[Cite as State v. Crawford,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110986 v. :

HORACE CRAWFORD, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 4, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-657218-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Glen Ramdhan, Assistant Prosecuting Attorney, for appellee.

Joseph V. Pagano, for appellant.

MARY EILEEN KILBANE, J.:

Defendant-appellant Horace Crawford (“Crawford”) appeals from

his convictions and sentence for rape and other charges following a jury trial. For

the reasons that follow, we affirm. Factual and Procedural History

On February 26, 2021, a Cuyahoga County Grand Jury indicted

Crawford on three counts of rape in violation of R.C. 2907.02(A)(2), three counts

of sexual battery in violation of R.C. 2907.03(A)(5), and one count of kidnapping in

violation of R.C. 2905.01(A)(4) with a sexual motivation specification. These

charges stemmed from Crawford’s sexual abuse of his then 15-year-old daughter,

A.H.

Crawford pleaded not guilty to these charges. On June 18, 2021, the

case proceeded to a jury trial.

The state called Miranda McCoy (“McCoy”), who testified that she

had dated Crawford from approximately July 2019 to December 2019. McCoy

testified that when she asked Crawford about his daughter A.H., who was 15 years

old at the time, Crawford said that she was “sexy,” which McCoy found strange.

McCoy also testified that Crawford smoked marijuana with A.H., which McCoy

found inappropriate.

The state also called Candace Hinton (“Hinton”), who testified that

she dated Crawford in December 2019. Hinton described a night, around

Christmas 2019, when she and Crawford had gone to a friend’s house for game

night and A.H. stayed home at Hinton’s house. A.H. called and texted Crawford

that she was sick, so Crawford and Hinton returned home. Crawford stayed on the

living room couch with A.H., telling Hinton to wake him up to come to bed if he fell

asleep on the couch. Hinton woke up between 4 and 5 a.m. and went into the living room where she observed Crawford and A.H. sleeping together on the couch in

what she described as an “alarming” way, with A.H.’s head in Crawford’s lap.

Hinton woke up Crawford, who came into the bedroom with her, but shortly

thereafter went back to the living room with A.H.

The next morning, Hinton observed a white stain on one of the couch

cushions where Crawford and A.H. had been laying; she testified that the stain

looked like semen. When Hinton confronted Crawford about the stain, he said that

it looked like vomit. Hinton disagreed and took pictures of the stain and Crawford’s

pants, which also had a white stain.

The next day, Hinton, Crawford, and A.H. were watching a movie

together on the couch. When A.H. got up to go to the kitchen, Crawford told A.H.

that she was “thick as f**k,” which upset Hinton.

The day after that, Hinton looked through A.H.’s cellphone because

she had previously noticed the two of them sending text messages to each other

when they were in the same room. Hinton testified that she saw a message that

A.H. had sent to Crawford asking if he had ejaculated inside of her because she

thought she might be pregnant. Hinton used her cellphone to take photos of

messages on A.H.’s cellphone. The state introduced these photos as exhibits at trial.

Hinton testified that she then confronted Crawford, who denied her accusations

and left Hinton’s house with A.H. Hinton then called the police.

The state called Stephanie Moore (“Moore”), a child protection

specialist in the sex abuse department of the Cuyahoga County Division of Children and Family Services (“CCDCFS”). Moore testified that her job involves assessing

the safety of children within their home and conducting forensic interviews with

alleged child victims. Moore explained that she often encountered delayed

disclosure, where feelings of shame, confusion, or fear may prevent a child from

being forthright about an assault early on. Moore also explained that it was

common for the perpetrators in her cases to be a family member or otherwise

known to the victim prior to the incident.

Moore testified that she received a referral regarding allegations that

A.H. was being sexually abused by her father, Crawford, in January 2020. Moore

reached out to A.H.’s mother, K.H., and set up a time to conduct a forensic interview

of A.H. Moore testified that during the forensic interview, A.H. reported that some

inappropriate things had happened with Crawford. Moore went on to explain that

due to concerns surrounding A.H. repeatedly leaving school and her home and

communicating with Crawford, as well as concerns surrounding K.H.’s significant

health issues that caused K.H. to be hospitalized, A.H. was placed in CCDCFS

custody and ultimately placed in a foster home in Columbiana County on February

5, 2020.

Moore testified that she drove A.H. to her foster home, checked that

the home was safe, and then returned a week later for a follow-up visit. At the

follow-up visit, Moore was accompanied by two Cleveland police detectives who set

up a camera to film Moore’s conversation with A.H. but were not present for the

interview. At this visit, A.H. spoke more openly to Moore about what had happened with Crawford, began crying, and asked Moore if she could write down what

happened to her rather than verbalize it. In this way, A.H. disclosed to Moore that

she was sexually abused, in the form of digital and vaginal penetration, by

Crawford. The state introduced A.H.’s handwritten statement at trial. Moore

testified that as a result of this interaction with A.H., she worked with the foster

mother to coordinate follow-up mental health and STD testing services. Moore

testified that ultimately, as part of her investigation, she made a substantiated

finding that A.H. had been abused, meaning that she determined that A.H.

disclosed credible information that she had been abused and there was other

information that would support that the abuse took place.

The state also called A.H.’s foster mother, Marsha Cleveland

(“Cleveland”). Cleveland testified that A.H. was placed with her in February 2020.

Shortly after A.H. arrived at Cleveland’s home, she confided in Cleveland regarding

her abuse. Cleveland subsequently took A.H. to the doctor. Cleveland testified that

A.H. went home on October 7, 2020, to be reunified with her mother.

