Court of Appeals of Ohio, Fifth District, Fairfield
Appeal from the Court of Common Pleas, Case No. 15 CR 240
Plaintiff-Appellee GREGG MARX PROSECUTING ATTORNEY ANDREA K.
GREEN ASSISTANT PROSECUTOR
Defendant-Appellant DENNIS C. BELLI
JUDGES: Hon. Patricia A. Delaney, P. J. Hon. John W. Wise, J.
Hon. Earle E. Wise, Jr., J.
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.
Appellee is State of Ohio.
OF THE FACTS AND CASE
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).
The charges stemmed from an argument which took place on June
11, 2015 between Appellant Matthew West and his girlfriend
A jury trial commenced on January 26, 2016.
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.
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).
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).
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).
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).
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).
While at the hospital, Officer Graf also spoke with
M.A.'s ex-husband Ricky. (T. at 120).
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).
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).
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).
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
Prior to trial, M.A. had recanted the allegations made to
Officer Graf in a sworn statement. She was called as a
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).
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).
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).
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).
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).
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).
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).
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).
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.
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).
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.
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.
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).
Appellant now appeals to this Court, assigning the following
errors for review:
"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
"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