# In re H.B.

> Ohio Court of Appeals · June 18, 2025 · 2025 Ohio 2159

URL: https://www.frixlaw.com/law-library/cases/11079636

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** June 18, 2025
- **Citations:** 2025 Ohio 2159
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Baldwin
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

[Cite as In re H.B., 2025-Ohio-2159.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES:
H.B. : Hon. Craig R. Baldwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. Andrew J. King, J.
:
:
: Case No. CT2024-0088
:
: OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Juvenile
Division, Case No. 22220381

JUDGMENT: Affirmed in part; Remanded in part

DATE OF JUDGMENT: June 18, 2025

APPEARANCES:

For Appellant H.B. For Appellee State of Ohio

RICHARD HIXON RONALD L. WELCH
3808 James Court, Suite 2 Prosecuting Attorney
Zanesville, Ohio 43701 Muskingum County, Ohio

By: KALLEN M. HADDOX
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702
Baldwin, P.J.

{¶1} The appellant, H.B., appeals from the decision of the juvenile court

adjudicating him a delinquent child. Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On or about February 19, 2022, appellant H.B. (DOB 11/06/2004), was at a

weekly family dinner at which A.W. (DOB 11/18/2015) was also in attendance. H.B., who

was 17 years old at the time, and A.W., who was 6 years old at the time, were alone

together in a bedroom “playing doctor”. Following the family gathering A.W.’s parents

noticed odd changes in her behavior, including being eager to leave the family gathering

when in the past she’d always begged to stay longer; seeming more tired than usual;

being quiet and more withdrawn than usual; no longer being outgoing and instead keeping

to herself; not wanting to her little brother to go into the bathroom with her; no longer

wanting to help change her little brother’s diapers; and, no longer wanting to hug or be

hugged by boys. At some point A.W. told her parents about the incident. The Muskingum

County Sheriff’s Department was contacted and a report was filed, and A.W. was taken

to Nationwide Children’s Hospital where she was interviewed by Forensic Interviewer

Woori Song. A video recording was made of Ms. Song’s interview with A.W.

{¶3} A.W. told Ms. Song that she and H.B. were alone in a bedroom, and that

H.B. took out the “part that he pees out of” and touched her “where she pees.” A.W.

described in detail how this event occurred, telling Ms. Song that H.B. made her “close

her eyes and pretend she was dead,” and gave her “a shot” by using his penis to touch

her. A.W. showed Ms. Song how H.B. moved his hips back and forth when “the thing that

he peed out of” was touching her.
{¶4} On June 28, 2022, the State of Ohio filed a juvenile delinquency complaint

against H.B., alleging one count of Gross Sexual Imposition in violation of R.C.

2907.05(A)(4), a third degree felony; and, one count of Gross Sexual Imposition in

violation of R.C. 2907.05(A)(1), a fourth degree felony.

{¶5} An adjudication hearing was conducted before the magistrate on October

23, 2023, and October 24, 2023. The trial court heard testimony from a dozen witnesses.

A.W.’s parents testified regarding A.W.’s behavior both before and after the incident,

summarized above. Deputy Matthew Kallgren, of the Muskingum County Sheriff’s Office,

testified regarding his response to a call concerning an alleged sexual assault, the

statements he took from A.W.’s parents, his call to the on duty detective, his collection of

evidence (including the pants A.W. was wearing at the time of the alleged sexual assault,

the bed sheets that were on the bed on which the alleged sexual assault took place, and

photographs of the home in which the incident occurred), and his advice to A.W.’s parents

to take A.W. to Children’s Hospital to be seen by a SANE nurse.1 Detective Amy

Thompson, who was the Muskingum County Sheriff’s Office evidence detective at the

time, testified regarding the chain of custody of the evidence collected. Detective Jeremy

Archer of the Muskingum County Sheriff’s Office testified regarding his investigation of

the matter and his interviews with various witnesses, including the appellant; Detective

