[Cite as State v. Knauff,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

State of Ohio, : Case No. 10CA900

Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT ENTRY Travis Knauff, :

Defendant-Appellant. : RELEASED 05/24/11 ______________________________________________________________________ APPEARANCES:

Samuel H. Shamansky, Samuel H. Shamansky Co., LPA, Columbus, Ohio, for appellant.

Aaron E. Haslam, Adams County Prosecutor, and Mark R. Weaver, Adams County Assistant Prosecutor, West Union, Ohio, for appellee. ______________________________________________________________________ Harsha, P.J.

{¶1} Travis Knauff appeals his conviction for the rape of his five-year-old

daughter. Knauff contends that the trial court erred by admitting a video-recorded

interview in which his daughter described the sexual abuse to a social worker at

Cincinnati Children’s Hospital. We conclude that the video was admissible under the

hearsay exception for statements made for medical diagnosis or treatment; all

statements contained in it were reasonably pertinent to assisting medical professionals

with determining a course of physical and mental health treatment for the young child.

And because the victim testified and was available for cross-examination, no violation of

the Confrontation Clause occurred.

{¶2} Knauff also contends that the trial court violated the Confrontation Clause

by allowing the victim to testify in the court’s chamber via closed-circuit television. The 2 Adams App. No. 10CA900 court invoked the procedures outlined in R.C. 2945.481(E)(2) and found that the victim

expressed “extreme fear” of her father and could not testify in his presence,

necessitating the use of the closed-circuit television procedure. The statute advances

two important public policy goals, i.e., the protection of child sex abuse victims from

experiencing further trauma by testifying in the presence of their abuser, and ensuring

that the child victim is able to communicate his or her testimony openly and honestly.

Moreover, the closed-circuit television procedure ensured the reliability of the

adversarial process as the victim was subject to cross-examination under oath, and

both Knauff and the jurors were able to observe her demeanor while testifying.

Therefore it passes constitutional muster.

I. Summary of the Evidence at Trial

{¶3} Travis Knauff and Alisha Knauff were previously married, but divorced

before the incident. According to Alisha, their daughter D.K. accused Knauff of

molesting her at his trailer during his parental visitation.

{¶4} After Alisha contacted the Adams County Sheriff’s Department, Detective

Jim Heitkemper referred her to the Mayerson Clinic at Cincinnati Children’s Hospital for

an evaluation. There, social worker Cecelia Friehofer recorded a one-hour interview

with D.K. During the interview, D.K. revealed that her father engaged in sexual conduct

with her in his bedroom, living room, and in a “forest.” She also revealed that she spit

Knauff’s “pee” into a hole in his bedroom floor. The interview covered a broad range of

details related to the abuse.

{¶5} Friehofer summarized what D.K. told her to Dr. Bob Shapiro, who

conducted a physical examination. Dr. Shapiro examined D.K. visually and observed 3 Adams App. No. 10CA900 nothing out of the ordinary. He testified that he would not have expected to observe any

physical signs of sexual contact given that the incident occurred three months prior.

{¶6} Friehofer faxed a report of the interview to Detective Heitkemper, who

then obtained and executed two search warrants for Knauff’s residence. Executing the

first search warrant, Heitkemper removed the portion of the floor containing the hole and

a section of pink insulation found underneath the hole. Through the second search

warrant, Heitkemper obtained Knauff’s DNA by swabbing his mouth. The Sheriff’s

Office sent the physical evidence from the trailer and DNA swabs of both Knauff and

D.K. to the Ohio Bureau of Criminal Identification (BCI) for analysis.

{¶7} Two BCI employees testified about their findings. The first, a “forensic

biologist,” testified that her analysis revealed that the insulation contained a combination

of both semen and “amylase,” which is a substance found in saliva. The second BCI

employee conducted DNA testing on the insulation and compared his findings to the

DNA samples obtained from Knauff and D.K. He concluded that the sample contained

a “major DNA profile,” which matched Knauff’s DNA. The employee also found a “minor

DNA profile” which he could not associate with any individual. He could not reach a

conclusion about whether the minor profile belonged to D.K. The employee explained

that the minor profile had insufficient DNA information to provide him with the ability to

make a comparison. On cross-examination, the employee testified that the information

contained in the minor profile could arguably support the conclusion that the unknown or

“foreign” DNA came from as many as four different contributors.

