Court of Appeals of Ohio, Twelfth District, Clermont
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2018-CR-000074
Vincent Faris, Nicholas A. Horton, for appellee
Stagnaro, Hannigan & Koop, Michaela M. Stagnaro, for
1} Appellant, Jason Robert Grimm, appeals his
conviction in the Clermont County Court of Common Pleas after
a jury found him guilty of one count of domestic violence.
Grimm also appeals the trial court's decision sentencing
him to serve a mandatory 15-month prison term. For the
reasons outlined below, we affirm.
2} On January 25, 2018, the Clermont County Grand
Jury returned an indictment charging Grimm with domestic
violence in violation of R.C. 2919.25(A). Due to Grimm's
prior domestic violence conviction, the offense was charged
as a fourth-degree felony pursuant to R.C. 2919.25(D)(3). The
charge arose after it was alleged Grimm caused physical harm
to the victim, B.J., his then seven-months-pregnant
girlfriend. Because there could be no dispute that Grimm knew
B.J. was pregnant when the alleged domestic violence incident
occurred, the offense carried with it a mandatory term of
"at least" six months in prison in accordance with
3} On August 28 and 29, 2018, the matter proceeded
to a two-day jury trial. During trial, the jury heard
testimony from several witnesses. These witnesses included
B.J., Officer Geremy Grooms of the Union Township Police
Department, and the two nurses who treated B.J. for her
injuries, Angela Gonzalez and Judith Faessler. Neither Grimm
nor any other witness testified in Grimm's defense.
4} As part of her testimony, B.J. testified that
Grimm "busted" her lip, picked her up by her neck,
and slammed her into the wall of their apartment after she
and Grimm returned home from a festival held in Cincinnati.
This caused B.J.'s left side of her body and pregnant
belly to go through the wall and leave an imprint. After
slamming B.J. into the wall, Grimm then strangled B.J. and
struck her in the face and ribs. Grimm's attack
eventually stopped after B.J. was able to retrieve her cell
phone and call the police Upon learning B.J. had called the
police, Grimm fled the scene and drove to his mother's
house. Photographs and a short video recording depicting
Grimm aggressively coming toward B.J. followed by several
smacking sounds corroborates B.J.'s
5} After both parties rested, the trial court
provided its final instructions to the jury. This included an
instruction on flight as evidence of Grimm's
consciousness of guilt. Following deliberations, the jury
returned a verdict finding Grimm guilty as charged. The trial
court then sentenced Grimm to serve a mandatory 15-month
prison term. The trial court issued its sentencing decision
after considering the principles and purposes of felony
sentencing as set forth in R.C. 2929.11 and the serious and
recidivism factors listed in R.C. 2929.12. This is confirmed
by the sentencing hearing transcript and the trial
court's sentencing entry, wherein the trial court
specifically stated that it had reviewed and considered both
statutes prior to issuing its sentencing decision.
6} Grimm now appeals his conviction and sentence,
raising six assignments of error for review.
7} Assignment of Error No. 1:
8} THE TRIAL COURT ERRED AS A MATTER OF LAW BY
ALLOWING THE STATE TO INTRODUCE HEARSAY STATEMENTS WHICH
VIOLATED APPELLANT'S RIGHT TO A FAIR TRIAL.
9} In his first assignment of error, Grimm argues
the trial court erred by admitting several alleged hearsay
statements from Officer Grooms at trial. Grimm also argues
the trial court erred by admitting other alleged hearsay
statements from nurses Gonzales and Faessler. Grimm
acknowledges that he objected to only "some" of
these challenged statements, thereby waiving all but plain
error as to those statements to which he did not object. But,
even when applying an abuse of discretion standard of review,
we find no merit to any of Grimm's arguments raised
10} When properly objected to, this court reviews a
trial court's decision to admit or exclude evidence under
an abuse of discretion standard. State v. Gerde,
12th Dist. Clermont No. CA2016-11-077, 2017-Ohio-7464, ¶
8. An abuse of discretion connotes more than an error of law
or judgment; it implies the trial court's decision was
unreasonable, arbitrary, or unconscionable. State v.
