State v. Minor

[Cite as State v. Minor, 2024-Ohio-1465.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

RANDOLPH P.C. MINOR,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 23 CO 0027

Criminal Appeal from the
Court of Common Pleas of Columbiana County, Ohio
Case No. 2022 CR 297

BEFORE:
Carol Ann Robb, Cheryl L. Waite, Judges and
William A. Klatt, Retired Judge of the Tenth District Court of Appeals,
Sitting by Assignment.

JUDGMENT:
Affirmed.

Atty. Vito J. Abruzzino, Prosecuting Attorney, Atty. Shelley M. Pratt, Assistant Prosecuting
Attorney, Columbiana County Prosecutor’s Office, for Plaintiff-Appellee and

Atty. James R. Wise, for Defendant-Appellant

Dated: April 15, 2024
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Robb, P.J.

{¶1} Defendant-Appellant Randolph P.C. Minor appeals after being convicted of
multiple sex offenses in the Columbiana County Common Pleas Court. He alleges the
state did not sufficiently authenticate a video of the child-victim’s interview at the hospital
before playing it for the jury. He also contends his confrontation clause rights were
violated, claiming the video contained testimonial evidence because some statements
were generated with a primary purpose of investigation instead of medical diagnosis or
treatment. For the following reasons, Appellant’s convictions are affirmed.
STATEMENT OF THE CASE
{¶2} Appellant was indicted on three counts of rape, one count of attempted
rape, and one count of gross sexual imposition, starting when the child was 11 and
continuing until the month after she turned 12 years old. See R.C. 2919.22(A)(1)(b) (rape
by sexual conduct with a child under 13 years of age); R.C. 2907.05(A)(4) (gross sexual
imposition by sexual contact with a child under 13 years of age). At the jury trial, the
victim testified Appellant was her mother’s boyfriend, whom she initially trusted. She said
she was 11 years old when Appellant moved into the trailer where she lived with her
mother and siblings (Tr. 300). The children were left alone with him when the mother
worked in the evenings. (Tr. 302).
{¶3} Within weeks of moving in, Appellant started sexually assaulting the victim.
Initially, she was in her mother’s bed watching television with her younger sister when
Appellant touched her vagina through her clothing; he then did it again after bringing her
to the living room couch. (Tr. 304-305). He would also watch her shower. (Tr. 306).
Another time, Appellant pulled the victim’s pants down while she was on her mother’s bed
and put his mouth on her vagina. She testified her sister walked in during this act. (Tr.
306, 312).
{¶4} In addition, Appellant would play a game where he would turn off the lights,
act scary, and chase the children around the house. During the game, he would pull the
victim into a closet, take her pants down, and put his mouth on her vagina. (Tr. 306-308).

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If another child entered the room, Appellant would jump out of the closet and scare them.
(Tr. 307). Sometimes, the victim’s mother was in the house during the game. (Tr. 326).
{¶5} During another incident, Appellant took his penis out while the victim was
in her mother’s bed, rubbed his penis on her clothed private area, and made the victim
put her mouth on his penis. (Tr. 309). When asked if Appellant ever did anything else
with his penis, the victim testified, “He has attempted putting it inside, but he said it wasn’t
going to work.” On being asked to clarify where he was trying to put his penis, she said,
“My vagina.” (Tr. 310).
{¶6} At some point, the victim approached Appellant to beg him to discontinue
the sexual behavior. Appellant told the victim her mother would be mad at her and would
not believe her; he also said he would stop speaking to her and she would never see his
daughter again. (Tr. 309, 320). She said this made her feel hurt and scared. Appellant
also mentioned that he had a gun in the closet. (Tr. 319).
{¶7} One day, Appellant chased the children around the house with duct tape.
The victim said he previously duct-taped her arms and legs for approximately three
minutes as punishment while her mother was home. During this prior restraint, he laid on
top of her, and she started having a claustrophobic panic attack and kicked him. Fearing
he would use the tape to bind her again, the victim hid in the doghouse behind the trailer.
Her sister found her and successfully encouraged the victim to tell Appellant’s daughter
about the sexual abuse she had been suffering. (Tr. 314-316). On learning of the
disclosure, the victim’s mother rushed home from work and decided to bring the victim
into the house to confront Appellant. Appellant called the victim a liar. (Tr. 317). The
next day, the victim went to the police station with her mother. (Tr. 318).
{¶8} Two days later, she told her teacher and the school counselor about the
situation. (Tr. 230, 249, 256, 318-319). Several days later, she was examined at the
Child Advocacy Center (CAC) at Akron Children’s Hospital in Boardman, where she
repeated her disclosures. (Tr. 261, 319, 323).
{¶9} The victim testified her mother continued to have a relationship with
Appellant, which made her feel hurt, as if her mother did not believe her, as Appellant
predicted. (Tr. 321). Her mother then got pregnant and gave birth to a baby, which the
victim believed was Appellant’s child. (Tr. 322).

