State v. Belcher

[Cite as State v. Belcher, 2013-Ohio-1234.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO

Plaintiff-Appellee

v.

JESSICA L. BELCHER

Defendant-Appellant

Appellate Case No. 24968

Trial Court Case No. 11-CRB-1273

(Criminal Appeal from
(Municipal Court)
...........

OPINION

Rendered on the 29th day of March, 2013.

...........

JOHN J. DANISH, Atty. Reg. No. 0046639, City Attorney, STEPHANIE L. COOK, Atty. Reg. No.
0067101, Chief Prosecutor, by TROY B. DANIELS, Atty. Reg. No. 0084957, Assistant City
Prosecutor, Dayton City Prosecutor’s Office, 335 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee

TINA M. MCFALL, Atty. Reg. No. 0082586, Assistant Public Defender, Law Office of the Public
 2

Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellant

.............

WELBAUM, J.

{¶ 1} Defendant-Appellant, Jessica Belcher, appeals from her conviction and sentence

on two counts of Assault, following a jury trial. Belcher contends that the trial court abused its

discretion by refusing to admit evidence of various policies and procedures of the hospital where

the assault took place. Belcher also contends that the jury’s verdict was against the manifest

weight of the evidence.

{¶ 2} In addition, Belcher maintains that her constitutional right to a public trial was

violated when the trial court scheduled trial on Saturday, that her constitutional right of

confrontation was denied, and that error occurred when the trial court refused to instruct the jury

on self-defense and defense of others. Finally, Belcher argues that the cumulative effect of the

first five errors denied her of due process rights to a fair trial.

{¶ 3} We conclude that the trial court did not abuse its discretion in refusing to admit

evidence pertaining to hospital policies and procedures, because the evidence was not relevant.

The jury verdict was also not against the manifest weight of the evidence.

{¶ 4} We further conclude that the court did not violate Belcher’s constitutional rights

by holding court on Saturday, nor did the court deny Belcher’s right of confrontation. In

addition, the court correctly refused to instruct the jury on self-defense and defense of others, as

Belcher failed to introduce sufficient evidence, which, if believed, would raise a question in the

minds of reasonable persons concerning the existence of these issues. Finally, there was no

error, so there could be no cumulative error. Accordingly, the judgment of the trial court is
 3

affirmed.

I. Facts and Course of Proceedings

{¶ 5} The charges against Jessica Belcher arose from a melee that occurred in the

Emergency Room of Miami Valley Hospital (MVH) in the early morning hours of February 19,

2011. Belcher’s friend, Matthew Wiley, had been the victim of an assault that evening, and had

sought medical treatment at MVH. Dr. Reynolds, an emergency room doctor, saw Wiley at

about 2:17 a.m., and decided that Wiley needed a CAT scan. Wiley had areas of swelling

around his eyes and some lacerations to the forehead and brow. Because Reynolds suspected

that Wiley was intoxicated, he also ordered an alcohol screen, which showed that Wiley had a

blood alcohol level between .18 and .19. Clinically, Wiley would have been considered

intoxicated.

{¶ 6} A CAT scan was performed, per Reynolds’ instructions. Subsequently, MVH

nurse, Julie Wooddell, came into Wiley’s room. Belcher and another friend, Michelle Wells,

were also in the room, visiting with Wiley.

{¶ 7} Wooddell was the nurse assigned to Wiley, but she had been at lunch when

Wiley arrived. Wooddell returned from lunch between 2:30 a.m. and 2:40 a.m., checked the

computer, and learned that she had a new patient, Wiley, in Room 32. Wooddell went to Room

32 and introduced herself. She observed that Wiley had injuries above his right eye and had a

cut with some bleeding. When Wooddell entered the room, Wiley got up out of the bed and was

stumbling around the side of the bed. Wiley was pacing around a bit and said he had to “pee.”

Wooddell helped him back to bed because he was very unsteady. Wooddell concluded that
 4

Wiley was under the influence of alcohol because of his unsteady gait and the constriction of his

pupils. She also could smell a fairly strong odor of alcohol. Wooddell told Wiley that he

needed to get back in bed for his safety.

{¶ 8} The nearest restroom was some distance from Room 32, and Wooddell was

worried that Wiley would injure himself if he walked that distance. Accordingly, she offered

Wiley a disposable urinal that is kept in patient rooms. Wiley took the urinal and threw it back

at Wooddell, raising his voice and appearing to become more agitated. The visitors were also

egging Wiley on, stating that he could get up and use the bathroom himself and that they would

help him. After Wiley threw the urinal at Wooddell, he said he would wait a bit. Wooddell

finished her assessment, noticing that the women with Wiley also smelled of alcohol and were a

bit unsteady on their feet.

{¶ 9} After Wooddell finished the assessment, Wiley said that he had to pee really

bad. When Wooddell gave him another urinal, he ripped it out of her hands and threw it up

towards her chest. Wiley was raising his voice, saying he was not a child. Wooddell was in the

process of stepping out to get someone else because she no longer felt safe in the room after

Wiley had thrown the urinal at her twice. Just then, however, another nurse, Shane McDermott,

stepped into the room.

{¶ 10} McDermott had been at lunch and was at the nurses’ station logging in when he

heard a lot of yelling, screaming, and cursing going on in Room 32, which was across from the

nurses’ station. McDermott also heard something being thrown in Room 32. McDermott asked

the unit coordinator to call security and went to Room 32. He saw Wooddell, a patient, and two

visitors in the room. The patient and one of the female visitors, identified as Belcher, were
 5

yelling and screaming. Wooddell was to the left of the bed getting the urinal off the floor.

McDermott asked Wooddell what was going on, and she told him that the patient had to pee and

wanted to get up, but that she would not let him get up to use the restroom because he was

intoxicated.

{¶ 11} McDermott told Belcher that they were not going to let Wiley up to go the

bathroom because he was intoxicated, had obviously been in a fight, and had a head injury. At

that point, Belcher was screaming and saying things like, “[Y]ou don’t treat him like an f***ing

dog, you can’t treat him like a f***ing dog, he can go.” Trial Transcript, Volume 4, p. 517.

{¶ 12} The agitation in the room was already at a very high level and increased even

more when McDermott came in. Wiley had mentioned three or four times that he wanted to

leave the hospital, but Wooddell had told him that he could not leave because he was intoxicated.

{¶ 13} During these events, MVH emergency technician, Beth Bachmann, was

standing outside Room 32, watching. Bachmann’s attention had been drawn by the loud talking

and cursing of the two visitors. In addition, Wiley was intoxicated, loud, and belligerent, and

was cursing loudly. Bachmann stood outside for a minute to see if the nurses would need an

extra pair of hands.

