[Cite as State v. Crane, 2014-Ohio-3657.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BROWN COUNTY




STATE OF OHIO,                                   :
                                                       CASE NO. CA2013-02-001
        Plaintiff-Appellee,                      :
                                                               OPINION
                                                 :              8/25/2014
    - vs -
                                                 :

ROBERT W. CRANE,                                 :

        Defendant-Appellant.                     :



       CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
                            Case No. 2011-2112



Jessica A. Little, Brown County Prosecuting Attorney, Mary McMullen, 510 East State Street,
Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee

Julie D. Steddom, 120 Main Street, Ripley, Ohio 45167, for defendant-appellant



        M. POWELL, J.

        {¶ 1} Defendant-appellant, Robert W. Crane, appeals his conviction in the Brown

County Common Pleas Court for possession of heroin, possessing drug abuse instruments,

and corrupting another with drugs, for which he was sentenced to eight years in prison. For

the reasons that follow, we affirm appellant's conviction and sentence.

        {¶ 2} On March 17, 2011, appellant found his wife Christine Crane unresponsive at

their home in Aberdeen, Ohio and called the life squad, which transported Christine to a
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hospital in Maysville, Kentucky. Shortly thereafter, a deputy on the scene observed that

appellant was disoriented, sweating profusely, and slurring his speech, and therefore had

appellant transported to the same hospital. Christine was pronounced dead at the hospital

shortly after her arrival. Appellant was treated for a heroin overdose.

       {¶ 3} A search warrant was obtained for appellant's home.           When the police

executed the search warrant, they discovered drug paraphernalia, including a syringe and

needle, a plate, a spoon, a razor blade, a lighter and a plastic card. The plate and spoon

were submitted to the Ohio Bureau of Criminal Identification and Investigation for analysis,

and those items tested positive for heroin. The syringe and needle were submitted to an

independent laboratory for DNA analysis. The DNA analysis revealed that appellant could

not be excluded as a major contributor to the DNA found on the syringe while Christine could

not be excluded as a minor contributor to the DNA found on the syringe. However, only

appellant's DNA was found on the needle.

       {¶ 4} On May 26, 2011, appellant was charged in an 11-count indictment with

permitting drug abuse in violation of R.C. 2925.13(B), a first-degree misdemeanor (Count

One); involuntary manslaughter in violation of R.C. 2903.04(B), a third-degree felony (Count

Two); corrupting another with drugs in violation of R.C. 2925.02(A)(2), a second-degree

felony (Count Three); involuntary manslaughter in violation of R.C. 2903.04(A), a first-degree

felony (Count Four); possession of heroin in violation of R.C. 2925.11(A), a fifth-degree

felony (Count Five); possessing drug abuse instruments in violation of R.C. 2925.12(A), a

second-degree misdemeanor (Count Six); corrupting another with drugs in violation of R.C.

2925.02(A)(3), a second-degree felony (Count Seven); possession of heroin in violation of

R.C. 2925.11(A), a fifth-degree felony (Count Eight); permitting drug abuse in violation of

R.C. 2925.13(B), a first-degree misdemeanor (Count Nine); complicity to trafficking in heroin

in violation of R.C. 2925.03(A)(1), a fifth-degree felony (Count Ten); and engaging in a

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pattern of corrupt activity in violation of R.C. 29223.32(A)(1), a first-degree felony (Count

Eleven).

       {¶ 5} Appellant's first trial began on April 27, 2012, but was continued in progress to

allow the state to depose witnesses who conducted the DNA analysis of the syringe. The

trial resumed on October 1, 2012, but the trial eventually ended in a mistrial on October 9,

2012 due to the misconduct of a witness in testifying about a domestic violence incident

between appellant and Christine.

       {¶ 6} Appellant's second trial began on January 28, 2013. After the state's opening

statement, appellant moved for a judgment of acquittal on all charges on the basis that the

opening statement did not set forth a prima facie case on any of the charges. The state

moved to reopen its opening statement. After argument on the issue, the trial court granted

the state's motion to reopen. After the state's supplemental opening statement, the trial court

granted appellant's motion for acquittal on Counts One and Nine (permitting drug abuse) and

Count Two (third-degree involuntary manslaughter).

       {¶ 7} During the testimony of state's witness Deputy Carl Smith, Smith and Deputy

Buddy Moore's recorded interview of appellant was played for the jury. In that interview an

alleged altercation between appellant and Christine was mentioned. Appellant moved for a

mistrial on the basis that the trial court had previously granted his motion in limine regarding

evidence of domestic violence between him and Christine, and the state violated the trial

court's ruling by failing to redact the incident of domestic violence. The trial court denied

appellant's motion for a mistrial and gave no curative instruction to the jury concerning the

testimony.

