[Cite as In re H.B., 2025-Ohio-2159.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: H.B. : Hon. Craig R. Baldwin, P.J. : Hon. William B. Hoffman, J. : Hon. Andrew J. King, J. : : : Case No. CT2024-0088 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Juvenile Division, Case No. 22220381
JUDGMENT: Affirmed in part; Remanded in part
DATE OF JUDGMENT: June 18, 2025
APPEARANCES:
For Appellant H.B. For Appellee State of Ohio
RICHARD HIXON RONALD L. WELCH 3808 James Court, Suite 2 Prosecuting Attorney Zanesville, Ohio 43701 Muskingum County, Ohio
By: KALLEN M. HADDOX Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth St., P.O. Box 189 Zanesville, Ohio 43702 Baldwin, P.J.
{¶1} The appellant, H.B., appeals from the decision of the juvenile court
adjudicating him a delinquent child. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On or about February 19, 2022, appellant H.B. (DOB 11/06/2004), was at a
weekly family dinner at which A.W. (DOB 11/18/2015) was also in attendance. H.B., who
was 17 years old at the time, and A.W., who was 6 years old at the time, were alone
together in a bedroom “playing doctor”. Following the family gathering A.W.’s parents
noticed odd changes in her behavior, including being eager to leave the family gathering
when in the past she’d always begged to stay longer; seeming more tired than usual;
being quiet and more withdrawn than usual; no longer being outgoing and instead keeping
to herself; not wanting to her little brother to go into the bathroom with her; no longer
wanting to help change her little brother’s diapers; and, no longer wanting to hug or be
hugged by boys. At some point A.W. told her parents about the incident. The Muskingum
County Sheriff’s Department was contacted and a report was filed, and A.W. was taken
to Nationwide Children’s Hospital where she was interviewed by Forensic Interviewer
Woori Song. A video recording was made of Ms. Song’s interview with A.W.
{¶3} A.W. told Ms. Song that she and H.B. were alone in a bedroom, and that
H.B. took out the “part that he pees out of” and touched her “where she pees.” A.W.
described in detail how this event occurred, telling Ms. Song that H.B. made her “close
her eyes and pretend she was dead,” and gave her “a shot” by using his penis to touch
her. A.W. showed Ms. Song how H.B. moved his hips back and forth when “the thing that
he peed out of” was touching her. {¶4} On June 28, 2022, the State of Ohio filed a juvenile delinquency complaint
against H.B., alleging one count of Gross Sexual Imposition in violation of R.C.
2907.05(A)(4), a third degree felony; and, one count of Gross Sexual Imposition in
violation of R.C. 2907.05(A)(1), a fourth degree felony.
{¶5} An adjudication hearing was conducted before the magistrate on October
23, 2023, and October 24, 2023. The trial court heard testimony from a dozen witnesses.
A.W.’s parents testified regarding A.W.’s behavior both before and after the incident,
summarized above. Deputy Matthew Kallgren, of the Muskingum County Sheriff’s Office,
testified regarding his response to a call concerning an alleged sexual assault, the
statements he took from A.W.’s parents, his call to the on duty detective, his collection of
evidence (including the pants A.W. was wearing at the time of the alleged sexual assault,
the bed sheets that were on the bed on which the alleged sexual assault took place, and
photographs of the home in which the incident occurred), and his advice to A.W.’s parents
to take A.W. to Children’s Hospital to be seen by a SANE nurse.1 Detective Amy
Thompson, who was the Muskingum County Sheriff’s Office evidence detective at the
time, testified regarding the chain of custody of the evidence collected. Detective Jeremy
Archer of the Muskingum County Sheriff’s Office testified regarding his investigation of
the matter and his interviews with various witnesses, including the appellant; Detective
Archer testified that after he viewed A.W.’s forensic interview he interviewed H.B. a
second time, during which he noted a change in H.B.’s demeanor, including must less
eye contact from H.B. BCI Forensic Scientist Logan Schepeler testified regarding his
1A “SANE” nurse refers to a Sexual Assault Nurse Examiner, who is a registered nurse having specialized training to examine, collect evidence, and provide care for victims of sexual assault. tests of the evidence collected, including the test results of the DNA evidence collected
from the scene, and testified further that sperm fraction DNA evidence was found in the
crotch area of the black pants A.W. was wearing at the time of the alleged sexual assault,
and that he could not exclude the appellant, who had provided a cheek swab DNA
sample, from that sperm fraction sample. Forensic examiner Song also testified regarding
her forensic interview of A.W., summarized above, and statements made by A.W. during
the interview. The recording of the forensic interview was played for the court and
submitted into evidence. A.W. did not testify. The appellee called the appellant’s mother
as a witness to establish the appellant’s date of birth, after which the appellee rested.
