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State v. Mahe

Court of Appeals of Ohio, Second District, Montgomery

September 8, 2017

STATE OF OHIO Plaintiff-Appellee
v.
GUSTAVO MAHE Defendant-Appellant

         T.C. NO. 16-CRB-5321 (Criminal Appeal from Municipal Court)

          GARRETT P. BAKER, Atty. Reg. No. 0084416, Assistant City Prosecutor, 335 W. Third Street, Rm. 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

          KAREN DENISE BRADLEY, Atty. Reg. No. 0066141, 130 W. Second Street, Suite 1818, Dayton, Ohio 45440 Attorney for Defendant-Appellant

          OPINION

          DONOVAN, J.

         {¶ 1} This matter is before the Court on the Notice of Appeal of Gustavo Mahe, filed October 20, 2016. Mahe appeals from his September 20, 2016 judgment entry of conviction on one count of assault, in violation of R.C. 2903.13(A), and one count of domestic violence, in violation of R.C. 2919.25(A)(1), both misdemeanors of the first degree. After merger, the State elected to proceed to sentencing on the domestic violence offense. The municipal court sentenced Mahe to 180 days, suspended 134 days, and gave Mahe credit for 46 days. Mahe was further sentenced to 18 months of intensive supervision and ordered to have no contact with the victim, J.R., his former girlfriend. Mahe was also fined $250.00 with $100.00 suspended. We hereby affirm the judgment of the trial court.

         {¶ 2} Mahe was charged with the above offenses on August 7, 2016, and he pled not guilty on August 8, 2016. On September 13, 2016, Mahe filed a "Jury Demand, " which the State opposed on September 14, 2016, asserting that Mahe waived his right to a trial by jury. On September 14, 2016, Mahe filed "Defendant's Motion in Limine Re: Video Tape, " seeking to exclude video evidence of the incident taken from surveillance cameras in the parties' home and provided to the State by J.R. On September 19, 2016, the court overruled Mahe's jury demand as untimely.

         {¶ 3} At the start of trial, the court addressed Mahe's liminal motion. Defense counsel asserted that she filed the motion because the videotape at issue was "from a motion sensor video and only portions of it were provided. There is a significant bit that was left out, so it is our position that the video should be kept out because any exculpatory evidence that would have been shown has been purposefully deleted, is no longer available and is an inaccurate portrayal of the events that happened that day." The State responded that J.R. "is expected to testify about how the machine works, how it records, how she obtained that video, and her involvement in any deletion or alteration of the video and we would expect that after laying that foundation the court would find * * * that it should be admitted for the court's consideration." The trial court indicated that it would "allow testimony regarding the system, how it works, and then I'll make a final decision as to whether or not that is enough for me to believe that this fairly and accurately represents what took place."

         {¶ 4} J.R. testified through an interpreter that she has known Mahe for a year and half, and that they had been in a romantic relationship. She stated that on the date of the offenses, August 6, 2016, she and Mahe resided together on Monmouth Street. J.R. testified that she and Mahe shared household responsibilities and expenses in the home. According to her testimony, J.R. contacted the Dayton Police Department around 10:00 p.m. on the date of the incident after Mahe "pushed me, hit me, and tried to choke me." She stated that she and Mahe had argued verbally for five minutes about "jealousy" prior to the attack, and that she did not threaten Mahe in the course of the argument. J.R. testified that Mahe initially pushed her in the living room with both hands on her shoulders, causing her to fall back onto a couch. She stated that at the time he "was saying bad words like I was a whore." J.R. testified that Mahe then began choking her with both hands, and that she put her hands on him for the first time in an attempt to defend herself. She stated that she was able to breathe "a little bit, " and that he was hurting her. She stated that Mahe accused her of cheating on him, and that she "tried to get away" and "to get him to get off." J.R. stated that Mahe then hit her on both sides of her face with his fist, and that she "screamed for somebody to listen and I told him to go away." She stated that the blows were painful. J.R. stated that Mahe left the home after hitting her in the face.

         {¶ 5} J.R. testified that it took police officers ten minutes to arrive at the home, and that she told them what happened. She stated that they photographed her, and she identified three photographs which she testified depict redness on her left and right cheeks, redness on her chest and neck, and a mark on her lip as a result of the attack.

         {¶ 6} J.R. testified that she has two cameras in her living room for security due to a previous theft at her home. She stated that the cameras had been there for two months before the incident, and that Mahe knew the cameras were there. According to J.R., the cameras are battery-operated and connected to WI-FI, and she monitors them through her cell phone. She stated that they operate 24 hours a day, and that they begin recording when they detect motion. J.R. stated that if you don't "unload" the recordings, they will be erased.

         {¶ 7} J.R. testified that she looked on her phone for the recording from the two cameras after the police left her home. She testified that she downloaded the entire video that was on the system to her phone, and that she did not cut or erase any part of it. J.R. testified that she sent the entire recording to the prosecutor the next day via email, without editing or altering it in any way.

         {¶ 8} The State then asked the court for permission to play the videotape that the prosecutor received via email from J.R. over Mahe's objection. In response to questioning by the court, J.R. stated that the original recording remains on her phone, which she brought to court with her. The court then indicated that it wanted to compare the video received by the State to the video on J.R.'s phone. After doing so, the court indicated that "they look the same to me." Counsel for Mahe then acknowledged that "they appear to be the same as the ones the prosecutor has provided but again it still is not a full picture of the evening." The court indicated that the State could question J.R. about the video "and then the weight of the video will depend on all the other testimony." J.R. testified that the video does not depict the entire incident from beginning to end "because it only detected the motion, " but that the video accurately depicts what happened on the night of the incident. The court admitted the photographs of J.R. taken by responding police officers without objection, as well as the video, over objection.

         {¶ 9} On cross-examination, when asked about her testimony about "jealousy, " J.R. testified that the argument involved her job, and she stated that she works "on slot machines and they require me to sell machines internationally so I have to talk to people that speak Spanish and he thinks that I'm going with them." She stated that when Mahe held her down on the couch she tried to bite him. She stated that she did not tell the police about the video because she was nervous and scared at the time and "didn't remember about it."

         {¶ 10} J.R. testified that she is in this country on a student visa from Mexico. She stated, "right now I am working but I will go to school pretty soon." She stated that she last attended school in 2011, "* * * and I was studying to be a nurse but I got out because of economical [sic] problems." J.R. acknowledged that she is "out of status" since she is not currently in school. The following exchange occurred:

Q. Is it your intent to become a permanent resident of this country?
A. Yes.
Q. Do you have any plan on how you are going to do that?
THE STATE: Your Honor, I'm going to object. We are getting into stuff that's not going to her motive. This is getting beyond motive.
THE COURT: Yes, I agree. I would sustain.
Q. Are you aware of the visa process for prosecuting a crime?
A. Yes.
Q. Have you tried to do that before with your ex-husband?
A. No, I believe that like a student I cannot arrange that, like to become a resident [sic].
Q. Were you married to [I.A.]?
A. Yes.
Q. Was there a domestic violence charge against him?
A. No.
Q. Were there any violent charges against him?
THE STATE: Your Honor, I'm going to object. I don't know the relevance of a previous relationship and someone that didn't have criminal charges as ...

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