[Cite as State v. Grajales, 2018-Ohio-1124.]
grajalesCOURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 17 CAC 03 0020 JOSE OLIVAN GRAJALES
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, Case No. 16 CRB 03563
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 26, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ELIZABETH A. MATUNE RICHARD DRUCKER ASSISTANT PROSECUTOR MARGARET W. WONG & ASSOCIATES 70 North Union Street 3150 Chester Avenue Delaware, Ohio 43015 Cleveland, Ohio 44114 Delaware County, Case No. 17 CAC 03 0020 2
Wise, P. J.
{¶1} Defendant-appellant Jose Olivan Grajales appeals his conviction on one
count of domestic violence, one count of assault and one count of disorderly conduct
entered in the Delaware County Municipal Court following a jury trial.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE CASE
{¶3} On December 16, 2016, Jose Olivan Grajales was charged with Domestic
Violence in violation of R.C. §2919.25(A), Assault in violation of R.C. §2903.13(A) and
Disorderly Conduct in violation of R.C. §2917.11(A)(1) in the Delaware Municipal Court.
{¶4} On March 9, 2017, a jury trial commenced in this matter. At trial, the jury
heard testimony from the victim, K.V., Deputy Andrew Lee, Deputy Rashad Pitts on behalf
of the state of Ohio. The defense called Delane Thomas and Appellant.
{¶5} The victim testified that she and Appellant were out on a shopping trip on
December 15, 2016, when they got into an argument. (T. at 129). She stated that the
argument continued once the couple arrived home, with Appellant becoming
increasingly angrier and more agitated. (T. at 129-130). Soon after they walked into
the house, Appellant struck her and threw her to the ground. (T. at 131). After she
was on the ground, Appellant kicked and hit her. Id. She got back onto her feet, but
Appellant shoved her into the wall and continued hitting her. Id. When she got back
up again, Appellant grabbed her by her hair, threw her to the ground and continued
kicking her. Id. Later K.V. discovered that when Appellant grabbed her hair, he ripped
a chunk of her hair out of her head. (T. at 133). K.V. testified that she tried to shield
herself from the blows as the assault continued. (T. at 133). For that, her husband Delaware County, Case No. 17 CAC 03 0020 3
mocked her and called her "a baby." Id. Appellant next grabbed her by the legs and
dragged her over to and then out through the front door, closing it behind him. (T. at
131). K.V. testified that she did not have her cell phone, keys, or wallet, and it was
below freezing outside. (T. at 131-132). Terrified, she hid in a shed for as long as she
could, but she eventually became numb from the freezing temperatures and, lacking
any other options, returned to the house. (T. at 132, 136). K.V. stated she told Appellant
that she was leaving, but that he asked her to talk things out instead. (T. at 135). She
replied that Appellant needed to admit what he had done wrong. Id. Instead, Appellant
left the room. Id. K.V. then retrieved her cell phone and keys and left the house. Id. She
then locked herself in her car and called 911. Id.
{¶6} Deputy Lee, with the Delaware County Sheriff's Office, responded to K.V.'s
call for help. (T. at 156-157). He testified that when he arrived, he found K.V. in her car
crying. (T. at 157). K.V. explained to him that she had just been assaulted by her husband
and pulled from her pocket the clump of hair Appellant ripped from her head. Id.
{¶7} After speaking with K.V., Deputy Lee made contact with Appellant, who was
still inside the house. (T. at 158, 160). Deputy Lee recalled that Appellant seemed calm
when he answered the door. (T. at 168). When Deputy Lee asked Appellant, "What's
going on," he replied that "we were at the store, she said I was looking at a girl we started
arguing, I told her if you want to leave, you can leave, I can't do this anymore, we've
argued about it in the past, she's left before ... " (DVD audio at 2:34-3:59). Deputy Lee
then asked, "You guys didn’t get into a physical altercation?" to which Appellant
responded, "We were just arguing." (DVD audio at 4:-4:17). Delaware County, Case No. 17 CAC 03 0020 4
{¶8} Deputy Lee then confronted Appellant with K.V.’s allegations, telling him,
"so she's saying that you pushed her into the wall and she fell down and you started
kicking and hitting her." (DVD audio at 4:18-4:24). Appellant then stated "I mean, it wasn't
like (inaudible) kicking her. She started hitting me, and we just sort of (inaudible) held her.