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{¶10} The victim’s sister, who was a year younger than the victim, confirmed
Appellant would supervise them while their mother was at work. (Tr. 353). She testified
she once walked into her mother’s bedroom to find the victim trying to get up from the
bed while Appellant was pulling her down from under the covers. The lights and television
were off. One of them claimed they were wrestling over the remote control, but the sister
felt the situation was suspicious, noting she would often “catch” them alone together. (Tr.
341-342).
{¶11} The sister confirmed the victim eventually told her Appellant was touching
her inappropriately. The victim worried it could happen to her siblings if she stopped and
asked whether she should tell her mother or continue “doing things” with Appellant. This
younger sister testified she advised the victim to continue with him so their mother would
not be mad. (Tr. 343-344). The sister then testified about the time when she followed
the crying victim as she “stormed out of the house” to hide in the doghouse after a “lights
off” game was started. At that time, the sister advised the victim to tell Appellant’s
daughter about Appellant touching her, and the victim then did so. (Tr. 345, 357).
{¶12} The school guidance counselor confirmed speaking to the victim after she
made disclosures to a teacher about Appellant. The victim appeared to be very afraid of
Appellant. (Tr. 228-241).
{¶13} The chief of the local police department testified he was dispatched to the
victim’s house two days before the guidance counselor reported the abuse. The victim
and her mother accompanied him to the police station. He explained the interview was
brief because children are not benefitted by being subjected to police questioning when
CAC had trained experts to conduct the interview. (Tr. 256-258). He watched the CAC
interview through a one-way mirror. (Tr. 261-262).
{¶14} Appellant consented to be interviewed by the police chief. Appellant said
he played a game called “Lights out” where he had a knife and hunted the children by
chasing them while the lights were off and then stop when the lights were turned on. (Tr.
265). Appellant also admitted restraining the victim and his daughter with duct tape. (Tr.
266-267). He acknowledged the victim saw him naked twice, claiming she entered the
bathroom while he was in the shower. (Tr. 268). Appellant told the chief the victim’s

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mother created the sexual assault story because she wanted to break up with him so she
could get back with the victim’s father. (Tr. 267).
{¶15} Testimony was also presented by the medical director of CAC’s child abuse
unit. He was qualified as an expert on child abuse and neglect. He spoke about
grooming, the effects of abuse on a child, and delayed disclosure. (Tr. 367-370, 385-
386). He explained how physical signs of sexual assault are found in 10% or less in
cases of children who were sexually abused, pointing to the varying assault types, the
passing of time, the elasticity of the tissue, and the healing abilities of mucosal areas. He
cited a study on pregnant victims with no physical signs of penetration; he also referred
to the multitude of cases where offenders confess to raping victims who had no
penetration indicators. (Tr. 371-373, 388).
{¶16} During the medical director’s testimony, the video of the child’s CAC
interview was played for the jury. (St.Ex. 3). The medical director then testified the victim
provided a “clear narrative of the abuse” and was able to clarify occurrences based on
the social worker’s open-ended questions, which allowed the victim to add more detail
than originally relayed, including sensory motor details. (Tr. 382-385). He opined the
child was a victim of sexual abuse and agreed with the examining doctor’s label of the
case as “highly concerning” for sexual abuse. (Tr. 389, 391-392).
{¶17} Appellant testified in his own defense. He acknowledged moving into the
trailer with the victim’s mother and her four children. He initially said the victim’s mother
only worked as a bartender four times a month but later mentioned she had another job.
(Tr. 417-418, 430-431, 439). Although he testified the victim’s mother used her mother
or brother to watch the children when she worked, he acknowledged telling the sheriff he
always had the kids when she was working. (Tr. 417-418, 441). Appellant testified he
put a lock on the bedroom door because the victim hid behind clothes racks and watched
while he had sex with her mother on six different occasions. He also said the children
would walk in on him having sex with their mother in the bathroom or peek under the door
while they were doing so. (Tr. 424-46).
{¶18} He testified the games he played were made up by the children, claiming
the Lights Out game was a result of the victim’s four-year-old brother saying he wanted
to grow up to be a serial killer (while Appellant discussed with him which horror movie

