State v. Harmon ( 2013 )

[Cite as State v. Harmon, 2013-Ohio-2319.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26426
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ALEXANDER H. HARMON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE Nos. CR 11 06 1481
CR 09 12 3811
DECISION AND JOURNAL ENTRY
Dated: June 5, 2013
BELFANCE, Judge.
{¶1} Alexander Harmon appeals his convictions from the Summit County Court of
Common Pleas. For the reasons set forth below, we affirm.
I.
{¶2} This case arises, in large part, from the tumultuous relationship between Mr.
Harmon and M.V., with whom he has two daughters. On December 28, 2009, M.V. called 911
to report that Mr. Harmon had attacked her, thrown her out of their house, and was keeping their
infant daughter. The police arrived and ultimately arrested Mr. Harmon.
{¶3} On March 19, 2010, while Mr. Harmon was awaiting trial on the charges
stemming from the December 28, 2009 incident, M.V. called 911 to report that Mr. Harmon had
attacked her while she was holding their daughter. On March 27, 2010, M.V again called 911 to
report that Mr. Harmon had shoved her to the floor and kicked her while she held their daughter.
Over a year later, on May 31, 2011, M.V. reported another violent incident with Mr. Harmon.
2
The police encountered Mr. Harmon in the early hours of June 1, 2011, when they arrested him
after a short car chase. In the course of the arrest, Mr. Harmon told the officers that he would
kill them.
{¶4} Mr. Harmon was initially indicted on January 5, 2010, for domestic violence,
resisting arrest, and obstructing official business stemming from the December 2009 incident.
As a result of the incidents on March 19, 2010, March 27, 2010, May 31, 2011, and June 1,
2011, Mr. Harmon was indicted on six counts of domestic violence, three counts of endangering
children, three counts of aggravated menacing, and one count each of aggravated burglary,
burglary, driving under suspension, and obstructing official business.1 Mr. Harmon’s 2010 and
2011 indictments were joined, and the cases were tried together before a jury. With respect to
the charges stemming from the December 2009 incident, the jury acquitted Mr. Harmon of
domestic violence but found him guilty of resisting arrest and obstruction of official business.
With respect to the charges stemming from the 2010 and 2011 incidents, the jury acquitted Mr.
Harmon of aggravated burglary and two counts of domestic violence but convicted him of the
remaining charges. The trial court sentenced Mr. Harmon to an aggregate prison term of four
years.
{¶5} Mr. Harmon has appealed, raising four assignments of error for our review. For
ease of discussion, we have rearranged Mr. Harmon’s assignments of error.
II.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE THE
STATE FAILED TO ESTABLISH ON THE RECOR[D] SUFFICIENT
EVIDENCE TO SUPPORT THE CHARGES LEVIED AGAINST [MR.]
1
Mr. Harmon was also indicted on two counts of disrupting public services, but those
charges were dismissed by the State before trial.
3
HARMON IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH
AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS
1, 10 & 16 OF THE OHIO CONSTITUTION.
{¶6} Mr. Harmon’s third assignment of error is that his convictions are not supported
by sufficient evidence. In his brief, Mr. Harmon combines this assignment of error with his
fourth assignment of error, in which he argues that his convictions are against the manifest
weight of the evidence. However, Mr. Harmon does not develop any argument regarding the
sufficiency of the evidence, instead focusing solely on the manifest weight of the evidence, and
we will not create one for him. See App.R. 16(A)(7); Cardone v. Cardone, 9th Dist. No. 18349,
1998 WL 224934, *8 (May 6, 1998). Nevertheless, our review of the record reveals that his
convictions are supported by sufficient evidence. Accordingly, his third assignment of error is
overruled.
ASSIGNMENT OF ERROR IV
[MR.] HARMON’S CONVICTIONS ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE * * * IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND
ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.
{¶7} In Mr. Harmon’s fourth assignment of error he argues that his convictions are
against the manifest weight of the evidence. We disagree.
{¶8} In reviewing a challenge to the weight of the evidence, the appellate court
[m]ust 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).
{¶9} We initially note that Mr. Harmon’s arguments focus solely on whether the
alleged domestic violence and child endangering occurred on March 19, 2010, March 27, 2010,
4
and May 31, 2010.2 He has not developed any argument regarding his convictions for burglary,
driving with a suspended license, aggravated menacing, obstructing official business, and
resisting arrest. Therefore, we confine our analysis to his convictions for domestic violence and
child endangerment. See Cardone, 1998 WL 224934, at *8; App.R. 16(A)(7).
{¶10} Mr. Harmon was convicted of violating R.C. 2919.22(A) by committing child
endangering. R.C. 2919.22(A) provides, in pertinent part, that “[n]o person, who is the parent *
* * of a child under eighteen years of age * * * shall create a substantial risk to the health or
safety of the child, by violating a duty of care, protection, or support.” He was also convicted of
domestic violence. R.C. 2919.25(A) provides: “No person shall knowingly cause or attempt to
cause physical harm to a family or household member[.]” R.C. 2919.25(C) provides: “No
person, by threat of force, shall knowingly cause a family or household member to believe that
the offender will cause imminent physical harm to the family or household member.” “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.” R.C. 2901.22(B).