{¶ 14} Kasey Koeser, another MVH emergency technician, was in the area of the

nursing station. Her attention was directed towards Room 32 because she heard the patient

screaming and also heard the charge nurse, Marlene Hey, calling for campus police to come to

bedside. Koeser saw the patient sitting on the bed, and also saw that two female visitors and

two nurses were in the room. Koeser testified that McDermott was attempting to defuse the

situation and get the patient to urinate in the urinal, but was not successful.
 6

{¶ 15} Wooddell, McDermott, Bachmann, and Koeser all testified that Wiley

suddenly jumped out of the bed, swinging or flailing his arms at McDermott. According to

McDermott, he did not know if Wiley was swinging or trying to shove him out of the way, but

Wiley’s arm was coming at him with a closed fist, so he moved to the side. Wiley then jumped

off the bed and took a swing, and McDermott stepped aside. Wiley pushed a cart with his arm

and came out of the room to where the charge nurse was standing, looking shocked because a

man was coming into the hallway out of control.

{¶ 16} McDermott testified that he followed Wiley out of the room because Wiley was

coming out with his arms flailing. It was then that McDermott grabbed Wiley by the wrist.

According to Koeser, Wiley tried to hit McDermott at least three times after McDermott grabbed

his wrist, and McDermott then put Wiley’s face against the wall between Rooms 32 and 34.

Wiley tried to get away, and both McDermott and Wiley ended up on the floor. McDermott was

unsure how they got on the ground and thought their legs may have become tangled. Once they

were on the ground, McDermott intentionally held Wiley there. While they were on the ground,

Wiley tried to elbow, punch, and kick McDermott. McDermott was trying to use his body

weight to hold Wiley down. McDermott was able to get Wiley’s upper body under control, but

Wiley’s legs were still kicking. Eventually, an orthopedic technician, Mark Huss, came over

and sat on Wiley’s legs. After Huss got on Wiley’s legs, Wiley was bending his knees up, trying

to kick Huss.

{¶ 17} While these events were happening, the two female visitors, Belcher and Wells,

had poked their heads out of the room to ask what was going on. McDermott had his back to

them, struggling with Wiley on the floor. Belcher then came out of the room, yelling and
 7

heading toward McDermott. Belcher was saying, “Get off of him. Leave him alone. Don’t

touch him.” Trial Transcript, Volume 2, p. 295 (referring to leaving Wiley alone). Bachmann

told Belcher and Wells that she needed to take Belcher and Wells to the waiting room, and that

they could not be in the patient area any longer. Bachmann said this because the combination of

drunk patients and drunk visitors is problematic; they feed off each other. If one gets agitated,

the others do as well. Based on Belcher’s slurred speech and behavior, Bachmann believed that

Belcher was intoxicated.

{¶ 18} Bachmann stepped in front of Belcher to try and stop her from going to where

McDermott and Wiley were struggling. However, Belcher grabbed Bachmann and pushed her.

Bachmann went backwards, fell, and slid about three feet across the floor in a direction away

from where the men were struggling. Belcher went down to the ground with Bachmann, landing

beside or on top of Bachmann.

{¶ 19} Koeser was also standing outside Room 32 and saw Belcher push Bachmann.

Koeser grabbed Belcher by the back of her jeans and lifted her off Bachmann. At this point,

Belcher was yelling and cussing, saying, “Get the f*ck off him, you are hurting him.” Trial

Transcript, Volume 3, p. 364 (referring again to Wiley.)

{¶ 20} Koeser made Belcher stand up. She still had Belcher by the pants and pushed

or helped Belcher back to Room 32. During this time, Belcher continued to struggle with

Koeser. When they got into the room, Koeser placed Belcher up against the wall. At this point,

Belcher had her fist clenched, was pivoting back and forth, and was trying to hit Koeser.

Belcher swung at Koeser at least three times. Koeser could not recall if Belcher was actually

successful in striking her, but two eye-witnesses (Bachmann and Tonya Wetzell, another MVH
 8

emergency technician) both testified to having seen Belcher hit Koeser.

{¶ 21} At this point, the campus police arrived and took Belcher out of the room, to the

MVH dispatch center. Koeser realized she had injuries when she stepped out of the room. Her

right ear was hot and she had blood on her fingers after she felt her ear. Koeser did not

previously have an injury to her ear.

{¶ 22} In the meantime, out in the hallway, Wiley had continued to struggle with

McDermott and Huss until security arrived. Wooddell then noticed that Wiley was not

breathing and told McDermott and Huss to get off. Wooddell went to Wiley’s head and held it

in a C-spine position so that they could turn him over and see what was going on. There was also

a decent amount of blood on the floor, from Wiley’s cut, which had apparently reopened.

{¶ 23} Wooddell asked Dr. Reynolds to come and look at Wiley. When Dr. Reynolds

came over, Wiley was unconscious. Wiley was then lifted onto a cot and was taken into Room

36, which was a trauma bay. When Dr. Reynolds checked Wiley about thirty seconds later,

Wiley had a pulse and was breathing. Wiley was placed in a hard cervical collar and was also

given oxygen. He was then given a second CAT scan, which indicated that he had not sustained

any additional injuries. Wiley was eventually returned to Room 32, and apologized for attacking

the nurses and getting out of bed.

{¶ 24} After the incident occurred, MVH campus police called the Dayton Police

Department, which dispatched Detective William Jones. When Jones arrived at the MVH

dispatch center shortly after 3:00 a.m., Belcher was sitting handcuffed in an open area. MVH

Sergeant Van Dohre told Jones what had happened. Jones then spoke with Belcher, explained

that she was being charged with assault, and administered Miranda warnings. According to
 9

Jones, Belcher apologized for assaulting the nurses, and said that the incident had gotten out of

hand and was an accident. Belcher did not specify whom she had assaulted, and she was not

crying or upset. Jones arranged for another crew to transport Belcher to jail, and then went on to

speak with the nurses and the doctor. Jones spoke to McDermott, Bachmann, and Koeser, and

arranged for all the witnesses to make written statements.

{¶ 25} Belcher was subsequently charged with two counts of first-degree misdemeanor

Assault in Dayton Municipal Court. After several continuances were granted, the case was tried

to a jury beginning on Thursday, October 27, 2011, and concluding on Saturday, October 29,

2011. Belcher was found guilty on both counts and was sentenced to 180 days jail on each

count. She was given one day of jail credit, with 179 days suspended, and was sentenced to two

years of basic supervision. In addition, Belcher was required to pay court costs and fines and

was required to complete anger management and alcohol treatment. Belcher appeals from her

conviction and sentence.

II. Did the Trial Court Err in Refusing to Admit Evidence of

MVH Policies and Procedures?

{¶ 26} Belcher’s First Assignment of Error states that:

The trial court abused its discretion when it barred the defendant from

offering evidence of Miami Valley Hospital[’]s policies and procedures and CPI

training compliance.

