State v. Curtiss

2022 Ohio 146

• Court: Ohio Court of Appeals
• Decided: January 21, 2022
• Docket: 29006
• Status: Published

Opinion

[Cite as State v. Curtiss, 2022-Ohio-146.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29006 : v. : Trial Court Case No. 2019-CR-1088 : TEAVEN CURTISS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 21st day of January, 2022.

MATHIAS H. HECK, JR., by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ERIC G. ECKES, Atty. Reg. No. 0091840 and STEPHANIE F. KESSLER, Atty. Reg. No. 0092338, 455 Delta Avenue, Suite 105, Cincinnati, Ohio 45226 Attorneys for Defendant-Appellant

.............

WELBAUM, J. -2-

{¶ 1} Defendant-Appellant, Teaven Curtiss, appeals from his conviction on one

count of rape of a child under ten years of age and one count of gross sexual imposition

of a person less than thirteen years of age. In support of his appeal, Curtiss presents

ten assignments of error. For the reasons discussed below, we find that the first and

second assignments of error have merit and they are sustained. The second, third,

fourth, fifth, sixth, seventh, eighth, and ninth assignments of error are overruled, and the

tenth assignment of error is overruled as moot. Accordingly, the judgment of the trial

court will be reversed, and this cause will be remanded for further proceedings.

I. Facts and Course of Proceedings

{¶ 2} On June 24, 2020, Curtiss was indicted on one count of rape of a person less

than ten years of age, a first-degree felony, and one count of gross sexual imposition of

a person less than 13 years of age, a third-degree felony. The acts in question were

alleged to have occurred between November 3, 2017, and October 30, 2018.

{¶ 3} Curtiss was arraigned on July 7, 2020, and pled not guilty to the charges.

Bond was set in the amount of $500,000 cash surety, plus electronic home detention.

After a bond hearing on July 16, 2020, the court continued the bond as before. Transcript

of Proceedings, Vol. I (“Tr.”), p. 40. On July 24, 2020, Curtiss posted bond and was

ordered released from jail. Subsequently, on July 27, 2020, Curtiss filed a motion

requesting an order for an in-camera review of records from Montgomery County Children

Services (“MCCS”) involving two children, “Kevin,” born in 2012, and “Kathy,” born in -3-

2013.1 On August 7, 2020, the court ordered an in camera review. The court then filed

Court’s Ex. I (a compact disc containing a complete copy of the MCCS file) under seal on

September 2, 2020. Also filed under seal on the same day was Court’s Ex. II, a printout

of the records the court found relevant and discoverable and which were provided to

defense counsel.

{¶ 4} On September 25, 2020, Curtiss filed a motion to suppress, which was

ultimately heard on November 12 and 18, 2020. In the meantime, on September 29,

2020, the State filed a notice of an intent to introduce child statement evidence pursuant

to Evid.R. 807 and a request for a hearing. This was with regard to Kathy’s statements.

However, before the November 12, 2020 hearing, the court interviewed Kathy and

determined that she was competent to testify. Tr. at p. 53. However, the court

overruled the suppression motion, based on a finding that the search was constitutional.

Id. at p. 121.

{¶ 5} On November 23, 2020, the State filed a motion asking the court to review

further MCCS records in camera and to release additional information to the defense,

based on what had occurred during the November hearings. The State noted that

Kathy’s mother (“Mother”) had said during the hearing that her children had been removed

due to a domestic violence incident involving Mother’s ex-boyfriend. As a result,

according to the State, the “circumstances surrounding the removal are now at issue and

may be relevant at trial.” Motion for Court to Review In Camera Children’s Services

Records (November 23, 2020), p. 2.

1 We will refer to these children as Kevin and Kathy, which are not their real names. The children are siblings. -4-

{¶ 6} The trial court did not file a written decision on this motion prior to trial, which

began on December 7, 2020, but it did indicate during the final pretrial hearing on

December 1, 2020, that defense counsel would be provided with some additional pages

of MCCS records. Tr. 1 at p. 124. The court also filed and sealed those records as

Court’s Ex. I and II on December 17, 2020. Id. at p. 125.

{¶ 7} In the meantime, on December 3, 2020, the State filed a motion in limine

seeking to prohibit Curtiss from introducing any evidence or testimony pertaining to

Kathy’s other disclosures of sexual abuse. The disclosures in question involved

Curtiss’s son, J.C., who had been adjudicated a juvenile sex offender against a child in

another county and was living with Curtiss when Kathy was in the home.

{¶ 8} The same day, the State filed another motion in limine asking the court to

prohibit the defense from introducing any evidence relating to a caseworker’s opinion that

Kathy’s brother, Kevin, had been coached to make disclosures. Subsequently, Curtiss

filed a motion in limine on December 6, 2020, asking the court to preclude any testimony

relating to statements that Kevin made, because the State was not calling him as a

witness at trial.

{¶ 9} After jury selection, the court sustained the State’s motion to prohibit

evidence of other disclosures of sexual abuse. Tr. at p. 296-297. With respect to

Kevin’s testimony, the court agreed with the defense that Evid.R. 807 did not apply

because Kevin was not the victim in the case. However, the court deferred ruling on

other bases for admission of Kevin’s testimony that the State might argue. Id. at p. 298-

299. Finally, the court agreed with the State that the caseworker would not be permitted

to give an expert opinion on coaching. Id. at p. 299. -5-

{¶ 10} During trial, the court then decided, over the defense objection, to allow

Kevin’s forensic interview to be played, even though Kevin had not been called to testify.

Tr. at p. 636-637. Ultimately, after hearing the evidence, the jury found Curtiss guilty on

both charges. The court then sentenced Curtiss to life in prison without the possibility of

parole on the rape charge and to a 60-month sentence for gross sexual imposition, to be

served consecutively. Following the judgment, Curtiss filed a timely appeal, and he has

raised ten assignments of error.

II. Failure to Disclose Records

{¶ 11} Curtiss’s first assignment of error states that:

The Trial Court Erred When It Failed to Disclose Relevant MCCS

Records in Violation of Curtiss’s Right to Due Process and a Fair Trial.

{¶ 12} Under this assignment of error, Curtiss argues that the trial court erred in

failing to disclose material records from MCCS that would have changed the outcome of

this case. The records in question were contained in two sets of documents both marked

as Court Ex. I, which the court reviewed in camera. The first Court’s Ex. I, filed under

seal on September 2, 2020, was a compact disc containing 124 separate records. It

consisted of hundreds of pages of MCCS records, including an MCCS activity log from

October 13, 2018, to February 2, 2020. The documents released to Curtiss were

contained in Court’s Ex. II, filed under seal on September 2, 2020.

{¶ 13} The second Court’s Ex. I, filed on December 17, 2020, contains an MCCS

activity log from May 11, 2017, to August 2, 2017. The second Court’s Ex. II contains

redacted records from this Ex. I, and was filed under seal on December 17, 2020. -6-

{¶ 14} All of these records were reviewed for purposes of deciding Curtiss’s

appeal. In view of this review, a discussion of some further factual background of the

case is appropriate.

A. Factual Background

{¶ 15} The alleged victim, Kathy, was born in September 2013, and her brother,

Kevin, was born in June 2012. Mother also had two other children: a daughter Laura,

who was born in April 2017, and a son, David, who was born in December 2018. Tr. at

p. 380.2 K.C. was Kathy and Kevin’s father, and another man, D.H., was the father of

the two younger children. Id. at p. 382.

{¶ 16} K.C. was not involved with Kathy and Kevin, but his father, Teaven Curtiss,

became involved in their lives when Kathy was two or three years old. Id. at p. 384.

After Curtiss became involved, Kathy and Kevin stayed every other weekend at the home

of Curtiss and his wife, T.C. Id. at p. 386 and 823. Other grandchildren came to stay at

the house as well, and Curtiss and T.C. took them to parks, to the pool, and to eat. They

also played with them, watched movies, and celebrated special occasions like birthdays,

Christmas, and Easter. Id. at p. 822 and 853.

{¶ 17} Beginning in January 2017, MCCS investigated Mother’s family for

concerns of physical abuse. Id. at p. 429. After MCCS became involved, the three

children were still living with Mother, pursuant to a safety plan. Id. at 424. At the time,

Mother was romantically involved with D.H., who, as noted, was Laura’s father.

{¶ 18} According to Mother, a domestic violence situation occurred with D.H., in

2 Again, these are not the children’s real names. -7-

which Mother was the victim. As a result, her children were taken away from her and

placed in foster care. Mother also stated that there were no incidents of domestic

violence between her and D.H. before the children were removed. Id. at 422-423. In

addition, Mother said that abuse of the children was not involved; instead, the physical

abuse was between Mother and D.H., and they just had one domestic violence incident.

Id. at 382 and 426.3

{¶ 19} After being removed from Mother’s home on August 10, 2017, Kathy and

Laura were placed in foster care until November 2017. Tr. at p. 383, 424, and 823. At

that point, Kathy went to live with Curtiss and T.C., and Laura went to live with Mother’s

3 These facts, testified to by Mother, were inconsistent with the records. According to the records in Court’s Ex. II (Sept. 2, 2020), MCCS became involved with Mother and her children in January 2017, well before the children were taken from Mother’s care on August 10, 2017. Activity Log, p. 70-71. This involvement was due to concerns about D.H.’s physical abuse of Kevin and ongoing violence in the home around the children. Id. Mother also admitted to MCCS that many instances of domestic violence had gone unreported. (Emphasis added.) Amended Case Plan, p. 3. After MCCS became involved in January 2017, a safety plan was put into effect and the children were allowed to remain with Mother. However, the children were then removed from Mother’s care on August 10, 2017, for several reasons, including a domestic violence incident that occurred in Mother’s home on July 21, 2017, between Mother and D.H., Mother’s failure to cooperate and her indication that she did not need help, and substantiated emotional maltreatment of the children. Id. See also Safety Assessment, p. 3; Family Assessment, p. 3; August 25, 2017 Diagnostic Assessment for Kevin at St. Joseph’s Orphanage (“Diagnostic Assessment”), p. 2-3; and Activity Log, p. 33 and 40. After the children were removed, there were also substantiated emotional maltreatment and neglect allegations against Mother in February 2018, based on the fact that she pulled a knife on the children’s grandmother. This was in front of the children. Family Assessment, p. 3; and Amended Case Plan, p. 3. Furthermore, during the pendency of the criminal case, i.e., before Mother testified, Mother’s physical abuse against Kevin was substantiated for the dates of April 16 and 26, 2019. Id.; Activity Log, p. 156-157; Alleged Perp. Letters; and High Risk Abuse Confirmation, p. 2-4. Due to Mother’s failure to cooperate with the investigation, in May 2019 MCCS filed for protective supervision of the children, which the Juvenile Court granted on June 17, 2019. Activity Log at p. 95, 103, 117, and 119-120. -8-

father and step-mother. Id. According to Mother, Kevin was placed in an orphanage

until December 15, 2017, when he went to Curtiss’s house. Id. at p. 427.4 In December

2017, Mother gave birth to her fourth child, David, whose father, D.H., had been involved

in the domestic violence incident that occurred in July 2017.

{¶ 20} After the children were removed, Mother was given visitation once a week.

Initially, visitation was at the children services agency. Over time, as Mother worked her

case plan, the visits were supposed to increase. Eventually, Mother was able to have

visits with Kevin and Kathy at her home, and in late July 2018, she had her first overnight

visit with the children at her home. Tr. at p. 389. Mother got the children late Saturday

evening and was supposed to take them back to Curtiss’s house on Sunday evening

around 6:00. Id. at p. 389-390.

{¶ 21} Mother testified that she bathed Kevin and Kathy separately in preparation

for returning them to Curtiss. While she was drying Kathy off, she noticed blood dripping

down Kathy’s inner thigh. It was sufficient to leave a nickel or quarter-sized pool of blood

on the floor. Id. at p. 390. Once Mother calmed Kathy down, she was able to see that

the blood was coming from Kathy’s vagina. Mother asked Kathy what had happened,

but Kathy was “screaming and hollering” like she was in pain. Id. at p. 391-392.

{¶ 22} When Mother was looking for the source of the blood, she tried to get Kathy

4 Contrary to Mother’s statement, Kevin was displaced from two foster homes and was admitted to Dayton Children’s Hospital (“DCH”) from August 10 to August 25, 2017. At that point, Kevin was transferred to St. Joseph’s Orphanage for psychiatric stabilization. He stayed there until January 2, 2018. Diagnostic Assessment, p. 1, and Discharge Summary, p. 1. Kevin then was released to Curtiss’s home. Kevin was displaced from the foster homes and taken to DCH for “aggression, verbal threats, biting, and agitation. While in DCH, Kevin attacked several staff members, tried to run from the hospital, and engaged in physical destruction. The assessment summary also noted that Kevin “had been displaced from over 15 daycares” for similar behavior. Diagnostic Assessment, p. 7. -9-

to lie down, but it was a struggle. Kathy was not willing to open her legs and was

screaming and crying. It was not like Kathy to act like that, as Mother had never had any

problems with Kathy. Id. at p. 392.5 When Mother asked Kathy about it, Kathy did not

want to talk. However, Kevin was standing at the bedroom door and could hear what

was going on. Kevin was kind of screaming and yelling, just as Kathy was, and said

“Pawpaw Teaven did that; Pawpaw Teaven did that,” and kept repeating it. Id. at p. 393-

394. At that point, Kathy stated that they were not supposed to talk about that, because

they would get in trouble. Id. at p. 394. Kathy still did not want to talk about it, but the

next day, she told Mother that Curtiss had been touching her. Id. at p. 395.

