State v. Horton

[Cite as State v. Horton, 2012-Ohio-3340.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26030

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
DEMETRIUS D. HORTON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 02 0315

DECISION AND JOURNAL ENTRY

Dated: July 25, 2012

BELFANCE, Judge.

{¶1} Defendant-Appellant Demetrius Horton appeals from his convictions in the

Summit County Court of Common Pleas. For the reasons set forth below, we affirm.

I.

{¶2} Mr. Horton was indicted in February 2011, for felonious assault, disrupting public

services, and two counts of domestic violence, all related to an incident that took place on

January 11, 2011. In addition, Mr. Horton was indicted on one count of intimidation of a crime

victim or witness based upon conduct alleged to have taken place from January 11, 2011,

through February 3, 2011. In March 2011, a supplemental indictment was filed, charging Mr.

Horton with one count of felonious assault and two counts of domestic violence based upon

events that occurred on January 18, 2011. All counts at issue involved the same victim, Mr.

Horton’s girlfriend, who was also the mother of his child.
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{¶3} The matter proceeded to a jury trial, at which time the State dismissed the

felonious assault charge stemming from the events of January 11, 2011. The jury found Mr.

Horton guilty of felonious assault and one of the counts of domestic violence based upon the

events of January 18, 2011. The jury found Mr. Horton not guilty of the remaining charges. The

trial court sentenced Mr. Horton to a total of seven years in prison. Mr. Horton has appealed,

raising two assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
DENIED APPELLANT HORTON’S OBJECTION TO HAVING A
REGISTERED NURSE TESTIFY AS AN EXPERT WITNESS ON BATTERED
WOMAN’S SYNDROME AND THE CYCLE OF VIOLENCE WITHOUT
HAVING THE NURSE DECLARED AS AN EXPERT ON BATTERED
WOMEN’S SYNDROME AND THE CYCLE OF VIOLENCE.

{¶4} Mr. Horton appears to assert in his first assignment of error that the trial court

erred in allowing a witness to testify as an expert without declaring the witness an expert.

Notably, Mr. Horton does not appear to assert that the witness was not qualified to testify as an

expert or that her testimony failed to meet the standard set out in State v. Haines, 112 Ohio St.3d

393, 2006-Ohio-6711; instead, his assignment of error is limited to whether the trial court

committed reversible error in allowing the witness to testify without declaring her an expert. We

do not agree.

{¶5} The witness at issue, Jill Bunnell, R.N., testified on behalf of the State. She

examined the victim in the instant matter a few days following the January 18, 2011 incident.

Ms. Bunnell testified that she has worked for Summa Health System for 31 years. At the time of

the trial, Ms. Bunnell worked in the DOVE unit wherein she provided emergency services for

individuals that have encountered some type of violence. Ms. Bunnell testified that:
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I am a sexual assault nurse examiner as well as a domestic violence nurse
examiner. * * * We did 40 hours of didactic training, which is classroom, book
work, along with additional clinicals, crime lab, health department, police
department. And then with the domestic violence it was building on that
education through conferences and so forth, additional education. And that has
been going on since 1998.

{¶6} The State also sought to have Ms. Bunnell provide testimony concerning the cycle

of violence, over objections by defense counsel. The trial court allowed the State to question

Ms. Bunnell about her qualifications. Ms. Bunnell indicated that, during her domestic violence

nurse examiner training they “talk[ed] about, learn[ed] about the cycle of violence; how it affects

victims of domestic violence and what’s involved in those parts and pieces of the cycle of

violence.” She testified that, when she provides programs for law enforcement on domestic

violence, the dynamics of the cycle of violence are included. Further, Ms. Bunnell indicated that

she had previously testified in court on the cycle of violence and the dynamics involved in

domestic violence situations. The State asserted that the testimony was permitted under Haines.

After hearing argument, the trial court agreed and overruled defense counsel’s objections.

However, the trial court did not specifically declare Ms. Bunnell to be an expert witness.

{¶7} First, we do not see how the trial court’s failure to declare Ms. Bunnell an expert

witness prejudiced Mr. Horton. See Crim.R. 52(A) (“Any error, defect, irregularity, or variance

which does not affect substantial rights shall be disregarded.”). If anything, it would seem that

having the trial court actually declare Ms. Bunnell an expert in front of the jury would have

likely bolstered her credibility with the jury. See United States v. Johnson, 488 F.3d 690, 697-

698 (6th Cir.2007).

