State v. Bigsby

[Cite as State v. Bigsby, 2013-Ohio-5641.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 12 MA 74
V. )
) OPINION
BRIAN BIGSBY, )
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 10CR805

JUDGMENT: Affirmed

APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503

For Defendant-Appellant Attorney Joshua R. Hiznay
1040 S. Commons Place, Suite 202
Youngstown, Ohio 445145

JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

Dated: December 12, 2013
[Cite as State v. Bigsby, 2013-Ohio-5641.]
DONOFRIO, J.

{¶1} Defendant-appellant, Brian Bigsby, appeals from a Mahoning County
Common Pleas Court judgment convicting him of two counts of felonious assault, two
counts of aggravated burglary, and domestic violence, following a jury trial.
{¶2} In the early morning hours of April 27, 2007, Erica Stewart was asleep
in her Youngstown home when she heard knocking at her door, followed by knocking
on her window. At her window, Stewart asked who was there. Appellant replied.
Also asleep in Stewart’s house at the time were her boyfriend, Vincent Franklin, and
her two daughters Breyona, who was eleven years old, and Brianne, who was a year
old. Appellant is Brianne’s father.
{¶3} According to Stewart, she opened the door slightly and asked appellant
what he wanted. She did not invite him inside because her boyfriend was there.
When she told appellant this, he pushed the door open and punched her in the face.
Appellant then went into Stewart’s bedroom and confronted Franklin. Stewart went
into the bedroom too and appellant hit her again. Appellant continued to punch and
kick Stewart and at some point hit her in the knee with a baseball bat, which she kept
in the house. Stewart eventually passed out. She awoke when the police arrived.
By that time appellant was gone.
{¶4} According to appellant, he went to Stewart’s house after having been
out with some friends. He knocked on the door and Breyona let him in. He then
walked into Stewart’s bedroom and saw Franklin holding his daughter. Appellant told
Franklin to put his daughter down, which he did, and then the two began to exchange
words. Stewart hit appellant in the back and he reacted by turning around and
punching her two or three times in the face. After realizing what he had done,
appellant apologized to Stewart and left her house.
{¶5} Appellant fled Ohio approximately a week after the incident and was
apprehended in California in July 2010.
{¶6} Stewart’s injuries required one surgery to repair her torn eyelids and
two other surgeries to repair her broken kneecap.
{¶7} A Mahoning County Grand Jury indicted appellant on one count of
 -2-

felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(1)(D); one
count of felonious assault, a second-degree felony in violation of R.C.
2903.11(A)(2)(D); one count of aggravated burglary, a first-degree felony in violation
of R.C. 2911.11(A)(1)(B); one count of aggravated burglary, a first-degree felony in
violation of R.C. 2911.11(A)(2)(B); and one count of domestic violence, a fourth-
degree felony in violation of R.C. 2919.25(A)(D).
{¶8} The matter proceeded to a jury trial on February 21, 2012. The jury
found appellant guilty of all five counts. At a later sentencing hearing, the trial court
merged the two felonious assault counts and the domestic violence count for
purposes of sentencing. Likewise, it merged the two aggravated burglary counts.
The court went on to sentence appellant to eight years for felonious assault and ten
years for aggravated burglary, to be served concurrently for a total of ten years in
prison.
{¶9} Appellant filed a timely notice of appeal on April 12, 2012.
{¶10} Appellant raises five assignments of error. His first two assignments of
error assert that his convictions are against the manifest weight of the evidence.
Thus, they share the same standard of review.
{¶11} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine whether, in resolving conflicts in the
evidence, the jury 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.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “Weight of the evidence
concerns ‘the inclination of the greater amount of credible evidence, offered in a trial,
to support one side of the issue rather than the other.’” Id. (Emphasis sic.) In
making its determination, a reviewing court is not required to view the evidence in a
light most favorable to the prosecution but may consider and weigh all of the
evidence produced at trial. Id. at 390.
{¶12} Yet granting a new trial is only appropriate in extraordinary cases
 -3-

