State v. Smith

[Cite as State v. Smith, 2023-Ohio-1613.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-22-40
v.
MATTHEW W. SMITH, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2020 0355
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: May 15, 2023
APPEARANCES:
William T. Cramer for Appellant
John R. Willamowski, Jr. for Appellee
Case No. 1-22-40
EPLEY, J.
{¶ 1} Defendant-appellant Matthew W. Smith appeals from his convictions
in the Allen County Court of Common Pleas on twelve counts of rape (victim under
age 13), five counts of rape by force or threat of force, and four counts of gross
sexual imposition (victim under age 13). Smith claims that his right to confront
witnesses was violated at trial by the admission of two of the children’s forensic
interviews, that two of his rape convictions were based on insufficient evidence, and
that errors occurred with his sentence. For the following reasons, the trial court’s
judgment is affirmed in part and reversed in part, and the matter is remanded for
resentencing on Counts 1, 2, 3, and 24.
I. Facts and Procedural History
{¶ 2} The victims of Smith’s offenses were his three step-daughters: H.B.
(born in 2007), Ab.B. (born in 2009), and Al.B. (born in 2012). The three girls
resided with their father, but they had parenting time with their mother every other
weekend and some other times. Smith met their mother in 2016, and she moved in
with him around February of 2017. The couple eventually married, and they lived
in multiple locations between 2017 and 2020, mostly in Allen County.
{¶ 3} In late August or early September 2020, Al.B. told her father that Smith
had been touching her. The girls’ father talked to his daughters and obtained a civil
protection order against his ex-wife and Smith. Ryan Pratt of Logan County
Children Services became involved, and he scheduled forensic interviews for all
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three girls. Pratt contacted Officer Chad Kunkleman, a juvenile investigator with
the Lima Police Department, and informed the officer about the allegations against
Smith and the planned interviews.
{¶ 4} On September 9, 2020, the girls were taken to Nationwide Children’s
Hospital in Columbus, Ohio, where they were separately interviewed by a forensic
interviewer and then received a medical examination. H.B., Ab.B., and Al.B. each
reported sexual abuse by Smith, and they said Smith told them that they would be
in trouble if they told anyone.
{¶ 5} During her interview, H.B. reported ongoing abuse by Smith. She
indicated that Smith repeatedly rubbed her chest and vaginal area, had her stroke his
penis, performed oral sex on her, and had her perform oral sex on him. Beginning
a few months before the interview, Smith began forcing H.B. to have vaginal
intercourse with him; she indicated this occurred more than ten times. At one point,
Smith had told H.B. that he would marry her when she turned 18 years old.
{¶ 6} Ab.B. revealed that, on several occasions, Smith had her rub his penis
while he rubbed her “monkey,” sliding his finger “through the crease.” Smith also
squeezed Ab.B.’s breast and buttocks. She said that Smith twice tried to put his
penis in her buttocks, but she clenched her butt cheeks.
{¶ 7} Al.B. told her interviewer that Smith repeatedly had her rub his penis,
that he repeatedly rubbed her “monkey,” that he once forced her to suck on his penis,
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and that he once put his penis in her buttocks and “kept pushing [her] down on it.”
{¶ 8} After reading the hospital reports, Officer Kunkleman consulted with
Detective Steven Stechschulte about the case. Kunkleman also prepared an arrest
warrant for Smith and a search warrant for his residence. On September 22, 2020,
pursuant to the warrants, Smith was arrested, and his home was searched.
{¶ 9} Detective Stechschulte twice interviewed Smith: first on the day of his
arrest and again the following day. Smith initially denied any sexual contact with
the children and suggested that their father had coerced them into making the
allegations. He later admitted to sexual conduct with H.B., although he denied
vaginal intercourse. At that time, Smith asserted that, “with the two younger ones,
there was no contact whatsoever.” By the end of the first interview, Smith admitted
that he performed oral sex on H.B. approximately 20 to 30 times, that she performed
oral sex on him “about the same amount, maybe less,” but at least 20 times, that
H.B. stroked his penis at least 30 times, and that he had stroked H.B. between her
lips (meaning, labia majora) approximately 15 times. Smith continued to deny
sexual contact with Ab.B. and Al.B.