{¶ 23} After learning the above information, Mother decided not to return the

children to Curtiss that night. She also called her MCCS caseworker, Lisa Brown, but

was unable to reach her. As a result, she left Brown a voice mail. Mother also called

5 This was inconsistent with the records, as was Mother’s statement that she never had any problems with Kathy before the sexual abuse, but had problems afterward with Kathy at school, daycare, and at home. Tr. at p. 410. Mother also inaccurately stated that she did not have any behavioral issues with Kathy in 2017. Id. at p. 457. In contrast, before the children were removed from Mother, Kathy was reported to have been aggressive toward Kevin and Laura. Amended Case Plan, p. 3. The same report also noted that Kathy had “been exposed to repeated trauma incidents as a result of her mother’s explosive behaviors as well as her exposure to trauma through maternal relative and romantic relationship interactions.” Id. Furthermore, on July 26, 2017, Mother reported that she was “having all kinds of problems with the kids including * * * [Kevin and Kathy] acting out.” Activity Log, p. 38. Mother’s stepmother, who babysat for the children at times, stated that before the children were removed in 2017, Kathy had behavior issues, including defiance, hyperactivity, and trouble listening and following directions. Tr. at p. 547. Finally, a report on a family conference with Mother held on August 4, 2017, indicated that Kathy had “speech and behavior issues.” Activity Log, p. 40. Kathy’s progress report for the first quarter of preschool in 2017 (after the children had been removed from Mother) noted that Kathy “needs redirection many times throughout the day. We have seen some improvement with having her comply with the teacher’s requests and fewer outbursts. Until this last week (October 16).” MCCS Grade Card. -10-

her mother and stepmother and told them about what had happened. Tr. at p. 397.

Because Mother had a pediatrician’s appointment already scheduled for Kevin the next

day, she took Kathy along to have her checked out. Id.6

{¶ 24} During the visit with the pediatrician, Dr. Parks, Mother did not tell the doctor

what Kathy had told her. Id. at p. 399. According to Mother, she did not tell Dr. Parks

about this because she did not have custody of the children and was not supposed to

take them to the doctor.7

{¶ 25} Dr. Parks, a general community pediatrician, testified at trial. Dr. Parks

stated that she had been treating Kathy since 2016. Id. at p. 470-471. On July 25,

2018, Kevin had an appointment with Dr. Parks about his medication. Id. at p. 471. At

the end of the visit, Mother told Dr. Parks that Kathy had been scratching her privates,

and asked her to take a look. Id. at p. 471-472. In such situations, Dr. Parks’ normal

procedure is to have a parent undress the child, and she then does a visual of the genitals;

that is what occurred during this visit. Id. at p. 474.

{¶ 26} Mother did not disclose to Dr. Parks that she had any concern about sexual

abuse. Id. Kathy was a bit combative and did not cooperate with getting undressed.

Id. at p. 475. After Mother undressed Kathy, Dr. Parks took a visual look at the exterior

genitalia; she did not use any instruments. Id. Dr. Parks observed some abrasions,

some skin breakdown on the inner part of the vulva on the inside of the labia minora. Id.

6There is a discrepancy in the timeline here, as Mother stated that the bath occurred on Sunday, July 22, 2018. However, the visit with the pediatrician took place on Wednesday, July 25, 2018. Tr. at p. 389, 445, and 472. 7 However, Mother told her caseworker on the very day of the appointment that she had taken the children to the doctor. Tr. at p. 400-401 and 443. -11-

at p. 476. Dr. Parks did not recall anything being on the external part of the labia and

did not see anything on the inner thigh area. Id. There were no signs of bleeding. Id.

at 784.

{¶ 27} Because Dr. Parks did not have any idea that there was a sexual assault

allegation, she did not do anything further or refer Mother anywhere. Id. at p. 477. Dr.

Parks told Mother that the condition can be normal and told her to apply some Vaseline

on the area so the skin could heal. Id. According to Dr. Parks, this kind of skin

breakdown can be caused by a number of things, including girls’ nails scratching,

inserting foreign objects at bath time to play, a lot of wiping or not wiping adequately after

potty training, and someone else touching or putting objects in there. Id. at p. 478.

Mother thought one of the causes might be a yeast infection, because Kathy was

scratching. Id. at p. 493. If Dr. Parks had known potential sexual abuse were involved,

she would not have conducted the examination and would have referred the child to

CARE House. Id.

{¶ 28} On July 25, 2018 (the day of the exam), Mother sent an email to Lisa Brown,

her caseworker, at 6:51 p.m. Tr. at p. 401. This email stated that:

Hello, I called and left a message for you regarding [Kathy] and

[Kevin]. I took them to the doctor appointment yesterday for [Kevin’s] med

checkup, which Dr. Parks was very upset due to the fact that [Kevin] has

not been being given his medication. So she did order labs and such for

me to take him to get done.

And when I had [Kathy], she decided to tell me that her private area

was bleeding, so I looked, and it was. She told me Pappaw Teaven -12-

touched her there, and that Pappaw told her that is only used to play with.

I’m not sure what is going on, but * * * wanted to get it looked into. She is

just very detailed for her age on her private area and has a very detailed

story when it comes to talking about it.

I did ask Dr. Parks about it yesterday, and * * * she said it looks like

it has possibly been rubbed on too hard due to the way it looks and * * *

how it looks, and how the bleeding is my biggest concern is the safety of

her obviously, and to make sure she’s not being touched inappropriately by

anybody.

If you could give me a call as soon as possible about this matter, I

would greatly appreciate it. I was advised to call the 224-KIDS number * * *

and let them know, but I am messaging you, and did leave you a voicemail

yesterday as well, so I’m hoping to hear from you by tomorrow. If not, then

I guess I will call the hotline and discuss with them.

Also, when I was at court today for child support for their father, I was

advised by the Magistrate to file for emergency custody due to neglect on

[Kevin’s] medication, and now the situation with [Kathy].

I also asked downstairs if you guys had filed anything to get an earlier

court date, and they said you have not, so that is the – why their

recommendation to file for emergency custody, I believe, is what she said it

was called. Thank you.”

Tr. at p. 401-402 and State’s Ex. 3.

{¶ 29} Later in the email, Mother said that if she did not hear from Brown the -13-

following day (July 26), she was going to call 224-KIDS. Id. at p. 451. Mother did not

call the hotline on that date. At trial, Mother said that she eventually did call and spoke

with the “FAIR” program. Id. at p. 452. According to Mother, she did not get anywhere

with her caseworker, the FAIR people, and her caseworker’s supervisor with respect to

this situation as well as other issues. Id.

{¶ 30} Mother also stated that Brown never responded to her email. Id. at p. 402.

However, the following day, on July 26, 2018, Brown called Dr. Parks, who would have

told her that there had been no discussion with Mother about any type of sexual abuse.

Id. at p. 481 and 495. At trial, Mother also indicated that she did speak with Brown about

the sexual abuse incident and that Brown spoke with the children as well. Id. at 454.

{¶ 31} One of the documents disclosed to the defense after an in camera review

was a report of Brown’s supervisor, Michelle Williams, concerning a home visit with

Mother on January 14, 2019. See Activity Log, p. 44-46. This report stated, in pertinent

part, as follows:

[Mother] reported that she thinks after about 20 sessions [of Kathy

with a counselor], the detective will have the information he needs to be

able to file charges against Teaven. * * * [Mother] stated that the detective

is mad because the kids had visits with Teaven after the original allegations.

I inquired of [Mother] and asked her if she remembered talking to Mgr MJ

Johnson after she sent the email to CW [Brown] * * *. [Mother] stated, “yes,

the one who is retired now.” I informed her that Mgr MJ Johnson is now

retired. I asked [Mother] if she remembered her conversation with Mgr

Johnson who talked to me about their allegations after I returned from -14-

vacation and it was reported that she [Mother] denied having any concerns

regarding the children being sexually abused by Teaven. At that time, it

was reported to me that [Mother] thought the doctor had concerns, but when

speaking with the doctor – nothing was ever stated to her about any

concerns of sexual abuse and the doctor did not have any concerns

regarding sexual abuse because it was not stated to her and she did not

have any reason to be examining or questioning [Kathy] about this.

[Mother] stated that she does remember this conversation and how it could

be assumed that we did not have concerns. I informed [Mother] that it was

reported that you talked about Teaven putting the cream/Vaseline on

[Kathy] because of her scratching and she knew about this and was not

concerned that it might be sexual abuse. [Mother] also acknowledged this

and she stated that [Kevin] did watch Teaven put the cream on [Kathy] and

she wanted to know why [Kevin] would be watching this and stated that this

is gross. I informed [Mother] that I cannot guess why [Kevin] would be

watching but when statements are made about sexual abuse - and then

allegations appeared to have been denied is why I was told that a referral

was not needed at that time. It did not appear that anyone had concerns

in July and [Mother] acknowledged this but stated the detective stated that

a referral should have been made. I informed [Mother] that we have to go

forward with the information we have at this time and with the referral being

made in October - the agency filed to suspend visits with Teaven and that I

do not believe he will fight this in any way and the court hearing should be -15-

straight forward. [Mother] wanted to know if the agency could end

involvement at that time. I informed [Mother] that we can request this since

PSUP [protective supervision] expires at the end of March anyway. * * * I

reminded [Mother] of the concerns that got the agency involved initially and

she stated that she is trying to keep [D.H.] away so that the children are not

exposed to violence.

Activity Log, p. 44-45.8

{¶ 32} In any event, the matter was not referred to CARE House (which handles

child abuse issues) after the July 2018 allegations, and Mother returned the children to

Curtiss’s custody.

{¶ 33} In mid-August 2018, Laura returned to Mother’s home, and Kevin and Kathy

returned home on August 25, 2018. Tr. at p. 404. A hearing on returning custody to

Mother was held on September 28, 2018, and Mother was given custody of the children,

with MCCS retaining protective supervision. In addition, the court gave Curtiss visitation

time on alternating weekends. Id. at p. 404 and 458.

{¶ 34} Despite appearing in court on September 28, 2018, where she was

represented by counsel (and despite the fact that Curtiss and his wife were no longer

living together), Mother did not mention the sexual abuse allegations during the court

proceedings. Id. at p. 458-459.

{¶ 35} After the children were returned to Mother, Kathy attended a preschool and

8 As noted, after the case was closed, the agency became involved again a very short time later, based on allegations that Mother had physically abused Kevin. The allegations were substantiated, and the agency was again given protective supervision due to Mother’s failure to cooperate. -16-

kindergarten school in West Carrollton, where Mother was then living. At the beginning

of the school year in 2018, Kathy was referred to a mental health therapist, Sarah, due to

some behavioral issues. Tr. at p. 354. Sarah’s normal procedure was to observe the

child in the classroom, call the parents to explain her services, and then for them to come

in for an assessment. Id. at p. 356. During the intake interview with Mother, Sarah

learned about the sexual abuse Kathy had reported. She then made a mandated report

to the hotline, 224-KIDS. Id. at p. 358-359. Detective Spears subsequently contacted

Sarah and said an investigation would be conducted. Id. at p. 359.

{¶ 36} Melissa Lowe, an MCCS employee working at CARE House as a child

welfare intake worker, received a sexual abuse referral on October 12, 2018. Id. at p.

609-610. This was about two weeks after Mother had received custody of the children.

Melissa reviewed the file and noted that an allegation had previously been made to

Mother’s caseworker. Melissa also spoke with Mother and arranged a forensic interview

at CARE House. Id. at p. 614-615.

{¶ 37} During Kathy’s forensic interview on October 30, 2018, Kathy disclosed that

Curtis had touched the middle part of her “coco” (Kathy’s name for her vagina), and had

told her that he was the only one who could touch it. Id. at p. 651. Kathy further stated

that Curtiss had touched her coco with his hand and had used something else to touch it.

Id. at p. 652. Kathy described the object as the “blue thing and the white thing” and said

it was “like a stick.” Id. at p. 656-657. She further described the object as having “three

fingers down and one up.” Id. at 675. In addition, Kathy stated that when Curtiss

touched her coco, it hurt and it bled. Id. at p. 662.