Grindstaff, 12th Dist. Clermont No. CA2013-09-074,
2014-Ohio-2581, ¶ 21. A decision is unreasonable when it
is "unsupported by a sound reasoning process."
State v. Abdullah, 10th Dist. Franklin No. 07AP-427,
2007-Ohio-7010, ¶ 16, citing AAAA Ents., Inc. v.
River Place Community Urban Redevelopment Corp., 50 Ohio
St.3d 157, 161 (1990). This court "should not disturb
evidentiary decisions in the absence of an abuse of
discretion that has created material prejudice."
State v. Boles, 12th Dist. Brown No. CA2012-06-012,
2013-Ohio-5202, ¶ 14, citing State v. Smith,
12th Dist. Fayette No. CA2007-10-035, 2008-Ohio-5931, ¶
11} Grimm initially argues the trial court erred by
permitting Officer Grooms to testify as to B.J.'s
statements to him at the scene approximately five minutes
after she called the police. However, contrary to Grimm's
claim, B.J.'s statements to Officer Grooms fall squarely
within the excited utterance exception to the hearsay rule.
Pursuant to Evid.R. 803(2), a hearsay statement is admissible
as an excited utterance if: "(1) there was an event
startling enough to produce a nervous excitement in the
declarant; (2) the statement was made while under the stress
of excitement caused by the event; (3) the statement related
to the startling event; and (4) the declarant must have had
an opportunity to personally observe the startling
event." State v. Worth, 10th Dist. Franklin No.
10AP1125, 2012-Ohio-666, ¶ 22, citing State v.
Taylor, 66 Ohio St.3d 295, 300-301 (1993). Given Officer
Grooms' testimony that B.J. was "very
emotional," "clearly upset," crying, scared,
red in the face, and exhibiting signs that she "had been
in an altercation," the trial court did not abuse its
discretion by admitting Officer Grooms' challenged
testimony in accordance with Evid.R. 803(2). Grimm's
claim otherwise lacks merit.
12} Also lacking merit are Grimm's claims the
trial court erred by permitting nurses Gonzalez and Faessler
to testify regarding B.J.'s statements she made to them
at the hospital while seeking treatment for herself and her
unborn baby. Again, contrary to Grimm's claim, the vast
majority of B.J.'s statements made to nurses Gonzalez and
Faessler fall well within the "medical treatment"
exception to the hearsay rule under Evid.R. 803(4). Pursuant
to that rule, an exception exists for "[statements made
for purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the
cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment." "A
fundamental assumption underlying the medical-treatment
exception is that this particular hearsay is reliable."
State v. Wagers, 12th Dist. Preble No.
CA2009-06-018, 2010-Ohio-2311, ¶ 51. This exception
applies even to statements made to psychological caregivers,
therapists, and social workers. State v. Muttart,
116 Ohio St.3d 5, 2007-Ohio-5267, ¶ 56.
13} The only questionable statement would be
B.J.'s statements to nurses Gonzalez and Faessler naming
Grimm as her attacker. However, while a question may exist as
to the admissibility of this testimony, B.J. specifically
testified that it was Grimm who caused her injuries. The
record also contains a short video recording depicting Grimm
aggressively coming toward B.J. followed by several smacking
sounds. This evidence alleviates any doubt as to the identity
of B.J.'s alleged attacker, thereby rendering any error
the trial court may have made by admitting this evidence, at
worst, harmless. "A reviewing court properly finds the
erroneous admission of evidence harmless error where there is
overwhelming evidence of guilt or some other indicia the
error did not contribute to the conviction." State
v. Rowley, 12th Dist. Clinton No. CA2016-10-019,
2017-Ohio-5850, ¶ 24, citing State v. Pottorf,
12th Dist. Warren No. CA2014-03-046, 2014-Ohio-5399, ¶
20. Therefore, finding no merit to any of the arguments
raised herein, Grimm's first assignment of error is
14} Assignment of Error No. 2:
15} THE TRIAL COURT ERRED AS A MATTER OF LAW BY
PERMITTING OTHER ACTS TESTIMONY INTO EVIDENCE THUS