State v. Clark (2011)

Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County · 2011 · Evidence

2011-Ohio-6623 (Ohio Ct. App. 2011)

Updated August 22, 2026

EvidenceConfrontation ClauseHearsayChild declarant statementsEvid.R. 807Crawfordtestimonial hearsayprimary purpose test

Facts

While defendant was living with his girlfriend and her two young children, the children were in his care during periods in March 2010. L.P.’s preschool teachers noticed bruises and reported suspected abuse; doctors later found both children had multiple injuries consistent with abuse, and L.P. repeatedly said that "Dee did it," with "Dee" being defendant’s nickname. Before trial, the court found four-year-old L.P. incompetent to testify but still allowed seven witnesses to repeat L.P.’s out-of-court identification statements. Those witnesses included a police detective, two CCDCFS social workers, two preschool teachers, and the children’s grandmother and great aunt.

Issue

Whether L.P.’s out-of-court statements identifying defendant as the abuser were admissible when L.P. was found incompetent to testify and defendant had no opportunity to cross-examine him. Also, whether the statements to family members satisfied Evid.R. 807 and whether the evidence was sufficient to prove serious physical harm as to L.P.

Rule

Out-of-court statements that are testimonial are inadmissible under the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. In determining whether statements are testimonial, courts apply the primary-purpose test to police interrogation and the objective-witness/expectation approach when the interrogator is not law enforcement, focusing on whether the questioning primarily served an investigative or forensic purpose rather than an ongoing emergency or medical treatment. Nontestimonial child statements offered under Evid.R. 807 are admissible only if the totality of the circumstances provides particularized guarantees of trustworthiness, the child’s testimony is not reasonably obtainable, there is independent proof of the act of physical violence, and notice is given.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Toledo, four-year-old Mia arrived at a neighbor’s house with fresh bruises after spending the day with her mother’s boyfriend, Nolan Price. A police officer came to the house after the neighbor called, sat Mia on the couch, told her he wanted to find out who hurt her, and asked, "Who did this to you?" Mia said, "Nolan hit me." Mia was later found incompetent to testify at trial.

If the prosecution offers the officer’s testimony about Mia’s statement, the strongest argument for exclusion is that the statement was:

Explanation. Under the majority opinion, statements made to law enforcement are analyzed under the primary-purpose test. When there is no ongoing emergency and the officer asks who hurt the child to investigate past abuse, the statement is testimonial. Because Mia was unavailable for cross-examination and there was no prior opportunity to cross-examine, admission would violate the Confrontation Clause. The child’s age is not determinative, and incompetency does not make the statement reliable.