Midway through trial, on Friday, August 20, 2021, the parties

addressed an issue on the record outside of the presence of the jury. The previous

evening, the assistant prosecuting attorney had met with A.H.’s mother, K.H., who

was set to testify as a witness in the state’s case. During the meeting, K.H. went to

the bathroom and became violently ill. K.H. returned to the assistant prosecuting

attorney’s office with no mask on and informed him that she had just vomited. K.H.

proceeded to go home and test positive for COVID-19. The assistant prosecuting attorney informed the court of this situation, and the court instructed the attorney

not to return to court until Monday, provided he tested negative for COVID-19 on

Sunday.

In light of the court’s instruction that the assistant prosecuting

attorney not enter the courtroom, a different assistant prosecuting attorney

appeared in court on August 20, 2021, and the following exchange took place:

PROSECUTOR: So at this point, we need to — the [s]tate needs to know from the [c]ourt exactly what the parameters and rules are for when [the assistant prosecuting attorney] can return, also what the plan is for the exposure, both to the mother of the victim and the victim, as both are clearly necessary witnesses in this trial.

THE COURT: They are clearly necessary [witnesses]. They can appear by Zoom.

The defense may argue that’s unfair. You want them here in person so the jury can see them.

Hey, I didn’t [create] a pandemic. This is a situation I’m dealing with, and an appellate court — many appellate courts will be dealing with this issue across the country.

DEFENSE COUNSEL: May I reply?

THE COURT: Yes.

DEFENSE COUNSEL: I am at peace with whatever path you take. We’re not asking for anything other than to continue with this trial. But it is worth noting that our [acquiescence] to have these two doctors testify via Zoom as a convenience and a stipulation is in no way indicative of our ability to attempt to stipulate that these witnesses, [K.H. and A.H.,] these facts intensive witnesses, to come and talk in this courtroom.

I’m asking the [c]ourt not to have them testify via Zoom, and that’s, by the way, why [an additional defense counsel] is here and follow-up if you require further elaboration on this point. We would object to having them testify via Zoom. It’s violative of, number one, his right to effective assistance of counsel, which the Sixth Amendment guarantees, as well as the right of confrontation in both the Ohio and the United States constitutions.

Thank you.

THE COURT: All right. I understand that, and that is an issue, but I also have a trial on the way and I don’t think that I can have a jury wait two weeks on the chance that either one of them will be healthy enough to come back in and resume testimony. [Defense counsel 2?]

DEFENSE COUNSEL 2: Yes, Your Honor. If the Court pleases. With respect to — my understanding is that it was the alleged victim’s mother who got sick in the prosecutor’s office yesterday.

THE COURT: Yes.

DEFENSE COUNSEL 2: So to start with, if we can divide these two witnesses up, may I inquire as to the basis for believing that the alleged victim cannot come to court just the same way that the prosecutor could join us on Monday. I’m just —

THE COURT: No, no, I understand. The mother tested positive. She is not coming into our courtroom. She can appear by Zoom. If [A.H.], as with [the assistant prosecuting attorney], tests negative, she can come in. If she doesn’t, that’s why I’m saying then she may be appearing by Zoom.

Again, this is not a perfect solution to a case. I wish we were two years ago and we would have everybody here. They’d all have a chance to talk, the jury could deliberate and we’d have a result based upon a neutral and fair trial. I think the parties still get a fair trial, but these are just awkward circumstances. [Prosecutor]?

PROSECUTOR: So essentially, Your Honor, then we’re just — the State would obviously ask for a reasonable continuance until Monday so that the prosecutor who is assigned to the case, you know, can return to trial. Also just looking for some guidance if, in fact, it were to result a different way, if [he’s] getting tested, say, on Sunday, you know, just the path forward at that point, you know, what we might need to do. So, you know, for right now, I’m just trying to establish what exactly are the ground rules here and what then can the State do to work with them?

THE COURT: The ground rules are that in an abundance of caution, I’m not permitting him to come in here.

PROSECUTOR: Okay.

THE COURT: My understanding is that the alleged victim’s mother vomited, came into his office in close proximity to him for a period of time without a mask, and he’s like, you need to go home.

PROSECUTOR: Yes.

THE COURT: But that, to me, is a high-risk situation for him. If he is tested – so it would be three to five days they say you should be tested, if he tests negative on Sunday or Monday, then he can be back here.

PROSECUTOR: Okay.

THE COURT: I’m not trying to prevent anybody or cause undue hardship for any party, all right?

The parties then continued to discuss the logistics of what, if anything, could take

place that day in the absence of the assistant prosecuting attorney who had been

assigned to this case since February 2020.

Ultimately, the state requested a continuance until Monday, August

23, 2021, defense counsel objected to any witnesses other than the two expert

witnesses testifying via Zoom, and the court granted the state’s request to continue

the case until Monday.

On Monday, August 23, 2021, the assistant prosecuting attorney

returned and resumed his presentation of the state’s case. The state called Dr. Kristi

Johnson (“Dr. Johnson”), an obstetrician and gynecologist employed at the Columbiana County Community Action Agency in Lisbon, Ohio. Dr. Johnson

testified that she met A.H. when Cleveland brought her in for care in February 27,

2020. Dr. Johnson also met with A.H. two weeks later for a follow-up appointment,

at which point she informed A.H. that she had tested positive for bacterial vaginosis

and herpes. Dr. Johnson testified that the primary method of transmission is

sexual, but you can get herpes through nonsexual touching.

The state also called Andrea Eshelman (“Eshelman”), a nurse

practitioner also employed at the Columbiana County Community Action Agency.

Eshelman testified that she saw A.H. when Cleveland brought her in for care

because she was not sleeping well and she was withdrawn following a trauma.