{¶6} The appellant called his aunt, T.B., as his first witness, who testified that
A.W. always wanted to play with H.B. at family gatherings, that on the day in question
A.W. was sitting on H.B.’s shoulders when she arrived, that A.W. did not appear fearful
of H.B., that A.W. appeared upset when H.B. left the gathering, and that A.W. was present
in the same house as H.B. after the incident without appearing fearful. H.B.’s minor
cousin, C.B., testified that A.W. liked to play with H.B., that on the day of the incident he
could see into the room where the incident allegedly occurred and did not see H.B. expose
himself to A.W., and did not hear A.W. express any distress while in the room. H.B.’s
grandmother, C.F.B., testified that A.W. liked to play with H.B., and liked to have
piggyback rides, be on his shoulders or get picked up, all of which happened on the day
in question. H.B. testified that, prior to the alleged incident, he and A.W. “were like --
almost, like best friends. So we’d play -- play when she wanted to play”. H.B. testified that
A.W. wanted to play doctor, that he put A.W. on the bed and played doctor with her, and pretended to knock her out; however, he adamantly denied exposing himself to her,
sexually assaulting her, or being otherwise sexually inappropriate with her.
{¶7} On December 20, 2023, the magistrate issued a Magistrate’s Decision –
Findings of Fact and Conclusions of Law adjudicating H.B. delinquent on both counts of
gross sexual imposition as alleged in the complaint. H.B. filed objections to the
magistrate’s decision, and the issues raised therein were briefed by the parties.
{¶8} The matter came before the trial court on January 3, 2024, on H.B.’s
objections to the magistrate’s decision, after which the court issued a Disposition in which
it checked the “Plea of Admit” box and “Youth was advised of consequences of plea and
rights waived. Pleas entered freely, voluntarily w/o inducement. Reports of police, family,
juvenile, provided a factual basis for support of plea” box, in addition to the “Finding of
Guilt” box. On June 21, 2024, the trial court issued an Entry overruling H.B.’s objections.
{¶9} H.B. filed a timely appeal in which he sets forth the following four
assignments of error:
{¶10} “I. THE TRIAL COURT ERRED ON THE FACE OF ITS JANUARY 3rd, 2024
ENTRY BY INDICATING THAT H.B ENTERED A PLEA OF ADMISSION AS TO BOTH
COUNTS UNDER R.C 2907.05(A) WHEN H.B. DID NOT DO SO.”
{¶11} “II. THE TRIAL COURT ERRED IN DETERMINING THAT THE
STATEMENTS MADE BY A.W. DURING HER FORENSIC INTERVIEW WERE
ADMISSIBLE, AS HER STATEMENTS DURING THE INTERVIEW WERE
TESTIMONIAL IN NATURE AND A.W. WAS NEVER MADE AVAILABLE FOR CROSS
EXAMINATION, IN VIOLATION OF H.B.’S CONSTITUTIONAL RIGHT TO
CONFRONTATION.” {¶12} “III. THE TRIAL COURT ERRED IN DETERMINING THAT THE
ADMISSIBLE UNDER EVID. R. 803(4).”
