[Cite as State v. Artripe, 2014-Ohio-4658.]


                                         COURT OF APPEALS
                                        KNOX COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :       JUDGES:
                                              :
                                              :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                  :       Hon. John W. Wise, J.
                                              :       Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :
ROGER E. ARTRIPE                              :       Case No. 14CA8
                                              :
                                              :
        Defendant - Appellant                 :       OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Knox County Court
                                                      of Common Pleas, Case No.
                                                      13CR05-0083



JUDGMENT:                                             Affirmed in part, Reversed in part,
                                                      and Remanded



DATE OF JUDGMENT:                                     October 17, 2014



APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

CHARLES T. MCCONVILLE                                 STEPHEN T. WOLFE
Knox County Prosecutor                                1350 W. 5th Ave., Suite 119
                                                      Columbus, OH 43212
By: JOSEPH D. SAKS
Knox County Assistant Prosecutor
117 East High Street, Suite 234
Mount Vernon, OH 43050
Knox County, Case No. 14CA8                                                           2

Baldwin, J.

       {¶1}   Appellant Roger E. Artripe appeals a judgment of the Knox County

Common Pleas Court convicting him of rape (R.C. 2907.02(A)(1)(b)) and gross sexual

imposition (R.C. 2907.05(A)(4)) and sentencing him to a term of life imprisonment with a

possibility of parole after fifteen years. Appellee is the State of Ohio.

                              STATEMENT OF FACTS AND CASE

       {¶2}   Appellant’s daughter Ashley contacted law enforcement on February 24,

2013, to report that her four-year-old stepdaughter, A.S., had informed her of improper

sexual conduct by appellant. Detective Tom Bumpus recommended that Ashley take

A.S. to the Center for Family Safety and Healing (hereinafter “Center”) at Nationwide

Children’s Hospital in Columbus for an examination.

       {¶3}   Det. Bumpus interviewed appellant, who admitted to babysitting A.S. on

Tuesdays. Appellant acknowledged putting cream or ointment on A.S., and while he

denied touching A.S., he told the detective that he suffered from memory lapses, and

might have touched A.S. during a “blackout session.”

       {¶4}   Kerri Wilkinson, a licensed social worker and forensic interviewer,

interviewed A.S. at the Center. The interview was videotaped. A.S. was asked to

identify body parts on anatomically correct drawings of a naked boy and girl. A.S.

identified the vaginal area as a “booger,” and the penis as a “booger.”       A.S. told

Wilkinson that Papaw Roger puts his booger inside of her booger, and it hurts. She

also told Wilkinson that Papaw Roger’s booger goes inside of her butt, and it hurts.

A.S. told Wilkinson that slobber and pee come out of Papaw Roger’s booger when he

goes potty, and that his slobber is white.
Knox County, Case No. 14CA8                                                                  3


        {¶5}   After the interview, pediatric nurse practitioner Gail Hornor conducted a

physical examination of A.S. Hornor watched A.S.’s interview through closed circuit

television, and also discussed the interview with Wilkinson to determine the appropriate

medical examinations and testing.        A.S. tested negative for sexually transmitted

diseases, and her anogenital examination was normal.

        {¶6}   On March 5, 2013, appellant’s daughter Amanda made an audio recording

of a confrontation she and her mother had with appellant concerning the allegations.

Appellant stated that he touched A.S., that he does not know why, and that he is getting

help.

        {¶7}   Appellant was indicted by the Knox County Grand Jury on one count of

rape and one count of gross sexual imposition. The case proceeded to jury trial.

        {¶8}   At trial, A.S. was found incompetent to testify, but the videotape of

Wilkinson’s interview with A.S. was admitted into evidence over appellant’s objection.

Appellant testified at trial that he sometimes babysat A.S. He testified that she had

soiled her pants, and he put her in the bathtub. When she got out of the tub, he noticed

that “her bottom was ate up,” either with diaper rash or bed bug bites. He put Desitin

ointment on her bottom. He testified that the guilt he felt was for putting diaper ointment

on an older child like A.S., rather than letting a female family member do it. He testified

that for the last ten years he had been unable to obtain an erection or ejaculate. His

wife also testified that for the last ten years, appellant was unable to perform sexually.

