The State of Ohio v. ARNOLD

• Decision Date: 17 June 2010
• Docket Number: No. 2008-1693.,2008-1693.
• Citation: 933 N.E.2d 775,2010 Ohio 2742,126 Ohio St.3d 290
• Parties: The STATE of Ohio, Appellee, v. ARNOLD, Appellant.
• Court: Ohio Supreme Court

126 Ohio St.3d 290

933 N.E.2d 775

2010 Ohio 2742

The STATE of Ohio, Appellee,

v.ARNOLD, Appellant.

No. 2008-1693.

Supreme Court of Ohio.

Submitted Sept. 1, 2009.

Decided June 17, 2010.

Syllabus of the Court

1. Statements made to interviewers at child-advocacy centers that serve primarily a forensic or investigative purpose are testimonial and are inadmissible pursuant to the Confrontation Clause when the declarant is unavailable for cross-examination.

2. Statements made to interviewers at child-advocacy centers that are made for medical diagnosis and treatment are nontestimonial and are admissible without offending the Confrontation Clause.

Ron O'Brien, Franklin County Prosecuting Attorney, and Kimberly Bond, Assistant Prosecuting Attorney, for appellee.

Yeura R. Venters, Franklin County Public Defender, and David L. Strait, Assistant Public Defender, for appellant.

Vorys, Sater, Seymour & Pease, L.L.P., Lisa Pierce Reisz, and Melissa J. Mitchell, Columbus, urging affirmance for amici curiae Nationwide Children's Hospital and the Center for Child and Family Advocacy.

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, Elisabeth A. Long, Deputy Solicitor, and Rebecca L. Thomas, Assistant Solicitor, urging affirmance for amicus curiae Attorney General of Ohio.

Timothy Young, Ohio Public Defender, and Kelly K. Curtis, Assistant Public Defender, urging reversal for amicus curiae Ohio Public Defender.

Ian N. Friedman & Associates, Ian N. Friedman, Cleveland, and Eric C. Nemecek, urging reversal for amicus curiae Ohio Association of Criminal Defense Lawyers.

O'CONNOR, J.

{¶ 1} Appellant, Michael Arnold, appeals his conviction for raping his four-year-old daughter, M.A. Arnold argues that statements that M.A. made to social worker Kerri Marshall at the Center for Child and Family Advocacy at Nationwide Children's Hospital (“CCFA”) were admitted contrary to his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. The court of appeals affirmed Arnold's conviction, holding that Marshall did not act as an agent of the police when she questioned M.A. and that M.A.'s statements during the interview were nontestimonial.

{¶ 2} In interviewing M.A. at the CCFA, Marshall occupied dual capacities: she was both a forensic interviewer collecting information for use by the police and a medical interviewer eliciting information necessary for diagnosis and treatment. We hold that statements made to interviewers at child-advocacy centers that are made for medical diagnosis and treatment are nontestimonial and are admissible without offending the Confrontation Clause. Thus, we affirm the judgment of the court of appeals to the extent that M.A.'s statements to Marshall for the purpose of medical treatment and diagnosis were properly admitted. We further hold that statements made to interviewers at child-advocacy centers that serve primarily a forensic or investigative purpose are testimonial and are inadmissible pursuant to the Confrontation Clause. We agree with Arnold that the trial court erred in admitting the forensic statements made by M.A. to Marshall and reverse the court of appeals insofar as it held that these forensic statements were admissible. However, because the court of appeals did not consider whether the admission of M.A.'s forensic statement to Marshall was harmless, we remand this case to the court of appeals to consider this issue.

Relevant Background

{¶ 3} In December 2005, Arnold and Wendy Otto lived together in Hilliard, Ohio, with their two young children. Otto testified that upon awakening one night, she discovered that Arnold and their four-year-old daughter, M.A., were locked in a bedroom. Otto demanded that Arnold unlock the door, and when he did, she observed that his boxer shorts were halfway off. Otto also observed that M.A.'s underwear was around her ankles. She suspected sexual abuse, demanded that Arnold leave the premises, and called 9-1-1. Arnold left immediately. By the time paramedics arrived, many police officers were present. M.A. told firefighter-paramedic Charles Fritz that she had been touched in her private area.

{¶ 4} Paramedics took Otto and M.A. to Nationwide Children's Hospital, where evidence for a rape kit was collected. While at the hospital, Otto was advised to take M.A. to the CCFA the next day. The record is unclear whether this advice came from the police, paramedics, hospital personnel, or some other source. At some point that night, M.A. was released.