{¶ 27} Under this assignment of error, Belcher contends that the trial court erred in

refusing to admit evidence pertaining to the compliance of witnesses with MVH’s policies and
 10

procedures, and with Crisis Prevention Institute’s non-violent crisis prevention intervention

(CPI) training. Belcher maintains that this evidence was relevant to show witness bias and to

establish that the injury was caused by poorly-trained employees who used non-approved

restraint techniques. Belcher further argues that Wiley and Belcher were not “first aggressors.”

Rather, she claims that McDermott was the first aggressor when he improperly restrained Belcher

to the floor using deadly force.

{¶ 28} The State filed a motion in limine prior to trial, asking the court to exclude

evidence pertaining to any witness’s compliance with MVH policies or with CPI training.

According to the State, CPI training standards are irrelevant and would also be confusing to the

jury, because they hold people to higher standards than anyone else would be required to observe

in an assault situation. In response, Belcher argued that if the result of the positions in which

Wiley was placed can be fatal, Wiley had a right to defend against that deadly force, and Belcher

had a right to defend Wiley. Belcher also argued that if Wiley had a right to leave the hospital

pursuant to its policy about leaving against medical advice, MVH employees had no right to stop

him by placing him in a position that could cause his death. The court found these policies

irrelevant and sustained the motion in limine. During the trial, Belcher was allowed to question

the MVH employee witnesses about whether they had taken CPI training. The court did not

permit further questions on the CPI training, but did allow Belcher to make proffers about the

excluded evidence.

{¶ 29} To evaluate this argument, we start with the general proposition that “[a] trial

court has broad discretion in determining whether to admit or exclude evidence. Absent an

abuse of discretion that materially prejudices a party, the trial court's decision will stand.”
 11

Krischbaum v. Dillon, 58 Ohio St.3d 58, 66, 567 N.E.2d 1291 (1991), citing State v. Withers 44

Ohio St.2d 53, 55, 337 N.E.2d 780 (1975). An abuse of discretion occurs when a trial court

“makes a decision that is unreasonable, arbitrary, or unconscionable.” Huntington Natl. Bank v.

Burch, 157 Ohio App.3d 71, 2004-Ohio-2046, 809 N.E.2d 55, ¶ 14 (2d Dist.), citing Blakemore

v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶ 30} Evid.R. 402 provides that “[a]ll relevant evidence is admissible * * * [and that]

[e]vidence which is not relevant is not admissible.” Evid.R. 401 defines “relevant evidence” as

“evidence having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.”

{¶ 31} The initial facts in this case that are of consequence relate to whether Belcher is

guilty of having assaulted both Beth Bachmann and Kasey Koeser in violation of R.C.

2903.13(A). That section of R.C. 2903.13 states that “No person shall knowingly cause or

attempt to cause physical harm to another or to another's unborn.”

{¶ 32} In order to establish guilt, the State was required to prove each element of these

offenses beyond a reasonable doubt. R.C. 2905.01(A). In other words, the State had to prove

beyond a reasonable doubt that Belcher knowingly caused or attempted to cause physical harm to

Bachmann. The same elements would have to be established beyond a reasonable doubt with

respect to Koeser. Whether Bachmann or Koeser, or others, violated a policy of either Miami

Valley Hospital or their CPI training is irrelevant to the issue of whether Belcher knowingly

caused or attempted to cause these individuals physical harm. As a result, the evidence would

not be admissible in connection with these facts.
 12

{¶ 33} At trial, Belcher also raised the issues of self-defense and defense of others,

which are affirmative defenses. See, e.g., State v. Williford, 49 Ohio St.3d 247, 249, 551 N.E.2d

1279 (1990) (self-defense), and State v. Kleekamp, 2d Dist. Montgomery No. 23533,

2010-Ohio-1906, ¶ 51, citing State v. Moss, 10th Dist. Franklin No. 05AP-610, 2006-Ohio-1647

(defense of others). Therefore, facts of consequence to these defenses would be relevant.

{¶ 34} “ ‘To establish self-defense for the use of less than deadly force in defense of

one's person, the defendant must prove: (1) he was not at fault in creating the situation which

gave rise to the event in which the use of non-deadly force occurred; (2) he had honest and

reasonable grounds to believe that such conduct was necessary to defend himself against the

imminent use of unlawful force; and (3) the force used was not likely to cause death or great

bodily harm.’ ” State v. Hamrick, 9th Dist. Lorain No. 09CA009628, 2010-Ohio-3796, ¶ 13,

quoting State v. Tanner, 9th Dist. Medina No. 3258-M, 2002-Ohio-2662, ¶ 21.

{¶ 35} “Defense of another is a variation of self-defense. Under certain circumstances,

one may employ appropriate force to defend another individual against an assault. However,

‘one who intervenes to help a stranger stands in the shoes of the person whom he is aiding, and if

the person aided is the one at fault, then the intervenor is not justified in his use of force and is

guilty of an assault.’ * * * Therefore, one who claims the lawful right to act in defense of

another must meet the criteria for the affirmative defense of self-defense.” Moss, 10th Dist.

Franklin No. 05AP-610, 2006-Ohio-1647, ¶ 13, citing State v. Wenger, 58 Ohio St.2d 336, 340,

390 N.E.2d 801 (1979). Accord, State v. Turner, 2d Dist. Montgomery No. 24322,

2011-Ohio-5417, ¶ 13.

{¶ 36} “The burden of going forward with the evidence of an affirmative defense, and
 13

the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the

accused.” R.C. 2905.01(A). Furthermore, “an affirmative defense is one that can coexist with

the State's satisfaction of its burden of proving each and every element of an offense beyond a

reasonable doubt.” State v. Gilliam, 2d Dist. Montgomery No. 17491, 1999 WL 812335, * 7

(Sept. 30, 1999).

{¶ 37} Under Belcher’s theory of the case, Wiley was attempting to leave the hospital

when he left Room 32, which he had a right to do pursuant to policies regarding leaving hospitals

against medical advice. Thus, MVH employees had no right to stop Wiley by putting him in a

position that could cause his death, as shown by the CPI manual. If MVH employees choose to

do so, Wiley had a right of self-defense, and Belcher had a corresponding right to defend him.

{¶ 38} At trial, Belcher proffered Defense Ex. B, which contains guidelines pertaining

to patients leaving the hospital against medical advice (AMA). The policy allows competent

adult patients to end treatment and leave even if doing so is AMA. The policy states that:

A patient may not be detained against his will in the presence of the following

criteria:

a. Alert and oriented to person, place, and time.

b. Understanding of diagnosis.

c. Comprehension of risks related to refusing treatment. Proffered Defense Ex.

B., p. 1.