       {¶ 8} The state presented the testimony of Dr. Gregory Wanger, M.D., a Kentucky

state medical examiner who conducted Christine's autopsy. Dr. Wanger testified that

Christine died from heroin toxicity. Dr. Wanger testified that he obtained blood, urine and
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vitreous fluid specimens from Christine and sent them to an independent firm known as AIT

Laboratories (AIT) for toxicology testing to determine the types and levels of drugs present in

Christine's system at the time of her death. Dr. Wanger testified that his office does not have

its own toxicology lab, and therefore contracts with AIT to do toxicology testing. He testified

that he relied on AIT's toxicology report in formulating his opinion that Christine died from a

heroin overdose.     A redacted version of Christine's autopsy report, in which several

sentences in the report were blacked out but the sentence stating that Christine's cause of

death was heroin toxicity was left in the report, was admitted into evidence, and appellant

raised no objection to the admission of the redacted autopsy report.

       {¶ 9} The state also presented the testimony of 13 witnesses from AIT who were

involved in various phases of the toxicological testing of Christine's blood and urine. AIT's

toxicology report on Christine was referred to at trial as a "litigation packet," though it is

referred to in AIT's paperwork as a "Data Package." The toxicology report was prologued

with a "Certification of Authenticity" somewhat akin to a business records certification. The

Certification of Authenticity, which was signed by AIT Toxicologist Faith Musko, states:

              This is to certify that the documents in this Data Package are
              true and accurate reproductions of the original records generated
              in the normal course of business for this case by employees of
              AIT Laboratories and maintained in the files of this company.

              The documents contained in this Data Package were prepared
              by the undersigned.

              I swear and affirm under penalties for perjury that the foregoing
              representations are true to the best of my knowledge and belief.

Musko did not testify at appellant's trial.     Instead, Kevin Shanks, an expert forensic

toxicologist for AIT, testified as a witness for the state regarding AIT's toxicology report.

       {¶ 10} Appellant objected to Dr. Wanger's testimony on the basis that the AIT

toxicology report was testimonial in nature, the various witnesses from AIT did not address all


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phases of the testing of Christine's bodily fluids, and therefore Dr. Wanger's reliance on AIT's

toxicology report in forming an opinion as to Christine's cause of death violated his right to

confrontation. The trial court overruled appellant's objection and admitted AIT's toxicology

report into evidence.

        {¶ 11} After the state rested, appellant moved for a judgment of acquittal on the

remaining counts. The trial court granted appellant's motion for acquittal as to Count Three

(corrupting another with drugs) and Count Four (first-degree involuntary manslaughter).

Appellant presented one witness in his defense. The case was submitted to the jury. The

jury found appellant not guilty of Count Ten (engaging in pattern of corrupt activity) but guilty

of all remaining counts, i.e., Counts Five and Eight (possession of heroin) Count Six

(possessing drug abuse instruments) and Count Seven (corrupting another with drugs).1 The

trial court sentenced appellant to eight years in prison.

        {¶ 12} Appellant now appeals, assigning the following as error:

        {¶ 13} Assignment of Error No. 1:

        {¶ 14} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, IN

VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS, WHEN IT

DENIED HIS MOTION FOR ACQUITTAL AND ALLOWED THE PROSECUTOR TO

SUPPLEMENT HER OPENING STATEMENT.

        {¶ 15} Assignment of Error No. 2:

        {¶ 16} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, IN

VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS, WHEN IT

ALLOWED THE ADMISSION OF TESTIMONY THAT HAD BEEN THE SUBJECT OF A

MOTION IN LIMINE AND FAILED TO INSTRUCT THE JURY TO DISREGARD SUCH



1. Count Eleven was nolled at the beginning of appellant's second trial.
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TESTIMONY.

         {¶ 17} Assignment of Error No. 3:

         {¶ 18} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, IN

VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS, WHEN IT

ADMITTED TOXICOLOGY REPORTS WITHOUT THE PRESENCE OF THE ANALYST.

         {¶ 19} In his first assignment of error, appellant argues the trial court erred by

overruling his motion for acquittal of all the charges against him and by allowing the state to

supplement its opening statement after its initial opening statement failed to state the

charges against him and did not contain facts that would constitute prima facie evidence of

guilt.

         {¶ 20} R.C. 2945.10 provides in pertinent part that "[c]ounsel for the state must first

state the case for the prosecution, and may briefly state the evidence by which he expects to

sustain it." (Emphasis added.)

         {¶ 21} In State v. Holmes, 12th Dist. Butler No. CA90-06-113, 1991 WL 214359, *2-*3

(Oct. 21, 1991), the prosecutor failed to disclose in the state's opening statement the

existence of a count in the indictment charging Holmes with having weapons under disability.

Recognizing this, Holmes moved for an acquittal on that count at the close of the state's

opening statement. The trial court overruled the motion for acquittal and permitted the state

to supplement its opening statement with a statement of the evidence pertaining to that

count. On appeal, Holmes argued the trial court's failure to dismiss the count after the state

already had been given the opportunity to explain its evidence to the jury improperly "gave

the state 'two bites of the apple.'" Id.