{¶ 5} The next morning, Otto took M.A. to the CCFA. The CCFA is part of Children's Hospital and is located across the street from the main hospital. At the CCFA, Marshall, a Nationwide Children's Hospital employee, interviewed M.A. M.A.'s responses to Marshall's questions indicated that she had been sexually abused. This interview is at the heart of Arnold's Confrontation Clause claim.

{¶ 6} The interview yielded a variety of relevant information. For example, M.A. stated that Arnold's “pee-pee” went inside her “pee-pee” and that Arnold's mouth touched her “pee-pee.” These statements were necessary for M.A.'s medical evaluation and treatment. But M.A. also answered questions that related to the ongoing investigation. For example, in response to Marshall's questions, M.A. stated that Arnold closed and locked the bedroom door before raping her and that Arnold removed her underwear.

{¶ 7} After the interview with Marshall, M.A. was physically examined by a pediatric nurse practitioner, Gail Horner, a hospital employee who worked in the CCFA. Horner found two abrasions to M.A.'s hymen, which she concluded had been caused by acute trauma, likely from penetration, within the previous 24 to 72 hours. Horner testified that the abrasions were “diagnostic” of sexual abuse.

{¶ 8} Based on this and other information, including Otto's testimony, Arnold was indicted on two counts of rape in violation of R.C. 2907.02. The first count charged rape by vaginal intercourse; the second charged rape by cunnilingus.

{¶ 9} At trial, the court determined that M.A. was unavailable to testify. After watching the DVD recording of M.A.'s interview with Marshall, the court determined that the statements had been made for the purpose of medical diagnosis and were admissible hearsay under Evid.R. 803(4). The court also determined that the statements were not barred by the Confrontation Clause. Accordingly, the DVD was played for the jury.

{¶ 10} The jury found Arnold guilty of rape by vaginal intercourse, but not guilty of rape by cunnilingus. R.C. 2907.02. Arnold was sentenced to life in prison.

{¶ 11} On appeal, the Tenth District affirmed Arnold's conviction. State v. Arnold, Franklin App. No. 07AP-789, 2008-Ohio-3471, 2008 WL 2698885. We accepted Arnold's discretionary appeal to determine whether, in a criminal prosecution, the out-of-court statements made by a child to an interviewer employed by a child-advocacy center violates the right to confront witnesses provided by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. State v. Arnold, 120 Ohio St.3d 1452, 2008-Ohio-6813, 898 N.E.2d 967.

Analysis

Confrontation Clause

{¶ 12} “The Sixth Amendment's Confrontation Clause provides that, ‘[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.’ We have held that this bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).” Crawford v. Washington (2004), 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177. “Section 10, Article I [of the Ohio Constitution] provides no greater right of confrontation than the Sixth Amendment.” State v. Self (1990), 56 Ohio St.3d 73, 79, 564 N.E.2d 446.

{¶ 13} In Crawford, the Supreme Court of the United States considered whether the introduction of a hearsay statement admissible under state law violated a defendant's Sixth Amendment right to confront the witnesses against him. The court held that out-of-court statements violate the Sixth Amendment when they are testimonial and the defendant has had no opportunity to cross-examine the declarant. 541 U.S. at 68, 124 S.Ct. 1354, 158 L.Ed.2d 177. See also State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, ¶ 21-26. The court did not comprehensively define “testimonial” but stated that the core class of testimonial statements includes statements “ ‘that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” Crawford, 541 U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177, quoting Brief of Amicus Curiae National Association of Criminal Defense Lawyers 3. Accord State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraph one of the syllabus. The court emphasized that the objective-witness test was but one of many possible ways to determine whether a statement is testimonial, and it expressly stated, “We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Crawford, 541 U.S. at 68, 124 S.Ct. 1354, 158 L.Ed.2d 177.

{¶ 14} Two years later, in Davis v. Washington (2006), 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224, the court considered whether a caller's responses to a dispatcher's interrogation during a 9-1-1 telephone conversation were testimonial when the caller failed to appear to testify at trial. The court stated (1) that the statements described the events as they were happening, as opposed to explaining events that had happened in the past, (2) that any reasonable listener would conclude that the statements were made in the face of an ongoing emergency, (3) that the interrogation was objectively necessary to resolve the ongoing emergency, and (4) that the...