{¶8} D.K., who was five-years-old, testified at trial. When the prosecutor asked

her about the abuse, she became non-responsive and indicated that she was scared. 4 Adams App. No. 10CA900 The prosecutor attempted to calm her down but she repeatedly conveyed that she was

too scared to testify about the alleged abuse. The court eventually questioned D.K.

about her level of fear and asked her what was causing it. She stated that she was

scared because of “everyone” in the courtroom and because of her father’s presence.

When asked to describe her level of fear in terms of a one to ten scale, D.K. responded

that she was “real, real, real scared.”

{¶9} The prosecutor asked D.K. if she thought she could testify in the judge’s

chambers, with only the judge, the state’s attorney and the defense counsel present.

She said she could. The court then made a finding on the record that D.K. had

expressed “extreme fear” that was preventing her from testifying in open court. The

court invoked the procedures set forth in R.C. 2945.481(E) for conducting an

examination of a child sex abuse witness outside of the courtroom via closed-circuit

television.

{¶10} The state continued D.K.’s direct examination in the judge’s chambers

with the judge and defense counsel present. Court staff used a closed-circuit video

system to broadcast D.K.’s testimony to the courtroom, where the jurors and Knauff

remained. The record reflects that Knauff could speak to defense counsel during D.K.’s

direct examination by the use of a cell phone. On direct, D.K. testified that Knauff stuck

his finger in her “pee pee” and her “butt,” and that she spit his “pee” in a hole in the floor

and the toilet. Defense counsel briefly cross-examined D.K., mainly to clarify whether

she told her mother about the abuse allegations first, or whether her mother asked her

about the allegations. D.K.’s response was, essentially, she told her mother because

otherwise she would not know. 5 Adams App. No. 10CA900 {¶11} Friehofer testified and discussed the general methodology behind the

“forensic interview” that she conducted with D.K. She explained that one purpose of the

lengthy interview was to gain as much information as possible so that D.K. would not

have to discuss the abuse with others. Friehofer explained that another purpose of the

interview was to gain information so that medical staff could make appropriate decisions

concerning necessary physical or mental health treatment.

{¶12} At the conclusion of Friehofer’s testimony, the state played the interview

for the jury. Court staff fast-forwarded or muted at least two portions of the interview,

apparently in response to an agreement by the prosecutor and defense counsel. The

record contains both the complete video-recorded interview and the redacted version.

{¶13} The interview played for the jurors lasted approximately 50 minutes as

D.K. describes repetitively, and in detail, the sexual abuse. She alleged that the

majority of the abuse occurred in Knauff’s bedroom and in the living room. In her own

words, she described acts of digital penetration, cunnilingus, and fellatio. She said that

Knauff told her to swallow his “pee” but that she refused. She said she spit his “pee” in

a hole in his bedroom floor. D.K. additionally described an act of fellatio that occurred in

a “forest” while on a trip to Wal-Mart.

{¶14} D.K. described the frequency of the abuse, which she said happened “a

lot” and “whenever she stayed the night.” D.K. also described specifically where the

abuse occurred, and what bodily position she and Knauff would be in when it occurred.

D.K. told Friehofer that Knauff would place a “baby box” in front of the door so that no

one would enter the room. D.K. stated that during the encounters, she would have her 6 Adams App. No. 10CA900 pants and underwear off and Knauff would remain clothed. When the abuse was over,

Knauff would put her clothes back on.

{¶15} D.K. also told Friehofer that sometimes other individuals were in the trailer

during the abuse. She claimed that Knauff’s girlfriend, Jerrylyn Mounts, was “always”

outside on the porch, smoking a cigarette. Her Uncle Sonny Knauff and her Grandma

were in their respective bedrooms.

{¶16} The defense introduced the testimony of Jerrylyn Younts. She claimed

that she never went outside to smoke cigarettes and would open a window in the living

room and blow smoke out of it. She also testified that Knauff was never alone with D.K.

in the three or so weeks D.K. stayed with Knauff and his family at the trailer. She

admitted, however, that during the day she was away from the trailer at her job.

{¶17} When Knauff testified, he denied any sexual abuse occurred and claimed

that D.K. was a liar. Knauff also testified that he was never alone with D.K. And he

indicated that his relationship with Alisha Knauff was “very poor.” On cross-

examination, Knauff admitted that he did not have a job and stayed at home during the

month of June 2009. He did not dispute that the insulation located underneath the hole

in the floor contained his semen. On re-direct, Knauff claimed that he masturbated into

the hole after becoming aroused by observing his girlfriend in the shower. Knauff

admitted on re-cross that he previously told only his defense counsel the story about

masturbating into the hole.