Eshelman testified that Cleveland told her that Crawford had raped A.H., and A.H.

subsequently confirmed this to Eshelman. Eshelman prescribed A.H. medicine for

depression, anxiety, and trouble sleeping. Eshelman testified that she had two in-

person appointments with A.H., followed by three or four telehealth appointments.

Dr. Johnson, Eshelman, and Cleveland testified remotely via Zoom

without defense objection.

The state also called Patricia Wolanski (“Wolanski”), a lab supervisor

at MetroHealth. Wolanski testified that on October 15, 2020, she conducted a

pathology test on Crawford; the results of the test showed that he was positive for

herpes.

On August 24, 2021, the state informed the court that it had received

documentation confirming K.H.’s COVID-19 diagnosis and recommending that she isolate for 14 days, signed by a nurse practitioner. Defense counsel renewed their

objection to K.H. testifying remotely via Zoom. The court overruled this objection.

K.H., testifying remotely via Zoom, stated that she was A.H.’s mother

and that Crawford was A.H.’s biological father. K.H. testified that she and A.H. had

not seen Crawford for some time until November 2019, when he began trying to

spend more time with A.H. K.H. testified that she allowed this because she wanted

A.H. to have a relationship with her father and thought that it would be good for

her. K.H. explained that she and Crawford communicated primarily through text

messages, and that around December 2019 and January 2020, some of the

messages Crawford was sending seemed “off” or “unusual.”

K.H. testified that around Christmas 2019, she received a text

message from Crawford saying that his girlfriend — Hinton — was upset with him

and telling lies because Crawford was “trying to cut her off.” Specifically, Crawford

said that Hinton was alleging that he had sexual contact with A.H. K.H. testified

that initially, she did not believe this, and she continued letting Crawford have

visitation with A.H. K.H. testified that she began noticing changes in A.H.’s

personality and behavior, such as A.H. not listening to her and spending more time

outside of the house. At one point, A.H. ran away, and when K.H. told Crawford

this, he told her not to look for A.H. or call the police. When A.H. had been gone

for approximately one week, K.H. realized that she was with Crawford. K.H., who

has lupus, was hospitalized when A.H. got home, and K.H. had someone bring A.H.

to the hospital. K.H. also testified that she found A.H. with a cellphone. Upon

looking through the phone, K.H. realized that A.H. had been using this phone to

covertly communicate with Crawford.

The state also called A.H. She testified that she started spending

time with Crawford in late November 2019, when she was 15 years old, and she was

happy to spend time with him because he had not been around much prior to that.

A.H. testified that she began spending most weekends with Crawford. She testified

that while they would eat together and visit her family, they also “smoked together,

and we did stuff that a dad wouldn’t do with his kids.”

A.H. testified that she had spent a weekend at Hinton’s house in

December 2019, and after that weekend, she had to talk to a police detective. A.H.

testified that initially, she did not tell the detective about anything inappropriate

that had happened with Crawford because she was scared and did not want to get

him in trouble.

A.H. described getting into an argument with K.H. and leaving,

testifying that she called Crawford when she left. A.H. testified that when she

returned, K.H. took her to the hospital, but she again did not tell anyone the truth

about what had happened with Crawford. A.H. also testified that K.H. had

purchased a cellphone for her, but that phone was taken away as a punishment, and

subsequently, her half-brother’s mother had given her a second cellphone, that she

used to secretly communicate with Crawford. A.H. testified that when K.H. found the phone, she tried to get it back quickly because if K.H. saw what was on the

phone, “then she would know everything.”

A.H. testified that she was placed with Cleveland and stated she felt

comfortable with Cleveland and eventually confided in her, telling her that she and

Crawford “had sex at a couple of his girlfriends [sic] house.” A.H. also testified that

she subsequently told Moore what had happened as well, and testified that she

wrote out a statement. A.H. read her handwritten statement, in which she

described that Crawford digitally penetrated and engaged in vaginal intercourse

with her.

A.H. went on to testify about another incident at Crawford’s

girlfriend’s house, in which Crawford came into the room with her, locked the door,

did not let her leave the room, and vaginally raped her. 1 A.H. testified that after

this incident, Crawford took her to the store to get a douche so “there wouldn’t be

any trace” and then took her to someone’s house so that she could use it. Crawford

told A.H. not to tell anyone what had happened and said that things would be bad.

A.H. testified that these threats from Crawford were the reason she initially lied to

1 A.H. provided conflicting testimony about where and when this incident occurred. Initially, A.H. testified that she could not remember where this incident took place. At another point, she testified that it took place at “Miranda[’s] house,” possibly referring to Crawford’s ex-girlfriend Miranda McCoy. A.H. testified that before this incident occurred, she and Crawford smoked marijuana together, which McCoy testified that she had seen. However, A.H. also testified that this incident took place in late December 2019, which, according to McCoy’s testimony, was after McCoy and Crawford ended their relationship. the police as detailed below in the discussion of Cleveland police detective Richard

Tusing’s testimony.

A.H. also testified that Cleveland took her to the doctor, where she

was diagnosed with herpes; A.H. testified that Crawford gave her herpes.

A.H. testified regarding the text messages she exchanged with

Crawford, confirming that she sent him a message asking if he ejaculated inside of

her because she was concerned that she might be pregnant. Subsequently, A.H.

messaged Crawford to tell him that K.H. was taking her to the hospital, to which he

responded that if they tried to give her a pregnancy test, not to let them. A.H.

testified that Crawford then told her to erase their text messages.

Cleveland police detective Richard Tusing (“Detective Tusing”)

testified that he had previously worked in the sex crimes and child abuse unit.

