[Cite as State v. C.W., 2016-Ohio-1558.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellant                     :    Appellate Case No. 26893
                                                 :
 v.                                              :    Trial Court Case No. JC2015-3550
                                                 :
 C.W.                                            :    (Appeal from Common Pleas Court-
                                                 :    Juvenile Division)
         Defendant-Appellee                      :
                                                 :

                                            ...........

                                           OPINION

                              Rendered on the 15th day of April, 2016.

                                            ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellant

DEANNA DOGGETT JOHNSON, Atty. Reg. No. 0063528, 90 North West Street,
Bellbrook, Ohio 45305
       Attorney for Defendant-Appellee

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




WELBAUM, J.
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       {¶ 1} In this case, Plaintiff-Appellant, the State of Ohio, appeals from a juvenile

court judgment denying the State’s motion to admit a minor’s out-of-court statement

pursuant to Evid.R. 807. The State contends that the trial court abused its discretion in

denying the motion because the State presented sufficient evidence to allow admission

of the minor’s statement.

       {¶ 2} We conclude that the State failed to provide a prima facie showing of

independent proof of the act of physical violence. The trial court, therefore, did not err in

denying the State’s request to admit hearsay evidence under Evid.R. 807. Accordingly,

the judgment of the trial court will be affirmed.



                               I. Facts and Course of Proceedings

       {¶ 3} In June 2015, the State filed a complaint in juvenile court alleging that

Defendant-Appellee, C.W., knowingly caused or attempted to cause harm to L.G. in

violation of R.C. 2903.13(A). The crime alleged was a misdemeanor of the first degree.

       {¶ 4} The incident occurred at a day care center where C.W. had been employed

for three years. The alleged victim, L.G., was three years old at the time, and was

assigned to C.W.’s classroom. On April 21, 2015, when L.G.’s mother asked him how

day care had gone that day, L.G. stated that day care had been fine, but that C.W. had

slapped him. An investigation ensued, and the State subsequently filed its complaint for

Assault against C.W. in juvenile court.

       {¶ 5} In August 2015, the trial court held a competency hearing, and concluded

that L.G. was incompetent to testify. The State then filed a motion to declare the alleged
                                                                                          -3-


victim unavailable, and indicated that it intended to proceed under Evid.R. 807.

       {¶ 6} On October 20, 2015, the trial court held a hearing, at which testimony was

taken from the child’s mother, B.W., and from C.S., the administrator of the day care. In

addition, the court viewed a video that had been taken of the classroom at the time of the

alleged incident. After admitting the video into evidence, the trial court denied the State’s

motion.   Specifically, the court held that the State had failed to meet two of six

requirements for allowing the minor’s out-of-court statement:         (1) demonstration of

physical violence; and (2) independent proof of the act of violence. The State then filed

a notice of appeal and a Crim.R. 12(K) certification, indicating that the appeal was not

being taken for purposes of delay, and that suppression of the State’s evidence had

rendered the State’s proof so weak that any reasonable possibility of effective prosecution

had been destroyed.



                                 II. Alleged Abuse of Discretion

       {¶ 7} The State’s sole assignment of error is as follows:

              The Trial Court Abused Its Discretion When the Court Denied the

       State’s Motion to Admit L.G.’s Out-of-Court Statement at Trial Under Evid.

       R. 807.

       {¶ 8} Under this assignment of error, the State contends that the trial court erred

in denying its motion because the State submitted sufficient evidence to meet all the

requirements of Evid.R. 807. Pursuant to Evid.R. 807(A), out-of-court statements made

by minors under 12 years of age at the time of trial, describing acts of “physical violence”

against the minor, can be admitted if the following requirements are met:
                                                                                    -4-


       (1) The court finds that the totality of the circumstances surrounding

the making of the statement provides particularized guarantees of

trustworthiness that make the statement at least as reliable as statements

admitted pursuant to Evid.R. 803 and 804. The circumstances must

establish that the child was particularly likely to be telling the truth when the

statement was made and that the test of cross-examination would add little

to the reliability of the statement.     In making its determination of the

reliability of the statement, the court shall consider all of the circumstances

surrounding the making of the statement, including but not limited to

spontaneity, the internal consistency of the statement, the mental state of

the child, the child's motive or lack of motive to fabricate, the child's use of

terminology unexpected of a child of similar age, the means by which the

statement was elicited, and the lapse of time between the act and the

statement. In making this determination, the court shall not consider

whether there is independent proof of the sexual act or act of physical

violence.

       (2) The child's testimony is not reasonably obtainable by the

proponent of the statement.

       (3) There is independent proof of the sexual act or act of physical

violence.

       (4) At least ten days before the trial or hearing, a proponent of the

statement has notified all other parties in writing of the content of the

statement, the time and place at which the statement was made, the identity
                                                                                        -5-


       of the witness who is to testify about the statement, and the circumstances

       surrounding the statement that are claimed to indicate its trustworthiness.

       {¶ 9} “[W]hen a court finds that a child is not competent to be a witness, her

testimony is ‘not reasonably obtainable’ pursuant to Evid.R. 807(B)(2).”         (Citations

omitted.) State v. Cardosi, 122 Ohio App.3d 70, 75, 701 N.E.2d 44 (2d Dist.1997).