        {¶9}   Appellant was convicted of both charges. The trial court found that the

convictions merged, and sentenced appellant for rape. Because the victim was under
Knox County, Case No. 14CA8                                                            4


the age of ten, the court sentenced appellant to a term of imprisonment of life with

possibility of parole in fifteen years. Appellant assigns four errors on appeal:

       {¶10} “I.     THE COURT ERRED WHEN IT PERMITTED THE INTRODUCTION

OF EVIDENCE THAT WAS IMPERMISSIBLE AS BOTH HEARSAY AND IN

VIOLATON OF APPELLANT’S RIGHT TO CONFRONT WITNESSES AGAINST HIM.

       {¶11} “II.    THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO

SUPPORT THE CONVICTIONS.

       {¶12} “III.     THE JURY’S VERDICTS WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

       {¶13} “IV.       THE APPELLANT WAS PREJUDICED BY INEFFECTIVE

ASSISTANCE OF COUNSEL.”

                                                 I.

       {¶14} In his first assignment of error, appellant argues that the court erred in

admitting into evidence the videotape of A.S.’s interview at the Center, as the video was

impermissible hearsay and violated his Sixth Amendment right to confront witnesses

against him.

       {¶15} In State v. Arnold, 126 Ohio St. 3d 290, 933 N.E.2d 775, 2010-Ohio-2742,

the Ohio Supreme Court considered identical arguments concerning admission of a

videotape of a child victim interview conducted at the Center by a social worker/forensic

interviewer. As in the instant case, the victim was unavailable to testify.

       {¶16} The Supreme Court noted that the objective of a child-advocacy center is

neither exclusively medical diagnoses and treatment, nor solely forensic investigation.

Id. at ¶29. Child advocacy centers are unique in that multidisciplinary teams cooperate
Knox County, Case No. 14CA8                                                               5

so the child will not have to tell the story multiple times. Id. at ¶33. Thus, the interview

serves a dual purpose of gathering forensic information to investigate and potentially

prosecute a defendant for the offense, and eliciting information necessary for medical

diagnosis and treatment of the victim. Id.

       {¶17} The Arnold court found that some of the statements the victim made in the

interview served primarily a forensic or investigative purpose and were therefore

testimonial in nature, including statements that the defendant shut and locked the

bedroom door before raping her, descriptions of where her mother and brother were

when she was in the bedroom with the defendant, descriptions of the defendant’s boxer

shorts and of him removing them, what the defendant’s “pee-pee” looked like, and her

statement that the defendant removed her underwear.           Id.   at ¶34.   Because the

interviewer acted as an agent of the police in obtaining these statements, the court

proceeded to an analysis of whether the primary purpose of the interrogation was to

meet an ongoing police emergency. The court concluded that the primary purpose of

the interview was not to meet an ongoing emergency, but rather to further the state’s

forensic investigation, and the statements were thus inadmissible without a prior

opportunity for cross-examination pursuant to the Confrontation Clause. Id. at ¶36,

citing Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L.Ed.2d 177

(2004).

       {¶18} However, other statements made to the interviewer were necessary for

medical treatment, including that Arnold touched the victim’s “pee-pee,” that his “pee-

pee” went inside her “pee-pee,” that Arnold’s “pee-pee” touched her butt, and that

Arnold’s hand and mouth touched her “pee-pee.” Id. at ¶38. The court concluded that
Knox County, Case No. 14CA8                                                                6


these statements were nontestimonial and there was no basis in the law for concluding

that the interviewer’s dual capacity rendered these statements inadmissible. Id. at ¶41.

Rather, the trial courts through in limine procedure should redact or exclude the portions

of any statement that have become testimonial in nature.            Id.   The Arnold court

remanded the case to the court of appeals to consider whether the admission of the

victim’s forensic statements were harmless pursuant to State v. Conway, 108 Ohio St.

3d 214, 842 N.E.2d 996, 2006-Ohio-791. Id. at ¶44.