{¶ 38} On October 30, 2018, a forensic interview of Kevin was also conducted at -17-

CARE House. During the interview, Kevin stated that he had seen Curtiss touch Kathy’s

coco hard with his hand and make it bleed. He further said that he had seen this more

than once. Tr. at p. 690 and 693.9

{¶ 39} On the same day as the interview, a pediatric nurse practitioner who

specializes in child abuse examined Kathy. The examination was normal, but Kathy

stated during it that Curtiss had touched her coco with his fingers and stuff, and that it

hurt. Id. at p. 711, 715, and 718.

{¶ 40} After the forensic interviews, Det. Spears obtained releases for Kathy’s

records with Dr. Parks and the school therapist. Id. at p. 725 and 732-733. Spears

worked at CARE House as a detective. Id. at p. 725. Spears also spoke with Brown

regarding her failure to pursue a forensic interview and testified that her reasons did not

make much sense to him. Id. at p. 730.

{¶ 41} On November 20, 2018, Spears learned that Curtiss was still receiving

visitation with the children, told Mother not to allow it despite the existence of a court

order, and contacted prosecutors to file paperwork to end visitation. Id. at p. 733-734

and 761. Subsequently, on December 6, 2018, Spears executed a search warrant on a

9 Records not disclosed after the in-camera inspection indicate that during an MCCS investigation of Mother’s physical abuse in 2019, Kevin was asked if he ever lied. Kevin “hid his face in his shirt and then stated ‘only about the stuff with [Kathy].’ ” Activity Log, p. 119. Kevin “then said he would get into trouble for that and asked if he could be finished now [with the interview].” Id. Additionally, the records that were not disclosed show that the children “were well- coached not to talk” to MCCS and that Mother had ordered Kevin not to talk to hospital personnel who were investigating Mother’s physical abuse. See High Risk Abuse Confirmation, p. 1. The hospital records state that during the doctor’s conversation with Kevin about abuse, “mother entered the room and ordered us all out of the room. She reported that we are the reason her son is the way he is, and then she scolded [Kevin] for talking to us.” Doc. #89 (April 15, 2019 DCH Hospital Records, Exam of Dr. Liker, p. 2. -18-

home at Sandhurst Avenue in Dayton, where Curtiss had been living. Spears had heard

“rumors” that Curtiss might no longer live there and was able to verify afterwards that

Curtiss had moved out six months earlier. Tr. at p. 735 and 742-743.

{¶ 42} During the search, Spears found a hand towel and baby blanket between

the box springs and mattress in the master bedroom, and he also found a pink finger dildo

in a package with other sexual objects in the closet of the bedroom. Id. at p. 748-750.

Spears was interested in this latter object, because it could potentially correspond with

the three fingers down and one up object that Kathy had described. Id.

{¶ 43} During a later interview with Kathy, Spears showed her a number of

photographs taken at the house. For a majority of the photos, Kathy was happy and

excited to show him the house. However, her demeanor changed when she saw the

picture of the hand towel and blanket. At that point, Kathy stopped smiling, nearly got

tears in her eyes, froze up, and ran out of the room. Id. at p. 752. She also reacted to

a photo of the finger dildo, stating that it looked like the blue thing. Id. at p. 754. She

did not react to photos of any other items that were sexual in nature and were found at

the house. Id. at p. 764.10

{¶ 44} As indicated, Curtiss was indicted on June 20, 2020, on one count of rape

and one count of gross sexual imposition, and he was found guilty of the charges. With

the above background in mind, we will consider the issue raised, which is whether the

10 In records not disclosed after the in camera inspection, Mother said, during a home visit on March 21, 2019, that “the detective told her that she needs to take [Kathy] to Carehouse so she will disclose what he needs for court.” Activity Log, p. 60-61. In addition, during an investigation of Mother’s physical abuse, Mother reported that “the children are ‘not saying the right things to the therapist’ and the detective wants them to be in counseling at Carehouse to help build his case.” Id. at p. 71. -19-

trial court abused its discretion in failing to disclose various confidential records of the

children services agency.

B. Legal Discussion

{¶ 45} Due to a trial court’s broad discretion in admitting evidence, we review

whether the court’s decision was an abuse of discretion constituting material prejudice.

State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14. An abuse

of discretion “has been described as including a ruling that lacks a ‘sound reasoning

process.’ ” Id., quoting AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). This is “a

deferential review,” and “[i]t is not sufficient for an appellate court to determine that a trial

court abused its discretion simply because the appellate court might not have reached

the same conclusion or is, itself, less persuaded by the trial court's reasoning process

than by the countervailing arguments.” Id.

{¶ 46} In the case before us, Curtiss filed a motion in July 2020, asking the court

to review the MCCS records pertaining to Kevin and Kathy and to disclose them, because

the records were relevant and material to his defense. On August 7, 2020, the court

ordered MCCS to produce its records for an in camera review. Then, after reviewing the

records, the trial court disclosed a limited number of records to counsel and filed them

under seal. See Court’s Ex. II (Sept, 2, 2020). These documents contained some

redactions and related solely to the actual sexual abuse investigation that began in

October 2018. In its decision, the court reasoned that these records were “relevant and

discoverable.” See Entry Filing Exhibits under Seal (Sept. 2, 2020), p. 1. As indicated, -20-

the 124 documents that the court reviewed were contained on a compact disc that was

filed under seal, along with the released records. See Court’s Ex. I (Sept. 2, 2020).

{¶ 47} These documents included a 157-page “Activity Log.” The release date of

this log was April 4, 2020, and it included events that occurred between October 13, 2018,

and February 2, 2020. See Activity Log. Unfortunately, no activity records from dates

earlier than October 13, 2018 were contained on this disc.

{¶ 48} As also noted, after the hearing held on November 12, 2020, the State filed

a motion asking the court to consider releasing other parts of the MCCS record, because

the circumstances of the children’s removal could be relevant at trial. Motion for Court

to Review In Camera Children Services Records (Nov. 23, 2020), p. 2.

{¶ 49} The court again reviewed records in camera. This time, the court reviewed

an MCCS Activity Log with a report date of November 27, 2018. See Court’s Ex. I, filed

under seal on December 2, 2020. The records that were reviewed consisted of pages

30-40 of 278, and they covered activities between May 11, 2017 and August 2, 2017. Id.

This review was a small part of the total amount of the log, i.e., 278 pages. It is unclear

why only this amount of information was provided for review, since the agency’s

involvement began in January 2017. Specifically, when the State asked the court to

review additional parts of the MCCS record, it acknowledged that the reasons for the

children’s removal could be relevant. However, the pertinent time concerning removal

was not just limited to May 11 through August 2, 2017.

{¶ 50} The trial court disclosed all 10 pages it was given to review, but made fairly

heavy redactions on some pages. See Court’s Ex. II (Dec. 17, 2020). Again, the court’s

reason for disclosing these portions of the record was that they were “relevant and -21-

discoverable.” Regarding both sets of records reviewed, the court did not discuss its

reasons for rejecting disclosure. From reading the court’s brief entries, the only

conclusion we can reach is that the court found the remaining records irrelevant.

{¶ 51} We have previously stressed the well-settled principle that “the

prosecution's suppression of evidence favorable to an accused violates due process

where the evidence is material either to guilt or punishment, irrespective of the

prosecution's good or bad faith.” State v. Cochran, 2d Dist. Greene No. 2019-CA-41,

2020-Ohio-3054, ¶ 34, citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963). “Similarly, Crim.R. 16(B)(5) requires the prosecution to disclose

‘[a]ny evidence favorable to the defendant and material to guilt or punishment.’ Hence,

Brady and Crim.R. 16(B)(5) places [sic] upon the State a duty to disclose evidence ‘that

is both favorable to the accused and “material either to guilt or to punishment.” ’ ” Id.,

quoting United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481

(1985), which quotes Brady at 87. “The prosecution's duty of disclosure under Brady

extends to favorable and material evidence that is known to the prosecution and to others

acting on the prosecution's behalf in the case.” Id., citing Kyles v. Whitley, 514 U.S. 419,

437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

{¶ 52} A conflict over disclosure exists when the material in question is

confidential. As pertinent here, the law is well-established that “a children services

agency's investigatory record resulting from a report of suspected child abuse is

confidential.” State ex rel. Clough v. Franklin Cty. Children Servs., 144 Ohio St.3d 83,

2015-Ohio-3425, 40 N.E.3d 1132, ¶ 18, citing former R.C. 2151.421(H)(1).11 Primarily,

11 This provision is now contained in R.C. 2151.421(I)(1). -22-

this section of R.C. 2151.421 provides for confidentiality of these reports in civil actions

brought against a person who made the report. R.C. 2151.421(I)(1). This section of the

statute also states that “[i]n a criminal proceeding, the report is admissible in evidence in

accordance with the Rules of Evidence and is subject to discovery in accordance with the

Rules of Criminal Procedure.” Id. A general provision for confidentiality of agency

records is also stated in R.C. 5153.17, which does not list any exemptions.

{¶ 53} In Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40

(1987), the United States Supreme Court addressed this conflict in a similar situation, i.e.,

in a case involving disclosure of child abuse investigative files. Id. at 43. The court

acknowledged that “the public interest in protecting this type of sensitive information is

strong,” but disagreed that “this interest necessarily prevents disclosure in all

circumstances.” Id. at 57.

{¶ 54} In Ritchie, the state statute, like R.C. 2151.421(I)(1), did not absolutely

shield disclosure. Id. As a result, the court found that information “material” to the

defense should be disclosed. Id. at 58. The court defined “material” by stating that

“ ‘[e]vidence is material only if there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would have been different.

A “reasonable probability” is a probability sufficient to undermine confidence in the

outcome.’ ” Id. at 57, quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375, 87 L.Ed.2d 481.

{¶ 55} Although the Supreme Court allowed disclosure of these records, it did not

feel the defense should be allowed to make its own search of the files. Ritchie at 59.

Instead, a fair trial could be ensured by allowing the trial court to examine the files in

camera. Id. at 60. The court emphasized, however, that while this rule denied a -23-

defendant “the benefits of an ‘advocate’s eye,’ ” a trial court’s discretion was “not

unbounded.” Id. Specifically, where “a defendant is aware of specific information

contained in the file (e.g., the medical report), he is free to request it directly from the

court, and argue in favor of its materiality.” Id. And finally, the court stressed that the

disclosure duty was ongoing. In other words, “information that may be deemed

immaterial upon original examination may become important as the proceedings

progress, and the court would be obligated to release information material to the fairness

of the trial.” Id.

{¶ 56} In an opinion concurring with the pertinent part of the court’s decision,

Justice Blackmun noted that:

When reviewing confidential records in future cases, trial courts should be

particularly aware of the possibility that impeachment evidence of a key

prosecution witness could well constitute the sort whose unavailability to the

defendant would undermine confidence in the outcome of the trial. As the

Court points out, moreover, the trial court's obligation to review the

confidential record for material information is ongoing. Impeachment

evidence is precisely the type of information that might be deemed to be

material only well into the trial, as, for example, after the key witness has

testified.

Id. at 65–66 (Blackmun, concurring in part and concurring in the judgment.)

{¶ 57} In Cochran, we rejected the defendant’s claim of error for two reasons.

First, the defense had invited the error by failing to ask for an in camera inspection before

trial; and second, the defense failed to ask to admit the records or to make a proffer during -24-

trial. Cochran, 2d Dist. Greene No. 2019-CA-41, 2020-Ohio-3054, at ¶ 42-44. In

contrast, here, the defense did file a motion prior to trial and did not waive the issue during

trial. The records were also filed after the in camera inspection and were available.

{¶ 58} In another case, we affirmed the trial court’s exclusion of a complaining rape

victim’s mental health records because they did not impeach her credibility. In re J.M.,

2d Dist. Montgomery No. 22836, 2009-Ohio-3950, ¶ 35. As examples, we observed,

after reviewing the records, that they did not suggest that the victim “had any difficulty

with telling the truth or that she had a history of telling lies or making false accusations.

Instead, they would have corroborated her own testimony that she had been kicked out

of a day-care program for throwing things, hitting people, and fighting.” Id.

{¶ 59} In contrast, the records here indicated that Mother (the primary witness) had

a history of making inconsistent statements, making apparently false accusations,

accusing MCCS caseworkers and hospital employees of lying, threatening lawsuits

against both MCCS and hospital personnel, manipulating staff and law enforcement, and

triggering others to obtain negative responses that worked on her behalf. See Activity

Log, p. 62, 68, 74, 84, 95; High Risk Abuse Confirmation, p. 1; MCCS External Agency

Report, p. 2; April 15, 2019 progress notes, p. 1; Mar. 22, 2019 Safety Plan, p. 2. As

indicated, we have no idea what the records between January and May 2017 might have

revealed, because the State or its agent, MCCS, did not provide those records to the trial

court.

{¶ 60} During trial, the court restricted the defense from questioning Mother about

certain reports of violence, stating that Mother was “not on trial” for every act in her life.