{¶18} Jurors convicted Knauff of one count of rape, in violation of R.C.

2907.02(A)(1)(b). After the court sentenced him to life in prison without parole eligibility,

he filed this timely appeal. 7 Adams App. No. 10CA900 II. Assignments of Error

{¶19} Knauff submits two assignments of error for our review:

Assignment of Error No. 1:

THE TRIAL COURT VIOLATED APPELLANT’S RIGHT OF CONFRONTATION

AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO

CONSTITUTION BY ALLOWING THE VIDEO RECORDED STATEMENT OF

APPELLANT’S DAUGHTER TO BE PLAYED IN ITS ENTIRETY FOR THE

JURY.

Assignment of Error No. 2:

THE TRIAL COURT VIOLATED APPELLANT’S RIGHT OF CONFRONTATION

AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION BY ALLOWING THE TESTIMONY OF HIS ACCUSER TO BE

GIVEN IN CAMERA RATHER THAN IN OPEN COURT.

III. Admission of the Video-Recorded Interview

{¶20} In his first assignment of error, Knauff argues that the court abused its

discretion by admitting the video-recorded interview. Knauff argues that the interview

was hearsay and was not admissible under Evid.R. 803(4) – statements made for

purposes of medical diagnosis or treatment.

{¶21} First, Knauff contends that D.K. was unaware that she was providing

information for medical treatment, therefore her statements were unreliable. Second,

Knauff argues that even if portions of the video-recorded interview were admissible

under Evid.R. 803(4), the court abused its discretion by playing the “entire” video for the 8 Adams App. No. 10CA900 jurors. Knauff contends that many aspects of the interview went beyond that required

for providing information for Dr. Shapiro’s physical examination. Knauff additionally

contends that the playing of the video-recorded interview violated his Confrontation

Clause rights because he could not cross-examine D.K. on the statements in the

interview in a “meaningful” manner.

A. Standard of Review

{¶22} The admission of evidence is within the sound discretion of the trial court.

State v. Sage (1987),

,

, at paragraph two of the

syllabus. An abuse of discretion consists of more than an error of judgment; it connotes

an attitude of the trial court that is unreasonable, unconscionable, or arbitrary. State v.

Lessin,

,

, 620 Ohio N.E.2d 72. When applying the

abuse of discretion standard, we are not free to merely substitute our judgment for that

of the trial court. In re Jane Doe I (1991),

,

, citing Berk v. Matthews (1990),

,

.

{¶23} Initially, it is significant that Knauff did not object to the admission of the

video-recorded interview. In fact, defense counsel specifically stated on the record that

he had no objection to the state showing the jurors the video. (Tr. 318.) And defense

counsel did not object when the state offered a redacted version of the video into

evidence at the close of its case in chief.

{¶24} Evid. R. 103(A) provides:

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context[.] 9 Adams App. No. 10CA900

(Emphasis added.)

{¶25} Evid. R. 103(A) follows the longstanding rule that the failure to make a

specific objection to the admission of evidence waives the objection and it cannot

thereafter form the basis of a claim in an appellate court. Kent v. State (1884),

, 430-431. Crim.R. 52(B), however, provides a mechanism by which defendants

may obtain review of “plain errors” that affected “substantial rights” even where they

failed to object. Thus, Knauff must demonstrate “plain error” in the admission of the

video-recorded interview or he has waived its admission.

{¶26} “Plain error” exists only when it is clear the verdict would have been

otherwise but for the error. State v. Sanders,

,

,

. Plain error review places three limitations on a reviewing court’s

decision to correct an error not objected to during trial. First, there must be legal error.

Second, the error must be “plain.” Within the meaning of Crim.R. 52(B), an error is

“plain” if there is an “obvious” defect in the trial proceedings. Third, the error has to

affect “substantial rights.” State v. Barnes,

,

,

. The Supreme Court of Ohio has “interpreted this [latter] aspect of the rule

to mean that the trial court’s error must have affected the outcome of the trial.”

The

Court further explained, “[e]ven if a forfeited error satisfies these three prongs, however,

Crim.R. 52(B) does not demand that an appellate court correct it. Crim.R. 52(B) states

only that a reviewing court ‘may’ notice plain forfeited errors; a court is not obliged to

correct them. We have acknowledged the discretionary aspect of Crim.R. 52(B) by

admonishing courts to notice plain error ‘with the utmost caution, under exceptional 10 Adams App. No. 10CA900 circumstances and only to prevent a manifest miscarriage of justice.’”

quoting State

v. Long (1978),

,

, at paragraph three of the syllabus.