         {¶ 22} In support of his argument, Holmes cited State v. Scott, 8 Ohio App.3d 1, 3

(12th Dist.1983) in which this court held that "[i]f the prosecutor should make an admission of

fact which shows that no crime had been committed, or that the accused was not guilty of the
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crime charged, doubtless the court would be justified in sustaining a motion to discharge the

accused." This holding derived from State v. Karcher, 155 Ohio St. 253, 255-256 (1951),

where the court noted that it had held in State v. Lowenstein, 109 Ohio St. 393 (1924), that

"an opening statement by the prosecutor containing facts which would at least constitute

prima facie evidence of guilt does not justify the court in taking the case from the jury upon a

motion of the accused." Id. at 256. Holmes used this language from Karcher "to argue,

conversely, that an opening statement which does not contain or acknowledge a count

alleged in the indictment is ample ground to remove that count from the jury's consideration."

Holmes at *2. This court rejected that argument, stating as follows:

              In addition to Ohio, a number of other jurisdictions subscribe to
              the view that a trial court is permitted to grant a judgment of
              acquittal on the basis of the prosecutor's opening statement.
              [Citations omitted.]

              Courts utilizing this mechanism are almost unanimous in
              acknowledging that a judgment of acquittal at such an early
              stage of the trial should be used sparingly and only after careful
              judicial consideration. Two primary justifications exist for this
              policy. First, despite appellant's assertion, an opening statement
              is not evidence, but merely serves the informative function of
              advising "the jury of the question and facts invoked in the matter
              before it." [People v.] Gomez [(1955), 131 Colo. 576, 283 P.2d
              949] * * * at 950. Second, and more importantly,

              "[i]n criminal cases, the province and powers of the jury as the
              conscience of the community should rarely, if ever, be usurped
              by the trial court." Matter of Ferguson [(1977), 78 Mich.App. 576,
              261 N.W.2d 8] * * * at 10.

              To ensure that a prosecutor's accidental or inadvertent omission
              during an opening statement does not result in the dismissal of a
              count or case, several courts have added an important
              prerequisite to the rule. In these jurisdictions, it has been held
              that a motion to dismiss may be granted on the basis of the
              state's opening statement provided the state has been given an
              opportunity to correct, embellish, or explain the defects or errors
              in the statement.

              ***


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              In light of the facts present in this case, we find this additional
              procedural requirement particularly appropriate. At the bench
              conference which ensued following appellant's motion, the state
              explained that it was under the impression that the parties had
              entered a stipulation regarding the count. Upon being informed
              to the contrary by the trial court, the state promptly offered to
              advise the jury of the count. The court acceded to the request
              and permitted the state to supplement its opening statement.

              The prosecutor's reasoning suggests that the state's mistaken
              belief as to the existence of a stipulation was not the product of
              bad faith. Indeed, the state's desire to amend the opening
              statement indicates that but for the honest, but nonetheless
              erroneous, belief as to the existence of a stipulation, evidence of
              the count would have been presented during the "initial" opening
              statement. Once permitted to complement its opening statement,
              the state correctly and adequately advised the jury of the count.

              Based on the aforementioned, we find the trial court did not
              abuse its discretion in overruling appellant's motion to dismiss
              and subsequently permitting the state to supplement its opening
              statement.

Holmes, 1991 WL 214359 at *3.

       {¶ 23} Here, appellant is essentially raising the same argument that was raised in

Holmes and rejected by this court, to wit: that the trial court erred by overruling his motion for

acquittal as to the charges that the state failed to mention in its opening statement and that

allowing the state to reopen its opening statement to remedy its oversight prohibits

enforcement of the mandatory language in R.C. 2945.10. However, the trial court did not

abuse its discretion by permitting the state to reopen its opening statement in this case.

While there was not a misunderstanding by the state as to the existence of a stipulation

regarding one of the charges as there was in Holmes, the state did point out that it had

somewhat relied on the trial court's reading of the 11-count indictment to all of the

prospective jurors at the commencement of the case.

       {¶ 24} In any event, Holmes does not indicate that a mistaken belief by the prosecutor

is a necessary prerequisite to permitting a re-opening of his or her opening statement. The


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law is simply that "a motion to dismiss may be granted on the basis of the state's opening

statement provided the state has been given an opportunity to correct, embellish, or explain

the defects or errors in the statement." Id. at *3. This rule is designed "[t]o ensure that a

prosecutor's accidental or inadvertent omission during an opening statement does not result

in the dismissal of a count or case[.]" Id. At worst, the state's failure in this instance to state

its case more completely in its opening statement by stating the charges against appellant or

facts that would constitute prima facie evidence of his guilt was "accidental or inadvertent,"

id., and therefore, the trial court did not abuse its discretion by allowing the state to reopen its

opening statement.

       {¶ 25} Consequently, appellant's first assignment of error is overruled.

       {¶ 26} In his second assignment of error, appellant asserts that the trial court abused

its discretion by denying his objection and motion for a mistrial when the prosecutor played a

statement made by him to a detective that included a reference to an altercation between

appellant and his deceased wife after the trial court's entry on a motion in limine had

specifically excluded evidence of domestic violence between the two. Appellant contends, in

the alternative, that the trial court erred by failing to offer a curative instruction to the jury.

