[Cite as State v. Kelly, 2013-Ohio-4755.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-A-0008
- vs - :
DONALD K. KELLY, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2012
CR 396.
Judgment: Affirmed.
Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).
Thomas Rein, Leader Building, Suite 940, 526 Superior Avenue, Cleveland, OH
44114 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Donald K. Kelly, appeals the judgment of the Ashtabula County
Court of Common Pleas convicting him on one count of domestic violence following a
jury trial. Appellant argues the trial court allowed an incompetent witness to testify; the
evidence is insufficient to support a conviction; the conviction is against the manifest
weight of the evidence; and his trial counsel was ineffective. For the reasons that
follow, the judgment is affirmed.
{¶2} On August 23, 2012, appellant was indicted on one count of domestic
violence, a felony of the third degree, in violation of R.C. 2919.25(A)(D)(4). The charge
alleged violence against his step-son, E.S., who was 10 years old at the time.
{¶3} In the late night hours of July 4 or early morning hours of July 5, 2012,
police responded to a phone call by a neighbor reporting a domestic dispute at the
home of appellant’s wife, Wanda Kelly, and her three children, including E.S. At trial,
Officer Christopher Defina of the Ashtabula Police Department testified that when he
arrived at the house, he could hear Wanda yelling, “get out, get out,” and saw appellant
exit the home. Appellant was immediately placed under arrest for violating a prior
restraining order. Officer Defina testified that he spoke to Wanda, and the two of them
walked to her neighbor, Sharonn Bowden’s, house to retrieve E.S., who had been
injured in the scuffle. E.S. was unable to open his jaw, had a red mark on the side of
his face, and the inside of his lip was cut. According to Officer Defina’s testimony, E.S.
told the officer the following: E.S. was helping his mother push appellant out of the
house; appellant punched E.S. in the face; Mr. Bowden came over to help Wanda and
E.S.; appellant attempted to choke Mr. Bowden, who was able to free himself; and Mr.
Bowden took E.S. to his house next door for safety.
{¶4} E.S. was taken to the Ashtabula County Medical Center emergency room,
where Officer Defina again spoke to Wanda. Officer Defina asked Wanda to provide a
written statement, although he was unable to recall whether this occurred at the house
or at the hospital. Her statement indicates she had repeatedly asked appellant to leave
her home that night, but he refused, and that after appellant “hit one of [her] boy,” she
told him “never to touch [her] kids again.” Wendy Milano, a nurse at the Medical Center,
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also testified for the state regarding E.S.’s injuries and statements made to her by
Wanda. She testified Wanda told her that E.S. had pushed appellant, who then
punched E.S., and that prior to that night Wanda had a restraining order against
appellant. On cross-examination, Ms. Milano stressed that Wanda gave these answers
in response to questions designed to determine what happened to E.S. and how to treat
him—not to place blame or to make a police report.
{¶5} The jury also heard direct testimony from E.S. and Wanda. Prior to trial,
however, the state filed motions to call both E.S. and Wanda as “court’s witnesses,”
pursuant to Evid.R. 614(A). In support, the state indicated Wanda refused to answer or
return phone calls from the prosecution; when Wanda was finally located at her place of
employment, she told a police officer her prior statement to Officer Defina was not
accurate; E.S. had been in contact with appellant since the incident; and Wanda may
have influenced E.S. to recant his statement, as well. The motions were granted over
defense counsel’s objection.
{¶6} E.S. testified as follows: he no longer remembered Wanda pushing
appellant out the front door; appellant and Mr. Bowden were fighting on the front porch;
appellant had Mr. Bowden in a choke-hold; E.S. jumped on appellant’s back to protect
Mr. Bowden; Mr. Bowden punched E.S. in the face while aiming for appellant; and E.S.
lied when he told the police appellant punched him, because he was angry with
appellant.
