[Cite as State v. Kapp, 2009-Ohio-5081.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 1-09-12 

 v. 

RICHARD KAPP, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CR2007 338 

Judgment Affirmed 

Date of Decision: September 28, 2009 

 

APPEARANCES: 

F. Stephen Chamberlain for Appellant 

Jana E. Emerick for Appellee 
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ROGERS, J. 

{¶1} Defendant-Appellant, Richard O. Kapp, Sr., appeals the judgment of 

the Allen County Court of Common Pleas convicting him of two counts of rape 

and one count of gross sexual imposition, and ordering him to serve two 

consecutive life terms in prison as well as a consecutive five-year prison term. On 

appeal, Kapp argues that the trial court erred in declining to exclude hearsay 

statements made by the victim, and that the trial court erred in declining to grant a 

mistrial on the basis of alleged discovery violations by the State. Based upon the 

following, we affirm the judgment of the trial court. 

{¶2} In October 2007, the Allen County Grand Jury indicted Kapp on two 

counts of rape in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree, 

with specifications that the victim was under ten years of age, and one count of 

gross sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the third 

degree. The indictment stemmed from an incident during which Kapp allegedly 

engaged in oral sex with and digitally penetrated his five-year-old granddaughter, 

M.E. 

{¶3} In November 2007, Kapp filed a motion to suppress statements he 

made to law enforcement officers following the incident and a motion suggesting 

he was not competent to stand trial. 
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{¶4} In December 2007, the trial court found Kapp incompetent to stand 

trial. 

{¶5} In November 2008, the trial court found that Kapp had been restored 

to competency and was competent to stand trial. 

{¶6} In January 2009, the trial court overruled Kapp’s motion to suppress 

and the case proceeded to jury trial, at which the following testimony was heard. 

{¶7} Brenda E. testified that Kapp was her father and she was M.E.’s 

mother; that, in September 2007, she, M.E., and her husband, Donald E., lived in a 

trailer next door to Kapp’s trailer; that, on the evening of September 8, 2007, M.E. 

was next door at Kapp’s trailer to visit; that she wanted M.E. to come home, so 

she walked over to Kapp’s trailer and went inside without knocking; that Kapp 

was sitting on the floor with his pants undone, and M.E.’s pants and underwear 

were down around her ankles; that Kapp got up, held his pants up, and ran into the 

bathroom; that she yelled at Kapp “[w]hat did you do to my daughter, you S.O.B. 

What did you do? She’s your granddaughter” (trial tr., p. 32); that Kapp 

responded “nothing” (Id.); that Kapp offered no explanation for why his pants 

were undone or why M.E.’s pants and underwear were down; that she asked M.E. 

what had happened and M.E. replied “nothing, mommy, nothing” (Id. at 41); that 

she believed she appeared noticeably upset because M.E. told her to “calm down” 

(Id. at 48); that she took M.E. home and observed that her vagina was abnormally 
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red; that she told Donald what she had observed, and he went over to Kapp’s 

trailer; and, that she called the police and took M.E. to the hospital. 

{¶8} Donald testified that, on September 8, 2007, Brenda came into the 

trailer crying and holding M.E.; that Brenda told him that she had seen Kapp and 

M.E. with their pants down; that he became very upset and went over to Kapp’s 

trailer; that Kapp put his head down and started crying as soon as he saw him; that 

he asked Kapp what he did, and he replied “I don’t have a girlfriend. I don’t have 

a girlfriend” (Id. at 52); that he told Kapp he was sick, and Kapp kept his head 

down and would not look at him; that Kapp offered no explanation for the 

situation; that he attempted to punch Kapp, but missed and put a hole in the wall 

of the trailer; that Kapp did not say anything to him except that he did not have a 

girlfriend; that he went back to his trailer and spoke to the police; and, that he then 

accompanied Brenda and M.E. to the hospital. 

{¶9} Deputy Brett Rider of the Allen County Sheriff’s Office testified 

that, on September 8, 2007, he was dispatched to a child sex abuse complaint; that, 

initially, M.E.’s demeanor was loud and bubbly, however, when he inquired about 

what had happened with Kapp, her demeanor changed, and she climbed into her 

mother’s lap and would not speak above a whisper; and, that, after he finished 

speaking to M.E., he went over to Kapp’s trailer. 
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{¶10} Investigator Sandra Miehls of the Allen County Sheriff’s Office 

testified that, on September 8, 2007, she was dispatched to a child sex abuse 

complaint; that Deputy Rider was already present when she arrived at Kapp’s 

trailer; that, before she could say anything, Kapp told her, “I can’t watch kids” (Id. 

at 68); that she asked Kapp what had happened, and Kapp just shook his head; that 