where the evidence weighs heavily against the conviction. State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because
determinations of witness credibility, conflicting testimony, and evidence
weight are primarily for the trier of the facts who sits in the best position to
judge the weight of the evidence and the witnesses' credibility by observing
their gestures, voice inflections, and demeanor. State v. Rouse, 7th Dist. No.
04-BE-53, 2005-Ohio-6328, ¶49, citing State v. Hill, 75 Ohio St.3d 195, 205,
661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212
(1967), paragraph one of the syllabus. Thus, “[w]hen there exist two fairly
reasonable views of the evidence or two conflicting versions of events, neither
of which is unbelievable, it is not our province to choose which one we
believe.” State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.
{¶13} Appellant’s first assignment of error states:

THE TRIAL COURT ERRED IN FINDING APPELLANT BIGSBY
GUILTY OF FELONIOUS ASSAULT AS THAT FINDING IS NOT
SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶14} We must examine the evidence introduced at trial to determine if
the jury lost its way in finding appellant guilty.
{¶15} Stewart was the first witness. She stated that she and appellant
had been in a relationship that ended in November 2006. (Tr. 297). By April
27, 2007, she was in a new relationship with Vincent Franklin. (Tr. 297-298).
Stewart testified that on the night in question, she was asleep in her
downstairs bedroom with Franklin. (Tr. 298). Her older daughter, Breyona,
was asleep in her upstairs bedroom and her younger daughter, Brianne, was
asleep in her crib in Stewart’s room. (Tr. 298).
{¶16} Stewart testified that she was awoken by a knocking on her door and
then on her window. (Tr. 298-299). She realized that it was appellant and went to
the door. (Tr. 299). Stewart opened the door slightly and asked appellant what he
 -4-

wanted. (Tr. 300). She did not invite him in because Franklin was in her bedroom.
(Tr. 300). When she told this to appellant, he pushed the door open and punched
her in the face. (Tr. 300).
{¶17} Appellant entered Stewart’s house. (Tr. 301). He punched appellant
again in the eye, tearing her eyelid. (Tr. 302). Appellant then went into Stewart’s
bedroom and confronted Franklin. (Tr. 304). Stewart went into the bedroom and
appellant punched her in the face again. (Tr. 304). By this time, both of her eyelids
had been torn and she had blood in both of her eyes. (Tr. 304). As a result, Stewart
could not see. (Tr. 305). She attempted to make her way to the bathroom and tried
to close the door but appellant pushed it open and punched her repeatedly. (Tr. 305-
306). Stewart got out of the bathroom and went to her bedroom where she heard her
daughter crying in her crib. (Tr. 308). She felt appellant hit her several more times
and then she felt pain in her knee. (Tr. 309). She stated it was from a baseball bat.
(Tr. 309-310). Stewart stated that she keeps a baseball bat in her hall closet. (Tr.
307). She then felt more hits in the back of her legs with a bat. (Tr. 310). Stewart
stated that when she was on the ground appellant continued to hit her and stomp on
her. (Tr. 311). Stewart eventually passed out. (Tr. 313). She was awoken by the
police ringing her doorbell. (Tr. 313).
{¶18} As a result of the beating by appellant, Stewart testified she required
surgery to her eyelids to stitch them back together. (Tr. 315). She was left with
several scars on her face, legs, and shoulders. (Tr. 316). She showed some of her
scars to the jury. (Tr. 413). She required two surgeries on her knee and underwent
physical therapy. (Tr. 317). She also required a knee immobilizer. (Tr. 318).
Stewart stated that since the attack, she has sensitivity to light, she developed
cataracts, and she gets severe headaches. (Tr. 319-320). Stewart described the
pain in her head after the attack as “excruciating” and stated that on a scale of one to
ten, her headaches were a ten. (Tr. 318-320). She stated that the pain was the most
severe pain she had felt in her life. (Tr. 318).
{¶19} On cross-examination, Stewart admitted she never saw appellant hit
 -5-