{¶11} For ease of discussion, we have divided the events at issue in this case into the
separate days on which they occurred.
March 19, 2010
{¶12} Based on the events of March 19, 2010, Mr. Harmon was convicted of violating
R.C. 2919.22(A) by committing child endangering. He argues that his conviction was against
2
Mr. Harmon was acquitted of the domestic violence charge stemming from the
December 2009 indictment.
5
the manifest weight of the evidence because M.V. recanted her initial statements to police at
trial.
{¶13} M.V. was called as the court’s witness. During cross-examination by the State,
M.V. admitted that she had called 911 on March 19, 2010, and reported that Mr. Harmon had
attacked her. She also admitted that she had written a statement for the police that night in which
she claimed that Mr. Harmon had choked her while she was holding their daughter. Her written
statement was consistent with her 911 call. When questioned by Mr. Harmon’s counsel, M.V.
stated that she had lied about Mr. Harmon attacking her. According to M.V., she had come
home from work, and Mr. Harmon told her he was leaving her because he had found out she was
seeing someone else. He also told M.V. that he was taking their daughter with him. M.V. then
called 911, claiming that Mr. Harmon had forced his way into the house and started hitting her
while she held their daughter in her arms. However, she testified that none of that was true,
explaining that Mr. Harmon lived with her and had a key to the apartment. She also said that she
loved Mr. Harmon.
{¶14} Officer Michael Radak testified that he was dispatched in response to M.V.’s 911
call. Officer Radak observed red marks on M.V.’s chest. According to Officer Radak, M.V. told
him that Mr. Harmon had forced his way into the apartment, choked her, and threw her around
the apartment, all while she was holding their daughter. Officer Radak testified that he did not
detect any odor of alcohol on M.V. and that she appeared to be sober.
{¶15} Officer Jeffrey Kubasek responded to the 911 call with Officer Radak. He
testified that M.V. had redness on her chest and neck and that she was crying and appeared
shaken. She told him that Mr. Harmon had forced his way into the apartment. After Officer
Kubasek and Officer Radak had finished speaking with M.V., she had a relative come get her
6
because she did not want to stay in the apartment. According to Officer Kubasek, she reported
that Mr. Harmon had taken her keys during the assault.
{¶16} Mark Adam, a paramedic, treated M.V. on March 19, 2010. His report indicated
that M.V. had indicated that she had lost consciousness during the incident with Mr. Harmon that
night and that Mr. Harmon had pushed her against the refrigerator repeatedly.
{¶17} Mr. Harmon argues that, because M.V. testified that she had lied to the police
about him forcing his way into the house and attacking her, his conviction for child
endangerment on March 19, 2010, is against the manifest weight of the evidence. There was
evidence at trial that Mr. Harmon had choked M.V. and shoved her while she held their daughter,
which would constitute creating a substantial risk of harm to their daughter. While M.V. did
deny that Mr. Harmon had ever harmed her, Officer Radak testified that he observed red marks
on M.V.’s chest and her hair stuck to the refrigerator doors, which the jury could have seen as
corroborating M.V.’s initial story to him that Mr. Harmon had attacked her. Given M.V.’s
relationship with Mr. Harmon, her statements that she loved him, and how thoroughly her
statements at trial contradicted her statements to the police, the jury could reasonably have
questioned M.V.’s credibility and believed that her initial statements to the police were more
truthful than her trial testimony. Thus, after a thorough review of the record, we cannot conclude
that Mr. Harmon’s conviction for child endangerment on March 19, 2010, is against the manifest
weight of the evidence.
March 27, 2010
{¶18} Based on the events of March 27, 2010, Mr. Harmon was convicted of violating
R.C. 2919.22(A) by committing child endangering and R.C. 2919.25(A) and (C) by committing
domestic violence. Mr. Harmon argues that his convictions are against the manifest weight of
7
the evidence because M.V. recanted her statements to the police and because there was no
evidence presented that M.V. was injured.
{¶19} M.V. admitted that she called 911 again on the evening of March 27, 2010.
Although she testified that Mr. Harmon lived with her at the time, she also acknowledged that a
protection order was in effect, which provided that Mr. Harmon should not have been at her
house. She also agreed that she had written a statement for the police that night, in which she
claimed that she came home from work to find Mr. Harmon in the apartment. When she told
him to leave, he threw her to the ground and kicked her in the face. The jury heard the 911 call
M.V. made at the time of the incident. M.V.’s written statement was consistent with what she
told the 911 operator during the call.
{¶20} M.V. testified on cross-examination by Mr. Harmon’s counsel that Mr. Harmon,
after the March 19, 2010 incident, had given her another chance. According to M.V., Mr.