Kapp then stated, “Kids ask for it. She wanted sex” (Id. at 68); that Kapp made 

comments of that nature throughout the interview, including, “[M.E.] came to visit 

me [and] she wanted it” (Id.), “I haven’t had a girlfriend in a long time. Kids want 

it” (Id.), “[M.E.] asked for it. She wanted it – sex.” (Id. at 69); that Kapp also said, 

“give me a gun. I want to shoot myself” (Id.); that she asked Kapp if he had 

touched M.E., and he nodded his head yes; that she asked Kapp if he had touched 

M.E. in a sexual manner, and he nodded his head yes; that she asked Kapp where 

he had touched M.E., and he replied “privates” (Id.); that she asked Kapp if he had 

sexual intercourse with M.E., and he replied, “No. How could I? She’s too little” 

(Id.); that she asked Kapp with what he had touched M.E.’s vagina, and he replied 

“fingers, penis” (Id.); that Kapp also stated he put his tongue into M.E.’s vagina 

and put his finger into her vagina “a little bit” (Id. at 70, 85); that Kapp stated 

several times that he needed a girlfriend and had not had a girlfriend in a long 

time; that he stated several times that he was sorry and would move from the area 

so it would not happen again; and, that she then arrested Kapp. 
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{¶11} Karen Hatfield, a registered nurse at Lima Memorial Hospital, 

testified that she was trained as a sexual assault nurse examiner (hereinafter 

“S.A.N.E.”); that, when a child is brought into the facility for a sexual assault 

examination, she first assesses the child’s temperature, pulse, and respirations, and 

inquires of the parents whether the child has experienced any health problems, 

hospitalizations, or possible genital injuries; that she then asks the child why he or 

she was brought into the facility. Thereafter, Hatfield attempted to testify as to 

what M.E. told her during the course of the medical exam, and Kapp objected to 

the testimony on the basis that it was hearsay, and that the hearsay exception for 

statements made for purpose of medical treatment did not apply because no 

evidence was provided that M.E. had suffered any injury. The trial court 

overruled Kapp’s objection, and Hatfield testified that she asked M.E., “what 

happened tonight,” and M.E. immediately replied, “she was at grandpa’s and that 

grandpa had pulled her pants and underpants down and then pulled his pants and 

underpants down and sat on the floor. He asked her to sit on the floor. She said 

that he pushed her down several times on the floor. She kept getting back up. 

Then she told me that he got on top of her and pulled his thing out and put his 

thing in her mouth and in her thing. She told me that she smacked him in the face 

and then he hit her thing” (Id. at 95-96); that she asked M.E. what her “thing” 

meant, and M.E. pointed to her genital area (Id. at 98); that she physically 
Case No. 1-09-12 

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examined M.E. and did not notice anything unusual; that she completed a rape kit; 

that, at M.E.’s follow-up appointment, Brenda informed her that she believed 

Kapp had genital herpes; that M.E. tested negative for herpes and other sexually 

transmitted diseases; that the majority of instances of sexual assault leave no 

physical signs; and, that sexually transmitted diseases are not always transferred 

when someone has sexual contact with another. 

{¶12} Subsequent to Nurse Hatfield’s testimony, the State rested. 

Thereafter, Kapp moved for a mistrial on the basis of a discovery violation. 

Specifically, Kapp contended that the State had failed to disclose that a rape kit 

had been completed prior to Nurse Hatfield’s testimony, and that this evidence 

was required to be disclosed pursuant to Crim.R. 16. The trial court overruled 

Kapp’s motion on the basis that this evidence was not exculpatory, as the kit had 

never been tested, and also found that the kit was referred to in multiple places in 

the medical records disclosed to Kapp, giving him sufficient notice of its 

existence. Kapp then moved for acquittal pursuant to Crim.R. 29, which the trial 

court overruled. Thereafter, the defense declined to present any evidence and 

rested. 

{¶13} Subsequently, the jury found Kapp guilty of both counts of rape and 

the count of gross sexual imposition. The trial court ordered Kapp to serve a 

mandatory sentence of life in prison, without parole, on each rape conviction, and 
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to serve a five-year prison term on the gross sexual imposition conviction, with all 

sentences to be served consecutively. Additionally, the trial court designated 

Kapp to be a Tier III sex offender. 

{¶14} It is from his conviction and sentence that Kapp appeals, presenting 

the following assignments of error for our review. 

Assignment of Error No. I 

THE TRIAL COURT ERRED WHEN IT DID NOT EXCLUDE 

THE HEARSAY STATEMENTS OF THE MINOR CHILD 

UPON OBJECTION BY THE DEFENDANT. 

Assignment of Error No. II 

THE TRIAL COURT ERRED IN NOT GRANTING A 

MISTRIAL TO THE DEFENDANT FOR DISCOVERY 

VIOLATIONS MADE BY THE STATE OF OHIO. 

