[Cite as State v. Hardin, 193 Ohio App.3d 666, 2010-Ohio-6304.]



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


THE STATE OF OHIO,                                    :
                                                      :
            Appellee,                                 :   Case No: 10CA803
                                                      :
            v.                                        :
                                                      :   DECISION AND
HARDIN,                                               :   JUDGMENT ENTRY
                                                      :
            Appellant.                                :   File-stamped date: 12-10-10



                                           APPEARANCES:

        Robert Junk, Pike County Prosecuting Attorney, for appellee.


        Timothy Young, Ohio Public Defender, and Spencer J. Cahoon, Assistant Public
        Defender, for appellant.



        KLINE, Judge.

        {¶1}      Jeffrey Hardin appeals his felony-murder and endangering-children

convictions. Hardin contends that the trial court erred and admitted evidence contrary

to his right to confront the witnesses against him under the Sixth Amendment of the

United States Constitution. Hardin maintains that the testimony of the Franklin County

Coroner violated his right to confrontation because the coroner was not present during

the actual autopsy and relied on the observations and conclusions of a deputy coroner

who actually conducted the autopsy.                 Because the Supreme Court of Ohio has
Pike App. No. 10CA803                                                                    2


previously ruled that coroner’s reports are nontestimonial business records, we

disagree.

       {¶2}     Hardin next contends that the admission of the coroner’s opinion and the

opinion of another medical doctor, Dr. Scribano, violated the Ohio Rules of Evidence.

Because we find that the underlying coroner’s report was admissible as a self-

authenticated public record, we disagree. And we further find that any error in the

admission of the notes and records relied on by Dr. Scribano was harmless.

Accordingly, we affirm the judgment of the trial court.

       {¶3}     The events in this case concern the death of Jeffrey Hardin Jr. (“Junior”).

Junior was the son of Sasha Starkey and Hardin. On May 11, 2009, Starkey called 9-1-

1 because Junior had stopped breathing.

       {¶4}     An emergency response was dispatched, consisting of both police and

paramedics. By the time the paramedics arrived, Junior was pale and cool and had no

pulse. The paramedics attempted to resuscitate Junior while they transported him to

the Pike Community Hospital.          All attempts to resuscitate Junior were initially

unsuccessful.    Eventually, the emergency room personnel were able to reestablish

Junior’s heartbeat. Junior was then transferred to Nationwide Children’s Hospital in

Columbus. The doctors reestablished a pulse but were unable to reestablish Junior’s

respiration. And eventually, doctors at Nationwide Children’s Hospital had little choice

but to terminate Junior’s life support.

       {¶5}     Along with paramedics, Corporal Rick Jenkins of the Piketon Police

Department responded to the 9-1-1 call. Jenkins testified that when he arrived, Hardin

was extremely distraught. Hardin admitted that he tried to get the baby to sleep by
Pike App. No. 10CA803                                                                  3


placing the child on a sofa and pressing up and down on the cushions, causing the baby

to gently shake.

       {¶6}    Jenkins also took a statement from Hardin, which stated, “I, Jeff Hardin,

was having trouble with my son of 5 months. I had shake * * * I had shuck [sic] him a

couple of times. After that he started crying and fell asleep. He quit breathing.” Hardin

would later make a similar statement to a criminal investigator of the Pike County

Prosecutor's Office. At trial, Hardin contended that he meant “shake” in a manner

similar to that described in the preceding paragraph.

       {¶7}    After the child’s death, the body was eventually taken to the Franklin

County Coroner’s Office for an autopsy. The autopsy was conducted by Dr. Steven S.

Sohn, a deputy coroner, but by the time of trial, Dr. Sohn no longer worked at the

Franklin County Coroner’s Office. Therefore, his supervisor, Dr. Jan Gorniak, testified

as to her opinion of the cause of death. Dr. Gorniak testified that Junior’s death was

caused by a subdural hematoma due to nonaccidental head trauma. Dr. Gorniak also

testified that the death was a homicide and concluded that the injuries were caused by

either blunt trauma or by shaking.