{¶ 39} In addition, the policy indicates that a physician will make the determination of

a patient’s competency. Other procedures are detailed in the policy, such as the need to explain

the risks to health and alternatives to treatment; the need to at least attempt to have the patient
 14

sign an AMA form; what documentation should be completed about the patient’s physical

condition; and the removal of items like catheters. The policy also states that a staff member

should escort the patient to the hospital exit. Id. at pp. 1-2.

{¶ 40} When questioned about this issue on proffer, Wooddell, the attending nurse,

stated that Wiley was oriented to person, time, and place. However, based on Wiley’s speech and

some of the things he was saying, Wiley was not capable of making the decision to leave AMA.

Wooddell also said that the person who makes that decision is the physician. However, the

situation escalated quickly before she had a chance to ask Dr. Reynolds about the issue.

{¶ 41} Under the circumstances of this case, the AMA policy is not relevant. Even if

Wiley had a right to leave the hospital, his conduct was not consistent with the policy, which

contemplates an orderly process of having a physician decide if the injured party is competent to

make such decisions, following certain checkout procedures, and having a staff member escort

the patient to the hospital exit. Instead, Wiley caused a disturbance with loud and belligerent

behavior, leaped from bed while trying to assault a nurse, and then ran out into the hallway with

his arms swinging, causing a possibility of injuring other staff, patients, or personnel.

{¶ 42} The CPI manual was submitted as Proffered Defense Ex. C, and was discussed

during Wooddell’s proffer examination. A variety of subjects are covered in the manual,

including ways to identify behavior levels that contribute to development of crises, and how to

attempt to de-escalate aggressive behavior. All MVH emergency room employees are required

to take a CPI course and must be re-certified each year. The employees on duty the night of the

incident had all taken the course.

{¶ 43} In addition, the CPI manual for the course discusses restraint. In particular, the
 15

manual states that:

Any physical intervention should be used only when all other options have

been exhausted and when an individual is a danger to self or others. Even in

those moments, an assessment is still necessary to determine the best course of

action to maintain the Care, Welfare, Safety, and SecuritySM of all.

***

Remember that there are risks involved in any physical intervention.

Therefore, they should always be considered when the danger presented by the

acting-out individual outweighs the risks of physical intervention. Proffered

Defense Ex. C, p. 12s. (Emphasis sic.)

{¶ 44} After outlining the risks of restraint, the CPI manual states that “[f]or these

reasons and others, restraints should be used only when a person’s behavior is MORE dangerous

than the danger of using restraints.” Id. (Emphasis sic.) The CPI manual further states that:

Some restraints are more dangerous than others. For example, facedown

(prone) floor restraints and positions in which a person is bent over in such a way

that it is difficult to breathe are extremely dangerous. * * *

Restraint-related positional asphyxia occurs when the person being

restrained is placed in a position in which he cannot breathe properly and is not

able to take in enough oxygen. Death can result from this lack of oxygen and

consequent disturbance in the rhythm of the heart. Id. (Emphasis sic.)

{¶ 45} Wooddell testified during her proffer examination that CPI techniques were

attempted with Wiley, such as McDermott stepping aside so that Wiley could get out of the room
 16

without an injury occurring. However, at that point, no nonviolent technique would work

because Wiley was “storming out in the hall” and had to be restrained for the safety of others.

Trial Transcript, Volume 2, p. 272. Both Wooddell and Mark Huss, who was also examined on

proffer, indicated that high-risks restraints for positional asphyxia occur when an individual is

prone and others sit on his or her chest and legs. Id. at p. 273 and Trial Transcript, Volume 4,

pp. 564-565.

{¶ 46} After reviewing the above facts, we conclude that the proffered testimony and

the CPI manual are irrelevant to facts of consequence to the elements of self-defense. As was

noted, self-defense requires that a defendant is not at fault in creating the situation that gives rise

to the event causing the use of the defendant’s non-deadly force. Hamrick, 9th Dist. Lorain No.

09CA009628, 2010-Ohio-3796, at ¶ 13.

{¶ 47} Self-defense does not apply in the case before us, because Wiley was at fault in

creating the situation. For the same reason, defense of others also does not apply. “A person

who uses force in defense of others ‘stands in the shoes’ of the person he or she is defending.

This rule means that the intervenor ‘acts at his own peril if the person assisted was in the wrong.’

If the person being defended had no right to self-defense, the intervenor is not entitled to use

force to defend that person, and cannot prevail on a ‘defense of others’ defense.” State v.

Abalos, 6th Dist. Lucas No. L–09–1280, 2011-Ohio-3489, ¶ 14, quoting State v. Wenger, 58

Ohio St.2d 336, 339 and 340, 390 N.E.2d 801 (1979). Accord, State v. Turner, 2d Dist.

Montgomery No. 24322, 2011-Ohio-5417, ¶ 13.

{¶ 48} Accordingly, the trial court did not abuse its discretion in refusing to admit

evidence regarding the AMA policy and the CPI manual. Belcher makes the further argument
 17

that she should have been permitted to question employees about the possibility of civil liability

on MVH’s part if they failed to follow these policies, because it bears on the bias of the

witnesses. In this regard, Belcher relies on State v. Ferguson, 5 Ohio St.3d 160, 165, 450

N.E.2d 265 (1983), which held that a trial court had erred when it refused to let the victim be

cross-examined about her consultation with a law firm. The consultation concerned a potential

civil action against the defendant’s former employer. Id. at 165. Ferguson involves a different

situation and is not pertinent to the case before us, as there was no evidence in the record that

Wiley or Belcher had filed or had even contemplated filing a civil lawsuit against the hospital.

Evid.R. 611(B), which is mentioned in Ferguson, does state that “[c]ross-examination shall be

permitted on all relevant matters and matters affecting credibility.”

{¶ 49} As was noted, the CPI policies and AMA polices were not relevant to the facts

at issue. Defense counsel was permitted to inquire about a meeting that some witnesses had

with the hospital’s legal department (which was described as a “debriefing” occurring

immediately after the incident). Defense counsel also elicited testimony indicating that

employees are required to follow hospital procedures, that employees have a sense of loyalty to

their team members, and that employees have a duty to provide a safe environment for staff,

patients, and visitors. Thus, to the extent that defense counsel wished to comment in closing

argument about the potential for witness bias, there was evidence in the record from which this

could have been done. The trial court did not act unreasonably, arbitrarily, or unconscionably in

refusing to permit further inquiry on such a collateral matter.

