Petition for Writ of Certiorari — Andrew Culler, Petitioner v. Ohio

No.:

In the Supreme Court of the United

States

Andrew Culler

Petitioner,

v.

The State of Ohio

Respondent.

On Petition for Writ of Certiorari to the Supreme Court of

the State of Ohio

Petition for a Writ of Certiorari

Rhys B. Cartwright-Jones

Counsel of Record

42 N. Phelps St.

Youngstown, OH 44503-1130

330-757-6609, tel.

866-223-3897, fax

rhys@cartwright-jones.com

Counsel for Petitioner

i

Question Presented for Review

The admission of testimonial hearsay violates the Sixth

Amendment's Confrontation Clause. In this case, the

medical/sexual assault nurse's examination constituted

testimonial hearsay. This is due to the lack of medical

corroboration and reliance on victim statements for

conclusions. Must this Court assume jurisdiction to address

this potential Sixth Amendment violation?

ii

Parties to the Proceeding and Rule 26.9 Statement

Petitioner and defendant-appellant below, Andrew

Culler, is an individual person and United States domiciliary.

The respondent, here, and the plaintiff-appellee below is the

U.S. Pursuant to S.Ct.R. 26.9, both parties, the U.S. and

Culler are non-corporate entities, and have no corporate

disclosures to make.

List of Related Proceedings

There are no proceedings that qualify as “related

proceedings” under Rule 14 of this Court’s rules of practice.

iii

Table of Contents

Page No.:

Questions Presented for Review.............................................i

Parties to the Proceeding and Rule 26.9

Statement................................................................................ii

List of Related Proceedings...................................................ii

Opinions Below......................................................................1

Jurisdiction.............................................................................1

Constitutional and Statutory Provisions.................................1

Reasons for Granting the Writ of Certiorari.......................2, 3

Summary of Argument.....................................................2 – 3

Procedural Posture and Factual Background...................3 – 4

Argument................................................................................5

Issue...........................................................................5

The admission of testimonial hearsay violates the

Sixth Amendment's Confrontation Clause. In this

case, the medical/sexual assault nurse's examination

constituted testimonial hearsay. This is due to the

lack of medical corroboration and reliance on victim

statements for conclusions. Must this Court assume

jurisdiction to address this potential Sixth

Amendment violation?

Conclusion............................................................................21

iv

Appendix Table of Contents

Appx. Page No.:

APPENDIX A

Judgment Entry of the Ohio Supreme Court........................2a

APPENDIX B

Judgment Entry and Opinion of the Court of Appeals of

Ohio for the Seventh District................................................3a

v

Table of Authorities

Cases

Page No.:

In re A.R., 9th Dist. No. 22836, 2006 Ohio1548; State v.

Major, 9th Dist. No. 21662, 2004 Ohio 1423..................1, 14

State v. Hill, 92 Ohio St. 3d at 205, 749 N.E.2d at 286.......11

In re I.W., 9thDist. Nos. 07CA0056 and 07CA0057, 2008

Ohio 2492.............................................................................14

People v. McDonald (1984), 37 Cal. 3d 351, 208 Cal.

Rptr.236, 690 P.2d 709, 721.................................................12

Plater v. Harpe, W.D.Okla. No. CIV-21-1092-HE, 2023U.S.

Dist. LEXIS 86560 (Apr. 6, 2023),......................................20

Plater v.Harpe, 2023 U.S. Dist. LEXIS 86560,....................18

State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742....4, 13

State v. Barnes, 94 OhioSt.3d 21, 2002-Ohio-68, 759 N.E.2d

1240......................................................................................12

State v. Bays, 87 Ohio St.3d 15, 1999-Ohio-216, 716 N.E.2d

1126 (1999), cited in Grimes infra.......................................14

State v. Boston(1989), 46 Ohio St.3d 108, 545 N.E.2d 120. .5

State v. Bradley (1989), 42 Ohio St.3d 136.........................16

State v. Brown, 84 Ohio App.3d 420...................................16

State v. Buell (1986), 22 OhioSt.3d 124, 22 Ohio B. 203, 489

N.E.2d 795............................................................................12

State v. Calhoun, 86 Ohio St.3d 279,1999 Ohio 102, 714

N.E. 2d 905 (1999)...............................................................18

State v. Gondor, 112 OhioSt.3d 377, 2006-Ohio-6679, 860

N.E.2d 77..............................................................................17

State v. Grimes, 5th Dist.Richland No. 2019CA0103, 2020Ohio-4357.............................................................................14

State v. Hill(2001), 92 Ohio St. 3d 191, 749 N.E.2d 274, 283

..............................................................................................10

State v. Jackson, 64 Ohio St.2d 107, 413N.E.2d 819 (1980)

........................................................................................17, 18

State v. Keith (1997), 79Ohio St. 3d 514, 684 N.E.2d 47, 54

..............................................................................................11

vi

State v. Long (1978), 53 Ohio St. 2d 91, 7 Ohio Op. 3d178,

372 N.E.2d 804.....................................................................11

State v. Lytle (1976), 48 Ohio St.2d 391.............................15

State v. Sanders (2001), 92 Ohio St. 3d 245,257, 750 N.E.2d

90, 111..................................................................................11