Archer testified that after he viewed A.W.’s forensic interview he interviewed H.B. a

second time, during which he noted a change in H.B.’s demeanor, including must less

eye contact from H.B. BCI Forensic Scientist Logan Schepeler testified regarding his

1A “SANE” nurse refers to a Sexual Assault Nurse Examiner, who is a registered nurse
having specialized training to examine, collect evidence, and provide care for victims of
sexual assault.
tests of the evidence collected, including the test results of the DNA evidence collected

from the scene, and testified further that sperm fraction DNA evidence was found in the

crotch area of the black pants A.W. was wearing at the time of the alleged sexual assault,

and that he could not exclude the appellant, who had provided a cheek swab DNA

sample, from that sperm fraction sample. Forensic examiner Song also testified regarding

her forensic interview of A.W., summarized above, and statements made by A.W. during

the interview. The recording of the forensic interview was played for the court and

submitted into evidence. A.W. did not testify. The appellee called the appellant’s mother

as a witness to establish the appellant’s date of birth, after which the appellee rested.

{¶6} The appellant called his aunt, T.B., as his first witness, who testified that

A.W. always wanted to play with H.B. at family gatherings, that on the day in question

A.W. was sitting on H.B.’s shoulders when she arrived, that A.W. did not appear fearful

of H.B., that A.W. appeared upset when H.B. left the gathering, and that A.W. was present

in the same house as H.B. after the incident without appearing fearful. H.B.’s minor

cousin, C.B., testified that A.W. liked to play with H.B., that on the day of the incident he

could see into the room where the incident allegedly occurred and did not see H.B. expose

himself to A.W., and did not hear A.W. express any distress while in the room. H.B.’s

grandmother, C.F.B., testified that A.W. liked to play with H.B., and liked to have

piggyback rides, be on his shoulders or get picked up, all of which happened on the day

in question. H.B. testified that, prior to the alleged incident, he and A.W. “were like --

almost, like best friends. So we’d play -- play when she wanted to play”. H.B. testified that

A.W. wanted to play doctor, that he put A.W. on the bed and played doctor with her, and
pretended to knock her out; however, he adamantly denied exposing himself to her,

sexually assaulting her, or being otherwise sexually inappropriate with her.

{¶7} On December 20, 2023, the magistrate issued a Magistrate’s Decision –

Findings of Fact and Conclusions of Law adjudicating H.B. delinquent on both counts of

gross sexual imposition as alleged in the complaint. H.B. filed objections to the

magistrate’s decision, and the issues raised therein were briefed by the parties.

{¶8} The matter came before the trial court on January 3, 2024, on H.B.’s

objections to the magistrate’s decision, after which the court issued a Disposition in which

it checked the “Plea of Admit” box and “Youth was advised of consequences of plea and

rights waived. Pleas entered freely, voluntarily w/o inducement. Reports of police, family,

juvenile, provided a factual basis for support of plea” box, in addition to the “Finding of

Guilt” box. On June 21, 2024, the trial court issued an Entry overruling H.B.’s objections.

{¶9} H.B. filed a timely appeal in which he sets forth the following four

assignments of error:

{¶10} “I. THE TRIAL COURT ERRED ON THE FACE OF ITS JANUARY 3rd, 2024

ENTRY BY INDICATING THAT H.B ENTERED A PLEA OF ADMISSION AS TO BOTH

COUNTS UNDER R.C 2907.05(A) WHEN H.B. DID NOT DO SO.”

{¶11} “II. THE TRIAL COURT ERRED IN DETERMINING THAT THE

STATEMENTS MADE BY A.W. DURING HER FORENSIC INTERVIEW WERE

ADMISSIBLE, AS HER STATEMENTS DURING THE INTERVIEW WERE

TESTIMONIAL IN NATURE AND A.W. WAS NEVER MADE AVAILABLE FOR CROSS

EXAMINATION, IN VIOLATION OF H.B.’S CONSTITUTIONAL RIGHT TO

CONFRONTATION.”
{¶12} “III. THE TRIAL COURT ERRED IN DETERMINING THAT THE

STATEMENTS MADE BY A.W. DURING HER FORENSIC INTERVIEW WERE

ADMISSIBLE UNDER EVID. R. 803(4).”

