State v. Kennedy

[Cite as State v. Kennedy, 2022-Ohio-3369.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY

STATE OF OHIO, CASE NO. 2021-A-0030

Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas

JENNIFER CAMILLE KENNEDY,
Trial Court No. 2021 CR 00187
Defendant-Appellant.

OPINION

Decided: September 26, 2022
Judgment: Reversed; remanded

Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

Robert N. Farinacci, 65 North Lake Street, Madison, OH 44057 (For Defendant-
Appellant).

THOMAS R. WRIGHT, P.J.

{¶1} Appellant, Jennifer Camille Kennedy, appeals the sentencing entry issued

following a jury trial through which she was found guilty of one count of patient abuse.

We reverse and remand.

{¶2} In 2021, the Ashtabula County Grand Jury indicted Kennedy on one count

of patient abuse, a fourth-degree felony, in violation of R.C. 2903.34(A)(1) and

2903.34(C). The charge stemmed from an allegation that Kennedy struck a resident of a

care facility where Kennedy was employed.
 {¶3} Kennedy pleaded not guilty, and the matter proceeded to jury trial. At trial,

the state presented the testimony of Kennedy’s former coworkers; the facility’s director of

nursing, assistant director of nursing, and administrator; and a special agent for the Ohio

Attorney General’s Office. A summary of the elicited testimony follows.

{¶4} One of Kennedy’s former coworkers, Skylar Darby, testified that she is a

state tested nurse aide (“STNA”) and was employed at the facility for approximately one

month prior to the incident. On the morning of October 28, 2019, at the end of her

overnight shift, Darby was dressing an elderly female resident (“the patient”) who suffers

from dementia and had been in a combative mood. As the shifts were changing at

approximately 6:30 a.m., Kennedy requested a walkie-talkie to use to begin work. Darby

told her that she was in the patient’s room finishing her shift, and Kennedy could come

assist her with the patient and then take Darby’s walkie-talkie. When Kennedy arrived in

the room, the patient again became agitated. When Kennedy and Darby attempted to

stand the patient, she resisted by sitting back down, and she did not want to be touched.

At some point, Kennedy and Darby were able to stand the patient up long enough to finish

dressing her and transfer her to a chair. After sitting the patient down, the patient spit in

Kennedy’s face. Kennedy immediately backhanded the patient across the cheek and

mouth area. The patient called Kennedy a “f***ing b*tch,” and Kennedy responded, “that’s

f***ing nasty.” The patient then spit on Kennedy a second time, and Kennedy again

backhanded her across the cheek and mouth area and said, “[Y]ou don’t spit in people’s

faces.” After they left the room, Darby reported the incident to another coworker,

Courtney Coffman, and then to the director of nursing and facility administration. On

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cross-examination, Darby indicated that the slaps were hard enough to leave a red mark

on the patient’s face, but not so hard as to force the patient’s head to turn.

{¶5} Coffman testified that she is also an STNA and was working the same shift

as Darby on the morning at issue. At about 7:00 that morning, Coffman saw Darby in

the hallway of the facility, and Darby was visibly upset. Darby told Coffman what she had

observed, and Coffman informed her to report the incident to the director of nursing, Gina

Gruey. Darby called Gruey, and Coffman observed that while Darby was speaking, her

voice was shaky, and she appeared pale.

{¶6} Gruey, a registered nurse, testified that when Darby called her, she

sounded distraught. Gruey directed Darby to return to the building and report the incident

to the charge nurse. Gruey characterized the patient’s dementia as severe with

behavioral disturbances. She maintained that she had interacted with the patient on

numerous occasions, and the patient demonstrated an inability to recollect events. On

cross-examination, Gruey indicated that she saw the patient on the morning at issue at

approximately 8:00 or 8:30, and she did not see any bruising, redness, or swelling on the

patient’s face.

{¶7} The assistant director of nursing, Katelyn Hosler, a trained wound care

nurse, testified that when she arrived at the facility between 8:00 and 8:20 on the morning

at issue, she was informed of the incident and conducted a skin assessment on the patient

for wounds. Hosler did not observe any injury to the patient. On cross-examination,

Hosler indicated that the staff continued to check on the patient for signs of injury on the

date of the incident and the day after; however, no surface signs of injury developed.

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 {¶8} The administrator of the facility, Arkadiy Koltsov, testified that Darby was

upset when reporting the incident to him. After speaking with Kennedy, a decision was

made to terminate her employment. Koltsov indicated that the patient had a history of

violent behaviors and had been diagnosed with dementia, persistent aggressive disorder,

and depressive disorder. On cross-examination, Koltsov stated that he observed the

patient at approximately 8:15 on the morning at issue, and he did not see any signs of

injury to the patient.

