Court of Appeals of Ohio, Second District, Montgomery
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
DENISE BRADLEY, Atty. Reg. No. 0066141, 130 W. Second Street,
Suite 1818, Dayton, Ohio 45440 Attorney for
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
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
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
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?
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.]?
Q. Was there a domestic violence charge against him?
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 ...