{¶13} “IV. THE TRIAL COURT ERRED IN FINDING H.B. TO BE A DELINQUENT

CHILD, AS SUCH A FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE AND BASED ON INSUFFICIENT EVIDENCE.”

ASSIGNMENT OF ERROR I

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

on the face of its January 3, 2024, Disposition entry because it incorrectly checked boxes

indicating that H.B. entered a plea of admission as to both counts of gross sexual

imposition when he did not. We agree.

{¶15} Crim.R. 36 provides that “[c]lerical mistakes in judgments, orders, or other

parts of the record, and errors in the record arising from oversight or omission, may be

corrected by the court at any time.” This issue was addressed by the Ohio Supreme Court

in State ex rel. DeWine v. Burge, 2011-Ohio-235, in which the Court stated:

. . . “[C]ourts possess inherent authority to correct clerical errors in judgment

entries so that the record speaks the truth.” State ex rel. Cruzado v. Zaleski,

111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19. “[N]unc pro

tunc entries ‘are limited in proper use to reflecting what the court actually

decided, not what the court might or should have decided.’ ” Mayer, 97 Ohio

St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 14, quoting State ex rel.

Fogle v. Steiner (1995), 74 Ohio St.3d 158, 164, 656 N.E.2d 1288. A nunc

pro tunc entry is often used to correct a sentencing entry that, because of a
mere oversight or omission, does not comply with Crim.R. 32(C). See, e.g.,

State v. Havugiyaremye, Lucas App. No. L–08–1201, 2010-Ohio-4204,

2010 WL 3482546, ¶ 1, fn. 1; State v. Evans, Medina App. No. 09CA0102–

M, 2010-Ohio-2514, 2010 WL 2245587, ¶ 2.

Consistent with the treatment of Crim.R. 32(C) errors as clerical

mistakes that can be remedied by a nunc pro tunc entry, we have expressly

held that “the remedy for a failure to comply with Crim.R. 32(C) is a revised

sentencing entry rather than a new hearing.” State ex rel. Alicea v.

Krichbaum, 126 Ohio St.3d 194, 2010-Ohio-3234, 931 N.E.2d 1079, ¶ 2;

see also State ex rel. Culgan v. Medina Cty. Court of Common Pleas, 119

Ohio St.3d 535, 2008-Ohio-4609, 895 N.E.2d 805, ¶ 10–11 (a defendant is

entitled to a sentencing entry that complies with Crim.R. 32(C)); Dunn v.

Smith, 119 Ohio St.3d 364, 2008-Ohio-4565, 894 N.E.2d 312, ¶ 10 (when

a trial court fails to comply with Crim.R. 32(C), “the appropriate remedy is

correcting the journal entry”).

Id. at ¶¶ 17-18. The issue of nunc pro tunc entries was recently discussed by this Court

in State v. Richmond, 2025-Ohio-1076 (5th Dist.):

The very purpose of a “nunc pro tunc” entry is to memorialize judicial

action previously taken but unintentionally omitted from the written entry.

Bonnell, ¶ 30. It is a simple device by which a court may make its journal

speak the truth. State v. Boler, 2021-Ohio-4081, 2021 WL 5356851, ¶ 9,

citing State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 163-164, 656 N.E.2d

1288 (1995); see also Crim. R. 36 (“Clerical mistakes in judgments, orders,
or other parts of the record, and errors in the record arising from oversight

or omission, may be corrected by the court at any time”). Thus, “nunc pro

tunc” entries are limited in proper use to reflecting what the court in fact

decided, not what it might or should have decided or even what the court

intended to decide. Fogle, 74 Ohio St.3d at 164, 656 N.E.2d 1288.

Id. at ¶ 14.

