State v. Clouse
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[Cite as State v. Clouse, 2012-Ohio-3471.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio,
:
Plaintiff-Appellee,
:
No. 11AP-857
v.
:
(C.P.C. No. 10CR-11-6404)
Troy F. Clouse,
:
(REGULAR CALENDAR)
Defendant-Appellant.
:
D E C I S I O N
Rendered on August 2, 2012
Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher,
for appellee.
W. Joseph Edwards, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶ 1} Defendant-appellant, Troy F. Clouse ("appellant"), appeals from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas pursuant to a jury verdict finding him guilty of two counts of felonious assault and
an additional count of domestic violence that was tried to the bench.
{¶ 2} The charges against appellant arose from an incident occurring in the early
morning hours of October 22, 2010, in which an adult female victim, N.E., was severely
beaten with a baseball bat and suffered multiple broken bones and scalp lacerations.
Although the relationship between appellant and the victim was a matter of dispute at
No. 11AP-857
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trial, the state sought the domestic violence charge on the basis that the two were
cohabitating at the time of the crime.
{¶ 3} The trial court denied motions to suppress use of the baseball bat allegedly
used in the incident and introduction of some testimony regarding prior domestic
violence incidents.
At trial, testimony was presented from the victim, several
responding police officers, and a physician who testified regarding the victim's injuries.
Appellant testified in his own defense. The trial court denied a Crim.R. 29 motion and
allowed the felonious assault charges to go to the jury. The court, upon motion by the
defense, also gave an alternative instruction on the inferior offense of aggravated assault
based upon provocation or a state of rage.
{¶ 4} The jury returned guilty verdicts on the two counts of felonious assault. To
this the court added a guilty verdict on the domestic violence charge. For sentencing,
the court merged the domestic violence charge with the two felonious assault counts but
did not merge the two felonious assault counts between themselves. The court then
imposed two consecutive five-year sentences for a total ten-year term of imprisonment.
{¶ 5} Appellant has timely appealed and brings the following five assignments of
error:
I. THE TRIAL COURT ERRED WHEN IT ENTERED
JUDGMENT AGAINST THE APPELLANT WHEN THE
EVIDENCE WAS INSUFFICIENT TO SUSTAIN A
CONVICTION.
II. THE TRIAL COURT ERRED IN OVERRULING
APPELLANT'S MOTION FOR AQUITTAL PURSUANT TO
CRIMINAL RULE 29.
III. THE TRIAL COURT ERRED WHEN IT ENTERED
JUDGMENT AGAINST THE APPELLANT WHEN THE
CONVICTION AND WAS NOT SUPPORTED BY THE
MANIFEST WEIGHT OF THE EVIDENCE.
IV. THE TRIAL COURT ERRED IN DISALLOWING
APPELLANT'S QUESTIONING REGARDING [N.E.'S]
RESIDENCE ON THE DATE THAT SHE TESTIFIED IN
VIOLATION OF THE OHIO RULES OF EVIDENCE
No. 11AP-857
3
THEREBY
DEPRIVING
APPELLANT
OF
HIS
SUBSTANTIAL AND PROCEDURAL DUE PROCESS
RIGHTS
UNDER
THE
FEDERAL
AND
STATE
CONSTITUTIONS.
V. THE TRIAL COURT ERRED IN ALLOWING
TESTIMONY
REGARDING
APPELLANT'S
PRIOR
CONTACT WITH [N.E.] IN VIOLATION OF THE OHIO
RULES
OF
EVIDENCE
THEREBY
DEPRIVING
APPELLANT OF HIS SUBSTANTIAL AND PROCEEDURAL
DUE PROCESS RIGHTS UNDER THE FEDERAL AND
STATE CONSTITUTIONS.
(Sic passim.)
{¶ 6} Appellant's first and third assignments of error will be addressed together.
Both of these challenge the sufficiency and manifest weight of the evidence heard at
trial.
{¶ 7} The legal concepts of sufficiency of the evidence and weight of the evidence
involve different determinations. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
As to sufficiency of the evidence, " 'sufficiency' is a term of art meaning that legal
standard which is applied to determine whether the case may go to the jury or whether
the evidence is legally sufficient to support the jury verdict as a matter of law." Id.,
citing Black's Law Dictionary 1433 (6th Ed.1990). A determination as to whether the
evidence is legally sufficient to sustain a verdict is a question of law. Thompkins at 386.