{¶ 10} The second interview focused largely on Smith’s conduct with Ab.B.
and Al.B. Smith admitted to four or five instances where Ab.B. stroked his penis;
a couple of those times, Smith also rubbed Ab.B. between her lips. He stated that
Ab.B. performed oral sex on him one time. He acknowledged grabbing her buttocks
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but denied engaging in anal sex. Smith stated that there was only one occasion with
Al.B. that could be considered sexual with her, where she touched his penis. Smith
claimed that he was not sexually attracted to Ab.B. and Al.B. because they were
young children. With H.B., however, he felt that she was there for him and “got
confused.” Smith wrote an apology letter to the girls.
{¶ 11} In November 2020, Smith was charged in an 83-count indictment
with 59 counts of rape in violation of R.C. 2907.02(A)(1)(b), 10 counts of rape in
violation of R.C. 2907.02(A)(2), 10 counts of sexual battery in violation of R.C.
2907.02(A)(5), and 4 counts of gross sexual imposition in violation of R.C.
2907.05(A)(4). Many of the counts included an allegation that the victim was
compelled to submit by force or threat of force or that the victim was under 10 years
of age.
{¶ 12} In pretrial motions, Smith sought to suppress the statements he made
during his police interviews. After reviewing the video recordings of the two
interviews, the trial court denied the first motion to suppress. Smith withdrew his
second motion. Citing the Confrontation Clause of the Sixth Amendment and
hearsay rules, Smith also filed a motion in limine, seeking to prohibit the State from
introducing the recorded forensic interviews and from having any witness testify to
the girls’ out-of-court statements. After a hearing, the trial court denied Smith’s
motion.
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{¶ 13} A bench trial was held on June 21 and 22, 2022. Immediately before
the start of trial, the State dismissed numerous counts, and the matter proceeded on
26 counts: 19 counts related to H.B. (3 counts of gross sexual imposition, 5 counts
of sexual battery, and 11 counts of rape), 2 counts related to Ab.B. (both rape), and
5 counts related to Al.B. (4 counts of rape and 1 count of gross sexual imposition).
The State presented the testimony of three law enforcement officers, the two
forensic interviewers, and H.B. The prosecution also offered 28 exhibits, including
redacted video recordings of the girls’ forensic interviews and of Detective
Stechschulte’s two interviews with Smith. The videos were admitted over defense
counsel’s objection. Smith offered no evidence in his defense.
{¶ 14} On June 23, 2022, the trial court found Smith guilty of all offenses.
The court immediately proceeded to sentencing, where it merged the sexual battery
counts into Counts 10-14 and imposed the following sentences, all of which it
determined were mandatory terms:
Count Orig.# Offense Statute Degree Child Sentence
1 1 GSI 2907.05(A)(4) F3 H.B. 60 months
2 2 GSI 2907.05(A)(4) F3 H.B. 60 months
3 3 GSI 2907.05(A)(4) F3 H.B. 60 months
4 4 Rape 2907.02(A)(1)(b) F1 H.B. 25 years to
(force) life
5 5 Rape 2907.02(A)(1)(b) F1 H.B. 25 years to
(force) life
6 24 Rape 2907.02(A)(1)(b) F1 H.B. 25 years to
(force) life
7 25 Rape 2907.02(A)(1)(b) F1 H.B. 25 years to
(force) life
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8 44 Rape 2907.02(A)(1)(b) F1 H.B. 25 years to
(force) life
9 45 Rape 2907.02(A)(1)(b) F1 H.B. 25 years to
(force) life
10 54 Rape 2907.02(A)(2) F1 H.B. Minimum 11
years to
maximum of
16.5
11 55 Rape 2907.02(A)(2) F1 H.B. Minimum 11
years to
maximum of
16.5
12 56 Rape 2907.02(A)(2) F1 H.B. Minimum 11
years to
maximum of
16.5
13 57 Rape 2907.02(A)(2) F1 H.B. Minimum 11
years to
maximum of
16.5
14 58 Rape 2907.02(A)(2) F1 H.B. Minimum 11
years to
maximum of
16.5
20 74 Rape 2907.02(A)(1)(b) F1 Ab.B. Life in prison
(under 10) without
possibility of
parole
21 78 Rape 2907.02(A)(1)(b) F1 Ab.B. 25 years to
(force) life
22 79 Rape 2907.02(A)(1)(b) F1 Al.B. Life in prison
(under 10) without
possibility of
parole
23 80 Rape 2907.02(A)(1)(b) F1 Al.B. Life in prison
(under 10) without
possibility of
parole
24 81 GSI 2907.05(A)(4) F3 Al.B. 60 months
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25 82 Rape 2907.02(A)(1)(b) F1 Al.B. Life in prison
(under 10) without
possibility of
parole
26 83 Rape 2907.02(A)(1)(b) F1 Al.B. Life in prison
(under 10) without
possibility of
parole
The trial court ordered all counts relating to a particular child be served
concurrently, but that the three sets of charges be served consecutively – Counts 1
to 14 (aggregate 25 years to life) were to be served consecutively to Counts 20 and
21 (aggregate life without parole) and Counts 20 and 21 were to be served
consecutively to Counts 22 to 26 (aggregate life without parole). The court notified
Smith that he would be required to register as a Tier III sex offender.