{¶16} The trial court’s checkmarks indicating that the appellant entered a plea of

admit were clearly clerical mistakes, particularly in light of the fact that it also placed a

checkmark indicating that there was a “finding of guilt.” This error can be corrected

through a nunc pro tunc entry. Accordingly, we remand the matter to the trial court with

instructions to issue a “nunc pro tunc” Disposition entry specifically indicating a “finding

of guilty” only.

ASSIGNMENTS OF ERROR II and III

{¶17} The appellant’s second and third assignments of error are interrelated, and

as such we shall address them together. The appellant argues in his second assignment

of error that statements made by A.W. during her forensic interview were testimonial in

nature, that A.W. was never made available for cross examination, and that the trial court

erred in admitting the statements in violation of H.B.’s constitutional right to confront

witnesses testifying against him. In his third assignment of error he submits that the

statements made by A.W. during her forensic interview were not admissible under Evid.

R. 803(4), and the trial court erred in admitting them. We disagree.
{¶18} The issues of confrontation and hearsay relative to a forensic interviewer’s

testimony regarding statements made to the interviewer by a child victim were recently

addressed by this Court in In re C.B., 2025-Ohio-1361 (5th Dist.):

The Sixth Amendment to the United States Constitution protects the

right of a criminal defendant “to be confronted with the witnesses against

him.” The “primary object” of this provision is to prevent unchallenged

testimony from being used to convict an accused—a safeguard that applies

to both federal and state prosecutions. Crawford v. Washington, 541 U.S.

36, 42, 53-54 (2004). The provision encompasses the rights to have a

witness physically appear in the courtroom, to require the witness to testify

under oath, and to force the witness to be subject to cross-examination. See

Maryland v. Craig, 497 U.S. 836, 845-846 (1990).

The Confrontation Clause applies only to “testimonial statements.”

State v. Muttart, 2007-Ohio-5267, ¶ 59. A statement is testimonial if it is

made with “ ‘a primary purpose of creating an out-of-court substitute for trial

testimony.’ ” State v. Montgomery, 2016-Ohio-5487, ¶ 87, quoting Michigan

v. Bryant, 562 U.S. 344, 358 (2011).

We note the United States Supreme Court has found “[s]tatements

by very young children will rarely, if ever, implicate the Confrontation

Clause.” Ohio v. Clark, 576 U.S. 237, 247-248 (2015). The Clark Court

explained, “[f]ew preschool students understand the details of our criminal

justice system” and “young children ‘have little understanding of

prosecution.’ ” (Citation omitted) Id. at 248.
Id. at ¶¶ 25-27. The Court went on to cite the seminal case of State v. Arnold, 2010-Ohio-

2742:

In State v. Arnold, 2010-Ohio-2742, the Ohio Supreme Court

considered the admissibility of statements made during interviews at child-

advocacy centers. The issue in Arnold was whether a child's statements

during such an interview were for medical diagnosis or treatment, making

them “non-testimonial,” or whether they primarily served a forensic or

investigative purpose, making them “testimonial” in violation of the

defendant's confrontation rights. The Supreme Court began its analysis by

recognizing child-advocacy centers are unique insofar as a single interview

with a child serves “dual purposes,” which are: “(1) to gather forensic

information to investigate and potentially prosecute a defendant for the

offense and (2) to elicit information necessary for medical diagnosis and

treatment of the victim.” Id. at ¶ 33.

Reviewing the substance of the child's interview with the social

worker, the Arnold Court found some of the child's statements primarily had

a forensic or investigative purpose and were not objectively necessary to

resolve an ongoing emergency. Id. at ¶ 35. Those statements included, inter

alia, the child's assertion the defendant had “shut and locked the bedroom

door before raping her; her descriptions of where her mother and brother

were while she was in the bedroom with Arnold, of Arnold's boxer shorts, of

him removing them, and of what Arnold's ‘pee-pee’ looked like; and her

statement that Arnold removed her underwear.” Id. at ¶ 34. The Ohio
Supreme Court reasoned “[t]hese statements likely were not necessary for

medical diagnosis or treatment. Rather, they related primarily to the state's

investigation.” Id. However, the Arnold Court also found other statements

elicited during the forensic examination, like the sexual acts the defendant

performed, were non-testimonial and were admissible because they were

necessary for medical diagnosis and treatment. Id. at ¶¶ 37-38.

