[Cite as State v. Felts, 2016-Ohio-2755.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ROSS COUNTY 

STATE OF OHIO, : Case No. 15CA3491 

 Plaintiff-Appellee, : 

v. : DECISION AND 

 JUDGMENT ENTRY 

BRETT FELTS, : 

 Defendant-Appellant. : RELEASED: 4/27/2016 

APPEARANCES: 

Timothy Young, Ohio Public Defender, and Carrie Wood, Assistant State Public 

Defender, Columbus, Ohio, for appellant. 

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross 

County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee. 

Harsha, J. 

{¶1} Brett Felts, who was convicted of gross sexual imposition, asserts that the 

trial court violated his federal and state constitutional right to confrontation when it 

admitted statements the child victim made to a social service worker. However, the 

evidence indicates the social service worker obtained the child’s statements, which 

included the identity of the perpetrator, the type of abuse alleged, and the identification 

of the areas where the child had been touched, for medical treatment or diagnostic 

purposes. Therefore, they were nontestimonial and were admissible without offending 

the Confrontation Clauses of the United States and Ohio Constitutions. 

{¶2} Even if we assume that the trial court erred in admitting these statements, 

the state established that any error was harmless beyond a reasonable doubt because 

the statements were largely cumulative of other evidence introduced at trial, including: 

1) other statements the child made to the social service worker that were admitted 
Ross App. No. 15CA3491 2 

without objection, 2) the statement the child made to her mother, and 3) a scientific 

analysis that identified the presence of semen and Felts’s DNA on panties the child 

wore when the sexual assault occurred. We reject Felts’s first assignment of error. 

{¶3} Next Felts contends that the trial court violated Ohio evidentiary rules 

when it permitted the child’s mother, Jennifer M., to testify about a hearsay statement 

that the child made to her. Felts claims that the statement did not qualify as an excited 

utterance because there was no finding or evidence that the child made the statement 

when she was under any nervous excitement. However, a three-year-old child is 

considered relatively trustworthy due to the child’s limited reflective powers. And the 

state introduced sufficient evidence that the child was still under the stress of 

excitement caused by the sexual assault, e.g., the child made the statement to her 

mother within an hour or two of returning from a weekend visit with Felts. Likewise, she 

had been unusually quiet with her mother after her visit, which was very odd and 

abnormal for her. 

{¶4} The fact that the child made the statement in response to her mother’s 

questions asking what was wrong, what happened, and why her vaginal area was so 

red, did not make the statement inadmissible. The mother’s questions were neither 

coercive nor leading. They facilitated the child’s expression of what was already the 

natural focus of her thoughts and did not destroy the domination of nervous excitement 

over her reflective faculties. Consequently, the trial court acted reasonably in admitting 

the child’s statement under the excited-utterance exception to the hearsay rule. We 

reject Felts’s second assignment of error and affirm the trial court’s judgment. 

I. FACTS 
Ross App. No. 15CA3491 3 

{¶5} The Ross County Grand Jury returned an indictment charging Brett Felts 

with one count of gross sexual imposition in violation of R.C. 2907.05, a third-degree 

felony. The indictment alleged that during a three-day period in 2010, Felts had sexual 

contact with S.M., who was less than 13 years of age and (obviously) not his spouse. 

{¶6} Felts entered a plea of not guilty to the charge and contested the 

competency of the child victim to testify as a witness. After conducting an in camera 

examination of the child, the trial court declared the child incompetent to testify. 

{¶7} When the state indicated its intention to introduce the child’s statements to 

Sexual Assault Nurse Examiner (“SANE” Nurse) Heidi Norman into evidence, Felts 

filed a motion in limine to exclude this testimony. Felts ultimately expanded the motion 

to contest the child’s statements to her mother and to social service worker Laura Butt. 

{¶8} The trial court conducted a hearing where Jennifer M. testified that she is 

the mother of S.M. and a son, A.M. She dropped her children off to stay with her sister, 

Melinda, and her sister’s boyfriend, Felts, on the afternoon or evening of Friday, 

January 15, 2010, and picked them up around 1:00 p.m. on Sunday, January 17, 2010. 

S.M. was three years old at the time. According to the mother, although her daughter 

was normally talkative around her, S.M. was unusually quiet on the trip back home: “she 

was very quiet, wouldn’t talk.” The mother considered her daughter’s behavior very odd 

for her. 

{¶9} When they returned home the mother helped S.M. go to the restroom, and 

she noticed redness in S.M.’s vaginal area. The mother testified that when she asked 

her daughter “what was wrong,” “[w]hat happened,” and “why it was so red,” S.M. told 

her that “Brett woke her up and touched her and she pointed to her private area.” The 
Ross App. No. 15CA3491 4 

mother then called her daughter’s doctors and upon their recommendation, she took 

S.M. out to the emergency room of the hospital in the same clothes she had been 

wearing during the weekend visit. S.M. was examined at the hospital and released that 

day. About a week later, the mother took S.M. to the Child Protection Center. 

