State v. A.K.

[Cite as State v. A.K., 2026-Ohio-2261.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY STATE OF OHIO, : Plaintiff-Appellee, : Case No. 25CA1218 v. : A.K.,1 : DECISION AND JUDGMENT ENTRY Defendant-Appellant. : ________________________________________________________________ APPEARANCES: Brian T. Goldberg, Cincinnati, Ohio, for appellant.2 Aaron E. Haslam, Adams County Prosecuting Attorney, and Sean M. Donovan, Adams County Special Assistant Prosecuting Attorney, West Union, Ohio, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:6-9-26 ABELE, J. {¶1} This is an appeal from an Adams County Common Pleas Court judgment of conviction and sentence. A.K., defendant below and appellant herein, assigns the following errors for review: FIRST ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED BY ALLOWING M.K. TO In accordance with the Ohio Supreme Court’s recommendation in the 1 Writing Manual, we have used appellant’s initials rather than his full name. See id. at 115 (“To the extent that reference to another person is likely to reveal the identity of the juvenile, that person’s full name should not be used; instead, the person should be identified by familial relationship or, if necessary, by initials.”). 2 Different counsel represented appellant during the trial court proceedings. Adams App. No. 25CA1218 2 BE RECALLED AS A WITNESS AND TESTIFY OUTSIDE THE PRESENCE OF MR. KENNEDY INSTEAD OF HAVING TO RESUME HER TESTIMONY IN COURT.” SECOND ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. KENNEDY BY NOT DISMISSING THE CASE WITH PREJUDICE AFTER A SIGNIFICANT DISCOVERY VIOLATION WAS REALIZED DURING THE FIRST TRIAL.” THIRD ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. KENNEDY BY PERMITTING THE STATE TO AMEND THE INDICTMENT DURING TRIAL.” FOURTH ASSIGNMENT OF ERROR: “MR. KENNEDY’S CONVICTION FOR FELONIOUS ASSAULT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.” FIFTH ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. KENNEDY BY FAILING TO COMPLY WITH THE SENTENCING REQUIREMENTS CONTAINED IN R.C. 2929.19(B)(2)(c).” {¶2} In 2022, M.K. told her mother that M.K.’s biological father, appellant, raped her. Shortly thereafter, M.K.’s mother reported the allegation to law enforcement officers. {¶3} An Adams County Grand Jury later returned an indictment that charged appellant with (1) two counts of rape, in violation of R.C. 2907.02(A)(1)(b), (2) two counts of gross sexual imposition, in violation of R.C. 2907.05(A)(4), and (3) one count of felonious assault with a sexual motivation Adams App. No. 25CA1218 3 specification, in violation of R.C. 2903.11(A)(1). Appellant entered not guilty pleas. {¶4} On March 31, 2025, and continuing through April 3, 2025, the trial court held a jury trial. The State’s first witness, M.K.’s mother, testified that between 2003 and 2011, she and appellant were in a relationship. In 2007, the mother gave birth to a son, and the following year, gave birth to M.K., the victim herein. {¶5} In 2011, the mother and appellant separated. The mother still wished for the children to have a relationship with appellant, so she took them to visit appellant at relatives’ homes. These visits ended in 2017, when the children stated that they no longer wanted to visit appellant. {¶6} In 2022, around the start of the school year, the victim told her mother that appellant had raped her. The mother contacted law enforcement officers, and they advised her to set up an appointment at the Mayerson Center for Safe and Healthy Children, a child advocacy center. {¶7} About a week or two later, the mother took the victim to the child advocacy center for a forensic interview. After the interview, the medical professionals recommended that the victim engage in counseling. The victim, however, was “not quite” ready for counseling. Adams App. No. 25CA1218 4 {¶8} In November 2022, the victim presented to an urgent care center to have an injured wrist examined. During this visit, the medical team reviewed some routine mental health questions with the victim. As a result of this inquiry, the victim underwent “a psych evaluation.” After this incident, the victim agreed she was ready for counseling and her mother took the victim to a mental health treatment center to begin counseling. {¶9} The victim continues to receive counseling twice per week for post-traumatic stress disorder (PTSD), anxiety, and depression. Recently, the victim was hospitalized due to expressing suicidal ideations and cutting herself. As a result, medical professionals “upped [the victim’s] therapy” and changed her medications. {¶10} After the mother finished her testimony, the State presented testimony from Emily Harman, a social worker at the Mayerson Center. In September 2022, Harman interviewed the victim. During the interview, the victim recounted multiple instances of sexual abuse and identified appellant as the alleged perpetrator. {¶11} The victim completed a trauma screening, and her scores were in the “severe category,” meaning that “she was having a severe amount of trauma symptoms.” The victim indicated that “she was having some mental health