State v. C.C.B.

[Cite as State v. C.C.B., 2019-Ohio-3631.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 18AP-782
v. : (C.P.C. No. 17CR-2534)
[C.C.B.], : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 10, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
Walton, for appellee. Argued: Michael P. Walton.
On brief: The Law Office of Eric J. Allen Ltd., and Eric J.
Allen, for appellant. Argued: Eric J. Allen.
APPEAL from the Franklin County Court of Common Pleas
NELSON, J.
{¶ 1} After a jury trial at which the young girl testified, defendant-appellant C.C.B.
was found guilty of three counts of raping his stepdaughter A.L. when she was eight years
old. The trial court sentenced him to concurrent terms of 15 years to life in prison on each
of the three counts.
{¶ 2} C.C.B. now appeals, asserting three assignments of error. He argues first that
the trial court erred in not granting his motion to exclude a video recording of the
Nationwide Children's Hospital "forensic interview" with A.L., which he says was "merely
duplicative" of the live testimony presented at trial. He next argues that the video tape was
not subject to any exception under the general rule against hearsay (and perhaps argues,
too, that its admission violated his right to cross-examine witnesses against him); the
hospital's written report arising from that interview, he further submits, also contained
No. 18AP-782 2
inadmissible hearsay and may have been confusing in mentioning names of people who did
not appear as witnesses at trial. Finally, he says that the state presented insufficient
evidence and argues that the weight of the evidence manifestly did not bear out the jury's
findings.
{¶ 3} Explaining why we overrule C.C.B.'s assignments of error and affirm his
convictions, we begin with his third assignment of error so as to avoid undue repetition of
the proof that the jury assessed. For that assignment of error, C.C.B. recites:
The state failed to produce sufficient evidence to convict the
appellant of the crimes contained in the indictment and it was
error to over rule [sic] the Rule 29 motion.
Appellant's Brief at 10 (capitalizations altered).
{¶ 4} Although he expresses this assignment of error as resting on a claimed
insufficiency of the evidence, C.C.B. argues instead and exclusively that the verdict "is
against the manifest weight of the evidence." Id. at 10, 11-15. The assignment fails under
either formulation: the evidence when viewed in the light most favorable to the state was
sufficient to establish the rape convictions, and even if the assigned error included a
manifest weight issue, we would not conclude that the jury clearly lost its way so as to create
a manifest miscarriage of justice that would require reversal of the convictions.
{¶ 5} In reviewing whether there is legally sufficient evidence to sustain a verdict,
" '[t]he relevant inquiry for an appellate court is whether the evidence presented, when
viewed in a light most favorable to the prosecution, would allow any rational trier of fact to
find the essential elements of the crime proven beyond a reasonable doubt.' " State v.
Daniels, 10th Dist. No. 18AP-626, 2019-Ohio-1791, ¶ 9, quoting State v. McDonald-Glasco,
10th Dist. No. 17AP-368, 2018-Ohio-1918, ¶ 20 (citations omitted). A manifest weight
challenge is different, and asks that we "review the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of [the] witnesses, and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered." State v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22
(citations omitted). An appellate court should reverse a conviction as against the manifest
weight of the evidence "for only the most ' "exceptional case in which the evidence weighs
heavily against the conviction." ' " State v. Reed, 10th Dist. No. 09AP-84, 2009-Ohio-6900,
No. 18AP-782 3
¶ 24, quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997) (which adds, with
emphasis in original, that " '[w]eight is not a question of mathematics, but depends on its
effect in inducing belief") (further citation omitted).
{¶ 6} At trial, A.L. (who by then had turned nine years old) testified that while she
had been lying on the living room couch with her stepfather during a nighttime in the
previous year, he had stuck "his finger where my bottom was." Tr. Vol. I at 14. She further
testified that "he put this thing on his private part and then stick the private part where my
private part was." Id. at 15. And "[h]e stuck his finger in my private part." Id. at 16. At
some point, her mother came into the room, she said, and she was dispatched upstairs.