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killer he preferred). (Tr. 420-421). Appellant acknowledged chasing the children with the
mother’s plastic kitchen knife but said it was sheathed. (Tr. 421). He then testified he
only carried around the sheath during the game. (Tr. 442-443). He acknowledged telling
the police he threw the victim on the bed and pretended to bite her while playing a vampire
game. (Tr. 451-452). As to using tape on the children, he said the victim’s mother was
playing a game with the children using packing tape while the children were huddled up
and laughing; he participated by trying to tape his daughter but she was too strong. (Tr.
422-423, 443-444).
{¶19} The jury found Appellant guilty of the five sex offenses. The trial court
sentenced Appellant to consecutive sentences of ten years to life for each rape, eight
years for attempted rape, and sixty months for gross sexual imposition. (4/27/23 J.E.).
{¶20} The within timely appeal followed. Appellant sets forth a general
assignment of error contesting the admission of the video interview of the child at CAC
with two distinct sub-assignments of error.
SUB-ASSIGNMENT OF ERROR ONE
{¶21} Appellant’s assignment of error, in conjunction with his first sub-assignment
of error, initially contends:
“The Trial Court erred in admitting the video statement of the victim into evidence[.]
A) The exhibit was not properly authenticated prior to its admission and shown to the jury
* * *.”
{¶22} Before jury selection, the prosecutor asked the court for a ruling on the
state’s motion in limine seeking admission of the child’s videotaped interview at CAC.
The prosecutor said the interview fell under the medical diagnosis hearsay exception,
pointing to the law cited in the state’s motion on the topic. (Tr. 7-8). Defense counsel
generally objected while acknowledging his awareness of the case law. (Tr. 9). The court
opined the case law supported the admission of the video as a hearsay exception and
preliminarily overruled the defense’s objection, noting it could be renewed if the video was
offered during trial. (Tr. 9-10).
{¶23} During the trial, the victim testified she was interviewed one time at CAC.
(Tr. 325). The chief of police, who watched the CAC interview from behind one-way glass
as it occurred, identified a photograph of the child from the time of the initial report.

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Testimony was then presented by the medical director at CAC, who was an expert in child
abuse as well as a representative of the Akron Children’s Hospital and the supervisor of
the examining physician.
{¶24} The medical director explained the hospital’s CAC was a trauma-informed
clinic for medical examination of children suspected to be victims of abuse; he
emphasized the primary purpose of the clinic was medical diagnosis and management.
(Tr. 364-365). Upon receiving a referral from law enforcement or a children services
agency, CAC schedules an appointment for the child. The goal is to provide a family-
oriented environment for evaluation so the child is not detrimentally subjected to the
trauma of multiple interviews at multiple locations; this is in the alternative to in-depth
questioning successively occurring at the police station, at a children services agency, at
a hospital (by a nurse, social worker, and doctor), and at a personal pediatrician’s office,
which can result in the child or their family being “retraumatized.” (Tr. 366-367).
{¶25} The medical director said the intake interview is conducted by the CAC
social worker with medical personnel watching; representatives from law enforcement
and children services also typically watch the interview in real time through a live feed
and/or one-way glass. (Tr. 262, 374). The interviewing social worker has “specialized
training in how to communicate with children in a way that is age-appropriate,
developmentally-appropriate, trauma-informed, and that minimizes any sort of
suggestibility or any sort of leading questions.” (Tr. 375-376). After the victim is
interviewed by the social worker, the medical examination is conducted.
{¶26} The medical director explained he was the supervisor of the examining
doctor, who had since moved to California. (Tr. 373). The records reviewed by the
medical director included the written report of the CAC social worker, the medical report
written by the examining doctor, and the video of the physical exam. (Tr. 374). When
asked if he also watched the video of the social worker’s interview, the medical director
said, “So when I review medical records, I sometimes review the video recording, and
sometimes I don’t. In this case, I definitely reviewed the written documents, which
summarized the video recording.” (Tr. 376-377).
{¶27} Before the video of the victim’s intake interview was played at trial, the
medical director testified all CAC records are kept as part of the patient records