{¶10} Heidi Norman testified that she is a SANE nurse in the emergency 

department of the Adena Regional Medical Center. On January 17, 2010, Norman 

administered a sexual assault kit to S.M. at the hospital. In completing the kit Norman 

received information about the alleged sexual conduct from S.M.’s mother, rather than 

from the child. 

{¶11} Laura Butt, a social service worker employed by the Ross County Job and 

Family Services (“RCJFS”), Children’s Division, testified that she performs 

investigations of child abuse, neglect, and dependency. Butt’s agency works with law 

enforcement, the prosecutor’s office, and the Child Protection Center in cases involving 

child abuse. 

{¶12} Under the standard protocol, if the child has not been to the emergency 

room, RCJFS will contact the Child Protection Center and arrange an interview and an 

examination for the child. If the child has already been to the emergency room, a social 

worker schedules an interview, a doctor reviews the notes from the hospital, and a 

follow-up examination with a physician occurs. After interviewing the child, the social 

service worker completes a child protection interview synopsis and a doctor reviews the 

worker’s notes for purposes of medical diagnosis and treatment. During the interview of 

the child, the social service worker attempts to garner the following information to be 

used in the medical diagnosis of the child: the name of the perpetrator and the alleged 
Ross App. No. 15CA3491 5 

abuse, i.e., if the child has been injured or touched, so that the doctor knows what to 

look for. 

{¶13} Butt testified that on January 25, 2010, she interviewed S.M. at the Child 

Protection Center about a week after her hospital visit. According to Butt the purpose of 

the interview was to get more diagnostic information for the physician to conduct a 

medical examination. Butt explained to S.M. that her job was to tell anyone who might 

have hurt or touched S.M. not to do that anymore. When she asked S.M. if there was 

anyone she needed to tell that to, S.M. answered “Brett.” Butt then asked S.M. what 

she should tell Brett [Felts], and the child responded that she should tell Felts not to 

touch her anymore. When Butt asked her where not to touch her, she pointed to her 

crotch area. S.M. also told Butt that Felts had touched her on her skin rather than 

simply on her clothes. According to Butt, she asked S.M. whether she was touched on 

her clothes or on her skin for medical diagnostic purposes because a touching on the 

skin might require additional medical attention. 

{¶14} On cross-examination Butt admitted that she had mistakenly marked on 

the synopsis form that the abuse involved “[f]ondling over clothes” even though S.M. 

had told her that Felts had touched her skin in the crotch area. Butt further noted that 

S.M.’s statements of abuse were “conflicting” and “unclear,” that at one point, she stated 

that she had been touched with a shoe, and that the touching had been by accident 

rather than on purpose. Butt indicated that the purpose of her interview of S.M. was to 

gather information for a doctor’s follow-up examination, which she acknowledged did 

not occur until 11 months later. According to Butt, she conducts the interview the same 

way regardless of when the follow-up examination ultimately occurs. Butt’s 
Ross App. No. 15CA3491 6 

recommendation at the end of the synopsis was to interview the alleged perpetrator, 

i.e., Felts. She did not recommend a medical exam, however. 

{¶15} At the conclusion of the hearing the state indicated that it would not 

introduce the statements made to SANE Nurse Norman because the mother made 

them instead of the child. 

{¶16} The trial court issued a detailed decision overruling Felts’s motion in 

limine. The court determined that the state could introduce evidence of the child’s 

statement to her mother because it constituted an excited utterance excepted from the 

hearsay rule. The court further determined that the state could introduce evidence of 

the child’s statements to Social Service Worker Butt because they were made for the 

purpose of diagnosis and treatment and were not testimonial in nature. The trial court 

later denied Felts’s motion for reconsideration of its ruling. 

{¶17} After a successful appeal and remand on an issue that is not relevant 

here,1 the matter proceeded to a jury trial. The mother testified she dropped off her 

daughter, S.M., and her son, A.M., with her sister Melinda and her sister’s boyfriend, 

Felts, on a Friday, where they spent the weekend. Contrary to her usual talkative 

nature around her mother, S.M. was very quiet when her mother picked her up. When 

they returned home on Sunday, the mother helped her daughter, who was three years 

old at the time, go to the restroom where she noticed that her daughter was very red in 

her vaginal area. Over Felts’s objection, the mother testified that after she asked her 

daughter what was wrong and why the area was so red, S.M. told her “that Brett 

touched her and she pointed to her vaginal area.” 

 

1 See State v. Felts, 4th Dist. Ross No. 13CA3407, 2014-Ohio-2378. 
Ross App. No. 15CA3491 7 

{¶18} Jennifer M. then transported her daughter to the hospital emergency 

room, and she provided law enforcement with S.M.’s underwear that she had worn 

throughout her weekend visit with her aunt and Felts. SANE Nurse Norman completed 

a sexual assault kit for S.M. at the hospital that day. 