Tr. at p. 431. The court further stated that the defense could not “discuss every issue in -25-

a person’s life to establish an issue of credibility.” Id. at p. 431 and 433.

{¶ 61} While we agree in part with this statement, Mother was a primary

prosecution witness, and her credibility and knowledge of events pertaining to violence

witnessed by the children was critical to the case. In fact, during closing, the State relied

heavily on Mother’s credibility and lack of motivation to lie about the sexual abuse. Id.

at p. 883 (“Here’s why we believe [Mother]. * * * [Mother] has no motivation to lie about

this. * * * She has her kids back. She got them back already. So why would she lie

about something later? She has no reason to; she doesn’t need to.”)

{¶ 62} However, when Mother made the initial accusations, she did not have her

children; Curtiss had temporary custody, and even though MCCS intended to return the

children in a few months, the agency still retained protective supervision. Furthermore,

even when Mother’s later accusations were made, MCCS still retained protective

supervision and could have returned to court, as it did later, after violence continued in

Mother’s home. And, at that later time, MCCS asked for both protective supervision and

temporary custody of the children. Accordingly, the documents in question were relevant

and material and should have been disclosed to the defense.

{¶ 63} “ ‘Relevant evidence’ ” means “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence. Evid.R. 401. Under

this definition, the MCCS records were relevant. They were also material under the

definition of that term previously discussed in Ritchie. See Ritchie, 480 U.S. at 39, 107

S.Ct. 989, 94 L.Ed.2d 40. By this, we are not saying that every fact in the records is

necessarily true; we make no judgment about that. The point is that the information -26-

should have been disclosed.

{¶ 64} If the evidence had been disclosed, Mother’s testimony may have been

disbelieved and material evidence relevant to the defense presented. There is a

reasonable probability that the result would have been different. By making this

statement, we express no opinion on the eventual outcome; we simply note that the

evidence was material and should have been disclosed.

{¶ 65} Furthermore, it is noteworthy that records were not disclosed concerning

Detective Spears’s comments to Mother about the fact that the children were not

disclosing enough and needed to be brought to CARE House to build his case. Either

Mother was being truthful about these statements or she was not. If she was not being

truthful, that reflects on her credibility. If Mother’s statements were true, they could have

been used to attack the detective’s credibility. In either event, these were material

records.

{¶ 66} We also believe the trial court should have reviewed all the records in the

Activity Log from the time MCCS case began in January 2017. As indicated, the reasons

why the State included only 30 pages of this log are unclear.

{¶ 67} As an additional matter, we agree with the defense that other evidence

relating to the level of violence in the home and Kathy’s prior behavioral issues was both

relevant and material. For example, during closing, the State pointed out that Kathy had

regressed in potty training, was acting out sexually, and was in counseling – all of which

would have been caused by Curtiss’s abuse. Tr. at p. 924-925. However, if other

reasons existed for this behavior, they could have cast doubt on what was another

important aspect of the State’s case. -27-

Accordingly, the first assignment of error is sustained.

II. Right to Cross-Examination

{¶ 68} Curtiss’s second assignment of error states that:

The Trial Court Erred When It Limited Cross-Examination of [Mother]

in Violation of Curtiss’ Right to Confront, Due Process and a Fair Trial.

{¶ 69} Under this assignment of error, Curtiss argues that the trial court violated

his Confrontation Clause rights by restricting his ability to cross-examine Mother on points

relevant to his theory of defense. This theory was based on Curtiss’s contention that

Mother fabricated the allegations, that Mother coached Kathy, and that Mother had a

motivation to lie about the allegations. Appellant’s Brief, p. 12. The State’s position is

that the defense was able to show that Mother admitted that she had more than one

incident of violence and that additional testimony would have been unnecessarily

cumulative.

{¶ 70} Under the Sixth Amendment's Confrontation Clause, “[i]n all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses

against him.” The United States Supreme Court has “held that this bedrock procedural

guarantee applies to both federal and state prosecutions.” Crawford v. Washington, 541

U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), citing Pointer v. Texas, 380 U.S.

400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Ohio’s interpretation of Article I, Section

10 of the Ohio Constitution parallels the federal interpretation, and Ohio’s constitution

“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). Accord State v. Arnold, 126 Ohio St.3d 290,

2010-Ohio-2742, 933 N.E.2d 775, ¶ 12. -28-

{¶ 71} “The Confrontation Clauses were written into our Constitutions ‘to secure

for the opponent the opportunity of cross-examination.’ ” (Emphasis sic.) Self at 76,

quoting 5 Wigmore, Evidence, Section 1395, at 150 (Chadbourn Rev.1974). “Cross-

examination of a witness is a matter of right, but the ‘extent of cross-examination with

respect to an appropriate subject of inquiry is within the sound discretion of the trial

court.’ ” State v. Green, 66 Ohio St.3d 141, 147, 609 N.E.2d 1253 (1993), quoting Alford

v. United States, 282 U.S. 687, 691, 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931). “The right

of cross-examination includes the right to impeach a witness' credibility.” Id.

{¶ 72} Abuses of discretion involve unreasonable, unconscionable or arbitrary

decisions, and include decisions that lack a “ ‘sound reasoning process.’ ” Morris, 132

Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, at ¶ 14. Again, this review is

deferential, and appellate courts may not simply substitute their judgment for that of trial

courts. Id.

{¶ 73} As indicated previously, Mother was a significant prosecution witness. We

have already discussed Mother’s claim of having no prior incidents of violence in her

home, other than one. During Mother’s cross-examination, the following exchange

occurred:

Q. Was the Kettering Police Department involved with your family

in January of 2017?

A. I don’t recall the police department.

Q. Are you aware that Montgomery County Children Services

investigated concerns of physical abuse on January 19, 2017?

A. Yes. -29-

Q. April 18, 2017?

A. Yes.

Q. July 21, 2017.

A. Yeah.

Q. So when you say that there were no other allegations of

violence, that wasn’t true, was it?

A. I would say not necessarily.

Q. You didn’t agree that there was [sic] offenses of violence on

those dates?

A. Who are you referring to?

Q. I’m referring to Children’s Services being involved on January,

April, and July of 2017.

A. For what?

Q. That they were involved with your family for offenses of

violence?

A. Against who?

Q. Where there offenses of violence?

Q. I’m asking you just –

THE COURT: She’s asking you to clarify, so I’m going –

***

THE COURT: – I’m going to ask you to clarify the question.

MR. GOUNARIS: – Let me ask. I will clarify. -30-

By MR. GOUNARIS:

Q. Who were they referring to?

A. Meaning Children Services?

Q. Yeah.

A. [Kevin]; is that what you’re saying?

Q. They were involved there, right?

A. In January, yes.

Q. Okay. Abuse by [D.H.]?

A. No.

Tr. at p. 429-430.

{¶ 74} Shortly thereafter, when defense counsel tried to ask Mother about the

allegations of the three dates that involved D.H., the State objected and asked for a

sidebar. The trial court agreed to the sidebar, but stated, before hearing any argument

on the State’s objection, that it intended to sustain it. Id. at p. 431. The following

exchange then occurred during the sidebar:

THE COURT: She’s not on trial, neither is [D.H.]. All right, so –

MR. GOUNARIS: Well, it goes to my defense, Judge.

THE COURT: Which is what?

MR. GOUNARIS: Well, that’s what I’m estab – I’m going to tell her

–

THE COURT: No, no, no –

MR. GOUNARIS: She’s going to be honest with us or she’s not

going to be honest. -31-

THE COURT: And quiet, quiet, okay? I think it’s gone far enough,

all right? And it is beyond, outside of the issue of testing her credibility, so

MR. GOUNARIS: Judge?

THE COURT: Yeah.

MR. GOUNARIS: Let me add it for the record. These offenses of

violence these children saw –

MR. GOUNARIS: – and that’s the reason why they –

MR. GOUNARIS: – that’s why they had to be removed.

THE COURT: And she’s admitted that, so if you just –

MR. GOUNARIS: It’s one time.

THE COURT: It doesn’t – again, I think it’s beyond –

MR. GOUNARIS: Okay.

THE COURT: what is reasonable.

THE COURT: * * * Credibility is limited. It is – you can’t discuss

every issue in a person’s life to establish an issue of credibility, so just

remember that.

Tr. p. 431-433.

{¶ 75} In our view, Mother’s testimony needed clarification, and her answers also

appeared to have been made with intent to confuse the facts. We agree that Mother was -32-

not on trial, but the defense should have been able to clarify what Mother said to pursue

relevant evidence supporting the defense that coincided with impeachment. We note

that in Green, defense counsel’s cross-examination of a witness was “three times” that of

the State and was “tedious and repetitive.” Green, 66 Ohio St.3d at 147, 609 N.E.2d

1253. Having examined the record, we do not find defense’s cross-examination

repetitive. In fact, both the State and defense examinations of Mother were similar in

length (a total, respectively, of 36 pages and 44 pages, and the latter included three pages

devoted to the sidebar discussion).

{¶ 76} We also disagree with the State that the evidence the defense was

attempting to elicit was merely cumulative. “Generally, all relevant evidence is

admissible in a judicial proceeding.” Smith v. Chatwood, 2d Dist. Clark No. 2618, 1990

WL 119270, *2 (Aug. 15, 1990), citing Evid.R. 402. However, courts may exclude

relevant evidence “if ‘its probative value is substantially outweighed by considerations of

* * * needless presentation of cumulative evidence.’ ” Id., citing Evid.R. 403(B).

Cumulative evidence “ ‘is additional evidence of the same kind to the same point.’ ” Id.

at *3, quoting Kroger v. Ryan, 83 Ohio St. 299, 94 N.E. 428 (1911), syllabus.

{¶ 77} For the reasons discussed, we do not think the evidence the defense

attempted to elicit was merely cumulative. As indicated, Mother’s testimony was

confusing and appeared deliberately obtuse.

{¶ 78} Furthermore, we reject the State's claim that the trial court's ruling on the

defense question was prompted by a reference to questions about a guardian ad litem

(“GAL”) report, which was precluded from being considered. Appellee’s Brief, p. 11-12.

{¶ 79} During the sidebar discussion, the trial court twice discussed and rejected -33-

the defense request to ask about the three incidents of violence. Id. at p. 431-432. It

was only after that point that the State asked, “[I]f I can also, before we go further, address

the GAL report?” Id. at p. 432. When defense counsel then indicated that he had

subpoenaed the GAL, the court said it would have to hold a hearing on that point before

allowing the GAL to testify. Id. at p. 433. This had nothing to do with the defense’s

attempt to discuss the events of violence, which had already been rejected. The State

might have been anticipating that the defense would ask about a GAL report, but that had

not occurred. The GAL was also never called to testify.

{¶ 80} The Supreme Court of Ohio has stressed that “the accused has a

constitutional guarantee to a trial free from prejudicial error, not necessarily one free of

all error. Before constitutional error can be considered harmless, we must be able to

‘declare a belief that it was harmless beyond a reasonable doubt.’ ” State v. Brown, 65

Ohio St.3d 483, 485, 605 N.E.2d 46 (1992), quoting Chapman v. California, 386 U.S. 18,

24, 87 S.Ct. 828, 17 L.Ed.2d at 711 (1967). “Where there is no reasonable possibility

that unlawful testimony contributed to a conviction, the error is harmless and therefore

will not be grounds for reversal.” Id, citing State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d

623, paragraph three of the syllabus (1976), vacated on other grounds, 438 U.S. 910, 98

S.Ct. 3135, 57 L.Ed.2d 1154 (1978).

{¶ 81} In view of our prior discussion, we cannot conclude that there is no such

reasonable possibility. Again, Mother was a primary, if not the primary, prosecution

witness, and the trial court’s restriction of cross-examination was not based on sound

reasoning. Accordingly, the second assignment of error is sustained. -34-

III. Right to Confrontation

{¶ 82} Curtiss’s third assignment of error states as follows:

The Trial Court Erred When It Admitted a Prejudicial Statement by

[Kathy] in Violation of Curtiss’ Right to Confront, Due Process, and a Fair

Trial.

{¶ 83} Curtiss contends that the trial court erred in allowing hearsay testimony

about a pink finger dildo that was found during a search of the home of Curtiss’s wife.

As was previously noted, during forensic questioning, Kathy said that Curtiss had touched

her with a “blue thing and the white thing” and said it was “like a stick.” Tr. at p. 656-657.

Kathy also described the object as having “three fingers down and one up.” Id. at p. 675.

{¶ 84} During the search, the police did not find such an object but did find the pink

dildo. When Det. Spears was questioned, he stated that when he had later shown Kathy

a photo of the dildo, she said that “it looks like the blue thing, the one finger up three

fingers down.” Id. at p. 754.

{¶ 85} Curtiss did not object to this testimony, however. See Tr. at p. 754.