When her mother later checked on her and found her not wearing her underwear, A.L. told
her mother "that daddy put his finger in my bottom," she testified. Id. at 19 (adding on
further questioning that she also had said that she had removed her underwear because she
had wet it). Her mother went downstairs to speak with C.C.B. after A.L. "told her that daddy
put his finger in my bottom, my butt." Id. at 19.
{¶ 7} Jennifer Sherfield, a forensic interviewer with the Children's Hospital "child
advocacy center or child assessment center" ("CAC"), id. at 22, testified that she interviewed
A.L. during the early morning of that same day on behalf of the "multi-disciplinary team"
of medical professionals, children's services workers, and law enforcement personnel
gathered in keeping with standard practice so as to "reduce[ ] the overall amount of the
time that the child has to be interviewed" and thereby "reduce the amount of trauma
experienced by the child." Id. at 28-29. Such an interview, she averred, "shapes how
[hospital workers] conduct their medical exam" and informs "treatment of the patient." Id.
at 30-31. Before the interview, Ms. Sherfield told the jury, a social worker had told her "that
mom had found [A.L.] and her dad downstairs, had told her to go upstairs and then [A.L.]
wasn't wearing underwear, and so she questioned [A.L.] about what was going on. And she
had reported that her dad put his finger in her butt." Id. at 45.
{¶ 8} Over defense objection as earlier expressed in a motion in limine, and with
the trial judge having advised counsel that the defense thereafter could elect to cross-
examine A.L. further about interview statements, id. at 50, the videotaped recording of Ms.
Sherfield's interview with A.L. was played to the jury. State's Ex. C.
No. 18AP-782 4
{¶ 9} In that interview, A.L. recounted that C.C.B. hours earlier had "stuck his hand
in my butt," id. at 10:00 minutes elapsed time, penetrating her anus with his middle finger
and causing her to cry out," id. at 11:00. She further described in some detail C.C.B.'s also
having penetrated her vagina using both his mouth, see, e.g., id. at 19:25, and his finger,
see, e.g., id. at 23:23. She reported that he also had kissed her cheeks, neck, and mouth.
Id. at 20:45. She implied her belief that the impending medical examination would confirm
her account, id. at 27:00, 32:00, expressed concern about possible rectal bleeding, id. at
28:00, said that her stepfather had told her that if she was quiet, she wouldn't hurt (which
didn't prove to be true, she observed), id. at 31:13, said that he told her he was preparing
her physically for further anal rape, id. at 30:10, and said that while she did not want him
to go to jail, she did not want him to do that to her again, id. at 29:25.
{¶ 10} Ms. Sherfield's notes of the interview, as contained in the hospital's written
report, summarized A.L.'s account that was captured by the video. State's Ex. C at 13
("[Patient] reported that [C.C.B.] * * * stuck his finger in her butt"; that he "told her to 'shhh'
and kissed her on the cheeks"; that "her dad told her that he was doing this so his thing
could fit in her butt"; that "to make it hurt less he tried licking and kissing her thing
(indicat[ing] her vaginal area). [Patient] stated that it didn't hurt less. [Patient] reported
that he also kissed her cheek, neck and lips 'in the mouth' "; that his hand also went inside
of her thing * * * [and that] sometimes when he does it harder it stings when she uses the
bathroom"; and that "her dad puts lotion (from a round container with a leaf on it) on his
middle finger and then he puts it in her butt or her thing/middle part").
{¶ 11} The physical examination conducted after the interview did not reflect
physical trauma, but the CAC nurse practitioner who examined A.L. said that her findings
did "not negate the child's disclosure of abuse." Tr. Vol. I at 93 (testimony of Katherine
Doughty). "The majority of the time," the nurse testified, "I would not expect to see injury"
as a result of the sort of conduct described; her "medical diagnosis," offered without
objection, "was child sexual abuse." Id. at 93, 105. The nurse collected a rape kit, and
included swabs of A.L.'s neck and cheeks because of the account that A.L. had provided. Id.
at 98-100.