{¶ 50} Assuming for the sake of argument that the trial court committed any error in

limiting matters bearing on the bias of witnesses as employees, the error was harmless beyond a
 18

reasonable doubt. “Error in the admission of evidence is harmless if there is no reasonable

possibility that the evidence may have contributed to the accused's conviction. In order to hold

the error harmless, the court must be able to declare a belief that the error was harmless beyond a

reasonable doubt.” State v. Bayless, 48 Ohio St.2d 73, 106-107, 357 N.E.2d 1035 (1976),

vacated in part on other grounds, 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978), citing

State v. Abrams, 39 Ohio St.2d 53, 313 N.E.2d 823 (1974); State v. Crawford, 32 Ohio St.2d

254, 291 N.E.2d 450 (1972); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967); and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

{¶ 51} Even if we were to find error in failure to admit evidence of employee bias

(which we do not), there is no reasonable possibility that the omitted evidence would have

impacted Belcher’s conviction; the evidence of her guilt is overwhelming.

{¶ 52} Accordingly, the First Assignment of Error is overruled.

III. Was the Conviction Against the Manifest Weight of the Evidence?

{¶ 53} Belcher’s Second Assignment of Error states as follows:

The conviction of 2 counts of assault was against the manifest weight of

the evidence.

{¶ 54} Under this assignment of error, Belcher contends that her convictions are

against the manifest weight of the evidence because the State failed to prove that her actions were

knowingly done with an intent to attempt to cause harm by punching Koeser in the ear or by

shoving Bachmann to the floor. In this regard, Belcher first argues that she accidentally collided

with Bachmann while attempting to see what was happening to Wiley. Belcher also maintains
 19

that Koeser did not remember being punched in the ear and that the two other witnesses were not

in a position to see what had happened. Finally, Belcher points out that the witnesses attended a

meeting with the legal department at MVH, although she stops short of saying that the witnesses

were told what to say.

{¶ 55} “When a conviction is challenged on appeal as being against the weight of the

evidence, an appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider witness credibility, and determine whether, in resolving conflicts in the

evidence, the trier of fact ‘clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.’ ” State v. Hill, 2d Dist.

Montgomery No. 25172, 2013-Ohio-717, ¶ 8, quoting State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997). “A judgment should be reversed as being against the manifest

weight of the evidence ‘only in the exceptional case in which the evidence weighs heavily against

the conviction.’ ” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

{¶ 56} We have reviewed the entire record and find no basis upon which to conclude

that the trier of fact clearly lost its way and created a manifest miscarriage of justice. There is no

evidence that the assault on Bachmann was accidental; all the witnesses who testified about this

particular incident (Bachmann, Koeser, and Wetzell) indicated that Belcher grabbed and pushed

Bachmann, causing her to fall to the floor. In addition, the witnesses who testified about the

assault on Koeser (Bachmann and Wetzell) both stated that they saw Belcher punch Koeser.

Furthermore, even though Koeser stated that she did not remember being punched, she also said

that she concluded immediately after the incident that she had been struck. This was based on
 20

the fact that her ear was very hot, and she had blood on her fingers after she touched her ear.

{¶ 57} As an additional matter, R.C. 2903.13(A) does not require that a defendant

cause physical harm; it also prohibits individuals from attempting to cause physical harm to

another. The testimony from the victim, Koeser, is that Belcher was attempting to hit her, and

swung at her at least three times. This testimony alone, would have satisfied the requirements

for a conviction on the assault charge.

{¶ 58} Regarding Belcher’s third point about the “meeting” with the legal department,

the evidence is otherwise than what Belcher implies. There is no evidence that witnesses were

told what to say, nor is there evidence that anything nefarious occurred in the meeting. The one

witness who was specifically questioned on this point stated that when she filled out her witness

statement, she was not told to say what other people had said happened. Instead, she was told to

say what did happen. We also note that the individuals in the hospital worked together on a

daily or weekly basis. It would be unusual if they failed to talk with each other about what had

happened.

{¶ 59} Based on the preceding discussion, the Second Assignment of Error is

overruled.

IV. Was Defendant Deprived of a Public Trial?

{¶ 60} Belcher’s Third Assignment of Error is as follows:

The court scheduling a Saturday trial day denied the Defendant her

constitutional right to a public trial.

{¶ 61} Belcher contends under this assignment of error that she was deprived of the
 21

right to a public trial because her case had to be presented on a Saturday, when the courthouse

was closed to the public. Belcher argues that this was fundamentally unfair for three reasons:

(1) the public was not able to attend; (2) the jury may have been prejudiced against her because

they had to attend trial on a weekend; and (3) she was unable to subpoena Detective Jones into

court to testify on her behalf because the clerk’s office was closed for the weekend.

{¶ 62} In State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038,

the Supreme Court of Ohio noted that:

The right to a public trial is a fundamental constitutional guarantee under

the Sixth Amendment to the United States Constitution and Section 10, Article I

of the Ohio Constitution. See State v. Lane (1979), 60 Ohio St.2d 112, 119, 14

O.O.3d 342, 397 N.E.2d 1338. This guarantee is a “cornerstone of our

democracy which should not be circumvented unless there are extreme overriding

circumstances.” Id.

The violation of the right to a public trial is considered structural error and

not subject to harmless-error analysis. Waller v. Georgia (1984), 467 U.S. 39,

49–50, 104 S.Ct. 2210, 81 L.Ed.2d 31, fn. 9; Johnson v. United States (1997), 520

U.S. 461, 468–469, 117 S.Ct. 1544, 137 L.Ed.2d 718. A structural error is a

“defect affecting the framework within which the trial proceeds, rather than

simply an error in the trial process itself.” Arizona v. Fulminante (1991), 499

U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302. Drummond at ¶ 49-50.

{¶ 63} In Drummond, the Supreme Court of Ohio also held that counsel’s failure to

object to the closing of a courtroom constituted a waiver of the right to a public trial.
 22

Drummond at ¶ 59. The record in the case before us indicates that Belcher knew well in

advance of trial that the trial was expected to last three days, and also knew that if the trial lasted

three days, the third trial day would be on Saturday. See Amended Trial Transcript, p. 15

(September 23, 2011 Hearing on Final Pre-Trial and Motion in Limine). Despite knowing that

trial could be held on Saturday, Belcher failed to object. In addition, the State and Belcher both

mentioned to the jury during voir dire that trial could be held on Saturday. Trial Transcript,

Volume 1, pp. 69 and 105. Again, Belcher failed to object or to discuss the matter with the

court.

{¶ 64} In view of these facts, we would normally conclude that Belcher waived the

right to challenge the trial court’s action by failing to object. After Drummond was issued,

however, the Tenth District Court of Appeals noted that “the Supreme Court of Ohio has more

recently held that the right to a public trial cannot be waived by silence.” State v. Sowell, 10th

Dist. Franklin No. 06AP-443, 2008-Ohio-3285, ¶ 36, citing State v. Bethel, 110 Ohio St.3d 416,

2006-Ohio-4853, 854 N.E.2d 150, ¶ 81.

{¶ 65} Assuming for the sake of argument that the issue was not waived, we find no

merit in Belcher’s argument, because the trial court did not, in fact, close the proceedings.

