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State v. West

Court of Appeals of Ohio, Fifth District, Fairfield

May 31, 2017

STATE OF OHIO Plaintiff-Appellee
v.
MATTHEW WEST Defendant-Appellant

         Criminal Appeal from the Court of Common Pleas, Case No. 15 CR 240

          For Plaintiff-Appellee GREGG MARX PROSECUTING ATTORNEY ANDREA K. GREEN ASSISTANT PROSECUTOR

          For Defendant-Appellant DENNIS C. BELLI

          JUDGES: Hon. Patricia A. Delaney, P. J. Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          WISE, JOHN, J.

         {¶1} Appellant Matthew West appeals his conviction entered in the Fairfield County Court of Common Pleas on two counts of felonious assault, one count of abduction, and one count of domestic violence, following a jury trial.

         {¶2} Appellee is State of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶3} On June 26, 2015, the Fairfield County Grand Jury indicted Appellant Matthew West for Count One: Felonious Assault, in violation of R.C. §2903.11(A)(1) and (D)(1)(a), a felony of the second degree; Count Two: Felonious Assault, in violation of R.C. §2903.11 (A)(1) and (D)(1)(a), a felony of the second degree; Count Three: Abduction, in violation of R.C. §2905.02(A)(2) and (C), a felony of the third degree; and Count Four: Domestic Violence, in violation of R.C. §2919.25(A) and (D)(2), a misdemeanor of the first degree. (Indictment, Fairfield C.P. No. 2015-CR-240, June 26, 2015).

         {¶4} The charges stemmed from an argument which took place on June 11, 2015 between Appellant Matthew West and his girlfriend M.A.

         {¶5} A jury trial commenced on January 26, 2016.

         {¶6} At trial, the jury heard testimony from M.A.'s ex-husband Ricky, Lancaster Police Officer Franklin Graf, Lindsey Mullins, R.N., Christa Nagle, Nurse Practitioner, Paula Fortner, R.N. and Nurse Practitioner, Dr. Michael Alexander, Dr. Jason Reed, M.A., Suzanne Pelletier-Capitini, and Appellant Matthew West.

         {¶7} The State began by calling M.A.'s ex-husband Ricky, who testified that on the evening of June 1, 2015, M.A. called him for help from a Kroger parking lot and that he could tell that she was extremely upset. Her voice sounded shaky and scared, and he could tell that she had been crying and was out of breath. (T. at 57). He stated when he answered the phone, M.A. immediately said "I need help. Matt just kicked my ass." (T. at 57). Ricky stated that he went to the Kroger parking lot as fast as he could, because it seemed urgent. (T. at 60). When he entered the Kroger parking lot, it looked to him like M.A. was passed out against the window of the truck she was sitting in. (T. at 61). When M.A. then got out of the truck, she looked like she had gotten beat up. Ricky testified that she looked like "hell." (T. at 62). Ricky stated that he could see that she had marks on her neck, her legs, her feet, and her face, and appeared to be in pain. (T. at 62). He recalled that she was holding her ribs and clutching her shoulder; she could hardly stand, was having difficulty breathing, and had tears rolling down her face. (T. at 62-63).

         {¶8} Ricky testified that moments after he arrived, Appellant pulled in the parking lot, and began to yell at both Ricky and M.A. (T. at 64). Appellant began to walk past Ricky toward M.A., but Ricky told Appellant to stop and that the cops were on their way. (T. at 64-66). Appellant then returned to his vehicle, and Ricky positioned his body in between Appellant and M.A. at all times, in an attempt to ensure her safety. (T. at 67).

         {¶9} Ricky testified that after Appellant left, he immediately helped M.A. into his car and took her to the emergency room. (T. at 68). She was still clutching her side, was extremely shaky, and continued to state that she was in pain. (T. at 69-70). While en route to the Fairfield Medical Center Emergency Room, M.A. continued to cry, asking "Why me? Why me? Why does this happen to me? What did I do?'' (T. at 69-50).

         {¶10} Ricky stated that when they arrived at Fairfield Medical Center, he helped M.A. into a wheelchair and she was rushed in to see a triage nurse. (T. at 70). He recalled that when questioned by the nurse, M.A. told her that she had been assaulted by her boyfriend; that it hurt to take a deep breath in; that her ribs were killing her; and that she was in pain all over. (T. at 161). He stated that M.A. was admitted to the hospital, and an officer from the Lancaster Police Department came to speak with her due to the reported domestic violence. (T. at 112). After the officer left, M.A. continued to cry and was very upset about the incident. (T. at 77). M.A. explained to Ricky what had happened earlier in the evening that led to her injuries. (T. at 77-81). M.A. then asked Ricky to call her mom to tell her what had happened that night. (T. at 82). He also stated that while they were at the hospital, Appellant sent M.A. a text stating that they were over, and that all of her stuff was going to be thrown out. (T. at 82).