{¶19} About a week later Social Service Worker Butt interviewed S.M. at the 

Child Protection Center. Butt again testified that the purpose of her forensic interview of 

children alleged to be sexually or physically abused is diagnostic to determine if there 

are places on the child’s body that doctors need to examine subsequently. 

{¶20} Butt also testified she places the information she obtains in a synopsis 

form for doctors to review for medical treatment or diagnosis. This information includes 

who touched the child, where the child was touched, and whether the touching is on the 

skin. The medical purpose of knowing whether the perpetrator had touched the child’s 

skin would be that it could cause a medical condition, e.g., a rash, in the vaginal area 

that the doctor would need to examine. 

{¶21} The following exchange then occurred, with Felts’s counsel objecting only 

to the initial question about S.M.’s response to whether she had been touched: 

MR. MARKS: During the course of the interview, did [S.M.] have a chance 

to tell you whether or not she had been touched? 

MS. BUTT: Yes. 

MR. MARKS: What was her, what did she tell you, that she had or 

hadn’t? 

MS. BUTT: She was very shy when she first came in the room and didn’t 

really talk a whole lot and I explained to her that my job is, if someone’s 

done something to them, then I tell them not to do that anymore and I 

asked her if there was someone I should tell not to do something to her 

and she said Brett [Felts]. 
Ross App. No. 15CA3491 8 

MR. REED: Your Honor, I’m going to, for the record, objection. 

THE COURT: The objections noted and overruled. 

MR. REED: Thank you. 

MR. MARKS: And she had said Brett? 

MS. BUTT: Correct. 

MR. MARKS: Did she relay to you where she had been touched? 

MS. BUTT: I asked her what I should, where I should tell him, you, what, 

what should I tell him not to do anymore and she pointed to her crotch 

area and said touch, should not touch me there. 

MR. MARKS: Okay. When you say her crotch area what do you mean? 

MS. BUTT: She pointed to, to the vaginal area. 

MR. MARKS: Was she able to tell you whether the contact was on top of 

her, on top of her clothing or on the skin? 

MS. BUTT: She said it was on the skin. 

{¶22} Although she noted inconsistencies on the synopsis she completed for the 

doctors’ use, Butt testified that “the one thing she was consistent with is saying that 

Brett touched her and pointed to the crotch and it was on the skin.” Felts did not object 

to this testimony. 

{¶23} Chillicothe Police Officer Christopher King testified that he interviewed 

Felts about the accusation and that Felts denied that he had sexually assaulted S.M. 

Felts advised Officer King that Jennifer M. “likes to start stuff.” 

{¶24} Hannah Cox, a forensic scientist with the Ohio Bureau of Criminal 

Identification and Investigation, testified that she tested S.M.’s underwear and found, 

amylase, which is present in saliva and other body fluids, in her underwear. She also 
Ross App. No. 15CA3491 9 

found that semen was present on both the inside and outside of the underwear. 

Megan Clement, the technical director of forensic identity testing with LabCorp, stated 

her testing determined that the major DNA profile found on the outside of S.M.’s 

underwear matched Felts’s DNA profile and also included a minor DNA profile 

consistent with S.M.’s DNA profile. Clement conceded that the Felts’s DNA profile was 

from the non-sperm fraction or component of his DNA. But she also indicated that the 

probability that another person’s profile matched Felts’s was “one in greater than the 

world’s population.” 

{¶25} After the state presented its case Felts submitted some exhibits into 

evidence and rested without calling any witnesses. The jury returned a verdict finding 

Felts guilty of gross sexual imposition. After the trial court sentenced Felts accordingly, 

this appeal ensued. 

II. ASSIGNMENTS OF ERROR 

{¶26} Felts assigns the following errors for our review: 

I. THE TRIAL COURT ERRED WHEN IT PERMITTED LAURA BUTT TO 

TESTIFY TO THE STATEMENTS MADE TO HER BY S.M. WHEN THE 

PRIMARY PURPOSE OF THE FORENSIC INTERVIEW WAS 

INVESTIGATIVE AND THE INTERVIEW FOLLOWED AN EXAMINATION 

BY A S.A.N.E. NURSE, WHOSE EXAMINATION WAS RELIED UPON TO 

CONDUCT ANY SUBSEQUENT PHYSICAL EXAM AND TESTING. 

FIFTH, SIXTH, AND FOURTEENTH AMENDMENT OF THE UNITED 

STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF 

THE OHIO CONSTITUTION; R.C. 2941.25. 

