State v. Clark, 2011 Ohio 6623

Defendant Darius Clark lived with his girlfriend and her two children, L.P. (b. 2006) and A.T. (b. 2008).
From March 8–12, 2010, the children stayed with him while mother was away; on March 16 mother left again, leaving the children with Clark.
Bruses and injuries to the children were observed by teachers and later hospital staff, with L.P. alleging “Dee” did it; Clark’s nickname is “Dee.”
Charges filed April 15, 2010: five felonious assault counts, two endangering children counts, two domestic violence counts; mother pled guilty to some counts.
November 2010: L.P. found incompetent to testify; a jury convicted Clark on most counts; the court sentenced to 28 years total.
Appellate court reversed and remanded for a new trial due to improper admission of out-of-court statements and related issues under Confrontation Clause and Evid.R. 807.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether L.P.’s out-of-court statements violated Confrontation Clause.	State contends statements were non-testimonial or admissible.	Clark argues statements were testimonial and improperly admitted without cross-examination.	Yes; Confrontation Clause violation; statements were improperly admitted.
Whether L.P.’s statements were admissible under Evid.R. 807.	State contends statements meet reliability under 807.	Clark contends statements lacked trustworthiness and independent proof of abuse.	No; statements to social workers and teachers lacked sufficient reliability; admissibility improper.
Whether the Evid.R. 807 error was harmless in light of other evidence.	State asserts sufficient corroboration existed.	Clark asserts the error was prejudicial.	Not harmless; error affected the outcome, contributing to conviction reversal.
Whether there is legally sufficient evidence of serious physical harm to support felonious assault/endangering counts.	State argues injuries and medical evidence show serious harm.	Clark argues insufficiency of proof of serious physical harm.	No; this issue was resolved in favor of sufficient evidence on appeal.
Whether this case should be remanded for a new trial on the remaining counts.	State seeks upholding convictions if errors are cured.	Clark seeks reversal and new trial due to evidentiary errors.	Convictions reversed and case remanded for new trial.

Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause admissibility of testimonial hearsay)
Davis v. Washington, 547 U.S. 813 (2006) (Testimonial vs. nontestimonial statements framework)
State v. Stahl, 111 Ohio St.3d 186 (2006) (Medical treatment context affects testimonial analysis)
State v. Siler, 116 Ohio St.3d 39 (2007) (Primary-purpose test for child declarants in police interrogation)
State v. Arnold, 126 Ohio St.3d 290 (2010) (Dual capacity of child advocate; forensics vs. medical interview distinction)
State v. Silverman, 121 Ohio St.3d 581 (2009) (Evid.R. 807 applicability without competency determination)
Gaston v. Brigano, 208 F. App’x 376 (2006) (Harmless-error consideration in child- declarant testimony)
State v. Street, 122 Ohio App.3d 79 (1997) (Competence findings and prior statements considerations)
Jenks v. State, 61 Ohio St.3d 259 (1991) (Standard for sufficiency review)