{¶13} “IV. THE TRIAL COURT ERRED IN FINDING H.B. TO BE A DELINQUENT
CHILD, AS SUCH A FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AND BASED ON INSUFFICIENT EVIDENCE.”
ASSIGNMENT OF ERROR I
{¶14} The appellant argues in his first assignment of error that the trial court erred
on the face of its January 3, 2024, Disposition entry because it incorrectly checked boxes
indicating that H.B. entered a plea of admission as to both counts of gross sexual
imposition when he did not. We agree.
{¶15} Crim.R. 36 provides that “[c]lerical mistakes in judgments, orders, or other
parts of the record, and errors in the record arising from oversight or omission, may be
corrected by the court at any time.” This issue was addressed by the Ohio Supreme Court
in State ex rel. DeWine v. Burge, 2011-Ohio-235, in which the Court stated:
. . . “[C]ourts possess inherent authority to correct clerical errors in judgment
entries so that the record speaks the truth.” State ex rel. Cruzado v. Zaleski,
111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19. “[N]unc pro
tunc entries ‘are limited in proper use to reflecting what the court actually
decided, not what the court might or should have decided.’ ” Mayer, 97 Ohio
St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 14, quoting State ex rel.
Fogle v. Steiner (1995), 74 Ohio St.3d 158, 164, 656 N.E.2d 1288. A nunc
pro tunc entry is often used to correct a sentencing entry that, because of a mere oversight or omission, does not comply with Crim.R. 32(C). See, e.g.,
State v. Havugiyaremye, Lucas App. No. L–08–1201, 2010-Ohio-4204,
2010 WL 3482546, ¶ 1, fn. 1; State v. Evans, Medina App. No. 09CA0102–
M, 2010-Ohio-2514, 2010 WL 2245587, ¶ 2.
Consistent with the treatment of Crim.R. 32(C) errors as clerical
mistakes that can be remedied by a nunc pro tunc entry, we have expressly
held that “the remedy for a failure to comply with Crim.R. 32(C) is a revised
sentencing entry rather than a new hearing.” State ex rel. Alicea v.
Krichbaum, 126 Ohio St.3d 194, 2010-Ohio-3234, 931 N.E.2d 1079, ¶ 2;
see also State ex rel. Culgan v. Medina Cty. Court of Common Pleas, 119
Ohio St.3d 535, 2008-Ohio-4609, 895 N.E.2d 805, ¶ 10–11 (a defendant is
entitled to a sentencing entry that complies with Crim.R. 32(C)); Dunn v.
Smith, 119 Ohio St.3d 364, 2008-Ohio-4565, 894 N.E.2d 312, ¶ 10 (when
a trial court fails to comply with Crim.R. 32(C), “the appropriate remedy is
correcting the journal entry”).
Id. at ¶¶ 17-18. The issue of nunc pro tunc entries was recently discussed by this Court
in State v. Richmond, 2025-Ohio-1076 (5th Dist.):
The very purpose of a “nunc pro tunc” entry is to memorialize judicial
action previously taken but unintentionally omitted from the written entry.
Bonnell, ¶ 30. It is a simple device by which a court may make its journal
speak the truth. State v. Boler, 2021-Ohio-4081, 2021 WL 5356851, ¶ 9,
citing State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 163-164, 656 N.E.2d
1288 (1995); see also Crim. R. 36 (“Clerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight
or omission, may be corrected by the court at any time”). Thus, “nunc pro
tunc” entries are limited in proper use to reflecting what the court in fact
decided, not what it might or should have decided or even what the court
intended to decide. Fogle, 74 Ohio St.3d at 164, 656 N.E.2d 1288.
Id. at ¶ 14.