Detective Tusing testified that he was experienced in forensic interviewing with

alleged child victims. He testified that he was assigned to this case in January 2020,

at which point he reached out to Hinton, who sent him the photos she had taken of

messages on A.H.’s phone. He subsequently reached out to K.H. and set up a time

to interview A.H. and K.H. Detective Tusing testified that in his first several

interactions with A.H., she was not forthcoming. He explained that this was not

unusual with child victims of sex crimes.

Detective Tusing testified that in February 2020, he traveled with

Moore to A.H.’s foster home and set up a camera for Moore’s interview. He also testified that K.H. gave him the Samsung cellphone that she had discovered A.H.

using, and he turned that phone over for forensic examination.

Timothy Clark (“Clark”), a special investigator for the Cuyahoga

County Prosecutor’s Office, testified that he received a Samsung cellphone from

Detective Tusing for examination. Clark testified that because the charging port on

the phone was damaged, he was unable to use a software program to digitally

extract data from the phone. Instead, Clark took photos of messages on the phone.

At the close of the state’s case, defense counsel made an oral motion

for acquittal pursuant to Crim.R. 29. The court denied this motion. The defense

rested without calling any witnesses or presenting evidence, and defense counsel

renewed its Crim.R. 29 motion. The court again denied this motion.

The jury began deliberations on August 25, 2021. On August 27,

2021, the court addressed an issue that had arisen the previous day, August 26, on

the record. The bailiff stated she was called to the jury room in the afternoon on

August 26 and upon reaching the jury room, the bailiff observed juror No. 10

running out of the room, crying and upset. The bailiff brought juror No. 10 to her

office to regain her composure. Juror No. 10 then refused to return to the jury

room. The bailiff then decided to release the jury early, informing juror No. 10 first

and then returning to the jury room to inform the other jurors that they were

released and instructing them to report the next morning. The state and defense

counsel agreed that deliberations should continue without any additional action by

the court. Later that day, the parties went back on the record to address a jury

question from the foreperson: “we have a juror that is asking to be excused and they

are saying they are set on that, even though we have tried to work through our

problems.” The court then addressed the jury and asked if they have been

discussing the case, and if they believe that further discussion of the case would be

helpful. All jurors except juror No. 10 indicated that they believed further

discussion of the case would be helpful. The court then sent the jury, with the

exception of juror No. 10, back to the jury room, and proceeded to question juror

No. 10 individually. The following exchange, in relevant part, took place:

THE COURT: And are you the person that they are referring to as asking to be excused?

JUROR NO. 10: Yes.

THE COURT: Could you maybe — and, again, we must not know the status of the deliberations.

JUROR NO. 10: Uh-huh.

THE COURT: But why do you feel that you can’t continue?

JUROR NO. 10: Well, I might cry, just so you know. I feel I’m in a hostile environment. The first day I made a comment because we are supposed to be discussing things and somebody flung a paper at me. One of the things I pointed out — we talked about evidence and everybody pointed out that it wasn’t introduced in evidence, but it’s written on a paper. And you guys gave us that because it’s evidence. So I’m looking at that as the way I’m feeling and talking. And I think — I mentioned one of the things on the board, I think it was written down by the defense attorney, about, well, you know in our everyday life —

THE COURT: Right.

JUROR NO. 10: — and I was just shut out about that. I have been accused of being sexist and racist. And, again, I thought we were supposed to be talking about things. So I have been accused of that. And we were supposed to talk about it today. And it didn’t stop. I feel some of the comments that the jurors are making are inappropriate and I don’t know how much detail that you want me to get into.

***

THE COURT: But do you think you can fulfill that duty and continue to deliberate, listen, and vote your conscience in conjunction with listening to others?

JUROR NO. 10: I would say no, because I still feel I’m being put in a hostile environment.

THE COURT: So you think that you would not be able to continue and make a fair decision in this matter?

JUROR NO. 10: I don’t know how that’s possible with how they’re acting back there. I mean, I know what I want. I mean, I already know how I want to vote, and I have been wanting to vote, and I don’t know how long people need to talk about something to make up their mind. I mean — and then I think —

THE COURT: Well, we have deliberations that go from one day to five or six days.

The court went on to discuss the difficulties of jury deliberations with juror No. 10.

The state suggested excusing juror No. 10 and bringing in the

alternate juror. Defense counsel submitted that the jury was likely deadlocked 11-1

and therefore asked the court to declare a mistrial. The court subsequently

addressed the entire jury, reminded the jury to be polite and cordial and

admonished them to avoid name-calling or casting aspersions. Ultimately, the

court instructed the jury to continue deliberating.

On August 27, 2021, the jury found Crawford guilty of two counts of

rape and three counts of sexual battery, and not guilty of one count of kidnapping and one count of rape. The court referred Crawford to the probation department

for a presentence investigation.

On September 30, 2021, the court held a sentencing hearing. The

court informed Crawford of the registration requirements for sexual offenders.

Defense counsel addressed the court. The parties agreed that both rape counts

would not merge for sentencing, as well as that two of the sexual battery charges

would merge with the rape counts, such that he would be sentenced on two counts

of rape and one count of sexual battery. The state addressed the court, stating that

A.H. was in the courtroom but chose not to make a statement. The state asked the

court to consider imposing consecutive sentences.

The court ultimately sentenced Crawford to 10 to 15 years on each

rape count, to be served concurrently to each other, and 4 years on the sexual

battery count, to be served consecutively, for a total aggregate sentence of 14 to 19

years. The court also imposed court costs.