The Ohio Supreme Court held, to the extent the evidence obtained

during the interviews was to assist police in a “forensic investigation” of

abuse, it is “testimonial;” therefore, the Confrontation Clause of the Sixth

Amendment bars its introduction at trial. Id. at ¶ 36. However, to the extent

the evidence is obtained to medically diagnose and treat a child, the

evidence is non-testimonial and not barred from admission at trial. Id. at ¶

41.

Accordingly, in order to determine whether the statements made by

the Victim to Celeste Prince were made for the purpose of medical

diagnosis and treatment, as opposed to forensic investigative purposes, this

Court must ‘identify the primary purpose of the statements.’ See, State v.

Remy, 2018-Ohio-2856, ¶ 55 (2nd Dist.), citing Arnold, at ¶ 28. “Whether

the purpose of a child's statements is for medical diagnosis or treatment will

depend on the facts of the particular case.” State v. Jones, 2015-Ohio-4116,

¶ 73 (2nd Dist.)

In re C.B. at ¶¶ 28-31.
{¶19} Upon our review of the evidence, and in line with the decisions in C.B. and

Arnold, we find the statements made by A.W. during the interview with Forensic

Interviewer Song regarding sexual acts, particularly A.W.’s statements that H.B. took out

the “part that he pees out of” and touched her “where she pees,” made her “close her

eyes and pretend she was dead,” gave her “a shot” by using his penis to touch her and

pinned her down, and showed Ms. Song how H.B. moved his hips back and forth when

“the thing that he peed out of” was touching her, were necessary for medical diagnosis

and treatment. We find that the statements made by A.W. were non-testimonial and did

not violate H.B. rights under the Confrontation Clause.

{¶20} Furthermore, the statements were not precluded from admission by the

hearsay rule. As set forth by the Court in C.B.:

Evid.R. 803(4) allows, as an exception to the hearsay rule, the

admission of statements made in order to further medical treatment or

diagnosis. Statements that are admissible under Evid.R. 803(4) are

understood to be reliable because the effectiveness of treatment frequently

depends upon the accuracy of the information related to medical

professionals, and such statements are “reasonably relied on by [medical

professionals] in treatment or diagnosis.” State v. Dever, 64 Ohio St.3d 401,

411 (1992).

In State v. Dever, the Ohio Supreme Court addressed the issue

raised by Appellant herein, to wit: whether the trial court abused its

discretion in allowing a member of a sexual abuse intervention team “to

repeat at trial statements [the child victim] made to her during the medical
examination as an Evid.R. 803(4) hearsay exception?” Id. at 404. In Dever,

the trial court determined the child victim was incompetent to testify at trial

under Evid.R. 601 but permitted the doctor who examined the child victim

to repeat statements the child victim made pursuant to Evid.R. 803(4). Id.

at 402-403. The Dever Court found the trial court did not err in admitting the

child victim's statements under the Evid.R. 803(4) hearsay exception and

held “[s]tatements made by a child during a medical examination identifying

the perpetrator of sexual abuse, if made for purposes of diagnosis and

treatment, are admissible pursuant to Evid.R. 803(4), when such

statements are made for the purposes enumerated in that rule.” Id. at

paragraph two of the syllabus.

Id. at ¶¶ 35-36. Just as the Court found in C.B., we find that the trial court properly

evaluated the circumstances under which A.W. made her statements to Ms. Song during

the forensic interview. There is insufficient reason to doubt that the statements were made

for the purpose of medical diagnosis and treatment. Accordingly, the trial court did not

abuse its discretion in admitting the statements, as “neither Evid.R. 803(4) nor 102

requires exclusion of the child’s statements from evidence, when as here the record

supports the trial court’s determination that the requirement of Evid.R. 803(4) were met.”

(Citation omitted.) Id. at ¶37.