When we review the sufficiency of the evidence upon appeal, we construe the evidence
in the light most favorable to the prosecution to determine whether a rational trier of
fact could have found the essential elements of the offense proven beyond a reasonable
doubt. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. As a
result, when we review the sufficiency of the evidence, we do not on appeal reweigh the
credibility of the witnesses. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126,
¶ 79.
{¶ 8} The relevant inquiry on review of the sufficiency of the evidence is
whether, "after viewing the evidence in the light most favorable to the prosecution, any
No. 11AP-857
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rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt." (Emphasis sic.) Jackson v. Virginia, 443 U.S. 307, 319 (1979).
{¶ 9} As opposed to the concept of sufficiency of the evidence, the court in
Thompkins noted that "[w]eight of the evidence concerns 'the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other. It indicates clearly to the jury that the party having the burden of proof
will be entitled to their verdict, if, on weighing the evidence in their minds, they shall
find the greater amount of credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics, but depends on its
effect in inducing belief.' " (Emphasis sic.) Thompkins at 388, quoting Black's Law
Dictionary at 1594.
{¶ 10} As the finder of fact, the jury is in the best position to weigh the credibility
of testimony by assessing the demeanor of the witness and the manner in which he
testifies, his connection or relationship with the parties, and his interest, if any, in the
outcome. The jury can accept all, a part or none of the testimony offered by a witness,
whether it is expert opinion or eyewitness fact, whether it is merely evidential or tends
to prove the ultimate fact. State v. McGowan, 10th Dist. No. 08AP-55, 2008-Ohio-5894,
citing State v. Antill, 176 Ohio St. 61, 67 (1964).
{¶ 11} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
"thirteenth juror" and disagrees with the fact finder's resolution of the conflicting
testimony. Thompkins at 387. An appellate court should reverse a conviction as against
the manifest weight of the evidence in only the most "exceptional case in which the
evidence weighs heavily against the conviction," instances in which the jury "clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983).
{¶ 12} The indictment in this case included one count each of the two types of
felonious assault defined by R.C. 2903.11, which states that no person shall knowingly
No. 11AP-857
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"[c]ause serious physical harm to another," or knowingly "[c]ause or attempt to cause
physical harm to another * * * by means of a deadly weapon or dangerous ordnance."
R.C. 2903.11(A)(1) and (2).
Upon the urging of defense counsel, the court also
instructed the jury in connection with these charges upon the inferior offense of
aggravated assault, which comprises the same elements as the crime of felonious assault
under R.C. 2903.11 but adds a mitigating element that the accused committed the crime
"while under the influence of sudden passion or in a sudden fit of rage, either of which is
brought on by a serious provocation occasioned by the victim that is reasonably
sufficient to insight the person into using deadly force." R.C. 2903.12(A). R.C. 2903.12
explicitly, and R.C. 2903.11 implicitly, refer to the definition found in R.C. 2923.11(A)
for a deadly weapon: "any instrument, device, or thing capable of inflicting death, and
designed or specially adapted for use as a weapon, or possessed, carried, or used as a
weapon."
{¶ 13} The offense of aggravated assault is an inferior degree of felonious assault
because its elements are identical, with the additional presence of one or both mitigating
circumstances of acting under the influence of passion or a sudden fit of rage brought on
by serious provocation occasioned by the victim. State v. Stewart, 10th Dist. No. 10AP526, 2011-Ohio-466, ¶ 7. Aggravated assault therefore comprises the same conduct as
felonious assault, but its nature and penalty are mitigated by provocation. Id. A
defendant bears the burden of proving the mitigating factor by a preponderance of the
evidence. State v. Johns, 10th Dist. No. 11AP-203, 2011-Ohio-6823, ¶ 20, citing State v.
Rhodes, 63 Ohio St.3d 613 (1992), syllabus.
{¶ 14} Appellant was also charged with one count of domestic violence, a
violation of R.C. 2919.25, which provides that "no person shall knowingly cause or
attempt to cause physical harm to a family or household member."
{¶ 15} To prove the elements of these offenses, the principal evidence presented
by the prosecution consisted of testimony of the victim, various arresting officers, and
an emergency room physician.
No. 11AP-857
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{¶ 16} N.E. testified that she shared an apartment with appellant on West Mound
Street in Columbus, Ohio, and that she had a key to the premises. In the early evening
of November 21, 2010, N.E. and appellant had a confrontation, during which appellant
assaulted her, knocked her down, "dog stomp[ed]" her, and threw a bicycle at her. (Tr.
