[Cite as State v. Hawkey, 2016-Ohio-5369.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

DEFIANCE COUNTY 

 

STATE OF OHIO, 

 

 PLAINTIFF-APPELLEE, CASE NO. 4-14-03 

 v. 

 

JUDITH I. HAWKEY, J U D G M E N T 

 E N T R Y 

 DEFENDANT-APPELLANT. 

 

{¶1} This cause comes on for determination of Appellee’s application for 

reconsideration and clarification of this Court’s opinion and final judgment, 

pursuant to App.R. 26(A)(1); and Appellee’s motion to certify a conflict, pursuant 

to App.R. 25. Appellant did not file a response to either the application or motion. 

{¶2} The Appellee, State of Ohio, seeks reconsideration and clarification of 

our opinion in State v. Hawkey, 3d Dist. Defiance No. 4-14-03, 2016-Ohio-1292. A 

request for reconsideration will only be granted if the application sets forth obvious 

errors in the decision or raises an issue that was not properly considered in the first 

instance. See Columbus v. Hodge, 37 Ohio App.3d 68, 523 N.E.2d 515 (10th Dist. 

1987). “An application for reconsideration is not designed for use in instances 

where a party simply disagrees with the conclusions reached and the logic used by 

an appellate court.” State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956 
Case No. 4-14-03 

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(11th Dist. 1997). This request raised eight issues that the State would like 

addressed. For the reasons stated below, the application for reconsideration should 

be denied. However, we will provide clarification to resolve any confusion that the 

State claims to have. 

{¶3} First, the State alleges that this court erred in its discussion of the 

Daubert Motion as it applies to Dr. Knox’s testimony. The State is correct that the 

prior opinion mistakenly stated that “No ruling was made on the motion prior to 

trial.” Hawkey at ¶ 3. The trial court orally ruled on the motion at the end of the 

hearing. The opinion should state that no journal entry of the ruling was placed on 

the record prior to trial. However, this error had no effect on the reasoning of this 

court in reaching its conclusion as it was understood that the trial court had found 

Knox’s testimony acceptable by the fact that she was allowed to testify to her 

diagnosis of “child torture”. Thus it is not grounds for reconsideration. 

{¶4} The State then argues that this court erred in determining that the trial 

court erred in allowing the testimony of Dr. Knox regarding “child torture as a form 

of child abuse.” Initially, this court notes that the argument raised by the State is no 

different than what was addressed in both the trial court during the Daubert hearing 

and on appeal and has thus already been considered by this court. The motion for 

reconsideration raises no new issue for consideration and does not point out an 

obvious error on this issue, but merely expresses a difference of opinion and thus 
Case No. 4-14-03 

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cannot be granted on this issue. However, this court will provide clarification on 

the issue for the State. 

{¶5} This court has previously addressed what is required for an expert’s 

opinion to be admissible in State v. Ream, 3d Dist. Allen No. 1-12-39, 2013-Ohio4319. In Ream, this court addressed that for a trial court to determine “whether the 

opinion of an expert witness is reliable under Evid.R. 702(C), a trial court, acting as 

a gatekeeper, examines whether the expert’s conclusion is based on scientifically 

valid principles and methods.” Id. at ¶ 81. “In evaluating the reliability of scientific 

evidence, several factors are to be considered: (1) whether the theory or technique 

has been tested, (2) whether it has been subject to peer review, (3) whether there is 

a known or potential rate of error, and (4) whether the methodology has gained 

general acceptance.” Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 1998-Ohio178, 687 N.E.2d 735. The focus of the evaluation is on the principles and 

methodology, not the conclusions generated. Id. “Scientific evidence is not 

admissible under Evid.R. 702 unless the proponent of the evidence lays a proper 

foundation by presenting adequate expert testimony concerning the reliability of the 

specific procedures used and the underlying scientific principles or theories.” State 

v. Robinson, 160 Ohio App.3d 802, 2005-Ohio-2280, ¶ 31. This court, in Ream, 

held that the proponent has to present evidence on the relevant factors that the trial 

court is to consider. Ream, supra at 85-86. 
Case No. 4-14-03 

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{¶6} In this case, Knox testified at the Daubert hearing that she had been 

accepted as an expert witness in the field of child abuse pediatrics. Hearing Tr. 10. 