Crawford appeals, presenting the following eight assignments of

error, verbatim, for our review:

I. The remote testimony of K.H. violated appellant’s confrontation rights under the Sixth Amendment to the United States Constitution and Art. I, Sec. 10 of the Ohio Constitution and his constitutional rights to due process and a fair trial where the reason was to accommodate K.H.’s temporary illness but the state was allowed a continuance to enable the prosecutor to appear in person.

II. The court erred by admitting evidence and testimony that was not properly authenticated and without establishing a proper chain of custody. III. The trial court erred when it denied appellant’s motion for acquittal under Crim.R. 29 because the state failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions.

IV. Appellant’s convictions are against the manifest weight of the evidence.

V. It was plain error and the appellant’s Sixth Amendment right to effective assistance of counsel was violated when evidence was admitted without objection in violation of evidence rules 401, 402, 403, and 404.

VI. Appellant was denied a fair trial when improper statements [were] made during closing arguments in violation of appellant’s constitutional rights.

VII. The trial court erred by denying the motion for mistrial based on Juror 10’s [disclosures] during deliberations.

VIII. Appellant’s sentence is invalid because it was imposed pursuant to the Reagan Tokes Act Amendments, S.B. 201, which violates the United States and Ohio Constitutions.

Legal Analysis

I. Remote Testimony

In Crawford’s first assignment of error, he argues that K.H.’s remote

testimony denied him the right to confront witnesses against him in violation of

Article I, Section 10 of the Ohio Constitution and the Sixth Amendment to the

United States Constitution.

We review the question of whether a criminal defendant’s rights

under the Confrontation Clause have been violated de novo. In re H.P.P., 8th Dist.

Cuyahoga Nos. 108860 and 108861,

, citing State v. Smith,

,

(8th Dist.), citing United States v.

Robinson,

(6th Cir. 2004).

Under both the federal and Ohio constitutions, a criminal defendant

has the right to confront witnesses. Specifically, the Sixth Amendment to the

United States Constitution provides that “[i]n all criminal prosecutions the accused

shall enjoy the right * * * to be confronted with the witnesses against him.” Article

I, Section 10 of the Ohio Constitution states that “[i]n any trial, in any court, the

party accused shall be allowed * * * to meet the witnesses face to face * * *.” While

the United States Supreme Court has interpreted the Confrontation Clause as

reflecting a preference for face-to-face confrontation, it has explained that the

preference “‘must occasionally give way to considerations of public policy and the

necessities of the case.’”

citing Maryland v. Craig,

,

,

(1990).

Thus, the right to confrontation is not absolute, and the primary

concern of the Confrontation Clause is “to ensure the reliability of evidence against

a criminal defendant by subjecting it to rigorous testing in the context of an

adversary proceeding before the trier of fact.”

. This court has

held that to qualify as an exception to the face-to-face confrontation requirement,

“‘the procedure must (1) be justified, on a case-specific finding, based on important

state interests, public policies, or necessities of the case and (2) must satisfy the

other three elements of confrontation — oath, cross-examination, and observation

of the witness’s demeanor.” In re H.P.P., 8th Dist. Cuyahoga Nos. 108860 and 108861,

, quoting State v. Marcinick, 8th Dist. Cuyahoga No.

89736,

, quoting Harrell v. State,

(Fla. 1998), citing

.

Here, with respect to the first requirement, the court’s decision to

permit K.H. to testify remotely via Zoom was justified on a case-specific finding

based on important state interests and public policies. Specifically, the record

reflects that in addition to long-term health concerns that made her specifically

vulnerable, K.H. tested positive for COVID-19 midway through the trial and was

instructed by a health care professional to isolate for 14 days. The court considered

the risks associated with K.H. testifying in person, noting that doing so would be

endangering the court, the parties, and most significantly to the court, and the

members of the jury. The court further noted that given the documentation of

K.H.’s COVID-19 infection, she would not be permitted to enter the building in light

of the rules put in place by the Cuyahoga County Board of Health in response to the

COVID-19 pandemic at that time.

This court has repeatedly held that allowing a witness to testify

remotely via video does not violate a defendant’s confrontation rights. State v.

Frierson, 8th Dist. Cuyahoga No. 106841,

; State v. Sheline, 8th Dist.

Cuyahoga No. 106649,

; State v. Eads, 8th Dist. Cuyahoga No.

87636,

. Further, in response to the specific public-health context

present in this case, the First District has held that “[p]reventing the spread of

COVID-19 is an important public policy that may warrant an exception to face-to- face confrontation under appropriate circumstances.” State v. Banks, 1st Dist.

Hamilton Nos. C-200395 and C-200396,

, citing United

States v. Donziger, S.D.N.Y. Nos. 19-CR-561 and 11-CV-691,

, 2 (Aug. 31, 2020). The court in Banks went on to ultimately hold that

remote testimony did not violate the Confrontation Clause even though the witness

who testified remotely in that case did not personally express any concerns about

COVID-19, nor was there any evidence that the witness was in a high-risk group for

exposure to COVID-19.

With respect to the second requirement, our review of the record

shows that K.H.’s testimony satisfied the other three elements of confrontation —

oath, cross-examination, and observation of the witness’s demeanor. The record

reflects that K.H. testified under oath and was subject to cross-examination. The

record also does not indicate, nor does Crawford assert, that any party or member

of the jury had any difficulty in observing K.H.’s demeanor while she was testifying,

given that K.H. appeared on a large video screen in the courtroom visible to

everyone.