her with the bat because her eyes were filled with blood and she could not see. (Tr.
361-362). She stated that at that time she did not know what appellant was hitting
her with; she only knew that he was hitting her. (Tr. 362). She stated she learned it
was a bat that appellant hit her with when she heard Breyona tell this to the police.
(Tr. 362-363).
{¶20} Breyona was the next witness. She stated that on the night in question
she was asleep in her upstairs bedroom when she heard the doorbell. (Tr. 417-418).
She then heard Stewart tell appellant that he had to leave. (Tr. 418). Next, Breyona
heard appellant “barging his way in.” (Tr. 418). She stated she ran downstairs and
caught a glimpse of what was going on. (Tr. 418). Specifically, she saw appellant hit
Stewart with a bat. (Tr. 419). Breyona stated she did not stay to watch. (Tr. 419).
Instead, she sneaked out of the house and went next door where she called the
police. (Tr. 419-420). She waited at the next-door neighbor’s house until the police
arrived. (Tr. 420-421). From the neighbor’s house, Breyona testified that she saw
appellant chasing Franklin down the street with a bat. (Tr. 422).
{¶21} The next witness was Youngstown Police Officer Robert Martini.
Officer Martini, along with his partner, was the first officer to arrive at Stewart’s
house. As he was exiting his cruiser, Breyona ran up to him. (Tr. 438-439). He
stated Breyona was frantic and told him her mother was injured in a fight with
appellant. (Tr. 440). Officer Martini knocked on Stewart’s door and she answered it.
(Tr. 441). Due to the amount of blood and Stewart’s swollen eyes, Officer Martini
initially thought there had been a shooting. (Tr. 441). Stewart told the officer that
appellant was the one who had caused her injuries. (Tr. 442). Officer Martini stated
that Stewart’s eyes were swollen shut, her knees were hurt, and she was shaking.
(Tr. 442).
{¶22} In describing the house, Officer Martini testified there was blood splatter
on the wall by the bathroom and in the bedroom, blood on the bed sheets, and blood
near a baseball bat located by the bed. (Tr. 443-444). Officer Martini stated that
Stewart told him that she was hit with a baseball bat. (Tr. 447). Officer Martini also
 -6-

testified that a car was left in Stewart’s driveway that was registered to a Charles
Bigsby. (Tr. 450).
{¶23} On cross-examination, Officer Martini stated that Breyona told him that
she was upstairs, she heard the fight, and she heard Stewart ask appellant not to hit
her. (Tr. 461). She did not tell him that she witnessed any of the fight. (Tr. 461).
{¶24} Youngstown Detective-Sergeant Steve Schiffhauer testified that
appellant was ultimately apprehended in California in July 2010. (Tr. 470).
{¶25} Appellant testified in his own defense. Appellant stated that he and
Stewart had been seeing each other in the months preceding the night in question.
(Tr. 489-490). On the night in question, appellant testified he had been out with
some friends and then went to Stewart’s house. (Tr. 491). He stated he knocked on
the door and rang the doorbell and Breyona answered the door. (Tr. 492). Appellant
said hello to Breyona and went into the house. (Tr. 494). He went into Stewart’s
bedroom and saw a man holding his daughter. (Tr. 495). Appellant told the man to
put his daughter down and get out. (Tr. 496). Appellant stated the man threw his
daughter on the bed and walked toward him. (Tr. 497). The two men began to argue
and Stewart then hit appellant on the back. (Tr. 497). As a result, appellant punched
Stewart two or three times in the face. (Tr. 497). Appellant stated that he saw that
Stewart’s nose was bleeding so he apologized. (Tr. 498). He then picked up his
daughter, put her in her crib, and left. (Tr. 499). Appellant denied ever seeing a bat
or using a bat to hit Stewart. (Tr. 502-503).
{¶26} Appellant testified he was distraught because he had hit Stewart and he
knew trouble was coming so he left town. (Tr. 500). He went to Atlanta and then to
California. (Tr. 500-501). He did not return to Youngstown until he was arrested in
California and transported back by police. (Tr. 501).
{¶27} On cross-examination, appellant admitted to a prior domestic violence
conviction where Stewart was the victim. (Tr. 504). He also admitted that he left
town because he knew he was going to be in trouble. (Tr. 516-517).
{¶28} Dr. Brian Gruber, the director of trauma and critical care at St. Elizabeth
 -7-