{¶8} Second, because we cannot say that the trial court abused its discretion in

allowing her testimony, we see no merit to Mr. Horton’s argument. See State v. McGlown, 6th

Dist. No. L-07-1163, 2009-Ohio-2160, ¶ 43; State v. Scott, 10th Dist. No. 90AP-255, 1990 WL
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140548, *5 (Sept. 27, 1990); State v. Skinner, 2d Dist. No. 11704, 1990 WL 140897, *7 (Sept.

26, 1990) (“[S]o long as the record indicates that the trial court did not abuse its discretion, we

will not disturb a decision to allow a witness to offer expert opinion testimony simply because

‘magic’ words do not appear on the face of the record.”); see also State v. Monroe, 105 Ohio

St.3d 384, 2005-Ohio-2282, ¶ 95.

{¶9} Evid.R. 702 states that:

A witness may testify as an expert if all of the following apply:

(A) The witness’ testimony either relates to matters beyond the knowledge or
experience possessed by lay persons or dispels a misconception common among
lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the testimony;

(C) The witness’ testimony is based on reliable scientific, technical, or other
specialized information. To the extent that the testimony reports the result of a
procedure, test, or experiment, the testimony is reliable only if all of the following
apply:

(1) The theory upon which the procedure, test, or experiment is based is
objectively verifiable or is validly derived from widely accepted knowledge, facts,
or principles;

(2) The design of the procedure, test, or experiment reliably implements the
theory;

(3) The particular procedure, test, or experiment was conducted in a way that will
yield an accurate result.

{¶10} Given Ms. Bunnell’s qualifications and the anticipated scope of her testimony, we

conclude that it fits within the realm contemplated by Evid.R. 702, and we cannot say the trial

court abused its discretion in allowing her testimony. Ms. Bunnell only testified on direct as to

what the cycle of violence is, whether it is common for victims to recant, and whether she has

ever seen a domestic violence victim be afraid to tell the truth. Ms. Bunnell did not offer an

opinion about the likelihood that the victim in the instant matter was telling the truth or whether
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she was a battered woman. See Haines, 2006-Ohio-6711, at ¶ 56 (“[E]xperts who are called to

testify in domestic violence prosecutions must limit their testimony to the general characteristics

of a victim suffering from the battered woman syndrome. The expert may also answer

hypothetical questions regarding specific abnormal behaviors exhibited by women suffering

from the syndrome, but should never offer an opinion relative to the alleged victim in the case.”)

(Internal quotations and citations omitted.). Moreover, defense counsel thoroughly cross-

examined Ms. Bunnell on the issue. In light of the foregoing, we overrule Mr. Horton’s first

assignment of error.

ASSIGNMENT OF ERROR II

APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.

{¶11} Mr. Horton asserts in his second assignment of error that his convictions for

felonious assault and domestic violence stemming from the January 18, 2011 incident are against

the manifest weight of the evidence, essentially asserting that the victim was not credible. We do

not agree. We note that while several of the witnesses’ versions of events conflicted with other

witnesses’ versions of events or their own version of events, we cannot say that in resolving the

conflicting testimony that the jury lost its way and created a manifest miscarriage of justice.

{¶12} In reviewing a challenge to the weight of the evidence, the appellate court

must review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

{¶13} Mr. Horton was convicted of felonious assault in violation of R.C. 2903.11(A)(1)

and domestic violence in violation of R.C. 2919.25(A). R.C. 2903.11(A)(1) provides that “[n]o
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person shall knowingly * * * [c]ause serious physical harm to another * * * .” R.C. 2919.25(A)

states that “[n]o person shall knowingly cause or attempt to cause physical harm to a family or

household member.”

{¶14} As Mr. Horton was not convicted of any charges in connection with the January

11, 2011 incident, our focus is on the January 18, 2011 incident. However, the January 11, 2011

incident will be discussed only to the extent it is necessary to provide background information.

The victim testified that she has four children; Mr. Horton is the biological father of the youngest

child. The victim has known Mr. Horton since 2006 and has been dating him during that time.