issues, some Adams App. No. 25CA1218 5 depressive symptoms in relation to, or related to her father.” The victim “also answered the question about suicidal ideation positively.” Harman performed a suicide assessment, and it did not indicate that the victim required hospitalization. Harman “strongly” recommended that the victim receive mental health treatment. {¶12} The State next called the victim to testify. The prosecutor asked the victim whether a time arose when the relationship with appellant began to change, and the victim responded, “Yes.” The prosecutor invited the victim to elaborate. Rather than elaborating, the victim asked the court for a recess. The court granted the victim’s request for a recess. {¶13} During a sidebar with counsel, the court stated that it had been informed that the victim “had asked for a recess due to feeling very emotional.” The court indicated that it had granted a 25-minute recess, and after the recess, the prosecutor advised the court that the victim was unavailable to complete her testimony. The court stated that it would instruct the jury that the victim was unavailable, and, if she became available, then the court would continue with her testimony. In the meantime, the court proceeded with the State’s next witness, Adams County Sheriff Kenneth Dick. Adams App. No. 25CA1218 6 {¶14} Sheriff Dick, the former chief investigator for the prosecutor’s office, testified that on August 30, 2022, he received a referral regarding a sexual assault allegation that the victim had lodged against appellant. Sheriff Dick subsequently interviewed appellant and he initially denied the allegations. Appellant later stated that he recalled a time when the victim was swimming in a creek, and afterwards, he helped her wipe sand from her vaginal area. Appellant admitted that he became sexually aroused and lingered in that area too long. Appellant stated that he realized the wrongfulness of his conduct and stopped. Appellant denied that he engaged in sexual intercourse with the victim, but agreed that he did touch her. Appellant believed that the victim was around seven or eight years of age when the incident occurred. {¶15} On the third day of testimony, the State indicated that the victim requested to testify outside the courtroom. The prosecutor informed the court that multiple times the victim had stated that “her fear and her mental well-being, particularly with seeing [appellant] in [the] courtroom” made her unable to return to the courtroom. The victim stated that she would be able to testify if she did not have to face appellant. {¶16} The prosecutor recognized that the State had not made the request at least seven days in advance, but asserted that good cause excused its failure. The prosecutor stated that the Adams App. No. 25CA1218 7 victim’s reaction surprised him, and he did not know that she would be unable to testify. The prosecutor pointed out that the victim had testified in the previous trial that had resulted in a mistrial. The prosecutor further advised the court that the victim had been hospitalized within the last 30 days due to incidents of “self-harm, cutting, [and] suicidal ideations.” {¶17} The trial court stated that it would hear arguments from defense counsel. First, however, the court remarked that of the hundreds of cases it has tried, the victim’s reaction to being on the stand was “the only occasion [the court could] remember where a witness was so overcome that she asked if she could have a break.” The court additionally noted that, as the court was in the process of responding affirmatively, the victim “was already up and out and leaving the courtroom.” The court found it “an oddity that a person [would be] so overwhelmed that they could not even wait for the appropriate direction that it would be time to leave.” {¶18} At that point the trial court agreed with the prosecutor that the victim’s reaction surprised the State and thus found that the State established good cause for failing to file the motion at least seven days before the date of the proceeding. {¶19} The State next asserted that, under R.C. 2945.481(C)(1)(b), it need only show by a preponderance of the Adams App. No. 25CA1218 8 evidence that the victim will suffer serious emotional trauma if required to testify in appellant’s presence. The State further pointed to R.C. 2945.481(E)3 and asserted that any one of the three factors listed in the statute permitted the court to allow the victim to testify outside the courtroom. The State maintained that (1) the victim could not communicate about the alleged offense because of extreme fear, or (2) a substantial likelihood existed that the victim will suffer serious emotional trauma if required to testify inside the courtroom. The State further alleged that, to the extent the court needed to hear from the victim, the court could question her on the record outside the courtroom. {¶20} Defense counsel, however, asserted that the State did not present any evidence, and, thus, it could not satisfy the preponderance of the evidence standard. The court asked defense 3 R.C. 2945.481(E) provides as follows: (E) For