       {¶ 27} Appellant filed a pretrial motion in limine to prohibit the state from presenting

testimony from police officers about prior incidents of domestic violence between him and

Christine, any statements taken by the officers regarding those incidents, and any

observation made by the officers of Christine. The trial court granted appellant's motion,

stating in pertinent part:

               The Court hereby grants defendant's Motion in Limine. The
               State may not produce evidence or prior domestic violence
               errant or playback altercations between defendant and the
               decedent by law enforcement officers;

               The state may address testimony of statements of the decedent
               that from November 2010 to March 2011 she made to others that
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               she was in fear for her safety, as well as that of her father, but
               may not explain why, pursuant to State v. Sutorious, (1997) 122
               Ohio App.3d 1;

               The State may address testimony from witnesses that the
               decedent appeared tired or was borrowing money or had
               physical signs of injury but may not testify as to what decedent
               told them were the reasons. The witnesses must have personal
               knowledge about that which they testify to on these issues.

[sic]

        {¶ 28} At trial, the state presented the testimony of a police officer and played the

recorded interview with appellant in which he was refuting claims by Christine's relatives that

he physically abused her. During that interview, appellant states that "I've never hit her

[Christina]. I've only pushed her back." Appellant objected to this testimony, claiming that its

admission violated the trial court's ruling on his motion in limine. The jury was dismissed and

the trial court and the parties discussed appellant's motion for a mistrial. The trial court

denied the motion for a mistrial after determining that the statement was not "clear evidence

of domestic violence, because * * * I think it was a recantation and explanation about-—or to

refute, what other family members * * * statements about the defendant were."

        {¶ 29} Even if the introduction of this statement from appellant's recorded interview

violated the trial court's order regarding appellant's motion in limine, the trial court's

introduction of that one statement did not prejudice appellant as appellant denied in that

statement that he had ever hit Christina and admitted only that he had pushed her back, and

therefore the introduction of the statement was harmless beyond a reasonable doubt.

Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824 (1967). Further, it is clear that this one

statement did not prejudice appellant in light of the fact that there was admitted into

evidence, without objection, graphic testimony from a number of witnesses regarding the

bruising and injury they observed on Christina.

        {¶ 30} As for the trial court's denial of appellant's motion for mistrial, this court stated in
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State v. Motz, 12th Dist. Warren No. CA2009-10-137, 2010-Ohio-2170, ¶ 12:

              "A trial court should not grant a motion for a mistrial unless it
              appears that some error or irregularity has been injected into the
              proceeding that adversely affects the substantial rights of the
              accused, and as a result, a fair trial is no longer possible." State
              v. Thornton, Clermont App. No. CA2008-10-092, 2009-Ohio-
              3685, ¶ 11, citing State v. Reynolds (1988), 49 Ohio App.3d 27,
              33, 550 N.E.2d 490; State v. Blankenship (1995), 102 Ohio
              App.3d 534, 549, 657 N.E.2d 559. The trial court's decision to
              grant or deny a mistrial rests within its sound discretion, and this
              court will not disturb such a determination absent an abuse of
              discretion. State v. Stevens, Butler App. No. CA2009-01-031,
              2009-Ohio-6045, ¶ 11, citing State v. Ahmed, 103 Ohio St.3d 27,
              813 N.E.2d 637, 2004-Ohio-4190, ¶ 92; Thornton at ¶ 11. An
              abuse of discretion implies that the trial court's decision was
              unreasonable, arbitrary, or unconscionable. State v. Hancock,
              108 Ohio St.3d 57, 840 N.E.2d 1032, 2006-Ohio-160, ¶ 130.

       {¶ 31} Here, the trial court's decision not to declare a mistrial cannot be deemed to

have been an abuse of discretion as the alleged error regarding the introduction of the

recorded interview occurred on the fourth day of trial after a mistrial had been declared in the

first trial. Additionally, for the reasons set forth above, the trial court did not abuse its

discretion in allowing this evidence to be admitted, and any error the trial court may have

committed in allowing this evidence was harmless beyond a reasonable doubt.

       {¶ 32} Appellant cites State v. Doren, 6th Dist. Wood No. WD-06-064, 2009-Ohio-167,

in support of his argument that a mistrial should have been declared. In Doren, a motion in

limine excluding from testimony any mention that Doren had taken a polygraph was granted.

Id. at ¶ 99. Nevertheless, a recording was played for the jury in which there was mention of a

polygraph. Id. In reversing Doren's conviction due to the admission of the evidence that

there was a polygraph, the court of appeals determined that "[w]hile a jury is presumed to

follow instructions * * * this jury demonstrated sustained curiosity about a polygraph test by

submitting seven written questions despite the first curative instructions," id. at 134, and that

it was "unlikely that the second curative instruction removed the error's taint from the juror's

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minds." The court also found that the other evidence against Doren was "thin and rife with

inconsistencies." Id. at ¶ 136. However, that is not the case here as the state presented

ample evidence to support the charges of which appellant was convicted. Additionally, the

trial court cannot be faulted for failing to give a curative instruction since appellant never

requested one.

       {¶ 33} In light of the foregoing, appellant's second assignment of error is overruled.