II. THE TRIAL COURT ERRED WHEN IT PERMITTED JENNIFER M[][.] 

TO TESTIFY TO THE STATEMENTS MADE TO HER BY S.M. IN 

RESPONSE TO QUESTIONING BY MS. MITCHELL HOURS OR DAYS 

AFTER THE ALLEGED INCIDENT WITHOUT A FINDING OR EVIDENCE 

TO SUGGEST NERVOUS EXCITEMENT AT THE TIME OF 

DISCLOSURE. EVID.R. 801(C), EVID.R. 802, EVID.R. 803(2). 

 

III. STANDARD OF REVIEW 
Ross App. No. 15CA3491 10 

{¶27} Felts’s assignments of error challenge the trial court’s admission of 

evidence concerning the statements of the child victim. His first assignment of error 

asserts a violation of his federal and state constitutional right to confrontation, and his 

second assignment of error asserts a violation of state evidentiary rules. 

{¶28} In general, “ ‘[t]he admission or exclusion of relevant evidence rests within 

the sound discretion of the trial court.’ ” State v. Dean, __ Ohio St.3d __, 2015-Ohio4347, __ N.E.3d __, ¶ 87, quoting State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 

(1987), paragraph two of the syllabus. However, for Felts’s first assignment of error, “ 

‘questions concerning evidentiary issues that also involve constitutional protections, 

including confrontation clause issues, should be reviewed de novo.’ ” State v. Gerald, 

4th Dist. Scioto No. 12CA3519, 2014-Ohio-3629, ¶ 59, quoting State v. Jeffers, 4th Dist. 

Gallia No. 08CA7, 2009-Ohio-1672, ¶ 17. Therefore, we will review this assignment of 

error de novo because it raises a question of constitutional law. 

{¶29} For the evidentiary issue raised in Felts’s second assignment of error, we 

apply the general standard. “Thus, absent an abuse of discretion, an appellate court 

will not disturb a trial court’s ruling regarding the admissibility of evidence.” State v. 

Leasure, 2015-Ohio-5327, __ N.E.3d __, ¶ 32 (4th Dist.). “ ‘A trial court abuses its 

discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.’ 

” State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, quoting 

State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. An 

abuse of discretion includes a situation in which a trial court did not engage in a “sound 

reasoning process"; this review is deferential and does not permit an appellate court to 

simply substitute its judgment for that of the trial court. Darmond at ¶ 34. 
Ross App. No. 15CA3491 11 

IV. Right to Confrontation 

A. The Applicable Law 

{¶30} Felts’s first assignment of error asserts that the trial court erred by 

permitting social service worker Butt to testify about statements S.M. made to her. He 

argues the admission of the statements violated his constitutional right to confrontation 

because the primary purpose of Butt’s forensic interview was investigative, rather than 

for diagnostic medical purposes. 

{¶31} “The Sixth Amendment's Confrontation Clause provides, ‘In all criminal 

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses 

against him * * *.’ ” State v. Maxwell, 139 Ohio St.3d 12, 2014 -Ohio- 1019, 9 N.E.3d 

930, ¶ 34. The Confrontation Clause of the Sixth Amendment is made applicable to the 

states by the Fourteenth Amendment. State v. Issa, 93 Ohio St.3d 49, 752 N.E.2d 904, 

fn. 4 (2001). Consequently, this constitutional right applies to both federal and state 

prosecutions, but the right of confrontation in Article I, Section 10 of the Ohio 

Constitution provides no greater right of confrontation than the Sixth Amendment. State 

v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 12. 

{¶32} “The United States Supreme Court has interpreted [the Sixth Amendment 

right to confrontation] to mean that admission of an out-of-court statement of a witness 

who does not appear at trial is prohibited by the Confrontation Clause if the statement is 

testimonial unless the witness is unavailable and the defendant has had a prior 

opportunity to cross-examine the witness.” Maxwell at ¶ 34, citing Crawford v. 

Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford

did not define the word “testimonial” but stated generally that the core class of 
Ross App. No. 15CA3491 12 

statements implicated by the Confrontation Clause includes statements “ ‘made under 

circumstances which would lead an objective witness reasonably to believe that the 

statement would be available for use at a later trial.’ ” 541 U.S. at 52, 124 S.Ct. 1354, 

158 L.Ed.2d 177, quoting the amicus brief of the National Association of Criminal 

Defense Lawyers. 

{¶33} After Crawford the United States Supreme Court held that “a statement 

cannot fall within the Confrontation Clause unless its primary purpose was testimonial.” 

Ohio v. Clark, __ U.S. __, 135 S.Ct. 2173, 2180,192 L.Ed.2d 306 (2015). “ ‘Statements 

are nontestimonial when made in the course of police interrogation under circumstances 

objectively indicating that the primary purpose of the interrogation is to enable police 

assistance to meet an ongoing emergency’ ” whereas “ ‘[t]hey are testimonial when the 

circumstances objectively indicate that there is no such ongoing emergency, and that 

the primary purpose of the interrogation is to establish or prove past events potentially 

relevant to later criminal prosecution.’ ” Clark, 135 S.Ct. at 2180, quoting Davis v. 

Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). 

{¶34} In the context of out-of-court statements by incompetent child declarants, 

the Supreme Court of Ohio held that “[r]egardless of whether a child less than ten years 

old has been determined to be competent to testify pursuant to Evid.R. 601, the child’s 

statements may be admitted at trial as an exception to the hearsay rule pursuant to 

Evid.R. 803(4) if they were made for purposes of medical diagnosis or treatment.” State 

v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, syllabus. Although the 

initial focus of Muttart was on the proper application of the hearsay rule, which is not the 

focus in Felts’s first assignment of error, the Supreme Court of Ohio also held that 
Ross App. No. 15CA3491 13 

“[s]tatements made to medical personnel for purposes of diagnosis or treatment are not 

inadmissible under Crawford, because they are not even remotely related to the evils 

that the Confrontation Clause was designed to avoid.” Id. at ¶ 63; see also State v. 

Taylor, 8th Dist. Cuyahoga No. 10174, 2015-Ohio-2513, ¶ 41. 

{¶35} The Supreme Court of Ohio specifically addressed the issue of whether 

statements made by children during interviews at child-advocacy centers, or their 

functional equivalent, are testimonial, and whether statements by child victims of sexual 

abuse for medical diagnosis and treatment are testimonial. State v. Arnold, 126 Ohio 

St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775. The parties agree here that the Child 

Protection Center is either a child-advocacy center or its functional equivalent. As the 

Supreme Court observed, an interview at these types of facilities has two objectives: 

Child-advocacy centers are unique. Multidisciplinary teams cooperate so 

that the child is interviewed only once and will not have to retell the story 

multiple times. Most members of the team retain their autonomy. Neither 

police officers nor medical personnel become agents of the other. 

However, to ensure that the child victim goes through only one interview, 

the interviewer must elicit as much information from the child as possible 

in a single interview and must gather the information needed by each 

team member. Thus, the interview serves dual purposes: (1) to gather 

forensic information to investigate and potentially prosecute a defendant 

for the offense and (2) to elicit information necessary for medical diagnosis 

and treatment of the victim. The interviewer acts as an agent of each 

member of the multidisciplinary team. Id at ¶ 33. 

 

{¶36} After applying the primary-purpose test, the court held that “[s]tatements 

made to interviewers at child-advocacy 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” whereas “[s]tatements 

made to interviewers at child-advocacy centers that are made for medical diagnosis and 
Ross App. No. 15CA3491 14 

treatment are nontestimonial and are admissible without offending the Confrontation 

Clause.” Arnold at paragraphs one and two of the syllabus. 

B. Analysis 

{¶37} Felts asserts that Butt’s introduction of the statements S.M. made to her at 

the Child Protection Center violated the Confrontation Clause because the primary 

purpose of the interview was to assist law enforcement, rather than to diagnose and 

treat S.M. This assertion is meritless for several reasons. 

{¶38} First, the Supreme Court in Arnold emphasized that each individual 

statement by the child declarant must be analyzed to determine whether the primary 

purpose was for medical diagnosis and treatment or for a forensic or investigative 

purpose. Therefore, Felts’s claim that all of the statements are inadmissible based on 

the primary purpose of the entire interview is baseless. 

{¶39} Second, Felts specifically contests the statements identifying him as the 

perpetrator of the crime, that he touched her vagina, and that the contact was on her 

skin. However, Butt testified at both the in limine hearing and at trial that: (1) the 

purpose of the interview was to obtain diagnostic information so that a physician could 

conduct a medical examination; and (2) the name of the perpetrator, the nature of the 

alleged abuse, and whether the abuse involved touching on the child’s skin constituted 

information to be used in the medical diagnosis and treatment of the child. This is the 

same type of information that the Supreme Court of Ohio found to be admissible 

because it was for medical diagnosis. See Arnold, 126 Ohio St.3d 290, 2010-Ohio2742, 933 N.E.2d 775, ¶ 32, 38 (“information regarding the identity of the perpetrator, 

the type of abuse alleged, and the time frame of the abuse allows the doctor or nurse to 
Ross App. No. 15CA3491 15 

determine whether to test the child for sexually transmitted infections”); Taylor, 8th Dist. 

Cuyahoga No. 101704, 2015-Ohio-2513, at ¶ 44 (“In Arnold, the Supreme Court found 

that a child’s statements regarding the identity of the perpetrator, the type of abuse 

alleged, the time frame of the abuse, and the identification of the areas where the child 

had been touched, were all for medical diagnosis”); State v. Williams, 1st Dist. Hamilton 

No. C-140199, 2015-Ohio-3968, ¶ 31 (“Obtaining a thorough history regarding the 

causation and nature of the injury is an important component of medical diagnosis and 

treatment”); State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, ¶ 27, 

quoting In re D.L., 8th Dist. Cuyahoga No. 84643, 2005-Ohio-2320, ¶ 21 (“ ‘courts have 

consistently found that a description of the encounter and identification of the 

perpetrator are within scope of statements for medical treatment and diagnosis’ ”). 