{¶16} The trial court’s checkmarks indicating that the appellant entered a plea of
admit were clearly clerical mistakes, particularly in light of the fact that it also placed a
checkmark indicating that there was a “finding of guilt.” This error can be corrected
through a nunc pro tunc entry. Accordingly, we remand the matter to the trial court with
instructions to issue a “nunc pro tunc” Disposition entry specifically indicating a “finding
of guilty” only.
ASSIGNMENTS OF ERROR II and III
{¶17} The appellant’s second and third assignments of error are interrelated, and
as such we shall address them together. The appellant argues in his second assignment
of error that statements made by A.W. during her forensic interview were testimonial in
nature, that A.W. was never made available for cross examination, and that the trial court
erred in admitting the statements in violation of H.B.’s constitutional right to confront
witnesses testifying against him. In his third assignment of error he submits that the
statements made by A.W. during her forensic interview were not admissible under Evid.
R. 803(4), and the trial court erred in admitting them. We disagree. {¶18} The issues of confrontation and hearsay relative to a forensic interviewer’s
testimony regarding statements made to the interviewer by a child victim were recently
addressed by this Court in In re C.B., 2025-Ohio-1361 (5th Dist.):
The Sixth Amendment to the United States Constitution protects the
right of a criminal defendant “to be confronted with the witnesses against
him.” The “primary object” of this provision is to prevent unchallenged
testimony from being used to convict an accused—a safeguard that applies
to both federal and state prosecutions. Crawford v. Washington, 541 U.S.
36, 42, 53-54 (2004). The provision encompasses the rights to have a
witness physically appear in the courtroom, to require the witness to testify
under oath, and to force the witness to be subject to cross-examination. See
Maryland v. Craig, 497 U.S. 836, 845-846 (1990).
The Confrontation Clause applies only to “testimonial statements.”
State v. Muttart, 2007-Ohio-5267, ¶ 59. A statement is testimonial if it is
made with “ ‘a primary purpose of creating an out-of-court substitute for trial
testimony.’ ” State v. Montgomery, 2016-Ohio-5487, ¶ 87, quoting Michigan
v. Bryant, 562 U.S. 344, 358 (2011).
We note the United States Supreme Court has found “[s]tatements
by very young children will rarely, if ever, implicate the Confrontation
Clause.” Ohio v. Clark, 576 U.S. 237, 247-248 (2015). The Clark Court
explained, “[f]ew preschool students understand the details of our criminal
justice system” and “young children ‘have little understanding of
prosecution.’ ” (Citation omitted) Id. at 248. Id. at ¶¶ 25-27. The Court went on to cite the seminal case of State v. Arnold, 2010-Ohio-
2742:
In State v. Arnold, 2010-Ohio-2742, the Ohio Supreme Court
considered the admissibility of statements made during interviews at child-
advocacy centers. The issue in Arnold was whether a child's statements
during such an interview were for medical diagnosis or treatment, making
them “non-testimonial,” or whether they primarily served a forensic or
investigative purpose, making them “testimonial” in violation of the
defendant's confrontation rights. The Supreme Court began its analysis by
recognizing child-advocacy centers are unique insofar as a single interview
with a child serves “dual purposes,” which are: “(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 ¶ 33.
Reviewing the substance of the child's interview with the social
worker, the Arnold Court found some of the child's statements primarily had
a forensic or investigative purpose and were not objectively necessary to
resolve an ongoing emergency. Id. at ¶ 35. Those statements included, inter
alia, the child's assertion the defendant had “shut and locked the bedroom
door before raping her; her descriptions of where her mother and brother
were while she was in the bedroom with Arnold, of Arnold's boxer shorts, of
him removing them, and of what Arnold's ‘pee-pee’ looked like; and her
statement that Arnold removed her underwear.” Id. at ¶ 34. The Ohio Supreme Court reasoned “[t]hese statements likely were not necessary for
medical diagnosis or treatment. Rather, they related primarily to the state's
investigation.” Id. However, the Arnold Court also found other statements
elicited during the forensic examination, like the sexual acts the defendant
performed, were non-testimonial and were admissible because they were
necessary for medical diagnosis and treatment. Id. at ¶¶ 37-38.