       {¶8}    Dr. Phillip Scribano is the medical director of the Center for Child and

Family Advocacy at Nationwide Children’s Hospital.       Dr. Scribano testified that the

particular injuries Junior suffered could not have been caused by the manipulation of

sofa cushions as Hardin described. Rather, Dr. Scribano testified that the injuries could

have only been caused by significantly more force. Hardin’s counsel objected to the

admission of both Dr. Gorniak’s and Dr. Scribano’s opinions.
Pike App. No. 10CA803                                                                   4


       {¶9}    After a bench trial, the trial court found Hardin guilty of the offenses of

felony murder, in violation of R.C. 2903.02(B), and endangering children, in violation of

R.C. 2919.22(B)(1). The trial court sentenced Hardin to 15 years to life on the felony-

murder conviction as well as six years on the endangering-children conviction,

sentences to be served concurrently.

       {¶10}    Hardin appeals and asserts the following two assignments of error: I.

“When the court admitted the reports of multiple attending physicians and medical

technicians without their testimony, Mr. Hardin’s right to confront his accusers was

violated.” II. “The trial court erred by allowing expert testimony when the experts had

neither directly perceived the facts leading to their opinions nor was the information

underlying their opinions otherwise admissible.”

       {¶11}    Hardin first claims that the admission of the autopsy report violated his

right “o be confronted with the witnesses against him under the Sixth Amendment to the

United States Constitution. The parties largely agree on the underlying facts of the

argument. At trial, Dr. Gorniak, the Franklin County Coroner, testified as to her opinion

as to what could and could not have caused the death of Junior. Dr. Gorniak did not

perform the autopsy of Junior. Dr. Sohn instead performed the autopsy and reached a

conclusion regarding the cause of death. Dr. Gorniak testified that she had reached her

conclusions independently of Dr. Sohn, but had to rely on the facts underlying Dr.

Sohn’s autopsy report. Dr. Boesel, a toxicologist, also attached a toxicology report to

the autopsy report. Dr. Gorniak testified that while Dr. Boesel’s report was important,

she could reach her conclusions independently of that report.
Pike App. No. 10CA803                                                                    5


       {¶12}     Because Hardin’s right to confront the witnesses against him involves a

constitutional issue, our review is de novo. See, e.g., Ohio Univ. Bd. of Trustees v.

Smith, 132 Ohio App.3d 211, 223.

       {¶13}     The United States Supreme Court has recently altered the law with

respect to the Confrontation Clause, starting with Crawford v. Washington (2004), 541

U.S. 36. The Crawford court held that statements elicited through police interrogation

were within the “core class” of testimonial evidence, and “[w]here testimonial evidence

is at issue * * * the Sixth Amendment demands what the common law required:

unavailability and a prior opportunity for cross-examination.” Id. at 51-52, 68.

       {¶14}     In Crawford, the Supreme Court declined to offer a comprehensive

definition of what statements were or were not testimonial. Id. at 68. Unsurprisingly,

the question of whether a particular statement was a testimonial statement became a

much litigated issue. Subsequently, the Supreme Court considered the question of

testimonial statements again in Davis v. Washington (2006), 547 U.S. 813.

       {¶15}     Davis actually consisted of two separate cases. In the first, the relevant

statements were made to a 9-1-1 emergency operator.            In the second, the police

responded to a reported domestic disturbance. And in the second case, the relevant

statements were given after the wife had been separately questioned on the scene by

the police officers.

       {¶16}     The Supreme Court concluded that “[s]tatements are nontestimonial

when made in the course of police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is to enable police assistance to

meet an ongoing emergency. They are testimonial when the circumstances objectively
Pike App. No. 10CA803                                                                   6


indicate that there is no such ongoing emergency, and that the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later criminal

prosecution.” Id. at 822. Accordingly, the Supreme Court found that the statements

given to the 9-1-1 operator were not testimonial, while the statements elicited during the

police interrogation were testimonial. Id. at 828-829, 830.

       {¶17}    After Crawford, the Supreme Court of Ohio considered a Confrontation

Clause challenge with facts remarkably similar to the present case. See State v. Craig,

110 Ohio St.3d 306, 2006-Ohio-4571, at ¶ 88. The Supreme Court of Ohio held that a

coroner’s report was admissible notwithstanding Crawford because it was a

nontestimonial business record. Id.