State v. Schewirey, 7th Dist.No. 05 MA 155, 2006-Ohio7054, ¶ 37-40........................................................................13

State v. Steffen, 70 Ohio St. 3d 399, 410, 1994Ohio 111, 639

N.E.2d 67 (1994)..................................................................17

State v. Stowers, 81 Ohio St.3d 260, 262, 1998 Ohio 632,

690 N.E.2d 88 (1998).......................................................6, 12

State v. Teagarden, 5th Dist. Licking No. 08-CA-39,2008Ohio-689...............................................................................14

State v. Brooks (1986), 25 Ohio St.3d 144, 147..................15

State v. Moreland (1990), 50 Ohio St. 3d 58, 62, 552 N.E.2d

894,899.................................................................................11

State v. Proffitt, 12th Dist. Butler Nos. CA2016-07-134,

CA2016-07-135, 2017-Ohio-1236.......................................16

States v. Atkinson (1936), 297 U.S. 157, 160, 56 S. Ct. 391

80 L. Ed. 555, 557................................................................12

Strickland v. Washington (1984), 466 U.S. 668..................15

In re T.L., 9th Dist. MedinaNo. 09CA0018-M, 2011-Ohio4709, ¶ 11-15........................................................................14

United States v.Olano (1993), 507 U.S. 725, 732, 113 S. Ct.

1770 123L. Ed. 2D 508........................................................11

vii

Rules, Statutes, Constitutional Provisions, and Other

Documents

28 U.S.C. § 2254..................................................................19

Crim.R. 52........................................................................3, 11

Evid.R. 702...........................................................................12

Evid.R. 704...........................................................................12

R.C. 2907.05.........................................................................17

R.C. 2907.05...........................................................................6

R.C.2907.03............................................................................6

1

Petition for a Writ of Certiorari

Andrew Culler petitions for a writ of certiorari to

review the decision of the Supreme Court of The State of

Ohio, effectively affirming and declining jurisdiction over

t h e Court of Appeals for the Seventh District’s order

affirming his conviction and sentence.

Opinions Below

T h e Ohio Supreme Court’s decision, which is the

final dispositive decision in the State of Ohio, dated October

24, 2023, is unreported and reproduced in Appendix A. The

prior decision of the Seventh District of Ohio's Appellate

System is included as Appendix B.

Jurisdiction

This Court’s jurisdiction rests on 28 U.S. Code §

1257, allowing a writ to issue relative to the final decision of

a state's highest court. The Supreme Court of the State of

Ohio is Ohio's court of highest jurisdiction, and it issued its

decision in this case on October 24, 2023.

Constitutional and Statutory Provisions

This Cause turns on the Fourth Amendment to the

U.S. Constitution and the Fourteenth Amendment, attaching

same to the conduct of states.

2

Reasons for Granting the Writ of Certiorari

Summary of Argument

This petition for a writ of certiorari challenges the

admissibility of certain testimonial hearsay evidence under

the Sixth Amendment's Confrontation Clause in Andrew

Culler's trial. The petitioner, Andrew Culler, contends that

the admission of statements made by the victim to a Sexual

Assault Nurse Examiner (SANE) at trial contravened his

constitutional rights, as these statements bore the

characteristics of testimonial hearsay without the safeguard

of cross-examination.

Culler argues that the reliance on the victim’s

statements in the absence of medical corroboration in the

SANE’s testimony does not align with the principles of a fair

trial mandated by the Sixth Amendment. He maintains that

this alleged constitutional breach necessitates the Court’s

jurisdiction to rectify a potential miscarriage of justice.

The petition further highlights procedural concerns at

the trial level, specifically addressing the denial of an

evidentiary hearing on the issue of ineffective assistance of

counsel. Culler suggests that this denial, as it pertains to the

Fourteenth Amendment's Due Process Clause, might have

impaired the fairness of the legal process afforded to him.

The petitioner also raises the issue of the trial court's

reliance on the contested testimonies, particularly in a bench

trial context, suggesting that this reliance might have unduly

influenced the trial's outcome. This aspect of the argument

emphasizes the need for stringent adherence to procedural

fairness to avoid any perceived injustice.

Ultimately, the petition urges the Court to clarify the

permissible scope of expert testimonies in sexual assault

cases, particularly in light of the Confrontation Clause.

3

Culler seeks to establish clearer boundaries for the

use of such testimonies in criminal trials to ensure that a

defendant's constitutional rights remain protected. This

clarification, he argues, holds significant implications not

only for his case but for the broader principles of justice and

the integrity of the judicial process in criminal jurisprudence.

Procedural Posture and Factual Background

Dive into the intricate tapestry of judicial procedure,

and you'll encounter threads that don't just dictate the course

of individual destinies, but fashion the very fabric of our

democratic society. We touch upon one such thread today:

the quintessential balance between ensuring a fair trial and

respecting the expertise of professionals. Andrew Culler's

situation draws our attention, like a clarion call, to a matter

of gravity that deserves our scrutiny. Why, one wonders,

when an appellant offers evidence outside the record—

especially on something as pivotal as ineffective assistance

—would a trial court shun the call for an evidentiary

hearing?