{¶40} Third, although Felts contends that S.M.’s statements to Butts were not for 

medical purposes because the SANE nurse’s prior examination provided the pertinent 

information necessary for a follow-up medical examination, we do not agree. Felts is 

correct that the facts of the specific situation may rebut conclusory statements of the 

interviewer. But the Supreme Court in Arnold rejected a similar argument at ¶ 39 by 

stating that “although [the child] was taken to the hospital on the night of the rape, the 

record establishes only that a rape-kit examination was performed, not that she was 

examined for medical diagnosis or treated.” Similarly, SANE Nurse Norman testified at 

trial that she only performed the sexual-assault-kit examination; she did not testify that 

she examined S.M. for medical diagnosis or treatment. And although a subsequent 

doctor could refer to the emergency room records to assist a medical diagnosis and 

treatment, this would not diminish the utility of the physician’s additional use of the 
Ross App. No. 15CA3491 16 

social worker’s interview synopsis. Admittedly, it seems very odd that the follow-up 

medical examination for S.M. evidently did not occur until eleven months after the 

interview at the Child Protection Center, apparently because of a miscommunication, or 

Butt’s failure to check that box on her interview sheet. However, this does not alter the 

character of the information at the time it was gathered or change the fact that the 

questions Butts asked were relevant to the primary purpose of medical diagnosis and 

treatment. 

{¶41} Fourth, Felts himself elicited from Butt other statements S.M. made that 

were not primarily for medical purposes, e.g., whether the touching was on purpose or 

by accident. In essence, Felts can’t have his cake and eat it too, by introducing 

statements S.M. made that were beneficial to him but by objecting to those that were 

not. 

{¶42} Moreover, even if we assume that the trial court erred in admitting the 

testimony of social service worker Butt about what S.M. told her, the state established 

that such an error could only be harmless beyond a reasonable doubt. The harmlesserror rule is applicable to Confrontation Clause violations. See State v. Hood, 135 Ohio 

St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶ 43. The state bears the burden of 

establishing that any error did not affect the defendant’s substantial rights. State v. 

Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 23. 

{¶43} Recently, the Supreme Court of Ohio applied the following analysis to 

determine whether an error has affected the substantial rights of the defendant so as to 

require a new trial. “First, it must be determined whether the defendant was prejudiced 

by the error, i.e., whether the error had an impact on the verdict. State v. Harris, 142 
Ross App. No. 15CA3491 17 

Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37, citing Morris at ¶ 25 and 27. 

Second, it must be determined whether the error was not harmless beyond a 

reasonable doubt. Id. at ¶ 37, citing Morris at ¶ 28. Once the prejudicial evidence is 

excised, the remaining evidence is weighed to determine whether it establishes the 

defendant’s guilt beyond a reasonable doubt. Id. at ¶ 37, citing Morris at ¶ 29, 33. In 

reviewing the remaining evidence, we are mindful that our rule is not that of supreme 

fact finder. But rather we must consider the impact the excised testimony had on the 

jury in determining if there is no reasonable possibility the tainted evidence contributed 

to the conviction. To accomplish this, we must focus on both the impact the prohibited 

testimony had on the verdict and the strength of the remaining evidence. Morris, supra. 

{¶44} Applying these factors here, we find that the error was harmless beyond a 

reasonable doubt. 

{¶45} We recognize that Butt’s testimony concerning the child’s identification of 

the perpetrator likely had some negative impact upon the jury. However, when we 

review the remaining evidence through the eyes of a reasonable jury, we can only 

conclude there is no reasonable possibility that such a jury would have acquitted him in 

the absence of the offending testimonial evidence. 

{¶46} Initially, we are guided by the fact that Felts’s trial counsel only objected at 

trial to one of the statements of the child that Butts repeated, i.e. that S.M. identified 

Felts in response to her of whether there was somebody she (Butts) needed to tell not 

to do something to the child. But there was no objection to Butt’s additional testimony in 

which S.M. identified Felts as the perpetrator of the crime, described his touching of the 

child’s vaginal area, and noted that the touching was on her skin. See State v. Felts, 
Ross App. No. 15CA3491 18 

4th Dist. Ross No. 13CA3407, 2014-Ohio-2378, at ¶ 15, quoting Gables v. Gates Mills, 

103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 34 (“ ‘Ohio law is clear * * * 

that a ruling on a motion in limine may not be appealed and that objections to the 

introduction of testimony or statements of counsel must be made during the trial to 

preserve evidentiary rulings for appellate review’ ”); State v. Brown, 38 Ohio St.3d 305, 

528 N.E.2d 523 (1988), paragraph three of the syllabus (“A denial of a motion in limine 

does not preserve error for review. A proper objection must be raised at trial to 

preserve error”). 