When questioned about her theory of “child torture” as a diagnosis, she testified that 

the definition was based upon the cases she had studied. Id. at 68. She and her coauthors had submitted a manuscript for publication and she believed it would be 

published after minor changes were made, but at that time, it had not been published. 

Id. As to methodology, Knox testified that they created the diagnosis in the 

following manner. 

We systematically created this definition. We systematically 

developed and defined this in the medical literature after 

conducting this research study to look at what constitutes this. 

What are inclusion criteria for this. We studied twenty-eight 

separate cases and we looked at multiple different factors that 

were part of this study to develop inclusion criteria for a formal 

medical definition. 

Okay. So you and your authors created this definition? 

Correct. 

Id. at 68-69. Knox further testified that her study was a multi-national study in 

which “several different child abuse pediatricians across the country” participated. 

Id. at 101. Additionally, an attorney helped write the manuscript which was 

submitted for publication. Id. The purpose of the manuscript was to create a 

definition of child torture as a form of abuse. Id. at 102. However, Knox admitted 

that there was no formal medical definition of “child torture”, it was a diagnosis she 

was trying to create and have accepted. Id. at 103. Knox also admitted that while 
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there have been prior medical definitions of “child torture” none of them had been 

widely accepted by the medical community. Id. at 104. The purpose of the study 

was “to look at how we can create this [definition of child torture] to be widely 

accepted by the medical community.” Id. 

{¶7} The trial court was required to view Knox’s diagnosis of “child torture” 

using the factors set forth in Miller. This court recognizes that there was no way to 

test the theory of “child torture” in that it is a new diagnosis that will either be 

accepted or not be accepted. The only way to determine if abuse is “child torture” 

rather than child abuse would be a subjective determination based upon individual 

facts in each situation. Thus, this factor is not applicable in this instance. The 

second factor was whether the theory had been subject to peer review. While Knox 

testified that it had been reviewed by the Journal of Child and Adolescent Trauma, 

and she expected it would be published by the end of 2012, at the time of the hearing, 

no publication had yet occurred. Thus, there had been very little instances for peer 

review of the diagnosis that Knox was creating. As to the third factor, there was no 

known or potential rate of error discussed. Knox testified that they excluded some 

cases from her study because they involved additional factors than what she was 

studying and that her study was based on review of 28 cases. She did not testify to 

how known or potential errors could be identified or avoided. Finally, Knox 

testified that although others had attempted to create a diagnosis of “child torture” 

previously, it had not gained general acceptance. As her study had yet to be 
Case No. 4-14-03 

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published, no evidence was provided to the trial court for it to determine that her 

study would be generally accepted. Reviewing these factors, only two of them are 

applicable to the theory of “child torture” to which Knox wished to testify – whether 

it had been subject to peer review and whether it had gained general acceptance. 

Neither of these factors work in favor of Knox as the evidence shows no acceptance 

and Knox’s creation had yet to be published. Thus, the testimony concerning “child 

torture” as a diagnosis would not be reliable under Evid.R. 702(C), and should have 

been excluded. The State also argues that use of the term “child torture” is 

acceptable because it has been used in other cases. However, those cases did not 

involve a diagnosis of “child torture”. This does not mean that Knox could not have 

testified as an expert as to child abuse. Just that she could not diagnose Corey as a 

victim of “child torture” when such a diagnosis was one she had created and by her 

own testimony was not widely accepted by the medical community. In addition, it 

does not mean that upon retrial a new hearing could not be held and the factors 

reconsidered by the trial court in light of new circumstances which may have arisen 

since the first hearing in 2013. 

