State v. Smith ( 2023 )


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  • [Cite as State v. Smith, 
    2023-Ohio-1613
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    ALLEN COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                               CASE NO. 1-22-40
    v.
    MATTHEW W. SMITH,                                         OPINION
    DEFENDANT-APPELLANT.
    Appeal from Allen County Common Pleas Court
    Trial Court No. CR 2020 0355
    Judgment Affirmed in Part, Reversed in Part and Cause Remanded
    Date of Decision: May 15, 2023
    APPEARANCES:
    William T. Cramer for Appellant
    John R. Willamowski, Jr. for Appellee
    Case No. 1-22-40
    EPLEY, J.
    {¶ 1} Defendant-appellant Matthew W. Smith appeals from his convictions
    in the Allen County Court of Common Pleas on twelve counts of rape (victim under
    age 13), five counts of rape by force or threat of force, and four counts of gross
    sexual imposition (victim under age 13). Smith claims that his right to confront
    witnesses was violated at trial by the admission of two of the children’s forensic
    interviews, that two of his rape convictions were based on insufficient evidence, and
    that errors occurred with his sentence. For the following reasons, the trial court’s
    judgment is affirmed in part and reversed in part, and the matter is remanded for
    resentencing on Counts 1, 2, 3, and 24.
    I. Facts and Procedural History
    {¶ 2} The victims of Smith’s offenses were his three step-daughters: H.B.
    (born in 2007), Ab.B. (born in 2009), and Al.B. (born in 2012). The three girls
    resided with their father, but they had parenting time with their mother every other
    weekend and some other times. Smith met their mother in 2016, and she moved in
    with him around February of 2017. The couple eventually married, and they lived
    in multiple locations between 2017 and 2020, mostly in Allen County.
    {¶ 3} In late August or early September 2020, Al.B. told her father that Smith
    had been touching her. The girls’ father talked to his daughters and obtained a civil
    protection order against his ex-wife and Smith. Ryan Pratt of Logan County
    Children Services became involved, and he scheduled forensic interviews for all
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    three girls. Pratt contacted Officer Chad Kunkleman, a juvenile investigator with
    the Lima Police Department, and informed the officer about the allegations against
    Smith and the planned interviews.
    {¶ 4} On September 9, 2020, the girls were taken to Nationwide Children’s
    Hospital in Columbus, Ohio, where they were separately interviewed by a forensic
    interviewer and then received a medical examination. H.B., Ab.B., and Al.B. each
    reported sexual abuse by Smith, and they said Smith told them that they would be
    in trouble if they told anyone.
    {¶ 5} During her interview, H.B. reported ongoing abuse by Smith. She
    indicated that Smith repeatedly rubbed her chest and vaginal area, had her stroke his
    penis, performed oral sex on her, and had her perform oral sex on him. Beginning
    a few months before the interview, Smith began forcing H.B. to have vaginal
    intercourse with him; she indicated this occurred more than ten times. At one point,
    Smith had told H.B. that he would marry her when she turned 18 years old.
    {¶ 6} Ab.B. revealed that, on several occasions, Smith had her rub his penis
    while he rubbed her “monkey,” sliding his finger “through the crease.” Smith also
    squeezed Ab.B.’s breast and buttocks. She said that Smith twice tried to put his
    penis in her buttocks, but she clenched her butt cheeks.
    {¶ 7} Al.B. told her interviewer that Smith repeatedly had her rub his penis,
    that he repeatedly rubbed her “monkey,” that he once forced her to suck on his penis,
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    and that he once put his penis in her buttocks and “kept pushing [her] down on it.”
    {¶ 8} After reading the hospital reports, Officer Kunkleman consulted with
    Detective Steven Stechschulte about the case. Kunkleman also prepared an arrest
    warrant for Smith and a search warrant for his residence. On September 22, 2020,
    pursuant to the warrants, Smith was arrested, and his home was searched.