purposes of divisions (C) and (D) of this section, a judge may order the testimony of a child victim to be taken outside the room in which the proceeding is being conducted if the judge determines that the child victim is unavailable to testify in the room in the physical presence of the defendant due to one or more of the following: (1) The persistent refusal of the child victim to testify despite judicial requests to do so; (2) The inability of the child victim to communicate about the alleged violation or offense because of extreme fear, failure of memory, or another similar reason; (3) The substantial likelihood that the child victim will suffer serious emotional trauma from so testifying. Adams App. No. 25CA1218 9 counsel if the court could consider the victim’s behavior from the previous attempt to testify on the witness stand when she “spontaneously hustl[ed] off, emotionally distraught.” Defense counsel suggested that the court should question the victim regarding the motivations underlying her conduct and asserted that the court could not presume anything from her reaction. Defense counsel indicated that reading into her conduct would be unsupported speculation. Defense counsel further argued that either the victim or her doctor should testify regarding her ability to testify. {¶21} The trial court advised the parties that it would grant the State’s motion and that it intended “to make some inquiry” of the victim before allowing the victim to testify outside the courtroom. The court stated that it would ask the victim questions and would not permit either party to further question the victim regarding the factors contained in R.C. 2945.481(E). {¶22} The trial court then questioned the victim outside the courtroom to explore her ability to testify inside the courtroom in appellant’s presence. The court first invited the victim to explain why she had asked for a recess the previous day. She stated that she “felt overwhelmed” and “like just there was a lot going on in [her] head.” The court asked the victim whether her feelings stemmed from appellant being present in the Adams App. No. 25CA1218 10 courtroom. She responded affirmatively. {¶23} The trial court next requested the victim to describe the emotion that she felt. The victim related that she felt “a mix of so much anxiety to the point where [she] felt sick.” She reported that she experiences this anxiety in appellant’s presence and that she also is afraid to be in the same room as appellant. {¶24} The trial court inquired whether the victim would be willing to testify in the courtroom, and she stated that she would not. The victim remarked that she did not believe that she “would ever change [her] mind.” {¶25} The trial court also asked the victim whether testifying inside the courtroom would cause her further trauma, and she replied, “Yes.” The court requested the victim to rate the severity of the emotional trauma that she would suffer if she had to testify in appellant’s presence and stated eight on a ten-point scale. {¶26} After hearing from the victim, the trial court determined that R.C. 2945.481(E)(1), (2), and (3) applied. The court thus issued an order that permitted the victim to testify outside the courtroom. {¶27} The victim testified that her relationship with appellant changed when she was around six or seven years of age. She recalled a time that he “hurt” her or “touched [her] in a Adams App. No. 25CA1218 11 way that [she] did not like.” The victim explained that, on one occasion when she was seven or eight years of age, appellant wanted to help her change her clothes after she had been swimming. The victim told appellant that she did not need help, but he still entered the bathroom and touched her sides, thighs, stomach, and “butt area.” {¶28} Another time when the victim was around seven years of age, the victim and appellant were near a creek. Appellant told her to “bend over,” and the victim heard appellant unbuckle his belt. He then “raped” her by placing his penis inside her vagina. {¶29} The victim indicated that she did not immediately report appellant’s conduct because she did not understand what had happened to her, and did not think anyone would believe her. She began to understand what had happened to her around ninth grade, when she took a health class. At that time, she started to have “a bunch of memories, like flashbacks.” {¶30} The victim explained that a few months after her interview at the Mayerson Center, she visited an urgent care center for an injured wrist. During the visit, she told the medical personnel that she “felt suicidal,” and she ended up in the emergency room. She felt so “anxious that [she] threw up.” After this experience, the victim started to see a counselor. Adams App. No. 25CA1218 12 {¶31} The victim continues to see a counselor twice per week. She has been diagnosed with PTSD, anxiety, depression, and possibly bipolar disorder. The victim indicated that her mental health conditions relate to the sexual abuse that appellant inflicted. {¶32} The victim further related that, about a week or so before her testimony, she had been placed in “a