B. Statements for Purposes of Medical Diagnosis or Treatment

{¶27} Statements made outside of the courtroom, offered at trial to prove the

truth of what they assert, are generally inadmissible as “hearsay” unless an exception

applies. Evid.R. 801(C); Evid.R. 802; State v. DeMarco (1987),

,

. Out-of-court statements made for purposes of medical diagnosis or

treatment are hearsay, but are admissible in court under the hearsay exception

provided in Evid.R. 803(4). Such statements are only admissible “insofar as reasonably

pertinent to diagnosis or treatment.” Evid.R. 803(4).

{¶28} Knauff contends that the video-recorded interview does not satisfy the

reliability threshold of Evid. R. 803(4). In deciding whether hearsay is reliable enough for

admission under Evid.R. 803(4), courts look at several factors. The first is the “selfish-

motive” doctrine, i.e., “the belief that the declarant is motivated to speak truthfully to a

physician because of the patient’s self-interest in obtaining an accurate diagnosis and

effective treatment.” State v. Muttart,

,

,

, citing State v. Eastham (1988),

,

(Brown, J., concurring). Another factor courts consider is the medical professional’s

subjective reliance on the statement, because “physicians, by virtue of their training and

experience, are quite competent to determine whether particular information given to

them in the course of a professional evaluation is ‘reasonably pertinent to diagnosis or

treatment[,]’ and are not prone to rely upon inaccurate or false data in making a

diagnosis or in prescribing a course of treatment.” Id. at ¶41, quoting King v. People 11 Adams App. No. 10CA900 (Colo. 1990),

. In Muttart, the Supreme Court of Ohio observed that

the professional reliance factor is of “great import” in cases of child abuse.

{¶29} The Muttart Court also provided a non-exhaustive list of additional factors

that a court should weigh when considering whether out-of-court statements obtained

from a young child are admissible under this exception:

(1) Whether medical professionals questioned the child in a leading or suggestive

manner and whether the medical professional followed proper protocol in eliciting

a disclosure of abuse;

(2) Whether the child had a reason to fabricate, e.g., a pending legal proceeding

or bitter custody battle;

(3) Whether the child understood the need to tell the medical professional the

truth; and

(4) Whether the age of the child could indicate the presence or absence of an

ability to fabricate a story.

Id. at ¶49.

{¶30} Initially, Knauff contends that D.K.’s statements were inadmissible under

Evid.R. 803(4) because she did not understand that she was providing them for

purposes of medical treatment. In other words, Knauff argues that the justification for

admitting statements made for purposes of medical treatment, i.e., the patient’s

incentive to tell the truth to the medical professional for proper treatment, was lacking.

However, at the very beginning of the interview, D.K. acknowledged her awareness of

the purpose of the interview. Soon after the interview began, D.K. revealed to Friehofer

that she had sexual contact with her father. She then said, “that’s why I’m here – to see 12 Adams App. No. 10CA900 a doctor.” Her statement satisfies this foundational requirement even though she was

five-years-old.

{¶31} Next, Knauff admits that some answers provided by D.K. in the course of

the interview aided Dr. Shapiro in determining the method of his subsequent physical

examination, but he contends that many other questions and answers went beyond

what was necessary to provide Shapiro information about physical symptoms. In other

words, he disputes whether the professional reliance component of reliability is present.

For example, Knauff asserts that Friehofer and D.K.’s discussion covered such topics

as the weather, what school D.K. attended, that Knauff was “mean” to Alisha, the

physical location where some acts of abuse occurred, and where D.K. spit Knauff’s

“pee.” Knauff argues that the court erred by admitting these portions of the interview,

rather than limiting the admitted portion of the interview to answers provided for

Shapiro’s use in determining the nature of his physical examination.

{¶32} However, Friehofer testified about additional purposes of the interview.

Specifically, Friehofer stated that the interview provided recommendations not only for a

course of physical treatment but also for recommendations on “therapy” and

“psychological assistance.” Friehofer used the hour-long interview with the then five-

year-old victim to gain an understanding of the type and extent of abuse D.K.

experienced. True, many of her answers went beyond what was necessary to conduct

a basic physical examination. But all of D.K.’s statements, even those tangential or

unrelated to the physical effects of the abuse, reasonably assisted Friehofer and

subsequent medical professionals with the information necessary to prescribe a proper 13 Adams App. No. 10CA900 course of physical and mental treatment for the child. In fact, the record reflects that

D.K. underwent at least two months of counseling sessions prior to the trial.

