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State v. D.W.

Court of Appeals of Ohio, Tenth District

June 4, 2019

State of Ohio, Plaintiff-Appellee,
[D.W.], Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16CR-1397

          On brief: Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.

          On brief: Maguire Schneider Hassay, and Paul L. Scarsella, for appellant.


          BROWN, J.

         {¶ 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:


         {¶ 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, 2008-Ohio-3471.

         {¶ 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 ...

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