Therefore, we review this argument only for plain error. See State v. Pasqualone, 121

Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 14 (noting that “Confrontation Clause

rights, like other constitutional rights, can be waived”). “[P]lain error must be ‘obvious’

as well as outcome-determinative.” State v. Sanders, 92 Ohio St.3d 245, 257, 750

N.E.2d 90 (2001). “Notice of plain error under Crim.R. 52(B) is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus. -35-

{¶ 86} As indicated, defendants have a constitutional right to confront witnesses.

Consequently, “out-of-court statements violate the Sixth Amendment when they are

testimonial and the defendant has had no opportunity to cross-examine the declarant."

Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, at ¶ 13, citing Crawford,

541 U.S. at 68, 124 S.Ct. 1354, 158 L.Ed.2d 177.

{¶ 87} In deciding “whether a child declarant's statement made in the course of

police interrogation is testimonial or nontestimonial, courts should apply the primary-

purpose test: ‘Statements are nontestimonial when made in the course of police

interrogation under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency. They are

testimonial when the circumstances objectively indicate that there is no such ongoing

emergency, and that the primary purpose of the interrogation is to establish or prove past

events potentially relevant to later criminal prosecution.’ ” State v. Siler, 116 Ohio St.3d

39, 2007-Ohio-5637, 876 N.E.2d 534, syllabus, quoting and following Davis v.

Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

{¶ 88} Under the circumstances here, Kathy’s statement was clearly testimonial,

as the primary purpose of showing her the pictures was to prove past events relevant to

the police investigation, not to address an ongoing emergency. The forensic interview

occurred on October 30, 2018, and the search warrant was executed around five weeks

later, on December 6, 2018. Det. Spears did not indicate the precise date on which he

showed Kathy the photos, but it would clearly have been after December 6.

{¶ 89} In opposing this assignment of error, the State argues that the Confrontation

Clause was not violated because Kathy testified at trial and Curtiss was able to cross- -36-

examine her. We agree. Specifically, “[t]he admission of hearsay does not violate the

Confrontation Clause if the declarant testifies at trial.” State v. Powell, 132 Ohio St.3d

233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 64

{¶ 90} The State does concede that, even if the Confrontation Clause were

satisfied, that would not mean that a hearsay statement was properly admitted. The

State argues, however, that Kathy’s statement was admissible as an “excited utterance”

under Evid.R. 803(2) because, when Kathy was shown the photo, “ ‘she blacked out a

little bit and then she made a comment about the photo.’ ” Appellee’s Brief at p. 15,

quoting Tr. at p. 753-754.

{¶ 91} Under Evid.R. 803(2), an excited utterance is defined as “[a] statement

relating to a startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition.” The Supreme Court of Ohio uses the

following four-part test to decide if statements should be admitted as excited utterances:

“(a) that there was some occurrence startling enough to produce a

nervous excitement in the declarant, which was sufficient to still his

reflective faculties and thereby make his statements and declarations the

unreflective and sincere expression of his actual impressions and beliefs,

and thus render his statement of declaration spontaneous and unreflective,

(b) that the statement or declaration, even if not strictly

contemporaneous with its exciting cause, was made before there had been

time for such nervous excitement to lose a domination over his reflective

faculties so that such domination continued to remain sufficient to make his

statements and declarations the unreflective and sincere expression of his -37-

actual impressions and beliefs,

(c) that the statement or declaration related to such startling

occurrence or the circumstances of such starling occurrence, and

(d) that the declarant had an opportunity to observe personally the

matters asserted in his statement or declaration.”

(Emphasis sic.) State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948,

¶ 166, quoting Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955), paragraph two

of the syllabus, followed and approved in State v. Taylor, 66 Ohio St.3d 295, 612 N.E.2d

316 (1993), fn. 2.

{¶ 92} Concerning the first prong of the test, “[t]here is no per se amount of time

after which a statement can no longer be considered to be an excited utterance. The

central requirements are that the statement must be made while the declarant is still under

the stress of the event and the statement may not be a result of reflective thought.”

(Italics sic.) Taylor at 303.

{¶ 93} In Taylor, the court noted that a “trend of liberalizing the requirements for

an excited utterance when applied to young children who are the victims of sexual assault

is also based on the recognition of their limited reflective powers.” Id. at 304, citing State

v. Wallace, 37 Ohio St.3d 87, 88, 524 N.E.2d 466 (1988), and State v. Wagner, 30 Ohio

App.3d 261, 508 N.E.2d 164 (8th Dist.1986). For example, in Wallace, the court held

that the fact that “fifteen hours passed from the assault to the time of the declarations is

not dispositive.” Wallace at 90. Among the other factors considered was that the child

“was unconscious, with intermittent periods of consciousness or semi-consciousness,

throughout the fifteen-hour period between the assault and her statements,” and that she -38-

made the statement without elicitation on awakening. Id. Thus, the statements were

admissible as excited utterances.

{¶ 94} In Wagner, the victim, a three-year-old child, made statements to his mother

the morning after being sexually assaulted, and also made statements to a detective

several days after the incident. Wagner at 262.

{¶ 95} Since the startling events in these cases were the sexual assaults, they are

significantly different than what occurred here, as the alleged sexual assaults occurred at

some point before late July 2018. The statement occurring in December 2018 was

several months later. However, here the alleged sexual assaults were not the startling

events at issue in applying the hearsay exception.

{¶ 96} The startling event stressor in this case regarding Evid.R. 803(2) was

Kathy’s viewing the photographs. Her reaction was dramatic and immediate. Kathy

blacked out a little bit and then made the comment about the photo. We find that the trial

court did not abuse its discretion. We find no error. And even if there were error, since

our review of this issue is only for plain error, we cannot conclude that exceptional

circumstances existed warranting reversal based on a manifest miscarriage of justice.

{¶ 97} Based on the preceding discussion, the third assignment of error is

overruled.

V. Admission of Kevin’s Forensic Interview

{¶ 98} Curtiss’s fourth assignment of error states that:

The Trial Court Erred When It Admitted [Kevin’s] Forensic Interview

in Violation of Curtiss’s Right to Confront, Due Process, and a Fair Trial. -39-

{¶ 99} Under this assignment of error, Curtiss argues that the trial court violated

his right of confrontation by allowing the jury to see the video-taped forensic interview of

Kevin, who did not testify at trial.

{¶ 100} In allowing the jury to see the video over the defense’s objection, the trial

court first stated that there was no Confrontation Clause issue concerning Kevin because

of his age. Tr. at p. 637. The trial court further observed that no Confrontation issue

existed because Kevin would not have intended that the video be used in court. Id. And

finally, the court concluded that a hearsay exception applied due to the State’s contention

that the video was compiled for purposes of medical diagnosis and treatment. Id.

{¶ 101} Although a trial court’s hearsay rulings are ordinarily reviewed for abuse

of discretion, evidentiary rulings implicating the Confrontation Clause are reviewed de

novo. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97,

citing United States v. Henderson, 626 F.3d 326, 333 (6th Cir.2010). Accord State v.

McNeal, 2d Dist. Montgomery No. 28123, 2019-Ohio-2941, ¶ 31. In de novo review, we

independently review a trial court’s decision and accord no deference to it. Northeast

Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d

534 (8th Dist.1997). See also State v. Azeen, 163 Ohio St.3d 447, 2021-Ohio-1735, 170

N.E.3d 864; ¶ 59, State v. Lawson, 2020-Ohio-3008, 154 N.E.3d 658, ¶ 22 (10th Dist.);

and State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 19 (2d Dist.).

{¶ 102} Nonetheless, “[a] constitutional error can be held harmless if we determine

that it was harmless beyond a reasonable doubt.” State v. Conway, 108 Ohio St.3d 214,

2006-Ohio-791, 842 N.E.2d 996, ¶ 78, citing Chapman, 386 U.S. at 24, 87 S.Ct. 824, 17

L.Ed.2d 705. “Whether a Sixth Amendment error was harmless beyond a reasonable -40-

doubt is not simply an inquiry into the sufficiency of the remaining evidence. Instead, the

question is whether there is a reasonable possibility that the evidence complained of

might have contributed to the conviction.” Id., citing Chapman at 23. (Other citation

omitted.)

{¶ 103} In the context of forensic interviews of child sexual abuse victims

conducted at child advocacy centers, the Supreme Court of Ohio has noted that “the

interview serves dual purposes: (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. The interviewer acts as an agent of

each member of the multidisciplinary team.” Arnold, 126 Ohio St.3d 290, 2010-Ohio-

2742, 933 N.E.2d 775, at ¶ 33.

{¶ 104} In this case, Jennifer Knisley, a social worker at CARE House, conducted

Kevin’s forensic interview. At the time, Det. Spears, a member of the interdisciplinary

team, was in another room at CARE House, monitoring the interview. Tr. at p. 639, 644,

725, and 729. After the interview, Kevin was referred to Brooke Lowe, a mental health

therapist, who was also part of the interdisciplinary team. Id. at p. 698, 497, 499, and

520. Knisley, therefore, was Spears’s agent and was also Lowe’s agent.

{¶ 105} In Arnold, the court held that where an interviewer is acting as a police

agent, for purposes of eliciting statements that are not related to medical diagnosis, the

court must “employ the primary-purpose test to determine whether the primary purpose

of the interrogation was ‘ “to enable police assistance to meet an ongoing emergency.” ’ ”

Id. at ¶ 35, quoting Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, at

paragraph one of the syllabus, quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 -41-

L.Ed.2d 224. The court concluded in Arnold that such an emergency was not the primary

purpose because “the statements involved a description of past events. The alleged

abuse occurred the previous evening, and the questioning specifically attempted to obtain

a description of the abuse.” Id. Additionally, a reasonable person would not conclude

that an ongoing emergency existed because the child had been discharged from the

hospital the previous evening, and no medical emergency existed at the time of the

interview. Id. Accordingly, the primary purpose was “to further the state’s forensic

investigation.” Id. at ¶ 36. As a result, certain statements the child made “were

testimonial in nature and their admission without a prior opportunity for cross-examination

[was] prohibited by the Confrontation Clause.”

{¶ 106} These statements included the child’s “assertion that [the defendant] 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 [him], of [his] boxer shorts, of him

removing them, and of what [his] ‘pee-pee’ looked like; and her statement that [he]

removed her underwear.” Id. at ¶ 34. The court commented that “[t]hese statements

likely were not necessary for medical diagnosis or treatment. Rather, they related

primarily to the state's investigation.” Id.

{¶ 107} The present case is similar to Arnold. No ongoing medical emergency

existed, as the alleged sexual abuse occurred several months earlier. Even after Det.

Spears was informed of the allegations, the forensic interview did not take place for nearly

a week. Of statements in the video, a number were not related to diagnosis of Kevin,

including the fact that Curtiss’s wife was not home when the abuse occurred, that Kathy’s

clothes were in a basket, that Curtiss and Kathy were in Kathy’s bedroom, and that as to -42-

what should happen to Curtiss, Kevin felt the children should be “taken away.” Tr. at p.

691, 694, 694-695, and 696.

{¶ 108} However, some of the statements in the interview were related to medical

diagnosis, which includes mental health. State v. Turner, 12th Dist. Brown No. CA2019-

05-005, 2020-Ohio-1548, ¶ 38. The CARE House social worker who conducted the

forensic interview indicated that she used Kevin's interview to assess if he needed

referrals for medical or mental health evaluation and did refer him for mental health

services because witnessing sexual abuse can be considered a trauma. Tr. at p. 644-

645 and 698.

{¶ 109} The statements related to this diagnosis included that Kevin had witnessed

Curtiss touching Kathy’s “coco” so hard that it bled, that Kathy did not have any clothes

on, that Curtiss told him to “get out,” that Kathy’s face was red while Curtiss touched her,

and that while this occurred, Kathy made a sound indicating pain. Id. at p. 690, 693, and

695.

{¶ 110} In view of the fact that some statements were testimonial and therefore

improperly admitted, our analysis is whether “there was a reasonable possibility that the

evidence complained of may have contributed to the conviction.” Conway, 108 Ohio

St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, at ¶ 78. The issue is close.

{¶ 111} Curtiss argues that the question about what should happen to him was

prejudicial. Curtiss further notes the State’s emphasis on Kevin’s testimonial statement

in closing that it was reasonable to believe the rape happened because blood was coming

from Kathy’s coco. In this context, the State said “We don’t just know that because

[Mother] saw it. We also know it because [Kevin] saw it.” Tr. at p. 888. -43-

{¶ 112} In addition, Curtiss notes that the State focused again on inadmissible

testimonial evidence by stressing that “[Kevin] also gave you a couple of other pretty key

pieces of information. It happens while [T.C., Curtiss’s wife] is at work. That’s what

[Kevin] said.” Id. And, the State focused on this again, by emphasizing [Kevin’s]

statement that the crime happened “when [T.C.] was at work.” Id. at p. 912.