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maintained by Akron Children’s Hospital. (Tr. 365, 373); (St.Ex. 3). This includes the
social worker’s interview of the child, which is maintained on the hospital’s computer
server as video recording. (Tr. 376-377). Furthering the purpose of avoiding multiple
interviews, the video of the interview is provided to law enforcement when requested if
releases are signed; the medical director believed the interview video was provided to
law enforcement in this case. (Tr. 377-378). The medical director answered in the
affirmative when asked if the hospital records accurately depicted the video recording as
prepared on the date of the interview. (Tr. 377).
{¶28} When the state offered the video into evidence, defense counsel generally
renewed the objection he made before trial. The court overruled the objection and opined
a proper foundation had been laid. (Tr. 378). The video of the child-victim’s interview
was then played for the jury.
{¶29} Appellant argues the video was not properly authenticated under Evid.R.
901(A). He complains the witness the state used to authenticate the video was not
present when it was made and did not seem to have watched the video until it was played
at trial. He construes the testimony as indicating the medical director reviewed the
summaries of hospital staff members who watched the interview. Although the chief of
police had already testified he watched the child’s interview live, Appellant points out the
state did not ask the chief to authenticate the video. Appellant then says even if the
medical director did watch the video from the hospital’s records before trial, he did not
properly authenticate it by specifically testifying the exhibit was the video from the
hospital’s system or was produced with a reliable recording system.
{¶30} If the video of the victim’s interview was unauthenticated and thus should
not have been played at trial, Appellant argues the medical director would not have been
able to opine the child provided a “very clear narrative of the abuse that occurred.” (Tr.
382). We note the chief of police already testified the child provided specific details about
the sexual assaults during the interview, which he watched live. (Tr. 261-263).
{¶31} Evid.R. 901(A) provides: “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient
to support a finding that the matter in question is what its proponent claims.”
Authentication “is a matter of relevancy conditioned on a preliminary determination of

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fact.” Staff Note to Evid.R. 901(A). The rule provides a non-exhaustive list of “examples
of authentication or identification” methods for purposes “of illustration only, and not by
way of limitation * * *.” Evid.R. 901(B). The first example reads as follows: “Testimony
of Witness With Knowledge. Testimony that a matter is what it is claimed to be.” Evid.R.
901(B)(1).
{¶32} Another example shows authentication can also occur through the
presentation of “[e]vidence describing a process or system used to produce a result and
showing that the process or system produces an accurate result.” Evid.R. 901(B)(9).
This example “does not foreclose the taking of judicial notice of the accuracy of the
process or system.” Staff Note to Evid.R. 901(B)(9) (suggesting this example is more
relevant when the case involves a “sophisticated process or system”).
{¶33} Appellant cites case law addressing two authentication theories. First, the
“pictorial testimony” theory involves admitting a video to illustrate a witness’s testimony
after it is authenticated by a witness’s personal observation that it is an accurate
representation. Second, the “silent witness” theory involves a video speaking for itself as
substantive evidence of what it portrays after a witness testifies to its production
(regardless of their presence during its making). See State v. Green, 7th Dist. Mahoning
No. 12 MA 226, 2014-Ohio-648, ¶ 12-14, citing Midland Steel Prods. Co. v. U.A.W. Local
486, 61 Ohio St.3d 121, 129-130, 753 N.E.2d 98 (1991). He notes silent witness
authentication typically involves “proof of the reliability of the video recording system,
proof of the custody of the video recording, a showing that the evidence has not been
altered, and that the video being shown is from the camera system being described.”
State v. Haywood, 7th Dist. Columbiana No. 21 CO 0035, 2023-Ohio-1121, ¶ 54.
{¶34} However, “It is not necessary that the individual authenticating the footage
must have actually witnessed the events as they occurred, merely that he or she is able
to verify that the material is what it purports to be: in this instance, the complete
surveillance footage of the incident.” Id., quoting Green, 7th Dist. No. 12 MA 226 at ¶ 14.
“Reliability can be proven by the video equipment installer, a user of the equipment, or by
a law enforcement officer who investigated the matter.” Id. “There is a very low bar for
authenticating evidence, particularly video evidence under the ‘silent witness’ theory.” Id.
at ¶ 68.