I told her, you can leave. There's no marks anywhere. I mean, I just told her, I just grabbed
her, and told her you can leave ... " (DVD audio at 4:25 to 4:42).
{¶9} Appellant continued on to state:
We just sort of push each other, not push each other, but just like,
look, if you want to leave you can leave, (something) arguing and
fighting. There were cuss words, you know, bad words said, hurtful
words and I told her to leave. She didn't want to. I said leave. She said
fine, and just walked out. So she came back, just banged on the door ...
came in crying, sat on the couch and said I'm freezing, I can't feel my
body. I told her sit down, I put some blankets on her. Then she talking
about the same topic again. I told her I wasn't going to argue ...
(inaudible) (DVD audio at 5:30 to 6:17).
{¶10} Deputy Lee then asked, "So, you never like, grabbed her by her hair or
anything? Because she's got a chunk of her hair in her hand. Do you understand
where I'm headed? She's got a chunk of her hair in her hand. And you initially told me
nothing happened, then you now added that pushing happened, and ... " (DVD audio
at 6:16-6:33). Appellant responded, "I did. You know, I did (inaudible). I grabbed her
hair ... " and begins to cry. (DVD audio at 6:34-6:50). Appellant also admitted to
pushing K.V. into the wall. (T. at 170). Delaware County, Case No. 17 CAC 03 0020 5
{¶11} Deputy Lee stated that he then placed Appellant under arrest.
{¶12} Appellant also testified in his own defense. Appellant testified that he told
K.V. to leave their home because she was angry with him. (T. at 223). According to
Appellant, K.V. became angry, screaming "I hate you" at Appellant and then either fell
or threw herself to the ground. (T. at 223-224, 234). Once on the ground, Appellant
claimed that K.V. turned red and told him she wished he was dead and that she never
married him. (T. at 224). Appellant stated that while she was still on the ground, K.V.
began kicking and swinging, screaming, and pulling out her own hair. (T. at 226-227).
Appellant did not explain how or why she ended up outside but stated that once K.V.
came back inside from the cold, he got her two blankets and some coffee and then
changed the topic. (T. at 229-230).
{¶13} When confronted with his admissions to the assault to Deputy Lee,
Appellant stated that they were misunderstandings and misinterpretations. (T. at 237-
240).
{¶14} At the conclusion of the trial, following deliberations, the jury found Appellant
guilty on all three counts. The trial court sentenced Appellant to thirty (30) days in jail, one
(1) year probation and fines and costs on the Domestic Violence charge. The trial court
did not impose sentence on the other charges, finding that they were allied offenses.
{¶15} Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶16} “I. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL AND DUE PROCESS OF HIS RIGHTS UNDER THE FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND Delaware County, Case No. 17 CAC 03 0020 6
ARTICLE ONE, SECTION TEN OF THE OHIO CONSTITUTION DUE TO THE FAILURE
TO FILE A MOTION TO SUPPRESS STATEMENTS ON THE DEFENDANTS BEHALF.
{¶17} “II. THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE
JURY ON THE AFFIRMATIVE DEFENSE OF SELF DEFENSE AND DEFENSE
COUNSEL'S FAILURE TO REQUEST THE INSTRUCTION WAS PLAIN ERROR.
{¶18} “III. THE JURY VERDICT FINDING THE APPELLANT GUILTY OF THE
OFFENSES OF DOMESTIC VIOLENCE AND ASSAULT WAS CONTRARY TO THE
LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, SINCE THE
STATE OF OHIO FAILED TO PROVE ESSENTIAL ELEMENTS OF THE OFFENSES,
TO WIT: THAT THE APPELLANT KNOWING CAUSED OR ATTEMPTED TO CAUSE
PHYSICAL HARM TO HIS WIFE.
{¶19} “IV. THE TRIAL COURT IMPROPERLY ALLOWED PURPORTED
EXPERT TESTIMONY TO BE ADMITTED INTO EVIDENCE BY THE STATE OF OHIO
FROM DEPUTY LEE WITHOUT OBJECTION FROM DEFENSE COUNSEL THAT
PREJUDICED THE APPELLANT AND CONSTITUTED PLAIN ERROR.”