{¶21} Based upon the foregoing, we find appellant’s assignments of error

numbers two and three to be without merit, and they are therefore overruled.
ASSIGNMENT OF ERROR IV

{¶22} The appellant argues in his fourth assignment of error that the decision of

the trial court adjudicating him delinquent on two counts of gross sexual imposition was

against the manifest weight of the evidence and was not based on sufficient evidence.

We disagree.

{¶23} Sufficiency of the evidence was addressed by the Ohio Supreme Court in

State v. Worley, 2021-Ohio-2207:

The test for sufficiency of the evidence is “whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus, superseded by constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89,

102, 684 N.E.2d 668 (1997), fn. 4, and following Jackson v. Virginia, 443

U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “ ‘Proof beyond a

reasonable doubt’ is proof of such character that an ordinary person would

be willing to rely and act upon it in the most important of the person's own

affairs.” R.C. 2901.05(E). A sufficiency-of-the-evidence challenge asks

whether the evidence adduced at trial “is legally sufficient to support the jury

verdict as a matter of law.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-

4215, 954 N.E.2d 596, ¶ 219.

Id. at ¶57. Thus, a review of the constitutional sufficiency of evidence to support a criminal

conviction requires a court of appeals to determine whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.

{¶24} Manifest weight of the evidence, on the other hand, addresses the

evidence's effect of inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 386–387,

(1997), superseded by constitutional amendment on other grounds as stated by State v.

Smith, 1997–Ohio–355. The Court stated:

Weight of the evidence concerns “the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the

evidence in their minds, they shall find the greater amount of credible

evidence sustains the issue which is to be established before them. Weight

is not a question of mathematics, but depends on its effect in inducing

belief.” (Emphasis added.) Black's, supra, at 1594.

Id. at 387. The Court stated further:

When a court of appeals reverses a judgment of a trial court on the

basis that the verdict is against the weight of the evidence, the appellate

court sits as a “ ‘thirteenth juror’ ” and disagrees with the factfinder's

resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at

2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d

172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720–721 (“The court,

reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether
in resolving conflicts in the 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. The discretionary power to grant a new trial should

be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction.”).

Id.

{¶25} In addition, “[I]n determining whether the judgment below is manifestly

against the weight of the evidence, every reasonable intendment and every reasonable

presumption must be made in favor of the judgment and the finding of facts. * * *

{¶26} “If the evidence is susceptible of more than one construction, the reviewing

court is bound to give it that interpretation which is consistent with the verdict and

judgment, most favorable to sustaining the verdict and judgment.” Seasons Coal Co., Inc.

v. Cleveland, 10 Ohio St.3d 77, 80 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d,

Appellate Review, Section 60, at 191–192 (1978).

{¶27} The trial court heard the testimony described in detail above, and was free

to accept or reject any or all of the evidence offered by the parties and assess the veracity

of the witnesses. As set forth by the Court in C.B., supra:

. . .“While the jury may take note of the inconsistencies and resolve

or discount them accordingly * * * such inconsistencies do not render

defendant's conviction against the manifest weight or sufficiency of the

evidence.” (Citations omitted.) State v. Williams, 2024-Ohio-5578, ¶ 66 (5th

Dist.). It is the province of the jury to determine where the truth lies from
conflicting testimony. (Citations omitted.) State v. Sisson, 2023-Ohio-1273,

¶ 42.

The trier of fact, in this case the jury, was vested with the authority to

weigh the evidence and assess the credibility of the witnesses. State v.

DeHass, 10 Ohio St.2d 230, paragraph one of the syllabus (1967).

Moreover, the jury was free to believe some, all, or none of the testimony of

any witnesses. Domigan v. Gillette, 17 Ohio App.3d 228, 229 (2nd 1984).

Id. at ¶60-61.