{¶9} Debra Gearhiser, a special agent for the Ohio Attorney General’s Office,

testified that she investigates allegations of patient abuse. Here, Gearhiser affirmed that

after her investigation, she compiled a referral for prosecution. On cross-examination,

Gearhiser affirmed that she had not seen any pictures of injuries to the patient or any

indication that the patient had complained of pain or discomfort.

{¶10} On behalf of the defense, Kennedy and Nicole Allen, her former coworker,

testified. Kennedy testified that she has been an STNA for over 15 years, and she worked

at the facility at issue for over six years. On the morning at issue, Kennedy clocked in for

work at 6:30. The facility was short on walkie-talkies that morning, and Kennedy used

another nurse’s walkie-talkie to ask the third shift nurses for one she could borrow for the

day. Darby informed Kennedy that she could use hers and to come to the patient’s room

to retrieve it. Kennedy had provided care to the patient many times, as she was often

assigned to the patient’s floor. When Kennedy arrived at the room, Darby had the patient

fully dressed from the waist up and had a brief and pants around the patient’s ankles

ready to be pulled up. Kennedy then assisted Darby in finishing the patient’s care, and

the patient became agitated, which was typical for this patient, who did not like to be

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touched. After they sat the patient back down, the patient began smacking with her

hands, and Kennedy took the patient’s hands and held them in the patient’s lap. At that

point, the patient twice spit on Kennedy. After the first time, Kennedy told the victim that

“was f***ing nasty,” but she did not physically react to the patient. The patient then began

calling her names and said she was going to spit on Kennedy again. Kennedy put one

hand in front of her face, but she did not extend her hand out or come into contact with

the patient with her hand. After the patient spit on her the second time, Kennedy left the

room, cleaned the spit off of her glasses, and began her shift. Less than a half-hour later,

Kennedy received a call to come to the nurse’s station. When she did, she was instructed

to immediately leave the facility. Kennedy became upset when she learned of the

allegations against her. Kennedy testified that she did not strike the patient either

purposefully or by mistake. Kennedy further testified that an incident occurred prior to the

incident at issue where Darby had neglected a patient, and Kennedy was blamed for that

incident.

{¶11} On cross-examination, Kennedy identified a written statement that she had

made on the day of the incident at issue. In the statement, Kennedy acknowledged that

she had written that both she and the patient were wailing their arms. On redirect,

Kennedy maintained that she was frustrated and upset when she wrote the statement,

and she had only about five minutes available to write the statement.

{¶12} Allen testified that she is an STNA that worked with Kennedy nearly every

day. Allen maintained that Kennedy was “one of the best” at the facility. On cross-

examination, Allen affirmed that she did not have any knowledge regarding the incident

at issue until Kennedy’s attorney informed her of the charges against her.

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 {¶13} The jury found Kennedy guilty on the sole count, and the trial court set the

matter for sentencing. At sentencing, the court imposed five years of community control

and sixty days of confinement.

{¶14} In her three assigned errors, Kennedy argues:

{¶15} “[1.] The Trial Court committed reversible error by permitting lay witnesses

to provide their opinions as to the Defendant’s guilt or innocence to the Jury and by

allowing extensive testimony by each to support the validity of their ultimate conclusions

of guilt.”

{¶16} “[2.] The Trial Court committed prejudicial error by permitting the

introduction of witness testimony that was hearsay, irrelevant, prohibitively prejudicial or

the product of leading questions the volume of which were so pervasive as to deprive the

Defendant of a fair trial.”

{¶17} “[3.] The Trial Court erred to the prejudice of the Defendant in permitting

lay witnesses to offer opinion testimony, as if testifying as an Expert, on a central issue

of guilt or innocence. R.Evid. 16(K).”

{¶18} We first note that several of the challenges that Kennedy raises in her three

assigned errors pertain to admission of specific portions of testimony and leading

questions by the state to which defense counsel did not object. Accordingly, to that

extent, Kennedy’s arguments were forfeited for purposes of appeal, save for plain error

review. See State v. Fecko, 11th Dist. Trumbull No. 2021-T-0021, 2022-Ohio-1277, ¶ 36.

However, as we find admission of certain testimony to which objections were raised

constitutes reversible error, we need not address the remaining challenges, whether or

not forfeited, as they are rendered moot. See App.R. 12(A)(1)(c).