{¶ 12} Those swabs, analyzed by the state's Bureau of Criminal Investigation,
reflected the presence of an enzyme called amylase that is most commonly found in the
No. 18AP-782 5
highest concentrations in saliva. Tr. Vol. II, 59-60, 64 (testimony of BCI forensic scientist
Brittany Mulinix). Amylase, too, was found on A.L.'s underwear. Id. at 60 ("Q: So on the
underwear, you found what is most commonly seen in saliva? A: Correct").
{¶ 13} Further, Hallie Dreyer, a forensic scientist in BCI's DNA unit, analyzed
vaginal and anal samples taken from the rape kit that had been collected from A.L.; she
examined those findings in the context of DNA material taken from an oral swab of C.C.B.
Id. at 20. Both the vaginal and the anal samples taken from A.L. reflected the presence of
male DNA. Id. at 23 (vaginal), 25 (anal). Ms. Dreyer identified that male DNA in the anal
sample through conventional "short tandem repeat" ("STR") DNA testing, which she
termed "the gold standard." Id. at 20. She found male DNA from the vaginal sample after
a different form of testing (developed, she said, over the last decade or two) that excludes
female DNA from attention and focuses only "on locations that are on the Y chromosome."
Id. at 22-23 (describing "Y-STR analysis").
{¶ 14} Moreover, Ms. Dreyer testified, under Y-STR DNA analysis, C.C.B. could not
be eliminated as the source of the DNA profile obtained from either the vaginal or the anal
sample. Indeed, while the male DNA profile identified from each would occur in the general
population in only one of every 700 males, still that profile could not exclude C.C.B. or his
paternal male relatives. Id. at 23 (vaginal sample), 26 (anal sample).
{¶ 15} After the state rested and the trial court overruled a defense motion for
judgment of acquittal, the defense called A.L.'s mother A.B. to testify. She averred that she
had gone to bed at about 11:00 p.m.; that she had not heard anything unusual; that at about
3:00 a.m., she had discovered her husband and daughter sleeping on the couch; and that
after she told her daughter to go to bed, her husband had carried A.L. upstairs (conduct
that she considered unusual, she said on cross-examination). Id. at 98-103, 123. A.B.
further testified that when she went to check on her daughter, "[s]he told me she was okay
at first, and then I said, are you sure? And she said, yeah. And then I said, what's wrong?
And she said, daddy put his finger in my butt. * * * And I said, are you sure? And she said,
yes." Id. at 123 (see also id. at 124: "I felt like something was wrong").
{¶ 16} After talking with her husband ("I asked him about what she told me, and he
denied it, of course"), she walked to the nearby police station. Id. at 104. Advised that
among other options, she could take A.L. to the hospital, she returned home and spoke
No. 18AP-782 6
further with her husband. He again denied the accusation, and encouraged the trip to the
hospital, where he then drove A.B. and A.L. Id. at 105. Among other matters, A.B. testified
that for roughly six months, until about two or three months before this episode, one of
C.C.B.'s male cousins had lived with the family and had his clothes washed along with the
others'. Id. at 115-16. She also said that she did not know whether her husband or her
daughter was telling the truth. Id. at 140 (redirect).
{¶ 17} C.C.B. himself also testified, denying any misconduct. Id. at 167. His account
was that he had fallen asleep while his daughter was playing video games, and that he had
been woken by the sound of his wife coming downstairs. Id. at 161. When A.B. said that
A.L. needed to be in bed, he had "picked her up like I always do" and carried her upstairs.
Id. at 162. After his wife checked on the girl and then told him what A.L. had said, he denied
it and told A.B. "go ahead" when she announced that she was going to the police. Id. at 164.
Similarly, he said, "I wanted to go to the hospital, get her checked out because I knew they
* * * would find nothing because I did nothing." Id. at 166.