{¶7} Wanda testified that, from that night, she only remembered appellant and
Mr. Bowden fighting, the police showing up, and taking E.S. to the hospital: “All I recall
is Sharonn trying to hit Donnie with something, and then Donnie having his arms on
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Sharonn. And that’s all I recall.” She stated she no longer remembered arguing with
appellant; speaking with Officer Defina; telling Officer Defina that E.S. was helping her
push appellant out of the house when appellant punched E.S.; where she was when the
police showed up; whether anyone had been drinking; where Mr. Bowden and appellant
were fighting; why Mr. Bowden came over; or that E.S. ended up at Mr. Bowden’s
house.
{¶8} Wanda also testified that she had been in contact with appellant by
telephone since the incident and that she wrote her police statement because she was
angry with appellant. When asked specifically why she wrote appellant “hit one of [her]
boy,” Wanda stated that, although it was her handwriting, she could not read it and
could not confirm that was what it stated.
{¶9} On November 9, 2012, the jury convicted appellant on the domestic
violence charge. On January 8, 2013, the trial court sentenced appellant to serve 36
months in jail, with three years of post-release control.
{¶10} Appellant now assigns four assignments of error for our review, which we
address out of numerical order. His third assignment of error states:
{¶11} “The trial court committed prejudicial and plain error when it failed to
comply with Evid.R. 601 and the issue of spousal competency.”
{¶12} Appellant argues that his wife, Wanda Kelly, was incompetent to testify
because the requirements of the Evid.R. 601(B)(2) exception were not met and that
permitting her to testify constituted plain error by the trial court. He contends that
because the trial court did not instruct Wanda regarding spousal competency or make a
finding on the record that she voluntarily elected to testify, she was incompetent to do
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so. In support, appellant cites State v. Adamson, 72 Ohio St.3d 431 (1995), which held
that “[e]liciting [the defendant’s wife’s] testimony without informing her of her right to not
testify against her husband was plain error.” Id. at 435.
{¶13} Appellant’s assignment of error recognizes that, as no objection was
raised below to Wanda’s testimony, he can only prevail if admitting her testimony
constituted plain error by the trial court. In summarizing the general standard for plain
error, this court has stated that this type of error can only be found when: “(1) there was
an error, i.e., a deviation from a legal rule; (2) the error was plain, i.e. there was an
‘obvious’ defect in the trial proceedings; and (3) the error affected substantial rights, i.e.,
affected the outcome of trial.” State v. Kovacic, 11th Dist. Lake No. 2010-L-065, 2012-
Ohio-219, ¶14.
{¶14} Applying this standard, the record does not support the assertion that the
trial court deviated from the cited evidentiary rule. Nor does it support the assertion,
even assuming an error, that appellant’s substantial rights were affected.
{¶15} Evid.R. 601 provides for two exceptions to the general rule of spousal
incompetency. It states, in pertinent part:
Every person is competent to be a witness except:
***
(B) A spouse testifying against the other spouse charged with a
crime except when either of the following applies:
(1) A crime against the testifying spouse or a child of either spouse
is charged;
(2) The testifying spouse elects to testify.
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{¶16} Pursuant to the Evid.R. 601(B)(1) exception, Wanda was a competent
witness because the crime charged was against her son, i.e., “a crime against * * * a
child of either spouse.” Thus, it was not necessary, pursuant to Evid.R. 601(B)(2), for
the trial court to instruct Wanda of her right to choose not to testify or for Wanda to elect
to testify on the record. See, e.g., State v. Wilson, 3d Dist. Putnam No. 12-05-20, 2006-
Ohio-2000, ¶10 (emphasis sic.) (“because the crime charged * * * was against Wilson’s
daughter, [his wife] was unquestionably competent to testify”). Accordingly, the
admission of Wanda’s testimony does not amount to plain error.
{¶17} Further, appellant has failed to demonstrate how permitting Wanda to
testify affected a substantial right. Wanda was initially subpoenaed as a witness for the
prosecution, as her police statement implicated appellant as the perpetrator of her son’s
injury. However, prior to trial, she recanted her prior statement and adopted a different
version of events that, instead, implicated her neighbor Mr. Bowden. The court
ultimately called Wanda as a court’s witness, pursuant to Evid.R. 614(A), and although
impeached by the prosecution with her prior inconsistent statement, she testified in
favor of appellant. Accordingly, even if her testimony had been admitted erroneously, it
did not adversely affect appellant.