{¶ 15} Smith appeals from his convictions, raising five assignments of error.
We will address them in a manner that facilitates our analysis.
II. Sufficiency of the Evidence on Counts 20 & 21
{¶ 16} In his second assignment of error, Smith claims that his convictions
on Counts 20 and 21 – the two rape counts concerning Ab.B. – were based on
insufficient evidence and, therefore, violated his right to due process.
{¶ 17} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
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St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by
state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89,
684 N.E.2d 668 (1997). Consequently, “[t]he relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” Id.; State v. Troche, 3d Dist. Marion No. 9-22-18, 2023-Ohio-
565, ¶ 18.
{¶ 18} When reviewing claims based on the sufficiency of the evidence, we
are required to consider all the evidence admitted at trial, regardless of whether it
was admitted erroneously. See State v. Fleming, 2d Dist. Clark No. 2021-CA-40,
2022-Ohio-1876, ¶ 27, citing, e.g., State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-
593, 903 N.E.2d 284. Accordingly, we must consider the disputed recordings of the
forensic interviews in conducting our analysis.
{¶ 19} Counts 20 and 21 each involved a charge of rape in violation of R.C.
2907.02(A)(1)(b). Count 20 concerned digital penetration and included an
allegation that the victim was less than 10 years old. Count 21 concerned fellatio
and included an allegation that Smith purposefully compelled the victim to submit
by force or threat of force.
{¶ 20} R.C. 2907.02(A)(1)(b) is Ohio’s statutory rape statute, imposing strict
liability on a person who has sexual conduct with a child under the age of 13. State
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v. Alexander, 3d Dist. Allen No. 1-22-11, 2023-Ohio-123, ¶ 16, citing In re D.B.,
129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d 528, ¶ 30. Under that statute,
“[n]o person shall engage in sexual conduct with another who is not the spouse of
the offender * * * when any of the following applies: * * * (b) The other person is
less than thirteen years of age, whether or not the offender knows the age of the
other person.” R.C. 2907.02(A)(1)(b).
{¶ 21} “Sexual conduct” is defined as “vaginal intercourse between a male
and female; anal intercourse, fellatio, and cunnilingus between persons regardless
of sex; and, without privilege to do so, the insertion, however slight, of any part of
the body or any instrument, apparatus, or other object into the vaginal or anal
opening of another.” R.C. 2907.01(A). “Penetration, however slight, is sufficient
to complete vaginal or anal intercourse.” Id. This court has repeatedly recognized
that if the force of an object, like a finger, causes a victim’s labia to spread, that is
sufficient penetration to constitute “sexual conduct” under R.C. 2907.02(A)(1)(b).
E,g, State v. McCoy, 3d Dist. Marion No. 9-18-23, 2020-Ohio-4511, ¶ 72; Alexander
at ¶ 38, fn.4, quoting State v. Sanchez-Sanchez, 8th Dist. Cuyahoga No. 110885,
2022-Ohio-4080, ¶ 125; State v. Carter, 3d Dist. Allen No. 1-21-19, 2022-Ohio-
1444, ¶ 99, fn. 9.