{¶ 18} The defense then called its own DNA expert, Julie Heinig. She testified,
among other things, that the enzyme amylase, while "found in our saliva," can also appear
in urine, feces, blood, and sweat. Tr. Vol. III at 8 (adding at 9-10 that a positive result for
amylase, while suggesting "the presence of saliva * * * * doesn't definitively state that saliva
is there * * * because [amylase] can be found in other body fluids"). She confirmed that
"the Y-STR DNA that was * * * detected and analyzed in this case could be from [C.C.B.] or
any of his male relatives," id. at 13, and said "[i]t's possible" that DNA could be transferred
from a towel, for example, to underwear, id. at 18 ("[b]ut the more that there's a transfer of
DNA, the less you expect [the next time]"). On cross-examination, she agreed that a 700
"yield result[ ]" on a Y-STR DNA test "is pretty high up there." Id. at 28-29. And she
endorsed the BCI findings that the Y-STR DNA tests would not exclude C.C.B. Id. at 37.
{¶ 19} Ultimately, the jury found C.C.B. guilty of raping A.L., a child of under the
age of 10, through the "sexual conduct" of digital-anal penetration (Count 1), digital-vaginal
penetration (Count 3), and cunnilingus (Count 5). See id. at 97-98 (jury charge on those
three counts); August 17, 2018 Jury Verdict Forms; October 12, 2018 Judgment Entry.
{¶ 20} Evidence admitted by the close of the state's case was sufficient to sustain a
conviction. The jury had sufficient evidence to support its verdicts of guilty, and C.C.B.
No. 18AP-782 7
mounts no argument to the contrary. See Appellant's Brief at 11-15. The evidence was
uncontested that A.L. was younger than ten years old and that she was not the spouse of
C.C.B. As to Counts 1 and 3, the in-court testimony of A.L. if viewed in the light most
favorable to the prosecution was itself sufficient for the jury to convict. See, e.g., State v.
Wampler, 6th Dist. No. L-15-1025, 2016-Ohio-4756, ¶ 58 (citation omitted) ("the testimony
of a rape victim, if believed, is sufficient to support each element of rape" testified to). As
to Count 5, A.L.'s description of the conduct as given at her hospital interview, even without
regard to the discovery of amylase on her underwear, also was if viewed in the light most
favorable to the prosecution sufficient to permit a rational juror to find guilt beyond a
reasonable doubt.
{¶ 21} Moreover, after reviewing all the evidence—including the statements from
A.L., who testified in court and was fully available for cross-examination regarding her
experience and her same-day reporting of the allegations, and given the physical evidence
not only of the amylase on A.L.'s cheeks and underwear but also indicating the presence on
the vaginal and anal swabs of male DNA that would exclude most men but not C.C.B.—we
could not find that the jury clearly lost its way. The jury had the opportunity firsthand to
observe testimony from A.L., and also from her mother, and from her stepfather C.C.B., in
addition to testimony from the forensic interviewer, the nurse practitioner, the DNA
experts, and other witnesses; we find nothing that compelled the jury to disbelieve A.L. and
accept the account of C.C.B.. Compare State v. Williams, 10th Dist. No. 10AP-779, 2011-
Ohio-4760, ¶ 21 ("an appellate court 'may not substitute its judgment for that of the trier of
fact on the issue of the credibility of the witnesses unless it is patently apparent that the
factfinder lost its way' ") (citation omitted); State v. Lindsey, 10th Dist. No. 14AP-751, 2015-
Ohio-2169, ¶ 43 ("a conviction is not against the manifest weight of the evidence because
the trier of fact believed the state's version of events over the defendant's version") (citation
omitted).
{¶ 22} C.C.B. hinges his manifest weight argument on the DNA evidence, arguing
first that it was unreliable because C.C.B. and A.L. "lived in the same home, shared a
washing machine and were in close proximity to one another for a long period of time."