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{¶35} Both circumstantial and direct evidence may be used to show authenticity
under Evid.R. 901, which has a low foundational threshold without requiring conclusive
proof of authenticity. State v. Inkton, 2016-Ohio-693, 60 N.E.3d 616, ¶ 73 (8th Dist.).
“Rulings regarding authentication, like evidentiary rulings more generally, are reviewed
for an abuse of discretion.” State v. Gibson, 7th Dist. Mahoning No. 15 MA 0074, 2016-
Ohio-8552, ¶ 32. An abuse of discretion involves an unreasonable, arbitrary or
unconscionable decision. State v. Herring, 94 Ohio St.3d 246, 255, 762 N.E.2d 940
(2002). We defer to the trial court’s judgment without substituting our preference over
that of the trial court. Id.
{¶36} Considering the totality of the testimony and the fact that the rule’s list of
authentication methods is not exhaustive, we do not find the trial court acted
unreasonably, arbitrarily, or unconscionably in admitting the video of the child’s CAC
interview. In any event, there are bars to such review.
{¶37} Initially, we note the rule says authentication can also occur by “[a]ny
method of authentication or identification provided by statute enacted by the General
Assembly not in conflict with a rule of the Supreme Court of Ohio or by other rules
prescribed by the Supreme Court.” Evid.R. 901(B)(10). There is a statute which allows
hospital records to be “qualified by certification” in lieu of in-court authentication testimony
where the records “custodian, person who made them, or person under whose
supervision they were made” endorses upon the records their “verified certification
identifying such records, giving the mode and time of their preparation, and stating that
they were prepared in the usual course of the business of the institution.” R.C. 2317.422.
The offering party must deliver a copy to the opposing attorney no less than five days
before trial. Id.
{¶38} In October 2022, defense counsel filed a motion to continue the November
2022 trial date, stating he was recently retained as replacement counsel and received
discovery in September. This motion sought additional time to review the discovery
evidence, referring to the medical director’s opinion letter and the “Child Forensic
Interviews Protocol Documentation (notes, audio tapes, and/or video tapes) produced by
[the CAC social worker].” (10/28/22 Mot.). The defense also disclosed it had consulted
with and was submitting this evidence to an expert for medical analysis.

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{¶39} Notably, the written motion in limine filed by the state relied on the hearsay
exception for medical diagnosis or treatment hearsay and said the statements were non-
testimonial for confrontation clause purposes, while pointing out the examining physician
watched the interview through the one-way mirror in order to gain information for the
subsequent medical examination. Just prior to jury selection, the state presented an
argument on its motion in limine, stating case law supported the admission of the video
under the hearsay exception applicable to medical diagnosis and treatment. See Evid.R.
803(B)(4) (regardless of whether the declarant is unavailable, a hearsay exception admits
“[s]tatements made for purposes of medical diagnosis or treatment and describing
medical history, or 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”).
{¶40} The defense generally objected to this medical diagnosis or treatment
argument, while acknowledging the case law cited in the state’s motion. (Tr. 8-9). When
the state later offered the video at trial during the medical director’s testimony, the defense
“renew[ed]” the earlier objection. No further argument was set forth, and there was thus
no reference to authentication flaws. (Tr. 378, 402-403).
{¶41} “Error may not be predicated upon a ruling which admits * * * evidence
unless a substantial right of the party is affected; and * * * a timely objection or motion to
strike appears of record, stating the specific ground of objection, if the specific ground
was not apparent from the context * * *.” Evid.R. 103(A)(1). Considering the defense
objection was a renewal of a prior general objection to an in limine request based on
whether the interview was for medical diagnosis or treatment, an argument on the
sufficiency of the video’s authentication as a hospital record was not apparent as a
specific ground for the objection. Accordingly, there was no authentication objection as
to the video interview.
{¶42} Had an objection been tendered on grounds of authentication, further
inquiry of the medical director or a claim the evidence was already qualified by certification
could have been made by the state. Therefore, the Evid.R. 901 authentication argument
was waived, and our evaluation of the issue may proceed only under a plain error review.
State v. Allen, 73 Ohio St.3d 626, 634, 653 N.E.2d 675 (1995) (where a capital murder