{¶33} Nonetheless, Knauff directs our attention to State v. Clary (1991),

,

, in which the appeals court held that a “blanket admission”

of a statement made for medical treatment was an abuse of discretion. Clary involved

statements recorded by an emergency room doctor concerning “patient history” on an

triage form while the victim was at the emergency room for a “rape examination.”

. The “patient history” portion of the form was a brief recitation of the victim’s story

about the rape.

At trial, the court permitted the doctor, who ultimately performed the

physical rape examination, to testify that the patient told him that two men raped her

orally and vaginally, that the assailants punched her in the face at least twice, and that

they threatened her with a knife during the assault.

. The appeals court

concluded that the patient’s statements concerning the knife threat and the number of

assailants were not reasonably pertinent to the doctor’s physical rape examination.

.

{¶34} We conclude that Clary is distinguishable. First, the victim in Clary was an

adult. The questions a medical professional must reasonably ask a five-year-old child

to determine a course of treatment for sex abuse are far different from the narrative

statement an adult rape victim might provide to a emergency room doctor. Second, the

victim’s purpose in providing information in Clary was for a physical rape examination.

There is no suggestion in Clary that the victim also sought or received mental health

treatment. Here, the varied subject matter of the interview and the number and type of

questions posed by Friehofer were reasonable given that she was questioning a five- 14 Adams App. No. 10CA900 year-old about a serious sex abuse allegation. D.K.’s responses provided Dr. Shapiro

with information necessary for his physical examination. And her statements also

provided him or other medical staff with information necessary to prescribe a course of

mental health treatment. Therefore we reject Knauff’s contention that the questions and

answers far exceeded a permissible scope.

{¶35} A review of the four additional reliability factors found in Muttart bolsters

our conclusion that the trial court did not abuse its discretion by admitting the video-

recorded interview. Concerning the protocol of the interview, Friehofer testified that she

used established protocols for interviewing a child concerning sex abuse allegations.

She employed a technique known as “forensic interviewing.” Friehofer explained that a

forensic interview is “non-biased” and “non-leading.” She testified that she performed at

least 800 of these interviews in the four years she worked at Mayerson Clinic. Friehofer

stated that she always conducted the interview with an open mind, and specifically did

not speak at length with the complaining parent before commencing the interview.

{¶36} Our review of the video-recorded interview corroborates Friehofer’s

claims. D.K. herself offered many of the details regarding the abuse without

unnecessary suggestion. D.K. would occasionally talk about matters unrelated to the

abuse, as would be expected from a five-year-old. In response, Friehofer would steer

the conversation back to the abuse allegations and attempt to obtain more information

about the specific circumstances. But Friehofer almost always did so in a non-leading

manner, i.e., asking D.K. to tell her more about what occurred, rather than suggesting

what occurred. 15 Adams App. No. 10CA900 {¶37} Likewise, there is no evidence in the record that D.K. had any reason to

fabricate a story of abuse, such as an ongoing bitter custody battle. The record reflects

that Knauff and Alisha Knauff divorced before the rape allegations surfaced. There is

no credible evidence in the record supporting the existence of a custody dispute. And in

fact, the molestation occurred while Knauff was exercising his visitation rights. Although

Knauff claimed that his relationship with Alisha was “very poor,” and Jerrylyn Mounts

alluded to receiving some sort of threat from Alisha, these assertions do not reasonably

support the existence of an ongoing bitter custody battle or other motive to fabricate.

{¶38} There is no evidence in the video-recorded statement or other parts of

the record that suggest D.K. did not understand the need to tell Friehofer the truth. Her

statement that she was at the clinic to see a doctor implies an understanding of the

need to be truthful. And D.K.’s young age at the time of the interview – five-years-old –

could reasonably indicate to the court that she would be incapable of fabricating a story

concerning sexual abuse by her father. Indeed, after watching the video ourselves, we

would find it incredible that a child of D.K.’s age could fabricate the details she related

about sexual acts involving her father.

{¶39} We perceive no error in the court’s decision to admit the redacted version

of the video-recorded interview under Evid.R. 803(4). D.K.’s mental health was an

important purpose of the forensic interview and all questions and answers provided

were “reasonably pertinent” to medical treatment.

C. Confrontation Clause

{¶40} Knauff also contends that the court’s admission of the video-recorded

statement violated his Confrontation Clause rights because the statements in it 16 Adams App. No. 10CA900 amounted to “detailed and extensive accusations” against him and he could not confront

these accusations in any “meaningful” manner. The state contends that D.K. was

present and available for cross-examination, and thus Knauff cannot claim a violation of

Confrontation Clause rights.