Both Mr. Horton and the victim have fairly extensive criminal records, with Mr. Horton being

released from prison only shortly before the first incident. The victim testified that she had been

reforming her life, having graduated from truck driving school and obtaining her CDL. She

stated that, on January 11, 2011, Mr. Horton came over to her home and brought bags, looking to

stay at her house. She told him that he needed to “get some goals and get [himself] together[]”

and that he could not stay if he was not going to do that. The two began arguing and the

argument became physical. Ultimately, Mr. Horton was charged with multiple offenses related

to that incident. However, the jury found him not guilty of those counts.

{¶15} After that incident, the victim and Mr. Horton somewhat reconciled. According

to the victim, Mr. Horton began asking her for money to pay for an attorney to represent him

with respect to the January 11, 2011 incident. The victim told him she did not have the money

and that she was not willing to sell drugs to help him raise the money. Shortly before the

January 18, 2011 incident, the two argued about the situation and, according to the victim, she

told him she was leaving and that they did not need to see each other anymore. That day, the

victim took her children to her friend Tisha’s, house. Tisha was also friends with Mr. Horton.
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The victim testified that she went to Tisha’s to get away from Mr. Horton. As Tisha was just

moving into the house, the victim brought some food, alcohol, clothes, and a TV and video game

system for her children. When the victim arrived, Tisha was not home. As it was late, she put

her children to bed and put a movie on for them. That evening, Tisha and the victim were

drinking, and Mr. Horton showed up and began punching the victim. The victim testified that

she was knocked unconscious after the second punch. The victim awoke to find her children

yelling at her to go with them and her oldest son, G.S. had a shovel in his hands. They went

outside and knocked on a neighbor’s door. The neighbor answered and called 911 for the victim.

The 911 call was placed shortly before 4:30 a.m.

{¶16} G.S., the victim’s twelve-year-old son testified concerning the January 18, 2011

incident. G.S. testified that he, his siblings, and his mom, had been staying at his mom’s house

until the evening before the incident, at which time the victim packed up some items and they all

went to stay at Tisha’s house to get away from Mr. Horton. He and the siblings had been

sleeping, but he woke up to use the bathroom and heard Mr. Horton and the victim arguing. G.S.

testified that his mom told him to go back to sleep, but he stayed in the hallway. Then, Mr.

Horton started slapping the victim. G.S. grabbed a bottle and threw it at Mr. Horton, but missed.

He indicated that Mr. Horton and the victim then went into the living room and Mr. Horton

started hitting the victim again. G.S. picked up a shovel and hit Mr. Horton in the head with it.

Mr. Horton then took the victim into the bathroom and locked the door. When they came out,

the victim “was bleeding and her eye was messed up.” Then the victim started screaming for

help and she and her family went and knocked on a neighbor’s door and got the neighbor to call

the police.
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{¶17} Tisha testified on behalf of Mr. Horton. She denied being friends with the victim,

and instead asserted that she was only friends with Mr. Horton. Tisha claimed to have never met

the victim prior to the incident but knew that she was Mr. Horton’s girlfriend. Tisha testified

that she let Mr. Horton come over and take a shower on the evening before the incident. She

testified that she left while Mr. Horton was still there and never saw the victim that evening. She

said she stopped by the house a couple days later and found items strewn about, a hole in the

bathroom door, blood in the bathroom, and glass from the bathroom window in the bathtub.

{¶18} Nonetheless, Tisha gave a statement to an investigator stating that, that day, the

victim came over to Tisha’s house with her children so that they could visit Mr. Horton. Tisha

indicated that the victim left the children in the car and came into the house. Tisha stated that the

victim had been drinking and she overheard the victim and Mr. Horton get into an argument.

Tisha then left and told them to get the situation under control. Tisha told the investigator that

the victim told her that she started the argument. At trial, Tisha indicated that the statement she

gave to the investigator was what the victim had told her to say.

{¶19} Mr. Horton also testified on his behalf. He testified to a different series of events

concerning January 18, 2011. He stated that he was already over Tisha’s house with the victim’s

two youngest children and the victim came there after work and brought her two oldest children.

He indicated that the children went to bed and that he and the victim were drinking. The two

began to argue, waking G.S. up. Mr. Horton testified that the victim started the fight. Mr.

Horton testified that the victim hit Mr. Horton in the head with a shovel and then he hit the

victim approximately three times. Thereafter, G.S. hit Mr. Horton with a liquor bottle. Mr.