{¶18} Appellant’s third assignment of error is without merit.
{¶19} Appellant’s fourth assignment of error states:
{¶20} “Appellant was denied effective assistance of counsel as guaranteed by
Section 10, Article I, of the Ohio Constitution and the Sixth and Fourteenth Amendments
to the United States Constitution when counsel failed to object to spousal testimony.”
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{¶21} Appellant argues that his trial counsel was ineffective in failing to object to
the admission of Wanda’s testimony. “In order to prevail on a claim of ineffective
assistance of counsel, appellant must establish that: (1) the performance of defense
counsel was seriously flawed and deficient; and (2) the result of appellant’s trial would
have been different if defense counsel had provided proper representation.” Kovacic,
supra, ¶45, citing Strickland v. Washington, 466 U.S. 668, 693 (1984).
{¶22} As stated above, appellant asserts that Wanda, as his spouse, was
incompetent to testify because she did not elect to do so pursuant to Evid.R. 601(B)(2).
However, under his third assignment of error, we have already held that Wanda was
competent to testify under Evid.R. 601(B)(1). Accordingly, trial counsel had no
justifiable objection to Wanda being called to testify. “The failure to object, when there
is no meritorious reason for such an objection, does not constitute ineffective assistance
of counsel.” Id. at ¶56, citing State v. Cashin, 10th Dist. Franklin No. 09AP-367, 2009-
Ohio-6419, ¶12.
{¶23} Appellant’s fourth assignment of error is without merit.
{¶24} Appellant’s first and second assignments of error state:
{¶25} “[1.] The State failed to present sufficient evidence to sustain a conviction
against Appellant.”
{¶26} “[2.] Appellant’s conviction is against the manifest weight of the evidence.”
{¶27} As this court stated in State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994
Ohio App. LEXIS 5862, *13 (Dec. 23, 1994): “‘Sufficiency’ challenges whether the
prosecution has presented evidence on each element of the offense to allow the matter
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to go to the jury, while ‘manifest weight’ contests the believability of the evidence
presented.”
{¶28} Under his first assignment of error, appellant argues that the state
presented insufficient evidence for a jury to conclude that appellant was the one who
punched E.S. In the alternative, appellant argues that, even if it was he who punched
E.S., the state did not present sufficient evidence for a jury to conclude he did so with
the requisite mens rea.
{¶29} ‘“The test (for sufficiency of the evidence) is whether after viewing
the probative evidence and the inference[s] drawn therefrom in the
light most favorable to the prosecution, any rational trier of fact
could have found all of the elements of the offense beyond a
reasonable doubt. The claim of insufficient evidence invokes an
inquiry about due process. It raises a question of law, the
resolution of which does not allow the court to weigh the evidence.
* * *”’
{¶30} In other words, the standard to be applied on a question concerning
sufficiency is: when viewing the evidence ‘in a light most favorable
to the prosecution,’ * * * ‘(a) reviewing court (should) not reverse a
jury verdict where there is substantial evidence upon which the jury
could reasonably conclude that all of the elements of an offense
have been proven beyond a reasonable doubt.’ * * * (Emphasis
sic.) (Citations omitted.) Schlee, supra, at *13-14.
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{¶31} “[A] reviewing court must look to the evidence presented * * * to assess
whether the state offered evidence on each statutory element of the offense, so that a
rational trier of fact may infer that the offense was committed beyond a reasonable
doubt.” State v. March, 11th Dist. Lake No. 98-L-065, 1999 Ohio App. LEXIS 3333, *8
(July 16, 1999). The evidence is to be viewed in a light most favorable to the
prosecution when conducting this inquiry. State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus. Further, the verdict will not be disturbed on appeal
unless the reviewing court finds that reasonable minds could not have arrived at the
conclusion reached by the trier of fact. State v. Dennis, 79 Ohio St.3d 421, 430 (1997).