{¶41} “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.’ * * * [T]his bedrock procedural guarantee applies to both federal

and state prosecutions. Pointer v. Texas,

,

,

(1965).” Crawford v. Washington (2004),

,

. “Section

10, Article I [of the Ohio Constitution] provides no greater right of confrontation than the

Sixth Amendment[.]” State v. Self (1990),

,

. Thus,

we will limit our review of Knauff’s argument to the federal right of confrontation.

{¶42} Out-of-court statements that are “testimonial” in nature violate the

Confrontation Clause of the Sixth Amendment when introduced at trial if the defendant

has no opportunity to cross-examine the declarant on those statements.

. In Crawford, the Court provided a basic definition of testimonial statements known

as the “objective-witness test.” This test provides that statements are testimonial in

nature when they are “made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a later

trial[.]”

.

{¶43} We need not determine, however, whether the statements in our case

were “testimonial.” The Court in Crawford was explicit: “when the declarant appears for

cross-examination at trial, the Confrontation Clause places no constraints at all on the 17 Adams App. No. 10CA900 use of his prior testimonial statements.” Id. at fn.9, citing California v. Green (1970),

,

. D.K. testified at trial and was subject to cross-

examination. Nonetheless, Knauff contends that he had no meaningful way of

confronting the statements made in the video. But the record reflects that defense

counsel had the opportunity to question D.K. concerning these statements, but chose

not to. After defense counsel stopped cross-examining D.K., he went back into the

courtroom and spoke with Knauff to determine whether there was any additional line of

questioning Knauff wished pursued. Defense counsel then stated on the record that

after consulting Knauff, he had no further questions. Consequently, even if some or all

of the video-recorded interview was testimonial in nature, Knauff had the opportunity to

cross-examine D.K. on her statements. Therefore we find no constitutional error in the

court’s decision to admit the video-recorded interview.

D. No Plain Error

{¶44} Finally, even if we assumed without deciding that the admission of the

video-recorded interview was error, it was not “plain error.” As stated previously, “plain

error” exists only when it is clear the verdict would have been otherwise but for the

error. Sanders, supra. We have reviewed the entire trial record and are confident that

the outcome would have been the same without the admission of the video-recorded

interview.

{¶45} D.K. testified under oath that Knauff put his fingers in her “pee pee” and

her “butt.” She also stated that she spit his “pee” into a hole in the floor. The forensic

evidence corroborated this testimony. Heitkemper testified that he removed a section of

insulation underneath the hole in the floor and forwarded it to BCI for forensic analysis. 18 Adams App. No. 10CA900 BCI employees testified that the insulation contained both a component of saliva and

sperm with the sperm matching Knauff’s DNA profile.

{¶46} The jurors most likely still would have rejected the defense testimony that

Knauff was never once alone in D.K.’s presence over the entire course of his weeks

long period of custody. And they most likely still would have found Knauff unbelieveable

when he tried to explain the presence of semen in the floor by claiming he decided to

masturbate into a hole in his bedroom floor after watching his girlfriend shower. Thus,

even if the court had excluded the video-recorded interview in its entirety, we are

convinced that the outcome would not have changed. Consequently, this assignment of

error is meritless.

IV. Constitutionality of Closed-Circuit Television Testimony

{¶47} In his second assignment of error, Knauff attacks the constitutionality of

R.C. 2945.481, a statute that permitted D.K. to testify in the judge’s chambers by

closed-circuit television. Knauff argues that the Supreme Court of the United States, in

Coy v. Iowa (1988),

,

, held “at a minimum” that a court

violates a defendant’s federal Confrontation Clause rights when it denies a literal face-

to-face confrontation with an accusing witness.

A. Standard of Review

{¶48} We review constitutional challenges as a matter of law, ie., de novo. See,

e.g., Ohio Univ. Bd. of Trustees v. Smith (1999),

,

. Statutes enjoy a strong presumption of constitutionality. State v. Bloomer,

,

,

. A party challenging the 19 Adams App. No. 10CA900 constitutionality of a statute bears the burden of proving that it is unconstitutional

beyond a reasonable doubt.