{¶ 22} Ab.B. did not testify at trial, but a redacted video recording of her
forensic interview was played for the court. See State’s Exhibit 24. During her
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interview, Ab.B. described an incident when Smith touched her while she rubbed
his penis. She indicated that Smith first touched her breasts, then slid down to her
“monkey,” and finally moved his hand back to “squish her butt cheek.” When asked
about how he touched her “monkey,” Ab.B. said that Smith put his hand in her pants
and began to rub it, touching her skin. She indicated that he put his finger “in the
middle of it” and start rubbing it; his finger slid “through the crease.”
{¶ 23} During his second interview with Detective Stechschulte, Smith
admitted to touching Ab.B. He stated that Ab.B. came into the room when he and
H.B. were touching each other and wanted to try. Smith indicated that Ab.B.
lowered her own pants and they “tried it.” Smith stated that he did not get hard, and
they stopped after a couple minutes because he was not aroused by it. Smith told
the detective that H.B. was in the room, talking with him as if nothing were
happening. When asked by Detective Stechschulte if he touched Ab.B. the same
way he touched H.B., i.e., by going slightly between the two lips and rubbing, Smith
responded affirmatively. Smith agreed with Ab.B.’s description of going “through
the crease.” Smith also told the detective about a similar incident, approximately a
week later, where Smith and Ab.B. again were rubbing each other. Smith identified
the address where he lived when these incidents occurred; Ab.B. was 9 years old for
two of the three months that they lived there. She told her forensic interviewer that
she was 8 or 9 years old when the abuse began and 10 years old when it ended.
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Construing the evidence in the light most favorable to the State, Smith’s and Ab.B.’s
statements were sufficient to establish rape, as alleged in Count 20.
{¶ 24} Ab.B. did not describe any incidents where she performed fellatio on
Smith. However, in his second interview with Detective Stechschulte, Smith told
the officer about a time when Ab.B. came into the room while H.B. was performing
oral sex on him. According to Smith, H.B. told her sister to “try it.” Smith indicated
that Ab.B. sucked on his penis for “about a minute” but stopped because she did not
like the taste. Smith’s admission was sufficient to prove that Smith committed rape
by means of fellatio.
{¶ 25} Count 21 also alleged that the victim was compelled to submit by
“force or threat of force.” “Force” is defined as “any violence, compulsion, or
constraint physically exerted by any means upon or against a person or thing.” R.C.
2907.01(A)(1). “A threat of force can be inferred from the circumstances
surrounding sexual conduct.” State v. Schaim, 65 Ohio St.3d 51, 600 N.E.2d 661(1992), paragraph one of the syllabus; State v. Cook, 3d Dist. Union No. 14-19-26,
2020-Ohio-3411 ¶ 117.
{¶ 26} The force necessary to commit rape varies based on the respective
age, size and strength of the parties and their relation to each other. State v.
Eskridge, 38 Ohio St.3d 56, 58, 526 N.E.2d 304, (1988); Cook at ¶ 117. “[W]hen
the rape involves a child and that child’s parent, or person who stands in loco
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parentis, subtle and psychological forms of coercion sufficiently show force.” State
v. Shadoan, 4th Dist. Adams No. 03CA764, 2004-Ohio-1756, ¶ 21. “As long as it
can be shown that the rape victim’s will was overcome by fear or duress, the forcible
element of rape can be established.” Eskridge at 59. “A child’s will can be
overcome by fear and duress when [a parent] tells the child to do something, and
commands the child not to tell anyone about it.” State v. Dehner, 12th Dist.
Clermont No. CA2012-12-090, 2013-Ohio-3576, ¶ 19, citing Eskridge at 58.
{¶ 27} Although Smith suggested that Ab.B. was not forced to comply,
Ab.B. stated in her forensic interview that she would be in trouble if she told anyone.
She further said that if the girls did not do what Smith asked, he would get mad and
tell her mother that they were not bonding with him and then their mother would get
mad at them. Ab.B. was between eight and ten years old when the abuse occurred.
Given the respective ages of Smith and Ab.B. and Smith’s stepparent relationship
to her, Smith’s oral threats were sufficient to constitute force within the meaning of
R.C. 2907.01(A).