I.
{¶20} In his First Assignment of Error, Appellant argues that he was denied the
effective assistance of counsel. We disagree.
{¶21} More specifically, Appellant argues that his counsel was ineffective in failing
to file a motion to suppress the statements he made to Deputy Lee.
{¶22} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's Delaware County, Case No. 17 CAC 03 0020 7
essential duties to Appellant. The second prong is whether Appellant was prejudiced by
counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d
180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).
{¶23} Counsel is unconstitutionally ineffective if his performance is both deficient,
meaning his errors are “so serious” that he no longer functions as “counsel,” and
prejudicial, meaning his errors deprive the defendant of a fair trial. Maryland v. Kulbicki,
577 U.S. ––––, 2015 WL 5774453(Oct. 5, 2015) (citing Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984))
Failure to File Motion to Suppress
{¶24} Trial counsel's failure to file a suppression motion does not per se constitute
ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–Ohio–
0448. Counsel can only be found ineffective for failing to file a motion to suppress if, based
on the record, the motion would have been granted. State v. Lavelle, 5th Dist. No. 07 CA
130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–CA–88, 2007–Ohio–
3009, at ¶ 86. The defendant must further show that there is a reasonable probability that
the outcome would have been different if the motion had been granted or the defense
pursued. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91
L.Ed.2d 305 (1986); see, also, State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798
(2001), citing State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).
{¶25} In order for an accused's statement to be admissible at trial, police must
have given the accused a Miranda warning if there was a custodial interrogation. Miranda
v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). If that condition is Delaware County, Case No. 17 CAC 03 0020 8
established, the court can proceed to consider whether there has been an express or
implied waiver of Miranda rights. Id., at 476, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
{¶26} A custodial interrogation occurs when a person has been taken into custody
or otherwise deprived of his freedom of action in any significant way and a law
enforcement officer questions that person. Id. “Prior to any questioning, the person must
be warned that he has a right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the presence of an attorney,
either retained or appointed.” Id.
{¶27} In Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383
(1995), the Court offered the following description of the Miranda custody test:
Two discrete inquiries are essential to the determination: first, what
were the circumstances surrounding the interrogation; and second, given
those circumstances, would a reasonable person have felt he or she was
not at liberty to terminate the interrogation and leave. Once the scene is set
and the players' lines and actions are reconstructed, the court must apply
an objective test to resolve the ultimate inquiry: was there a formal arrest or
restraint on freedom of movement of the degree associated with a formal
arrest.
{¶28} 516 U.S., at 112, 116 S.Ct. 457 (internal quotation marks omitted). Accord,
Yarborough v. Alvarado, 541U.S. 652, 653, 124 S.Ct. 2140, 158 L.Ed.2d 938(2004).
{¶29} The police and courts must “examine all of the circumstances surrounding
the interrogation,” Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128
L.Ed.2d 293(1994), including those that “would have affected how a reasonable person” Delaware County, Case No. 17 CAC 03 0020 9
in the suspect's position “would perceive his or her freedom to leave,” Id., at 325, 114
S.Ct. 1526. However, the test involves no consideration of the particular suspect's “actual
mindset.” Yarborough, 541 U.S. 652, 667, 124 S.Ct. 2140, 158 L.Ed.2d 938. Accord,
State v. Mason, 82 Ohio St.3d 144, 153, 1998–Ohio–370, 694 N.E.2d 932 (1998); State
v. Gumm, 73 Ohio St.3d 413, 429, 1995 Ohio 24, 653 N.E.2d 253 (1995).
{¶30} Appellant herein argues that he had been arrested and placed in handcuffs
for transport to jail when he made incriminating statements to Deputies Lee and Pitts.
{¶31} Upon review, we find that Deputy Lee first encountered Appellant when he
knocked on Appellant’s door after speaking with Appellant’s wife. Deputy Lee asked
Appellant “[w]hat’s going on?” Appellant first denied that any physical altercations had
occurred, then claimed his wife had hit him, then admitted to grabbing her hair and
pushing her into the wall. This exchange was all recorded and presented as an exhibit
during trial.