102.) N.E. left the apartment, went to a neighbor's house, and called the police. By the
time police arrived to take a report, appellant had driven away. N.E. attempted to
return to the apartment and gather her belongings but found that she had left her keys
inside and was locked out. She broke the laundry room window to enter the apartment
and gather her possessions. At this time, she sold appellant's television to an
unidentified person to obtain money. She called two friends to come give her a ride
from the area and help her in case appellant returned before she left.
{¶ 17} Appellant then returned, and N.E. heard him pounding and yelling at the
outside door. N.E. then called 911 again and yelled to appellant that the police were on
their way. Appellant eventually let himself into the apartment, grabbed a baseball bat
from a closet, and began attacking her. Appellant beat N.E., striking her on the arms
and head. N.E. stated that appellant had hit her about two dozen times, that she had
extensive injuries to her head, arm, and elbow, and that she had spent three days in a
coma in the hospital. Upon cross-examination and confronted with hospital records,
N.E. stated that it might have been only one and one-half day and that she might not
have been in a coma. N.E. admitted to using crack cocaine earlier on the day of the
crime but asserted that she was not under the influence at the time of the beating and
could therefore clearly recall the events in connection therewith.
{¶ 18} Dr. Steven Kolodzik ("Dr. Kolodzik"), an orthopedic surgeon, testified that,
on the night in question, he worked at Mount Carmel West Hospital. He was in a
supervisory position overseeing resident physicians who directly treated N.E. in the
emergency room. Dr. Kolodzik did not personally treat N.E., but approved the decisions
made by the emergency room resident physicians. In preparation for trial, he reviewed
her medical history and x-rays in connection with her treatment. N.E. had a fracture to
her right elbow, a laceration in the same area but probably caused by a separate impact,
No. 11AP-857
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and a "nightstick fracture" to the right forearm. Dr. Kolodzik specified that a nightstick
fracture is a descriptive medical term because it is often associated with a defensive
wound incurred by raising a forearm to fend off a blow from a club of some sort.
Although the term is descriptive of the injury, he testified that it is not the only way in
which such an injury can occur, and his testimony should not be taken to mean that
N.E.'s forearm fracture was necessarily the result of such a blow.
{¶ 19} The records also revealed a scalp laceration. Dr. Kolodzik was not aware
whether the records disclosed any information as to whether N.E. had been tested or
treated for illegal drug use on the night in question.
{¶ 20} At the close of Dr. Kolodzik's testimony, defense counsel moved to strike
his testimony entirely because he had not phrased his testimony within a reasonable
degree of medical certainty, the applicable standard, and because Dr. Kolodzik had not
personally treated N.E. The court denied the motion to strike.
{¶ 21} On cross-examination, Dr. Kolodzik stated that N.E. was admitted on
October 22 and discharged on October 23. He confirmed that the treatment notes
indicated that N.E. was agitated and uncooperative with emergency room staff. His
review confirmed that the records did not describe N.E. as being in a coma when she
was in the hospital.
{¶ 22} Jerome Powell ("Powell") testified for the prosecution. Powell stated that
he had known N.E. for approximately three years, first meeting her at drug and alcohol
program meetings. He was not sure if he had dropped her off at the apartment earlier
that day but, in any event, did return to pick her up when she called him. Upon
approaching the door, he heard N.E. screaming and shouting that someone was hitting
her with a bat. He heard another voice shouting something about a television. Powell
stood in the downstairs corridor, unsure of what to do, and eventually called police. He
also called his friend Abbey Andray ("Andray") to inform her what was happening.
Powell then went to pick up Andray in his car and return to the apartment, which was
only a few blocks from where Andray lived. As they were returning, they saw N.E. leave
No. 11AP-857
8
the apartment and run to a neighbor's porch.
The police were already there and
prevented Powell from approaching N.E.
{¶ 23} Powell testified that he did not know appellant, had never met him, and
had nothing against him. On cross-examination, Powell confirmed that he had prior
convictions for theft and forgery. He stated that N.E. was "caught up in the streets" and
could be seen on the street in many different places. (Tr. 331.)
{¶ 24} The state next called Rich Jackson ("Jackson"), a Columbus paramedic.