       {¶19} The victim in the instant case made statements to Wilkinson that were for

medical diagnosis or treatment, and thus were non-testimonial and admissible pursuant

to Arnold. Having identified male and female genitalia as “boogers,” the victim told

Wilkinson that Papaw Roger touched her booger, that his booger goes inside of her

booger, that his booger goes inside her butt, that it hurts, and that white slobber comes

out of his booger.

       {¶20} However, other statements made by A.S. relating to appellant’s conduct

were testimonial in nature and therefore inadmissible pursuant to Arnold: Papaw Roger

is the only one who hurts her butt, her description of what appellant’s booger looks like,

she is in the bedroom when he touches her booger, he doesn’t say anything to her and

she doesn’t tell him that it hurts, appellant told her it was a secret, he puts her pants and

underwear on the floor, Mamaw is at work, when Papaw Roger goes potty pee and

white slobber come out of his booger, and when he’s done putting his booger in her

booger appellant puts her pants back on and makes her toast and waffles. As in Arnold,

the primary purpose of this portion of the interview was not to meet an ongoing
Knox County, Case No. 14CA8                                                             7


emergency, but rather to further the state’s forensic investigation and possibly pursue

criminal charges against appellant.

      {¶21} Because the trial court did not redact the testimonial portions of the video,

we must determine whether admission of these statements were harmless pursuant to

the standard set forth in Conway, supra.          Whether a Sixth Amendment error is

harmless beyond a reasonable doubt is not simply an inquiry into the sufficiency of the

remaining evidence. Id. at ¶78. Rather, the question is whether there is a reasonable

possibility that the evidence complained of might have contributed to the conviction. Id.

      {¶22} Appellant was convicted of both rape and gross sexual imposition.

However, the court merged the offenses and only sentenced appellant on the rape

conviction. Rape is defined by R.C. 2907.02(A):

                       (A)(1) No person shall engage in sexual conduct with

             another who is not the spouse of the offender or who is the spouse

             of the offender but is living separate and apart from the offender,

             when any of the following applies:

                       (b) The other person is less than thirteen years of age,

             whether or not the offender knows the age of the other person.

      {¶23} Sexual conduct is defined by R.C. 2907.01(A) as “vaginal intercourse

between a male and female; anal intercourse, fellatio, and cunnilingus between persons

regardless of sex; and, without privilege to do so, the insertion, however slight, of any

part of the body or any instrument, apparatus, or other object into the vaginal or anal

opening of another.”
Knox County, Case No. 14CA8                                                                8


       {¶24} While there was evidence that appellant made statements which could be

interpreted as an admission to touching A.S. in a sexual manner, the only evidence of

sexual conduct as defined by R.C. 2907.01(A) came from the statements made by A.S.

during the interview.    While these statements were made for purposes of medical

diagnosis and treatment and were therefore non-testimonial in nature, other details of

the victim’s encounters with appellant were testimonial in nature. These details, such

as appellant telling her it was a secret, what his penis looked like and what comes out of

it when appellant goes potty, appellant removing her underwear and pants and putting

them on the floor, appellant taking her into the bedroom, Mamaw being at work when

this happens, and appellant putting her pants back on and making her toast and waffles

lend credibility to the non-testimonial statements of the victim, who was previously found

incompetent to testify after stating that she did not know what it means to tell a lie or

what a lie is. Tr. 131. The medical examination did not corroborate A.S.’s statements

concerning penetration, nor did any other evidence in the case. Therefore, we find

there is a reasonable probability that the testimonial statements included in the video

might have contributed to appellant’s rape conviction, and the error in admitting the

videotape in its entirety is not harmless as defined in Conway, supra. The trial court

erred in failing to redact the portions of the tape that were testimonial in nature as to the

rape conviction.

       {¶25} However, as to the conviction of gross sexual imposition, we find that

there is not a reasonable probability that admission of the entire videotape contributed

to the conviction.    Appellant was convicted of violating R.C. 2907.05(A)(4), which

prohibits sexual contact with a person under the age of thirteen. Sexual contact is
Knox County, Case No. 14CA8                                                                9


defined by R.C. 2907.01(B) as “any touching of an erogenous zone of another, including

without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female,

a breast, for the purpose of sexually arousing or gratifying either person.” Appellant

admitted to touching A.S.’s buttock. While he testified that he was simply putting diaper

ointment on A.S., during the audio recording appellant’s daughter made of a

confrontation with appellant, he stated that he touched A.S., that he does not know why,

and that he is getting help. He also told police that he might have touched A.S. during a

“blackout session.” Although appellant argues that his testimony and that of his wife

demonstrates he has not been able to have an erection or ejaculate for the last ten

years, appellant’s ability to physically perform sexually is not solely determinative of

whether he touched A.S. for the purpose of sexually arousing or gratifying himself. The

majority of the evidence concerning the charge of gross sexual imposition came from

other testimony in the case, and not from the testimonial statements on the videotape.