{¶8} The second argument of the State is that this court should reconsider 

that the State had no intention of calling Corey to testify after Dr. Salter’s testimony 

and that the State had rested its case. A review of the record indicates the following 

dialogue occurred between the trial court and the State after the testimony of Salter. 
Case No. 4-14-03 

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The Court: Before we excuse you [the jury], does the State have 

further witnesses to present? 

Mr. Murray: I don’t believe so, Your Honor. We do have some 

legal matters to pick up with the Court. 

* * * 

The Court: Be seated. Ladies and Gentlemen of the jury, the 

State has indicated they are through with witnesses they have 

called at this stage of the case. 

Mr. Mertz, Mr. Crates, witnesses to present? 

Tr. 1623-24. This indicates that the State had no more witnesses to present and 

Corey had not testified at that time. The next morning the trial court and the 

attorneys had the following discussion. 

The Court: We’re on the record, out of presence of the jury. 

Defendant and counsel are present. 

And Mr. Murray, the State has rested and we’re addressing the 

issue of your exhibits? 

Mr. Murray: Yes, Your Honor. Pursuant to our consent and 

stipulation yesterday, the State tentatively rested on – with the 

understanding that we would request admission of certain 

exhibits. 

The Court: All right. 

Mr. Murray: And that [sic] where we’re at. 

Tr. 1710. A long discussion was then held about the admissibility of the exhibits. 

The state indicated that it had never indicated that Corey was going to testify during 

the trial and the trial court also indicated that such a representation was not made. 
Case No. 4-14-03 

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Tr. 1734-35. After a break, the State then asked the court permission to present 

additional evidence. Tr. 1743-44. 

The Court: So bottom line is you’re willing to concede the 

inadmissibility of the statements, but you want to reopen your 

case for the opportunity to call Corey as a witness. 

Mr. Murray: I think that’s a yes, Your Honor. 

Tr. 1745. Although the State did not concede that it had rested its case, the trial 

court saw it as such and proceeded as if that was the case. The State is correct in 

claiming that at no time did the prosecutor say the words “the State rests”, however 

the use of these exact words is not necessary. 

{¶9} Regardless, this issue is irrelevant because this court did not rule on 

whether the State had rested its case or whether it should have been allowed to 

reopen its case. Although Hawkey raised it as an assignment of error, this court did 

not address the issue because it was moot in light of our decisions regarding the 

other assignments of error. Hawkey, supra at ¶ 85. As to whether the State intended 

to call Corey, the record, as addressed above, shows that the State informed the trial 

court that it had no more witnesses after Salter’s testimony. Additionally, during 

the long discussion between defense counsel and the court regarding the admission 

of the State’s exhibits, defense counsel was displeased with the fact that the State 

had not called Corey and complained that the State had seemed to indicate they 

would be doing so. The trial court then noted that the State had never indicated it 

was going to do so. At no time did the State interject and make any statement 
Case No. 4-14-03 

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contradicting the defense counsel or the trial court to indicate they planned to have 

Corey testify. It was not until after the issue about the admissibility of the exhibits 

was raised that the State asked to present the testimony of Corey. The State suggests 

that this Court mischaracterized what happened. A second review of the record does 

not show that there was a mischaracterization or that “the State’s case was viewed 

unfairly”. Additionally, the testimony of Corey was considered by this court. 

Therefore, there is no new issue raised and no obvious error that would support 

reconsideration. 

{¶10} The third claim by the State is that this court erred when it excluded 

Dr. Okuley’s testimony. This court initially notes that the testimony was not 

excluded and was not an issue on appeal. The State claims we mischaracterized the 

evidence by stating that “On cross-examination, Okuley admitted that he changed 

the certificate at the request of the prosecutor and solely based on the new statements 

made by Corey, even though he had not spoken with Corey.” Id. at ¶12. The 

testimony was as follows. 