Peel back the layers, and the complexities become

apparent. The issue revolves around an intricate dance of

legal statutes, expert testimonies, and the interpretations of

both. The very guidelines of Crim.R. 52(B) beckon us to

identify three linchpins: an error, the obviousness of this

error, and the significant impact of this error. But even the

satisfying of these linchpins doesn't bind the court's hands—

it merely nudges a Court toward rectification.

Expertise and its role in the courtroom stand at the

heart of this conundrum. Yes, experts possess unique

knowledge, drawing from vast reservoirs of experience and

training. But when does this expertise transgress its

4

boundaries? Specifically, when it comes to medical experts,

at what point does their narrative veer off the path of medical

insight and tread into the territory of recapping a child's

narrative? This subtle but crucial distinction underscores the

essence of our democratic justice system.

The case of State v. Arnold, infra, highlights the

challenges of discerning between testimonial and nontestimonial statements made at child advocacy centers as

Ohio's courts have developed the issue. Can one easily

demarcate the line where forensic investigation ends and

medical diagnosis begins? Arnold pushes us to recognize the

multidimensional role of child advocacy centers, whose very

existence hinges on serving dual roles.

Lastly, we confront the intriguing conundrum of

bench versus jury trials. The assumption lies that in a bench

trial, only relevant and competent evidence influences the

verdict. But what if, as in this case, the trial Court openly

acknowledges its reliance on certain testimonies? The

landscape of judicial review shifts.

Ineffective assistance counsel—a constitutional issue

under the Sixth and Fourteenth Amendments—forms the

final strand of our inquiry. The question of hearsay and its

admis s ibi lit y, couple d wi th the c ompet ence of

representation, solidify the case's significance. In the end, the

matter doesn't just revolve around Andrew Culler; it probes

the very essence of our justice system, pushing us to ponder

how we want our society to adjudicate matters of such

consequence.

5

Law & Discussion

Standard of Review: This cause involves an issue

of law rather than an issue of fact or credibility. The defense

posits that this cause, therefore, merits de novo review.

Issue and Summary of Argument: The admission

of testimonial hearsay violates the Sixth Amendment's

Confrontation Clause. In this case, the medical/sexual assault

nurse's examination constituted testimonial hearsay. This is

due to the lack of medical corroboration and reliance on

victim statements for conclusions. Must this Court assume

jurisdiction to address this potential Sixth Amendment

violation?

Argument

This cause invites review of the plain error and

ineffective assistance issues the defense raised on direct

appeal, though now through the lens of postconviction,

supported by affidavits dehors the record. This cause invites

a review of this Court’s decisions in Boston and Sowers

relative to the admissibility of medical hearsay evidence in

sexual assault cases and relative to a trial attorneys’ Sixth

Amendment responsibility to be cognizant of applicable

major points of law. As this brief proceeds to relate, this has

allowed testimony by doctors who have concluded that a

particular child is the victim of sexual abuse. State v. Boston

(1989), 46 Ohio St.3d 108, 126, 545 N.E.2d 120; accord the

Tenth Circuit's decision infra in the federal milieu. In

Boston, Ohio's High Court noted that “[m]ost jurors would

not be aware, in their everyday experiences, of how sexually

abused children might respond to abuse.”

Id. at 128.

Therefore, “an expert's opinion testimony on whether there

was sexual abuse would aid jurors in making their decision

6

and is, therefore, admissible pursuant to Evid.R. 702 and

704.” Id. Nevertheless, an expert cannot give an opinion of

the veracity of the statements of a child declarant. Id. at

syllabus. There is a difference “between expert testimony

that a child witness is telling the truth and evidence which

bolsters a child's credibility.” State v. Stowers, 81 Ohio St.

3d 260, 262, 1998 Ohio 632, 690 N.E.2d 881. Such is the

issue here.

The trial of Andrew Culler and the resulting

conviction come based on medical hearsay that runs afoul of

Boston and Stowers. The medical testimony at issue was,

simply, recapitulations of what an adolescent related during

an interview. Accordingly, it was inadmissible. Granted,

trial counsel did not object. And the Seventh District’s

decision in the direct appeal of Culler, faced with lack of

objection, indicated that it was “difficult to conclude”

whether trial counsel’s performance was deficient in failing

to object. The defense, here, submits that error is obvious

and asks for this Court to review the following proposition of

law.

Turning to the procedural posture of the case, this

cause involves a bench trial and a conviction on various sex

crimes charges: one count of sexual battery under R.C.

2907.03(A)(5) and two counts of gross sexual imposition

under 2907.05(A)(4). The trial Court heard the state’s

evidence from the alleged victim, E.C., and from five other

witnesses: Brian Moore and Daniel Haueter, who were law

enforcement officers, Chase Murray and Christina Culler,

who were lay witnesses, and Tina Deal-Hendon, Courtney

Wilson, Monique Malmer, who were various levels of sexual

assault examiners. The basic gist of the case is that the lay,

law enforcement, and professional witnesses, recapitulated

the version of events that E.C. told them.

7

Brian Moore and Daniel Haueter both worked from

East Palestine P.D., took statements from the alleged victim,

and related those statements to Childrens’ Services. Moore

described the initial scene, the police having arrived on

Culler’s call relative to E.C. providing a Vape Pen to a

young person, such vape pen landing the young person in the

hospital. [Infra.] According to Moore, “[Culler] was

agitated.” Infra. Moore Continued, “He was—I approached

him first and spoke to him since he was the complainant.