       {¶ 34} In his third assignment of error, appellant argues the trial court erred by

admitting into evidence the AIT toxicology report that was offered by the state as evidence of

drug use by Christine because he did not have the opportunity either at or before trial to

cross-examine the persons who conducted the testing, and therefore the trial court's

admission of the toxicology report denied him his right to confront the persons who

conducted the testing. Appellant asserts that because the state failed to present either a

witness who could testify that he or she performed or had been present for all of the testing,

or all of the witnesses involved in the entire series of toxicological testing, the trial court's

admission of the AIT toxicology report violated his confrontation rights under Melendez-Diaz

v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527 (2009).

       {¶ 35} The Confrontation Clause of 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 * * *." The United States Supreme Court has

interpreted this language to mean that admission of an out-of-court statement of a witness

who does not appear at trial is prohibited by the Confrontation Clause if the statement is

"testimonial" unless the witness is unavailable and the defendant has had a prior opportunity

to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354

(2004). The "core class" of statements implicated by the Confrontation Clause includes

those "'made under circumstances which would lead an objective witness reasonably to
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believe that the statement would be available for use at a later trial.'" Id. at 52, quoting the

amicus brief of the National Association of Criminal Defense Lawyers.

       {¶ 36} Crawford did not define the term "testimonial statement" with much specificity,

but the United States Supreme Court has subsequently defined the term as meaning those

statements made for the "primary purpose of creating an out-of-court substitute for trial

testimony." Michigan v. Bryant, ___ U.S. ___, 131 S.Ct. 1143, 1155 (2011). The court has

also stated that "[t]o rank as 'testimonial,' a statement must have a 'primary purpose' of

'establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.'"

Bullcoming v. New Mexico, 564 U.S. ___, 131 S.Ct. 2705, 2714 (2011), fn. 6, quoting Davis

v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266 (2006).

       {¶ 37} In State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, ¶ 88, the Ohio

Supreme Court held that an autopsy report completed by a nontestifying medical examiner

was admissible as a nontestimonial business record under Evid.R. 803(6). The court also

held that there was no Sixth Amendment violation in admitting the autopsy report because

Crawford had indicated that "business records are, 'by their nature,' not testimonial" and thus

were admissible, id. at ¶ 81, and that "[a]n autopsy report prepared by a medical examiner

and documenting objective findings, is the 'quintessential business record.'" Id. at ¶ 82,

quoting Rollins v. State, 161 Md.App. 34, 81 (2005).

       {¶ 38} After Craig was decided, the United States Supreme Court decided Melendez-

Diaz, 557 U.S. 305, in which the court held that three notarized certificates of analysis

showing that a forensic analysis identified a substance as cocaine were inadmissible and that

the analysts who performed the laboratory tests and provided the certificates were required

to testify because they were witnesses for purposes of the Confrontation Clause and the

defendant had a right to confront them. Id. at 311. The court reasoned that the notarized

certificates were "quite plainly affidavits" and thus constituted testimonial statements because
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they were "functionally identical to live, in-court testimony, doing 'precisely what a witness

does on direct examination.'" Id. at 310-311, quoting Davis v. Washington, 547 U.S. 813,

830, 126 S.Ct. 2266 (2006). The court further reasoned that the certificates constituted

testimonial statements because they were "made under circumstances which would lead an

objective witness reasonably to believe that the statement[s] would be available for use at a

later trial." Melendez-Diaz at 311, quoting Crawford, 541 U.S. at 52, quoting the amicus brief

of the National Association of Criminal Defense Lawyers.

       {¶ 39} In Bullcoming, 131 S.Ct. 2705, 2712, the prosecution introduced the forensic

report for blood-alcohol concentration in a DWI case, not through the analyst who signed and

certified the report, but through an analyst who had not performed or observed the analysis

but was familiar with the testing procedures of the laboratory. Although the analyst who

testified was a "knowledgeable representative of the laboratory" and was capable of

explaining "the lab's process and the details of the report," id. at 2733 (Kennedy, J.

dissenting), the majority in Bullcoming held that the surrogate witness was not a proper

substitute for the analyst who conducted the test, because "[t]he accused's right is to be

confronted with the analyst who made the certification[.]" Id. at 2723. The majority in

Bullcoming also found that the blood-alcohol analysis reports were testimonial because the

certifying analyst in the case, like the analysts in Melendez-Diaz, "tested the evidence and

prepared a certificate concerning the results of his analysis." Id. at 2717.

       {¶ 40} In Williams v. Illinois, ___ U.S. ___, 132 S.Ct. 2221 (2012), an expert witness

testified that a DNA profile produced by an outside laboratory known as Cellmark from a rape

victim's vaginal swab matched the defendant's DNA profile produced by a state police

laboratory from the defendant's blood sample. The Cellmark report itself was neither

admitted into evidence nor shown to the fact-finder. Five justices on the Williams court held

that the expert testimony did not violate a defendant's right to confrontation. Four of the five
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justices reasoned that the statements in the Cellmark report were nontestimonial because

the out-of-court statements were related by the expert solely for the purpose of explaining the

basis of the expert's opinion or the assumptions on which the expert's opinion relied, and

were not offered for the truth of those out-of-court statements. Id. at 2240-2241. These four

justices held, in the alternative, that even if the Cellmark report had been admitted into

evidence, it still would not have constituted a testimonial document because it was not

prepared for "the primary purpose of accusing a targeted individual[,]" which distinguished it

from the forensic reports in Melendez-Diaz and Bullcoming. Id. at 2242. It should be

mentioned, however, that the four-justice plurality in Williams noted that the case involved a

bench trial and that their decision may have been different if the case had involved a jury

trial, instead. Id. at 2234-2235.