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 {¶19} In her first assigned error, Kennedy maintains that the state’s witnesses

impermissibly provided opinion testimony as to Kennedy’s guilt and Darby’s veracity.

{¶20} Pursuant to the Rules of Evidence, relevant evidence is generally

admissible, and irrelevant evidence is inadmissible. Evid.R. 402. “‘Relevant evidence’

means 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.” Evid. R. 401. Pursuant to Evid.R. 701, “If the witness

is not testifying as an expert, the witness’ testimony in the form of opinions or inferences

is limited to those opinions or inferences which are (1) rationally based on the perception

of the witness and (2) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue.” However, “‘“it is the fact finder, not the so-called expert

or lay witnesses, who bears the burden of assessing the credibility and veracity of

witnesses.”’” State v. Alex, 11th Dist. Ashtabula No. 2016-A-0055, 2017-Ohio-8527, ¶

25, quoting State v. Boston, 46 Ohio St.3d 108, 129, 545 N.E.2d 1220 (1989), overruled,

in part, on other grounds by State v. Dever, 64 Ohio St.3d 401, 596 N.E.2d 436 (1992),

quoting State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988) (Brown, J.,

concurring). Accordingly, witnesses are not permitted to offer opinions on the truthfulness

of other witnesses. State v. Bowden, 11th Dist. Ashtabula No. 2013-A-0040, 2014-Ohio-

158, ¶ 43, citing State v. Bajaj, 7th Dist. Columbiana No. 03CO 16, 2005-Ohio-2931, ¶ 72

and State v. Kovac, 150 Ohio App.3d 676, 2002-Ohio-6784, 782 N.E.2d 1185, ¶ 43 (2d

Dist.). “The state elicits such opinion evidence at its peril, particularly where the evidence

essentially involves a credibility contest and significant independent evidence of the

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offenses * * * is lacking.” State v. Miller, 2d Dist. Montgomery No. 18102, 2001 WL 62793,

*7 (June 26, 2001).

{¶21} As indicated in our summary of the testimony, the trial focused primarily on

the credibility of Darby and Kennedy as to their accounts of the incident. The parties

agree that the patient was unable to competently relay information regarding the incident

due to her conditions. It is further undisputed that no physical evidence of injury to the

patient was discovered aside from Darby’s testimony that the slaps left a red mark on the

patient’s face.

{¶22} At the end of the direct examination of Gruey, the state questioned her as

follows:

Q. And based on all the knowledge that you have, did you
have any reason not to believe Ms. Darby?

MR. LOFTUS: Objection.

THE COURT: One moment. Overruled.

BY [THE STATE]:

Q. You can answer.

A. Can you repeat the question?

Q. Absolutely. With all of the knowledge that you have, did
you have any reason not to believe Ms. Darby?

A. No.

{¶23} On redirect examination of Gruey, the following exchange

occurred:

Q. Ms. Gruey, were you part of the decision process to let
Ms. Kennedy go?

A. Yes.
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 Q. And knowing all that you know about that incident, the one
we’re here for today, are you comfortable with that decision?

[DEFENSE COUNSEL]: Objection.

THE COURT: Overruled.

BY [THE STATE]:

Q. You can answer.

A. Yes.

{¶24} These questions impermissibly infringed upon the province of the jury to

determine the truthfulness of witnesses and were therefore improper. See State v. Lentz,

6th Dist. Erie No. E-91-58, 1993 WL 241679, *7 (June 30, 1993) (if objection had been

raised to question of whether witness had reason to believe officers were lying, then the

testimony would not have been admissible); Miller, 2001 WL 62793, at *6 (“police officers’

testimonies * * * were in direct violation of Boston because they offered an opinion as to

the truth of [victim’s] accusations”).

{¶25} Further, Kennedy challenges portions of Gearhiser’s testimony. After

Gearhiser testified as to her role in investigating crimes against nursing home residents

as an agent in the patient and abuse section of the Ohio Attorney General’s Office, the

following exchange occurred:

Q. And approximately, your best guess, in a given year, how
many cases come into your office?

A. Well, this case occurred in 2019, and during that year, um
– well, in general, on an annual basis we probably get a
thousand complaints in general to our office; at least a
thousand complaints.

Q. And in 2019, do you know how many specific abuse and
neglect complaints you received?
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 A. Abuse and neglect complaints, we received approximately
224 or 225 complaints.

Q. And of those 225ish, how many were actually opened and
investigated?

[DEFENSE COUNSEL]: Objection.

THE COURT: Overruled.