He stated that his ex, Christina Culler, forced her way into

his residence. This was prompted by a text message that he

had sent to her about Emma selling a vape pen to [another

young person].” The use of that device, as mentioned above,

resulted in the young person’s hospitalization. [Tr. at 21, 32.]

In the midst of her being the subject of wrongdoing

involving contraband and hospitalization and the obvious

attendant punishment, E.C., according to Moore, came on the

scene and indicated that she had something to say. And she

proceeded to state that when she was 8 or 9 that Culler had

tried to rape her. According to Moore, “She stated that he

licked me down here, pointing to her vaginal area, touched

me here, pointing to her breasts, and tried to kiss me.” [Tr.

at 22, 23.] Moore took a brief statement and forwarded the

matter to Children's’ Services. [Tr. at 27.] The interview

lasted four or five minutes. [Tr. at 29.]

Similarly, Haueter, an officer since 1992, essentially

gathered evidence and conveyed it to Children's Services.

Counsel inquired, “So the information you provided was

simply what was related to Sergeant Moore essentially;

right?” Haueter responded, “Correct.” [Tr. at 186.] Haueter

proffered the information to Children's Services thereafter.

According to Haueter, relating his participation in an

interview with Children's Services, “I just observed.” [Tr. at

187.] And without objection from the defense, Haueter

8

related the contents of that interview, by way of hearsay, to

the bench. As part of the investigation, too, Haueter took

and searched E.C.’s cellular phone. The text messages [Tr.

190 – 196] contain single syllable words and innocuous

emojis apropos of nothing discernible, as is often the case

with young people’s text messages.

The theme of a recapitulated story continues with

Chase Murray and Christina Culler. Murray and the E.C.

had dated. [Tr. at 42.]

Murray’s testimony, without

objection from the defense, began in relevant part with, “It

was later on that night, I believe, she sent me a text message

and told me a bunch of stuff happened at the house.” [Tr. at

46.] Counsel further inquired, “What did [E.C.] tell you

happened at the house?” [Id.] Murray responded, “And she

told me she ran outside. I don't know how detailed she got,

but told me she started exposing him, basically, saying

things about what had happened to her that he had done[.]”

[Id.] The state inquired further, “I want to back you up a

couple days before that.

Do you recall having any

conversation with Emma about something that she was

struggling with?” [Tr. at 47.] Murray continued to relate

E.C.’s story by way of hearsay. [Id.] Murray further

identified text messages between the two, himself and E.C.

The text messages described, vaguely, allegations of sexual

conduct, but Murray, himself, testified that he was not sure

about their veracity, given that E.C. was in trouble with her

father. [Tr. at 85.] Christina Culler testified to E.C.’s version

of events, as E.C. related them to her. [Tr. at 113, and

following.] Likewise, she provided some information that

on the day that the matter came to police attention, E.C. and

her father, Andrew Culler, were in a heated argument about

E.C.’s distribution of the vape pen. [Tr. at 115.] She took

E.C. to Children's Services for an interview.

9

The Childrens Services witnesses, in their respective

parts, do an intake and an interview with E.C. and take down

that information as E.C. provided it.

And the Child

Advocacy center did, indeed, conduct a physical

examination. [Tr. at 291.] The result of the physical portion

of the examination is as follows: “I did not have physical

findings of sexual abuse[.]” [Tr. at 293.] And although the

examination, during the interview phase, would also focus

on behavioral concerns [Tr. at 283], the record is void of any

behavioral evidence corroborative of child sexual abuse.

Nevertheless and without objection, the following colloquy

occurred:

The State inquired, “And when you are concluded

with this entire process there at the CAC, do you render an

opinion as to whether or not there was sexual abuse?” [Tr.

at 293.]

Monique Malmer responded, “I do.” [Tr. at 293.]

The state continued, “And did you render an opinion

in this particular case?” [Tr. at 293.]

Malmer

responded, “I did render that it's highly concerning for sexual

abuse.” [Id.]

Following a long wind-up of hearsay testimony, E.C.

testified. She testified to incidents adding up to the elements

of the crimes charged. [See, e.g., Tr. at 349 – 51.] That

being said, her testimony withstood remarkable

impeachment. Despite, for example, by representation of the

state anyway, recounting her story several times, E.C.

couldn’t recount or recall the first time she spoke of the

occasion. [Tr. at 355.] Culler could not recount when any of

the alleged events occurred. [Tr. at 960.] And all of this, of

course, was during a period of time when E.C. was in serious

trouble for the vape incident, which, it bears repeating,

landed a young person in a hospital bed.

10

On the foregoing facts, the trial Court convicted and

the Seventh District affirmed. The defense timely filed for

postconviction relief below. Below, the defense proffered

affidavits and indicated that on review of the files of trial

counsel, there are no extant notes, research, or memoranda to

show that trial counsel were cognizant of the issues above or

that they endeavored to address the issues. an affidavit from

the Culler corroborated this point, and demonstrated that

counsel never addressed the issue with him. The trial Court

declined to hear the motion and overruled the petition. The

Seventh District affirmed. This timely appeal follows. Now,

the defense urges this Court to assume jurisdiction and to

reverse the conviction.