       {¶ 41} The fifth justice in the majority in Williams, Justice Thomas, joined the plurality

in judgment "solely because Cellmark's statements lacked the requisite 'formality and

solemnity' to be considered '"testimonial"' for purposes of the Confrontation Clause." Id. at

2255 (THOMAS, J., concurring in judgment), quoting Bryant at 1167, (THOMAS, J.,

concurring in judgment). We reject the "formality and solemnity" test as the lynchpin for

resolving whether a statement is "testimonial" under the Confrontation Clause. We believe

Justice Kagan correctly reasoned that such an approach is unworkable in this context.

              Justice THOMAS's approach, if accepted, would turn the
              Confrontation Clause into a constitutional geegaw—nice for
              show, but of little value. The prosecution could avoid its
              demands by using the right kind of forms with the right kind of
              language. (It would not take long to devise the magic words and
              rules—principally, never call anything a "certificate.") And still
              worse: The new conventions, precisely by making out-of-court
              statements less "solem[n]," ante, at 2255 – 2256, would also
              make them less reliable—and so turn the Confrontation Clause
              upside down. See Crawford, 541 U.S., at 52–53, n. 3, 124 S.Ct.
              1354 ("We find it implausible that a provision which concededly
              condemned trial by sworn ex parte affidavit thought trial by
              unsworn ex parte affidavit perfectly OK"). It is not surprising that
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               no other Member of the Court has adopted this position. To do
               so, as Justice THOMAS rightly says of the plurality's decision,
               would be to "diminis[h] the Confrontation Clause's protection" in
               "the very cases in which the accused should 'enjoy the right ... to
               be confronted with the witnesses against him.'" Ante, at 2232.

Williams, 132 S.Ct. at 2276-77 (Kagan, J., dissenting) (footnote omitted).

       {¶ 42} In United States v. James, 712 F.3d 79, 97-99 (2d Cir.2013), the Second Circuit

Court of Appeals held that a routine autopsy report, including the toxicology report that

informed it, was not testimonial, and therefore the Confrontation Clause was not violated by

admitting the autopsy report and allowing a medical examiner to testify about it, even though

the medical examiner did not conduct the autopsy herself.               The court arrived at this

conclusion after engaging in an exhaustive review of Melendez-Diaz, Bullcoming and

Williams. Id. at 89-94. The James court "distill[ed]" from Melendez-Diaz and Bullcoming "the

principle that a laboratory analysis is testimonial if the circumstances under which the

analysis was prepared, viewed objectively, establish that the primary purpose of a reasonable

analyst in the declarant's position would have been to create a record for use at a later

criminal trial." Id. at 94. The James court also found that Williams did not contain "a single,

useful holding relevant to the case before [it]." Id. at 95.

       {¶ 43} The James court, applying this principle to the case before it, determined that

"the autopsy report was not testimonial because it was not prepared primarily to create a

record for use at a criminal trial[,]" and therefore there was no error "in admitting the autopsy

report into evidence, or allowing a medical examiner to testify about it, even though she did

not conduct the autopsy herself." Id. at 99. The court also upheld the district court's

decisions to admit into evidence a toxicology report and to allow the medical examiner who

ordered the report, but did not create it, to testify to the results of the report, finding that these

circumstances did not violate the Confrontation Clause. Id. at 101-102. The court found that

there was no indication in the record that a criminal investigation was contemplated during
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the inquiry into the cause of the victim's death or that the toxicology report was completed

primarily to generate evidence for use at a subsequent criminal trial, and therefore the court

concluded that the toxicology report was nontestimonial. Id. at 101-102. In a footnote to its

decision, the court noted that "the police were unquestionably involved in the * * * autopsy

process, including, for example, transporting forensic samples for testing." Id. at fn. 13.

However, the court noted that Williams "made clear * * * the involvement of 'adversarial

officials' in an investigation is not dispositive as to whether or not a statement is testimonial[,]"

and that in the case before it, "it appears that was simply the routine procedure employed by

the * * * medical examiner in investigating all unnatural deaths, and does not indicate that a

criminal investigation was contemplated." Id.

       {¶ 44} During the pendency of this appeal, the Ohio Supreme Court issued its decision

in State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, syllabus, in which the court held:

               An autopsy report that is neither prepared for the primary
               purpose of accusing a targeted individual nor prepared for the
               primary purpose of providing evidence in a criminal trial is
               nontestimonial, and its admission into evidence at trial under
               Evid.R. 803(6) as a business record does not violate a
               defendant's Sixth Amendment confrontation rights.

In so holding, the Ohio Supreme Court determined that the United States Supreme Court's

decisions in Melendez-Diaz, Bullcoming and Williams did "not require departure from our

holding in Craig." Maxwell at ¶ 54.