Appellant's Brief at 11. But the jury was entitled to believe A.L. even without regard to the
DNA evidence that buttressed her account. And, furthermore, the jury was not obliged to
No. 18AP-782 8
accept the defense theory that the results of the vaginal and anal swabs reflected DNA that
had mingled in the wash. The competing experts jousted just a bit over how plausible some
theory of DNA "transfer" might be in this context, but both gave reasoned answers and the
jury was well positioned to assess how best to weigh the DNA findings. Compare, e.g., Tr.
Vol. II at 38 (Dryer testimony: "We're talking about vaginal samples and anal samples.
These are very intimate samples * * *. You don't typically have DNA being on--for example,
DNA to transfer from the underwear to the vaginal cavities. It doesn't really work that way
unless there was some sort of body fluid deposited on the underwear which then came in
contact with that body orifice") with Tr. Vol. III at 35-36 (Heinig testimony: intimate
location on the body might not be as exposed to general touch DNA as a hand might be, but
while "more difficult," that "doesn't mean it can't happen").
{¶ 23} And C.C.B.'s argument that "DNA [was] not found in the anal sample,"
Appellant's Brief at 13 (emphasis omitted), and that "IF this story is to be believed, there
must be DNA in both places * * * * How does DNA get in the vagina but not the anus?" fails
as a matter of fact as well as of logic. See Appellant's Brief at 13-15. The state's DNA expert
testified that male DNA was identified from the anal sample, and that once testing was
done to isolate male from female DNA, that male DNA did not exclude C.C.B. or his male
relatives (although it would have excluded roughly 699 out of every 700 unrelated men).
See, e.g. Tr. Vol. II at 26 (Dryer testimony regarding "the anal samples": "Once I am able
to ignore that major female DNA was present, I do get a male DNA profile. And that male
DNA profile is, again, consistent with [C.C.B.]"). And the defense expert, incidentally,
agreed with the B.C.I. findings. Tr. Vol. III at 22, 37 (Heinig testimony endorsing BCI report
and agreeing with finding that the "Y-STR DNA that was found cannot exclude [C.C.B.] or
his male relatives").
{¶ 24} The major predicate of C.C.B.'s manifest weight argument is wrong, and
would be somewhat incidental in any event. We overrule his third assignment of error.
{¶ 25} C.C.B.'s first and second assignments of error are linked by the argument that
the video of A.L.'s CAC interview should not have been admitted, and we consider them
together. Those assignments recite that:
[1.] The trial court erred in denying the motion in limine filed
by the defense regarding the forensic interview.
No. 18AP-782 9
[2.] The trial court erred in allowing exhibits [the CAC video
and the CAC report] to be admitted over the objection of the
defense.
{¶ 26} After a discussion of legal standards and the procedural history of the case,
the only argument presented in the "Analysis" section under C.C.B.'s first assignment of
error reads in full: "This information [in the CAC video] was provided to the jury via the
testimony of the prosecuting witness. A second, subsequent piece of testimony via the video
of the prosecuting witness was merely duplicative of the testimony and therefore
unnecessary and prejudicial." Appellant's Brief at 8 (citing no authority for undue prejudice
and making no further record-based argument).
{¶ 27} That argument is inaccurate, for as we have suggested above, the CAC
interview was rather more detailed than was A.L.'s testimony at trial (which, for example,
did not directly address the allegations relating to Count 5). It is also unavailing, in that
allowing a certain amount of redundancy under these circumstances (and A.L.'s testimony
at trial, including direct and cross-examinations, consumed fewer than ten pages of the
transcript, see Tr. Vol. I at 12-20) did not in and of itself amount to abuse of discretion by
the trial court. Compare State v. Issa, 93 Ohio St.3d 49, 64 (2001) (citation omitted) ("trial
court has broad discretion in the admission of evidence, and unless it has clearly abused its
discretion and the defendant has been materially prejudiced thereby, an appellate court
should not disturb the decision of the trial court"); State v. Jordan, 10th Dist. No. 06AP-
96, 2006-Ohio-6224, ¶ 9 (hospital social worker's "description of [child victim's] comments
during the interview paralleled [the victim's] subsequent testimony at trial"; no abuse of
discretion in admitting over hearsay objection); State v. Sheldon, 12th Dist. No. CA2013-
12-018, 2014-Ohio-5488, ¶ 35 (citations omitted) (child sex abuse context; "cumulative
evidence is not necessarily inadmissible").
