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Summit County child rape case affirmed by 9th District
TRACEY BLAIR
Legal News Reporter
Published: December 13, 2017
A Summit County trial court did not abuse its discretion by allowing hearsay testimony on direct examination from a deceased witness in a child rape case, according to the 9th District Court of Appeals.
Zachary Meyerson was found guilty of rape, felonious assault and child endangering and was sentenced to 25 years to life in prison.
Meyerson was arrested after being questioned about injuries to his former fiance’s 3-year-old son.
Case summary shows K.M.’s mother left him solely in Meyerson’s care the night of May 20, 2015. When she returned home from work, K.M. was unresponsive.
The child was diagnosed at Akron Children’s Hospital with a subdural hematoma and had emergency brain surgery. Doctors also found multiple burns on the boy’s body that appeared to be from a cigarette lighter and extensive bruising to his anal cavity.
Before trial, Meyerson filed a motion in limine to exclude certain statements K.M. made in front of his grandmother and trauma therapist Cynthia Keck-McNulty.
The therapist unexpectedly passed away before the hearing, but the court ruled the statements the child made to her during multiple sessions were admissible. The state relied on her counseling session notes and transcripts from her testimony in another case in which she discussed her background and therapeutic practices.
On appeal, the defendant argued the statements were not subject to admission under either Evid.R 803(4) or Evid.R 807.
Keck-McNulty’s notes show that at one session, she asked K.M. whether anyone had ever touched his private parts in a way that made him feel “mad, scared or confused.” The child answered, “Mean Zack.”
K.M. also said Meyerson “hit my head after he bent me,” “hit me with a frickin’ bat,” “bent my legs over my head,” bit his cheek, “put a freaking toy in my butt!” and put the toy “all the way up my butt and made me poop poopy toys out my butt.”
Dr. Richard Daryl Steiner, the hospital’s former medical director of the Children At Risk Evaluation Center, testified the victim’s statements were “very consistent” with the injuries he suffered.
The appellate court found since K.M. was only 3 years old at the time, the motivation to fabricate was absent.
“Additionally, Dr. Keck-McNulty’s notes do not reflect that she questioned him in a suggestive matter,” 9th District Judge Lynne S. Callahan wrote in her opinion. “… Her notes confirm that her sessions with K.M. were in the nature of therapeutic counseling rather than forensic investigation.”
K.M. grandmother testified at trial that she took the boy to a counseling session on Aug. 28, 2015 and spoke with the therapist afterward. Outside the office, the grandmother claimed K.M. then began screaming at his reflection in a window, “Really, Zach, a freaking toy? You shoved a freaking toy up by butt?”
The grandmother said she had to calm K.M. down and assure him he was safe.
Meyerson argued those statements to the grandmother also were inadmissible because K.M. waited more than three months to make them and there was evidence he had trouble with knowing the difference between the truth and a lie.
The appellate court also rejected Meyerson’s claims that prosecutors failed to prove sexual conduct.
Judge Callahan noted that Dr. Steiner concluded the child was not only shaken and burned, but was the victim of a traumatic, penetrating injury to his anal cavity.
The police who searched the apartment found several possibilities for the anal injuries -- including two bongs that belonged to the appellant. The Bureau of Criminal Investigation later determined the mouthpiece of the larger bong contained a mixture of DNA profiles consistent with Meyerson’s and K.M.’s profiles.
In addition, a detective who interviewed Meyerson a few hours after the child was hospitalized testified the defendant changed his statements dramatically during the interview.
Meyerson told the detective K.M. fell down but did not get hurt, and that the boy may have gotten burned with a lighter by accident when he was trying to chase him. Meyerson also admitted spanking the victim’s bare bottom and holding his head to a wall when he refused to stay still in time out.
Appellate judges Jennifer Hensal and Thomas Teodosio concurred that the convictions should be affirmed.
The panel did however, vacate the lower court’s five-year sentence for child endangering and remanded the case for resentencing on that charge.
The appellate court stated that the five-year sentence was contrary to law because it is not one of the third-degree felonies that a court may impose a sentence of more than three years.
The case is cited State v. Meyerson, 2017-Ohio-8726.