    {¶ 9} Detective Stechschulte twice interviewed Smith: first on the day of his
    arrest and again the following day. Smith initially denied any sexual contact with
    the children and suggested that their father had coerced them into making the
    allegations. He later admitted to sexual conduct with H.B., although he denied
    vaginal intercourse. At that time, Smith asserted that, “with the two younger ones,
    there was no contact whatsoever.” By the end of the first interview, Smith admitted
    that he performed oral sex on H.B. approximately 20 to 30 times, that she performed
    oral sex on him “about the same amount, maybe less,” but at least 20 times, that
    H.B. stroked his penis at least 30 times, and that he had stroked H.B. between her
    lips (meaning, labia majora) approximately 15 times. Smith continued to deny
    sexual contact with Ab.B. and Al.B.
    {¶ 10} The second interview focused largely on Smith’s conduct with Ab.B.
    and Al.B. Smith admitted to four or five instances where Ab.B. stroked his penis;
    a couple of those times, Smith also rubbed Ab.B. between her lips. He stated that
    Ab.B. performed oral sex on him one time. He acknowledged grabbing her buttocks
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    but denied engaging in anal sex. Smith stated that there was only one occasion with
    Al.B. that could be considered sexual with her, where she touched his penis. Smith
    claimed that he was not sexually attracted to Ab.B. and Al.B. because they were
    young children. With H.B., however, he felt that she was there for him and “got
    confused.” Smith wrote an apology letter to the girls.
    {¶ 11} In November 2020, Smith was charged in an 83-count indictment
    with 59 counts of rape in violation of R.C. 2907.02(A)(1)(b), 10 counts of rape in
    violation of R.C. 2907.02(A)(2), 10 counts of sexual battery in violation of R.C.
    2907.02(A)(5), and 4 counts of gross sexual imposition in violation of R.C.
    2907.05(A)(4). Many of the counts included an allegation that the victim was
    compelled to submit by force or threat of force or that the victim was under 10 years
    of age.
    {¶ 12} In pretrial motions, Smith sought to suppress the statements he made
    during his police interviews. After reviewing the video recordings of the two
    interviews, the trial court denied the first motion to suppress. Smith withdrew his
    second motion. Citing the Confrontation Clause of the Sixth Amendment and
    hearsay rules, Smith also filed a motion in limine, seeking to prohibit the State from
    introducing the recorded forensic interviews and from having any witness testify to
    the girls’ out-of-court statements. After a hearing, the trial court denied Smith’s
    motion.
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    {¶ 13} A bench trial was held on June 21 and 22, 2022. Immediately before
    the start of trial, the State dismissed numerous counts, and the matter proceeded on
    26 counts: 19 counts related to H.B. (3 counts of gross sexual imposition, 5 counts
    of sexual battery, and 11 counts of rape), 2 counts related to Ab.B. (both rape), and
    5 counts related to Al.B. (4 counts of rape and 1 count of gross sexual imposition).
    The State presented the testimony of three law enforcement officers, the two
    forensic interviewers, and H.B. The prosecution also offered 28 exhibits, including
    redacted video recordings of the girls’ forensic interviews and of Detective
    Stechschulte’s two interviews with Smith. The videos were admitted over defense
    counsel’s objection. Smith offered no evidence in his defense.
    {¶ 14} On June 23, 2022, the trial court found Smith guilty of all offenses.