{¶ 28} "[T]he issue of the admissibility of cumulative evidence is governed by
exercise of discretion by the trial court." State v. Blankenship, 10th Dist. No. 80AP-221,
1981 Ohio App. Lexis 14378, *22-23. C.C.B. has not even tried to explain his contention
that what he calls the "merely duplicative" evidence caused him undue prejudice, and "in
the absence of any indication of prejudice, exercise [of discretion] by the trial court must be
affirmed," id.No. 18AP-782 10
{¶ 29} The motion in limine as referenced by the first assignment of error,
furthermore, was premised not on the interview recording being "merely duplicative" of the
live testimony, but rather seems to have been based on the assumption that A.L. would not
be available to testify and therefore not be subject to cross-examination. "Because the 6th
Amendment guarantees the accused's right to confront those who 'bear testimony', the
Confrontation Clause bars admission of testimonial statements unless the witness appears
at trial or, if the witness is unavailable, the accused had a prior opportunity for cross-
examination * * *," the motion urged. August 5, 2018 Motion in Limine at 2; see also id. at
4 (concluding that a full defense "includes the unfettered ability to cross-examine his
accuser * * * "). But A.L. did in fact testify at trial, and was cross-examined.
{¶ 30} Indeed, after A.L. had left the stand, and shortly before the recording of the
CAC interview was played to the jury, the trial court told the defense that it could question
A.L. further on the substance of her statements in the interview:
These statements are admissible for purposes of the medical
diagnosis and treatment. And she was subject to cross-
examination. I think that the defense can even re-call her if
they wanted to and ask her questions again. She is subject --
was subject to cross-examination, so I am going to permit it.
Tr. Vol. I at 50.
{¶ 31} Binding precedent establishes that where a witness testifies at trial and was
subject to cross-examination, the confrontation clause does not bar use of her earlier
statements. " '[W]hen the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his prior testimonial
statements. * * * The Clause does not bar admission of a statement so long as the declarant
is present at trial to defend or explain it.' " State v. Lang, 129 Ohio St.3d 512, 529, 2011-
Ohio-4215, quoting Crawford v. Washington, 541 U.S. 36, 59, fn. 9 (2004); State v. Arnold,
147 Ohio St.3d 138, 155-56, 2016-Ohio-1595 (quoting even more of that passage from
Crawford); see also, e.g., State v. Simms, 10th Dist. No. 10AP-1063, 2012-Ohio-2321, ¶ 42
("because E.J. testified in this matter, there is no confrontation clause issue here"), citing
State v. Rucker, 1st Dist. No. C-110082, 2012-Ohio-185, ¶ 37, quoting Lang; State v.
Sheldon, 12th Dist. No. CA2013-12-018, 2014-Ohio-5488 (same effect); Sheldon v.
Marquis, 2019 U.S. Dist. Lexis 23459 (February 13, 2019 Magistrate's Opinion; agreeing
No. 18AP-782 11
with 12th District in Sheldon on this point, and noting "the video was well-known to defense
because it was the subject of the motion in limine and defense counsel could readily have
extracted cross-examination material from it, assuming this would have been good trial
strategy").
{¶ 32} C.C.B. appears to repeat his motion in limine confrontation clause argument
regarding the CAC video under his second assignment of error, although as with his first
assignment he does not directly invoke constitutional text. "The video * * * was not
subjected to cross-examination at the time it occurred" some 14 months before trial, he
argues. Appellant's Brief at 9. To reiterate, we are bound by the principle that " 'when the
declarant appears for cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.' " Lang, supra.