         {¶11} The State next called Officer Graf, who testified that he responded to a 9-1-1 domestic dispute call at approximately 2:00 a.m. on June 12, 2015. (T. at 110-111). He recalled that he first went to the Kroger parking lot where he located the empty vehicle but was then informed by dispatch that the victim was at Fairfield Medical Center. (T. at 111). Upon arriving at the hospital, he spoke with both M.A. and her ex-husband Ricky. (T. at 112). This conversation was recorded on Officer Grafs body camera. (T. at 114). He testified that when he questioned M.A. about what had occurred that evening, he did so outside of the presence of her ex-husband. (T. at 114-115). He stated that when he questioned M.A., she was lying in a hospital bed. (T. at 115). He observed that she had multiple scratches, was bleeding, moved slowly and appeared to be in pain. (T. at 115). Officer Graf also took pictures of her injuries. (T. at 131). He recalled that she was wincing and crying, though not sobbing. (T. at 115). He stated that she appeared to have consumed alcohol that evening but was coherent and did not seem intoxicated. (T. at 116). He recalled that after speaking with M.A., he asked her if she wanted to fill out an affidavit for domestic violence, but she declined at that time. (T. at 118-119). He stated that it was his intention to sign the domestic violence affidavit on her behalf even though she had refused to do so. (T. at 119).

         {¶12} While at the hospital, Officer Graf also spoke with M.A.'s ex-husband Ricky. (T. at 120).

         {¶13} Approximately two hours later, Officer Graf received a call from Dispatch informing him that M.A. now wanted to sign a statement of domestic violence, so he returned to the hospital. (T. at 120-121). At the hospital, Officer Graf spoke with M.A. a second time, and then presented her with an affidavit for domestic violence and a domestic violence field report, which she filled in with help from the officer, and signed. (T. at 121-125).

         {¶14} The jury also heard testimony from Lindsey Mullins, R.N., and Christa Nagle, Nurse Practitioner, who were working in the Emergency Department at Fairfield Medical on June 12, 2015. Each of the nurses testified that upon being asked what brought her to the hospital, M.A. informed them that she had been assaulted by her boyfriend. (T. at 161, 163, 185). She stated that she had been punched and kicked multiple times. (T. at 185).

         {¶15} The jury next heard from Paula Fortner, R.N. and Nurse Practitioner, and Dr. Michael Alexander, who testified that they treated M.A. on June 14, 2015, when she came to the Emergency Department at Hocking Valley complaining of shoulder and rib pain. M.A., who came to the E.D. alone, stated that she had previously been treated at Fairfield Medical Center after being beat up by her boyfriend but continued to have severe shoulder and rib pain. (T. at 235, 254). X-rays were performed, M.A. was diagnosed with a left shoulder fracture, was fitted with a sling, and a referral was made to see an orthopedist. (T. at 262).

         {¶16} The State also presented the testimony of Dr. Jason Reed, the orthopedic surgeon who saw M.A. on June 22, 2015. He testified that when M.A. came to see him she was accompanied by a man whose name he did not know. When asked how the injury occurred, M.A. informed him that she fell down the stairs. (T. at 280). Dr. Reed diagnosed M.A. with a comminuted displaced greater tuberosity fracture and later, on July 17, 2015, performed arthroscopic surgery to repair M.A.'s shoulder.

         {¶17} Prior to trial, M.A. had recanted the allegations made to Officer Graf in a sworn statement. She was called as a Court's witness.

         {¶18} After waiving her Fifth Amendment rights to self-incrimination, M.A. testified that on the night in question, she and Appellant were out celebrating their 6-month anniversary with dinner and drinks at Roosters restaurant. (T. at 320-321). She recalled that after leaving Roosters, they stopped at the Cherry Street Pub for a few more drinks. (T. at 322). The couple then went home, where they ran into a friend and decided to all go to another bar, Berne Station, where they played pool and had a few more drinks. (T. at 324-325). M.A. testified that while they were at Berne Station, she and Appellant got into an argument. (T. at 326). The threesome returned back to M.A. and Appellant's apartment, and the friend left. (T. at 328). The argument between M.A. and Appellant then heated up and became physical. (T. at 328-330). She stated that she was trying to leave when Appellant tried to stop her from leaving and the two of them tumbled down the stairs, landing on the sidewalk and injuring her shoulder. (T. at 330-331). She stated that she sustained further injuries when she stumbled and fell into the bushes when she was trying to get back up. (T. at 331-332).

         {¶19} M.A. recalled that she then left the apartment complex in her vehicle and drove to a nearby Kroger parking lot. (T. at 337). She tried calling her brother, a sister-in-law, and a friend for assistance, but none of them answered. (T. at 338). She was able to reach her ex-husband Ricky. She told him she and Appellant had gotten into an argument. When Ricky arrived at the parking lot, she lied and told him Appellant had beat her up and asked him to take her to the hospital. (T. at 338).

         {¶20} Upon her arrival at the Fairfield Medical Center emergency room, M.A. told hospital personnel and a police officer that her boyfriend had assaulted her. (T. at 343).

         {¶21} Two days later on June 14, 2015, M.A. went to the Emergency Department at Hocking Valley Community Hospital because she was still in a lot of pain. (T. at 235, 345). Upon arrival, she saw a triage nurse and reported that she was there seeking medical attention because her boyfriend had beaten her up on Thursday night. (T. at 235). Additional x-rays revealed that she had a fractured shoulder, and she was instructed to see an orthopedic specialist. (T. at 264-280).