Hospital, was the last witness. Dr. Gruber admitted Stewart to the hospital. (Tr.
522). He testified Stewart had a fractured patella that required surgery. (Tr. 525-
526). He stated she also had lacerations to her eyelids that required surgery to
repair. (Tr. 527, 531-532). She also had multiple abrasions on her body. (Tr. 531).
Dr. Gruber stated the medical history taken at the hospital indicated that Stewart’s
baby’s father broke into her house and beat her with a baseball bat. (Tr. 528).
{¶29} The jury convicted appellant of two counts of felonious assault. The
first count was in violation of R.C. 2903.11(A)(1), which provides that no person shall
knowingly “cause serious physical harm to another.” The second count was in
violation of R.C. 2903.11(A)(2), which provides that no person shall knowingly “cause
or attempt to cause physical harm to another * * * by means of a deadly weapon or
dangerous ordnance.”
{¶30} “Serious physical harm” includes physical harm that carries a
substantial risk of death; or that involves some permanent incapacity or temporary,
substantial incapacity; or that involves permanent disfigurement or temporary,
serious disfigurement; or that involves acute pain of such duration as to result in
substantial suffering. R.C. 2901.01(A)(5)(b)(c)(d)(e). “Physical harm” includes any
injury regardless of its gravity or duration. R.C. 2901.01(A)(3).
{¶31} As to his felonious assault conviction, appellant asserts the record is
devoid of evidence that he inflicted any kind of permanent incapacity on Stewart or
any temporary, substantial incapacity or any permanent disfigurement. Appellant
also asserts the state failed to prove that he caused physical harm by means of a
deadly weapon. He notes that the baseball bat he allegedly used as a deadly
weapon was not introduced into evidence. He further notes that no fingerprint or
DNA testing was performed on the bat and it did not appear that there was any blood
on the bat. And he points out Stewart testified that she was unsure whether she was
hit with the bat. Finally, appellant argues that Breyona’s testimony was not
believable because she did not see much and ran out of the house to call the police.
{¶32} As to the first felonious assault count, the evidence is clear that
 -8-

appellant knowingly caused serious physical harm to Stewart. Stewart testified that
appellant’s beating left her with several scars that were still visible almost five years
after the attack, which she showed the jury. Thus, she suffered permanent
disfigurement. Additionally, she described the pain in her head after the attack as
“excruciating” and noted that she had never felt pain that severe in her life.
Furthermore, the jury could have inferred that she suffered temporary, substantial
incapacity due to her two knee surgeries, the knee immobilizer, and the physical
therapy. This evidence was all uncontroverted.
{¶33} As to the second felonious assault count, numerous courts have held
that a baseball bat, when used as a weapon, can be a “deadly weapon” for felonious
assault purposes. State v. Clouse, 10th Dist. No. 11AP-857, 2012-Ohio-3471, ¶35;
State v. Andrews, 8th Dist. No. 93104, 2010-Ohio-3864, ¶14; State v. Acevedo, 11th
Dist. No. 2002-A-0109, 2005-Ohio-3267, ¶25; State v. Roberts, 6th Dist. No. S-04-
003, 2004-Ohio-6468, ¶¶12-13. There was some conflicting evidence as to whether
appellant actually used the bat to hit Stewart. Appellant testified that he did not use a
bat, but only punched Stewart in the face. Breyona, however, testified that she saw
appellant strike Stewart with a bat. But she also testified that she saw appellant
chase Franklin down the street with the bat, which was likely incorrect since the
police found the bat in Stewart’s house. And Stewart, although she could not see
due to the blood in her eyes, believed that appellant hit her in the knees with the bat.
Moreover, the police found the bat on the floor in Stewart’s bedroom with blood near
it. And in appellant’s medical history reported at the hospital it stated that she was
struck with a bat by appellant.
{¶34} While an appellate court is permitted to independently weigh the
credibility of the witnesses when determining whether a conviction is against the
manifest weight of the evidence, we must give great deference to the fact finder's
determination of witnesses' credibility. State v. Wright, 10th Dist. No. 03AP-470,
2004-Ohio-677, ¶11. The policy underlying this presumption is that the trier of fact is
in the best position to view the witnesses and observe their demeanor, gestures, and
 -9-