{¶ 113} As to the latter statements, they really did not need verification, because

T.C. (a defense witness) testified that before school busing was set up, Curtiss picked

Kathy up after school because T.C. was at work. Id. at p. 826. Kathy would then just

“hang out” with Curtiss “all day or she would go over to Curtiss’s mother’s house.” Id.

T.C. further indicated that Kathy got off school at around 2:00 p.m., and T.C. got home

from work around 4:30 p.m. Id. at p. 851.

{¶ 114} The statement about seeing blood coming from Kathy's coco was also not

testimonial; it was part of the record pertaining to Kevin's medical diagnosis. In other

words, seeing this could have had a psychological effect. As a result, it is not relevant

to the analysis.

{¶ 115} Finally, admission of Kevin's statement about wanting to be taken away

from Curtiss is somewhat troubling, but we cannot conclude that there was a reasonable

possibility that it contributed to Curtiss’s conviction. After all, Kevin also stated that he

still saw Curtis and “felt real good” about seeing him, because Curtiss had gotten him a

new bunk-bed. Tr. at p. 666. Given the other evidence, if accepted, a fact-finder could

have reasonably inferred that Kevin would not want to be with Curtiss.

{¶ 116} Based on the preceding discussion, the fourth assignment of error is

overruled. -44-

VI. Admission of Kathy’s Forensic Interview

{¶ 117} The fifth and sixth assignments of error are interrelated and will be

discussed together. Curtiss’s fifth assignment of error states that:

The Trial Court Erred When It Admitted [Kathy’s] Forensic Interview

in Violation of Curtiss’ Right to Confront, Due Process, and a Fair Trial.

{¶ 118} The sixth assignment of error states that:

The Trial Court Erred When It Found [Kathy] Competent to Testify in

Violation of Curtiss’s Right to Confront, Due Process, and a Fair Trial.

{¶ 119} Curtiss contends that Kathy was not competent to testify, and as a result,

his right of confrontation was violated because he did not have an opportunity to

meaningfully cross-examine her. Curtis further argues that, because Kathy was

incompetent to testify, her forensic interview should be analyzed under Arnold.

According to Curtiss, Kathy’s forensic interview also contained numerous statements that

were unrelated to her medical diagnosis and treatment.

{¶ 120} In response, the State maintains that Kathy was competent to testify and

that no issue existed with respect to presenting the forensic interview. The State further

contends that the statements in the interview were related to Kathy’s medical diagnosis

and treatment and were properly admitted under an exception to the hearsay rule.

{¶ 121} The threshold issue, obviously, is whether Kathy was competent to testify.

The State originally intended to have the court conduct a hearing under Evid.R. 807,

which allows hearsay statements of children under 12 years of age about sexual or

physical abuse to be admitted without a decision on the child’s competence to testify. -45-

See State v. Silverman, 121 Ohio St.3d 581, 2009-Ohio-1576, 906 N.E.2d 427, syllabus,

and Evid.R. 807(A)-(C). However, the State elected not to proceed with the Evid.R. 807

hearing and called Kathy as a witness at trial after the court found she was competent to

testify.

{¶ 122} As the parties note in their briefs, Evid.R. 601(A) was amended, effective

July 1, 2020, so as to eliminate the prior rule that children under ten years of age are

incompetent to testify. Before Evid.R. 601 was amended, “the competency of individuals

ten years or older [was] presumed, while the competency of those under ten [had to] be

established.” State v. Clark, 71 Ohio St.3d 466, 469, 644 N.E.2d 331 (1994). Under

the prior rule, the party offering the testimony had the burden of establishing “certain

indicia of competency.” Id.

{¶ 123} The test previously used to decide if a child under age ten was competent

to testify stated that a trial court must consider: “(1) the child's ability to receive accurate

impressions of fact or to observe acts about which he or she will testify, (2) the child's

ability to recollect those impressions or observations, (3) the child’s ability to communicate

what was observed, (4) the child’s understanding of truth and falsity and (5) the child's

appreciation of his or her responsibility to be truthful.” State v. Frazier, 61 Ohio St.3d

247, 574 N.E.2d 483 (1991), syllabus.

{¶ 124} As currently constituted, Evid.R. 601(B) states that:

A person is disqualified to testify as a witness when the court

determines that the person is:

(1) Incapable of expressing himself or herself concerning the matter

as to be understood, either directly or through interpretation by one who can -46-

understand him or her; or

(2) Incapable of understanding the duty of a witness to tell the truth.

{¶ 125} While a presumption of incompetency no longer exists and the testimony’s

proponent no longer has a burden, the Frazier factors are still useful in deciding if a child

witness is competent to testify. We review a trial court’s competency decision for abuse

of discretion. Frazier at 251. This is because a “trial judge has the opportunity to

observe the child's appearance, his or her manner of responding to the questions, general

demeanor and any indicia of ability to relate the facts accurately and truthfully. Thus, the

responsibility of the trial judge is to determine through questioning whether the child of

tender years is capable of receiving just impressions of facts and events and to accurately

relate them.” Id.

{¶ 126} The trial court conducted a competency hearing of Kathy on November 12,

2020, with counsel present. The court did not file a written decision, nor did it indicate

on the record that it found Kathy competent to testify. However, this was obviously the

court’s decision because Kathy was allowed to testify.

{¶ 127} After reviewing the transcript of the competency hearing, we conclude that

under either the test in Frazier or Evid.R. 601(B), the court did not abuse its discretion in

letting Kathy testify. During the hearing, Kathy was able to discuss her schooling and

family. Competency Hearing at p. 2-5 and 7. She also demonstrated an awareness of

truth and falsity and the responsibility to tell the truth in response to several scenarios that

the trial court outlined. Id. at p. 6-8.

{¶ 128} The court did not question Kathy about her ability to observe the acts about

which she was to testify, but this part of Frazier is phrased alternatively, in terms of “the -47-

child’s ability to receive accurate impressions of fact or to observe acts about which he or

she will testify.” Frazier, 61 Ohio St.3d 247, 574 N.E.2d 483, at syllabus. The

competency transcript indicates that Kathy showed an ability to receive accurate

impressions of fact by discussing how she knew the difference between daytime and

nighttime. Id. at p. 6-7.

{¶ 129} Curtiss notes that courts have taken a child’s trial testimony into

consideration in evaluating whether a child was competent to testify. Appellant’s Brief at

p. 24, citing State v. Conkright, 6th Dist. Lucas No. L-06-1107, 2007-Ohio-5315. In

Conkright, the court of appeals held that a child’s testimony was improperly admitted

because “she did not appear to be able to provide consistent, accurate impressions of

what had happened in the past. This was borne out by her inconsistent, contradictory,

and brief testimony at trial.” Id. at ¶ 45. According to Curtiss, Kathy’s trial testimony

was similarly inconsistent and contradictory.

{¶ 130} In response, the State argues that Kathy’s demeanor at trial was more

likely a reflection of fear at confronting Curtiss than a sign of incompetence. Appellee’s

Brief at p. 22.

{¶ 131} In reviewing Kathy’s trial testimony, we note that Kathy did initially state

that when she lived with Curtiss, nothing happened that made her uncomfortable or hurt

her. Tr. at p. 321. She also said she did not remember talking about her coco bleeding

and did not remember what she talked about at CARE House. Id. at p. 321. However,

at the same point in her testimony, Kathy also said that she was a little bit scared to be in

court, that she wanted her mother, that she remembered telling her mother about Curtiss

making her coco bleed, that it was hard to talk about that day when she was in court, and -48-

that she did not feel good about seeing Curtiss. Id. at p. 322-323 and 325.

{¶ 132} After this discussion, Kathy went on to discuss in some detail what had

happened to her. Id. at p. 327-333. Consequently, her testimony at trial, while

inconsistent at times, did not show that she was incompetent. We therefore find no

abuse of discretion in the trial court’s competency decision. This disposes of the sixth

assignment of error. Specifically, “[t]he admission of hearsay does not violate the

Confrontation Clause if the declarant testifies at trial.” Powell, 132 Ohio St.3d 233, 2012-

Ohio-2577, 971 N.E.2d 865, ¶ 64.

{¶ 133} However, pertinent to the fifth assignment of error, hearsay evidence in

the forensic video could still have been erroneously admitted (and prejudicial), even if the

Confrontation Clause was not violated. In this situation, the issue would be whether the

admission constituted “nonconstitutional error, which ‘is harmless if there is substantial

other evidence to support the guilty verdict.’ ” Id., citing State v. Webb, 70 Ohio St.3d

325, 335, 638 N.E.2d 1023 (1994), and Crim.R. 52(A).

{¶ 134} Curtiss argues that statements on Kathy’s forensic video interview were

impermissible hearsay under Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d

775, because they did not relate to her medical diagnosis and treatment. Before

discussing this point, we note that the trial court limited admission of the video to parts

concerning medical diagnosis and treatment. Tr. at p. 637. Thereafter, as the State

has noted, Curtiss did not object to any specific statements or parts of the video.

Appellee’s Brief at p. 20. Our review, therefore, is only for plain error.

{¶ 135} Evid.R. 801(C) defines “hearsay” as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth -49-

of the matter asserted.” Hearsay is generally inadmissible unless an exception or

exclusion applies. Evid.R. 802. As pertinent here, Evid.R. 803 excludes various items

from the hearsay rule, “even though the declarant is available as a witness,” including

“[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.” Evid.R. 803(4).

{¶ 136} “[N]o finding of unavailability is necessary when a statement is admitted

pursuant to Evid.R. 803(4), because the rule itself provides that availability of the

declarant is immaterial.” State v. Dever, 64 Ohio St.3d 401, 414, 596 N.E.2d 436 (1992).

As a result, the analysis in Arnold does not strictly apply, as it centered on whether

evidence is “testimonial” or “nontestimonal” for purposes of the Confrontation Clause,

where the declarant is unavailable. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933

N.E.2d 775, at paragraph one of the syllabus. In contrast to Confrontation Clause

requirements, “the test under Evid.R. 803(4) goes solely to whether a statement was

made for purposes of medical diagnosis or treatment. If a statement is made for

purposes of diagnosis or treatment, it is admissible pursuant to Evid.R. 803(4).” Id.

{¶ 137} Traditional considerations for assessing admissibility have included

suggestibility of the questioning; a motive to fabricate, like bitter custody proceedings; the

child’s understanding of the need to tell a physician the truth; the child’s age, which could

indicate the presence or absence of ability to fabricate; the declarations’ consistency; and

whether a physician used the proper protocol for interviewing children who have alleged

sexual abuse. State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, -50-

¶ 49.

{¶ 138} Nonetheless, in a similar case involving admission of out-of-court forensic

videos of children, we noted, after a detailed discussion of existing case law, that Arnold

and other Confrontation Clause cases are helpful in evaluating whether “out of court

statements during [forensic] interviews were properly admitted as an exception to Evid.R.

803(4).” State v. Remy, 2018-Ohio-2857, 117 N.E.3d 916, ¶ 54 (2d Dist.), citing Arnold

and Ohio v. Clark, 576 U.S. 237, 135 S.Ct. 2173, 2180, 192 L.Ed.2d 306 (2015).

{¶ 139} In Remy, as here, the children testified at trial and videos of their forensic

interviews were also played to the jury. Remy at ¶ 27 and 32. When the defendant

claimed error in admitting the videos, the State asserted, as here, that no Confrontation

Clause violation existed because the children had testified at trial, and that the videos

were properly admitted under the hearsay exception in Evid.R. 803(4). Id. at ¶ 33. Also

like here, the alleged error was reviewed on a plain error basis because the defendant

had failed to object at trial. Id.

{¶ 140} Under the circumstances involved in Remy, we found that the primary

purpose of the children’s forensic interviews at the child advocacy center “was for forensic

information-gathering, not for the purpose of medical diagnosis and treatment.” Id. at

¶ 64. We stressed, however, that this did not mean that all the statements in the videos

were inadmissible, because some statements may have been made for purposes of

treatment. Id. We also found that any error in admitting statements unrelated to

medical treatment was harmless because the allegations were repeated to other medical

professionals, whose testimony the defendant did not challenge. Id. at ¶ 65-66. In

addition, we found that the testimony’s admission was a reasonable trial strategy, -51-

because the defense was attempting to focus on contradictions in the children’s

statements. Id. at ¶ 67-71.

{¶ 141} We have since followed the same approach in other cases. See State v.

Pate, 2021-Ohio-1838, 173 N.E.3d 567, ¶ 62-73 (2d Dist.), and State v. Moore, 2019-

Ohio-1671, 135 N.E.3d 1114, ¶ 20-33 (2d Dist.).

{¶ 142} After reviewing the transcript of the video, we find that most of the

statements were relevant to medical diagnosis or treatment. These statements, like

where Kathy had been touched on her body, that it bled, that Curtiss had done it, and

what Curtiss used to touch her, were pertinent to medical treatment. They had also been

repeated to therapists and medical professionals. Tr. at p. 396, 402, 448, 507, 509, and

714.