       {¶ 45} The Maxwell court noted:

               A key element in evaluating the admissibility of the coroner's
               testimony and the autopsy report in light of the recent United
               States Supreme Court cases is the primary-purpose test, which
               examines the reasons for and purpose of the record in question.
               To determine the primary purpose, a court must "objectively
               evaluat[e] the statements and actions of the parties to the
               encounter" giving rise to the statements.

Id. at ¶ 49, citing Bryant, ___ U.S. ___, 131 S.Ct. at 1162 and Williams, ___U.S. ___, 132


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S.Ct. at 2243 (plurality opinion of Alito, J.).

       {¶ 46} The Maxwell court determined that:

               [a]n analysis of the primary-purpose test bears out Craig's
               conclusion that autopsy reports are nontestimonial. Autopsy
               reports are not intended to serve as an "out-of-court substitute
               for trial testimony." Bryant, ––– U.S. –––, 131 S.Ct. at 1155, 179
               L.Ed.2d 93. Instead, they are created "for the primary purpose of
               documenting cause of death for public records and public
               health." Carolyn Zabrycki, Comment, Toward a Definition of
               "Testimonial": How Autopsy Reports Do Not Embody the
               Qualities of a Testimonial Statement, 96 Cal.L.Rev. 1093, 1130
               (2008); see also People v. Leach, 2012 IL 111534, 366 Ill.Dec.
               477, 980 N.E.2d 570, ¶ 129 (a medical examiner is "charged with
               protecting the public health by determining the cause of a
               sudden death").

       {¶ 47} In applying the primary-purpose test to the case before it, the Maxwell court

stated as follows:

               Ohio coroners conduct autopsies pursuant to the authority
               granted to them by R.C. Chapter 313. Coroners must "keep a
               complete record of and * * * fill in the cause of death on the
               death certificate, in all cases coming under [their] jurisdiction."
               R.C. 313.09. The death certificate also must indicate the
               "manner and mode in which the death occurred." R.C. 313.19.
               If the cause and manner of death are not apparent—as when
               someone "dies as a result of criminal or other violent means, by
               casualty, by suicide, or in any suspicious or unusual manner" or
               "when any person * * * dies suddenly when in apparent good
               health," R.C. 313.12—the coroner is notified so that an autopsy
               may be conducted. An autopsy is a "compelling public
               necessity" if it is needed to "protect[ ] against an immediate and
               substantial threat to the public health" or to assist law
               enforcement in conducting a murder investigation. R.C. 313.131.

               Although autopsy reports are sometimes relevant in criminal
               prosecutions, Craig rightly held that they are not created primarily
               for a prosecutorial purpose. Consistent with Craig, other courts
               have held that coroners are statutorily empowered to investigate
               unnatural deaths and authorized to perform autopsies in a
               number of situations, only one of which is when a death is
               potentially a homicide. People v. Leach, 405 Ill.App.3d 297,
               308–309, 345 Ill.Dec. 694, 939 N.E.2d 537 (2010), aff'd, 2012 IL
               111534, 366 Ill.Dec. 477, 980 N.E.2d 570; Dungo, 55 Cal.4th
               608, 147 Cal.Rptr.3d 527, 286 P.3d 442 (testimony by a chief
               medical examiner who did not prepare the decedent's autopsy

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              report was admissible); United States v. James, 712 F.3d 79, 97
              (2d Cir.2013) (autopsy report was to be considered on whether it
              was "prepared with the primary purpose of creating a record for
              use at a later trial").

              Ohio courts of appeals have also continued to uphold the
              admissibility of autopsy reports prepared by nontestifying medical
              examiners since Melendez–Diaz. State v. Hardin, 193 Ohio
              App.3d 666, 2010-Ohio-6304, 953 N.E.2d 847, ¶ 9–20 (4th Dist.)
              (autopsy report prepared by nontestifying medical examiner
              admissible as a nontestimonial business record, since it was not
              prepared for purposes of litigation); State v. Zimmerman, 8th
              Dist. Cuyahoga No. 96210, 2011-Ohio-6156, 2011 WL 5997588,
              ¶ 43–45 (admissibility of autopsy report prepared by nontestifying
              medical examiner does not conflict with Bullcoming); State v.
              Adams, 7th Dist. Mahoning No. 08 MA 246, 2012-Ohio-2719,
              2012 WL 2308131, ¶ 20, 26 (Craig still controls and autopsy
              report is nontestimonial evidence under Crawford, as it is not
              made solely at the behest of police in order to convict the
              particular defendant); State v. Monroe, 8th Dist. Cuyahoga No.
              94768, 2011-Ohio-3045, 2011 WL 2476280 (Craig not in conflict
              with Melendez–Diaz).

              * * * The dissent rejects the primary-purpose test and would hold
              that whether a particular autopsy report is testimonial should be
              determined on a case-by-case basis. But generally, autopsy
              reports are neither (1) prepared for the primary purpose of
              accusing a targeted individual nor (2) prepared for the primary
              purpose of providing evidence in a criminal trial. For Sixth
              Amendment purposes, it is only the primary purpose of a
              document that determines whether it is testimonial or not.