The Ohio Supreme Court held, to the extent the evidence obtained
during the interviews was to assist police in a “forensic investigation” of
abuse, it is “testimonial;” therefore, the Confrontation Clause of the Sixth
Amendment bars its introduction at trial. Id. at ¶ 36. However, to the extent
the evidence is obtained to medically diagnose and treat a child, the
evidence is non-testimonial and not barred from admission at trial. Id. at ¶
41.
Accordingly, in order to determine whether the statements made by
the Victim to Celeste Prince were made for the purpose of medical
diagnosis and treatment, as opposed to forensic investigative purposes, this
Court must ‘identify the primary purpose of the statements.’ See, State v.
Remy, 2018-Ohio-2856, ¶ 55 (2nd Dist.), citing Arnold, at ¶ 28. “Whether
the purpose of a child's statements is for medical diagnosis or treatment will
depend on the facts of the particular case.” State v. Jones, 2015-Ohio-4116,
¶ 73 (2nd Dist.)
In re C.B. at ¶¶ 28-31. {¶19} Upon our review of the evidence, and in line with the decisions in C.B. and
Arnold, we find the statements made by A.W. during the interview with Forensic
Interviewer Song regarding sexual acts, particularly A.W.’s statements that H.B. took out
the “part that he pees out of” and touched her “where she pees,” made her “close her
eyes and pretend she was dead,” gave her “a shot” by using his penis to touch her and
pinned her down, and showed Ms. Song how H.B. moved his hips back and forth when
“the thing that he peed out of” was touching her, were necessary for medical diagnosis
and treatment. We find that the statements made by A.W. were non-testimonial and did
not violate H.B. rights under the Confrontation Clause.
{¶20} Furthermore, the statements were not precluded from admission by the
hearsay rule. As set forth by the Court in C.B.:
Evid.R. 803(4) allows, as an exception to the hearsay rule, the
admission of statements made in order to further medical treatment or
diagnosis. Statements that are admissible under Evid.R. 803(4) are
understood to be reliable because the effectiveness of treatment frequently
depends upon the accuracy of the information related to medical
professionals, and such statements are “reasonably relied on by [medical
professionals] in treatment or diagnosis.” State v. Dever, 64 Ohio St.3d 401,
411 (1992).
In State v. Dever, the Ohio Supreme Court addressed the issue
raised by Appellant herein, to wit: whether the trial court abused its
discretion in allowing a member of a sexual abuse intervention team “to
repeat at trial statements [the child victim] made to her during the medical examination as an Evid.R. 803(4) hearsay exception?” Id. at 404. In Dever,
the trial court determined the child victim was incompetent to testify at trial
under Evid.R. 601 but permitted the doctor who examined the child victim
to repeat statements the child victim made pursuant to Evid.R. 803(4). Id.
at 402-403. The Dever Court found the trial court did not err in admitting the
child victim's statements under the Evid.R. 803(4) hearsay exception and
held “[s]tatements made by a child during a medical examination identifying
the perpetrator of sexual abuse, if made for purposes of diagnosis and
treatment, are admissible pursuant to Evid.R. 803(4), when such
statements are made for the purposes enumerated in that rule.” Id. at
paragraph two of the syllabus.
Id. at ¶¶ 35-36. Just as the Court found in C.B., we find that the trial court properly
evaluated the circumstances under which A.W. made her statements to Ms. Song during
the forensic interview. There is insufficient reason to doubt that the statements were made
for the purpose of medical diagnosis and treatment. Accordingly, the trial court did not
abuse its discretion in admitting the statements, as “neither Evid.R. 803(4) nor 102
requires exclusion of the child’s statements from evidence, when as here the record
supports the trial court’s determination that the requirement of Evid.R. 803(4) were met.”