{¶32} Appellant is challenging his conviction for domestic violence in violation of
R.C. 2919.25(A)(D)(4), which states, in pertinent part:
{¶33} (A) No person shall knowingly cause or attempt to cause physical
harm to a family or household member.
{¶34} * * *
{¶35} (D)(4) If the offender previously has pleaded guilty to or been
convicted of two or more offenses of domestic violence or two or
more violations or offenses of the type described in division (D)(3)
of this section involving a person who was a family or household
member at the time of the violations or offenses, a violation of
division (A) or (B) of this section is a felony of the third degree * * *.
{¶36} Appellant does not dispute that E.S. is a “family or household member,”
that E.S. was physically harmed, or that he was previously convicted of at least two
domestic violence offenses. Instead, he contends the state failed to present sufficient
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evidence that proved it was appellant who knowingly caused or attempted to cause
physical harm to E.S. At trial, appellant’s theory of the case was that during an
altercation between Mr. Bowden and himself, E.S. was accidentally punched in the face
by either Mr. Bowden or himself when E.S. jumped on appellant’s back.
{¶37} First, there is sufficient evidence to support a finding that it was appellant
who knowingly caused or attempted to cause physical harm to sustain a conviction of
domestic violence against E.S., to wit: Wanda and E.S. immediately and separately
identified appellant to Officer Defina as the one who punched E.S.; Officer Defina
testified that Wanda provided an uninfluenced written statement, which implicated
appellant as the perpetrator; Ms. Milano testified that Wanda represented to her at the
hospital that appellant punched her son in the face; Wanda admitted on the stand that
her primary motivation for testifying in favor of appellant, thereby changing her story,
was because she wanted him to come home.
{¶38} Second, there is sufficient evidence to support a finding that appellant
“knowingly” punched E.S., even if it was not purposeful. R.C. 2901.22(B) provides: “[a]
person acts knowingly, regardless of his purpose, when he is aware that his conduct will
probably cause a certain result or will probably be of a certain nature. A person has
knowledge of circumstances when he is aware that such circumstances probably exist.”
Further, “physical harm” is defined as “any injury, illness, or other physiological
impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3).
{¶39} Officer Defina’s testimony provided sufficient evidence to support the
conviction.
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{¶40} Therefore, viewing the evidence in the light most favorable to the
prosecution, there is sufficient evidence upon which a rational trier of fact could find,
beyond a reasonable doubt, that the elements of domestic violence have been proven.
{¶41} Appellant’s first assignment of error is without merit.
{¶42} In his second assignment of error, appellant argues that his conviction is
against the manifest weight of the evidence. He asserts the jury lost its way and
convicted him for his previous domestic violence convictions, not because of the weight
of evidence at this trial.
{¶43} With respect to manifest weight, in Schlee, supra, at *14-15, this court
stated:
{¶44} ‘Manifest weight’ requires a review of the weight of the evidence
presented, not whether the state has offered sufficient evidence on
each element of the offense.
{¶45} ‘In determining whether the verdict was against the manifest weight
of the evidence, “(* * *) the court reviewing the entire record, weighs
the evidence and all reasonable inferences, considers the credibility
of witnesses and determines 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. (* * *)”’ (Citations omitted.) * * * (Emphasis sic.)
{¶46} A judgment of a trial court 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.” State v. Thompkins, 78 Ohio St.3d 380, 387
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(1997). We further note that the jury is in the best position to assess the credibility of
witnesses. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.
{¶47} In reviewing and weighing all the evidence presented, including the
testimony of Officer Defina and Ms. Milano, Wanda’s written police statement, and the
credibility of all the witnesses who testified, we determine that a jury could reasonably
conclude appellant was guilty of the charged offense. The jury apparently placed great
weight on Wanda’s written police statement and the statements E.S. admitted to making
immediately after the incident, as opposed to their testimony at trial. The jury verdict
was not against the manifest weight of the evidence.
{¶48} Appellant’s second assignment of error is without merit.
{¶49} For the reasons discussed in this opinion, the judgment of the Ashtabula
County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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