{¶32} Based on the foregoing discussion and the statements made therein, we
find that the incriminating statements made by Appellant occurred prior to him being taken
into custody. We do not find that the interaction between Deputy Lee and Appellant was
a custodial interrogation as there was no arrest at that point or any restraint on Appellant’s
movement. The questioning itself took place at Appellant’s home, and Deputy Lee did not
engage in any coercive tactics during his questioning of Appellant.
{¶33} Accordingly, Appellant has failed in his burden to establish a reasonable
possibility that a motion to suppress, had one been filed, would have been granted.
{¶34} Appellant’s First Assignment of Error is overruled. Delaware County, Case No. 17 CAC 03 0020 10
II.
{¶35} In his Second Assignment of Error, Appellant argues the trial court erred in
failing to give a self-defense instruction to the jury. We disagree.
{¶36} A trial court must instruct the jury on self-defense only when the defendant
presents sufficient evidence at trial to warrant such an instruction. See State v. Robinson,
47 Ohio St.2d 103, 110–113, 351 N.E.2d 88 (1976). The trial court should view this
evidence in the light most favorable to the defendant and determine, if the evidence is
believed, whether it would permit a finding of reasonable doubt as to guilt under the legal
test for self-defense. Id. When reviewing a court's refusal to give a requested jury
instruction, an appellate court considers whether the trial court's refusal to give a
requested instruction was an abuse of discretion under the facts and circumstances of
the case. State v. Wolons, 44 Ohio St.3d 64, 541 N.E.2d 443 (1989).
{¶37} To establish self-defense in the use of non-deadly force, the accused must
show that: 1) he was not at fault in creating the situation giving rise to the altercation; 2)
the accused had reasonable grounds to believe and an honest belief, even though
mistaken, that some force was necessary to defend himself against the imminent use of
unlawful force; and 3) the force used was not likely to cause death or great bodily harm.
State v. Hoopingarner, 5th Dist. Tuscarawas No. 2010AP 07 00022, 2010–Ohio–6490, ¶
31, State v. Medlock, 5th Dist. Stark No. 2014CA00007, 2014–Ohio–3466, ¶ 13.
{¶38} As to the degree of force that is permitted, the defendant is privileged to use
the amount of force that is reasonably necessary to repel the attack. State v. Williford, 49
Ohio St. 3d 247, 551 N.E.2d 1279 (1990). However, if the amount of force used is so
disproportionate that it shows an “unreasonable purpose to injure,” the defense of self- Delaware County, Case No. 17 CAC 03 0020 11
defense is unavailable. State v. Macklin, 8th Dist. Cuyahoga No. 94482, 2011–Ohio–87,
¶ 27.
{¶39} In order to establish that the failure to give the requested jury instruction on
self-defense was reversible error, Defendant must show that the court's refusal to give
the requested instruction was an abuse of discretion and that he suffered prejudice as a
result. State v. Griffin (July 15, 2005), Montgomery App. No. 20681, 2005-Ohio-3698. An
abuse of discretion connotes more than a mere error of law or an error in judgment. It
implies an arbitrary, unreasonable, unconscionable attitude on the part of the court. State
v. Adams (1980), 62 Ohio St.2d 151.
{¶40} In the instant case, we find Appellant's trial testimony defeated his argument
that he acted in self-defense. The Supreme Court of Ohio in State v. Poole (1973), 33
Ohio St.2d 18, 19, 294 N.E.2d 888, characterized the defense of self-defense as a
“justification for admitted conduct.” The court in Poole stated that this defense admits the
facts claimed by the prosecution and then relies on independent facts or circumstances,
which the defendant claims exempt him from liability. Id. Thus, self-defense seeks to
relieve the defendant from culpability rather than to negate an element of the offense
charged. However, Appellant testified at trial, as follows:
Q: *** Focusing on this date, December 15, 2016, did you ever punch your
wife?
A: No, sir.
Q: Hit her with an open hand?
A: That's not true.
Q: Slap her? Delaware County, Case No. 17 CAC 03 0020 12
Q: Kick her?
Q; Drag her by the hair?
{¶41} (T. at 228).
{¶42} At trial, Appellant denied harm or trying to harm his wife. Further, Appellant
never told police or testified at trial that he feared for his safety on the night in question.