Assignment of Error No. I 

{¶15} In his first assignment of error, Kapp contends that the trial court 

erred in declining to exclude hearsay statements of M.E. upon his objection. 

Specifically, Kapp argues that Nurse Hatfield should not have been permitted to 

testify as to the statements M.E. made to her about what occurred during the 

incident because the statements were testimonial in nature and were not made for 

medical diagnostic purposes. We disagree. 

{¶16} The admission or exclusion of evidence “lies within the broad 

discretion of the trial court, and a reviewing court should not disturb evidentiary 
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decisions in the absence of an abuse of discretion that has created material 

prejudice.” State v. Kesler, 3d Dist. No. 13-06-09, 2006-Ohio-6340, ¶33. 

Accordingly, our review is limited to determining whether the trial court acted 

unreasonably, arbitrarily, or unconscionably. Id., citing State v. Barnes, 94 Ohio 

St.3d 21, 23, 2002-Ohio-68. 

{¶17} The Sixth Amendment to the United States Constitution provides, in 

pertinent part, that “[i]n all criminal prosecutions, the accused shall enjoy the right 

* * * to be confronted with the witnesses against him * * *.” Concerning the Sixth 

Amendment, the United States Supreme Court has held that “[w]here testimonial 

evidence is at issue, however, the Sixth Amendment demands what the common 

law required: unavailability and a prior opportunity for cross examination.” 

Crawford v. Washington (2004), 541 U.S. 36, 68. Although the Court did not 

define the term “testimonial,” it gave as examples “all ex parte in-court testimony 

or its functional equivalent; extrajudicial statements contained in formalized 

testimonial materials (e.g., affidavits, depositions, prior testimony, confessions); 

and a class of statements that are made “ ‘“under circumstances which would lead 

an objective witness reasonably to believe that the statement would be available 

for use at a later trial.”’ ”” State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 

¶60, quoting State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, ¶19, quoting 

Crawford, 541 U.S. at 51-52. In Muttart, the Supreme Court of Ohio recognized 
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that, “ ‘“[w]here nontestimonial hearsay is at issue, it is wholly consistent with the 

Framers’ design to afford the States flexibility in their development of hearsay law 

* * * and as would an approach that exempted such statements from Confrontation 

Clause scrutiny all together.”’ ” 2007-Ohio-5267, at ¶59, quoting Stahl, 2006-

Ohio-5482, at ¶16, quoting Crawford, 541 U.S. at 68; see, also, Davis v. 

Washington (2006), 547 U.S. 813. 

{¶18} Evid.R. 803(4) provides that the hearsay rule will not exclude 

“[s]tatements made for purposes of medical diagnosis or treatment and describing 

medical history, or past or present symptoms, pain, or sensations, or the inception 

or general character of the cause or external source thereof insofar as reasonably 

pertinent to diagnosis or treatment[,]” even where the declarant is available as a 

witness. In Muttart, supra, the Supreme Court of Ohio specifically considered 

situations involving a child’s statement made to a S.A.N.E. nurse and the 

applicability of Evid.R. 803(4), finding that “[s]tatements made to medical 

personnel for purposes of diagnosis or treatment are not inadmissible under 

Crawford, because they are not even remotely related to the evils which the 

Confrontation Clause was designed to avoid.” (Citations omitted.) 2007-Ohio5267, at ¶63. 

{¶19} Further, Muttart held that, “[i]n cases in which a statement was made 

for purposes of medical diagnosis or treatment, the question is not whether the 
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statement is reliable; the presumption is that it is. The salient inquiry here is not 

[the child’s] competency but whether her statements were made for purposes of 

diagnosis and treatment rather than for some other purpose.” 2007-Ohio-5267, at 

¶47. In determining the child’s purpose in making the statements, the Supreme 

Court of Ohio directed courts to consider the following nonexhaustive list of 

factors: “(1) whether the child was questioned in a leading or suggestive manner, 

(2) whether there is a motive to fabricate, such as a pending legal proceeding such 

as a ‘bitter custody battle,’ and (3) whether the child understood the need to tell 

the physician the truth.” (Citations omitted.) 2007-Ohio-5267, at ¶49. 

{¶20} Here, the record does not suggest that M.E. was questioned in a 

leading or suggestive matter. In fact, Nurse Hatfield testified that she merely 

asked M.E., “what happened tonight?” and that M.E. immediately told her what 

had happened. Additionally, Nurse Hatfield testified that she “just let [M.E.] talk” 

and let her take the lead in the conversation. (Trial tr., p. 108). Additionally, 

Kapp does not allege that M.E. or her parents had any motive to fabricate the 

accusations, nor is any motive apparent from the record. Finally, Nurse Hatfield 

testified that her inquiries of M.E. took place in the medical facility and were 

preceded by assessments of her temperature, pulse, and respirations. Thus, the 

evidence suggests that M.E. knew she was in a medical setting at the time of her 

disclosures and that her statements would be used for purposes of medical 
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diagnosis and treatment. Thus, we find that, considering the factors set forth in 

Muttart, supra, M.E.’s purpose in making the statements about the incident with 

Kapp was for medical diagnosis and treatment, and, consequently, the statements 

fell under the exception to the hearsay rule set forth in Evid.R. 803(4). It follows 

that, as the statements satisfied a hearsay exception, the trial court did not err in 

declining to exclude the statements. 