Q. Okay. And did you ever personally speak with Corey 

Breininger as it came to matters relating to your investigation in 

changing this death certificate? 

A. No. 

Q. All right. And at whose request did you issue a new death 

certificate changing this to homicide? 

A. The prosecutor, Mr. Murray, asked me to look in on this 

case. 
Case No. 4-14-03 

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Tr. 542. The argument made by the State in its motion was addressed by the 

beginning of the paragraph. 

After reviewing the crime scene photos, reading the reports, 

reading the most recent statements made by Corey, and speaking 

with the former coroner, he changed the manner of death from 

accidental to homicide. 

Hawkey, supra at ¶ 12. The statement to which the State objects came from the 

testimony on cross-examination, was not an issue in this case, had no effect on the 

outcome of the appeal, and when taken in context was not a mischaracterization. It 

is clear that Okuley was not randomly reviewing files from cases almost 10 years 

old, but reviewed this one at the request of the prosecutor. Then based upon his 

review of the file and the recent statements of Corey, he changed the manner of 

death. This is not a mischaracterization as to what happened and there is nothing to 

reconsider. 

{¶11} The fourth objection raised by the State was to the exclusion of the 

testimony of Salter. The decision to admit challenged hearsay is reviewed de novo 

under the applicable hearsay rule, rather than the more deferential abuse of 

discretion standard. State v. Sorrels, 71 Ohio App.3d 162, 593 N.E.2d 313 (1st Dist. 

1991). This court initially notes that we did not exclude the testimony of Salter. 

The exclusion was to Salter testifying to what Corey told her as it was hearsay. The 

State argues that since Salter had twenty years of providing treatment and therapy 

to people, she should have been permitted to testify as to what Corey told her as an 
Case No. 4-14-03 

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exception to the hearsay rule, specifically statements made for the purpose of 

medical treatment or diagnosis admitted pursuant to Evid.R. 803(4). This court does 

not dispute that Salter is an expert or that she has previously provided medical 

treatment or therapy. However, Evidence Rule 803(4) requires that the statements 

be made for the purposes of medical diagnosis or treatment and meeting certain 

criteria to be admissible. “Such statements are deemed to be trustworthy and 

admissible because ‘the effectiveness of the treatment depends upon the accuracy 

of information given to the physician [so] the declarant is motivated to tell the 

truth.’” State v. Jones, 2015-Ohio-4116, 43 N.E.2d 833, ¶ 71 (2d Dist.) (quoting 

State v. Brewer, 6th Dist. Erie No. E–01–053, 2003-Ohio-3423, 2003 WL 

21489419, ¶ 28, citing State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 

(1988)). The fact that an expert makes a diagnosis does not automatically make the 

statements admissible if they were not made for the purpose of that. The Supreme 

Court of Ohio has held that the salient inquiry is whether the statements are made 

for the purpose of diagnosis and treatment rather than some other purpose. State v. 

Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 47. Statements 

made for the purpose of investigation rather than medical treatment or diagnosis are 

not admissible pursuant to Evid.R. 803(4). State v. Griffith, 11th Dist. Trumbull 

No. 2001-T-0136, 2003-Ohio-6980, ¶ 60. 

{¶12} The State argues that the evidence is admissible even if it is for the 

purpose of investigation and testimony and cites to State v. Edinger, 10th Dist. 
Case No. 4-14-03 

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Franklin No. 05AP-31, 2006-Ohio-1527, as support for its argument. However, the 

Edinger court actually held the opposite. In Edinger, the issue was whether a social 

worker could testify as to what a child victim told her at the hospital. The appellate 

court allowed the testimony for the following reasons. 

[T]he social worker testified that the interview with the child was 

solely for the purposes of medical treatment and diagnosis. In the 

present case, the role of the social worker did not involve 

reporting to the police and did not involve decisions to remove the 

child from the home. The stated function of the social worker was 

specifically for medical treatment and diagnosis. While it is true 

that the police were permitted to observe the interview by way of 

closed circuit television, the police did not contact the social 

worker to set up the interview as happened in the Woods case, nor 

was the child aware of their presence. 