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defendant complained blood samples and other pieces of evidence were not properly
authenticated under Evid.R. 901, the Supreme Court ruled he “never made this objection
at trial, and thus waived this issue absent plain error”); Haywood, 7th Dist. No. 21 CO
0035 at ¶ 58.
{¶43} Pursuant to Crim.R. 52(B), plain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court. Plain error
is a discretionary doctrine the appellate court may choose to use only with the utmost
care in exceptional circumstances when required to avoid a manifest miscarriage of
justice. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 62. To
establish plain error, the defendant must demonstrate an obvious error that affected the
outcome of trial. State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700 at ¶ 93, citing
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). “The accused is therefore
required to demonstrate a reasonable probability that the error resulted in prejudice—the
same deferential standard for reviewing ineffective assistance of counsel claims.” State
v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22.
{¶44} We point to our review of the case proceedings and testimony set forth
above. We also note the child could be seen on the video speaking to a hospital social
worker known to the medical director in a room he recognized. (The medical director
mentioned the office set up while noting the screams in the background were likely made
by children receiving vaccines.) The child’s photograph had already been admitted into
evidence after being identified by the chief of police, who watched the interview as it
occurred. Considering the CAC medical director’s testimony (including that the child-
victim’s video interview conducted by the hospital social worker was standard procedure
prior to the medical examination and was part of the medical records maintained with
other patient records in the hospital’s computer server), there was no obvious error
requiring the trial court to sua sponte find the video interview offered for admission was
not sufficiently authenticated. Exceptional circumstances on the video’s authenticity,
resulting in a manifest miscarriage of justice, are not apparent. This assignment of error
is overruled.

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SUBASSIGNMENT OF ERROR TWO
{¶45} Appellant’s second sub-assignment of error, together with his general
assignment of error, contends:
“The Trial Court erred in admitting the video statement of the victim into evidence
* * * B) The exhibit contained testimonial evidence violating Defendant’s Right to
Confrontation.”
{¶46} The confrontation clause in the Sixth Amendment to the United States
Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right * * *
to be confronted with the witnesses against him.” Ohio’s constitution provides no greater
confrontation rights than the Sixth Amendment. State v. McKelton, 148 Ohio St.3d 261,
2016-Ohio-5735, 70 N.E.3d 508, fn. 8. Unlike our deference to the trial court’s discretion
in applying hearsay exceptions, “we review de novo evidentiary rulings that implicate the
Confrontation Clause.” Id. at ¶ 97.1
{¶47} The confrontation clause does not apply to non-testimonial statements.
Ohio v. Clark, 576 U.S. 237, 245, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015); Michigan v.
Bryant, 562 U.S. 344, 358-359, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). Therefore, a
statement will not be evaluated under the confrontation clause unless its primary purpose
was testimonial. Clark, 576 U.S. at 246-247 (even then, “the primary purpose test is a
necessary, but not always sufficient, condition for the exclusion of out-of-court statements
under the Confrontation Clause”). In determining whether a statement was testimonial,
the court considers whether the primary purpose of the conversation was to create an
out-of-court substitute for trial testimony. Id. at 245 (extending the primary purpose test
to statements made to individuals who are not law enforcement agents).
{¶48} Appellant argues a primary purpose of the CAC interview was to assist a
law enforcement investigation, pointing to case law on the dual capacity of a CAC forensic
interviewer. Appellant emphasizes testimony by the police chief that he did not conduct
a full interview of the child on the day he received the sexual assault complaint because

1 Compare State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 48-49, 56 (in determining

whether a child-victim's statements fall under the hearsay exception for statements “made for purposes of
medical diagnosis or treatment,” the trial court exercises discretion while considering the totality of the
circumstances including the child’s age, consistency, motive to lie, understanding of the need to tell the
truth, and exposure to leading or suggestive questioning).