Belcher objected on Saturday for the first time, to the lack of public access. At that time, the

trial court stated that its bailiff would instruct the Sheriff’s office, which was on duty at the

courthouse door, to make sure that the Sheriff knew the forum was to be open that day. Trial

Transcript, Volume 5, p. 656. The record does not indicate that any person was denied access

that day.

{¶ 66} Belcher’s second argument pertains to jury prejudice, but has been waived, due
 23

to Belcher’s failure to timely object in the trial court. The concept is well-established that

“[d]efense counsel's failure to object waives all but plain error.” State v. Howard, 2d Dist.

Montgomery No. 20575, 2005-Ohio-3702, ¶ 34, citing State v. Ballew, 76 Ohio St.3d 244, 251,

667 N.E.2d 369 (1996). We find no error, let alone plain error, because any finding of juror

prejudice would have to rely on speculation. The jury knew at the outset that the trial could

last until Saturday, and could just as easily have been irritated with the State for taking two days

to try its case.

{¶ 67} Belcher’s third complaint is that she was unable to subpoena Detective Jones to

testify in her case, because the need to do so arose on Friday evening, after the clerk’s office was

closed. Detective Jones was the Dayton Police Officer who was called to the scene, and who

questioned Belcher. Jones was called as a witness in the State’s case. During

cross-examination, defense counsel attempted to question Jones about a statement allegedly

made by another witness, Shane McDermott. Trial Transcript, Volume 5, p. 634.

{¶ 68} When the State objected on the basis that the defense had failed to question

McDermott about this, the defense argued that the evidence was not being used as impeachment

but as an excited utterance under Evid.R. 803(2). Id. at 635. The trial court rejected that

theory. Subsequently, the defense tried to qualify and admit the police report as a public record

under Evid.R. 803(8). Id. at 637-642. During the bench conference on this latter issue, defense

counsel argued that if the court ruled against her on whether the report could be used as

substantive evidence, she would like to ask the witness if McDermott had made the statement to

him. The court also refused this request. Id. at 643.

{¶ 69} Defense counsel then asked the court to place Detective Jones under subpoena
 24

so that he could be called during the defense case. The court again refused. Id. at 643-644.

The court also refused counsel’s request to continue the trial until Monday so that Jones could be

subpoenaed. Id. at 644.

{¶ 70} The following day (Saturday), Belcher objected to having court held on

Saturday, noting that by the time Jones had testified, the clerk’s office was closed, and counsel

could not obtain a subpoena to compel him to testify. As was noted, the court overruled the

objection. At that point, defense counsel did not proffer the anticipated testimony, nor did she

proffer the police report into evidence. Thus, there is no record of what McDermott’s statement

might have been, other than defense counsel’s question to Detective Jones, which is not

evidence.

{¶ 71} Essentially, what Belcher challenges is the trial court’s refusal to continue the

trial. “The grant or denial of a continuance is a matter that is entrusted to the broad, sound

discretion of the trial judge.” State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981),

syllabus. In Unger, the Supreme Court of Ohio held that:

In evaluating a motion for a continuance, a court should note, inter alia:

the length of the delay requested; whether other continuances have been requested

and received; the inconvenience to litigants, witnesses, opposing counsel and the

court; whether the requested delay is for legitimate reasons or whether it is

dilatory, purposeful, or contrived; whether the defendant contributed to the

circumstance which gives rise to the request for a continuance; and other relevant

factors, depending on the unique facts of each case. (Citations omitted.) Id. at

68.
 25

{¶ 72} In rejecting Belcher’s request, the trial court noted that the case had been set for

jury trial for many months, and that each time it had been set, it was reset due to a motion of the

defense. The court further observed that the parties were notified well in advance that the case

would be heard on Saturday if it lasted three days, because the court already had other cases set

on Monday. In addition, the court stated that all discovery had been prepared and transferred to

the parties the month before trial. The court stressed that Jones was known as a witness, and

that the defense could have subpoenaed Jones as it had numerous other witnesses. Instead, the

defense failed to do so. Finally, the court stated that the parties had also been made aware that

the court had surgery scheduled.

{¶ 73} Under the circumstances, the trial court did not abuse its discretion in refusing

to continue the trial. Accordingly, the Third Assignment of Error is overruled.

V. Did the Trial Court Err in Refusing to Instruct on Affirmative Defenses?

{¶ 74} Belcher’s Fourth Assignment of Error states that:

The trial court erred when it refused to instruct the jury on both

self-defense and the defense of another because the Defendant did not testify in

her own defense.

{¶ 75} Belcher contends under this assignment of error that the trial court erred in

refusing to instruct the jury on the affirmative defenses of self-defense and defense of others.

{¶ 76} The decision to give a requested jury instruction is a matter left to the sound

discretion of the trial court, and the court's decision will not be disturbed on appeal absent an

abuse of discretion. State v. Kleekamp, 2d Dist. Montgomery No. 23533, 2010-Ohio- 1906, ¶
 26

35, citing State v. Davis, 2d Dist. Montgomery No. 21904, 2007-Ohio-6680, ¶ 14. “The proper

standard for determining in a criminal case whether a defendant has successfully raised an

affirmative defense under R.C. 2901.05 is to inquire whether the defendant has introduced

sufficient evidence, which, if believed, would raise a question in the minds of reasonable men

concerning the existence of such issue.” State v. Melchior, 56 Ohio St.2d 15, 381 N.E.2d 195

(1978), paragraph one of the syllabus.

{¶ 77} In State v. Fulmer, 117 Ohio St.3d 319, 2008-Ohio-936, 883 N.E.2d 1052, the

Supreme Court of Ohio elaborated on its decision in Melchior, noting that:

In State v. Melchior (1978), 56 Ohio St.2d 15, 20, 10 O.O.3d 8, 381

N.E.2d 195, we held that in order for a defendant to properly raise an affirmative

defense, “ ‘evidence of a nature and quality sufficient to raise the issue must be

introduced, from whatever source the evidence may come.’ Evidence is sufficient

where a reasonable doubt of guilt has arisen based upon a claim of the defense.”

Id., quoting State v. Robinson (1976), 47 Ohio St.2d 103, 111–112, 1 O.O.3d 61,

351 N.E.2d 88. We expressly cautioned, however, that “[i]f the evidence

generates only a mere speculation or possible doubt, such evidence is insufficient

to raise the affirmative defense, and submission of the issue to the jury will be

unwarranted.” Id. Moreover, the trial judge is in the best position to gauge the

evidence before the jury and is provided the discretion to determine whether the

evidence adduced at trial was sufficient to require an instruction. State v. Wolons

(1989), 44 Ohio St.3d 64, 541 N.E.2d 443, paragraph two of the syllabus.