Edinger at ¶ 63. The court distinguished two other cases in which the testimony 

was not permitted. In State v. Chappelle, the testimony of the social worker was 

not permitted because her function at the time of the interview was investigatory, 

not to determine if medical diagnosis and treatment were necessary, however it was 

not excluded because it was deemed harmless. Chappelle, 97 Ohio App.3d 515 (8th

Dist. 1994). In State v. Woods, the testimony of the social worker was excluded as 

not being for the purpose of medical treatment or diagnosis, but only tangentially 

related to that purpose. Woods, 8th Dist. Cuyahoga No. 82789, 2004-Ohio-2700. 

Thus, the issue is whether the statements made to Salter were made for the purpose 

of medical diagnosis or treatment or for another purpose. 
Case No. 4-14-03 

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{¶13} Salter testified that at the time of the trial she was working for the 

Department of Corrections in Wisconsin assessing violent offenders. Tr. 1433. She 

also conducted trainings on child abuse and testifies in court as an expert witness 

related to child abuse. Tr. 1434. Salter testified that she was hired by the State in 

this case to “evaluate Corey Breininger in terms of this case and any mental health 

issues that would affect the case.” Tr. 1437-38, 1515. Thus, she was working as an 

agent of the state for the purpose of determining issues with the case. Salter testified 

that she had diagnosed Corey with Post Traumatic Stress Disorder. Tr. 1466. 

However, on cross-examination, she testified that she does not actually do therapy 

or treat people, although she used to do so. Tr. 1502. Salter testified that she had 

not been treating people since 1999. Tr. 1502. Her specialty is research and training 

concerning sexual abuse and violent crimes. Tr. 1505. Her purpose in interviewing 

Corey was to help with the investigation of the case, not to provide medical 

treatment or a diagnosis for medical reasons. Salter testified that her task was to 

evaluate the previous disclosures and she was not concerned about suggestibility. 

Tr. 1445. Moreover, Salter testified that this case and her interview were “forensic” 

in nature. Tr. 1439, 1556. “Forensic” is defined as “[o]f, relating to, or involving 

the scientific methods used for investigating crimes.”1

 Black’s Law Dictionary 764 

(10th Ed.2014). This indicates the purpose of the interview was to aid the criminal 

 

1

 There are three other definitions of “forensic” found in Black’s Law Dictionary, however they are irrelevant 

to this case. 
Case No. 4-14-03 

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investigation, not for the purpose of providing medical treatment or a diagnosis for 

medical reasons. Thus, any testimony as to what Corey stated is not admissible as 

a hearsay exception under Evidence Rule 803(4). Again, this does not mean that 

Salter cannot testify to her conclusions based upon what Corey told her and what 

she learned from the records. She just cannot testify to what Corey said or vouch 

for his veracity. 

{¶14} The State also takes issue with the statement of this court that “the 

State was hoping that the jury would take the statements as fact and rely on them to 

convict” and claims that this court substituted its judgment for that of the jury. At 

the completion of Salter’s testimony, the State represented to the trial court that it 

had no more witnesses and Corey had not testified. The next day, the State again 

indicated that it had no more evidence to present other than to address the 

admissibility of exhibits. Discussions were had between the attorneys and the trial 

court about the admissibility of the exhibits without Corey’s testimony and the trial 

court told the State that absent that testimony, the evidence going to the jury would 

be “very, very limited”. Tr. 1733. It was after this statement that the State requested 

that Corey be allowed to testify and the trial court agreed. Additionally, our ruling 

addressed an issue of law, not fact. Thus, we did not substitute our judgment for 

that of the jury as jurors do not rule on admissibility of evidence. The claims made 

on this issue in the motion for reconsideration do not raise any new issue nor point 
Case No. 4-14-03 

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to an obvious error. As noted above, motions for reconsideration are not the proper 

vehicle for addressing a difference of opinion with the logic of the court. 