{¶ 143} Some statements were not related to medical diagnosis and treatment, like

locations in the house where Curtiss allegedly touched Kathy, whether her clothes were

off or on, the appearance of Curtiss’s genitals, and that Curtiss hid items with which he

had touched Kathy. See Tr. at p. 658, 664, and 679. However, the first two statements

were primarily extraneous and therefore harmless. Admission of the statement about

items being hidden, although not extraneous, was not outcome-determinative and does

not require reversal “to prevent a manifest miscarriage of justice.” Long, 53 Ohio St.2d

91, 372 N.E.2d 804, at paragraph three of the syllabus.

{¶ 144} In Arnold, the court did say that the child’s description of the defendant’s

genitals was “likely” not necessary for medical diagnosis or treatment. Arnold, 126 Ohio

St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, at ¶ 34. In this regard, Curtiss argues that

admission of this evidence was critical because Kathy’s description in the video, when -52-

she described Curtiss’s penis, was that he had an erection. Appellant’s Brief at p. 20-

21. Specifically, the State had to prove, as part of the elements of gross sexual

imposition, that Curtiss’s intent in touching Kathy was for purposes of sexual gratification.

Curtiss also points out that the State emphasized this part of the video in its closing. Id.

at p. 21, referring to Tr. at p. 879 and 922.

{¶ 145} In this case, Curtiss was charged with having violated R.C. 2907.05(A)(4)

(gross sexual imposition), which states that “No person shall have sexual contact with

another, not the spouse of the offender * * * when any of the following applies: * * * The

other person, or one of the other persons, is less than thirteen years of age, whether or

not the offender knows the age of that person.” R.C. 2907.01(B) defines “sexual contact”

as “any touching of an erogenous zone of another, including without limitation the thigh,

genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of

sexually arousing or gratifying either person.”

{¶ 146} “The purpose of sexually arousing or gratifying either person is an

essential element of R.C. 2907.05(A)(4).” In re Moore, 10th Dist. Franklin No. 04AP-

581, 2004-Ohio-6357, ¶ 11, citing State v. Mundy, 99 Ohio App.3d 275, 292, 650 N.E.2d

502 (2d Dist.1994). “However, there is no requirement that there be direct testimony

regarding sexual arousal or gratification.” Id. Instead, “[t]he trier of fact may infer from

the evidence presented at trial whether the purpose of the touching was for the

defendant's sexual arousal or gratification.” State v. Jones, 2015-Ohio-4116, 43 N.E.3d

833, ¶ 43 (2d Dist.). In this vein, courts have considered the areas of the body being

touched as well as the absence of evidence of accidental touching. Moore at ¶ 11-13.

{¶ 147} Here, if the evidence presented were believed, there was no need for -53-

direct evidence of sexual arousal or gratification, given the areas of the body touched and

the absence of evidence that the touching was accidental. Accordingly, even if the

evidence about Curtiss’s genitals was improperly admitted, it did not rise to a level of

requiring reversal of the gross sexual imposition charge based on a manifest injustice.

However, in the event of retrial, that part of the video should not be shown to a jury.

{¶ 148} Accordingly, the fifth and sixth assignments of error are overruled.

VII. Prosecutorial Misconduct

{¶ 149} Curtiss’s seventh assignment of error states that:

The State Committed Prosecutorial Misconduct When It Elicited

False Testimony from Melissa Lowe in Violation of Curtiss’ Right to Due

Process and a Fair Trial.

{¶ 150} Curtiss contends that the State committed prosecutorial misconduct when

it knowingly allowed its witness, Melissa Lowe, to testify to a false statement. Lowe was

the MCCS employee assigned to CARE House who investigated the abuse allegations in

October 2018. Tr. at p. 609-619 and 613. According to Curtiss, Lowe’s testimony

supported one of the State’s central themes, which is that MCCS caseworker Lisa Brown

was “a villain in this story who ignored a little girl telling her that she was molested by her

grandfather.” Appellant’s Brief at p. 26.

{¶ 151} In response, the State first claims that Curtiss is actually attempting to

argue collusion rather than prosecutorial misconduct. The State’s contention here is that

because the trial court inspected the MCCS records, Curtis must be implying that the

court and prosecutor colluded to present perjured testimony. The State further asserts -54-

that Curtiss’s argument should be reviewed only for plain error, because the defense did

not object in the trial court. Finally, the State argues that the record in question was

limited to refreshing Lowe’s recollection and merely showed an “inconsistency” between

Lowe’s testimony and the report. Appellee’s Brief at p. 24.

{¶ 152} Before addressing the issues, we categorically reject the State’s claim that

Curtiss is suggesting that the trial court colluded with the State to present false testimony.

The record in question is a note that Lisa Brown, Mother’s caseworker, made on July 31,

2018, about a visit at Mother’s home after the initial allegations of abuse were made. Tr.

at p. 633-634. This document was not admitted at trial. It was also never reviewed by

the trial court as part of the in camera inspection.

{¶ 153} Our review of the records indicates, as we noted before, that the only

MCCS activity logs given to the trial court were those for dates between October 30, 2018

and February 2, 2020, and those from May 11, 2017 to August 2, 2017. Therefore, the

trial court could not have known what was part of the July 31, 2018 note in the activity

log. There is also no indication in the record that the State showed this log to the court

or to defense counsel during trial. Admittedly, defense counsel could have asked to see

it when the State used the log during Lowe’s testimony. However, defense counsel had

no reason to expect that the State would misrepresent the information being presented.

{¶ 154} The State and Curtiss have both cited the same case in connection with

resolution of this assignment of error. In that case, the Supreme Court of Ohio stated

that “ ‘[t]he knowing use of false or perjured testimony constitutes a denial of due process

if there is any reasonable likelihood that the false testimony could have affected the

judgment of the jury.’ ” State v. Iacona, 93 Ohio St.3d 83, 97, 752 N.E.2d 937 (2001), -55-

quoting United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.1989). (Other citation

omitted.). The court further elaborated in Iacona that:

Such a claim is in the nature of an allegation of prosecutorial misconduct,

and the burden is on the defendant to show that “(1) the statement was

actually false; (2) the statement was material; and (3) the prosecution knew

it was false.”

Id.

{¶ 155} During trial, the following exchange occurred during Lowe’s testimony:

Q; Can you tell me, do you recall what day Lisa Brown went out and

met with [Mother] and saw the kids?

A. I don’t remember what date it was. No, I don’t. Sorry.

Q. If I showed you the record, would that help you?

MS. MELNICK: May I approach?

THE COURT: Yes.

A. THE WITNESS: July 31 of 2018.

BY MS. MELNICK: All right. And actually, can you review the next

section of that as well before I ask you the next question?

A. Okay.

Q. So if there had been any question left in Lisa Brown’s head as

to what the allegation was, does Lisa Brown’s note indicate that [Kathy]

made a statement to her about what Teaven had done to her during that

home visit? -56-

A. [Kathy] and [Kevin] both did.

Tr. at p. 634-635.

{¶ 156} We do not have the record for July 31, 2018, because it was neither offered

for admission nor admitted at trial. As a result, we have no idea precisely what it said.

However, for purposes of analysis, we note the following statement in the State’s brief:

The State refreshed Lowe’s memory with an MCCS activity report

that detailed the visit to [Mother’s] home on July 31, 2018 that was

conducted by the initial caseworker, Lisa Brown. (Tr. 634) The State then

asked Lowe whether, during that visit, [Kathy] told Brown what Curtiss had

done to her. (Tr. 634) Lowe testified that [Kathy] and [Kevin] both did.”

The report, however, stated that only [Kevin] had told Brown what Curtiss

had done.

Appellee’s Brief at p. 24.

{¶ 157} Contrary to the State’s contention, the note in the activity log was not used

to refresh Lowe’s recollection in general; it was only used to refresh her recollection

concerning the exact date that Brown conducted the home visit.

{¶ 158} Furthermore, Lowe was asked to and did review the pertinent section of

the note before answering the State’s question. Therefore, both Lowe and counsel for

the prosecution should have been aware of the inaccuracy of Lowe’s testimony. The

statement was not true.

{¶ 159} This conduct is troubling. According to the State, however, under a plain

error standard, the conduct could not have affected the outcome of the trial due to “the

two Care House interviews and days of testimony.” Id. at p. 25. We agree. -57-

{¶ 160} In that information sheet, Det. Spears discussed an interview he had with

Brown, who said that she had visited Mother and the children on July 31, 2018. Id. at p.

3. According to Spears, Brown said that “[w]hile there, the CW [Kathy] would not talk

about anything involving the suspect other than him spanking her. When the CW was

asked about sexual abuse, she would not respond. [Kevin], however, told her that the

suspect Papaw touched [Kathy’s] ‘cucu.’ ” Id.

{¶ 161} In light of the above discussion, this assignment of error is overruled under

the plain error analysis. However, in the event of a retrial on remand, the trial court will

order disclosure of the July 31, 2018 note in the activity log to Curtiss.

{¶ 162} We also note that Curtiss's brief refers to an email to Lowe in which Lisa

Brown specifically stated that she had “interviewed the child and she did not corroborate

the mother's claim, however the older brother was obviously coached by mother as when

CW entered the door he blurted out that Pa Paw had touched his sister's ‘Cew Cew.’ ”

Appellant’s Brief at p. 26, quoting from Sealed Court’s Ex. II, p.7. Our copy of the sealed

exhibits does not contain such an email. If it exists, it should also be disclosed to the

defense.

{¶ 163} Based on the preceding discussion, the seventh assignment of error is

VII. Introduction of Evidence Material to Guilt

{¶ 164} Curtiss’s eighth assignment of error states as follows:

The Trial Court Erred by Barring Curtiss from Introducing Evidence

Material to His Guilt in Violation of Curtiss’ Right to Due Process and a Fair -58-

{¶ 165} Under this assignment of error, Curtiss contends that the trial court erred

in refusing to admit evidence of Kathy’s other disclosures of sexual abuse. The court’s

decision was based on Ohio’s rape shield law.

{¶ 166} Curtiss argues that the disclosure (of abuse by Curtiss’s son, C.J., who

was also living in the Curtiss household) was not historical, but was mentioned in the

same email as Kathy’s first disclosure of abuse. This refers to the July 25, 2018 email

from Mother to Lisa Brown, which we quoted earlier, in which Mother told Brown about

her visit to Dr. Parks and Kathy’s initial disclosures of abuse. Tr. at p. 401-402 and

State’s Ex. 3. According to Mother’s email, Kathy claimed that both Curtiss and C.J. had

abused her.12

12 Curtiss also mentions an October 12, 2018 report of Kathy’s school therapist that Kathy and Laura were sexually abused at their foster home right after removal but before they were placed in Curtiss’s home. Appellant’s Brief at p. 31, citing Sealed Court’s Ex. I. However, while the compact disc in Court’s Ex. I (Sept. 2, 2020) contains an October 12, 2018 Case Assessment/Investigation Report authored by Melissa Lowe and an October 13, 2018 Safety Plan Summary, it does not contain the October 12, 2018 therapist’s report. It is unclear why the therapist’s report was not included with the documents provided to the court for the in camera inspection. We also note that in a document that was released to the defense, the trial court redacted a statement that Kathy made during an October 30, 2018 Care Clinic Consultation. Specifically, Kathy said that Kevin had touched her by her “coco.” Compare Ex. I (Sept. 2, 2020), at #92, p. 2 with Ex. II (Sept. 2, 2020), Clinic Care Consultation, p. 2. In this vein, records from Kevin’s psychiatric hospitalization at St. Joseph, which were not disclosed, indicate sexual behaviors by Kevin at the hospital in September 2017, before he lived with Curtiss. Court’s Ex. I (Sept. 2, 2020), Psychiatric Session Note, 9/12/17, p. 1, and Psychiatric Session Note, 9/26/17, p. 1. Records also not provided to the defense indicate that on March 8, 2019, Mother told MCCS that Kevin had disclosed to his therapist that he had been sexually abused while at St. Joseph’s. Court Ex. II (Sept. 2, 2020), Doc. #26, at p. 56. According to Mother, the perpetrator was another child at the facility. Id. at p. 57. Previously, on October 30, 2018, Mother told a social worker at DCH that Kevin had been engaging in sexualized behaviors like exposing himself and touching girls’ “butts.” She also indicated that she believed Curtiss was responsible because he was the only one who was allowed to take Kevin off the grounds -59-

{¶ 167} Curtiss also argues that evidence of another abuser should have been

admitted because there was reason to believe that Kathy’s problematic behaviors

resulted from other abuse, not from him. Curtiss stresses that this evidence should have

been allowed despite the rape shield law, as it was not intended to harass Kathy or to

make insinuations about her sexual history. Finally, Curtiss contends that the court’s

handling of this matter let the State proceed in a misleading manner. In this regard,

Curtiss notes the State’s claim in closing argument that “There is no one else. This is not

a case of whodunit.” Appellant’s Brief at p. 31, quoting from Tr. at p. 876.