Consequently, he cannot assert self-defense because that defense requires the
admission by the defendant of the essential facts alleged by the prosecution. Poole,
supra. To maintain both positions is “logically and legally inconsistent,” because
“[a]ppellant cannot claim absolute innocence and simultaneously avail himself of an
affirmative defense” of self-defense. State v. Powell (Sept. 29, 1997), 4th Dist. No.
96CA2257, 1997 WL 602864 . The court in Powell held:
It would be nonsensical to permit a criminal defendant to completely
deny that he committed the act underlying the charge, yet also claim that
his commission of the act was justified and that he should therefore be
excused from criminal responsibility. Such a holding would allow a criminal
defendant to have his cake and eat it too.
{¶43} Id. at 5. Accord: Poole, supra; State v. Kajoshaj (Aug. 10, 2000), 8th Dist.
No. 76857; State v. Perry, 5th Dist. No. 02–CA–77, 2003–Ohio–6097, at ¶ 27; State v.
Wall (Aug. 21, 1973), 10th Dist. No. 73AP–115, 1973. Delaware County, Case No. 17 CAC 03 0020 13
{¶44} Because Appellant denied committing the act alleged in the indictment, i.e.,
that he caused or attempted to cause physical harm to his wife, he is precluded from
arguing on appeal that the trial court should have found he acted in self-defense.
{¶45} Based on the evidence, the court did not abuse its discretion in denying
Appellant's request for a jury instruction on self-defense.
{¶46} Appellant’s Second Assignment of Error is overruled.
III.
{¶47} In his Third Assignment of Error, Appellant argues that his convictions for
domestic violence and assault were against the manifest weight and sufficiency of the
evidence. We disagree.
{¶48} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). “The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.”
Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing court is to
examine the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine “whether in resolving conflicts in the evidence,
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, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d
380, 1997–Ohio–52, 678 N.E.2d 541. The granting of a new trial “should be exercised Delaware County, Case No. 17 CAC 03 0020 14
only in the exceptional case in which the evidence weighs heavily against the conviction.”
Martin at 175.
{¶49} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 237 N.E.2d
212 (1967). The trier of fact “has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page.”
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d 1159.
{¶50} In the case sub judice, Appellant was convicted of assault and domestic
violence. “Assault” is in relevant part “knowingly caus[ing] or attempt[ing] to cause
physical harm to another.” R.C. §2903.13(A). Domestic violence is in relevant part
“knowingly caus[ing] or attempt[ing] to cause physical harm to a family or household
member.” R.C. §2919.25(A).
{¶51} “Physical harm” in this context means “any injury, illness, or other
physiological impairment, regardless of its gravity or duration.”
{¶52} Here, there is no dispute that K.V. was Appellant's family and household
member at the time of the offense. The question for the jury was whether Appellant
“knowingly caus[ed] or attempt[ed] to cause” K.V. “any injury * * * regardless of its gravity
or duration.”
{¶53} At trial, K.V. testified that on the evening in question, Appellant hit her,
pushed her to the ground, kicked her, threw her into a wall, pulled her hair out, pushed
her to the ground again and continued to kick her. (T. at 131-134, 142-143, 149-151). She
further testified that he dragged her outside by her legs and left her out in the cold, without
a coat, or keys or a phone. Id. Deputy Lee testified that he observed K.V.’s injuries which Delaware County, Case No. 17 CAC 03 0020 15
were consistent with the account of events as described to him by K.V. (T. at 171).
Photographs of K.V. depicting the injuries she sustained from Appellant were presented
to the jury. (T. at 137).
{¶54} The jury was free to accept or reject any and all of the evidence offered by
the parties and assess the witnesses' credibility. “While the jury may take note of the
inconsistencies and resolve or discount them accordingly * * * such inconsistencies do
not render defendant's conviction against the manifest weight or sufficiency of the
evidence.” State v. McGregor, 5th Dist. Ashland No. 15–COA–023, 2016–Ohio–3082,
2016 WL 2942992, ¶ 10, citing State v. Craig, 10th Dist. Franklin No. 99AP–739, 2000
WL 297252 (Mar. 23, 2000). Indeed, the jurors need not believe all of a witness'
testimony, but may accept only portions of it as true. Id. Our review of the entire record
reveals no significant inconsistencies or other conflicts in the State's evidence which
would demonstrate a lack of credibility of the witnesses sufficient to find the jury lost its
way to finding Appellant guilty.