Further, while Crawford reiterates potential concerns involved in

remote testimony, such as whether K.H. had anyone else in the room with her and

whether she would be referring to notes or other inappropriate reference materials

during her testimony, nothing in the record indicates that these concerns

materialized at trial. The court confirmed with K.H. that no one was in the room

with her when she was testifying, and K.H. did not reference anything other than exhibits that had been sent to her in advance by the state. Indeed, Crawford does

not point to anything that presented an actual hindrance of his confrontation rights,

nor has our review of the record revealed any such hindrance as a result of remote

witness testimony.2 Further, Crawford asserts that the court could have ordered a

continuance to allow K.H. to testify in person, particularly because the court

ordered a continuance after the assistant prosecuting attorney was exposed to

COVID-19. As a practical matter, we note that there is a significant difference

between ordering a one-day continuance to confirm that an individual exposed to

COVID-19 has not contracted the virus, and a potentially indefinite continuance to

allow an individual to recover from the virus. Furthermore, while the court

theoretically could have ordered such a continuance, the Confrontation Clause does

not require a court to indefinitely delay a trial — inconveniencing the jury, the court,

the parties, and quite possibly prejudicing the defendant — in order to ensure face-

to-face confrontation.

While we agree with Crawford that the case law in this area continues

to develop, none of the cases he cited warrant a different outcome in this case.

Following a thorough review of the specific circumstances of this case, we cannot

2 We note that Crawford did not object to the remote testimony of Dr. Johnson, Eshelman, or Cleveland, all of whom were permitted to testify remotely in part due to their location in Columbiana County, several hours south of Cleveland. While we are mindful of the relative significance of K.H.’s testimony, we also note that Crawford failed to identify any difference in the remote testimony of these three witnesses compared to K.H. that would amount to a violation of his confrontation rights. conclude that K.H.’s remote testimony violated Crawford’s confrontation rights.

Therefore, his first assignment of error is overruled.

II. Authentication of Evidence

In his second assignment of error, Crawford argues that the court

erred by admitting evidence that was not properly authenticated and without

establishing a proper chain of custody. Specifically, Crawford argues that the state’s

introduction of evidence in the form of numerous text messages and related

testimony was not properly authenticated. In the alternative, Crawford argues that

the state failed to properly establish a chain of custody for the cellphone. We

disagree.

The decision whether to admit or exclude evidence is subject to

review under an abuse-of-discretion standard, and reviewing courts will not disturb

evidentiary rulings absent a clear showing that the trial court abused its discretion

and materially prejudiced a party. State v. Barnes, 8th Dist. Cuyahoga No. 104045,

, citing State v. Lyles,

,

(1989).

Evid.R. 901(A) provides that “[t]he requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent

claims.” To satisfy this requirement, “[t]he proponent must only demonstrate a

‘reasonable likelihood’ that the evidence is authentic, which may be supplied by the testimony of a witness with knowledge.” State v. Roseberry,

,

(8th Dist.), citing Evid.R. 901(B).

Here, the state satisfied this requirement by introducing testimony

from multiple witnesses — Hinton, K.H., and A.H. — that the text messages

introduced at trial were text messages between Crawford and A.H. The witnesses

identified Crawford’s phone number based on their own personal knowledge. They

also identified that the Samsung cellphone was A.H.’s, or was regularly used by A.H.

A.H. herself testified that she sent and received the messages, as well as how she

got the cellphone and how she used it to communicate with Crawford.

While Crawford points to alleged discrepancies in the record as to

the location of the cellphone, the ownership of the cellphone, and the functionality

of the cellphone, none of these claimed inconsistencies has any bearing on the

state’s authentication of the text messages. Even if the cellphone was lost at some

point during the investigation, or was purchased by someone other than A.H., that

does nothing to undermine the testimony from multiple witnesses authenticating

the text messages recovered from the phone.

Crawford’s chain of custody argument is also not well taken. Chain

of custody is established by direct testimony or by inference. State v. Conley,

,

(3d Dist. 1971). Here, A.H. testified that she

was given the phone by her half-brother’s mother and used the phone beginning in

late 2019 until her mother, K.H., confiscated it. K.H. then turned it over to

Detective Tusing, who in turn delivered it to Clark to conduct a forensic examination. Even if there was a break in the chain of custody, questions regarding

a chain of custody go to the weight, not the admissibility, of evidence. State v.

Pointer, 8th Dist. Cuyahoga No. 100608,

, citing State v.

Richey,

,

(1992).

In light of the foregoing, we cannot conclude that the trial court

abused its discretion in admitting text message evidence. Therefore, Crawford’s

second assignment of error is overruled.

III. Crim.R. 29 Motion for Acquittal

In his third assignment of error, Crawford argues that the trial court

erred when it denied his motion for acquittal under Crim.R. 29 because the state

failed to present sufficient evidence to establish beyond a reasonable doubt that he

was guilty of rape and sexual battery. Specifically, Crawford argues that A.H. was

inconsistent throughout the investigation in this case with respect to whether,

where, and when any sexual contact occurred. He also emphasizes that this case

involved delayed disclosure and besides A.H.’s allegations, “there is no evidence

that any of her delayed disclosures are true.”

Crim.R. 29(A) provides that a court “shall order the entry of the

judgment of acquittal of one or more offenses * * * if the evidence is insufficient to

sustain a conviction of such offense or offenses.” “Because a Crim.R. 29 motion

questions the sufficiency of the evidence, ‘[w]e apply the same standard of review

to Crim.R. 29 motions as we use in reviewing the sufficiency of the evidence.’”

Fairview Park v. Peah, 8th Dist. Cuyahoga No. 110128,

, ¶ 37, quoting State v. Tenace,

,

,

,

¶ 37.