Jackson responded to the 911 call on the night in question and transported N.E. to the
hospital. He had direct memory of the run in question. When they arrived, they found
that several police cruisers had already responded. The victim was on the porch of her
home holding her head. Jackson noticed bruising on her arms and extensive bleeding
from the back of her head. Jackson and his partner placed N.E. on a backboard to
immobilize her and took her to the hospital immediately because they deemed her a
serious trauma patient at that time. His assessment was based primarily on the injuries
to the back of her head.
N.E. was somewhat combative, which Jackson said was
consistent with a head injury but, based on information provided by police officers,
Jackson administered Narcan to reverse the effects of crack cocaine intoxication. N.E.
remained combative after this drug was administered, which again Jackson attributed to
the head injury since the effects of crack cocaine would have been neutralized. Jackson
also noted a deformity on the patient's forearm consistent with a fracture.
{¶ 25} Officer Bradley Wannemacher ("Officer Wannemacher") of the Columbus
Division of Police, testified as one of the arresting officers on the night in question.
Officer Wannemacher responded to a call on West Mound Street at 1:46 a.m. on
October 22, 2010. When he arrived, he could see an apparent victim on the south side
of Mound Street, who directed officers to a house across the street wherein appellant
had locked himself. The officers took positions to encircle the building. At this time,
Officer Wannemacher could hear someone in the apartment "ranting and raving, * * * it
sounded like he was throwing stuff around in the house yelling." (Tr. 344.)
The
apartment was on the second story with stairs leading from the first floor entrance. The
No. 11AP-857
9
officers gained entrance by forcing the first floor door to the hallway and stairs. As they
began to force the second floor door into the apartment, appellant yelled that he would
open the door. Appellant unlocked the door and then ran to the back of the apartment.
Officers followed him through the hallway and apprehended appellant in a back room.
At this time, appellant did not put up a fight but appeared very intoxicated and agitated.
Because appellant would not follow directions, he required some minor use of force to
control his movements and allow him to be handcuffed and patted down.
{¶ 26} Officers noticed that the room was in some disarray and that there were
blood splatters on the floor. In the same room where appellant was subdued and
handcuffed, the arresting officers observed in plain view a baseball bat with blood spots
on it. This was taken as evidence. Because appellant continued to be rather agitated,
officers chose to call a paddy wagon rather than attempt to wrestle him into the more
confined space of the back of a standard police cruiser.
{¶ 27} Officer James Null ("Officer Null") testified regarding the chain of custody
of the baseball bat taken from the scene and the transport of appellant to the county jail.
Because appellant appeared agitated and combative, the transporting officers did not
attempt to follow the usual procedure of fingerprinting and photographing appellant at
police headquarters, but chose to transport him directly to the Franklin County jail.
Officer Null then turned in the baseball bat to the police property room. He also turned
in a pair of blood-spattered pants taken from appellant.
{¶ 28} Brian Johnson ("Johnson"), a forensic scientist with the Columbus
Division of Police Crime Lab, testified regarding his analysis of substances found on the
baseball bat taken as evidence. He performed a basic test to determine whether or not
the stains on the bat were in fact blood, which they were. He then preserved samples of
the blood for future analysis but did not perform any DNA analysis himself. Johnson
testified that he was not qualified as a DNA analyst and was unaware if any further DNA
testing was performed on the blood samples to identify them with appellant or the
victim. No such tests were performed to his knowledge on the blood-stained pants
taken from appellant on the night of the beating.
No. 11AP-857
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{¶ 29} For the defense, appellant testified on his own behalf. He stated at the
outset that he has been diagnosed as bipolar, manic depressive, paranoid schizophrenic,
obsessive compulsive, co-dependant, and suffering from panic attacks or anxiety
attacks. He collects Social Security disability income for these conditions.
{¶ 30} Appellant testified that the apartment where the assault took place was in
his name alone and that N.E. did not live there. He stated that N.E. was a prostitute that
he "had used for sex." (Tr. 446.) He denied that N.E. lived in his apartment or had a
key. Appellant stated that, on previous occasions, N.E. had stolen property from him,
including three televisions over the course of 13 months, including the one taken on the
night in question.