    The court immediately proceeded to sentencing, where it merged the sexual battery
    counts into Counts 10-14 and imposed the following sentences, all of which it
    determined were mandatory terms:
    Count   Orig.#    Offense   Statute               Degree   Child    Sentence
    1       1         GSI       2907.05(A)(4)         F3       H.B.     60 months
    2       2         GSI       2907.05(A)(4)         F3       H.B.     60 months
    3       3         GSI       2907.05(A)(4)         F3       H.B.     60 months
    4       4         Rape      2907.02(A)(1)(b)      F1       H.B.     25 years to
    (force)                                 life
    5       5         Rape      2907.02(A)(1)(b)      F1       H.B.     25 years to
    (force)                                 life
    6       24        Rape      2907.02(A)(1)(b)      F1       H.B.     25 years to
    (force)                                 life
    7       25        Rape      2907.02(A)(1)(b)      F1       H.B.     25 years to
    (force)                                 life
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    8       44         Rape   2907.02(A)(1)(b)   F1   H.B.  25 years to
    (force)                       life
    9       45         Rape   2907.02(A)(1)(b)   F1   H.B. 25 years to
    (force)                       life
    10      54         Rape   2907.02(A)(2)      F1   H.B. Minimum 11
    years to
    maximum of
    16.5
    11      55         Rape   2907.02(A)(2)      F1   H.B. Minimum 11
    years to
    maximum of
    16.5
    12      56         Rape   2907.02(A)(2)      F1   H.B. Minimum 11
    years to
    maximum of
    16.5
    13      57         Rape   2907.02(A)(2)      F1   H.B. Minimum 11
    years to
    maximum of
    16.5
    14      58         Rape   2907.02(A)(2)      F1   H.B. Minimum 11
    years to
    maximum of
    16.5
    20      74         Rape   2907.02(A)(1)(b)   F1   Ab.B. Life in prison
    (under 10)                    without
    possibility of
    parole
    21      78         Rape   2907.02(A)(1)(b)   F1   Ab.B. 25 years to
    (force)                       life
    22      79         Rape   2907.02(A)(1)(b)   F1   Al.B. Life in prison
    (under 10)                    without
    possibility of
    parole
    23      80         Rape   2907.02(A)(1)(b)   F1   Al.B. Life in prison
    (under 10)                    without
    possibility of
    parole
    24      81         GSI    2907.05(A)(4)      F3   Al.B. 60 months
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    25      82        Rape     2907.02(A)(1)(b)        F1       Al.B.    Life in prison
    (under 10)                                without
    possibility of
    parole
    26      83        Rape     2907.02(A)(1)(b)        F1       Al.B.    Life in prison
    (under 10)                                without
    possibility of
    parole
    The trial court ordered all counts relating to a particular child be served
    concurrently, but that the three sets of charges be served consecutively – Counts 1
    to 14 (aggregate 25 years to life) were to be served consecutively to Counts 20 and
    21 (aggregate life without parole) and Counts 20 and 21 were to be served
    consecutively to Counts 22 to 26 (aggregate life without parole). The court notified
    Smith that he would be required to register as a Tier III sex offender.
    {¶ 15} Smith appeals from his convictions, raising five assignments of error.
    We will address them in a manner that facilitates our analysis.
    II. Sufficiency of the Evidence on Counts 20 & 21
    {¶ 16} In his second assignment of error, Smith claims that his convictions
    on Counts 20 and 21 – the two rape counts concerning Ab.B. – were based on
    insufficient evidence and, therefore, violated his right to due process.
    {¶ 17} “An appellate court’s function when reviewing the sufficiency of the
    evidence to support a criminal conviction is to examine the evidence admitted at
    trial to determine whether such evidence, if believed, would convince the average
    mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
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    St.3d 259, 
    574 N.E.2d 492
     (1991), paragraph two of the syllabus, superseded by
    state constitutional amendment on other grounds, State v. Smith, 
    80 Ohio St.3d 89
    ,
    
    684 N.E.2d 668
     (1997). Consequently, “[t]he relevant inquiry 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.” Id.; State v. Troche, 3d Dist. Marion No. 9-22-18, 2023-Ohio-
    565, ¶ 18.
    {¶ 18} When reviewing claims based on the sufficiency of the evidence, we
    are required to consider all the evidence admitted at trial, regardless of whether it
    was admitted erroneously. See State v. Fleming, 2d Dist. Clark No. 2021-CA-40,
    
    2022-Ohio-1876
    , ¶ 27, citing, e.g., State v. Brewer, 
    121 Ohio St.3d 202
    , 2009-Ohio-
    593, 
    903 N.E.2d 284
    . Accordingly, we must consider the disputed recordings of the
    forensic interviews in conducting our analysis.
    {¶ 19} Counts 20 and 21 each involved a charge of rape in violation of R.C.
    2907.02(A)(1)(b).     Count 20 concerned digital penetration and included an
    allegation that the victim was less than 10 years old. Count 21 concerned fellatio
    and included an allegation that Smith purposefully compelled the victim to submit
    by force or threat of force.
