from the Franklin County Court of Common Pleas C.P.C. No.
brief: Ron O'Brien, Prosecuting Attorney, and Kimberly M.
Bond, for appellee.
brief: Maguire Schneider Hassay, and Paul L. Scarsella, for
1} D.W., defendant-appellant, appeals from a
judgment of the Franklin County Court of Common Pleas, in
which the court found appellant guilty of three counts of
rape with repeat violent offender specifications, violations
of R.C. 2907.02 and first-degree felonies; obstructing
justice, a violation of R.C. 2921.32 and a third-degree
felony; and tampering with evidence, a violation of R.C.
2921.12 and a third-degree felony.
2} Appellant and N.AB. had an on-and-off
relationship for many years. They had two children together,
one of them being N.B., who was five years old at the time of
the offenses. On September 19, 2015, after appellant had
briefly babysat N.B. and her siblings, N.B. reported to
N.A.B. that appellant had touched her inappropriately. That
same day, N.A.B. took N.B. to Nationwide Children's
Hospital ("Nationwide"). At Nationwide, Emily
Combes, a forensic interviewer with the Child Advocacy Center
("CAC"), which is part of Nationwide's Center
for Family Safety and Healing, interviewed N.B. Stacy
Baumeyer, a sexual assault nurse examiner ("SANE")
at Nationwide, then performed a medical examination on N.B.
and collected various biological samples for laboratory
analysis. Testing revealed that sperm fragments collected
from N.B.'s body matched appellant's DNA.
3} While appellant was in jail, N.A.B. visited him
and spoke to him on the jail phone. On the recorded phone
call, appellant asked N.A.B. to tell police that he did not
rape N.B. N.A.B. submitted a letter to police, recanting the
allegations against appellant and stating she had planted the
evidence on N.B.
4} On March 11, 2016, appellant was indicted on four
counts of rape with repeat violent offender specifications,
obstructing justice, and tampering with evidence. The
obstructing justice and tampering with evidence charges
stemmed from the phone conversation with N.A.B. and the
letter N.A.B. submitted to police.
5} A bench trial was held before the trial court
after which the trial court found appellant guilty on all
counts. The court held a sentencing hearing on August 21,
2018. On August 28, 2018, the trial court issued a judgment
entry in which the trial court merged the first and second
rape counts and the third and fourth rape counts for purposes
of sentencing. Plaintiff-appellee, the State of Ohio, elected
sentencing on the second and fourth counts. The court
sentenced appellant to 25 years to life with parole as to the
second and fourth counts, and 24 months each as to the fifth
and sixth counts, with Counts 2 and 4 running concurrently to
each other but consecutive to Counts 5 and 6, for a total
sentence of 27 years to life with parole. Appellant appeals
the judgment of the trial court, asserting the following
assignment of error:
THE TRIAL COURT ERRED TO THE DETRIMENT OF THE APPELLANT'S
RIGHT TO A FAIR TRIAL WHEN IT ALLOWED EVIDENCE OF THE
FORENSIC INTERVIEW WITHOUT A SUFFICIENT RELATIONSHIP TO THE
MEDICAL PURPOSE OF THE INTERVIEW.
6} Appellant argues in his assignment of error the
trial court erred when it allowed evidence of Combes's
forensic interview with N.B. without sufficient relationship
to the medical purpose of the interview. Generally, the
admission or exclusion of evidence lies in the sound
discretion of the trial court. State v. Darazim,
10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 33, citing
State v. Bartolomeo, 10th Dist. No. 08AP-969,
2009-Ohio- 3086, ¶ 24. An abuse of discretion implies
that the court's attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
7} In the present case, appellant did not object to
the admission of N.B.'s statements to Combes during
trial; thus, our review is limited to consideration of
whether the trial court committed plain error. See State
v. Hairston, 10th Dist. No. 01AP-299 (Oct. 18, 2001),
citing State v. Robertson, 90 Ohio App.3d 715, 728
(2d Dist.1993) (finding that the failure to object to
evidence at trial constitutes a waiver of any challenge on
that evidence on appeal, except for plain error). "Plain
errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the
court." Crim.R. 52(B). Plain error exists when there is
error, the error is an obvious defect in the trial
proceedings, and the error affects substantial rights.
State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68.
A court recognizes plain error with the utmost caution, under
exceptional circumstances, and only to prevent a manifest
miscarriage of justice. Id.
8} Here, the crux of appellant's argument is
that the statements made by N.B. to Combes were testimonial
and made for investigatory purposes and not for the purpose
of medical diagnosis. Appellant's argument focuses on the
decision in State v. Arnold, 126 Ohio St.3d 290,
2010-Ohio-2742; thus, we will first comprehensively review
Arnold. In Arnold, the defendant was found
guilty of sexually abusing his four-year-old daughter. The
child was taken to Nationwide, where evidence for a rape kit
was collected. The next day, the child was interviewed at
Nationwide's Center for Child and Family Advocacy
("CCFA") by a social worker employed by CCFA. The
child indicated the defendant's "pee-pee" went
inside her "pee-pee" and his mouth touched her
"pee-pee." The child also made statements related
to the police investigation; for example, that the defendant
closed and locked the bedroom door before raping her, and he
removed her underwear. After the interview, the child was
physically examined by a pediatric nurse practitioner who
worked at CCFA. The defendant was indicted on two counts of
rape. At trial, the court determined the statements made to
the social worker had been made for the purpose of medical
diagnosis and were admissible hearsay under Evid.R. 803(4)
and not barred by the confrontation clause. The jury
eventually found the defendant guilty of one count of rape.
This court affirmed the trial court's decision in
State v. Arnold, 10th Dist. No. 07AP-789,
9} The Supreme Court of Ohio accepted the appeal to
determine whether the out-of-court statements made by a child
to an interviewer employed by a child advocacy center violate
the right to confront witnesses. The court found that in
interviewing the child at CCFA, the social worker occupied
dual capacities as both a forensic interviewer collecting
information for use by police and a medical interviewer
eliciting information necessary for diagnosis and treatment.
The court held the statements made to interviewers at child
advocacy centers that are made for medical diagnosis and
treatment are non-testimonial and are admissible without
offending the confrontation clause. However, the court
further held ...