis, as the psychotherapist used the statements to diagnose the child with post-

- 14 - Brown CA2019-05-005

traumatic stress disorder and treat her accordingly. Thus, the trial court did not abuse its

discretion in admitting the testimony.

H. Cumulative Error

{¶58} Turner also argues that the cumulative effect of admitting the hearsay

statements resulted in reversible error. According to the doctrine of cumulative error, a

reviewing court "will reverse a conviction when the cumulative effect of errors deprives a

defendant of a fair trial even though each of the instances of trial-court error does not

individually constitute cause for reversal." State v. Kirkland,

, 2014-Ohio-

1966, ¶ 140. Harmless or nonprejudicial errors cannot become prejudicial by sheer number

of alleged errors alone. State v. Wilson, 12th Dist. Warren No. CA2018-03-022, 2019-Ohio-

338, ¶ 25.

{¶59} Despite Turner's multiple assertions that the trial court abused its discretion

in permitting hearsay evidence, there is no danger of an unfair trial because each of the trial

court's decisions were correct. As such, cumulative error does not apply, and Turner's final

assignment of error is overruled.

{¶60} Judgement affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.

- 15 -