{¶15} The fifth claim raised by the State is that this court focused on a book 

that was not admitted into evidence. A review of the opinion indicates that the 

statements questioned by the State were taken from the testimony of Dr. Esplin who 

did a comparison between the book and Corey’s story. This testimony was not 

stricken and was thus part of the record. If the State has an issue with this testimony, 

then the matter should be addressed during the next trial. As this court did not reach 

the question of the manifest weight of the judgment due to other errors, this 

testimony was not considered in reaching its conclusion. 

{¶16} Next, the State claims that this court erred by finding error in the 

testimony of Beck when she testified to the hearsay statements of Corey. The State 

in its motion for reconsideration argues that the statements were not made for the 

truth of the matter asserted. Although this argument was briefly raised by the State 

in its appellate brief, it is arguable that it was not the position of the State at trial and 

cannot be raised for the first time on appeal. State v. Croft, 3d Dist. Auglaize No. 

2-15-11, 2016-Ohio-449, ¶ 8. See also, State v. Richcreek, 196 Ohio App.3d 505, 

2011-Ohio-4686, 964 N.E.2d 442 (6th Dist.) (holding that the State may not present 

a theory or add to a theory for the admission of evidence on appeal that was not 

presented to the trial court). If that had been the intent of the State, Beck could have 

testified as to what she did without repeating the statements of Corey by merely 
Case No. 4-14-03 

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testifying that based upon what Corey told her, she took the actions she did. 

Additionally, “[w]here the facts to be proven at trial and the substantive content of 

an out-of-court statement coincide, it can be presumed that the proponent is offering 

the statement for its truth.” Richcreek, supra at ¶ 23. However, we will give the 

State the benefit of the doubt and address its arguments anyway. 

{¶17} Contrary to the State’s argument in its motion, the testimony of Beck 

regarding the statements of Corey was subject to objection. 

[Beck]: * * * And so he come over and stood by me, and he said 

– 

Mr. Crates: Objection, hearsay. 

The Court: Sustained. 

Q. What was his – when you started to have a conversation 

with him, what was his demeanor? What was his – how did – as 

that conversation unfolded, how did he behave? What was his 

demeanor then? In other words, did he – was he – 

* * * 

A. He – he was in a good mood. 

Q. Okay. As that conversation went on, did his disposition 

change? 

A. Yes, it did 

Q. And in what respects did it change? 

A. Because he informed me that he had – 

Mr. Crates: Objection, hearsay. 

Q. What was his disposition like first? How was he acting? 
Case No. 4-14-03 

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Mr. Crates: Asked and answered. 

The Court: Overruled. You can answer. You can describe his 

demeanor. You can’t repeat what he told you. 

A. He was very – he was smiling when he saw me and said hello, 

how are you doing. 

Q. And then you said, in answer to my prior question, that as 

your conversation went on, his disposition changed? 

A. Yes. 

Q. Okay. And in what way did it change? How did he act, and 

what was he doing at that point? Before we talk about, or whether 

we talk about what he said to you, how was he acting? What was 

his – 

A. He was crying. 

Q. – disposition? Okay. So he – he was emotional? 

A. Very. 

Q. Okay. Why did, from your perception of observing him at 

that point, why was he emotional? 

A. Because he was sharing – 

Mr. Crates: Objection, hearsay. 

The Court: Sustained. 

Q. Based upon his emotional behavior, was he telling you 

something important about his life? 

Mr. Crates: Objection, hearsay. 
Case No. 4-14-03 

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Tr. 591-594. An off the record conference was then held between the trial court and 

the attorneys. At no time during this conversation regarding statements by Corey 

being hearsay did the State indicate that the statements were not being offered for 

the truth of the matter asserted. The State continued to present evidence that Corey 

was upset and emotional. Soon after the conference, the following testimony 

occurred. 