{¶ 31} Appellant further testified that, on the night of October 21, 2010, he was in
his apartment with a former girlfriend named Penny. He had not heard anything from
N.E. for three days. The doorbell rang, and when appellant opened the door, N.E.
entered the apartment and immediately dialed 911 and began complaining about the
presence of Penny. Penny left, and appellant made N.E. leave as well, which upset N.E.,
who then ran to a neighbor and called 911 again. In order to get N.E. to leave the
apartment, appellant promised to buy her drugs. When she was outside, he locked all
the doors to the apartment and left by himself, leaving N.E. behind. Appellant denied
throwing a bicycle at N.E. at any time during the incident.
{¶ 32} Appellant testified that he then went to his friend Tony's house to cool off
and distance himself from the confrontation with N.E. When appellant arrived at
Tony's, N.E. called and said she had reported him to the police and that the police had
an arrest warrant for him. Appellant stayed at Tony's for approximately six hours, then
returned to his apartment and found N.E. with the phone in one hand and a baseball bat
in the other. At this time, two of N.E.'s friends, Powell and Andray, attempted to
discretely exit the apartment while he faced N.E. Appellant stated that, before he
reached home, he was aware that his television had again been stolen and, as a result,
was in a rage when he got there. N.E. hit him in the ribs with the baseball bat, and he
took the bat away from her and "tapped her a couple of times." (Tr. 456.)
No. 11AP-857
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{¶ 33} Appellant described N.E.'s demeanor when he returned home as
combative and intoxicated. Appellant believed that his ribs were injured and probably
broken from the blow delivered by N.E.
{¶ 34} In rebuttal, the prosecution played for the jury an audio recording of an
interview of appellant conducted by a police detective on the day after his arrest.
Appellant's account of the evening given in this interview corresponds in many
particulars with his trial testimony, but appellant also indicated that after N.E. hit him
he blacked out and could not recall what happened.
{¶ 35} With respect to the sufficiency and manifest weight of the evidence,
appellant essentially challenges the credibility of N.E.'s testimony. This testimony, in
conjunction with the supporting medical evidence and testimony of arresting officers
and responding paramedics, was sufficient to establish that appellant had repeatedly
struck N.E. with a baseball bat and inflicted serious physical harm. This court and many
other appellate courts in Ohio have repeatedly held that a baseball bat, wielded with the
requisite intent, meets the definition of R.C. 2923.11(A) as a deadly weapon. See, e.g.,
State v. McCoy, 10th Dist. No. 99AP-969 (June 22, 2000). The separate physical
injuries suffered by the victim to both her arms and her head substantiate the
allegations that multiple, violent blows caused her serious injuries.
Giving due
deference to the jury's role as the finder of fact, there is ample evidence in the record to
support appellant's convictions for felonious assault under both R.C. 2919.25(A) and (B)
because each of the separate blows could serve as a basis for finding that appellant
knowingly caused physical harm to the victim and did so by means of a deadly weapon.
{¶ 36} Appellant also asserts that the evidence was uncontroverted in that, if he
did commit the elements of felonious assault, he did so while under the influence of
sudden passion or in a fit of rage brought on by provocation occasioned by the victim.
The basis for this is that the victim had broken into his apartment and had stolen and
sold his television set. The jury, however, was free to accept only in part or entirely
reject the testimony of any witness regarding the alleged provocation. Appellant bore
the burden of establishing the mitigating factors to support conviction on the inferior
No. 11AP-857
offense.
12
In weighing the competing descriptions of events, the jury manifestly
concluded that appellant had not met this burden.
In the context of the limited
reweighing of evidence available to us upon appellate review, we find no reason to
disturb the jury's conclusion in this respect.
{¶ 37} Finally, appellant challenges his conviction for domestic violence,
asserting that the evidence does not support the necessary element that the victim was a
"family or household member" under R.C. 2919.25.
{¶ 38} In addition to various types of familial relationships that do not apply in
the present case, R.C. 2919.25 defines "family or household member" as "[a] spouse, a
person living as a spouse, or former spouse of the offender." R.C. 2919.25(F)(1)(a)(i).
The domestic violence statute further defines a "person living as a spouse" as "a person
who is living or has lived with the offender in a common law marital relationship, who
otherwise is cohabiting with the offender, or who otherwise has cohabited with the
offender within five years prior to the date of the alleged commission of the act in
question." R.C. 2925.25(F)(2).
{¶ 39} Courts are often faced with ambivalent or confused facts when attempting
to determine whether the facts in a criminal case support conviction for the offense of
domestic violence. As such, the Supreme Court of Ohio has recognized the need to avoid
formalistic reliance on one or two indicia to define the domestic circumstances of the
parties: "The offense of domestic violence, as expressed in [R.C. 2919.25], arises out of
the relationship of the parties rather than their exact living circumstances." State v.