Argument

Specific to the procedural posture of postconviction,

if an appellant presented, below, competent and credible

evidence dehors the record of ineffective assistance, then a

trial Court must hold an evidentiary hearing. And, of course,

the issue here turns on an open-and-obvious confrontational

hearsay problem. Assumption of jurisdiction is appropriate.

No objection under 702 having been raised, this issue

proceeds under plain error review.

(The defense also

proffers infra that failure to object is tantamount to

ineffective assistance.) Under Crim.R. 52(B), “plain errors

or defects affecting substantial rights may be noticed

although they were not brought to the attention of the

[C]ourt.” By its very terms, the rule places three limitations

on a reviewing Court's decision to correct an error despite

the absence of a timely objection at trial. First, there must be

an error, i.e., a deviation from a legal rule. State v. Hill

(2001), 92 Ohio St. 3d 191, 200, 749 N.E.2d 274, 283,

11

observing that the “first condition to be met in noticing plain

error is that there must be error[,]” citing United States v.

Olano (1993), 507 U.S. 725, 732, 113 S. Ct. 1770, 1776, 123

L. Ed. 2D 508, 518, interpreting Crim.R. 52[B]'s identical

federal counterpart, Fed.R.Crim.P. 52(b). Second, the error

must be plain. To be “plain” within the meaning of Crim.R.

52(B), an error must be an “obvious” defect in the trial

proceedings. State v. Sanders (2001), 92 Ohio St. 3d 245,

257, 750 N.E.2d 90, 111, citing State v. Keith (1997), 79

Ohio St. 3d 514, 518, 684 N.E.2d 47, 54; see, also, Olano,

507 U.S. at 734, 113 S. Ct. at 1777, 123 L. Ed. 2d at 519,

identifying that a plain error under Fed.R.Crim.P. 52(b) is

clear or, equivalently, obvious under current law. Third, the

error must have affected “substantial rights.”

Courts

interpret this aspect of the rule to mean that the trial Court's

error must have affected the outcome of the trial. See, e.g.,

Hill, 92 Ohio St. 3d at 205, 749 N.E.2d at 286; State v.

Moreland (1990), 50 Ohio St. 3d 58, 62, 552 N.E.2d 894,

899; State v. Long (1978), 53 Ohio St. 2d 91, 7 Ohio Op. 3d

178, 372 N.E.2d 804, paragraph two of the syllabus.

Even if a forfeited error satisfies these three prongs,

however, Crim.R. 52(B) does not demand that an appellate

Court correct it. Crim.R. 52(B) states only that a reviewing

Court "may" notice plain forfeited errors; a Court is not

obliged to correct them. Courts identify the discretionary

aspect of Crim.R. 52(B) by admonishing Courts to notice

plain error “...with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of

justice.” State v. Long, 53 Ohio St. 2d 91, 7 Ohio Op. 3d

178, 372 N.E.2d 804, paragraph three of the syllabus; see,

also, Olano, 507 U.S. at 736, 113 S. Ct. at 1779, 123 L. Ed.

2d at 521, suggesting that appellate Courts correct a plain

error “if the error seriously affects the fairness, integrity or

public reputation of judicial proceedings,” quoting United

12

States v. Atkinson (1936), 297 U.S. 157, 160, 56 S. Ct. 391,

392, 80 L. Ed. 555, 557; accord State v. Barnes, 94 Ohio

St.3d 21, 27-28, 2002-Ohio-68, 759 N.E.2d 1240.

This issue turns on Evid.R. 702 and expert

jurisprudence, which directs that a medical expert must

testify to things medical and not, as here, to recapitulate a

child’s narrative. Evid.R. 702 permits the use of testimony

of an expert if the testimony will aid the trier of fact in

understanding the evidence or in determining a fact in issue.

A person is an expert if they have knowledge, skill,

experience, training or education regarding the subject

matter of the testimony. Evid.R. 702(B). An expert's

testimony is only needed if that testimony is “sufficiently

beyond common experience.” State v. Buell (1986), 22 Ohio

St.3d 124, 131, 22 Ohio B. 203, 489 N.E.2d 795, quoting

People v. McDonald (1984), 37 Cal. 3d 351, 208 Cal. Rptr.

236, 690 P.2d 709, 721; Evid.R. 702(A). Finally, an expert's

testimony must be based on “reliable scientific, technical, or

other specialized information.” Evid.R. 702(C). The Courts

have allowed testimony by doctors who have concluded that

a particular child is the victim of sexual abuse. State v.

Boston, supra. In Boston, Ohio's High Court noted that

“[m]ost jurors would not be aware, in their everyday

experiences, of how sexually abused children might respond

to abuse.” Id. at 128. Therefore, “an expert's opinion

testimony on whether there was sexual abuse would aid

jurors in making their decision and is, therefore, admissible

pursuant to Evid.R. 702 and 704.” Id. Nevertheless, an

expert cannot give an opinion of the veracity of the

statements of a child declarant. Id. at syllabus. There is a

difference “between expert testimony that a child witness is

telling the truth and evidence which bolsters a child's

credibility.” State v. Stowers, supras, an expert can testify

that a child's behavior is consistent with the behavior of other

13

children who had been sexually abused. Id. But an expert

cannot recapitulate a child’s narrative such to be, essentially,

a truth propensity witness. State v. Schewirey, 7th Dist.