psych ward” because she “wanted help for [her] mental health.” She felt so “depressed to the point where [she] didn’t think that [she] could come back.” The victim shared that she struggles with these feelings as a result of the sexual abuse that she suffered. {¶33} On cross-examination, the victim indicated that the first incident may have happened right before she started kindergarten or first grade. {¶34} After the victim’s testimony, the State asked the court to amend the indictment to expand the time frame based upon the victim’s testimony that the acts alleged in the indictment may have occurred as early as her kindergarten year. The State thus requested the court to amend the indictment to begin with the date of April 30, 2013, which would have been the victim’s fifth birthday. {¶35} Appellant’s counsel suggested that appellant may have been incarcerated in Brown County for about six months during Adams App. No. 25CA1218 13 2013, and thus, may have an alibi defense. The court stated that it would be willing to permit appellant’s alibi defense as long as appellant presented some evidence to establish the time period of his incarceration. The State reported that it would be willing to stipulate to appellant’s unavailability as long as the dates could be verified. However, the record does not contain any further information about an alibi defense. {¶36} After hearing the testimony, the jury found appellant guilty of one count of rape, two counts of gross sexual imposition, and felonious assault with sexual motivation. The trial court dismissed the second count of rape. {¶37} On May 14, 2025, the trial court sentenced appellant to serve (1) a term of life imprisonment without parole eligibility for the rape offense, (2) 60 months in prison for each of the gross sexual imposition offenses, to be served concurrently with the life sentence, and (3) 7 to 10 and a half years in prison for the felonious assault offense, to be served consecutively to the other prison terms, for a total sentence of life imprisonment without parole eligibility plus 7 to 10 and a half years. This appeal followed. I. {¶38} In his first assignment of error, appellant asserts that the trial court erred by allowing the victim to testify outside the courtroom via a closed-circuit television, rather Adams App. No. 25CA1218 14 than inside the courtroom in his presence. Appellant contends that allowing the victim to testify outside the courtroom violated (1) his Sixth Amendment right to confront the witnesses against him and (2) the statutory safeguards set forth in R.C. 2945.481(C) and (E). A. {¶39} Appellant first argues that the trial court violated his Sixth Amendment right to confront the witnesses against him by allowing the victim to testify outside the courtroom. Appellant recognizes that this court has rejected Confrontation Clause claims when a minor victim of a sex offense is permitted to testify outside the courtroom. He nevertheless asks that we reconsider our previous decision. {¶40} We decline appellant’s invitation to reconsider our previous determination that allowing a child victim of a sex offense to testify outside the courtroom does not violate a defendant’s Confrontation Clause rights. See, e.g., State v. Knauff, 2011-Ohio-2725 (4th Dist.). B. {¶41} Appellant next asserts that the State failed to satisfy the requirements set forth in R.C. 2945.481(C). He claims that the State did not file a “motion” and that its oral request was not made at least seven days before trial. Appellant argues that the State’s failure to make its request at Adams App. No. 25CA1218 15 least seven days before trial prejudiced him by depriving him of the opportunity to pursue a different trial strategy, such as (1) questioning prospective jurors whether they would presume appellant’s guilt if the victim was unable to testify in appellant’s presence or (2) calling a witness to counter the State’s assertion that the victim would suffer serious emotional trauma if required to testify in appellant’s presence. {¶42} Appellant further argues that the State did not establish the existence of at least one of the R.C. 2945.481(E) circumstances necessary for the trial court to conclude that the victim was unavailable to testify in appellant’s physical presence: (1) a persistent refusal to testify despite judicial requests to do so; (2) an inability to communicate about the alleged offense because of extreme fear, failure of memory, or another similar reason; or (3) a substantial likelihood that the victim would suffer serious emotional trauma from so testifying. 