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State v. Evick

Court of Appeals of Ohio, Twelfth District, Clermont

July 8, 2019

STATE OF OHIO, Appellee,
v.
JASON TODD EVICK, Appellant.

          CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2017 CR 000191

          D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, for appellee

          Craig A. Newburger, for appellant

          OPINION

          HENDRICKSON, P.J.

         {¶ 1} Appellant, Jason Todd Evick, appeals his convictions in the Clermont County Court of Common Pleas for domestic violence and abduction. For the reasons stated below, this court affirms his convictions.

         {¶ 2} In early January 2017, a woman (the "victim") used the social media website Facebook to request a ride home from work from her network of online "friends." Appellant responded to the request and offered to drive her home. The victim accepted. As a result of this meeting, appellant and the victim became romantically involved. Their relationship continued for the next two and a half months. Initially, the two lived at the victim's step- father's house. However, they eventually had to leave her step-father's residence and find other accommodations. While staying with friends or at hotel rooms, appellant and the victim continued to live together. The two eventually "settled" at a small campground style trailer park in Clinton County, Ohio.

         {¶ 3} According to the victim, throughout their relationship, appellant would physically and mentally abuse her by kicking and punching her, threatening her, and otherwise exerting control over her. At one point, appellant told her that he could get away with murder because he could easily dispose of a body in a pond located on his friend's land. Additionally, appellant told the victim he was familiar with the smell of burning skin.

         {¶ 4} In mid-March 2017, the victim asked appellant to take her to the hospital. Appellant ostensibly agreed and drove the victim into Clermont County. While on their journey, appellant decided to make two unrelated stops, one at his mother's house and the other at his mother's boyfriend's workplace. After the last stop, the two proceeded again to drive around Clermont County. When appellant exited the interstate highway in Miami Township the victim suspected that appellant was not taking her to the hospital, but was instead heading to his friend's property with the pond. At that point, the victim asked appellant where they were going and why they exited from the highway. Instead of answering, appellant punched the victim in the head.

         {¶ 5} As the car came to a stop at a traffic signal, the victim, fearing for her safety, fled from appellant's vehicle and ran into a nearby IHOP restaurant. Upon entering the restaurant, she attempted to hide behind one of the hostesses. Another IHOP employee then brought the victim to the back of the restaurant and provided her with a cellular telephone to call 911 - which she did. During this time, appellant came into the restaurant to look for the victim, but quickly left. Law enforcement and emergency medical services subsequently arrived on scene.

         {¶ 6} In addition to the victim's testimony, two of the IHOP employees testified about their interactions with the victim. They both testified the victim appeared afraid and that her face was red and swollen. Moreover, the responding police officer and emergency medical technicians also testified about the victim's physical injuries, as well as her anxious and fearful demeanor. Finally, the prosecutor presented, and had admitted into evidence, IHOP's surveillance video showing the victim enter the restaurant, the victim's 911 call, and photographs of the victim's injuries.

         {¶ 7} Appellant was indicted for domestic violence and abduction, both charged as third-degree felonies. A jury found appellant guilty of both offenses and the trial court sentenced appellant to prison.

         {¶ 8} Appellant now appeals his conviction, raising four assignments of error.

         {¶ 9} Assignment of Error No. 1:

         {¶ 10} THE TRIAL COURT ERRED BY ADMITTING OTHER BAD ACTS EVIDENCE AND IMPROPERLY INSTRUCTING JURY ABOUT SAID ACTS.

         {¶ 11} In his first assignment of error, appellant contends the trial court abused its discretion by allowing the victim to testify to several past instances of physical and sexual abuse because the testimony was not admissible under Evid.R. 404(B) and was unfairly prejudicial. Further, appellant argues the trial court erred because the jury instructions on this evidence differed from the court's evidentiary ruling.

         {¶ 12} A trial court has broad discretion to admit or exclude evidence. State v. Hines, 12th Dist. Clermont CA2017-06-025, 2018-Ohio-1780, ¶ 52. As such, a reviewing court will not disturb that decision absent an abuse of discretion that creates material prejudice. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 66; accord State v. Martin, 12th Dist. Butler No. CA2007-01-022, 2007-Ohio-7073, ¶ 9. An abuse of discretion is more than an error of judgment or law, it signifies that the trial court's decision was unreasonable, arbitrary, or unconscionable. State v. Bennett, 12th Dist. Butler No. CA2017-09-138, 2018-Ohio-3623, ¶ 27.

         {¶ 13} Evidence of an accused's other acts, wrongs, or crimes is not admissible when the sole purpose of that evidence is to prove the accused has a propensity to commit crime or has acted in conformity with his or her bad character. State v. Hignite, 12th Dist. Warren No. CA2015-07-063, 2015-Ohio-5204, ¶ 17; accord State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 68. However, pursuant to Evid.R. 404(B) and R.C. 2945.59, evidence of those "other acts" is admissible if there is substantial proof the acts were committed by the accused and "the evidence tends to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." State v. Lowe, 69 Ohio St.3d 527, 530 (1994). Moreover, Evid.R. 404(B) does not limit the "other purposes" to those outlined in the rule. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 17.

         {¶ 14} In Williams, the Ohio Supreme Court created a three-part test a trial court must conduct when determining whether the evidence of other acts is admissible. State v. Tench, Slip Opinion No. 2018-Ohio-5205, ¶ 139, citing Williams at ¶ 20. First, the court must decide whether the other acts evidence is relevant, that is, "whether the evidence tends to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence." Id. Second, the court must decide if the evidence is used for a "legitimate other purpose" or merely to show the character of the person and conduct in conformity to that character. Id. ...


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