Mahoning No. 05 MA 155, 2006-Ohio-7054, ¶ 37-40.

The Court in Arnold addressed the admissibility of

statements made by child-victims during interviews at child

advocacy centers. The Ohio Supreme Court held:

Statements made to interviewers at childadvocacy centers that serve primarily a

forensic or investigative purpose are

testimonial and are inadmissible pursuant to

the Confrontation Clause when the declarant

is unavailable for cross-examination.

Statements made to interviewers at childadvocacy centers that are made for medical

diagnosis and treatment are nontestimonial

and are admissible without offending the

Confrontation Clause.

State v. Arnold supra at paragraphs one and two of the

syllabus.

The Arnold Court recognized the dual role of child

advocacy centers ("CAC"), specifically, to gather forensic

information for purposes of criminal prosecution and to

gather information for purposes of facilitating medical

diagnosis and treatment of the victim. Id. at ¶33. The CAC

interviewer acts as the agent of various types of professionals

and agencies to implement an interdisciplinary response to

allegations of child abuse. Id. at ¶29. Therefore, the Supreme

Court adopted the "primary purpose" test to determine

whether statements elicited by the interviewer were made for

purposes related to medical diagnosis or treatment, in which

14

case they are nontestimonial and do not implicate

Confrontation Clause rights, or whether the statements were

made for investigative purposes in furtherance of criminal

prosecution, in which case they are testimonial and violative

of the Confrontation Clause. Id. at ¶28. And Courts across

Ohio recognize that statements made to social workers for

the purpose of facilitating medical treatment are admissible

under the medical exception to hearsay even where the child

has not been determined competent to testify. In re I.W., 9th

Dist. Nos. 07CA0056 and 07CA0057, 2008 Ohio 2492, at ¶9

and 17; see, also, In re A.R., 9th Dist. No. 22836, 2006 Ohio

1548; State v. Major, 9th Dist. No. 21662, 2004 Ohio 1423.

The Arnold Court has not delimited the qualifications of

CAC interviewers to recognize only persons possessing

medical training and excluding as incompetent persons

merely trained in social work. That being said, the standard

test applies:

is it diagnostic information or is it

recapitulation of a narrative. In re T.L., 9th Dist. Medina

No. 09CA0018-M, 2011-Ohio-4709, ¶ 11-15.

What—as a final point prior to looking at the facts of

the cause apropos of the above law—is the impact of this

cause having proceeded as a bench trial rather than a jury

trial?

Here, none because of the trial Court's specific

findings. Granted, “[i]n a bench trial, a trial [C]ourt is

presumed to have considered only the relevant, material and

competent evidence.” State v. Bays, 87 Ohio St.3d 15, 1999Ohio-216, 716 N.E.2d 1126 (1999), cited in Grimes infra;

accord State v. Teagarden, 5th Dist. Licking No. 08-CA-39,

2008-Ohio-6896. So typically a reviewing Court “...must

presume that, even if any testimony was erroneously

admitted into evidence, the trial [C]ourt did not consider it in

rendering its verdict.” Id., cited in State v. Grimes, 5th Dist.

Richland No. 2019CA0103, 2020-Ohio-4357, ¶ 64. Here,

however, the circumstances are different; that is, the trial

15

Court issued a written entry and specifically noted that it

considered the sexual assault examiner testimony and of

each of the hearsay witnesses, in rendering its decision.

[Op.Tr. at pg. 9.]

Simply stated, the opinion at bar came strictly from

the recapitulation of E.C.’s story. The Childrens Services

witnesses, in their respective parts, testified as to their intake

and their interview with E.C.

They took down that

information as E.C. provided it. There were no physical or

behavioral findings on which to render a scientific opinion.

[Supra.] The opinion, therefore—the one that Monique

Malmer ultimately related, and the one upon which the Court

relied [Op. Tr. at 9]—is simply an opinion based on the

words of a complaining witness. No objection having been

made, however, the error is obvious, given the points of Ohio

law above. And given that the Court specifically relied on

Malmer’s opinion, the resulting prejudice is obvious.

Review, therefore, is appropriate based on the postconviction

standard, infra.

In Strickland v. Washington (1984), 466 U.S. 668,

the United States Supreme Court crafted a two-prong test to

determine whether counsel provided effective assistance to a

criminal defendant. First, a reviewing Court must determine

whether trial counsel’s performance was deficient. State v.

Brooks (1986), 25 Ohio St.3d 144, 147, citing Strickland v.

Washington. Second, the Court must consider whether

counsel’s errors were so egregious as to deprive the

defendant of a fair trial. Id.

In State v. Lytle (1976), 48 Ohio St.2d 391, the Ohio

Supreme Court adopted its own variation of Strickland to be

applied by Ohio Courts. First, a Court must determine

whether trial counsel substantially violated essential duties to

a defendant. State v. Brooks, 25 Ohio St.3d at 147-148,

citing State v. Lytle. Second, a Court must consider whether

16

counsel’s ineffectiveness prejudiced a defendant. Id. To be

ineffective, counsel’s performance must fall below an

objective standard of reasonable representation, resulting in

prejudice to the defendant. State v. Brown, 84 Ohio App.3d

at 420, citing State v. Bradley (1989), 42 Ohio St.3d 136.

