Criminal Appeal from Common Pleas Court, No. 12-CR-2951.
MATHIAS H. HECK, JR., by MATTHEW T. CRAWFORD, Atty. Reg. #0089205 Attorney for Plaintiff-Appellee
CHRISTOPHER W. THOMPSON, Atty. Reg. #0055379 Attorney for Defendant-Appellant
(¶ 1} Robert L. Woodruff appeals from his conviction and sentence on three counts of felony domestic violence in violation of R.C. 2919.25(A).
(¶ 2} Woodruff advances three assignments of error on appeal. First, he contends the trial court erred in finding two young children competent to testify under Evid.R. 601(A). Second, he claims the trial court erred in allowing a Montgomery County Children Services (MCCS) representative to testify about the agency's instructions regarding "appropriate physical discipline" and about his participation in a case plan addressing parenting and discipline. Third, he argues that prosecutorial misconduct during closing arguments deprived him of his right to a fair trial.
(¶ 3} The record reflects that Woodruff resided with L.H. (Mother) and her three children, V.F., J.H. (male), and J.H. (female). Woodruff was not the father of the children, who attended a local elementary school together. On September 28, 2012, a school employee contacted MCCS to report the possible physical abuse of nine-year-old V.F. A caseworker observed bruises on the child's face and open cuts on her lip. V.F. appeared to be shaken up and scared. A family friend picked up all three children from school and took them to her home. Multiple footprints later were observed on V.F.'s body, including one on her inner thigh.
(¶ 4} At trial, V.F. testified about several instances of abuse. First, she testified about acts that occurred on September 27, 2012. On that occasion, V.F.'s grandmother was watching her while Woodruff and Mother were at a parenting class. Upon returning home, they discovered that V.F. had been written up for her behavior on the school bus. Mother became angry and began swinging V.F. around by her hair. Woodruff then began hitting V.F. hard in the face with a rolled up paper. According to V.F., Woodruff also repeatedly slapped her face and proceeded to kick her hard and punch her. (Tr. Vol. II at 216-227).
(¶ 5} V.F. recalled an earlier incident when Woodruff had whipped her with a detached leather purse strap. On that occasion, Woodruff discovered that she had been talking at school. As a result, he forced her to remove her clothes and whipped her naked back and "bottom" several times as hard as he could. (Id. at 233-235).
(¶ 6} V.F. recalled a third incident when Woodruff had picked up her younger brother J.H. and thrown him against a wall for lying about homework. (Id. at 237). Finally, she testified about a fourth incident, also involving her younger brother J.H., when Woodruff had "smacked" the child in the mouth for breaking a toy, causing his lip to bleed. (Id at 240-242).
(¶ 7} V.F.'s younger brother, six-year-old J.H., testified about the two incidents of abuse involving him. J.H. testified that when he was thrown into the wall, he got a bump on the back of his head. (Id at 330-331). He also confirmed that Woodruff hit his lip once, causing it to bleed. (Id . at 332-333).
(¶ 8} Finally, V.F.'s younger sister, six-year-old J.H.,  testified that she saw Woodruff slap V.F. in the face on the day of the school-bus incident. (Id at 346). After seeing the slap, J.H. went into her bedroom and continued to hear yelling. (Id at 347). J.H. (female) also recalled seeing Woodruff pick up her twin brother and push him into a wall, causing him to hit his head. (Id . at 349-351).
(¶ 9} Based on the foregoing evidence, a jury found Woodruff guilty on three counts of fourth-degree-felony domestic violence. The charges were felonies because he had a prior domestic-violence conviction. Woodruff was acquitted on a fourth count. The trial court imposed three seventeen-month prison sentences. It ordered two of the three terms to be served consecutively and the third to be served concurrently, resulting in an aggregate prison sentence of thirty-four months. This appeal followed.
(¶ 10} In his first assignment of error, Woodruff contends the trial court erred in finding six-year-old J.H. (male) and six-year-old J.H. (female) competent to testify. This argument implicates Evid.R. 601(A), which provides: "Every person is competent to be a witness except * * * children under ten years of age, who appear incapable of receiving just impressions of the facts ...