    {¶ 20} R.C. 2907.02(A)(1)(b) is Ohio’s statutory rape statute, imposing strict
    liability on a person who has sexual conduct with a child under the age of 13. State
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    Case No. 1-22-40
    v. Alexander, 3d Dist. Allen No. 1-22-11, 
    2023-Ohio-123
    , ¶ 16, citing In re D.B.,
    
    129 Ohio St.3d 104
    , 
    2011-Ohio-2671
    , 
    950 N.E.2d 528
    , ¶ 30. Under that statute,
    “[n]o person shall engage in sexual conduct with another who is not the spouse of
    the offender * * * when any of the following applies: * * * (b) The other person is
    less than thirteen years of age, whether or not the offender knows the age of the
    other person.” R.C. 2907.02(A)(1)(b).
    {¶ 21} “Sexual conduct” is defined as “vaginal intercourse between a male
    and female; anal intercourse, fellatio, and cunnilingus between persons regardless
    of sex; and, without privilege to do so, the insertion, however slight, of any part of
    the body or any instrument, apparatus, or other object into the vaginal or anal
    opening of another.” R.C. 2907.01(A). “Penetration, however slight, is sufficient
    to complete vaginal or anal intercourse.” 
    Id.
     This court has repeatedly recognized
    that if the force of an object, like a finger, causes a victim’s labia to spread, that is
    sufficient penetration to constitute “sexual conduct” under R.C. 2907.02(A)(1)(b).
    E,g, State v. McCoy, 3d Dist. Marion No. 9-18-23, 
    2020-Ohio-4511
    , ¶ 72; Alexander
    at ¶ 38, fn.4, quoting State v. Sanchez-Sanchez, 8th Dist. Cuyahoga No. 110885,
    
    2022-Ohio-4080
    , ¶ 125; State v. Carter, 3d Dist. Allen No. 1-21-19, 2022-Ohio-
    1444, ¶ 99, fn. 9.
    {¶ 22} Ab.B. did not testify at trial, but a redacted video recording of her
    forensic interview was played for the court. See State’s Exhibit 24. During her
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    interview, Ab.B. described an incident when Smith touched her while she rubbed
    his penis. She indicated that Smith first touched her breasts, then slid down to her
    “monkey,” and finally moved his hand back to “squish her butt cheek.” When asked
    about how he touched her “monkey,” Ab.B. said that Smith put his hand in her pants
    and began to rub it, touching her skin. She indicated that he put his finger “in the
    middle of it” and start rubbing it; his finger slid “through the crease.”
    {¶ 23} During his second interview with Detective Stechschulte, Smith
    admitted to touching Ab.B. He stated that Ab.B. came into the room when he and
    H.B. were touching each other and wanted to try. Smith indicated that Ab.B.
    lowered her own pants and they “tried it.” Smith stated that he did not get hard, and
    they stopped after a couple minutes because he was not aroused by it. Smith told
    the detective that H.B. was in the room, talking with him as if nothing were
    happening. When asked by Detective Stechschulte if he touched Ab.B. the same
    way he touched H.B., i.e., by going slightly between the two lips and rubbing, Smith
    responded affirmatively. Smith agreed with Ab.B.’s description of going “through
    the crease.” Smith also told the detective about a similar incident, approximately a
    week later, where Smith and Ab.B. again were rubbing each other. Smith identified
    the address where he lived when these incidents occurred; Ab.B. was 9 years old for
    two of the three months that they lived there. She told her forensic interviewer that
    she was 8 or 9 years old when the abuse began and 10 years old when it ended.
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    Construing the evidence in the light most favorable to the State, Smith’s and Ab.B.’s
    statements were sufficient to establish rape, as alleged in Count 20.
    {¶ 24} Ab.B. did not describe any incidents where she performed fellatio on
    Smith. However, in his second interview with Detective Stechschulte, Smith told
    the officer about a time when Ab.B. came into the room while H.B. was performing
    oral sex on him. According to Smith, H.B. told her sister to “try it.” Smith indicated
    that Ab.B. sucked on his penis for “about a minute” but stopped because she did not
    like the taste. Smith’s admission was sufficient to prove that Smith committed rape
    by means of fellatio.
    {¶ 25} Count 21 also alleged that the victim was compelled to submit by
    “force or threat of force.” “Force” is defined as “any violence, compulsion, or
    constraint physically exerted by any means upon or against a person or thing.” R.C.