{¶21} Accordingly, we overrule Kapp’s first assignment of error. 

Assignment of Error No. II 

{¶22} In his second assignment of error, Kapp contends that the trial court 

erred in declining to grant a mistrial despite alleged discovery violations made by 

the State. Specifically, Kapp argues that the mistrial should have been granted 

because the State failed to disclose prior to trial that Nurse Hatfield had completed 

a rape kit. We disagree. 

{¶23} We review a trial court’s decision regarding a Crim.R. 16 discovery 

sanction under an abuse of discretion standard. State v. Gibson, 3d Dist. No. 1-06-

74, 2007-Ohio-3345, ¶12. An abuse of discretion implies that the trial court’s 

judgment was unreasonable, arbitrary, or unconscionable. Blakemore v. 

Blakemore (1983), 5 Ohio St.3d 217, 219. 

{¶24} Crim.R. 16 governs discovery and inspection, and provides, in 

pertinent part: 
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(B) Disclosure of evidence by the prosecuting attorney 

(1) Information subject to disclosure. 

* * * 

(d) Reports of examination and tests. Upon motion of the 

defendant the court shall order the prosecuting attorney to 

permit the defendant to inspect and copy or photograph any 

results or reports of physical or mental examinations, and of 

scientific tests or experiments, made in connection with the 

particular case, or copies thereof, available to or within the 

possession, custody or control of the state, the existence of which 

is known or by the exercise of due diligence may become known 

to the prosecuting attorney. 

* * * 

(E) Regulation of discovery 

(3) Failure to comply. If at any time during the course of the 

proceedings it is brought to the attention of the court that a 

party has failed to comply with this rule or with an order issued 

pursuant to this rule, the court may order such party to permit 

the discovery or inspection, grant a continuance, or prohibit the 

party from introducing in evidence the material not disclosed, or 

it may make such other order as it deems just under the 

circumstances. 

Crim.R. 16(B)(1)(d), (E)(3). 

{¶25} The Supreme Court of Ohio has held that the State’s violation of 

Crim.R. 16 is only reversible “‘when there is a showing that (1) the prosecution’s 

failure to disclose was willful, (2) disclosure of the information prior to trial would 

have aided the accused's defense, and (3) the accused suffered prejudice.’” State 

v. Orsborne, 3d Dist. No. 1-06-94, 2007-Ohio-5776, ¶44, quoting State v. Jackson, 
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107 Ohio St.3d 53, 2005-Ohio-5981, ¶131, citing State v. Parson (1983), 6 Ohio 

St.3d 442, 445. 

{¶26} Here, Kapp argues that the trial court should have granted his motion 

for a mistrial because the State failed to disclose prior to trial that Nurse Hatfield 

had completed a rape kit. Kapp contends that the State violated its duty to provide 

him with “reports of examination and tests” as required by Crim.R. 16, and that 

knowledge of the completion of the kit would have aided his defense if analysis of 

the kit revealed a lack of trace evidence. However, as stated by the trial court in 

overruling Kapp’s motion for a mistrial, the rape kit was referenced in multiple 

places in the medical records disclosed to Kapp, giving him sufficient notice of its 

existence. This fact negates Kapp’s argument that the State willfully failed to 

disclose the kit’s existence, and that he suffered prejudice as a result. 

Additionally, it is difficult for Kapp to argue that he suffered prejudice regarding 

the rape kit, given that M.E.’s accusations were corroborated by testimony that 

Kapp admitted to touching M.E.’s vagina with his penis and to putting his tongue 

and finger into her vagina. Even further, as stated by the trial court, although the 

kit was completed, it was never sent to the laboratory to be tested for trace 

evidence. Consequently, Kapp cannot demonstrate that disclosure of the kit’s 

existence prior to trial would have aided in his defense—as it is unknown whether 

the test results would have been favorable or unfavorable to him. Thus, we do not 
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find that the trial court erred in declining to grant a mistrial, as Kapp demonstrated 

neither a discovery violation nor resulting prejudice. 

{¶27} Accordingly, we overrule Kapp’s second assignment of error. 

{¶28} Having found no error prejudicial to the appellant herein, in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

PRESTON, P.J. and WILLAMOWSKI, J., concur. 

/jlr