{¶ 33} C.C.B. fares no better with his argument that the video, and unspecified parts
of the CAC report admitted as state's exhibit C, should have been excluded as "hearsay
without exception." Appellant's Brief at 9 (adding that "only a portion of [the hospital
report] was referred to in live testimony," and that in its 35 "typed pages it contained
hearsay without exception * * * * [and] names of individuals who were not called as
witnesses and whose inclusion in this report was not explained to the jury"). The Supreme
Court of Ohio has held that a child's statements made during a CAC interview that
"described the acts [allegedly] performed, including that [the defendant] touched her 'pee-
pee,' [and so forth, including touching with hands and mouth] were * * * necessary for * * *
proper medical diagnosis and treatment * * * ." State v. Arnold, 126 Ohio St.3d 290, 301,
2010-Ohio-2742.
{¶ 34} The Supreme Court has described that "[t]he objective of a child-advocacy
center like [this one] is neither exclusively medical diagnosis and treatment nor solely
forensic investigation. * * * * Multidisciplinary teams cooperate so that the child is
interviewed only once and will not have to retell the story multiple times. * * * * Thus, the
interview serves dual purposes: (1) to gather forensic information to investigate and
potentially prosecute a defendant for the offense and (2) to elicit information necessary for
medical diagnosis and treatment of the victim." Id. at 298-300. That is the reason that
Arnold held that "statements made to interviewers at child-advocacy centers that are made
for medical diagnosis and treatment are nontestimonial and are admissible without
No. 18AP-782 12
offending the Confrontation Clause," while "statements made to interviewers at child-
advocacy centers that serve primarily a forensic or investigative purpose are testimonial
* * *." Id. at 291-92 (case where alleged victim was unavailable to testify).
{¶ 35} Arnold places statements about who did what, in what manner, to whom in
these contexts in the category of statements made for medical diagnosis and treatment, id.
at 301, and such statements elicited during the CAC interview process therefore are not
"hearsay without exception" under Ohio law. They fall instead under the evidentiary rule
hearsay exception for "[s]tatements made for purposes of medical diagnosis or treatment
and describing * * * 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." Evid.R. 803(4). See also, e.g., State v. Dever, 64 Ohio St.3d 401,
414 (1992) ("statements made by a child during a medical examination identifying the
perpetrator of sexual abuse, if made for purpose of diagnosis and treatment are admissible
pursuant to Evid.R. 803(4) * * * * We thus find that the trial court did not abuse its
discretion in admitting [child's] statement identifying [defendant] as her abuser"); State
v. Muttart, 116 Ohio St.3d 5, 14, 2007-Ohio-5267 ("regardless of whether a child less than
ten years old has been determined to be competent to testify * * *, the child's statements
may be admitted at trial as an exception to the hearsay rule pursuant to Evid.R. 803(4) if
they were made for purposes of medical diagnosis or treatment"); Jordan, 2006-Ohio-
6224, ¶ 20 ("[t]he exception set forth in Evid.R. 803(4) extends to statements made to
social workers as long as the purpose of the statement is part of initiation of medical
diagnosis or treatment. Statements made by a child identifying the perpetrator of sexual
abuse may be pertinent to both diagnosis and treatment, because such statements will
assist medical personnel in treating any actual injury and in assessing the emotional and
psychological impact of the abuse to formulate a counseling plan or other treatment
therefore") (citations omitted, and holding at ¶ 21 that trial court had not abused discretion
in admitting interviewer's description of [testifying] child's account).
{¶ 36} Thus, in summary and as we have previously observed, the Supreme Court
has "classified information regarding the identity of the perpetrator, the type of abuse
alleged, the identification of the areas where the child had been touched and the body parts
of the perpetrator that had touched her, as well as the time frame of the abuse, as statements
No. 18AP-782 13
for diagnosis and treatment because that information allowed the doctor or nurse to
determine whether to test the child for sexually transmitted diseases, and to identify any
trauma or injury sustained during the alleged abuse." In re C.S., 10th Dist. No. 11AP-667,
2012-Ohio-2988, ¶ 14, citing Arnold.