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CAC would conduct a detailed interview. The state points out the police chief explained
a child would not want him asking her sensitive questions when CAC employees are
trained to conduct a “well-rounded” approach to help child-victims and their families. (Tr.
256-258).
{¶49} As discussed above, the medical director explained their trauma-informed,
developmental-appropriate, and family-oriented approach was created in order to avoid
further trauma to the child (such as that occurring when CAC staff interviews a child for
medical reasons after the child has already been subjected to detailed interviews by law
enforcement and children services). The CAC social worker conducts the hospital’s
intake interviews with medical personnel watching before the medical examination
proceeds. Agents from law enforcement and children services may watch live through a
one-way mirror or may view a video of the interview later. The approach also avoids
suggestive or leading tactics as the hospital social worker is trained to use open-ended
questions as opposed to vigorous investigative interviewing techniques. The medical
director said the primary purpose of the interview was for medical diagnosis and
management.
{¶50} Nevertheless, Appellant generally concludes the child’s interview primarily
served an investigative purpose and thus must be considered testimonial evidence. He
quotes law stating where the primary purpose of particular statements by a child to
interviewers at CAC were for medical diagnosis and treatment, those statements were
nontestimonial and admissible without violating confrontation rights but other statements
that served “primarily a forensic or investigative purpose are testimonial and are
inadmissible pursuant to the Confrontation Clause when the declarant is unavailable for
cross-examination at trial.” State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933
N.E.2d 775, ¶ 44 (application of the hearsay exception was not raised).
{¶51} As Appellant points out, the Arnold case relied on the underlying premise
that even when out-of-court statements are admissible under state hearsay rules of
evidence, the statements violate a defendant's Sixth Amendment right to confront
witnesses if the statements “are testimonial and the defendant has had no opportunity to
cross-examine the declarant.” Id. at ¶ 13, citing Crawford v. Washington, 541 U.S. 36,
68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“the Sixth Amendment demands what the

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common law required: unavailability and a prior opportunity for cross-examination”).
Although the law cited by Appellant allows the admission of the non-testimonial portions
of a CAC interview (even if other statements during the interview were generated for
primarily forensic purposes), Appellant does not specify which statements he contests
were primarily for investigative purposes or review any specific passages from the
interview. Nor did he object to particular statements within the interview below when
objecting to the video as a whole.
{¶52} In any event, the argument on appeal essentially ignores portions of the
case law he quotes. Importantly, the rule Appellant cites on excluding testimonial
evidence is qualified by the following phrases: “when the declarant is unavailable for
cross-examination at trial” or “when the defendant has had no opportunity to cross-
examine the declarant.” Arnold, 126 Ohio St.3d 290 at ¶ 13, 44. As the state points out,
the child-victim testified at trial.
{¶53} “[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. Perez, 124 Ohio St.3d 122,
2009-Ohio-6179, 920 N.E.2d 104, ¶ 127, quoting Crawford, 541 U.S. 36 at fn. 9. The
Ohio Supreme Court thus held the use of an out-of-court statement did not implicate the
confrontation clause where the declarant was called to testify at trial. Id. (even if the
statement was offered during the testimony of a different witness).
{¶54} Moreover, in a subsequent case, a defendant argued the trial court violated
the confrontation clause by admitting a witness’ statement to police because the defense
did not have an earlier opportunity to cross-examine the witness about the statement.
The Supreme Court rejected this argument because the witness testified at trial and was
subject to cross-examination State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954
N.E.2d 596, ¶ 113. See also State v. Palmer, 7th Dist. Mahoning No. 19 MA 108, 2022-
Ohio-2643, ¶ 8-9 (the failure to raise a Sixth Amendment violation did not constitute
ineffective assistance of counsel because the confrontation clause does not preclude the
admission of a declarant's out-of-court statements when the declarant testifies as a
witness subject to cross-examination).

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{¶55} In accordance, Appellant’s argument under the Sixth Amendment’s
confrontation clause is without merit because Appellant had the opportunity to confront
the victim as she testified at trial.
{¶56} For the foregoing reasons, Appellant’s assignment of error is overruled, and
his convictions are affirmed.

Waite, J., concurs.
Klatt, J., concurs.

Case No. 23 CO 0027
[Cite as State v. Minor, 2024-Ohio-1465.]

For the reasons stated in the Opinion rendered herein, the assignment of error is
overruled and it is the final judgment and order of this Court that the judgment of the Court
of Common Pleas of Columbiana County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.