In November of 2010, Darius Clark was convicted of multiple counts of child endangerment, felonious assault, and domestic violence in relation to his girlfriend’s two small children, A.T. and L.P. At issue in this saga, which ended up in the U.S. Supreme Court, were statements made by L.P., then three, to his teachers, implicating Clark as his abuser. Upon seeing bruises on the little boy, L.P.’s teachers reported the suspected abuse to the appropriate authorities. Clark was subsequently arrested. Read the details of the case background here.
The trial judge found L.P. incompetent to testify at trial, but allowed seven witnesses—including his preschool teachers, police officers, social workers, his maternal grandmother and his maternal great aunt to testify as to what L.P. had told them. The jury found Clark guilty of all but one charge. He was sentenced to twenty-eight years in prison.
On appeal, the Eighth District Court of Appeals overturned the conviction and remanded the case for a new trial. The appeals court found that all of L.P.’s out-of-court statements were inadmissible. The only issue that went up to the Supreme Court of Ohio was the ruling by the appeals court that L.P.’s statements to his teachers violated Clark’s rights under the Confrontation Clause.
On October 30, 2013, the Supreme Court of Ohio handed down a merit decision in State v. Clark, 2013-Ohio-4731. In a 4-3 decision written by Justice O’Donnell, for himself and Justices Pfeifer, Kennedy and O’Neill, the court held that L.P.’s statement to his teachers about physical abuse constituted testimonial evidence barred by the Confrontation Clause when the child has been found incompetent to testify. The majority found that because of their mandatory duty to report suspected abuse, in questioning L.P. his teachers were acting in a dual capacity, as teachers and as agents of law enforcement. Thus the primary purpose of the questioning was to gather evidence to help prosecute Clark. Chief Justice O’Connor wrote a very heated dissent, for herself and Justices Lanzinger and French. Read an analysis of the merit decision by the Supreme Court of Ohio here. In her dissent in the case, Chief Justice O’Connor urged the state to take the case to the U.S. Supreme Court, which it did, and the case was accepted on these two issues:
- Does an individual’s obligation to report suspected child abuse make that individual an agent of law enforcement for purposes of the Confrontation Clause?
- Do a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause?
A Unanimous Reversal by the U.S. Supreme Court
On June 18, 2015, the U.S. Supreme Court handed down a merit decision in Ohio v. Clark. In a unanimous decision written by Justice Alito, in which Justice Scalia, joined by Justice Ginsburg, concurred in judgment only, and Justice Thomas wrote a solo separate concurrence in judgment only, the Court held that the admission of a young child’s out-of-court statements to his teachers identifying the defendant as his abuser did not violate the Confrontation Clause, even though the child did not testify at the trial. Finding that context very much matters, the high court held that L.P.’s statements to his teachers were nontestimonial. They were made in the context of an ongoing emergency, and the main objective of the teachers was to protect L.P., not to help prosecute Clark. The questioning occurred in an informal setting—a preschool lunchroom and classroom. This was nothing like a formal station house interrogation. The teachers were not acting as agents of law enforcement in this situation.
Significantly, the U.S. Supreme Court found that statements by very young children will “rarely, if ever, implicate the Confrontation Clause.” Opinion author Alito wrote that a statement only falls under the Confrontation Clause when its primary purpose is testimonial. But where, as here, there is no such primary purpose, the admissibility of these nontestimonial statements should be governed by state and federal rules of evidence, not the Confrontation Clause. The case was reversed and remanded for further proceedings. Read an analysis of the merit decision in Ohio v. Clark here.
What Happened On Remand
On September 3, 2015, the Supreme Court of Ohio sent the case back to the Eighth District Court of Appeals for redetermination and consideration of the assignments of error it had previously considered moot in light of its ruling.
On May 5, 2016, in a unanimous decision written by Judge Patricia Blackmon, and joined by Judges Eileen Gallagher and Tim McCormack, the appeals court unanimously affirmed Clark’s convictions, and remanded his case for a limited resentencing hearing solely because of an improper reference to costs in the sentencing entry.
In accordance with the finding from the U.S. Supreme Court that the admissibility of nontestimonial statements like L.P.’s to his teachers were to be determined by state rules of evidence, this time around the appeals court reviewed L.P.’s statements under Evid. R. 807, Ohio’s special hearsay exception for child statements in abuse cases.
The Evid. R. 807 Analysis
Under this rule, an out-of-court statement made by a child under 12 describing any act of physical violence directed against the child is not excluded as hearsay if all of the requirements set forth in subsection (A) are satisfied. In this case the parties agreed that (A)(2) (the child’s testimony is not reasonably obtainable by the proponent of the statement) and (4)(the proponent of the statement timely notifies all parties in writing about the specifics of the statement) had been met. So, the appeals court analyzed the statements under (A)(1) and (A)(3).
Evid. R. 807(A)(1)(Reliability of the Statements)
This subsection creates a totality of the circumstances analysis surrounding the making of the statements to determine if there are particularized guarantees of trustworthiness. In doing so the court must consider these factors: “spontaneity, the internal consistency of the statement, the mental state of the child, the child’s motive or lack of motive to fabricate, the child’s use of terminology unexpected of a child of similar age, the means by which the statement was elicited, and the lapse of time between the act and the statement.”
The appeals court found that L.P.’s statements were elicited in response to questions asked by his teachers, and thus were not strictly spontaneous. And although the little boy gave three different answers to questions about who abused him, “Dee” (Clark’s nickname) was the only person he ever named. The court found no evidence of a motive or lack of motive to fabricate, and nothing unexpected about the language L.P. used. As to the lapse of time, the teachers had noticed no bruises the day before, but noticeable bruising on the day in question.
Evid. R. 807(A)(3)(Independent Proof of Abuse)
The court found there was no real issue about whether the abuse occurred in this case-just about who did it. There was independent testimonial, documentary, and photographic evidence of physical violence to L.P.
Role of Teachers
Ultimately, the appeals court found that teachers hold a unique position in society in regard to children, being very much responsible for their care and control, citing Yates v, Mansfield Bd. Of Edn, 2004-Ohio-2491 for its holding that the abuse reporting statute was designed “as a mechanism for identifying and protecting abused and neglected children at the earliest possible time.” The appeals court also found that in this situation L.P.’s teachers were in a more objective position than family members to question L.P. about domestic violence.
L.P.’s statements to his teachers identifying Clark as his abuser are admissible under Evid. R. 807 (note—this is what the trial court had originally held.)
Remaining Assignments of Error
The appeals court made short shrift of the assignments of error it had previously declared moot. It found that Clark’s conviction was not against the manifest weight of the evidence, that the trial court did not err in declining to give a jury instruction on its finding L.P. incompetent to testify, that the state did not fail to separate distinct instances of alleged abuse into separate counts, that Clark was not improperly charged with multiple identical and undifferentiated counts, and that the trial court did not err in refusing to merge his convictions into a single count for each child. As indicated, the state conceded that the reference to court costs in the sentencing entry was improper since the court did not impose a fine or costs, and the case was remanded solely for a limited resentencing hearing.
On June 9, 2016, the court of appeals denied Clark’s motion for reconsideration of its decision. I’d say Clark’s case has reached the end of the road.