Williams, 79 Ohio St.3d 459, 463-64 (1997). The essential elements of " 'cohabitation'
are: (1) sharing familial or financial responsibilities and (2) consortium." Id. at
paragraph two of the syllabus. "Possible factors establishing shared familial or financial
responsibilities might include provisions for shelter, food, clothing, utilities, and/or
commingled assets. Factors that might establish consortium include mutual respect,
fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship,
and conjugal relations." Id. at 465. Each case is unique and "how much weight, if any, to
give to each of these factors must be decided on a case-by-case basis by the trier of fact."
No. 11AP-857
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Id. We also note that the factors listed by the Supreme Court in Williams are nonexclusive. See also State v. Walburg, 10th Dist No. 10AP-1087, 2011-Ohio-4762; State
v. Colter, 2d Dist. No. 17828 (Mar. 17, 2000), quoting State v. Young, 2d Dist. No.
16985 (Nov. 20, 1998) (concluding that, in determining whether two persons
cohabitated for purposes of R.C. 2919.25(F), " 'courts should be guided by common
sense and ordinary human experience' ").
{¶ 40} The victim testified that she had lived with appellant off and on for about
four years, which appellant acknowledged to some degree. Appellant's testimony and
his recorded statement to police immediately after his arrest are at best ambivalent on
this point. In his direct testimony he claimed that he merely "used" N.E. for sex and that
she neither lived with him nor had a key to his home. In contrast, at other points, he
testified that he was disturbed when N.E. disappeared without explanation for days on
end, only to suddenly reappear at the apartment. In the police interview recording
presented in rebuttal, appellant stated: "I mean, I ain't done nothing but help this girl,
feed her, everything, do nothing but help this girl." (Tr. 507-08). "[Y]ou guys don't
understand. I do love her." (Tr. 522).
{¶ 41} We conclude the evidence in the present case was sufficient when
construed in favor of appellant to establish that appellant and N.E. shared sufficient
familial responsibilities, such as shelter, and consortium, such as affection, society, aid
of each other, and conjugal relations, to establish cohabitation.
{¶ 42} In summary, there was sufficient evidence before the jury to convict
appellant of two counts of felonious assault and one count of domestic violence, and
those convictions are not against the manifest weight of the evidence. Appellant's first
and third assignments of error are overruled.
{¶ 43} Appellant's second assignment of error asserts that the trial court erred in
denying appellant's motion for acquittal pursuant to Crim.R. 29. Crim.R. 29(A) requires
the court to, upon motion, order the entry of the judgment of acquittal if the evidence is
insufficient to sustain a conviction.
Such a judgment shall be entered if, at the
conclusion of the state's case, the evidence is such that reasonable minds could reach
No. 11AP-857
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different conclusions as to whether each element of the crime was proved beyond a
reasonable doubt. State v. Bridgeman, 55 Ohio St.2d 261 (1978), syllabus. A Crim.R.
29 motion addresses the sufficiency of the state's evidence, and we therefore apply the
same standard of review to such motions as we would in reviewing a general challenge
to the sufficiency of the evidence. State v. Hernandez, 10th Dist. No. 09AP-125, 2009Ohio-5128, ¶ 6. For the same reasons set forth in our analysis of appellant's first and
third assignments of error, we overrule appellant's second assignment of error.
{¶ 44} Appellant's fourth assignment of error asserts that the trial court erred in
limiting defense counsel's questioning of the victim on cross-examination. During
preliminary questioning on direct examination, the victim stated that she was not under
the influence of drugs while giving her testimony and had not used drugs for several
days prior to trial. In the context of other testimony given by N.E., this contrasted with
her admission that she was a past user of crack cocaine and other drugs and, although
largely in recovery from her drug use, had slipped and used drugs occasionally over the
previous year.
{¶ 45} The defense wished to establish by further questioning on crossexamination that, if the witness had not used drugs over the few days prior to trial, it
was only because she was incarcerated at the time she testified and did not have access
to drugs. The trial court refused to allow this line of questioning, explaining that the
prosecution's questioning on drug use as a preliminary to direct examination was to
establish that the witness was not currently, i.e., while on the stand, under the influence
of drugs and her testimony was therefore reliable. The trial court concluded that the
prosecution had not "opened the door" to further questioning on the victim's history of
drug use or incarceration, and that questions regarding her drug use at times other than
the night of the crime and the period immediately preceding her testimony were not
relevant or material to her recollection of events and reliability as a witness. The trial
court expressed that any questioning regarding the witness's current incarceration
would be unduly prejudicial without any offsetting relevance.