    2907.01(A)(1).     “A threat of force can be inferred from the circumstances
    surrounding sexual conduct.” State v. Schaim, 
    65 Ohio St.3d 51
    , 
    600 N.E.2d 661
    (1992), paragraph one of the syllabus; State v. Cook, 3d Dist. Union No. 14-19-26,
    
    2020-Ohio-3411
     ¶ 117.
    {¶ 26} The force necessary to commit rape varies based on the respective
    age, size and strength of the parties and their relation to each other. State v.
    Eskridge, 
    38 Ohio St.3d 56
    , 58, 
    526 N.E.2d 304
    , (1988); Cook at ¶ 117. “[W]hen
    the rape involves a child and that child’s parent, or person who stands in loco
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    parentis, subtle and psychological forms of coercion sufficiently show force.” State
    v. Shadoan, 4th Dist. Adams No. 03CA764, 
    2004-Ohio-1756
    , ¶ 21. “As long as it
    can be shown that the rape victim’s will was overcome by fear or duress, the forcible
    element of rape can be established.” Eskridge at 59. “A child’s will can be
    overcome by fear and duress when [a parent] tells the child to do something, and
    commands the child not to tell anyone about it.” State v. Dehner, 12th Dist.
    Clermont No. CA2012-12-090, 
    2013-Ohio-3576
    , ¶ 19, citing Eskridge at 58.
    {¶ 27} Although Smith suggested that Ab.B. was not forced to comply,
    Ab.B. stated in her forensic interview that she would be in trouble if she told anyone.
    She further said that if the girls did not do what Smith asked, he would get mad and
    tell her mother that they were not bonding with him and then their mother would get
    mad at them. Ab.B. was between eight and ten years old when the abuse occurred.
    Given the respective ages of Smith and Ab.B. and Smith’s stepparent relationship
    to her, Smith’s oral threats were sufficient to constitute force within the meaning of
    R.C. 2907.01(A).
    {¶ 28} Smith’s second assignment of error is overruled.
    III. Admission of Forensic Interviews
    {¶ 29} In his first assignment of error, Smith contends that his federal and
    state rights to confront witnesses against him were violated by the admission of the
    redacted video recordings of the forensic interviews of Ab.B. and Al.B., who did
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    not testify at trial. Smith does not claim on appeal that the recordings constituted
    inadmissible hearsay.
    {¶ 30} The Confrontation Clause of the Sixth Amendment to the United
    States Constitution provides that “[i]n all criminal prosecutions, the accused shall
    enjoy the right * * * to be confronted with the witnesses against him.” Section 10,
    Article I of the Ohio Constitution, which includes the right “to meet face to face,”
    provides “no greater right of confrontation than the Sixth Amendment.” State v.
    Self, 
    56 Ohio St.3d 73
    , 79, 
    564 N.E.2d 446
     (1990).
    {¶ 31} Under the federal Confrontation Clause, testimonial out-of-court
    statements are prohibited, unless the witness is unavailable to testify and the
    defendant has had a prior opportunity to cross-examine the witness. State v. Tench,
    
    156 Ohio St.3d 85
    , 
    2018-Ohio-5205
    , 
    123 N.E.3d 955
    , ¶ 17; Crawford v.
    Washington, 
    541 U.S. 36
    , 53-54, 
    124 S.Ct. 1354
    , 
    158 L.Ed.2d 177
     (2004).
    Crawford did not define “testimonial,” but it is generally understood that testimonial
    statements are those made for “a primary purpose of creating an out-of-court
    substitute for trial testimony.” Michigan v. Bryant, 
    562 U.S. 344
    , 
    131 S.Ct. 1143
    ,
    
    179 L.Ed.2d 93
     (2011); State v. Maxwell, 
    139 Ohio St.3d 12
    , 
    2014-Ohio-1019
    , 
    9 N.E.3d 930
    , ¶ 40; State v. Bender, 3d Dist. Union No. 14-19-22, 
    2020-Ohio-722
    , ¶
    10.