B. The Confrontation Clause and the Protection of Child Witnesses

{¶49} In Coy the Supreme Court reversed a child molestation conviction where

an Iowa statute permitted a child witness to testify behind a screen. The Court noted

that “the Confrontation Clause guarantees the defendant a face-to-face meeting with

witnesses appearing before the trier of fact.” Id. at 1016. In reversing the conviction, the

Court emphasized that the Iowa statute required no factual finding of necessity before

the court could employ the screen. In other words, the statute presumed that a court

could, in all cases, deny the defendant a physical confrontation with an alleged child

victim. Id. at 1021.

{¶50} Although the Court noted that Iowa had a “compelling” interest in

protecting child abuse victims, it observed that the trial court made no “case-specific”

finding that the procedures used were necessary to further that interest. Id. at 1025

(O’Connor, J., concurring.). The Court “le[ft] for another day . . . the question whether

any exceptions exist” to the “irreducible literal meaning of the Clause: ‘a right to meet

face to face all those who appear and give evidence at trial.’” Id. at 1021, quoting

(Harsha, J., concurring). (Emphasis sic.)

{¶51} The Court answered this question two years later in Maryland v. Craig

(1990),

,

. There, the Court upheld a Maryland closed-

circuit television statute and held that the Confrontation Clause did not require a literal

face-to-face confrontation in all instances.

. The Court observed that the

core purpose of the Confrontation Clause was to ensure rigorous adversarial testing of 20 Adams App. No. 10CA900 accusing witnesses, i.e., cross-examination, providing sworn testimony under penalty of

perjury, and jurors’ observance of the witnesses’ demeanor.

. And the

Court noted that although a face-to-face confrontation formed the core value behind the

Confrontation Clause, it was a “preference” rather than a requirement.

.

In upholding the Maryland statute, the Court held that a denial of a face-to-face

confrontation could occur where it is necessary to: 1) further an important public policy;

and 2) the procedures provided in lieu of the face-to-face confrontation ensure the

reliability of the testimony.

.

{¶52} The Maryland statute in question allowed a child abuse victim to testify via

closed-circuit television if the trial court found that the child would suffer “serious

emotional distress” such that the child could not “reasonably communicate.” Id. at fn. 1.

The Court held that Maryland had an “important” public policy interest in the protection

of minor victims of sex crimes from further trauma. Id. at 855. The Court further held

that whether a denial of a face-to-face confrontation was necessary would have to be

determined on a case-by-case basis. Id. at 857-858. The Court explicitly decided

against specifically defining the “minimum showing of emotional trauma” necessary

because the “serious emotional distress” standard, “clearly suffices to meet

constitutional standards.” Id. at 856. Additionally, the Court observed that where a face-

to-face confrontation caused significant emotional distress in a child witness, “there is

evidence that such confrontation would in fact disserve the Confrontation Clause’s truth-

seeking goal.” Id. at 857.

{¶53} In

the Supreme Court of Ohio applied Craig and found R.C.

2907.41(A) and (B) to be substantially the same as the Maryland statute. The Court 21 Adams App. No. 10CA900 reviewed the procedure under R.C. 2907.41(B)(1)(b) for admitting a child sex abuse

victim’s videotaped deposition at trial in lieu of live testimony based upon a finding of

“serious emotional trauma” and held it constitutional.

at syllabus.1

{¶54} Nonetheless, Knauff urges us to conclude that Craig and Self are

inapplicable here. In his reply brief Knauff contends that in both cases, the respective

Supreme Courts ruled narrowly and limited their holdings that the statutes are

constitutional to an application of the “serious emotional distress” (Craig) or “serious

emotional trauma” (Self) elements. Knauff admits that R.C. 2945.481(E)(3) contains a

provision for a finding by the trial court of “serious emotional trauma” before invoking the

closed-circuit television procedure. However, Knauff points out that the trial court here

based its finding of necessity on the (E)(2) subsection, which requires a finding of

“extreme fear” in the child witness. Knauff does not explain why this distinction is legally

significant, but contends that we should apply the general rule of Coy and limit the

application of Craig and Self to findings of necessity based on serious emotional trauma

or distress. Although our research revealed no Ohio case addressing this specific issue,

we conclude that Coy does not require reversal here. We also conclude that there is no

significant legal distinction between a finding of necessity based on “serious emotional

trauma” or “extreme fear” in terms of the necessity rule applied in Craig and Self.

C. The Statute in Coy Required No Case-Specific Findings

{¶55} The basis of the Court’s decision in Coy was the statutory presumption in

all cases of minor sexual abuse that a court could deny a defendant a face-to-face

confrontation with an accusing child witness without any showing of necessity. Craig at

1 Although the General Assembly recodified R.C. 2907.41 as R.C. 2945.481 in 1997, for the issues in this appeal, it is substantially identical to its prior version. 22 Adams App. No. 10CA900 844-845. Unlike the statue in Coy, R.C. 2945.481 requires case-specific findings of

necessity before a judge can utilize the closed-circuit television procedure. Thus, R.C.