voice inflections, and use these observations in weighing the credibility of the
proffered testimony. Id.
{¶35} In this case, the jury found appellant’s testimony to be less credible
than Breyona’s testimony. Even though there was an inconsistency between
Breyona’s testimony and the location of the bat, the jury must have found her
testimony more credible. This could be due to the fact that appellant believed she
was struck in the knees with a bat, the medical history indicated that she was struck
with a bat, and the bat was located in Stewart’s bedroom near a blood splatter.
Additionally, the fact that appellant suffered a broken patella lends further support to
Breyona’s testimony.
{¶36} Given the evidence, we conclude that the jury did not lose its way in
finding appellant guilty of felonious assault. Accordingly, appellant’s first assignment
of error is without merit.
{¶37} Appellant’s second assignment of error states:

THE TRIAL COURT ERRED IN FINDING APPELLANT BIGSBY
GUILTY OF AGGRAVATED ASSAULT [sic.] AS THAT FINDING IS
NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶38} The jury also convicted appellant of two counts of aggravated burglary.
The first count was in violation of R.C. 2911.11(A)(1) and the second count was in
violation of R.C. 2911.11(A)(2). These sections provide:

(A) No person, by force, stealth, or deception, shall trespass in an
occupied structure * * * when another person other than an accomplice
of the offender is present, with purpose to commit in the structure * * *
any criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm
on another;
(2) The offender has a deadly weapon or dangerous ordnance on or
 - 10 -

about the offender's person or under the offender's control.

R.C. 2911.11(A)(1)(2).
{¶39} As to his aggravated burglary conviction, appellant again asserts the
state failed to prove he used a deadly weapon. Additionally, appellant argues the
state failed to demonstrate that he had a purpose to commit another offense when he
entered Stewart’s house. He asserts that the “other offense” element of aggravated
burglary could be either felonious assault or domestic violence. He relies on his
argument in his first assignment of error that his felonious assault conviction was
against the weight of the evidence and, therefore, he argues felonious assault cannot
be the “other offense.” He argues that domestic violence cannot be the “other
offense” because his testimony indicated that he acted in self-defense and the only
pictures of blood in the house were in the bedroom, which appellant claims supports
his self-defense explanation.
{¶40} Because appellant’s felonious assault conviction is not against the
manifest weight of the evidence, his argument that felonious assault cannot be the
“other offense” required for an aggravated burglary conviction necessarily fails.
Moreover, it was not necessary for the state to prove that appellant had a purpose to
commit another offense when he entered Stewart’s house. The Ohio Supreme Court
has held that, “[f]or purposes of defining the offense of aggravated burglary pursuant
to R.C. 2911.11, a defendant may form the purpose to commit a criminal offense at
any point during the course of a trespass.” State v. Fontes, 87 Ohio St.3d 527, 721
N.E.2d 1037 (2000), syllabus. And as addressed above, a baseball bat can be a
deadly weapon and the evidence supported the jury’s finding that appellant used the
bat to hit Stewart.
{¶41} Moreover, while appellant testified that Breyona let him into the house,
this testimony was contradicted by both Breyona and Stewart. Breyona testified that
she was upstairs when she heard appellant “barging his way in.” And Stewart
testified that she opened the door and told appellant he was not welcome to come in
because she had company and this resulted in appellant pushing the door open and
 - 11 -

punching her in the face. Once again, which testimony to believe was a
determination for the jury. We cannot conclude that the jurors lost their way in finding
Breyona’s and Stewart’s testimony more credible than appellant’s testimony.
{¶42} Accordingly, appellant’s second assignment of error is without merit.
{¶43} Appellant’s third assignment of error states:

THE TRIAL COURT ERRED IN FINDING THAT THE
EVIDENCE DEMONSTRATED BY THE STATE WAS SUFFICIENT TO
SUPPORT CONVICTIONS FOR FELONIOUS ASSAULT AND
AGGRAVATED BURGLARY.

{¶44} In this assignment of error, appellant asserts there was not sufficient
evidence to support his convictions. As to his felonious assault conviction, appellant
once again asserts that the state failed to present evidence of any incapacity he
caused to Stewart. As to his aggravated burglary conviction, he argues the state
failed to prove that he used a deadly weapon and failed to prove that he went to
Stewart’s house with the purpose to commit another criminal offense.
{¶45} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684
N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. Thompkins, 78
Ohio St.3d at 386. Whether the evidence is legally sufficient to sustain a verdict is a
question of law. Id. In reviewing the record for sufficiency, the relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Smith, 80 Ohio St.3d at 113.
{¶46} In considering the evidence set out above, the state presented sufficient
evidence going to each element of felonious assault and aggravated burglary.
{¶47} As discussed in appellant’s first assignment of error, Stewart’s
testimony, along with corroboration by Dr. Gruber, was sufficient to establish the first
 - 12 -

count of felonious assault that appellant knowingly caused her “serious physical
harm” when he repeatedly punched her in the face and head. Moreover, for the
second count of felonious assault the state was only required to prove “physical
harm,” as opposed to the “serious physical harm” that was required for the first count,
which it clearly did by Stewart’s testimony. Additionally, for the second count the
state had to present evidence that appellant used a deadly weapon in causing the
physical harm. Breyona’s testimony that she saw appellant hit Stewart with a bat
was sufficient evidence on this point.
{¶48} And as discussed in appellant’s second assignment of error, there was
no requirement that appellant form the intent to commit another offense inside
Stewart’s house before he entered the house in order to find him guilty of aggravated
burglary. It was sufficient that he formed the intent to commit felonious assault while
he was trespassing in Stewart’s house.
{¶49} Based on the above, the state presented sufficient evidence to support
the jury’s verdict in this case. Accordingly, appellant’s third assignment of error is
without merit.
{¶50} Appellant’s fourth assignment of error states:

THE TRIAL COURT ERRED IN FAILING TO ALLOW
APPELLANT BIGSBY TO CROSS EXAMINE THE VICTIM ON HER
DRUG USE AND PSYCHOLOGICAL CONDITIONS.

{¶51} Here appellant asserts the trial court should have allowed his counsel to
cross examine Stewart regarding her alleged drug use and psychological conditions.
He claims he could have used this evidence to impeach Stewart’s testimony by
calling into question her ability to perceive and remember the details of the incident.
Appellant concedes that Stewart’s medical records do not specify the exact dates or
the extent of her drug use and mental conditions. But he argues his counsel should
have been able to question Stewart on cross-examination as they related to her
ability to perceive and remember.
 - 13 -