              Melendez–Diaz and Bullcoming, on which Maxwell relies, are
              readily distinguishable here. In both cases, the forensic reports
              were made at the request of police, for specific "evidentiary
              purposes" in order to aid in a police investigation. The record
              does not show that to be the case here. We hold that an
              autopsy report that is neither prepared for the primary purpose of
              accusing a targeted individual nor prepared for the primary
              purpose of providing evidence in a criminal trial is nontestimonial,
              and its admission into evidence at trial under Evid.R. 803(6) as a
              business record does not violate a defendant's Sixth Amendment
              confrontation rights.

Maxwell, 2014-Ohio-1019 at ¶ 58-63.

       {¶ 48} Here, appellant does not argue on appeal that the trial court violated his

confrontation rights by admitting into evidence Christine's autopsy report. Instead, he argues
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the trial court violated his confrontation rights by admitting into evidence the AIT toxicology

report that was ordered by Dr. Wanger and used by him to determine the cause of Christine's

death.

         {¶ 49} In James, 712 F.3d 79, 101-102, the court, in holding that a toxicology report

was not testimonial and therefore did not implicate the Confrontation Clause, found that there

was no indication in the record that a criminal investigation was contemplated during the

inquiry into the cause of the victim's death and nothing to indicate that the toxicology report

was completed primarily to generate evidence for use at a subsequent criminal trial. Here,

the only indication in the record that a criminal investigation was contemplated during the

inquiry into Christine's death is the language in the Coroner's Investigation Report, in which

Coroner Robert Brothers wrote "Please ck [check] for injection sites—dec. [Christine] works

where employees are screened. There may be a problem here." However, Brothers'

statement that "[t]here may be a problem here[,] is not sufficient to render the AIT toxicology

report testimonial as it appears to be simply a part of "the routine procedure" employed by

coroners in Kentucky. Id. at fn. 13.

         {¶ 50} KRS 72.025 requires coroners in Kentucky to order a post-mortem examination

not only "[w]hen the death of a human being appears to be caused by homicide or

violence[,]" KRS 72.025(1), but also in eighteen other circumstances, including "[w]hen the

death of a human being appears to be the result of the presence of drugs or poisons in the

body[,]" KRS 72.025(3), or "[w]hen the manner of death appears to be other than natural[.]"

         {¶ 51} Brothers' statement that "[t]here may be a problem here" was vague and not

targeted to anyone, and it does not demonstrate that AIT's toxicology report was either

prepared for the primary purpose of accusing a targeted individual or prepared for the

primary purpose of providing evidence in a criminal trial. Instead, the toxicology report was

prepared for the primary purpose of fulfilling the request made by one of AIT's clients,
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namely, Dr. Wanger, who requested the report in order to determine the cause of Christine's

death, which Dr. Wanger was statutorily obligated to do. See KRS 72.245 ("[a]t the request

of the coroner the county or district medical examiner shall assist in the investigation of

deaths). See generally KRS 72.210 (purpose of the Office of the Kentucky State Medical

Examiner is "to aid, assist, and complement the coroner in the performance of his duties by

providing medical assistance to him in determining causes of death"). Neither the Coroner's

Investigation Report, the AIT toxicology report nor the autopsy report implicated any person

in Christine's death in any respect and particularly as having supplied or administered the

lethal dose of heroin. Consequently, the AIT toxicology report that was created at the

medical examiner's (Dr. Wanger's) request and used by him to determine the cause of

Christine's death was nontestimonial for purposes of the Confrontation Clause, and therefore

the trial court did not err in admitting it into evidence at trial. James, 712 F.3d 79, 101-102.

       {¶ 52} Appellant notes that the state occasionally referred to AIT's toxicology report as

a "litigation packet," and states that "[b]y definition a 'litigation packet' is not a document

created for the administration of AIT Laboratory's affairs, but was created for the sole

purpose of use by the State at trial." However, we decline to interpret the state's occasional

reference to AIT's toxicology report as a "litigation packet" as meaning that the primary

purpose of that report was for its use at trial. AIT's primary purpose in creating the toxicology

report was to serve the interest of its paying client, Dr. Wanger, and Dr. Wanger's primary

purpose in requesting the toxicology report was to determine the cause of Christine's death,

which he was statutorily obligated to do.

       {¶ 53} Additionally, we note that Christine's autopsy report that was prepared by Dr.

Wanger and listed heroin toxicity as the cause of Christine's death was admitted into

evidence without objection. Because the autopsy report was "neither prepared for the

primary purpose of accusing a targeted individual nor prepared for the primary purpose of
                                              - 21 -
                                                                      Brown CA2013-02-001

providing evidence in a criminal trial," the report is "nontestimonial" and thus was admissible

as a business record under Evid.R. 803(6), and the admission of the autopsy report into

evidence did not violate appellant's Sixth Amendment confrontation rights. Maxwell, 2014-

Ohio-1019 at syllabus. Consequently, any error in the admission of the AIT toxicology report

was harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24.

       {¶ 54} Accordingly, appellant's third assignment of error is overruled.

       {¶ 55} Judgment affirmed.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




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