Fulmer at ¶ 72.
 27

{¶ 78} For the reasons previously mentioned in the discussion of the First Assignment

of Error, the trial court did not abuse its discretion in refusing to instruct the jury on self-defense

or defense of others. The defense did not raise sufficient evidence with regard to either of these

defenses. There was no evidence upon which a reasonable person would have a question

regarding whether Wiley was at fault in creating the situation that caused Belcher’s use of force.

Thus, Belcher’s defenses fail on the first prong of the self-defense analysis. Hamrick, 9th Dist.

Lorain No. 09CA009628, 2010-Ohio-3796, at ¶ 13. And, since Belcher was stepping into

Wiley’s shoes in asserting defense of others, the trial court correctly concluded that an

instruction on defense of others was not warranted.

{¶ 79} In addition to basing her self-defense claim on Wiley, Belcher claims that she

was acting in her own self-defense when she pushed Bachmann and when she hit Koeser.

Again, however, Belcher failed to submit evidence upon which a reasonable person could

conclude that she was not at fault in creating the situation. Belcher claims that some force was

needed for her to avoid being “shoved” by Bachmann and to get free from Koeser. However,

the evidence that was submitted does not support these assertions.

{¶ 80} The only witnesses who testified on these assaults indicated as follows:

(1) Staff members “just kind of stood in the way between Room 32 and towards

the trauma or the trauma bay,” and Bachmann was trying to calm the visitors

down (Wooddell testimony, Trial Transcript, Volume 2, p. 158);

(2) Belcher was drunk, and when Bachmann stepped in front of Belcher when

Belcher came out of Room 32, Belcher grabbed Bachmann by the arms and

pushed her so that she fell and slid across the floor (Bachmann testimony, Trial
 28

Transcript, Volume 2, pp. 295-296);

(3) Bachmann put her arms out to block Belcher from going towards

McDermott, and Belcher pushed Bachmann in the upper chest area, causing her to

fall down (Koeser testimony, Trial Transcript, Volume 3, pp. 360-361);

(4) Bachmann was standing in the doorway of Room 32, with her arms out,

about two feet from Belcher, telling her to stay in the room. At that point,

Belcher grabbed Bachmann by the shoulders and “slams her, like off to the side.”

Bachmann then landed at the witness’s feet. (Wetzell testimony, Trial Transcript,

Volume 4, pp. 576-577).

{¶ 81} The record is devoid of evidence indicating that Belcher was not at fault in

initiating the events that led to her use of force towards Bachmann. Furthermore, when Koeser

came to Bachmann’s defense, Koeser was attempting to remove Belcher from the scene she had

created and to get her back in the room. This was a situation that was caused by Belcher’s

aggressive acts. Instead of complying and ceasing violent behavior, Belcher began swinging at

Koeser with a closed fist, attempting to hit her – which she eventually succeeded in doing.

Belcher persisted in this conduct despite Bachmann’s request that Belcher stop trying to hit

Bachmann and Koeser. (Bachmann testimony, Trial Transcript, Volume 3, p. 304.)

{¶ 82} Again, there is no evidence upon which a reasonable person would have a

question regarding whether Wiley, and then, Belcher, was at fault in creating the situation.

Accordingly, the trial court did not abuse its discretion in refusing to instruct the jury on

self-defense and defense of others.

{¶ 83} The Fourth Assignment of Error is overruled.
 29

VI. Was the Defendant Denied Her Right of Confrontation?

{¶ 84} Belcher’s Fifth Assignment of Error is as follows:

The trial court denied the Defendant her constitutional right to confrontation.

{¶ 85} Under this assignment of error, Belcher challenges the trial court’s refusal to let

her cross-examine two State witnesses about meetings held by MVH legal counsel to discuss the

incident. Belcher also contends that the trial court erred in refusing to allow her counsel to

cross-examine Sergeant Van Dohre about his bias towards Belcher, or to impeach Van Dohre

when defense counsel was “surprised” by his testimony.

{¶ 86} “The Confrontation Clause of the Sixth Amendment to the United States

Constitution gives the accused the right to be confronted with the witnesses against him.

However, the Confrontation Clause guarantees only ‘an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way, and to whatever

extent, the defense might wish.’ ” (Emphasis sic.) State v. Lang, 129 Ohio St.3d 512,

2011-Ohio-4215, 954 N.E.2d 596, ¶ 83, quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106

S.Ct. 292, 88 L.Ed.2d 15 (1985). “Accordingly, the court has ‘wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits on such cross-examination based

on concerns about, among other things, harassment, prejudice, confusion of the issues, the

witness' safety, or interrogation that is repetitive or only marginally relevant.’ ” State v.

Warmus, 197 Ohio App.3d 383, 2011-Ohio-5827, 967 N.E.2d 1223, ¶ 64, (8th Dist.), quoting

Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). “To

establish a Confrontation Clause violation, the defendant must show that he was ‘prohibited from
 30

engaging in otherwise appropriate cross-examination’ and ‘[a] reasonable jury might have

received a significantly different impression of [the witness's] credibility had [the defendant's]

counsel been permitted to pursue his proposed line of cross-examination.’ ” Id., quoting Van

Arsdall at 680.

{¶ 87} Regarding the issue of meeting with legal counsel, Wooddell first indicated that

she had been to meetings (in plural) with other staff and the legal office about what had occurred.

Wooddell then said that she had attended only one meeting – a debriefing right after the incident

happened, where the staff discussed a little bit of what had happened and what could have been

done differently. At this point, the trial court sustained the State’s objections to questions about

how many meetings were had; about whether the legal department comes in to see if there is any

liability to the hospital; about whether Wooddell was concerned about her own liability; and

about whether Wooddell remembered anything that could have been done differently. Trial

Transcript, Volume 2, pp. 234-237.

{¶ 88} “[T]he focus of the prejudice inquiry in determining whether the confrontation

right has been violated must be on the particular witness, not on the outcome of the entire trial.”

Van Arsdall at 680. Thus, the prejudice inquiry is directed at Wooddell and how her credibility

might have been differently received by the jury.

{¶ 89} As we noted earlier, there was no evidence that a civil action against MVH was

contemplated. Having staff members meet with the hospital’s legal department after an incident

would also not be unusual. Wooddell indicated that she was present at such a meeting, and, as

we said earlier, counsel could have commented on this point in closing argument. It was a

collateral issue that was not relevant to whether Belcher or Wiley were at fault in creating the
 31

events that led to their use of force. The evidence overwhelmingly established those facts.

{¶ 90} Furthermore, Wooddell admitted during testimony that she did not see Belcher

push Bachmann, nor did she see Belcher strike Koeser. Wooddell only heard commotion, and

the only thing she saw was Bachmann sliding across the floor. The rest of the time, Wooddell

was focused on taking care of Wiley. Thus, Wooddell’s testimony was not critical on these

issues. In addition, Wooddell’s testimony regarding the incident with Wiley was supported by

several other witnesses, which we have already discussed. Accordingly, there is no basis for

concluding that a reasonable jury would have received a significantly different impression of

Wooddell’s credibility had the defense been able to cross-examine her further about the legal

meetings.