A sufficiency challenge requires a court to determine whether the

state has met its burden of production at trial and to consider not the credibility of

the evidence but whether, if credible, the evidence presented would sustain a

conviction. State v. Thompkins,

,

(1997).

The relevant inquiry is whether, after viewing the evidence in a light most favorable

to the prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt. State v. Jenks,

,

(1991), citing Jackson v. Virginia,

,

,

(1979).

Crawford’s argument does not direct this court’s attention to any

element of any offense for which the state failed to present sufficient evidence. In

contrast to Crawford’s assertion that A.H.’s allegations are unsupported by other

evidence, the record reflects that the state presented ample evidence in the form of

witness testimony, text messages, and physical evidence showing that Crawford

raped A.H. Further, to the extent that his argument is based on A.H.’s credibility,

or lack thereof, this argument is irrelevant to a Crim.R. 29 question and will be

addressed more thoroughly in our discussion of Crawford’s fourth assignment of

error. Having reviewed the record in its entirety, and viewing the evidence in the

light most favorable to the state, we conclude that any rational trier of fact could have found the elements of rape and sexual battery were proven beyond a

reasonable doubt. Crawford’s third assignment of error is overruled.

IV. Manifest Weight

In Crawford’s fourth assignment of error, he argues that his

convictions are against the manifest weight of the evidence. Specifically, he argues

that the evidence against him — particularly the testimony from A.H. — was poor

and unreliable.

Unlike a challenge to the sufficiency of the evidence, a manifest

weight challenge attacks the quality of the evidence and questions whether the state

met its burden of persuasion at trial. State v. Hill, 8th Dist. Cuyahoga No. 99819,

, citing State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-

Ohio-3598, ¶ 13. When reviewing a manifest weight challenge, a court reviews the

entire record, weighing all evidence and reasonable inferences and considering the

credibility of the witnesses, to determine whether the trier of fact clearly lost its way

and created such a manifest miscarriage of justice that the conviction must be

reversed. Thompkins,

,

.

Although we consider credibility when reviewing a manifest weight

challenge, “issues relating to the credibility of witnesses and the weight to be given

are primarily for the trier of fact.” State v. Matthews, 8th Dist. Cuyahoga No. 97916,

, citing State v. Thomas,

,

(1982). Further, the trier of fact is free to believe all, part, or none of the testimony

of each witness.

citing State v. Caldwell,

,

(4th Dist. 1992). Therefore, appellate courts will generally defer conflicts in the

evidence to the trier of fact who had the opportunity to hear witnesses and observe

their demeanor.

citing State v. Awan,

,

(1986).

Crawford argues that A.H. admitted that she lied to the police and

others numerous times over the course of the investigation in this case. He also

points out, presumably to attack A.H.’s credibility, that she exhibited bad behavior

that had nothing to do with Crawford. He also reiterates his arguments that the

text message evidence was not properly authenticated, and in the absence of such

authentication or corroborative evidence, could have easily been manipulated.

This court has repeatedly held that the absence of corroborative

evidence does not render a rape conviction against the manifest weight of the

evidence. State v. Frazier, 8th Dist. Cuyahoga No. 107680,

,

citing State v. Hruby, 8th Dist. Cuyahoga No. 81303,

, ¶ 12.

Furthermore, the state presented evidence at trial in the form of testimony from

numerous witnesses that in child sex abuse cases, delayed disclosure is common.

The state also presented additional testimony that while A.H. was not initially

forthcoming, this is common in child sex abuse cases for a number of reasons,

including shame, fear, and confusion. A.H. herself confirmed that she initially lied

because was afraid, confused, and did not want her father to get in trouble.

Having reviewed the entire record, we cannot conclude that the jury

clearly lost its way and created a manifest miscarriage of justice. Crawford’s convictions were not against the manifest weight of the evidence. Therefore,

Crawford’s fourth assignment of error is overruled.

V. Ineffective Assistance of Counsel

In his fifth assignment of error, Crawford argues that it was plain

error and violated his right to effective assistance of counsel when evidence was

admitted without objection in violation of Evid.R. 401, 402, 403, and 404.

Specifically, Crawford argues that it was plain error for the court to admit testimony

regarding Crawford’s marijuana use with A.H. and testimony referencing

Crawford’s probation officer. He argues that the failure of defense counsel to object

to this testimony was constitutionally ineffective.

Crim.R. 52(B) provides that “plain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of

the trial court.” In order to find plain error, it must be determined that, but for the

error, the outcome of the proceeding clearly would have been different. State v.

Hostacky, 8th Dist. Cuyahoga No. 100003,

, citing State v. Long,

,

(1978).

Crawford has not established that but for this testimony, the

outcome of the proceeding would have been different. McCoy, Hinton, and A.H.

testified that Crawford smoked marijuana with A.H. During the state’s direct

examination of K.H., K.H. described Crawford’s comments about Hinton: “what he

said was she had been calling around to his probation officer and other people

trying to, like, ruin his name and get him in trouble.” There was no mention of why Crawford was on probation, or any additional inquiry or reference to probation or

a probation officer. Even if none of the aforementioned testimony had been

admitted at trial, the state presented significant and persuasive evidence that

Crawford raped A.H. These isolated statements do not amount to plain error.

The Sixth Amendment of the United States Constitution states that,

“in all criminal prosecutions, the accused shall enjoy the right to [* * *] have the

assistance of counsel for his defense.” The United States Supreme Court has

reasoned that the right to counsel for one’s defense entails having the right to

effective assistance of counsel. McMann v. Richardson,

,

,

(1970).