1. {¶43} R.C. 2945.481(C)(1) authorizes a trial court to order a child victim who was less than 18 years of age when the indictment was filed to testify outside the courtroom upon (1) “motion of . . . the prosecution” and (2) “a showing by a preponderance of the evidence that the child will suffer serious emotional trauma if required to provide live trial testimony.” R.C. 2945.481(C)(1)(b). R.C. 2945.481(C)(2) also allows a trial Adams App. No. 25CA1218 16 court to order a child victim who was less than 18 years of age when the indictment was filed to testify outside the courtroom if, upon motion, the trial court “determines that the child victim is unavailable to testify in the room in which the proceeding is being conducted in the physical presence of the defendant, for one or more of the reasons set forth in [R.C. 2945.481(E)].”4 The statute further requires a motion to be filed “at least seven days before the date of the proceeding,” unless good cause is shown for a later filing. R.C. 2945.481(C)(2). {¶44} A reviewing court will affirm a trial court’s decision to allow a child victim to testify outside the courtroom if competent, credible evidence supports the findings that R.C. 2945.481 requires. See State v. McKenzie, 2025-Ohio-415, ¶ 43 (4th Dist.); accord State v. Powers, 2020-Ohio-7042, ¶ 61 (4th Dist.); State v. Hammond, 2019-Ohio-4253, ¶ 21 (4th Dist.). {¶45} Additionally, an appellate court will affirm a trial court’s decision to permit an untimely R.C. 2945.481(C) motion so long as the court did not abuse its discretion. See McKenzie, 2025-Ohio-415, at ¶ 43 (4th Dist.), citing State v. Messenger, 2022-Ohio-3120, ¶ 43 (7th Dist.). An abuse of 4 At least one other court has noted that R.C. 2945.481 appears to be “written in a confusing manner.” State v. Wallace, 2024-Ohio-4955, ¶ 26 (12th Dist.). Nevertheless, in the case at bar, the parties appear to agree that R.C. 2945.481(E) governs our analysis. Adams App. No. 25CA1218 17 discretion implies that a court’s attitude was unreasonable, arbitrary, or unconscionable. State v. Beasley, 2018-Ohio-16, ¶ 12, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “A decision is unreasonable if there is no sound reasoning process that would support that decision.” State v. Ford, 2019-Ohio-4539, ¶ 106, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). “[A]n ‘arbitrary’ decision is one made ‘without consideration of or regard for facts [or] circumstances.’” Beasley, 2018-Ohio-16, at ¶ 12, quoting Black’s Law Dictionary (10th Ed.2014), and citing Dayton ex rel. Scandrick v. McGee, 67 Ohio St.2d 356, 359 (1981), quoting Black’s (5th Ed.1979) (“arbitrary” means “‘without adequate determining principle; . . . not governed by any fixed rules or standard’”). An unconscionable decision is one “showing no regard for conscience” or “affronting the sense of justice, decency, or reasonableness.” Black’s (11th ed. 2019). An unconscionable decision also may be characterized as “[s]hockingly unjust or unfair.” Id. {¶46} Moreover, when reviewing for an abuse of discretion, appellate courts must not substitute their judgment for that of the trial court. E.g., State v. Grate, 2020-Ohio-5584, ¶ 187; In re Jane Doe 1, 57 Ohio St.3d 135, 137-138 (1991). Indeed, the abuse-of-discretion standard of review “allows the trial Adams App. No. 25CA1218 18 court to make a decision that we as reviewing judges find less than perfect.” Gerken v. State Auto Ins. Co. of Ohio, 2014- Ohio-4428, ¶ 33. Consequently, “[a]s long as the court’s decision is based upon substantiated fact and logical reasoning, we are duty-bound to approve it even though we [may] not have reached the same conclusion were it ours to make initially.” Id.; accord In re J.Y., 2025-Ohio-5308, ¶ 30 (4th Dist.), quoting Gerken at ¶ 34 (“when a trial judge’s decision is logically supported by facts, ‘we cannot second-guess him from our position, which is far removed from the context of the proceedings in his court.’”). 2. {¶47} In the case sub judice, appellant first argues that the State did not file a “motion.” Appellant suggests that the statute required the State to file a written, not an oral, motion. {¶48} Appellant also argues that the trial court erred by failing to issue a written order in accordance with R.C. 2945.481(F)(1). That provision provides as follows: If a judge issues an order pursuant to division (C) or (D) of this section that requires the testimony of a child victim in a criminal proceeding to be taken outside of the room in which the proceeding is being conducted, the order shall specifically identify the child victim, in a manner consistent with section 2930.07 of the Revised Code, to whose testimony it applies, the order applies only during the testimony of the specified child victim, and the child victim giving the testimony shall Adams App. No. 25CA1218 19 not be required to testify at the proceeding other than in accordance with the order. R.C. 2945.481(F)(1). {¶49} We first observe that appellant does not cite any authority to support his propositions that R.C. 2945.481 required the State to file a written motion or that R.C. 2945.481(F)(1) required the trial court to issue a written order. This failure alone permits us to summarily reject appellant’s argument. See In re Application of Columbus S. Power Co., 2011-Ohio-2638, ¶ 14 (failure to cite legal authority or to present an argument that a legal authority applies constitute adequate grounds to reject a claim). {¶50} Additionally, during the trial court proceedings, appellant did not assert that the State was required to file a written motion or that the trial court was required to issue a written order. A basic principle of appellate