{¶47} Second, the mother presented uncontroverted testimony that S.M. told her 

that Felts touched her and she pointed to her vaginal area. 

{¶48} Third, the state introduced additional uncontested evidence that BCI was 

able to identify sperm on the waist band of S.M.’s underwear and Felts’s DNA matched 

the major DNA found on the S.M’s underwear. The major profile means more of Felts’s 

DNA was on the tested patch of S.M.’s underwear than her own minor profile. That 

would seem to indicate that an accidental contamination by contacting contaminated 

clothing or a towel was highly unlikely. Likewise, the probability that another person’s 

STR DNA profile would match Felts’s was one in greater than the world’s population, 

i.e. one in 6.8 billion. 

{¶49} Because of this overwhelming evidence of Felts’s guilt in the absence of 

the contested testimony, any error was harmless beyond a reasonable doubt, i.e. there 

is no reasonable possibility that the error contributed to the conviction. 
Ross App. No. 15CA3491 19 

{¶50} We hold that the trial court did not violate Felts’s federal and state 

constitutional right to confrontation by admitting the child’s statements through Butt’s 

testimony. We overrule Felts’s first assignment of error. 

V. Excited Utterance 

A. The Applicable Law 

{¶51} Felts’s second assignment of error asserts that the trial court abused its 

discretion in admitting the child’s statement to her mother that Felts touched her, 

pointing to her vaginal area. Felts claims that this evidence was inadmissible hearsay 

under the Ohio Rules of Evidence. 

{¶52} “ ‘Hearsay’ is a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” Evid.R. 801(C). “Hearsay is not admissible except as otherwise provided by 

the Constitution of the United States, by the Constitution of the State of Ohio, by statute 

enacted by the General Assembly not in conflict with a rule of the Supreme Court of 

Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio.” 

Evid.R. 802. The pertinent exception here is Evid.R. 803(2), the excited-utterance 

exception, which provides that “[a] statement relating to a startling event or condition 

made while the declarant was under the stress of excitement caused by the event or 

condition” is not excluded by the hearsay rule. 

{¶53} Ohio courts apply the following four-part test to determine the admissibility 

of statements as an excited utterance: 

“(a) that there was some occurrence startling enough to produce a 

nervous excitement in the declarant, which was sufficient to still his 
Ross App. No. 15CA3491 20 

reflective faculties and thereby make his statements and declarations the 

unreflective and sincere expression of his actual impressions and beliefs, 

and thus render his statement of declaration spontaneous and 

unreflective, 

“(b) that the statement or declaration, even if not strictly contemporaneous 

with its exciting cause, was made before there had been time for such 

nervous excitement to lose a domination over his reflective faculties so 

that such domination continued to remain sufficient to make his 

statements and declarations the unreflective and sincere expression of his 

actual impressions and beliefs, 

“(c) that the statement or declaration related to such startling occurrence 

or the circumstances of such starling occurrence, and 

“(d) that the declarant had an opportunity to observe personally the 

matters asserted in his statement or declaration.” 

(Emphasis sic.) State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 

948, ¶ 166, quoting Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955), 

paragraph two of the syllabus. The rationale of the rule is that circumstances 

surrounding the excited statement prevent the declarant from using reflective 

processes to fabricate a statement. 

{¶54} There is no dispute that the first, third, and fourth requirements for the 

application of the excited-utterance exception exist here. A startling event—the 

touching of S.M.s vaginal area—occurred, S.M.’s statement to her mother identifying 

Felts as the perpetrator related to the startling event, and the statement was from S.M., 

who had firsthand knowledge of it. The dispositive issue is thus whether S.M. made the 

statement while she was under the stress of the excitement caused by the sexual 

assault, rather than as the result of reflective thought process, i.e. did S.M. make her 

statements to her mother before the trauma and resulting excitement of the event lost 

their dominance? 
Ross App. No. 15CA3491 21 

B. Analysis 

{¶55} Felts claims that there was no finding or anything in the record to indicate 

that S.M. was still under the stress of nervous excitement when she made the statement 

to her mother. However, in the context of young children who are the victims of sexual 

assault, the requirements for an excited utterance are tempered by the recognition of 

their limited reflective powers.” This is so because their “[i]nability to fully reflect makes it 

likely that the statements are trustworthy.” State v. Taylor, 66 Ohio St.3d 295, 304, 612 

N.E.2d 316 (1993). 