Therefore, we find admission of the entire videotape is harmless as to the conviction of

gross sexual imposition.

       {¶26} The first assignment of error is sustained as to the conviction of rape, and

overruled as to the conviction of gross sexual imposition.

                                               II., III.

       {¶27} In his second assignment of error, appellant argues that the judgment is

not supported by sufficient evidence. In his third assignment of error, appellant argues

that the judgment is against the manifest weight of the evidence. As to the conviction of

rape, these assignments of error are rendered moot based on our disposition of
Knox County, Case No. 14CA8                                                                 10


appellant’s first assignment of error. Therefore, we address appellant’s arguments only

as to the conviction of gross sexual imposition.

       {¶28} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485

N.E.2d 717 (1983).

       {¶29} An appellate court’s function when reviewing the sufficiency of the

evidence is to determine 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, 61 Ohio St. 3d 259, 574

N.E.2d 492, paragraph two of the syllabus (1991).

       {¶30} Appellant was convicted of violating R.C. 2907.05(A)(4), which prohibits

sexual contact with a person under the age of thirteen. Sexual contact is defined by

R.C. 2907.01(B) as “any touching of an erogenous zone of another, including without

limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast,

for the purpose of sexually arousing or gratifying either person.” Appellant admitted to

touching A.S.’s buttock. While he testified that he was simply putting diaper ointment on

A.S., during the audio recording appellant’s daughter made of a confrontation with

appellant, he stated that he touched A.S., that he does not know why, and that he is
Knox County, Case No. 14CA8                                                              11


getting help. He also told police that he might have touched A.S. during a “blackout

session.”    Although appellant argues that his testimony and that of his wife

demonstrates he has not been able to have an erection or ejaculate for the last ten

years, appellant’s ability to physically perform sexually is not solely determinative of

whether he touched A.S. for the purpose of sexually arousing or gratifying himself.

       {¶31} From appellant’s admission that he touched A.S. and his admission that

he was seeking help because he did not know why he touched A.S., the jury could have

concluded that appellant touched A.S. for the purpose of sexual gratification or arousal.

Further, the jury did not lose its way in concluding that appellant touched A.S. for the

purpose of sexual gratification or arousal from the evidence presented in the case. The

judgment is not against the manifest weight or sufficiency of the evidence.

       {¶32} The second and third assignments of error are overruled.

                                                IV.

       {¶33} In his fourth assignment of error, appellant argues that his trial counsel

was ineffective for failing to make a Crim. R. 29 motion for a directed verdict of acquittal

based on insufficient evidence.     Again, we consider this assignment only as to the

conviction for gross sexual imposition, as it is rendered moot as to the rape conviction

based on our disposition of the first assignment of error.

       {¶34} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the

result of the proceedings would have been different.         Strickland v. Washington, 466
Knox County, Case No. 14CA8                                                          12

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989). In other words, appellant must show that counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be

relied upon as having produced a just result. Id.

       {¶35} Because we have found in appellant’s second assignment of error that the

evidence was sufficient to support a judgment of conviction of gross sexual imposition,

appellant has not demonstrated that the result of the proceeding would have been

different had counsel moved for a directed verdict of acquittal.

       {¶36} The fourth assignment of error is overruled.

       {¶37} The judgment of the Knox County Common Pleas Court is affirmed as to

the conviction of gross sexual imposition, and reversed as to the conviction of rape.

This case is remanded to that court for further proceedings according to law, consistent

with this opinion. Costs are split evenly between the parties.

By: Baldwin, J.

Hoffman, P.J. and

Wise, J. concur.