{¶ 91} Belcher contends that Koeser also admitted to attending “group meetings,” but

fails to cite to any part of the testimony that indicates this. Our review of the testimony indicates

that Koeser stated that the employees talked about the incident a lot that day (which would be

natural), but that she did not recall talking with anyone other than Bachmann before she wrote

her statement. Trial Transcript, Volume 3, p. 449, and Trial Transcript, Volume 4, p. 450.

Because Belcher fails to point to any instance in which the examination of Koeser was restricted,

we conclude that no potential error occurred.

{¶ 92} The final issue under this assignment of error pertains to the testimony of

Sergeant Von Dohre, who was a campus police officer at the hospital. At a pretrial held in

September 2011, the trial court allowed defense counsel to interview the State’s witnesses.

According to defense counsel, Sergeant Van Dohre refused to speak with her then, because he

considered himself a State’s witness. When defense counsel brought this to the trial court’s
 32

attention, Van Dohre had already left. Amended Trial Transcript, pp. 16-17. There was also a

dispute between the State and the defense at the time about whether the State had a right to be

present in the interviews. The trial court settled the dispute and instructed the witnesses that they

could not be forced at that point to speak with the defense, but that if they chose not to do so,

procedures did exist under R.C. 2945.50 that could require witnesses to speak with the defense.

Id. at pp. 22-23.

{¶ 93} The defense did not apparently elect to use such a procedure with Sergeant Von

Dohre, but did decide to call him during the defense case. However, the defense also asked the

court to declare Von Dohre as a hostile witness, given the background, and the court did so.

{¶ 94} On appeal, Belcher contends, again without citation to the record, that the trial

court refused to let her cross-examine Von Dohre about his bias. Belcher also challenges the

trial court’s refusal to let her impeach Von Dohre regarding his prior inconsistent statements.

However, the trial court did allow the defense to impeach Von Dohre with these inconsistent

statements.

{¶ 95} At trial, Von Dohre testified that Belcher appeared to be intoxicated when she

was in the dispatch center. He also testified that Belcher repeatedly apologized for what had

happened. Trial Transcript, Volume 5, p. 743. Defense counsel was permitted to

cross-examine Von Dohre about the fact that he had not included any such statements in the

report he prepared after the incident. Id. at 744-747. During defense counsel’s examination,

the court did sustain an objection by the State, but the court nonetheless permitted Belcher’s

counsel to elicit the information about the prior inconsistent statements. As a result, there is no

basis for a Confrontation challenge in this regard.
 33

{¶ 96} The final issue occurred when defense counsel asked Von Dohre if he had an

opportunity and had wanted to talk to prosecutors about the case. Id. at p. 748. The trial court

sustained the State’s objection. The court noted that it had already permitted Von Dohre to be

called as a hostile witness. The court also concluded that discussions with Von Dohre and trial

preparation were not relevant. Trial Transcript, Volume 6, p. 750.

{¶ 97} In responding to Belcher’s argument, the State points out that the defense does

not have a right to interview, depose, or examine a state’s witness before trial. According to the

State, witnesses should not have their credibility impugned because they exercise their legal right

not to speak to counsel.

{¶ 98} The State’s general proposition is correct. See, e.g., State v. Zeh, 31 Ohio St.3d

99, 105, 509 N.E.2d 414 (1987) (following the “general rule that a prosecution witness who will

be attending the trial has the right to refuse an interview or deposition by the defense when the

prosecution has not unduly interfered with the witness' free choice.”)

{¶ 99} No evidence was presented to indicate that the State had unduly interfered with

Von Dohre’s free choice. Furthermore, one might venture to say that most police officers

consider themselves “state’s witnesses.” Thus, allowing such issues to be interjected would

unduly complicate most trials and would confuse juries.

{¶ 100} Assuming for the sake of argument that the inquiry would have been

proper, a reasonable jury might not have received a significantly different impression of Von

Dohre’s credibility if the inquiry had been permitted. Van Arsdall, 475 U.S. 673, 106 S.Ct.

1431, 89 L.Ed.2d 674, at 680. In this regard, we note that defense counsel had already cast

doubt on Von Dohre’s credibility by revealing that he had testified about things he failed to
 34

include in his report. The fact that Von Dohre, a police officer, did not want to speak to defense

counsel would not have detracted significantly more from the jury’s perception.

{¶ 101} Furthermore, even assuming that the trial court had committed error in

limiting matters bearing on Von Dohre’s bias as a police officer, the error was harmless beyond a

reasonable doubt. “Error in the admission of evidence is harmless if there is no reasonable

possibility that the evidence may have contributed to the accused's conviction. In order to hold

the error harmless, the court must be able to declare a belief that the error was harmless beyond a

reasonable doubt.” Bayless, 48 Ohio St.2d 73, 106-107, 357 N.E.2d 1035, at 106-107, citing

Abrams, 39 Ohio St.2d 53, 313 N.E.2d 823; Crawford, 32 Ohio St.2d 254, 291 N.E.2d 450;

Chapman, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; and Harrington, 395 U.S. 250, 89 S.Ct.

1726, 23 L.Ed.2d 284.

{¶ 102} Notably, Von Dohre’s testimony was merely cumulative of the

testimony of other witnesses. And, as we noted previously, the evidence of Belcher’s guilt is

overwhelming. The evidence of guilt would still be overwhelming, even if Von Dohre’s

testimony were completely discredited.

{¶ 103} Based on the preceding discussion, the Fifth Assignment of Error is

overruled.

VII. Did Cumulative Errors Deprive Defendant of a Fair Trial?

{¶ 104} Belcher’s Sixth Assignment of Error states that:

The cumulative effect of the trial court’s errors in the first five

assignments deprived the Defendant of her due process right to a fair trial.
 35

{¶ 105} Under this assignment of error, Belcher contends that the cumulative

effect of errors deprived her of a fair trial. “Though a particular error might not constitute

prejudicial error by itself, a conviction may be reversed where the cumulative effect of the errors

deprives the defendant of a fair trial.” State v. Moore, 81 Ohio St.3d 22, 41, 689 N.E.2d 1

(1998), citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987). Having found no

error, we cannot find cumulative error.

{¶ 106} The Sixth Assignment of Error is overruled.

VIII. Conclusion

{¶ 107} All of Belcher’s assignments of error having been overruled, the

judgment of the trial court is Affirmed.

.............

FAIN, P.J., concurs.
DONOVAN, J., concurs in judgment only.

Copies mailed to:

John J. Danish
Stephanie L. Cook
Troy B. Daniels
Tina M. McFall
Hon. Deirdre E. Logan