A. Approximately 114.

Q. And of that 114, how many got to the stage of referring for
prosecution?

[DEFENSE COUNSEL]: Objection.

THE COURT: Overruled.

A. 14 for that particular year.

Q. And this would be one of them?

A. Yes.

{¶26} Assuming, without deciding, that the investigative methods and procedures

that Gearhiser employed in this case were relevant, we cannot discern a proper relevant

purpose for the testimony regarding the particular numbers of cases winnowing from

those reported to the Attorney General’s Office, to those investigated, and then to those

referred for prosecution. See Evid.R. 401. The only basis that this court can discern for

evidence of the rarity with which the Attorney General’s Office refers these complaints for

prosecution is to improperly bolster Darby’s credibility through statistics that did not

pertain to a fact at issue in this case. Accordingly, the trial court erroneously overruled

Kennedy’s objections to this testimony.

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 {¶27} However, having concluded that the trial court erroneous overruled defense

counsel’s objections to the questions posed to Gruey and Gearhiser does not end our

inquiry, as we must further determine whether admission of this testimony was harmless.

Crim.R. 52(A) defines harmless error in the context of criminal
cases and provides: “Any error, defect, irregularity, or
variance which does not affect substantial rights shall be
disregarded.” During a harmless-error inquiry, the state has
the burden of proving that the error did not affect the
substantial rights of the defendant. State v. Perry, 101 Ohio
St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15.
Furthermore, if there is “a ‘[d]eviation from a legal rule,’” courts
undertake a “‘harmless error’ inquiry—to determine whether
the error ‘affect[ed] substantial rights’ of the criminal
defendant.” State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-
2761, 789 N.E.2d 222, ¶ 7, quoting United States v. Olano,
507 U.S. 725, 732–733, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508
(1993). The term “substantial rights” has been interpreted to
require that “‘the error must have been prejudicial.’ (Emphasis
added.)” Id., quoting Olano at 734 * * *[.] If a court determines
that the error did not affect the defendant’s substantial rights,
then the error is harmless and “‘shall be discarded.’” Id.,
quoting Crim.R. 52(A).

State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 23. In Morris,

the Supreme Court of Ohio identified three steps in determining whether an error is

harmless pursuant to Crim.R. 52(A). “First, there must be prejudice to the defendant as

a result of the admission of the improper evidence at trial.” Id. at ¶ 27. “Second, an

appellate court must declare a belief that the error was not harmless beyond a reasonable

doubt.” (Citations omitted.) Id. at ¶ 28. “Third, in determining whether a new trial is

required or the error is harmless beyond a reasonable doubt, the court must excise the

improper evidence from the record and then look to the remaining evidence.” Id. at ¶ 29.

“‘“[T]he cases where imposition of harmless error is appropriate must involve either

overwhelming evidence of guilt or some other indicia that the error did not contribute to
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the conviction.”’” Id., quoting State v. Rahman, 23 Ohio St.3d 146, 151, 492 N.E.2d 401

(1986), quoting State v. Ferguson, 5 Ohio St.3d 160, 166, 450 N.E.2d 265 (1983), fn. 5.

When reviewing the remaining evidence, the reviewing court’s role “‘is not to sit as the

supreme trier of fact, but rather to assess the impact of this erroneously admitted

testimony on the jury.’” Morris at ¶ 29, quoting Rahman at 151, fn. 4.

{¶28} Here, Gruey’s statements that she had no reason to disbelieve Darby and

that she was comfortable with the decision to terminate Kennedy’s employment were

prejudicial to Kennedy, as the statements of Darby and Kennedy were inconsistent on the

central issue of whether Kennedy slapped the patient. Further, Gruey was in a position

of authority at the care facility that employed both Darby and Kennedy, allowing an

inference that her position and familiarity with these individuals provided her with superior

assessment of their veracity. Although we cannot say that the outcome would have

necessarily been different if not for Gruey’s and Gearhiser’s challenged testimony, this is

not a case where there was overwhelming evidence of guilt or other indicia that the

challenged testimony did not contribute to the conviction, as the primary issue pertained

to the credibility of Darby and Kennedy. Accordingly, admission of the testimony was not

harmless beyond a reasonable doubt, and Kennedy’s conviction must be reversed on this

issue alone. Consequently, to this extent, Kennedy’s first assigned error has merit.

{¶29} Having found reversible error regarding this aspect of Kennedy’s first

assigned error, we do not further address the remaining challenges presented on appeal,

as they have been rendered moot.

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 {¶30} The judgment is reversed, and the matter is remanded for further

proceedings consistent with this opinion.

CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.

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