A. After we – we stopped at the end of the fence, and he was 

within feet of me, and he looked at me and said that – 

Mr. Crates: Objection, hearsay. 

Mr. Murray: Again, Your Honor, we would suggest that there is 

a hearsay exception here. 

Tr. 596. At this point in time, the State implicitly admitted that the statements were 

hearsay, but argued that they were subject to an exception. After repeated 

objections, including a request for a continuing objection, to the State’s questions 

asking Beck what Corey told her, the State argued that Beck should be allowed to 

testify to the spontaneous disclosures that were made to her because the foundation 

for the hearsay exception for it had been laid. Tr. 599-600, 612. The only 

foundation that had been discussed was that Corey was very upset and that these 

statements were excited utterances. Later in the testimony after Beck stated that 

Corey had calmed down, the defense objected to another statement made by Corey 

to Beck. Tr. 606. The testimony was allowed after the State argued that Corey was 

“still under the influence of this emotion” at the time of the later statements. Tr. 
Case No. 4-14-03 

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607. Although the State never specifically said on the record that the exception was 

based upon an excited utterance at the time of the testimony, the trial court later 

indicated that those statements were “admitted on the State’s theory that those 

[statements] were excited utterances.” Tr. 1726. The State did not contradict this 

statement. 

{¶18} The trial court did make a statement that the statements could come in 

as prior consistent statements made by Corey to rebut an express or implied charge 

of recent fabrication or improper influence or motive. While that might be allowed 

if Corey had testified, that had not occurred at the time Beck testified, and there 

were no prior consistent statements made under oath and subject to crossexamination to rebut. The State relies upon 801(D)(1)(b) in its motion, but it only 

applies if the declarant has testified at trial and has testified consistently with a prior 

statement. Corey had not testified at that point during the trial, so there were no 

consistencies in his testimony. 

{¶19} Additionally, the rule does not automatically mean that all prior 

consistent statements are admissible. 

The rule contains a timing component for prior statements in 

relation to a charge of “improper motive.” That is, only prior 

consistent statements made before the alleged motive to fabricate 

arose are admissible. The issue is not when the charge was made, 

but when the improper motive arose. If “the facts giving rise to 

the motive to falsify existed before the disputed consistent 

statements,” then Evid.R. 801(D)(1)(b) does not apply and the 

statements are inadmissible. 
Case No. 4-14-03 

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{¶20} State v. Richcreek, 196 Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d 

442, ¶ 59 (6th Dist.). “Obviously, the relevancy of many such statements would be 

suspect-an improbable story is not made more probable simply because it is 

repeated.” Motorists Mut. Ins. Co. v. Vance, 21 Ohio App.3d 205, 207, 486 N.E.2d 

1206, (10th Dist. 1985). The issue of the excited utterance exception, along with 

the State’s argument that the testimony was harmless because Corey eventually 

testified, was fully addressed in the original opinion. See Hawkey, supra at ¶ 61-

69. In order to find that the admission of hearsay evidence was not prejudicial, “the 

evidence in favor of conviction, absent the hearsay, must be so overwhelming that 

the admission of those statements was harmless beyond a reasonable doubt.” State 

v. Kidder, 32 Ohio St.3d 279, 284, 513 N.E.2d 311 (1987). That was not the case 

here. 

{¶21} Additionally, the State argues that we made an obvious error by 

omitting any mention of the supposed confession made by Hawkey to her current 

husband in a recorded jail conversation. Upon reviewing the conversation, we 

cannot tell whether Hawkey states “I did it”, “I didn’t”, or “I get it.” Therefore, this 

piece of “evidence” is not so overwhelmingly incriminating that we committed error 

by omitting it from our analysis. We reiterate that nearly all of the incriminating 

evidence as to the child endangerment charges, which was the predicate for the 

murder charge, comes back to Corey’s testimony. The only physical evidence of 

child abuse was the scar above Corey’s penis. Some of the State’s testimony 
Case No. 4-14-03 

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regarding child abuse was contradicted by other witnesses, including those for the 

State. When nearly all the evidence is being supported by one person’s testimony 

and where that testimony is bolstered by impermissible hearsay, the ultimate 

conviction cannot be said to not be tainted. Therefore, reversal is required. 