Courts recognize hearsay problems as fitting into the

ambit of ineffective assistance. For example, in the matter of

State v. Proffitt, the 12th District addressed circumstances in

which police statement forms the the government proffered

were not within the ambit of the Evid.R. 803(5) recorded

recollection exception to hearsay because the wife’s

unbelievable testimony that the statements did not, or might

not, correctly reflect her prior knowledge of the incidents,

was not proof that the statements correctly reflected her prior

knowledge, and left the issue unresolved. Further, Evid.R.

803(5) was not satisfied by the wife’s expression of a general

recognition of the importance of being truthful with the

police.

The Court concluded that the appellant and

defendant received ineffective assistance of counsel at trial

when defense counsel failed to object to the admission of the

police statements into evidence because no reasonable trial

strategy was apparent in defense counsel's failure to object to

the admission of the statements, upon which the State's case

depended and the trial court’s decision relied. State v.

Proffitt, 12th Dist. Butler Nos. CA2016-07-134, CA2016-07135, 2017-Ohio-1236.

Here, all the problem above sounds likewise under

ineffective assistance. The concept of “hearsay” shows up

once in one objection completely unrelated to any of the

above concerns. [See Tr. at pg. 156, showing a hearsay

objection relative to the appointment of a guardian ad litem

in an unrelated proceeding.] At the very least, the ABA

Standards for defense attorneys establishes this obligation.

Standard 4-1.5 directs that—

17

At every stage of representation, defense counsel should take

steps necessary to make a clear and complete record for

potential review. Such steps may include: filing motions,

including motions for reconsideration, and exhibits; making

objections and placing explanations on the record; requesting

evidentiary hearings; requesting or objecting to jury

instructions; and making offers of proof and proffers of

excluded evidence.

With any of these norms in mind, review of the

verdict here is appropriate.

Turning, finally, to the standard for postconviction

relief, hearings, and perpetuation of discovery, Ohio law, of

course, addresses these points. According to the Courts, “[a]

post[-]conviction proceeding is not an appeal of a criminal

conviction, but, rather, a collateral civil attack on the

judgment.” State v. Steffen, 70 Ohio St. 3d 399, 410, 1994

Ohio 111, 639 N.E.2d 67 (1994); State v. Gondor, 112 Ohio

St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶48. And to

prevail on a petition for post-conviction relief, the defendant

must establish a violation of his constitutional rights which

renders the judgment of conviction void or voidable. R.C.

2953.21.

The post-conviction relief statutes do “not

expressly mandate a hearing for every post-conviction relief

petition and, therefore, a hearing is not automatically

required.” State v. Jackson, 64 Ohio St.2d 107, 110, 413

N.E.2d 819 (1980). Rather, in addressing a petition for postconviction relief, a trial court plays a gatekeeping role as to

whether a defendant will receive a hearing. Gondor at ¶51. A

trial court may only dismiss a petition for post-conviction

relief without a hearing or a discovery period “...where the

petition, the supporting affidavits, the documentary evidence,

the files, and the records do not demonstrate that petitioner

18

set forth sufficient operative facts to establish substantive

grounds for relief.” State v. Calhoun, 86 Ohio St.3d 279,

1999 Ohio 102, 714 N.E. 2d 905 (1999), paragraph two of

the syllabus; Gondor at ¶51.

Here, of course, the defense posits that the

evidentiary material dehors the record supports relief rather

clearly. Culler's Court of first review, the Seventh District,

notably, had a hard time in its own words—found it

“difficult to conclude”—that there was any strategic purpose

to not addressing an open-and-obvious evidentiary issue.

The accompanying affidavits—i.e. those accompanying the

petition to the trial court—indicate that the error was, in fact,

a matter of negligence rather than of strategy; that is: counsel

never thought about the issue and never discussed it with the

defendant. [Exh. 4, 6 below.] Accordingly, it is respectfully

requested that this Court assume jurisdiction and overrule the

trial court’s denial of the petition and direct that the trial

court hold a hearing on this matter, preceded by a brief

discovery period allowing, at least, for depositions of prior

counsel.

For one looking to guidance from the Federal

Circuits, the topic of SANE nurses and testimonial hearsay

appears to be a rare question in the Circuits and a question of

first impression before this Court. The defense posits that

there is an easy bright line test: whether or not there is any

physical evidence or treatment. The most recent Circuit

decision on this issue backs that up. The cause of Plater v.

Harpe, though finding a trial attorney other-than-ineffective

for not challenging SANE nurse testimony, provides an apt

reverse analogy, insofar as the Plater case involved

diagnosis, treatment, and even a prescription of a run of

antibiotics following a sexual assault.

Turning to the specifics of the case, in Plater v.