{¶55} Based on the foregoing, together with all of the evidence presented, we find
that Appellant's convictions were supported by sufficient evidence and that the jury did
not lose its way in finding Appellant guilty beyond a reasonable doubt.
{¶56} Appellant's Third Assignment of Error is overruled.
IV.
{¶57} In his Fourth Assignment of Error, Appellant argues the trial court erred in
allowing the testimony of Deputy Lee into evidence. We disagree.
{¶58} Initially we note that Appellant's trial counsel did not object to Deputy Lee’s
testimony and has therefore waived all but plain error. Pursuant to Crim.R. 52(B), “plain Delaware County, Case No. 17 CAC 03 0020 16
errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court.” The rule places several limitations on a reviewing
court's determination to correct an error despite the absence of timely objection at trial:
(1) “there must be an error, i.e., a deviation from a legal rule,” (2) “the error must be plain,”
that is, an error that constitutes “an ‘obvious' defect in the trial proceedings,” and (3) the
error must have affected “substantial rights” such that “the trial court's error must have
affected the outcome of the trial.” State v. Dunn, 5th Dist. No. 2008–CA–00137, 2009–
Ohio–1688, citing State v. Morales, 10 Dist. Nos. 03–AP–318, 03–AP–319, 2004–Ohio–
3391, at ¶19 (citation omitted). The decision to correct a plain error is discretionary and
should be made “with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.” Barnes, supra, quoting State v. Long, 53 Ohio
St .2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶59} The admission or exclusion of evidence rests in the sound discretion of the
trial court. State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343, paragraph two of
the syllabus. The term “abuse of discretion” connotes more than an error of law or
judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable.
Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120,
122, 573 N.E.2d 622, 624.
{¶60} Evid.R. 701 affords the trial court considerable discretion in controlling the
opinion testimony of lay witnesses. State v. Harper, 5th Dist. Licking No. 07 CA 151,
2008–Ohio–6926, ¶ 37, citing City of Urbana ex rel. Newlin v. Downing, 43 Ohio St.3d
109, 113, 539 N.E.2d 140 (1989) and State v. Kehoe, 133 Ohio App.3d 591, 603, 729
N.E.2d 431 (12th Dist.1999). “If the witness is not testifying as an expert, the witness' Delaware County, Case No. 17 CAC 03 0020 17
testimony in the form of opinions or inferences is limited to those opinions or inferences
which are (1) rationally based on the perception of the witness and (2) helpful to a clear
understanding of the witness' testimony or the determination of a fact in issue.” Ohio
Evid.R. 701. Lay opinion, inferences, impressions or conclusions are therefore admissible
if they are those that a rational person would form on the basis of the observed facts and
if they assist the jury in understanding the testimony or delineating a fact in issue. Id.
{¶61} Specifically, Appellant argues that the following testimony by Deputy Lee
with regard to the chunk of hair constituted expert testimony.
{¶62} At trial, the state asked Deputy Lee the following questions:
Q: And I know you can’t tell for certain, but based on when you looked at
that hair and you have the other chunk of hair, did that seem to match? Does it
look like it could have come from the same person?
A: Yes
***
Q: Have you ever responded to a situation before where someone had their
hair pulled out?
A: I can think of one other incident. It wasn’t a domestic. A fight.
Q: All right. And would you expect to see a lot of blood if someone had their
hair pulled out based on that experience?
A: I didn’t see any blood on that scene that I can think of, no.
{¶63} (T. at 17-180).
{¶64} We find that such testimony was a lay opinion based on Deputy Lee’s
experience. We further find that based on his qualifications and experience, the trial court Delaware County, Case No. 17 CAC 03 0020 18
had the discretion to admit his testimony as material and relevant. Deputy Lee testified
as a lay witness to opinions based upon his experience as a police officer, his previous
investigations, and his perception of evidence at issue. His testimony was helpful to
determine facts in issue, therefore the testimony was properly admitted under Evid.R.
701. See, State v. McKee, 91 Ohio St.3d 292, 2001–Ohio–41, 744 N.E.2d 737.
{¶65} Accordingly, we overrule Appellant’s Fourth Assignment of Error.
{¶66} The decision of the Municipal Court of Delaware County, Ohio, is affirmed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
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