    {¶ 32} In Arnold, the Ohio Supreme Court addressed whether statements
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    made to interviewers at a child advocacy center were testimonial and thus
    inadmissible pursuant to Confrontation Clause when the child was unavailable for
    cross-examination at trial. State v. Arnold, 
    126 Ohio St.3d 290
    , 
    2010-Ohio-2742
    ,
    
    933 N.E.2d 775
    . The Court noted that child advocacy centers are unique in that
    multidisciplinary teams cooperate so that the child is interviewed only once. Id. at
    ¶ 33. Consequently, the interviews serve dual purposes: (1) to gather forensic
    information needed by the team, and (2) to elicit information necessary for medical
    diagnosis and treatment. The Supreme Court held that statements made to the
    interviewer that served primarily a forensic or investigative purpose were
    testimonial, whereas those made for medical diagnosis and treatment were not. Id.
    at paragraphs one and two of the syllabus, ¶ 44. The Supreme Court noted that “the
    fact that police officers watched the interview and that it was recorded does not
    change the fact that the statements were necessary for [the child’s] medical
    diagnosis and treatment. Similarly, the fact that information gathered for medical
    purposes is subsequently used by the state does not change the fact that the
    statements were made for medical diagnosis and treatment.” Id. at ¶ 43.
    {¶ 33} Shortly after Arnold was rendered, this court affirmed the trial court’s
    exclusion of a child’s statements that were made in an interview with a social worker
    with Logan County Children Services. State v. Goings, 3d Dist. Logan No. 8-11-
    03, 
    2012-Ohio-1793
    . In that case, the social worker testified that the purpose of the
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    Case No. 1-22-40
    interview was to determine the veracity of the allegations and whether the child
    required medical or emotional treatment. Based on the child’s statements during
    the interview, the social worker recommended that the child be taken to the hospital,
    but indicated it was not an emergency to do so. No information was forwarded to a
    medical facility or medical professional, and the social worker was not working with
    a medical professional; to the contrary, the social worker contacted the police
    following the interview. We concluded that “nothing in the interview supports a
    conclusion that any part of the interview was directed to medical diagnosis or
    treatment[.]” Goings at ¶ 34.
    {¶ 34} More recently, this court held that an interview conducted under
    circumstances like those before us was for medical diagnosis and treatment. State
    v. Speicher, 3d Dist. Union No. 14-13-17, 
    2020-Ohio-3845
     (we did not address the
    Confrontation Clause, because the child testified at trial.). There, the interview was
    performed by a licensed social worker / medical forensic interviewer, and the
    interviewer testified at a suppression hearing that she interviewed the child for the
    purpose of medical diagnosis and treatment before the child was examined by a
    physician; the physician observed the interview. Law enforcement was not present
    during the interview, and the social worker was unaware whether law enforcement
    had been notified of the allegations when the interview occurred.
    {¶ 35} In the context of whether statements fell under Evid.R. 803(4), the
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    medical diagnosis or treatment exception to the hearsay rule, we also have noted
    that “[a] narrative account containing peripheral details as the victim recounts
    abusive activities can be made for the primary purpose of medical diagnosis or
    treatment.” Bender at ¶ 16, quoting State v. Warman, 12th Dist. Butler No.
    CA2016-02-029, 
    2017-Ohio-244
    , ¶ 71 (Piper, J., concurring.).         We held that a
    sexual assault nurse’s recounting at trial of a rape victim’s narrative account of the
    sexual assault was admissible as a statement made for the purpose of medical
    diagnosis or treatment. 
    Id.
    {¶ 36} In this case, Ab.B. and Al.B. were interviewed by Celeste Prince, who
    was employed as a “forensic interviewer and trafficked and exploited youth case
    coordinator” by The Center for Family Safety and Healing, which is part of
    Nationwide Children’s Hospital. The center is an outpatient clinic for the hospital
    that houses the child advocacy center and other victim services. (Tr. 93.)
