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State v. Fox

Court of Appeals of Ohio, Fifth District, Knox

May 22, 2018

STATE OF OHIO Plaintiff-Appellee
v.
JAMES E. FOX III Defendant-Appellant

          Criminal Appeal from the Municipal Court, Case No. 17 CRB 00129

          For Plaintiff-Appellee BRITTANY A. WHITNEY ASSISTANT DIRECTOR OF LAW

          For Defendant-Appellant JOHN A. DANKOVICH ASSISTANT PUBLIC DEFENDER

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

          OPINION

          Wise, John, P. J.

         {¶1} Defendant-Appellant James E. Fox, III, appeals his conviction on one count of Domestic Violence and one count of Assault following a jury trial in the Mount Vernon Municipal Court, Knox County.

         {¶2} Appellee is the State of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶3} The relevant procedural facts leading to this appeal are as follows.

         {¶4} On February 5, 2017, six-year-old S.F. returned home from a weekend at her father's house. S.F. normally returned from her father's at seven o'clock on Sunday evenings, but her aunt Melissa brought her home early. S.F.'s mother, Casey Beck, noticed that S.F. seemed sad and anxious to get away from her Aunt Melissa. S.F. did not give Aunt Melissa a hug before she left, and her mother could hardly get her to say "bye." (Tr. at 147-157).

         {¶5} When S.F. came through the front door, she told her mother that she had a loose tooth. Her mother observed that, unlike when S.F. had a loose tooth that past December, she did not seem excited. As Ms. Beck examined her daughter's tooth, she noticed that her lip was busted. S.F. then pushed past her and went into her great-grandmother's room. (Tr. at 147-157).

         {¶6} After S.F.'s aunt left, Ms. Beck put S.F. in the bathtub and asked her about her loose tooth and busted lip. S.F. told her mother that she "didn't remember what she was supposed to say." (Tr. at 151). Ms. Beck then called her mother, S.F.'s grandmother, who came to the house and talked with S.F. (Tr. at 151).

          {¶7} The two women then took S.F. to the Knox County Sheriff's Office where they met with Deputy Tim Knell. Deputy Knell observed the injury to S.F.'s lip to be fresh. Deputy Knell also noted that S.F. seemed frightened and subdued. Based on his interaction with S.F., her mother, and her grandmother, Deputy Knell called for back-up and went to the residence of S.F.'s father, James E. Fox, III, to arrest him for Domestic Violence and Assault. (Tr. at 160-165).

         {¶8} The following day, on February 6, 2017, Lindsey Anders, the school social worker at Cardington Elementary, stopped to chat with S.F. in the school lunchroom. Ms. Anders and S.F. had known each other for over a year; and Ms. Anders liked to check up on S.F. As they were chatting, S.F. told Ms. Anders that she had a loose tooth because of her Daddy. (Tr. at 181-183).

         {¶9} Later that same day, Ms. Beck took S.F. to Nationwide Children's Hospital. The emergency room triage nurse who met with S.F. on February 6, 2017, was Brittany Kaptur. During intake, S.F. stated to Nurse Kaptur that her tooth was loose because her Dad hit her in the face. Nurse Kaptur found S.F.'s injuries to be consistent with S.F.'s explanation. (Tr. at 190-195).

         {¶10} On April 5, 2017, Knox County Sheriff's Office Detective Sergeant Dan Bobo, who specializes in investigating crimes against children, interviewed A.F. at Dan Emmett Elementary School. A.F. and S.F. have the same father; and A.F. was present at Mr. Fox's home on February 5, 2017. Detective Bobo found A.F.'s version of events to corroborate S.F.'s explanation for how she received a loose tooth and busted lip on Sunday, February 5, 2017. (Tr. 118-140).

          {¶11} On February 6, 2017, Appellant was charged in the Mount Vernon Municipal Court with one count of Domestic Violence, in violation of R. C. §2919.25(A) and one count of Assault, in violation of R.C. §2903.13(A), both first-degree misdemeanors.

         {¶12} A jury trial was scheduled May 18, 2017. In the interim, a competency hearing was scheduled to determine whether S.F. and A.F., both under the age of ten years, were competent to testify. That hearing was held on April18, 2017.

         {¶13} In an April 28, 2017, entry filed by Judge John C. Thatcher of the Mount Vernon Municipal Court, both children were found competent to testify at trial.

         {¶14} On May 18, 2017, a jury trial commenced in this matter. At trial, the jury heard testimony from S.F., A.F., Detective Sergeant Dan Bobo, Casey Beck, Deputy Tim Knell, Elizabeth Minser, Lindsey Anders and Brittany Kaptur on behalf of the State. The jury also heard testimony from Chris Fox, Whitney Barnes, Lisa Fox, James Fox, II, Melissa Fox, Brandon Spaulding and Appellant James Fox, III, on behalf of Appellant.

         {¶15} Following deliberations, after the conclusion of all evidence, the jury found Appellant guilty on both counts of Domestic Violence and Assault.

         {¶16} Appellant now appeals, raising the following Assignments of Error:

         ASSIGNMENTS ...


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