{¶ 28} Smith’s second assignment of error is overruled.
III. Admission of Forensic Interviews
{¶ 29} In his first assignment of error, Smith contends that his federal and
state rights to confront witnesses against him were violated by the admission of the
redacted video recordings of the forensic interviews of Ab.B. and Al.B., who did
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not testify at trial. Smith does not claim on appeal that the recordings constituted
inadmissible hearsay.
{¶ 30} The Confrontation Clause of the Sixth Amendment to the United
States Constitution provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right * * * to be confronted with the witnesses against him.” Section 10,
Article I of the Ohio Constitution, which includes the right “to meet face to face,”
provides “no greater right of confrontation than the Sixth Amendment.” State v.
Self, 56 Ohio St.3d 73, 79, 564 N.E.2d 446 (1990).
{¶ 31} Under the federal Confrontation Clause, testimonial out-of-court
statements are prohibited, unless the witness is unavailable to testify and the
defendant has had a prior opportunity to cross-examine the witness. State v. Tench,
156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 17; Crawford v.
Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Crawford did not define “testimonial,” but it is generally understood that testimonial
statements are those made for “a primary purpose of creating an out-of-court
substitute for trial testimony.” Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143,
179 L.Ed.2d 93 (2011); State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9
N.E.3d 930, ¶ 40; State v. Bender, 3d Dist. Union No. 14-19-22, 2020-Ohio-722, ¶
10.
{¶ 32} In Arnold, the Ohio Supreme Court addressed whether statements
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made to interviewers at a child advocacy center were testimonial and thus
inadmissible pursuant to Confrontation Clause when the child was unavailable for
cross-examination at trial. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742,
933 N.E.2d 775. The Court noted that child advocacy centers are unique in that
multidisciplinary teams cooperate so that the child is interviewed only once. Id. at
¶ 33. Consequently, the interviews serve dual purposes: (1) to gather forensic
information needed by the team, and (2) to elicit information necessary for medical
diagnosis and treatment. The Supreme Court held that statements made to the
interviewer that served primarily a forensic or investigative purpose were
testimonial, whereas those made for medical diagnosis and treatment were not. Id.
at paragraphs one and two of the syllabus, ¶ 44. The Supreme Court noted that “the
fact that police officers watched the interview and that it was recorded does not
change the fact that the statements were necessary for [the child’s] medical
diagnosis and treatment. Similarly, the fact that information gathered for medical
purposes is subsequently used by the state does not change the fact that the
statements were made for medical diagnosis and treatment.” Id. at ¶ 43.
{¶ 33} Shortly after Arnold was rendered, this court affirmed the trial court’s
exclusion of a child’s statements that were made in an interview with a social worker
with Logan County Children Services. State v. Goings, 3d Dist. Logan No. 8-11-
03, 2012-Ohio-1793. In that case, the social worker testified that the purpose of the
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interview was to determine the veracity of the allegations and whether the child
required medical or emotional treatment. Based on the child’s statements during
the interview, the social worker recommended that the child be taken to the hospital,
but indicated it was not an emergency to do so. No information was forwarded to a
medical facility or medical professional, and the social worker was not working with
a medical professional; to the contrary, the social worker contacted the police
following the interview. We concluded that “nothing in the interview supports a
conclusion that any part of the interview was directed to medical diagnosis or
treatment[.]” Goings at ¶ 34.
{¶ 34} More recently, this court held that an interview conducted under
circumstances like those before us was for medical diagnosis and treatment. State
v. Speicher, 3d Dist. Union No. 14-13-17, 2020-Ohio-3845 (we did not address the
Confrontation Clause, because the child testified at trial.). There, the interview was
performed by a licensed social worker / medical forensic interviewer, and the
interviewer testified at a suppression hearing that she interviewed the child for the
purpose of medical diagnosis and treatment before the child was examined by a
physician; the physician observed the interview. Law enforcement was not present
during the interview, and the social worker was unaware whether law enforcement
had been notified of the allegations when the interview occurred.
{¶ 35} In the context of whether statements fell under Evid.R. 803(4), the
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medical diagnosis or treatment exception to the hearsay rule, we also have noted
that “[a] narrative account containing peripheral details as the victim recounts
abusive activities can be made for the primary purpose of medical diagnosis or
treatment.” Bender at ¶ 16, quoting State v. Warman, 12th Dist. Butler No.