Horton stated that he then pushed the victim outside and locked the door. Mr. Horton got the

children dressed, went outside with them, locked up, and then left. Mr. Horton was shortly
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thereafter stopped by police and, according to Mr. Horton, told the police that someone jumped

him. Mr. Horton further testified that the victim was not all bloody when he left like she

appeared in the photographs that were admitted as exhibits. Mr. Horton testified that the victim

wrote him while he was in jail and told him that she knows he did not do it and that she fell in

the bathroom. However, the victim denied writing the letter at issue.

{¶20} Police were dispatched to the scene and en route came across Mr. Horton who

matched the description that they were given. According to police, Mr. Horton said he was

jumped by two males. At the time, Mr. Horton was holding a bloody rag on his head. In

addition, police took a statement from the victim, who told police that she was at her friend’s

house for a housewarming and that a male came over and started going crazy, calling her a police

snitch and that he started punching her repeatedly in the face. The victim had cuts around her

eye and bottom and top lip requiring stitches, had two cracked teeth, and had an eye injury that

resulted in a loss of vision to her right eye.

{¶21} According to the victim, after the January 18, 2011 incident, one of Mr. Horton’s

friends showed up on her back porch with a gun and told her to call Mr. Horton’s attorney. Mr.

Horton’s attorney came over and asked the victim if perhaps she slipped and fell in the bathroom

instead. Despite the fact that Mr. Horton’s attorney was not relaying an accurate version of

events, the victim agreed with his version because the man with the gun was still on her back

porch and she was afraid.

{¶22} Jill Bunnell, R.N., testified concerning the victim’s visit to DOVE unit at the

hospital a few days following the January 18, 2011 incident. According to Ms. Bunnell, the

victim reported the following concerning the assault by Mr. Horton on January 18, 2011, which

she told the nurse occurred around midnight to 1 a.m.: “I was sitting in my friend’s dining room.
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I turned around, he punched my face. He kept punching. * * * He was pulling my hair. He

grabbed my shirt. He kicked my back side. I was crawling for the door. He threw me off the

porch.” Ms. Bunnell further testified that the victim disclosed being strangled during the assault.

Ms. Bunnell testified that the victim’s injuries were consistent with being punched in the face.

{¶23} This is a case in which the jury was presented with a substantial amount of

conflicting testimony to wade through and evaluate. See State v. Andrews, 9th Dist. No. 25114,

2010-Ohio-6126, ¶ 23 (noting that, when the jury is faced with conflicting evidence, the jury is

not required to believe one person’s testimony over another’s). The jury was aware of both the

victim’s and Mr. Horton’s criminal history, and the fact that the victim had changed her story.

The jury also was presented with explanations as to why the victim’s story changed. The victim

was subject to vigorous cross-examination which highlighted possible inconsistencies in her

testimony. However, the jury was additionally presented with a defense witness, Tisha, whose

trial testimony differed from what she told investigators. Moreover, while Mr. Horton denied

causing the severe injuries the victim suffered and claimed that the victim started the incident, he

nonetheless did admit to hitting the victim. “A verdict is not against the manifest weight of the

evidence because the jury chose to believe the State’s witnesses rather than the defense

witnesses.” Id. at ¶ 28. Here, even if the jury doubted the victim’s credibility, it could have

reasonably found G.S.’s testimony to be credible, and thereby concluded Mr. Horton was guilty

of felonious assault and domestic violence. In light of the record before us, it would not be

unreasonable for the jury to give more weight to G.S.’s testimony and less to either Tisha’s or

Mr. Horton’s. Upon a thorough review of the record, we cannot say that the jury’s credibility

determinations were unreasonable; thus, we cannot say that Mr. Horton’s convictions are against
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the manifest weight of the evidence. Accordingly, Mr. Horton’s second assignment of error is

overruled.

III.

{¶24} In light of the foregoing, we overrule Mr. Horton’s assignments of error and

affirm the judgment of the Summit County Court of Common Pleas.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

EVE V. BELFANCE
FOR THE COURT
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CARR, P. J.
CONCURS IN JUDGMENT ONLY.

DICKINSON, J.
CONCURRING.

I concur in the majority’s opinion and judgment. I write separately to note that I concur

in the overruling of Mr. Horton’s first assignment of error because the trial court neither violated

Rule 702 of the Ohio Rules of Evidence nor abused its discretion by allowing Ms. Bunnell’s

testimony

APPEARANCES:

EDDIE SIPPLEN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.