       {¶18}    The United States Supreme Court revisited the question of testimonial

hearsay in Melendez-Diaz v. Massachusetts (2009), --- U.S. ---, 129 S.Ct. 2527. In that

case, the question was whether the admission of “certificates” for the purpose of

establishing whether a particular substance consisted of cocaine violated the

defendant’s Confrontation Clause rights. Id. at 2531. The Supreme Court answered

that question in the affirmative in a narrowly divided opinion. See id. at 2532.

       {¶19}    Among other arguments, the Melendez-Diaz court rejected the state’s

argument that the certificates were business records. The court stated: “Business and

public records are generally admissible absent confrontation not because they qualify

under an exception to the hearsay rules, but because--having been created for the

administration of an entity’s affairs and not for the purpose of establishing or proving

some fact at trial--they are not testimonial. Whether or not they qualify as business or

official records, the analysts’ statements here--prepared specifically for use at
Pike App. No. 10CA803                                                                    7


petitioner’s trial--were testimony against petitioner, and the analysts were subject to

confrontation under the Sixth Amendment.”        (Emphasis added.)      Melendez-Diaz at

2539-2540.     The Melendez-Diaz court specifically noted that the reason that the

business record exception did not render the certificates nontestimonial was because

those certificates had been prepared expressly for trial. Id. at 2538. The implication is

that if a document was prepared for an entity’s internal needs, then that document is still

nontestimonial. Therefore, notwithstanding the rejection of the majority in Melendez-

Diaz of the business-records justification, the coroner’s report in this case may still be

admissible without infringing on Hardin’s constitutional rights so long as it was not

prepared for the purpose of litigation.

       {¶20}    After consideration, Hardin provides no sound basis to distinguish this

case from Craig, 110 Ohio St.3d 306, and we can discern none from the record. And

the Craig court, after consideration, determined that the coroner’s report in that case

was not prepared for the purposes of litigation and so was nontestimonial. See Craig at

¶ 82-88. A close reading of Melendez-Diaz demonstrates that the basis of Craig’s ruling

remains good law under current United States Supreme Court precedent, and we are

bound to apply Craig.

       {¶21}    Accordingly, we overrule Hardin’s first assignment of error.

       {¶22}    Hardin next contends that the admissions of Dr. Gorniak’s and Dr.

Scribano’s opinions were contrary to the Ohio Rules of Evidence.

       {¶23}    “The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court.” State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of

the syllabus. “An abuse of discretion involves more than an error of judgment or law; it
Pike App. No. 10CA803                                                                  8


implies an attitude on the part of the trial court that is unreasonable, arbitrary, or

unconscionable.” State v. Voycik, Washington App. Nos. 08CA33 and 08CA34, 2009-

Ohio-3669, at ¶ 13, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. “In

applying the abuse of discretion standard, we are not free to substitute our judgment for

that of the trial court.” State v. Burkhart, Washington App. No. 08CA22, 2009-Ohio-

1847, at ¶ 19.

       {¶24}     Specifically, Hardin contends that the admission of Dr. Gorniak’s

opinion violated Evid.R. 703. “The facts or data in the particular case upon which an

expert bases an opinion or inference may be those perceived by the expert or admitted

in evidence at the hearing.” Evid.R. 703. Here, there is no question but that the basis

for Gorniak’s opinion was the report prepared by Dr. Sohn (among others). Hardin

contends that the trial court erred in the admission of Dr. Gorniak’s opinion as well as

the opinion of Dr. Scribano.

       {¶25}     Hardin cites a case in which the Second District Court of Appeals held

that the trial court erred in the admission of a coroner’s opinion where the opinion “was

based entirely on facts perceived by others and evidence that was not admitted at trial.”

State v. Fouty (1996), 110 Ohio App.3d 130, 135.