practice “is that a party ordinarily may not present an argument on appeal that it failed to raise below.” State v. Wintermeyer, 2019-Ohio-5156, ¶ 10, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997). Accordingly, an appellate court generally “will not consider any error which counsel . . . could have called but did not call to the trial court’s attention at a time when such error could have been avoided or corrected by the trial court.” State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus (“It is a Adams App. No. 25CA1218 20 general rule that an appellate court). “This contemporaneous- objection requirement imposes a duty on trial counsel ‘“to exercise diligence and to aid the court rather than by silence mislead the court into commission of error.”’” Wintermeyer, 2019-Ohio-5156, at ¶ 10, quoting State v. Williams, 51 Ohio St.2d 112, 117 (1977), vacated in part on other grounds, 438 U.S. 911 (1978), quoting State v. Driscoll, 106 Ohio St. 33, 39 (1922). Moreover, “the contemporaneous-objection rule prevents a litigant from ‘sandbagging’ the court—remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor.” Puckett v. United States, 556 U.S. 129, 134 (2009), quoting Wainwright v. Sykes, 433 U.S. 72, 89 (1977); accord State v. Tabor, 2017-Ohio-8656, ¶ 20 (4th Dist.). {¶51} In the case at bar, appellant’s failure to contemporaneously object to the State’s failure to file a written motion, or to the court’s failure to issue a written order, means that he forfeited all but plain error for purposes of appeal. See State v. Hall, 2025-Ohio-3199, ¶ 176 (4th Dist.). A party asserting plain error must demonstrate the following: (1) an error occurred; (2) the error was obvious; and (3) a reasonable probability that the error affected the outcome of the proceeding. State v. Echols, 2024-Ohio-5088, ¶ 50. However, even when a defendant demonstrates that a plain error Adams App. No. 25CA1218 21 or defect affected the defendant’s substantial rights, the Ohio Supreme Court repeatedly has emphasized that courts should “notice plain error ‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’” State v. Barnes, 94 Ohio St.3d 21, 27 (2002), quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus; e.g., State v. Bailey, 2022-Ohio-4407, ¶ 14 (“the plain-error doctrine is warranted only under exceptional circumstances to prevent injustice”). {¶52} In the case before us, even if we assume for purposes of argument that the trial court obviously erred, appellant cannot establish a reasonable probability that any error affected the outcome of the proceeding. Assuming, arguendo, that the trial court obviously erred by allowing the State to file an oral motion or by failing to issue a written order, appellant cannot establish a reasonable probability that the outcome of the proceedings would have been any different in the absence of the alleged errors. Furthermore, as the State notes, the trial court issued an oral, on-the-record order that complied with R.C. 2945.481(F)(1). We therefore reject appellant’s argument that the trial court erred by allowing the State to file an oral motion or by failing to issue a written order. Adams App. No. 25CA1218 22 3. {¶53} Appellant next asserts that the trial court should have denied the State’s request because it failed to ask at least seven days before trial that the victim be permitted to testify outside the courtroom. Appellant further argues that the State did not establish good cause for the untimely request. {¶54} The State agrees that it did not make the request at least seven days before trial, but contends that good cause excused its failure. The State asserts that, before trial, it did not know that the victim would be unable to complete her testimony in the courtroom. The State points out that the victim had testified at the first trial (that resulted in a mistrial) and that it had been caught off guard when the victim indicated that she could not continue her testimony at the second trial. {¶55} To support his argument that the trial court should have denied the State’s untimely motion, appellant refers to State v. Messenger, 2022-Ohio-3120, (7th Dist.). In that case, the court concluded that the trial court abused its discretion when it determined that the State established good cause for its failure to timely file its R.C. 2945.481 motion. The court observed that the State’s asserted reason for the untimely filing resulted not from surprise, but from the State’s failure to interview the victim at least seven days before the trial. Adams App. No. 25CA1218 23 The court determined that allowing a finding of good cause in this circumstance would “render[] the statute susceptible to abuse by the state, which may file a R.C. 2945.481 motion in the eleventh-hour to gain a tactical advantage over the defense.” Id. at ¶ 46. {¶56} We do not agree with appellant that Messenger helps establish that the trial court in the case sub judice abused its discretion by finding that the State had established good cause for the untimely filing. Unlike Messenger, where the State apparently had not interviewed the child at least seven days before trial, in the case at bar the State had presented the victim’s testimony during the first trial. During the first trial, the victim evidently had not expressed any reservations about testifying inside the courtroom. Thus, the trial court was well within its discretion to credit the State’s assertion that the victim’s refusal to testify in appellant’s presence at the second trial was unexpected. {¶57} Consequently, we do not believe that the trial court abused its discretion by finding that the State established good cause for the untimely request. 