{¶ 168} In responding, the State argues that C.J.’s alleged abuse did not happen

at the same time, and is, therefore, historical for purposes of the rape shield law. The

State further notes that while Curtiss had a constitutional right to present a defense, the

ability to impeach does not override the interests protected by the rape shield law.

Finally, the State stresses that Curtiss never argued below for disclosure of other abuse

to counter the State’s closing argument, i.e., the claim in closing that Kathy’s advanced

sexual knowledge must have been caused by Curtiss’s abuse.

{¶ 169} The State’s last argument is not persuasive. By the time the State made

its closing argument, the evidentiary part of the trial had ended. Moreover, the court had

already told the defense that it would not allow evidence of Kathy’s other allegations of

sexual abuse. Tr. at p. 296-297 and 415.

{¶ 170} Ohio’s rape shield law, R.C. 2907.02(D), states, in pertinent part, that:

at St. Joseph’s. 10/30/18 DCH Care Clinic Sexual Abuse Psychosocial Assessment Report, p. 4 and 6. This part of the record was redacted from the materials given to the defense. See Court’s Ex. I and II (Sept. 2, 2020). -60-

Evidence of specific instances of the victim's sexual activity, opinion

evidence of the victim's sexual activity, and reputation evidence of the

victim's sexual activity shall not be admitted under this section unless it

involves evidence of the origin of semen, pregnancy, or disease, or the

victim's past sexual activity with the offender, and only to the extent that the

court finds that the evidence is material to a fact at issue in the case and

that its inflammatory or prejudicial nature does not outweigh its probative

value.

{¶ 171} We review evidentiary decisions on rape shield issues for abuse of

discretion. State v. Graham, 58 Ohio St.2d 350, 352, 390 N.E.2d 805 (1979).

{¶ 172} None of the exceptions to the statute apply here, and on that ground, there

was no statutory basis for admitting testimony about other possible sexual abuse of

Kathy. In the context of this law, the Supreme Court of Ohio has said that “ ‘[t]he rights

to confront witnesses and to defend are not absolute and may bow to accommodate other

legitimate interests in the criminal process.’ ” State v. Craig, 110 Ohio St.3d 306, 2006-

Ohio-4571, 853 N.E.2d 621, ¶ 66, quoting State v. Boggs, 63 Ohio St.3d 418, 422, 588

N.E.2d 813 (1992). “In determining whether the rape shield law would unconstitutionally

infringe on a defendant's rights, a court must ‘balance the state interest which the statute

is designed to protect against the probative value of the excluded evidence.’ ” Id.,

quoting State v. Gardner, 59 Ohio St.2d 14, 17, 391 N.E.2d 337 (1979).

{¶ 173} There is no question that applying this law may lead to the exclusion of

relevant evidence. For example, in this case, the State stressed the lack of any other

individual who may have sexually abused Kathy. While no “admissible” evidence -61-

showed the existence of another individual, the State’s characterization was somewhat

disingenuous in light of the restrictions on evidence. Evidence of other sexual abuse

may also have explained Kathy’s behavioral issues. Nonetheless, we are bound to apply

the law as written, and the exceptions are quite limited.

{¶ 174} In a recent decision, the Supreme Court of Ohio rejected a defendant’s

argument that he should have been able to present evidence about a victim’s prior non-

consensual sexual activity. State v. Jeffries, 160 Ohio St.3d 300, 2020-Ohio-1539, 156

N.E.3d 859. As here, the defense argued that the rape shield law should not have

applied because it was intended to protect victims from being harassed for prior

consensual sexual activity – which would not be the case where the victim was not at

fault. Id. at ¶ 6. Instead of being offered to harass, the defense asserted in Jeffries “that

the evidence was necessary for the purpose of establishing D.S.'s ‘knowledge of the

system’ and for potentially rebutting any inference the jury might make that D.S.'s

behavioral issues around age nine or ten were the result of sexual abuse by Jeffries.” Id.

{¶ 175} To resolve the issue, the court reviewed the term “sexual activity,” which

is defined by R.C. 2907.01 and applies to R.C. 2907.01 through 2907.38. Id. at ¶ 17.

This obviously includes R.C. 2907.02. Based on R.C. 2907.01’s plain language, the

court concluded that nothing in the definition of “sexual activity” restricts it only to

consensual activity. Id. at ¶ 18. Therefore, the rape shield law applies to both prior

nonconsensual and consensual activity.

{¶ 176} The Jeffries court also specifically considered the defendant’s contentions

that “the clear purpose of the rape-shield law is limited to preventing ‘impermissible

attacks on some Victorian-minded theory of promiscuity,’ ” and that “applying the rape- -62-

shield law to an accuser's nonconsensual sexual activity does nothing to promote the

purpose behind the law.” Id. at ¶ 22. In this regard, the court noted that the interest the

law promotes are: “(1) preventing harassment of the victim with probing inquiries into

private matters, (2) discouraging ‘the tendency in rape cases to try the victim rather than

the defendant,’ (3) encouraging victims to report sexual assaults without fear of being

harassed and traumatized by the process, and (4) ‘excluding evidence that is unduly

inflammatory and prejudicial, while being only marginally probative.’ ” Id. at ¶ 23, quoting

Gardner, 59 Ohio St.2d at 17-18, 391 N.E.2d 337.

{¶ 177} Consistent with these purposes, questioning victims about prior sexual

assaults can be just as invasive and humiliating as questioning them about a current

assault. Id. at ¶ 24. The court further stressed that prior sexual activity, even

nonconsensual, is irrelevant in most cases. Id. And finally, the court noted that saying

“the purpose of the rape-shield law is not furthered by excluding evidence of an accuser's

past sexual abuse is to vastly underestimate the insidiousness of victim blaming.” Id. at

¶ 25.

{¶ 178} The court did stress, however, that “it is worth reemphasizing that the rape-

shield law does not apply to prior accusations of sexual assault that involve a fabrication

of sexual activity.” (Emphasis sic.) Id. The court also left for another day the issue of

whether the law “is unconstitutional as applied to defendants whose constitutional rights

to due process and to confront witnesses are impaired by the inability to provide relevant,

probative evidence about an accuser's nonconsensual-sexual-activity history.” Id. at

¶ 28. The reason for rejecting this issue was that the court had not accepted review of

that particular proposition of law. Id. -63-

{¶ 179} In a subsequent case involving sexual abuse allegations, a court of

appeals noted the holding in Jeffries, but went on to consider constitutional principles

regarding the use of third-party guilt evidence. State v. Farthing, 5th Dist. Fairfield No.

2019 CA 00049, 2020-Ohio-4936, ¶ 18, discussing Holmes v. South Carolina, 547 U.S.

319, 326-327, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). The court found no error,

however, because the record lacked evidence linking the sexual abuse allegations to

others. Id. at ¶ 22

{¶ 180} The Supreme Court of Ohio appears to have left open the possibility of “as

applied” challenges. This is consistent with prior authority in our district. E.g., State v.

Jones, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 59 (2d. Dist.); State v. Hennis, 2d Dist. Clark

No. 2003-CA-21, 2005-Ohio-51, ¶ 48; and State v. McNeal, 2d Dist. Montgomery No.

28123, 2019-Ohio-2941, ¶ 34-57. However, the record here does not permit such a

review.

{¶ 181} Specifically, Curtiss did not request a hearing, although he did raise the

Confrontation Clause issue in responding to the State’s Motion in Limine. See

Defendant’s Objection to State’s Motion in Limine (Dec. 3, 2020), p. 3-4. The trial court

ruled on the motion in Iimine and response after trial began but did not give any

explanation other than to state that the evidence of other disclosures of sexual abuse did

not meet the exception (presumably a reference to R.C. 2907.02(D)). Tr. at p. 296-297.

However, as indicated, the record is inadequate for us to rule on this issue.

{¶ 182} Accordingly, for the reasons stated, the eighth assignment of error is

overruled. -64-

IX. Prosecutorial Misconduct During Closing

{¶ 183} Curtiss’s ninth assignment of error states that:

The State Committed Prosecutorial Misconduct During Its Closing

Arguments in Violation of Curtiss’ Right to Due Process and a Fair Trial.

{¶ 184} Under this assignment of error, Curtiss contends that the State’s remarks

during closing were a “naked attempt to appeal to an instinct to punish” and violated the

“Golden Rule” by encouraging the jurors to put themselves in the position of both Mother

and Kathy. Appellant’s Brief at p. 32-33.

{¶ 185} In response, the State notes that “[o]nly two of the challenged statements

are arguably improper.” Appellee’s Brief at p. 29. The State also contends that,

because Curtiss failed to object, the plain error rule applies, and plain error did not occur.

{¶ 186} “The test regarding prosecutorial misconduct in closing arguments is

whether the remarks were improper and, if so, whether they prejudicially affected

substantial rights of the defendant.” State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d

883 (1984). “The touchstone of the analysis ‘is the fairness of the trial, not the culpability

of the prosecutor.’ ” State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d

1023, ¶ 190, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78

(1982). To evaluate this issue, the closing argument is reviewed in its entirety. E.g.,

State v. Williams, 73 Ohio St.3d 153, 169, 652 N.E.2d 721 (1995).

{¶ 187} Furthermore, where a defendant fails to object, any error is waived, other

than plain error. State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678,

¶ 89. Here, Curtiss failed to object to any of the comments, so our review is for plain

error. This is obviously a difficult standard to meet. However, simply because a difficult -65-

standard applies on appeal does not mean prosecutors have license to violate standards

and then argue on appeal that the remarks are only “arguably improper.”

{¶ 188} The principle is well-established that “ ‘arguments by counsel suggesting

to jurors that they place themselves in the position of a party to the cause * * * are usually

improper, and reversibly erroneous.’ ” State v. Ross, 2d Dist. Montgomery No. 22958,

2010-Ohio-843, ¶ 126, quoting State v. Southall, 5th Dist. Stark No. 2008CA00105, 2009-

Ohio-768, ¶ 112. See also State v. Robinson, 6th Dist. Lucas No. L-06-1182, 2008-Ohio-

3498, ¶ 260 (noting that “ ‘Golden Rule’ arguments are generally prohibited in closing

arguments”).

{¶ 189} Here, exhorting the jury to place itself in “[Kathy’s shoes]” or in Mother’s

“shoes” was something the prosecutor should have known not to do. Tr. at p. 881 and

884. However, due to the restricted review under the plain error doctrine, we cannot say

that this error presents the exceptional circumstance in which reversal is required “to

prevent a manifest miscarriage of justice.” Long, 53 Ohio St.2d 91, 372 N.E.2d 804, at

paragraph three of the syllabus.

{¶ 190} Similar observations apply to other statements to which no objection was

made. The State argues that comments like “You’re the only ones who can hold him

responsible. [Kathy] has done her part. We’re asking you to do yours” are not unduly

inflammatory and do not ask the jury to “succumb to public demand.” Appellee’s Brief at

p. 31.

{¶ 191} In State v. Sampson, 4 Ohio App.3d 287, 448 N.E.2d 467 (7th Dist.1982),

the court found that while a statement by the prosecution that “you're the only members

who can punish this individual for his criminal actions,” was error, it was not sufficiently -66-

prejudicial to cause reversal. Id. at 290-291. Again, even if the prosecutor’s remarks

here are considered as an effort to have the jury punish Curtiss, they are not grounds for

reversal on the basis of plain error. As has been often said, prosecutors have “wide

latitude in closing argument * * *.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577,

971 N.E.2d 865, ¶ 149.

{¶ 192} Based on the preceding discussion, the ninth assignment of error is

X. Cumulative Error

{¶ 193} Curtiss’s tenth assignment of error states:

The Cumulative Nature of the Errors Prejudiced Curtiss and

Deprived Him of His Right to a Fair Trial.

{¶ 194} Under the doctrine of cumulative error, “a conviction will be reversed when

the cumulative effect of errors in a trial deprives a defendant of a fair trial even though

each of the numerous instances of trial court error does not individually constitute cause

for reversal.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955,

¶ 132, citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph

two of the syllabus.

{¶ 195} Because we have already determined that the judgment should be

reversed, we need not address this assignment of error. Accordingly, the tenth

assignment of error is overruled as moot.

XI. Conclusion -67-

{¶ 196} Curtiss’s first and second assignments of error are sustained, the third,

fourth, fifth, sixth, seventh, eighth, and ninth assignments of error are overruled, and the

tenth assignments of error is overruled as moot. The judgment of conviction therefore is

reversed, and the matter is remanded to the trial court for further proceedings consistent

with this opinion.

TUCKER, P.J. and DONOVAN, J., concur.

Copies sent to:

Mathias H. Heck, Jr. J. Joshua Rizzo Eric G. Eckes Stephanie F. Kessler Hon. Mary Katherine Huffman