         {¶22} On June 22, 2015, M.A. went to an orthopedic specialist, and when asked about the cause of her injuries, she stated that she injured her shoulder when she fell. (T. at 346). She was accompanied to this appointment by Appellant. (T. at 346).

         {¶23} M.A. denied being physically harmed by Appellant, (T. at 347). She stated that she lied to her ex-husband about how she was injured because she wanted him to take her to the hospital. (T. at 338). She stated that she continued with the same lie with medical personnel because her ex-husband was present with her most of the time at the hospital. (T. at 339-340, 347). She stated that she also lied to the police officer. (T. at 347-348, 395). M.A. claimed that her ex-husband threatened to take her children away from her if she did not prosecute Appellant. (T. at 349). She further claimed that she finally quit lying when she saw the orthopedic doctor because she did not want Appellant to get in trouble for something he did not do. (T. at 346).

         {¶24} The State also played the audio/video recording from Officer Grafs body camera in open court wherein M.A. can be heard telling the officer "… things got out of hand. [Appellant] had threw me down several different times, you know, on the pavement (inaudible) and everything. … In the apartment (inaudible) all over. There's something done to my shoulder and my ribs. I can barely take a breath without it hurting really bad." (T. at 383). She also explained that she "drove that far [to the Kroger parking lot] just to get away from him" (T. at 384). She later stated again "… he had, you know, shoved me down a few times, I had hit him. And then that's when he actually started to hit me" and "… he had pushed me down on the sidewalk outside." (T. at 387).

         {¶25} M.A. admitted that after initially declining to sign a statement of domestic violence, she requested the officer return and she filled out a statement wherein she wrote "He did hit me, he kicked me several times and pushed me down on the pavement. " (T. at 400). She further admitted she never once told anyone on June 12, 2015, or June 14, 2015, that she fell down the stairs, but instead told everyone that her injuries were the result of Appellant assaulting her. (T. at 401-402).

         {¶26} In addition to the above testimony from M.A.'s ex-husband, hospital personnel and the responding police officer, the State called Suzanne Pelletier-Capitini, an expert on domestic violence and recantation.

         {¶27} The defense relied on the testimony of Appellant Matthew West, who denied assaulting M.A. and stated that her injuries were the result of her falling down the steps. He claimed that she was about half-way down the outside apartment steps when he was trying to stop her from leaving when he grabbed her shoulder and they both fell down the steps. (T. at 548). He stated that he did not see her stumble into the bushes, but did see her kneeling down by the bush, and that she had scratches on her face and her neck. (T. at 548-549).

         {¶28} On January 28, 2016, at the conclusion of the three-day trial, the jury returned a verdict finding Appellant guilty as charged on all counts.

         {¶29} On March 9, 2016, Appellant's sentencing hearing took place. The trial court found that Count Three and Count Four were allied offenses of similar import with Count One and Count Two and merged for the purposes of sentencing. The trial court found that Count One and Count Two were not allied offenses, and the State elected to have Appellant sentenced as to Counts One and Two.

         {¶30} The trial court sentenced Appellant to serve a prison term of four (4) years as to each count, to be served concurrently to one another. (Judgment Entry of Sentence, Fairfield C.P. No. 2015-CR-240, Mar. 15, 2016).

         {¶31} Appellant now appeals to this Court, assigning the following errors for review:

         ASSIGNMENTS OF ERROR

         {¶32} "I. THE STATE'S USE OF THE ALLEGED VICTIM'S UNSWORN ORAL STATEMENTS TO HER EX-HUSBAND, TO A POLICE OFFICER, AND TO MEDICAL PERSONNEL, AND EXTRINSIC EVIDENCE CONSISTING OF HER AUDIO/VIDEO RECORDED INTERVIEW, A POLICE REPORT, AND THE UN-REDACTED MEDICAL RECORDS, AS SUBSTANTIVE EVIDENCE OF DEFENDANT-APPELLANT'S GUILT, VIOLATED THE RULES OF EVIDENCE, AND WHEN CONSIDERED IN CONJUNCTION WITH THE TRIAL COURT'S FAILURE TO GIVE THE JURY A LIMITING INSTRUCTION, DEPRIVED HIM OF HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FUNDAMENTALLY FAIR TRIAL AND RELIABLE JURY VERDICT.

         {¶33} "II. THE STATE'S USE OF ANECDOTAL OPINION TESTIMONY OF A SOCIAL WORKER ON THE SUBJECT OF RECANTATION FOR THE PURPOSE OF PERSUADING THE JURY TO REJECT THE ALLEGED VICTIM'S EXCULPATORY IN COURT TESTIMONY AND ACCEPT HER PRIOR INCONSISTENT STATEMENTS AS SUBSTANTIVE PROOF OF DEFENDANT-APPELLANT'S GUILT VIOLATED THE RELEVANCY AND RELIABILITY REQUIREMENTS OF THE RULES OF EVIDENCE, AND DEPRIVED ...


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