No. 11AP-857
15
{¶ 46} The admission or exclusion of evidence is left to the sound discretion of
the trial court, and we will not disturb such rulings absent an abuse of discretion by the
trial court. State v. Robb, 88 Ohio St.3d 59, 68 (2000); State v. Martin, 19 Ohio St.3d
122, 129 (1985). The term "abuse of discretion" connotes more than a mere error of law
or judgment; it implies that the court's attitude was unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 47} The trial court's reasoning in excluding this line of questioning was clearly
expressed and in no way arbitrary or capricious. While appellant now argues that
testimony regarding N.E.'s current incarceration was relevant because it would further
establish N.E. as a habitual drug user with a propensity for dishonesty, the trial court
could reasonably have concluded that specific testimony regarding N.E.'s current
incarceration was not probative of any fact essential to determination of the action, and
the essential question of whether N.E. was sober at the time of giving her testimony was
all that needed to be established. Under these conditions, we find no abuse of discretion
on the part of the trial court in limiting questioning as it did, and appellant's fourth
assignment of error is overruled.
{¶ 48} Appellant's fifth assignment of error asserts that the trial court erred in
allowing testimony regarding violent interaction between appellant and N.E. several
hours before the assault that formed the basis for the charges against appellant. This
refers to N.E.'s testimony that, on the evening of October 21, 2010, the two had argued,
and appellant had knocked N.E. down and thrown a bicycle at her. Appellant now
argues that this is inadmissible evidence of other crimes, wrongs or acts, and was put
forth by the prosecution with the purpose of proving appellant's bad character or that he
would act in conformity with the prior acts.
{¶ 49} "The admissibility of other acts evidence is carefully limited because of the
substantial danger that the jury will convict the defendant solely because it assumes that
the defendant has a propensity to commit criminal acts, or deserves punishment
regardless of whether he or she committed the crime charged in the indictment." State
No. 11AP-857
16
v. Belger, 5th Dist. No. 10CAA020021, 2011-Ohio-980, citing State v. Curry, 43 Ohio
St.2d 66, 68 (1975).
{¶ 50} Such character evidence is generally barred by Evid.R. 404(B), which
provides as follows: "Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident."
{¶ 51} R.C. 2945.59 similarly addresses evidence of other criminal conduct:
In any criminal case in which the defendant's motive or
intent, the absence of mistake or accident on his part, or the
defendant's scheme, plan, or system in doing an act is
material, any acts of the defendant which tend to show his
motive or intent, the absence of mistake or accident on his
part, or the defendant's scheme, plan, or system in doing the
act in question may be proved, whether they are
contemporaneous with or prior or subsequent thereto,
notwithstanding that such proof may show or tend to show
the commission of another crime by the defendant.
{¶ 52} Together, the rule and statute allow admission of other acts demonstrating
criminal conduct when they are " 'so blended or connected with the one on trial as that
proof of one incidentally involves the other; or explains the circumstances thereof.' "
State v. Wilkinson, 64 Ohio St.2d 308, 317 (1980), quoting United States v. Turner, 423
F.2d 481, 483-84 (7th Cir.1970).
{¶ 53} N.E.'s testimony regarding the incident earlier in the evening provided
essential background for the charged assault and, in fact, formed a continuous narrative
explaining the events on the evening in question. It also served to establish the nature
of the relationship between the parties as part of the domestic violence prosecution.
Evidence of the first alleged assault was so intermingled with evidence directly
describing the second that it was not necessary to exclude such evidence on the sole
basis that it tended to prove the bad character of appellant. Appellant's fifth assignment
of error is accordingly overruled.
No. 11AP-857
17
{¶ 54} In summary, we find that appellant's convictions on two counts of
felonious assault and one count of domestic violence were supported by sufficient
evidence and not contrary to the manifest weight of the evidence. We further find that
the trial court did not err in its evidentiary rulings both before and during trial. We
therefore overrule appellant's five assignments of error and affirm the judgment of the
Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and FRENCH, JJ., concur.
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