       {¶ 10} In the case before us, L.G.’s unavailability due to the incompetency finding

was not disputed. However, the trial court held that all the requirements of Evid.R. 807

had not been established, because the State failed to provide sufficient evidence of two

factors: physical violence and independent corroborating evidence.

       {¶ 11} The State contends that a slap sufficiently establishes physical violence for

purposes of Evid.R. 807.      In addition, the State argues that the video presented

independent proof that C.W. slapped L.G. around the head. We review the trial court’s

decision for abuse of discretion. In re A.K., 2d Dist. Montgomery No. 26199, 2015-Ohio-

30, ¶ 16, citing State v. Dever, 64 Ohio St.3d 401, 414, 596 N.E.2d 436 (1992). (Other

citations omitted.)   An abuse of discretion means that the trial court’s “attitude is

unreasonable, arbitrary or unconscionable.” (Citations omitted.) State v. Adams, 62

Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶ 12} The Staff Notes to Evid.R. 807 indicate that its independent proof

requirement “is comparable to the independent proof requirement of the co-conspirator

exception, Evid.R. 801(D)(2)(e),” and that “[t]he rule thus goes beyond the minimum

Confrontation Clause requirements prescribed in * * * [Idaho v. Wright, 497 U.S. 805, 110

S.Ct. 3139, 111 L.Ed.2d 638 (1990)], as is permitted by Wright.”

       {¶ 13} Under Evid.R. 801(D)(2)(e), a co-conspirator’s statement is not admissible
                                                                                        -6-


“until the proponent of the statement has made a prima facie showing of the existence of

the conspiracy by independent proof.” State v. Carter, 72 Ohio St.3d 545, 546, 651

N.E.2d 965 (1995), paragraph three of the syllabus. In Carter, the court held that the

defendant’s tape-recorded statement would have furnished sufficient independent proof

of a conspiracy to permit a hearsay statement to be admitted under this exception. Id.

at 550.

      {¶ 14} A similar approach has been followed in situations involving Evid.R. 807.

For example, independent proof has been found where a defendant confessed to

corroborating facts.   State v. Silverman, 121 Ohio St.3d 581, 2009-Ohio-1576, 906

N.E.2d 427, ¶ 29; State v. Cain, 12th Dist. Brown No. CA2010-06-012, 2011-Ohio-3759,

¶ 44. In sexual abuse cases, we have also held that independent proof of a child’s out-

of-court statements about sexual abuse can be found in “the onset of sexually

inappropriate and suggestive behavior [by the child] * * *.” A.K., 2d Dist. Montgomery

No. 26199, 2015-Ohio-30, at ¶ 29.

      {¶ 15} In the case before us, the State offered a video of C.W.’s classroom on the

day in question as “independent proof” for admission of the hearsay. We have reviewed

the video several times. The video is of very poor quality, and there is no sound. It is

nearly impossible to even see the alleged victim, who was apparently on a cot at the lower

left-hand corner of the screen. The short video shows C.W. putting a cot down on the

floor in the upper part of the screen, placing a blanket over a child on another cot in the

same area, and then walking over to the area where L.G.’s cot was located. All that can

be seen at that point is C.W. bending quickly over the cot, and then straightening up to

obtain a bucket filled with some kind of liquid. After getting the bucket, C.W. proceeded
                                                                                           -7-


to clean off one of the tables in the classroom.

       {¶ 16} When C.W. bent over, any view of the alleged victim was completely

obscured, and, as we said, the video was of very poor quality. After C.W. walked away

to clean the table, very little can be seen of the alleged victim’s movements, due to the

lack of quality of the video. There was also no testimony at the hearing that L.G.’s mother

or anyone else observed any type of redness, scratch, or evidence of injury following the

alleged incident. As a result, there was simply insufficient corroborating evidence to

permit admission of the child’s out-of-court statement. In rejecting the State’s request,

the trial court specifically commented on the fact that evidence of the alleged abuse could

not be seen on the video. Transcript of Proceedings, p. 53. The court’s decision in this

regard was reasonable and was not an abuse of discretion.

       {¶ 17} Because the State failed to prove an essential factor under Evid.R. 807, we

need not consider the trial court’s additional conclusion that a “slap” is not physical abuse,

other than to note that we have held in the past that “[a] slap or other physical contact

that results in temporary redness is sufficient to establish ‘physical harm’ under the

domestic-violence statute.” State v. Walters, 2d Dist. Montgomery No. 22977, 2010-

Ohio-304, ¶ 11, citing State v. Kellum, 12th Dist. Butler No. CA2009-03-081, 2009-Ohio-

6743, ¶ 15-16. We have also said that “a pain-inducing blow is sufficient to satisfy the

‘physical harm’ element of Assault.” State v. Hill, 2d Dist. Montgomery No. 20678, 2005-

Ohio-3701, ¶ 34.     We stressed in Hill that we were “not prepared to hold that any

discomfort, however trivial, will satisfy the ‘physical harm’ element of Assault * * *.” Id.

       {¶ 18} There is simply no independent proof in this case that meets the standards

established under Evid.R. 807.
                                                                                      -8-


       {¶ 19} Based on the preceding discussion, the State’s sole assignment of error is

overruled.



                                       III. Conclusion

       {¶ 20} The State’s sole assignment of error having been overruled, the judgment

of the trial court is affirmed.




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



DONOVAN, P.J. and FAIN, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Michele D. Phipps
DeAnna Doggett Johnson
Hon. Anthony Capizzi