4. {¶58} Appellant further argues that the State did not establish the existence of at least one of the R.C. 2945.481(E) circumstances necessary for the trial court to conclude that the Adams App. No. 25CA1218 24 victim was unavailable to testify in appellant’s physical presence. {¶59} R.C. 2945.481(E) provides as follows: For purposes of divisions (C) and (D) of this section, a judge may order the testimony of a child victim to be taken outside the room in which the proceeding is being conducted if the judge determines that the child victim is unavailable to testify in the room in the physical presence of the defendant due to one or more of the following: (1) The persistent refusal of the child victim to testify despite judicial requests to do so; (2) The inability of the child victim to communicate about the alleged violation or offense because of extreme fear, failure of memory, or another similar reason; (3) The substantial likelihood that the child victim will suffer serious emotional trauma from so testifying. {¶60} In the case sub judice, appellant first contends that the record does not contain any evidence that the victim persistently refused to testify despite judicial requests to do so. Even if we were to agree with appellant’s assertion, however, the statute requires the trial court to find only “one or more” of the three circumstances. See State ex rel. Harris v. Trelka, 2025-Ohio-4453, ¶ 6, quoting In re Estate of Centorbi, 2011-Ohio-2267, ¶ 18 (“‘the word “or,” a disjunctive term, signifies the presence of alternatives’”); see generally Scalia & Garner, Reading Law: The Interpretation of Legal Texts 116 (2012) (“[u]nder the conjunctive/disjunctive canon, and Adams App. No. 25CA1218 25 combines items while or creates alternatives” [emphasis in original]). As we explain below, the record contains competent, credible evidence to support the trial court’s findings under R.C. 2945.481(E)(2) and (3). Thus, any error that the trial court may have made with regard to its R.C. 2945.481(E)(1) finding would be harmless error that we must disregard. See Crim.R. 52(A). {¶61} Regarding the victim’s inability to communicate about the alleged crimes due to extreme fear, the trial court remarked that of the hundreds of cases that it had tried, the victim’s conduct in becoming “so overcome that she asked if she could have a break” was the only occasion that the court could recall. The court explained that, as it was responding to the victim’s request for a break, the victim “was already up and out and leaving the courtroom.” The court found it “an oddity that a person was so overwhelmed that they could not even wait for the appropriate direction that it would be time to leave.” {¶62} Furthermore, before the trial court allowed the victim to testify outside the courtroom, the court questioned her regarding her inability to testify inside the courtroom. The victim stated that, while she was testifying the day before, she “felt overwhelmed.” She explained that she felt “so much anxiety to the point where [she] felt sick.” The victim indicated that she feels this anxiety when she is in appellant’s Adams App. No. 25CA1218 26 presence and that she fears being in the same room as appellant. She stated that she would not be willing to testify inside the courtroom in appellant’s presence. The victim also stated that testifying inside the courtroom would cause her additional trauma and rated this additional trauma as an eight on a ten- point scale. {¶63} Based upon all of the foregoing, we believe that the trial court rationally could have determined that (1) the victim was unable to communicate about the alleged offense due to extreme fear, or (2) a substantial likelihood existed that the victim would suffer serious emotional trauma from testifying inside the courtroom in appellant’s presence. {¶64} Appellant nevertheless suggests that the State was required to present expert testimony to support the victim’s claims regarding her fear and emotional trauma. He does not, however, cite any authority to support this proposition. We therefore summarily reject it. See Columbus S. Power Co., 2011- Ohio-2638, at ¶ 14. {¶65} Appellant further appears to suggest that our McKenzie, 2025-Ohio-415 (4th Dist.), decision means that a trial court must engage in a concerted effort to attempt to elicit the victim’s testimony inside the courtroom before it grants a motion under R.C. 2945.481. In McKenzie, over the course of two days, the State attempted to elicit the victim’s testimony Adams App. No. 25CA1218 27 inside the courtroom.