{¶22} The State has neither presented an obvious error nor raised an issue 

not considered by this court. Instead, the State merely takes issue with our 

conclusions, which is a not ground for reconsideration. 

{¶23} The seventh claim made by the State is that this court substituted its 

judgment for that of the jury. This does not raise any issue appropriate for 

reconsideration as it is merely a difference of opinion. This court did not make any 

findings of fact in its opinion. The decision of this court was based upon questions 

of law, not ones of fact. The only questions of fact that were raised on appeal went 

to the assignment of error relating to the manifest weight of the evidence. Having 

found errors in the trial procedure, this court did not address the manifest weight of 

the evidence. Hawkey, supra at ¶ 84. Thus, this court did not substitute its judgment 

for that of the jury. 

{¶24} Finally, the State claims that our prior opinion was inconsistent 

because we determined that the evidence was sufficient to support the convictions, 

yet we ordered a new trial. For the clarification of the State, this court notes that 

when prejudicial errors are found in the procedure, the remedy is a new trial. 

However, this finding does not mean that this court need not address the sufficiency 
Case No. 4-14-03 

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of the evidence. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 

284. The appellate court must still address the sufficiency of the evidence because 

if the evidence is not sufficient to support the convictions, the remedy is dismissal 

of the charges and a new trial would be barred by double jeopardy. Id. at ¶14-15. 

However, retrial is not barred if the evidence presented at the trial is sufficient to 

support a conviction even though the conviction is reversed due to trial errors. Id. 

at ¶ 16. This court found there were errors that called for a new trial. However, the 

court also found that based upon the evidence presented in the first trial and viewing 

that evidence in a light most favorable to the State, the evidence was not insufficient 

to support the convictions. The statement that the judgment was affirmed in part 

and reversed in part merely reflected our rulings on the assignments of error. The 

sufficiency challenge was overruled, so we used the term “affirmed.” However, we 

sustained Hawkey’s hearsay challenges and the expert witness challenges, so we 

used the term “reversed” for that portion. Upon reflection, we acknowledge that the 

appropriate phrasing to use was just that the judgment was reversed, as all of 

Hawkey’s convictions were reversed. Thus, the State has the opportunity to try the 

case again rather than have the charges dismissed and the defendant released. 

{¶25} Having reviewed the claims made by the State, our opinion, and the 

record, the Court finds that the application fails to set forth an obvious error in the 

decision or raise any issues that were not properly considered in the first instance. 

The claims merely present a difference in opinion as to the conclusions reached and 
Case No. 4-14-03 

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the logic of this court. Accordingly, the application for reconsideration should be 

denied and clarification has been provided as set forth above. 

{¶26} Furthermore, in regard to the motion to certify a conflict, the Court 

finds that there is no true and actual conflict on a rule of law between the decision 

in the instant case and the decision in State v. Edinger, 10th Dist. Franklin No. 

05AP-31, 2006-Ohio-1527. The analysis set forth above shows that the two 

decisions are factually distinguishable and not in conflict on the pertinent rule of 

law. See Whitelock v. Gilbane Bldg. Co. (1993), 66 Ohio St.3d 594. Accordingly, 

the motion to certify is likewise without merit and should be denied. 

{¶27} It is therefore ORDERED that Appellee’s application for 

reconsideration and motion to certify a conflict be, and the same hereby are, 

overruled. 

 /S/ WILLAMOWSKI 

 JUDGE 

 /S/ ROGERS 

 JUDGE 

 PRESTON, J., Dissents as to Motion for Reconsideration

 JUDGE 

DATED: August 15, 2016 

/hls