{¶52} A trial court has broad discretion in determining whether to admit or
exclude evidence. State v. Mays, 108 Ohio App.3d 598, 617, 671 N.E.2d 553 (8th
Dist.1996). Abuse of discretion connotes more than an error of law or judgment; it
implies that the trial court's attitude is unreasonable, arbitrary, or unconscionable.
State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). More specifically,
the limitation of cross-examination lies within the trial court's sound discretion viewed
in relation to the particular facts of each individual case. State v. Vinson, 70 Ohio
App.3d 391, 397, 591 N.E.2d 337 (12th Dist.1990), citing State v. Acre, 6 Ohio St.3d
140, 451 N.E.2d 802 (1983).
{¶53} While cross-examining Stewart, defense counsel asked her questions
about what prescription medications she was taking on the night in question. (Tr.
358). Counsel then asked Stewart if she consumed any alcohol that night, to which
she responded “no.” (Tr. 358). Counsel then began to ask if she had smoked
anything. (Tr. 358). The prosecutor objected and the court sustained the objection.
(Tr. 358). Later, during the cross-examination of Dr. Gruber, defense counsel made
a motion to proffer Stewart’s medical records for our review. (Tr. 543). Counsel
stated the proffer was so this court could review the trial court’s determination not to
allow any discussion about Stewart’s history as the parties had discussed previously.
(Tr. 543). The previous discussion, however, was not part of the record.
{¶54} The proffered exhibit included copies of Stewart’s past medical records.
(Tr. 543-544). The records appellant sought to cross-examine Stewart with were
from August 2007, four months after the incident at issue, but they included Stewart’s
medical history. There is nothing in the records that seems to indicate that Stewart
has problems recalling events or that she ever abused any drugs or alcohol that
would affect her ability to remember. Moreover, there was no evidence presented at
trial that at the time appellant attacked her Stewart was under the influence of any
memory-impairing substance or alcohol. For these reasons, we cannot conclude that
the trial court abused its discretion in disallowing defense counsel to cross-examine
Stewart using the proffered medical records.
 - 14 -

{¶55} Accordingly, appellant’s fourth assignment of error is without merit.
{¶56} Appellant’s fifth assignment of error states:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT
BIGSBY’S MOTION FOR A MISTRIAL WHEN A WITNESS
REFERENCED APPELLANT BIGSBY’S PRIOR BAD ACTS.

{¶57} Appellant contends the trial court should have granted his motion for a
mistrial when Stewart mentioned that she had visited him in prison thereby bringing
up his prior bad acts. He asserts that once the jury heard he had been in a
correctional facility, he was deprived of his right to a fair trial.
{¶58} The decision to grant or deny a mistrial rests with the sound discretion
of the trial court and will not be disturbed absent an abuse of that discretion. Crim.R.
33; State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343 (1997). Granting a
mistrial is an extreme remedy only warranted in circumstances where a fair trial is no
longer possible and it is required to meet the ends of justice. State v. Jones, 83 Ohio
App.3d 723, 737, 615 N.E.2d 713 (2d Dist.1992). Mistrial is not properly granted,
“merely because some error or irregularity has intervened, unless the substantial
rights of the accused or the prosecution are adversely affected.” State v. Lukens, 66
Ohio App.3d 794, 809, 586 N.E.2d 1099 (10th Dist.1990).
{¶59} In cross-examining Stewart, the following took place:

Q And you said your relationship ended in November of 2006, correct?
A The romantic relationship, yes.
Q Okay. You continued to see each other, did you not?
A I’ve visited him at a correctional facility.

(Tr. 325-326). It was at this point that appellant moved for a mistrial. (Tr. 326). The
court denied the motion. But it admonished the jury that Stewart’s last answer was
stricken and they were to disregard where Stewart may have seen appellant. (Tr.
327).
 - 15 -

{¶60} Appellant’s counsel immediately objected to Stewart’s response. And
while the court did not declare a mistrial, it did instruct the jury to disregard Stewart’s
statement. A jury is presumed to follow the court's curative instructions. State v.
Bereschik, 116 Ohio App.3d 829, 837, 689 N.E.2d 589 (1996). Thus, it is not
unreasonable to presume that the jury followed the court’s instructions and
disregarded Stewart’s statement. The trial court did not abuse its discretion in
denying a mistrial.
{¶61} Accordingly, appellant’s fifth assignment of error is without merit.
{¶62} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Waite, J., concurs.

DeGenaro, P.J., concurs.