(Citation omitted.) Id. at ¶37.
{¶21} Based upon the foregoing, we find appellant’s assignments of error
numbers two and three to be without merit, and they are therefore overruled. ASSIGNMENT OF ERROR IV
{¶22} The appellant argues in his fourth assignment of error that the decision of
the trial court adjudicating him delinquent on two counts of gross sexual imposition was
against the manifest weight of the evidence and was not based on sufficient evidence.
We disagree.
{¶23} Sufficiency of the evidence was addressed by the Ohio Supreme Court in
State v. Worley, 2021-Ohio-2207:
The test for sufficiency of the evidence 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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus, superseded by constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89,
102, 684 N.E.2d 668 (1997), fn. 4, and following Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “ ‘Proof beyond a
reasonable doubt’ is proof of such character that an ordinary person would
be willing to rely and act upon it in the most important of the person's own
affairs.” R.C. 2901.05(E). A sufficiency-of-the-evidence challenge asks
whether the evidence adduced at trial “is legally sufficient to support the jury
verdict as a matter of law.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-
4215, 954 N.E.2d 596, ¶ 219.
Id. at ¶57. Thus, a review of the constitutional sufficiency of evidence to support a criminal
conviction requires a court of appeals to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
{¶24} Manifest weight of the evidence, on the other hand, addresses the
evidence's effect of inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 386–387,
(1997), superseded by constitutional amendment on other grounds as stated by State v.
Smith, 1997–Ohio–355. The Court stated:
Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the
issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the
evidence in their minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established before them. Weight
is not a question of mathematics, but depends on its effect in inducing
belief.” (Emphasis added.) Black's, supra, at 1594.
Id. at 387. The Court stated further:
When a court of appeals reverses a judgment of a trial court on the
basis that the verdict is against the weight of the evidence, the appellate
court sits as a “ ‘thirteenth juror’ ” and disagrees with the factfinder's
resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at
2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d
172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720–721 (“The court,
reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered. The discretionary power to grant a new trial should
be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.”).
Id.
{¶25} In addition, “[I]n determining whether the judgment below is manifestly
against the weight of the evidence, every reasonable intendment and every reasonable
presumption must be made in favor of the judgment and the finding of facts. * * *
{¶26} “If the evidence is susceptible of more than one construction, the reviewing
court is bound to give it that interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the verdict and judgment.” Seasons Coal Co., Inc.
v. Cleveland, 10 Ohio St.3d 77, 80 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d,
Appellate Review, Section 60, at 191–192 (1978).
{¶27} The trial court heard the testimony described in detail above, and was free
to accept or reject any or all of the evidence offered by the parties and assess the veracity
of the witnesses. As set forth by the Court in C.B., supra:
. . .“While the jury may take note of the inconsistencies and resolve
or discount them accordingly * * * such inconsistencies do not render
defendant's conviction against the manifest weight or sufficiency of the
evidence.” (Citations omitted.) State v. Williams, 2024-Ohio-5578, ¶ 66 (5th
Dist.). It is the province of the jury to determine where the truth lies from conflicting testimony. (Citations omitted.) State v. Sisson, 2023-Ohio-1273,
¶ 42.
The trier of fact, in this case the jury, was vested with the authority to
weigh the evidence and assess the credibility of the witnesses. State v.
DeHass, 10 Ohio St.2d 230, paragraph one of the syllabus (1967).
Moreover, the jury was free to believe some, all, or none of the testimony of
any witnesses. Domigan v. Gillette, 17 Ohio App.3d 228, 229 (2nd 1984).
Id. at ¶60-61.