CA2016-02-029, 2017-Ohio-244, ¶ 71 (Piper, J., concurring.). We held that a
sexual assault nurse’s recounting at trial of a rape victim’s narrative account of the
sexual assault was admissible as a statement made for the purpose of medical
diagnosis or treatment. Id.{¶ 36} In this case, Ab.B. and Al.B. were interviewed by Celeste Prince, who
was employed as a “forensic interviewer and trafficked and exploited youth case
coordinator” by The Center for Family Safety and Healing, which is part of
Nationwide Children’s Hospital. The center is an outpatient clinic for the hospital
that houses the child advocacy center and other victim services. (Tr. 93.)
{¶ 37} Prince testified that the goal of a forensic interview is to “gather
information about suspected abuse or neglect for medical diagnosis and treatment,”
most often for sexual abuse. (Tr. at 94.) She stated that when conducting a forensic
interview, she speaks with doctors about the allegations prior to the interview, the
doctors observe the interviews, and she receives feedback from them during the
interview process about additional information that would be useful to them for their
subsequent medical exams. When interviewing for suspected sexual abuse, relevant
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information includes the body parts involved, the time frame of the alleged abuse,
the identity of the abuser, the relationship between the alleged abuser and the victim,
and whether threats had been made. After completing the interview and prior to the
child receiving a medical exam, Prince speaks with the medical professional about
the information received and answers any questions the medical professional might
have. She then writes a summation of the interview for the medical record. Prince
described the “neutral and open-ended approach” to questioning that she employs
as an interviewer, and she testified that she followed her interview procedure when
conducting the interviews of Al.B. and Ab.B.
{¶ 38} Officer Kunkleman testified that he was aware that interviews for the
girls had been scheduled at Nationwide Children’s Hospital, and he later received
information from Nationwide regarding the girls’ disclosure of sexual abuse.
However, there was no testimony at trial that Kunkleman was present for or
otherwise involved in Prince’s interviews of Ab.B. and Al.B.
{¶ 39} Under the facts of this case, the statements made during Prince’s
forensic interviews were for the children’s medical diagnosis and treatment.
Moreover, there is no suggestion that Prince was acting on behalf of law
enforcement or sought to obtain details of the abuse of Ab.B. and Al.B. to further
law enforcement’s investigation. The admission of the redacted video recordings
of the interviews of Ab.B. and Al.B. did not violate the Confrontation Clause.
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{¶ 40} Smith’s first assignment of error is overruled.
IV. Mandatory Sentence for Gross Sexual Imposition
{¶ 41} Smith’s third assignment of error claims that the trial court erred by
imposing mandatory prison terms for gross sexual imposition based on a finding
that there was evidence to corroborate the victim’s claims. His fourth assignment
of error argues that his trial counsel rendered ineffective assistance by failing to
object to the unconstitutional mandatory prison term. The State apparently agrees
that the trial court erred, but it argues that this “is likely a procedural formality as
defendant would have to overcome the presumption of prison,” and it asks us to
“decline to entertain a plain error analysis.”
{¶ 42} Under R.C. 2953.08(G)(2), an appellate court may reverse or modify
a sentence “only if it determines by clear and convincing evidence that the record
does not support the trial court's findings under relevant statutes or that the sentence
is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231, ¶ 1; State v. Crose, 3d Dist. Crawford No. 3-22-34, 2023-
Ohio-880, ¶ 17. Clear and convincing evidence is that “ ‘which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.’ ” Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d
118 (1954), paragraph three of the syllabus.
{¶ 43} Smith was convicted of four counts of gross sexual imposition, in
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violation of R.C. 2907.05(A)(4), a felony of the third degree. Counts 1-3, which
concerned H.B., allegedly occurred between March 1, 2019 and June 30, 2019.
Count 24, involving Al.B., allegedly occurred between February 1, 2020 and
September 9, 2020.