{¶28} In this case, the trial court, as the trier of fact, possessed the authority to

weigh the evidence and ascertain the veracity of the witnesses, and to believe some, all,

or none of the testimony. Based upon the evidence presented, the trial court found beyond

a doubt that the appellant was adjudicated to be a delinquent child on two counts of gross

sexual conduct. We find that the evidence adduced at the adjudication “is legally sufficient

to support the jury verdict as a matter of law.” Furthermore, there is no evidence that the

trier of fact lost its way resulting in a manifest miscarriage of justice. Accordingly, we find

that appellant’s assignment of error number four to be without merit.
CONCLUSION

{¶29} Based upon the foregoing, the appellant’s assignment of error number one

is narrowly sustained and the matter remanded to the trial court for the sole purpose of

issuing a “nunc pro tunc” Disposition entry specifically indicating a “finding of guilty” only.

The appellant’s assignments of error numbers two, three, and four are overruled, and the

decision of the Muskingum County Court of Common Pleas, Juvenile Division, with regard

to those assignments of error, is hereby affirmed.

By: Baldwin, P.J.

King, J. concur

Hoffman, J. concurs separately.
Hoffman, J., concurring

{¶30} I concur in the majority’s analyses and disposition of Appellant’s first and

fourth assignments of error. I further concur, in general, with the majority’s analysis of

Appellant’s second and third assignments of error and concur in its decision to overrule

them. My disagreement with part of its analysis follows.

{¶31} The majority lists a number of statements made by A.W. to Interviewer Ms.

Song finding them to be necessary for medical diagnosis and treatment; and therefore,

non-testimonial.2 Of those listed, I do not believe A.W.’s statement H.B. made her “close

her eyes and pretend she was dead” was necessary for medical diagnosis and treatment.

I find it is testimonial in nature. However, I find its admission does not violate the

Confrontation Clause because at A.W.’s young age, she would not have understood her

statement would likely be used in a subsequent prosecution.3

{¶32} However, a different analysis is necessary in determining whether that

same statement violates the hearsay rule. Unlike the majority which concluded such

statement satisfies the medical diagnosis and treatment exception found in Evid.R.

803(4), (which conclusion I have already disagreed with, supra), I find it was error to admit

it. The issue then becomes whether its admission was prejudicial.

2 Appellant lists additional statements A.W. made in her interview by Ms. Song not mentioned in the
majority’s analysis. (See Appellant’s Brief at pp. 13-14). Some I find qualify as being related to medical
diagnosis and treatment and therefore, are non-testimonial and also admissible as a hearsay exception.
Others I do not so find. Some I would find were for investigative purposes. I choose not to address them
individually herein as I find none of them violate the Confrontation Clause in this case based upon A.W.'s
age. I find admission of those that do not quality as an exception to the hearsay rule under Evid.R. 803(4)
amounted to harmless error.
3 This same analysis applies to other statements of A.W., as testified to by Ms. Song, that would be

considered testimonial in nature. As such, their admission does not constitute a violation of the
Confrontation Clause in this case.
{¶33} While Appellant asserts the trial court’s own entry explicitly emphasizes the

alleged improperly admitted testimonial statements of A.W., my review of that entry does

not lead me to such conclusion.4 The magistrate’s FINDINGS OF FACT is a misnomer.

In reality, it is mostly a reiteration of the various witnesses’ testimony without a specific

affirmation the magistrate found them to be established as fact.

{¶34} The only explicit reference to an improperly admitted statement of A.W.

considered by the magistrate in adjudicating Appellant delinquent is found in the

magistrate's CONCLUSION OF LAW. Therein, the magistrate notes H.B.'s criminal

conduct occurred while he and A.W. were playing doctor.

{¶35} Significantly, and as noted in the majority opinion, H.B. testified he played

doctor with A.W. As such, any error associated with A.W.’s statement to that effect is

certainly harmless. Likewise, I find admission of A.W.’s statement H.B. made her “close

her eyes and pretend she was dead” was harmless error.

4 Appellant is apparently referring to the magistrate’s decision, not that of the trial court.
However, the trial
court found “no error of law or other defect on its face” when overruling Appellant’s objections to the
magistrate’s decision.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11079636. Public record. Not legal advice.