2945.481 does not presume that there is no right to face-to-face confrontation and Coy

is not controlling. See

.

D. R.C. 2945.481(E)(2) satisfies both Craig and Self.

{¶56} In approving an alternative to face-to-face confrontation the Craig Court

focused on two major requirements: 1) the procedure must advance an important public

policy; 2) the procedures used must maintain the reliability inherent in our system of

rigorous adversarial testing.

. Both requirements are satisfied here.

1. R.C. 2945.481(E)(2) Advances Important Public Policy Goals

{¶57} In both Craig and Self, the important public policy advanced was the

protection of minor sex abuse victims from suffering further trauma by testifying in close

physical proximity with the individual who allegedly molested them. Here, the court

found that D.K. demonstrated “extreme fear”, which caused her to be unable to

communicate her testimony.

{¶58} A minor child who is experiencing “extreme fear” is under some form of

severe emotional trauma or distress. “Extreme fear” is, undoubtedly, one of many

associated characteristics of severe emotional distress or trauma. And we see no

reason to differentiate between a finding of necessity based on “serious emotional

trauma” or, as in this case, “extreme fear.” Thus, we hold that a finding of “extreme

fear” meets the “minimum showing of emotional trauma” and advances the important

public policy of preventing further trauma to the child sex abuse witness. 23 Adams App. No. 10CA900 {¶59} Moreover, as the Court alluded to in Craig, a finding of necessity based on

“extreme fear” and procedures designed to ameliorate that fear would advance another

important public policy, i.e., that of ensuring the reliability of testimonial evidence. A

child witness who is suffering “extreme fear” when testifying may have difficulty

accurately and honestly conveying his or her testimony.

{¶60} To ensure that an alternative to face-to-face confrontation is

constitutionally justified under Craig a trial court must:

1) Hear evidence and determine whether use of the closed-circuit television

procedure is necessary to protect the welfare of the testifying child witness.

2) Find that the defendant’s presence – not the courtroom generally -- causes

the child’s trauma.

3) Find that the emotional distress that would be suffered by the child witness is

more than “de minimis, i.e., more than ‘mere nervousness or excitement or some

reluctance to testify[.]’”

, quoting Wildermuth v. State (1987),

,

.

{¶61} The trial court heard evidence to determine whether the procedure was

necessary to protect D.K. On the witness stand D.K. was unresponsive and expressed

fear at testifying. She told the court that her fear was attributable to both Knauff’s

presence and the courtroom generally. (Tr. 217.) And the trial court found that D.K.’s

“extreme fear” was more than de minimis. The court attempted to ascertain her level of

fear on a scale of one to ten, to which she responded that she was “real, real, real

scared.” (Tr. 215.) 24 Adams App. No. 10CA900 2. The Procedures Ensured the Reliability of the Adversarial System

{¶62} D.K. testified via closed-circuit camera in the physical presence of the

judge, the prosecutor, and defense counsel. Both the defendant and the jurors could

watch and listen to her responses and observe her demeanor while testifying. Defense

counsel cross-examined D.K. and remained in constant communication with Knauff by

means of a cell phone. The record further reflects that before defense counsel

concluded his cross-examination, he went back into the courtroom and conferred in

person with Knauff. Defense counsel then stated on the record that Knauff informed

him he wished no further inquiry of D.K.

{¶63} In sum, we are confident that the procedures outlined in R.C.

2945.481(E)(2) and followed by the trial court retained the reliability of our system of

rigorous adversarial testing. Consequently, we conclude that this assignment of error is

meritless.

V. Conclusion

{¶64} The admission of the video-recorded interview was not error. The

contents of the interview were reliable and reasonably pertinent to medical diagnosis or

treatment under Evid.R. 803(4). And there was no denial of confrontation because even

if we assume portions of the interview were “testimonial” in nature, D.K. was available at

trial and was subject to cross-examination. Additionally, we hold that R.C.

2945.481(E)(2) and the closed-circuit television procedure based upon a finding of

“extreme fear” survive constitutional attacks premised on the Confrontation Clauses of

the federal and state Constitutions.

JUDGMENT AFFIRMED. 25 Adams App. No. 10CA900 JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Adams County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Kline, J. & McFarland, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________________ William H. Harsha, Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.