    {¶ 37} Prince testified that the goal of a forensic interview is to “gather
    information about suspected abuse or neglect for medical diagnosis and treatment,”
    most often for sexual abuse. (Tr. at 94.) She stated that when conducting a forensic
    interview, she speaks with doctors about the allegations prior to the interview, the
    doctors observe the interviews, and she receives feedback from them during the
    interview process about additional information that would be useful to them for their
    subsequent medical exams. When interviewing for suspected sexual abuse, relevant
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    information includes the body parts involved, the time frame of the alleged abuse,
    the identity of the abuser, the relationship between the alleged abuser and the victim,
    and whether threats had been made. After completing the interview and prior to the
    child receiving a medical exam, Prince speaks with the medical professional about
    the information received and answers any questions the medical professional might
    have. She then writes a summation of the interview for the medical record. Prince
    described the “neutral and open-ended approach” to questioning that she employs
    as an interviewer, and she testified that she followed her interview procedure when
    conducting the interviews of Al.B. and Ab.B.
    {¶ 38} Officer Kunkleman testified that he was aware that interviews for the
    girls had been scheduled at Nationwide Children’s Hospital, and he later received
    information from Nationwide regarding the girls’ disclosure of sexual abuse.
    However, there was no testimony at trial that Kunkleman was present for or
    otherwise involved in Prince’s interviews of Ab.B. and Al.B.
    {¶ 39} Under the facts of this case, the statements made during Prince’s
    forensic interviews were for the children’s medical diagnosis and treatment.
    Moreover, there is no suggestion that Prince was acting on behalf of law
    enforcement or sought to obtain details of the abuse of Ab.B. and Al.B. to further
    law enforcement’s investigation. The admission of the redacted video recordings
    of the interviews of Ab.B. and Al.B. did not violate the Confrontation Clause.
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    {¶ 40} Smith’s first assignment of error is overruled.
    IV. Mandatory Sentence for Gross Sexual Imposition
    {¶ 41} Smith’s third assignment of error claims that the trial court erred by
    imposing mandatory prison terms for gross sexual imposition based on a finding
    that there was evidence to corroborate the victim’s claims. His fourth assignment
    of error argues that his trial counsel rendered ineffective assistance by failing to
    object to the unconstitutional mandatory prison term. The State apparently agrees
    that the trial court erred, but it argues that this “is likely a procedural formality as
    defendant would have to overcome the presumption of prison,” and it asks us to
    “decline to entertain a plain error analysis.”
    {¶ 42} Under R.C. 2953.08(G)(2), an appellate court may reverse or modify
    a sentence “only if it determines by clear and convincing evidence that the record
    does not support the trial court's findings under relevant statutes or that the sentence
    is otherwise contrary to law.” State v. Marcum, 
    146 Ohio St.3d 516
    , 2016-Ohio-
    1002, 
    59 N.E.3d 1231
    , ¶ 1; State v. Crose, 3d Dist. Crawford No. 3-22-34, 2023-
    Ohio-880, ¶ 17. Clear and convincing evidence is that “ ‘which will produce in the
    mind of the trier of facts a firm belief or conviction as to the facts sought to be
    established.’ ” Id. at ¶ 22, quoting Cross v. Ledford, 
    161 Ohio St. 469
    , 
    120 N.E.2d 118
     (1954), paragraph three of the syllabus.
    {¶ 43} Smith was convicted of four counts of gross sexual imposition, in
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    Case No. 1-22-40
    violation of R.C. 2907.05(A)(4), a felony of the third degree. Counts 1-3, which
    concerned H.B., allegedly occurred between March 1, 2019 and June 30, 2019.
    Count 24, involving Al.B., allegedly occurred between February 1, 2020 and
    September 9, 2020.
    {¶ 44} In general, there is a presumption that a prison sentence will be
    imposed for a violation of R.C. 2907.05(A)(4). Former R.C. 2907.05(C)(2). When
    Smith committed gross sexual imposition, R.C. 2907.05(C)(2) further required a
    mandatory prison term for gross sexual imposition as a third-degree felony if either:
    (a) Evidence other than the testimony of the victim was admitted in
    the case corroborating the violation; [or]
    (b) The offender previously was convicted of or pleaded guilty to a
    violation of this section, rape, the former offense of felonious sexual
    penetration, or sexual battery, and the victim of the previous offense
    was less than thirteen years of age.