{¶ 37} Here, many of A.L.'s CAC interview statements conveyed directly what she
said had happened to her, including where on her body and how she said C.C.B. had
inserted his fingers or mouth, or they concerned the pain that she said she had suffered, or
they expressed her concerns about bleeding or her hope that treatment was possible. These
statements were made at the hospital within hours of when she said the abuse had occurred,
and they helped to guide the necessary physical examination that the hospital undertook.
Under the governing precedent outlined above, the trial court did not abuse its discretion
in admitting all such statements pursuant to Evid.R. 803(4).
{¶ 38} Moreover, and again with regard both to the CAC video recording and the
CAC report, C.C.B. does not specify to us or analyze any particular passage, question,
answer, or other recorded statement that should have been excised as hearsay outside the
scope of the rule. We think that failure alone is basis to overrule these assignments of error.
See, e.g., In re L.W., 10th Dist. No. 17AP-587, 2018-Ohio-2099, ¶ 46 ("Appellant fails to
identify specific portions of the reports containing, or based on, hearsay evidence.
Therefore, appellant has failed to demonstrate the reports were inadmissible * * *."); App.R.
16(A)(7) (requiring appellant's brief to cite to authorities and "parts of the record on which
appellant relies"). C.C.B.'s truncated argument here does not assess the medical diagnosis
and treatment issue at all, or evaluate any particular portions of the challenged exhibits,
and we find his generalized claims unconvincing.
{¶ 39} Here, as in State v. McKinney, 10th Dist. No. 13AP-211, 2013-Ohio-5394,
¶ 23, "[t]o the extent appellant's challenges implicate Evid.R. 803(4), which appellant never
cites, his argument * * * fails." The lack of specificity is highlighted by his three-sentence
reference to the CAC report, at least parts of which he appears to concede were admissible.
See Appellant's Brief at 9 ("In those typed pages it contained hearsay without exception").
The most salient statements in the report are from the notes of trial witness Jennifer
Sherfield recounting her interview with A.L., and at least a very substantial portion of her
notes came within that Evid.R. 803(4) exception, see state's exhibit C at 13. Other
No. 18AP-782 14
statements, further reflecting for example the purpose of the hospital visit, "were
cumulative of other, properly admitted testimony [* * * *, and] we find any error in their
admission harmless" under the particular circumstances of this case and absent any better
defined or elucidated argument on appeal. See McKinney at ¶ 23; see also In re C.S., 2012-
Ohio-2988, ¶ 21 ("[a]s to those statements that are potentially not 'reasonably pertinent to
diagnosis or treatment,' * * * we conclude any error which may have occurred by their
admission is harmless as such testimony is cumulative of other, properly admitted
testimony"), citing among other cases State v. Arnold, 10th Dist. No. 07AP-789, 2010-
Ohio-5622, ¶ 8 (citing State v. Conway, 109 Ohio St.3d 412, 2006Ohio-2815, for point that
"[e]rror in the admission of testimony may be considered harmless where such testimony
is cumulative of other, properly admitted testimony"). Compare Appellant's Brief at 8
(submitting that video of CAC interview was "merely duplicative" of A.L.'s live testimony).
{¶ 40} Finally, we do not agree with any suggestion that the fact that the report
"contained names of individuals who were not called as witnesses and whose inclusion in
this report was not explained to the jury" posed a sufficient risk of jury confusion to make
its admission an abuse of discretion by the trial judge. See Appellant's Brief at 9 (citing to
transcript pages not relating to report). "The issue of whether testimony or evidence is * * *
confusing * * * is best decided by the trial judge who is in a significantly better position to
analyze the impact of the evidence on the jury. Thus, this court must affirm the trial court's
ruling absent a showing that the trial court acted unreasonably, arbitrarily or
unconscionably." State v. V.J., 10th Dist. No. 13AP-799, 2014-Ohio-2618, ¶ 46 (citations
omitted).
{¶ 41} We overrule each of C.C.B.'s three assignments of error, and we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT, P.J., and LUPER SCHUSTER, J., concur.
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