Harpe, 2023 U.S. Dist. LEXIS 86560, infra, the United

19

States District Court for the Western District of Oklahoma

addressed Raheem La'Monze Plater's petition for habeas

corpus under 28 U.S.C. § 2254. The court recommended

denial of the petition on all grounds. This case primarily

revolved around Plater's challenge to the admissibility of

testimonial hearsay and violations of the Confrontation

Clause, among other grounds.

Firstly, the court examined Plater's contention that the

statements made by the victim to the Sexual Assault Nurse

Examiner (SANE) were inadmissible hearsay and violated

his Confrontation Clause rights. The court, referencing the

"primary purpose" test from Crawford v. Washington and

related cases, determined that the statements made to the

SANE nurse were for the primary purpose of medical

treatment and were thus non-testimonial. Consequently, their

admission at trial did not violate Plater's right to

confrontation.

Secondly, regarding Plater's claim of ineffective

assistance of counsel, the court held that his allegations were

conclusory and did not demonstrate a strong possibility that

trial counsel's performance fell below an objective standard

of reasonable representation. The court found no grounds for

an evidentiary hearing on this issue, as the claims did not

show a likelihood of altering the trial's outcome.

Lastly, the court addressed various procedural

aspects, including claims that were procedurally barred or

unexhausted, and thus not eligible for federal habeas review.

The court concluded that Plater did not demonstrate cause

and prejudice or a fundamental miscarriage of justice to

overcome these procedural bars.

The Plater case, however, involved actual physical

evidence, diagnosis, and treatment. According to the Court:

20

The SANE nurse in this case testified that she

was a registered nurse, having been so for 30

years. She said she had been a SANE nurse

for the past 3 1/2 years. She was employed by

the Help Advocacy Center for Southwest

Oklahoma in Lawton and testified that the

primary purpose of the Center was to treat

sexual assault victims. She explained that the

sexual assault examination of A.C. contained

both an interview and a physical examination.

The nurse testified that she asked A.C. a

series of questions and then allowed A.C. to

describe in her own words the circumstances

which resulted in her being at the Center. The

physical examination consisted of a "head to

toe assessment" of injuries as well as a pelvic

examination and the taking of blood, urine,

and DNA samples.

Based upon the information given to her by

A.C., and the results of her physical

examinations, the nurse prescribed

antibiotics in case A.C. had been exposed

to any sexually transmitted diseases and

emergency contraceptive medication. She

also testified that she always recommended

that the patient follow up with their

primary care physician.

Plater v. Harpe, W.D.Okla. No. CIV-21-1092-HE, 2023

U.S. Dist. LEXIS 86560, at *16-17 (Apr. 6, 2023), emphasis

added.

21

Conclusion

Given the foregoing discussion, the decisions below

raise significant constitutional concerns. While the court

upheld the trial court's denial of post-conviction relief for

Andrew Culler, there are grounds to argue that this decision

may have overlooked or inadequately addressed certain

constitutional rights. Particularly, issues pertaining to the

Sixth Amendment's Confrontation Clause and the Fourteenth

Amendment's Due Process Clause are at the forefront.

A key constitutional issue in this case revolves

around the Sixth Amendment, which guarantees the right of

an accused to be confronted with the witnesses against them.

The appellate court's affirmation that the trial court did not

err in admitting hearsay testimony potentially conflicts with

this constitutional right. The Confrontation Clause is

designed to ensure the reliability of evidence through the

opportunity for cross-examination. In Culler's case, the

admission of hearsay testimony where witnesses relayed

statements made by the victim could be seen as a violation of

this fundamental right, as it deprived Culler of the

opportunity to challenge the credibility of those statements

directly.

Moreover, the Fourteenth Amendment's Due Process

Clause may also be implicated in this decision. The appellate

court's endorsement of the trial court's procedural handling

of the case, specifically the denial of an evidentiary hearing

in the post-conviction relief process, could be viewed as a

failure to provide a fair and just legal process. The Due

Process Clause requires that legal proceedings be conducted

with fairness and equity, and denying an evidentiary hearing

could be seen as a hindrance to Culler's ability to fully

present his case and challenge the evidence against him.

The appellate court's reliance on the doctrine of res

22

judicata to affirm the denial of post-conviction relief is also

potentially problematic from a constitutional perspective.

While res judicata is a valid legal principle meant to prevent

litigation redundancy, its application must not infringe upon

an individual's constitutional rights. In this case, the court's

broad application of res judicata may have inadvertently

barred a substantive review of potential constitutional

violations, including issues related to ineffective assistance

of counsel and the admissibility of evidence, which are

crucial to ensuring a fair trial.

Finally, this cause presents several constitutional

concerns that warrant further scrutiny. The potential

infringement of the Sixth Amendment's Confrontation

Clause and the Fourteenth Amendment's Due Process

Clause, coupled with the questionable application of the

doctrine of res judicata, suggest that the decision may not

fully align with constitutional protections. It is crucial for the

legal system to vigilantly uphold constitutional rights, and as

such, a reconsideration of this case in light of these

constitutional issues is advisable.

The Petitioner urges this Court to assume jurisdiction

over this cause and to hear it on its merits.

23

Respectfully Submitted,

Rhys B. Cartwright-Jones

42 N. Phelps St.

Youngstown, OH 44503-1130

330-757-6609, tel.

866-223-3897, fax

rhys@cartwright-jones.com

Counsel for Petitioner