To that effect, the United States Supreme Court has established the

elements required to prevail on an ineffective assistance of counsel claim, which the

Ohio Supreme Court has adopted. See Strickland v. Washington,

,

,

(1984); State v. Bradley,

,

(1989). One must show two things to succeed on such a

claim: (1) counsel substantially violated an essential duty to the client, which

requires showing that counsel’s representation fell below an objective standard of

reasonableness; and (2) the violation prejudiced the defense, which requires

showing that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedings would have been different.

.

Crawford fails to make any argument as to either prong of the

Strickland test. Further, we reiterate that our review of the record shows that even if defense counsel had objected to this testimony, there is not a reasonable

probability that the outcome of the proceedings would have been different.

Therefore, we decline to find that he received ineffective assistance of counsel.

Crawford’s fifth assignment of error is overruled.

VI. Closing Arguments

In his sixth assignment of error, Crawford argues that he was denied

a fair trial when the assistant prosecuting attorney made improper statements

during closing arguments that violated his constitutional rights. Specifically,

Crawford argues that it was improper for the state to provide a “translation” of

Crawford’s text messages and then argue that he had a “distinctive fingerprint”

when communicating through text. Crawford also argues that the state improperly

urged the jury to consider the fact that Crawford smoked marijuana with A.H. when

it stated “it does show that he was breaking the law.”

Ohio courts have held that “the prosecution is entitled to a certain

degree of latitude in summation.” State v. Treesh,

,

(2001), citing State v. Grant,

,

(1993). The prosecutor may draw reasonable inferences from the evidence

presented at trial, and may comment on those inferences during closing argument.

citing State v. Smith,

,

(1997). In

determining whether the allegedly improper remarks were prejudicial to Crawford,

we view the state’s closing argument in its entirety.

citing State v. Moritz,

,

(1980). Further, when no objection is made for claims of prosecutorial misconduct, “appellate counsel would be required to

show that this testimony and prosecutorial misconduct amounted to plain error.”

State v. Newman, 8th Dist. Cuyahoga No. 107060,

, ¶ 8.

Because defense counsel did not object to these allegedly prejudicial

statements at trial, we review for plain error. With respect to the state’s attempt to

“translate” Crawford’s text messages and point out a distinct writing style, these

statements did not affect a substantial right and do not amount to plain error.

Instead, the state was merely summarizing the content of the messages and

clarifying spelling and grammar mistakes. With respect to the statements about

smoking marijuana with A.H., it appears that the state was attempting to argue that

this marijuana usage was an attempt to gain A.H.’s trust and develop a relationship

with her before sexually abusing her. Viewing the statements in the context of the

closing argument in its entirety, and in the greater context of the trial as a whole,

we are not persuaded by Crawford’s argument that this affected a substantial right.

Therefore, Crawford’s sixth assignment of error is overruled.

VII. Motion for Mistrial

In his seventh assignment of error, Crawford argues that the trial

court erred when it denied his motion for mistrial during the discussion of how to

address the situation that arose with juror No. 10 during deliberations. He

specifically argues that the integrity of the verdict was compromised by forcing

juror No. 10 to continue deliberations after she stated that she would be unable to

continue deliberating in what she described as a hostile environment. The grant or denial of a motion for mistrial rests within the sound

discretion of the trial court. State v. Eddy,

,

, ¶ 51 (8th

Dist.), citing State v. Murphy, 4th Dist. Scioto No. 09CA3311,

. The term abuse of discretion connotes more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore,

,

(1983).

“A mistrial should not be ordered in a criminal case merely because

some error or irregularity has intervened, unless the substantial rights of the

accused or the prosecution are adversely affected.” Id. at ¶ 52, quoting State v.

Reynolds,

,

(2d Dist. 1988). The grant of a

mistrial is necessary only when a fair trial is no longer possible.

citing State v.

Franklin,

,

(1991), citing Illinois v. Somerville,

,

,

(1973).

Our review of the record, including the court’s prolonged

questioning of juror No. 10 about her concerns and her desire to be excused, do not

support a conclusion that the trial court’s decision to instruct the jury to continue

deliberations after juror No. 10 got upset was unreasonable, arbitrary, or

unconscionable. The court inquired as to why juror No. 10 considered the jury

room a hostile environment and ultimately concluded that while there were likely

significant disagreements among the jurors, this would not prevent them from

reaching a verdict. Further, after being instructed to continue deliberating and warned to be polite to each other during deliberations, the jury was able to reach a

unanimous verdict. In a poll of the jury, each juror, including juror No. 10,

confirmed his or her verdict. Crawford’s assertion that juror No. 10’s outburst

amounted to an irregularity that would preclude a fair trial is not well-taken. For

these reasons, Crawford’s seventh assignment of error is overruled.

VIII. Reagan Tokes

In his eighth and final assignment of error, Crawford argues that the

trial court erred by imposing an indefinite sentence pursuant to The Reagan Tokes

Law, enacted under S.B. 201 and R.C. 2901.011. Specifically, Crawford argues that

his indefinite sentence violates the separation of powers doctrine, his due process

rights, and his right to a trial by jury. Crawford’s arguments are overruled pursuant

to this court’s en banc decision in State v. Delvallie,

,

(8th Dist.), which overruled the challenges presented in this appeal to S.B. 201.

Therefore, we find that Crawford’s sentence pursuant to Reagan Tokes was not a

violation of his constitutional rights. Crawford’s eighth assignment of error is

overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and MARY J. BOYLE, J., CONCUR

N.B. Judge Mary Eileen Kilbane joined the dissenting opinion by Judge Lisa B. Forbes and the concurring in part and dissenting in part opinion by Judge Anita Laster Mays in Delvallie and would have found the Reagan Tokes Law unconstitutional.

Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes Law are unconstitutional.