{¶56} We also must recognize that “children are likely to remain in a state of 

nervous excitement longer than would an adult in cases involving hearsay statements 

by a child declarant.” Id. Consequently, courts have upheld the application of the 

excited-utterance exception even where several days or weeks have elapsed since the 

startling event. See State v. Wilson, 4th Dist. Scioto No. 13CA3542, 2015-Ohio-2016, ¶ 

90, and cases cited there, including In re C.C., 8th Dist. Cuyahoga Nos. 88320 and 

88321, 2007-Ohio-2226, ¶ 53 (concluding that children’s statements made 27 days after 

incident qualified as excited utterances). 

{¶57} Other relevant factors generally indicating whether the declarant was in a 

sufficient state of excitement or stress when making the statement include outward 

indicia of emotional state, like tone of voice, accompanying actions, and general 

demeanor. See, generally, State v. F.R., 2015-Ohio-1914, 34 N.E.3d 498, ¶ 28, (10th 

Dist.) and cases cited there. 

{¶58} Here, the startling event occurred within two days of S.M.’s contested 

statement. The mother testified that when she picked up her daughter from the 
Ross App. No. 15CA3491 22 

weekend visit with Felts, S.M.’s demeanor was “very odd” because she was noncommunicative, while normally she was extremely talkative with her mother. Manifestly, 

stress or excitement from a startling event can be exhibited differently by different 

individuals. For some child declarants, it may be exhibited by relative calm. See, e.g., 

In re D.M., 2004-Ohio-5858, 822 N.E.2d 433, ¶ 12-18 (8th Dist.) (statement of threeyear-old child made while calmly playing with his trucks held admissible as an excited 

utterance). Based on the limited passage of time and the evidence that S.M. was not 

acting normally around her mother, the trial court could reasonably determine that she 

made the statement while she was still under the stress of the excitement caused by the 

crime. And the mother’s questioning seems likely to have acted as a secondary impetus 

that revived the memory and the excitement of the stressful event. See State v. Brown, 

112 Ohio App.3d 583, 602, 679 N.E.2d 361 (12th Dist. 1996), where a return to a 

location of a crime precipitated an excited utterance. 

{¶59} Moreover, the fact that the child made the statement about Felts’s illicit 

conduct in response to her mother’s questions did not render the statement 

inadmissible under the excited-utterance exception. “The admission of a declaration as 

an excited utterance is not precluded by questioning which: (1) is neither coercive nor 

leading, (2) facilitates the declarant’s expression of what is already the natural focus of 

the declarant’s thoughts, and (3) does not destroy the domination of the nervous 

excitement over the declarant’s reflective faculties.” State v. Wallace, 37 Ohio St.3d 87, 

524 N.E.2d 466 (1988), paragraph two of the syllabus; Jones, 135 Ohio St.3d 10, 2012-

Ohio-5677, 984 N.E.2d 948, at ¶ 170. The child’s statement here was in response to 

her mother’s questions concerning “what was wrong,” “what happened,” and “why it was 
Ross App. No. 15CA3491 23 

so red” after she noticed redness in S.M.’s vaginal area. See, e.g., State v. Bailey, 1st 

Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 33 (statement in response to “what 

happened?” constituted an excited utterance); State v. Kala, 11th Dist. Trumbull No. 

2002-T-0023, 2003-Ohio-4226 (statement in response to question asking what was 

wrong constituted an excited utterance). These questions were neither coercive nor 

leading; they were simple and straightforward. The questions served to facilitate the 

child’s expression rather than to cause her to reflect and did not destroy the dominance 

of her nervous excitement. 

{¶60} Finally, despite Felts’s complaints about the lack of specific foundational 

findings by the trial court, he does not refer us to any requirement in the rule or case law 

that imposes such a burden on the trial court. Instead, he cites Wilson, 2015-Ohio-2016, 

where we merely mention that the trial court had made a finding that the child remained 

in an excited state. But we did not mandate such a finding. 

{¶61} Therefore, the trial court did not abuse its discretion in ruling that the 

child’s statement to her mother was admissible as an excited utterance. We overrule 

Felts’s second assignment of error. 

V. CONCLUSION 

{¶62} The trial court did not violate Felts’s constitutional rights to confrontation, 

or act in an unreasonable, unconscionable, or arbitrary manner under Ohio evidentiary 

law by admitting the child’s statements to the social service worker and to her mother 

into evidence. We affirm his conviction. 

JUDGMENT AFFIRMED. 
Ross App. No. 15CA3491 24 

JUDGMENT ENTRY 

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the 

costs. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Ross 

County Court of Common Pleas to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS 

BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is 

temporarily continued for a period not to exceed sixty days upon the bail previously 

posted. The purpose of a continued stay is to allow Appellant to file with the Supreme 

Court of Ohio an application for a stay during the pendency of proceedings in that court. 

If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 

sixty day period, or the failure of the Appellant to file a notice of appeal with the 

Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of 

the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court 

of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as 

of the date of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

Abele, J.: Concurs in Judgment and Opinion. 

McFarland, J.: Concurs in Judgment Only. 

 For the Court 

 BY: ________________________ 

 William H. Harsha, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.