    See former R.C. 2907.05(C)(2) (2007 Am.Sub.S.B. 10, 2018 Am.Sub.S.B. 201, and
    2018 Sub.S.B.229). We note that R.C. 2907.05(C) has since been modified, and it
    no longer includes the corroboration language in former R.C. 2907.05(C)(2)(a).
    {¶ 45} The Ohio Supreme Court has held former R.C. 2907.05(C)(2)(a) to
    be unconstitutional. State v. Bevly, 
    142 Ohio St.3d 41
    , 
    2015-Ohio-475
    , 
    27 N.E.3d 516
    , paragraph one of the syllabus.       The Court found no rational basis for
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    Case No. 1-22-40
    distinguishing between cases based on the presence or the absence of corroborating
    evidence. Id. at ¶ 1, ¶ 18. It thus held that R.C. 2907.05(C)(2) violated the due
    process protections of the Fifth and Fourteenth Amendments to the United States
    Constitution. Id. at ¶ 19.
    {¶ 46} Here, the trial court found that prison was mandatory for the gross
    sexual imposition counts due to R.C. 2907.05(C)(2)(a). In light of Bevly, the trial
    court’s imposition of mandatory prison sentences under that statute was contrary to
    law.
    {¶ 47} Even if we were to employ a plain error analysis, we would conclude
    that the imposition of a mandatory sentence under R.C. 2907.05(C)(2)(a) amounts
    to plain error. An error qualifies as “plain error” only if it is obvious and but for the
    error, the outcome of the proceeding clearly would have been otherwise. State v.
    Barnhart, 3d Dist. Putnam No. 12-20-08, 
    2021-Ohio-2874
    , ¶ 8, citing State v.
    Yarbrough, 
    95 Ohio St.3d 227
    , 
    2002-Ohio-2126
    , 
    767 N.E.2d 216
    , ¶ 32. In this case,
    the error is obvious, and any sentence imposed by the trial court for gross sexual
    imposition upon remand would be different, as it would not be a mandatory
    sentence. Although resentencing will have no practical effect on the length of
    Smith’s imprisonment, given his sentences of life without the possibility of parole,
    we nevertheless find it appropriate to remand for resentencing on Counts 1, 2, 3,
    and 24.
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    Case No. 1-22-40
    {¶ 48} Smith’s third assignment of error is sustained.       Considering our
    disposition of the third assignment of error, Smith’s fourth’s assignment of error is
    overruled as moot.
    V. Constitutionality of the Reagan Tokes Act
    {¶ 49} In his fifth assignment of error, Smith claims that the imposition of
    indefinite sentences under the Reagan Tokes Act violated “the jury trial guarantee,
    the doctrine of separation of powers, and due process principles under the federal
    and state constitutions.” The trial court imposed indefinite sentences under the
    Reagan Tokes Act for Counts 10 through 14.
    {¶ 50} “Since the indefinite sentencing provisions of the Reagan Tokes Law
    went into effect in March 2019, we have repeatedly been asked to address the
    constitutionality of these provisions.    We have invariably concluded that the
    indefinite sentencing provisions of the Reagan Tokes Law do not facially violate
    the separation-of-powers doctrine or infringe on defendants’ due process rights.”
    (Citations omitted.) State v. Ball, 3d Dist. Allen No. 1-21-16, 
    2022-Ohio-1549
    , ¶
    59. In Ball, this court also rejected the appellant’s argument that the Reagan Tokes
    Act violates a defendant’s constitutional right to a trial by jury. Id. at ¶ 61-63. We
    find no basis to depart from our earlier precedent regarding the constitutionality of
    the Reagan Tokes Act.
    {¶ 51} Smith’s fifth assignment of error is overruled.
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    Case No. 1-22-40
    VI. Conclusion
    {¶ 52} The judgment of the Allen County Court of Common Pleas is
    affirmed in part and reversed in part, and the matter is remanded for resentencing
    on Counts 1, 2, 3, and 24.
    Judgment Affirmed in Part,
    Reversed in Part and
    Cause Remanded
    MILLER, P.J. and ZIMMERMAN, J., concur.
    /jlr
    ** Judge Christopher B. Epley of the Second District Court of Appeals, sitting
    by Assignment of the Chief Justice of the Supreme Court of Ohio.
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