       {¶26}     In the present case, however, the trial court admitted the coroner’s

report into evidence. And we find that the trial court properly admitted the coroner’s

report as a public record. See Evid.R. 803(8); see also State v. Sampsill (June 29,

1998), Pickaway App. No. 97CA17, citing Goldsby v. Gerber (1987), 31 Ohio App.3d

268, 269, abrogated on different grounds by State ex rel. Blair v. Balraj (1994), 69 Ohio

St.3d 310, 313-314. We note that the Sampsill court listed several limitations of this
Pike App. No. 10CA803                                                                                     9


rule, but none of those limitations are present in this case. In addition, we note that the

report was embossed with a seal and was a self-authenticating document. Evid.R.

902(1). Therefore, Dr Sohn’s report was properly admitted into evidence and could be

relied upon by Dr. Gorniak in reaching her own independent conclusions under Evid.R.

703.1

        {¶27}      Hardin next claims that the admission of Dr. Scribano’s opinion also

violated Evid.R. 703. Dr. Scribano testified as follows: “Within a reasonable degree of

medical certainty, my diagnosis when I received the call and reviewed the x-rays and

medical record uh, was abusive head trauma. That was confirmed by additional review

of the photographs by our staff in the hospital, as well as the photos from the Coroner’s

Office. And uh, abusive head trauma that has evidence of uh, impact that is visible on

physical examination, uh, but also shaking and the retinal hemorrhages uh, that are

identified on autopsy that are uh, further confirmation of a shaking mechanism.”

        {¶28}      “Q.     * * * In your opinion, are these injuries consistent with a baby

being bounced on a couch cushion?

        {¶29}      “A. No.

        {¶30}      “Q. Given your years of experience and training, what kind of force

would be needed to exert or to cause these kinds of injuries?

        {¶31}      “A. The degree of force is severe. The degree of force is such that no

reasonable caregiver would ever come close to exhibiting in normal care of an infant.

Uh, to ascribe a number in terms of force, in terms of [joules] as a measure of force, uh,


1
  We note that this finding does not conflict with the rule in Craig. There was no custodian of records to
lay a foundation for the admissibility of the report, but, as Melendez-Diaz made clear, the issue under the
Confrontation Clause is not whether the report satisfies a particular hearsay exception. Rather, the
question is whether the evidence was prepared for the purposes of litigation.
Pike App. No. 10CA803                                                                 10


there are biomechanic studies that look at injury thresholds and they’re not adequate in

answering the question. Uh we know that these forces are uh, generating injuries as

severe, and worse than, severe motor vehicle crashes that require immediate life

support. Uh, so that gives a context to the degree of force. But I could not provide you

with an actual number or equation of force uh, right now.”

       {¶32}    From Dr. Scribano’s testimony, it is apparent that he relied upon more

than just the autopsy report. Generally, the record indicates that these materials were

other medical reports related to the care that Junior had received. Based on the record,

we see no particular reason that these materials could not have been admitted as

business records.       But no such foundation was made in regard to these reports.

Regardless, Dr. Scribano’s testimony is largely duplicative of Dr. Gorniak’s. Dr. Gorniak

testified that the “immediate cause of death was subdural hematoma due to non-

accidental head trauma.” She also testified that the death was a homicide and that the

injuries were caused by either blunt force trauma or a shaking mechanism.

       {¶33}    Some of the materials Dr. Scribano relied upon were neither admitted

into evidence nor matters that he personally perceived. This renders the admission of

his opinion error, but we find that error harmless. Under Crim.R. 52(A), “[a]ny error,

defect, irregularity, or variance which does not affect substantial rights shall be

disregarded.” Ohio courts have often found that the wrongful admission of cumulative

evidence constitutes harmless error. See, e.g., State v. Davis, Summit App. No. 22724,

2005-Ohio-6224, at ¶ 15; State v. Jones, Scioto App. No. 06CA3116, 2008-Ohio-968, at

¶ 23; State v. Kingery, Fayette App. No. CA2009-08-014, 2010-Ohio-1813, at ¶ 35,

citing State v. Fears (1999), 86 Ohio St.3d 329, 339.
Pike App. No. 10CA803                                                               11




       {¶34}     Accordingly, we overrule Hardin’s second assignment of error.

       {¶35}     Having overruled both of Hardin’s assignments of error, we affirm the

judgment of the trial court.



                                                                    Judgment affirmed.



       MCFARLAND, P.J., and ABELE, J., concur.