{¶28} In this case, the trial court, as the trier of fact, possessed the authority to
weigh the evidence and ascertain the veracity of the witnesses, and to believe some, all,
or none of the testimony. Based upon the evidence presented, the trial court found beyond
a doubt that the appellant was adjudicated to be a delinquent child on two counts of gross
sexual conduct. We find that the evidence adduced at the adjudication “is legally sufficient
to support the jury verdict as a matter of law.” Furthermore, there is no evidence that the
trier of fact lost its way resulting in a manifest miscarriage of justice. Accordingly, we find
that appellant’s assignment of error number four to be without merit. CONCLUSION
{¶29} Based upon the foregoing, the appellant’s assignment of error number one
is narrowly sustained and the matter remanded to the trial court for the sole purpose of
issuing a “nunc pro tunc” Disposition entry specifically indicating a “finding of guilty” only.
The appellant’s assignments of error numbers two, three, and four are overruled, and the
decision of the Muskingum County Court of Common Pleas, Juvenile Division, with regard
to those assignments of error, is hereby affirmed.
By: Baldwin, P.J.
King, J. concur
Hoffman, J. concurs separately. Hoffman, J., concurring
{¶30} I concur in the majority’s analyses and disposition of Appellant’s first and
fourth assignments of error. I further concur, in general, with the majority’s analysis of
Appellant’s second and third assignments of error and concur in its decision to overrule
them. My disagreement with part of its analysis follows.
{¶31} The majority lists a number of statements made by A.W. to Interviewer Ms.
Song finding them to be necessary for medical diagnosis and treatment; and therefore,
non-testimonial.2 Of those listed, I do not believe A.W.’s statement H.B. made her “close
her eyes and pretend she was dead” was necessary for medical diagnosis and treatment.
I find it is testimonial in nature. However, I find its admission does not violate the
Confrontation Clause because at A.W.’s young age, she would not have understood her
statement would likely be used in a subsequent prosecution.3
{¶32} However, a different analysis is necessary in determining whether that
same statement violates the hearsay rule. Unlike the majority which concluded such
statement satisfies the medical diagnosis and treatment exception found in Evid.R.
803(4), (which conclusion I have already disagreed with, supra), I find it was error to admit
it. The issue then becomes whether its admission was prejudicial.
2 Appellant lists additional statements A.W. made in her interview by Ms. Song not mentioned in the majority’s analysis. (See Appellant’s Brief at pp. 13-14). Some I find qualify as being related to medical diagnosis and treatment and therefore, are non-testimonial and also admissible as a hearsay exception. Others I do not so find. Some I would find were for investigative purposes. I choose not to address them individually herein as I find none of them violate the Confrontation Clause in this case based upon A.W.'s age. I find admission of those that do not quality as an exception to the hearsay rule under Evid.R. 803(4) amounted to harmless error. 3 This same analysis applies to other statements of A.W., as testified to by Ms. Song, that would be
considered testimonial in nature. As such, their admission does not constitute a violation of the Confrontation Clause in this case. {¶33} While Appellant asserts the trial court’s own entry explicitly emphasizes the
alleged improperly admitted testimonial statements of A.W., my review of that entry does
not lead me to such conclusion.4 The magistrate’s FINDINGS OF FACT is a misnomer.
In reality, it is mostly a reiteration of the various witnesses’ testimony without a specific
affirmation the magistrate found them to be established as fact.
{¶34} The only explicit reference to an improperly admitted statement of A.W.
considered by the magistrate in adjudicating Appellant delinquent is found in the
magistrate's CONCLUSION OF LAW. Therein, the magistrate notes H.B.'s criminal
conduct occurred while he and A.W. were playing doctor.
{¶35} Significantly, and as noted in the majority opinion, H.B. testified he played
doctor with A.W. As such, any error associated with A.W.’s statement to that effect is
certainly harmless. Likewise, I find admission of A.W.’s statement H.B. made her “close
her eyes and pretend she was dead” was harmless error.
4 Appellant is apparently referring to the magistrate’s decision, not that of the trial court. However, the trial court found “no error of law or other defect on its face” when overruling Appellant’s objections to the magistrate’s decision.