{¶ 44} In general, there is a presumption that a prison sentence will be
imposed for a violation of R.C. 2907.05(A)(4). Former R.C. 2907.05(C)(2). When
Smith committed gross sexual imposition, R.C. 2907.05(C)(2) further required a
mandatory prison term for gross sexual imposition as a third-degree felony if either:
(a) Evidence other than the testimony of the victim was admitted in
the case corroborating the violation; [or]
(b) The offender previously was convicted of or pleaded guilty to a
violation of this section, rape, the former offense of felonious sexual
penetration, or sexual battery, and the victim of the previous offense
was less than thirteen years of age.
See former R.C. 2907.05(C)(2) (2007 Am.Sub.S.B. 10, 2018 Am.Sub.S.B. 201, and
2018 Sub.S.B.229). We note that R.C. 2907.05(C) has since been modified, and it
no longer includes the corroboration language in former R.C. 2907.05(C)(2)(a).
{¶ 45} The Ohio Supreme Court has held former R.C. 2907.05(C)(2)(a) to
be unconstitutional. State v. Bevly, 142 Ohio St.3d 41, 2015-Ohio-475, 27 N.E.3d
516, paragraph one of the syllabus. The Court found no rational basis for
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distinguishing between cases based on the presence or the absence of corroborating
evidence. Id. at ¶ 1, ¶ 18. It thus held that R.C. 2907.05(C)(2) violated the due
process protections of the Fifth and Fourteenth Amendments to the United States
Constitution. Id. at ¶ 19.
{¶ 46} Here, the trial court found that prison was mandatory for the gross
sexual imposition counts due to R.C. 2907.05(C)(2)(a). In light of Bevly, the trial
court’s imposition of mandatory prison sentences under that statute was contrary to
law.
{¶ 47} Even if we were to employ a plain error analysis, we would conclude
that the imposition of a mandatory sentence under R.C. 2907.05(C)(2)(a) amounts
to plain error. An error qualifies as “plain error” only if it is obvious and but for the
error, the outcome of the proceeding clearly would have been otherwise. State v.
Barnhart, 3d Dist. Putnam No. 12-20-08, 2021-Ohio-2874, ¶ 8, citing State v.
Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 32. In this case,
the error is obvious, and any sentence imposed by the trial court for gross sexual
imposition upon remand would be different, as it would not be a mandatory
sentence. Although resentencing will have no practical effect on the length of
Smith’s imprisonment, given his sentences of life without the possibility of parole,
we nevertheless find it appropriate to remand for resentencing on Counts 1, 2, 3,
and 24.
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{¶ 48} Smith’s third assignment of error is sustained. Considering our
disposition of the third assignment of error, Smith’s fourth’s assignment of error is
overruled as moot.
V. Constitutionality of the Reagan Tokes Act
{¶ 49} In his fifth assignment of error, Smith claims that the imposition of
indefinite sentences under the Reagan Tokes Act violated “the jury trial guarantee,
the doctrine of separation of powers, and due process principles under the federal
and state constitutions.” The trial court imposed indefinite sentences under the
Reagan Tokes Act for Counts 10 through 14.
{¶ 50} “Since the indefinite sentencing provisions of the Reagan Tokes Law
went into effect in March 2019, we have repeatedly been asked to address the
constitutionality of these provisions. We have invariably concluded that the
indefinite sentencing provisions of the Reagan Tokes Law do not facially violate
the separation-of-powers doctrine or infringe on defendants’ due process rights.”
(Citations omitted.) State v. Ball, 3d Dist. Allen No. 1-21-16, 2022-Ohio-1549, ¶
59. In Ball, this court also rejected the appellant’s argument that the Reagan Tokes
Act violates a defendant’s constitutional right to a trial by jury. Id. at ¶ 61-63. We
find no basis to depart from our earlier precedent regarding the constitutionality of
the Reagan Tokes Act.
{¶ 51} Smith’s fifth assignment of error is overruled.
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VI. Conclusion
{¶ 52} The judgment of the Allen County Court of Common Pleas is
affirmed in part and reversed in part, and the matter is remanded for resentencing
on Counts 1, 2, 3, and 24.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
MILLER, P.J. and ZIMMERMAN, J., concur.
/jlr
** Judge Christopher B. Epley of the Second District Court of Appeals, sitting
by Assignment of the Chief Justice of the Supreme Court of Ohio.
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