Harmon “[j]ust takes [her] back * * *. [She] always call[s] him and he’ll come back to the house
and [they] make up.” However, when she came home from work on March 27, 2010, he again
threatened to move out of the house because of her drug and alcohol abuse.
{¶21} Officer Tim Wypasek testified that he responded to a 911 call at 717 Druid Walk
on March 27, 2010. Once there, he encountered M.V., whom he described as visibly shaken and
flustered. She informed him that she had entered the apartment and discovered Mr. Harmon
inside. She told him that Mr. Harmon had shoved her to the floor while she was holding their
child in her arms and then proceeded to kick her in the head and face. Officer Wypasek testified
that he observed red marks on M.V.
{¶22} Officer Jamie Donohue testified that he was partnered with Officer Wypasek on
March 27, 2010, and that they responded to a 911 call at 717 Druid Walk. According to Officer
8
Donohue, M.V. was visibly upset and kept repeating “‘I don’t understand how he got in. How
did he get in?’” Eventually, the officers learned from her that she had come home from work
and found Mr. Harmon in the apartment. She told the officers that Mr. Harmon had thrown her
on the floor and kicked her in the face. Officer Donohue also testified that he did not believe
M.V. was intoxicated or under the influence of drugs on March 27, 2010.
{¶23} The defense called Stephen Dort, the paramedic who examined M.V. on March
27, 2010. He testified that he did not observe any visible injuries and noted that in his report.
He also noted that M.V. complained of facial pain. However, there was no swelling, redness, or
abrasions in the area she was complaining about. On cross-examination, Mr. Dort testified that
being kicked does not necessarily result in an injury.
{¶24} Mr. Harmon argues that his convictions for domestic violence, and child
endangerment on March 27, 2010, are against the manifest weight of the evidence because there
was no evidence that M.V. was injured. Whether M.V. was injured is not relevant to whether
Mr. Harmon created a substantial risk of harm to his daughter. See R.C. 2919.22(A). In
addition, the absence of injury would not preclude the jury from finding that Mr. Harmon, by
threat of force, knowingly caused M.V. to believe he would cause imminent physical harm. See
R.C. 2919.25(C). However, the absence of injury does relate to the credibility of her statements
to the police that Mr. Harmon had thrown her to the floor and kicked her while she held their
daughter, which would constitute child endangerment. However, while M.V. testified at trial
that she had lied to the police, Officer Wypasek testified that he had observed red marks on her
when he spoke to her on March 27, 2010. Mr. Dort testified that, while he did not observe any
injury on M.V., she did complain of facial pain and that a person could be kicked without
causing an injury. Again, given M.V.’s relationship to Mr. Harmon, her statements that she
9
loved him, and how thoroughly her statements at trial contradicted her statements to the police,
the jury could reasonably have questioned M.V.’s credibility and believed that her initial
statements to the police were more truthful than her trial testimony. Thus, we cannot conclude
that jury lost its way and created a manifest miscarriage of justice when it found Mr. Harmon
guilty of domestic violence and child endangerment on March 27, 2010.
May 31, 2011
{¶25} Based on the events of May 31, 2011, Mr. Harmon was convicted of violating
R.C. 2919.25(A) and (C) by committing domestic violence and R.C. 2919.22(A) by committing
child endangering. Mr. Harmon argues his convictions are against the manifest weight of the
evidence because M.V. recanted her statements to the police and contradicted the testimony of
Rachel Jones, M.V.’s neighbor.
{¶26} Ms. Jones testified that, on May 31, 2011, she heard M.V. screaming for help, and
saw Mr. Harmon grabbing and shoving M.V. in the hallway of the apartment complex where
they lived. When Ms. Jones attempted to intervene, Mr. Harmon began yelling at her. Ms. Jones
testified that, after Mr. Harmon yelled at her, she called 911. According to Ms. Jones, M.V. had
the newborn with her during this incident. M.V. told Ms. Jones that the incident was not
abnormal, that she did not know why she stayed with Mr. Harmon, and that she was scared to
leave him because Mr. Harmon had threatened to kill her.
{¶27} Sergeant Daniel Engelhart testified that he responded to a call about domestic
violence at 1046 Nadia Court on May 31, 2011. He encountered M.V. who walked towards him,
and he could tell that she was upset and scared. M.V. told Sergeant Engelhart that Mr. Harmon
had slapped her in the face, and he observed a red mark on her face. M.V. told him that Mr.
10
Harmon had prevented her from calling the police, had taken her keys, and left. Sergeant
Engelhart testified that she did not appear to be intoxicated or using drugs.
{¶28} In contrast to the above testimony, M.V. testified that, on May 31, 2011, she
chased Mr. Harmon out of the apartment while carrying the couple’s newborn because she did
not want him to leave, but she denied that Mr. Harmon had hit or grabbed her.
{¶29} Mr. Harmon argues that his convictions stemming from the events of May 31,
2011, are against the manifest weight of the evidence because M.V.’s trial testimony contradicts
that of Ms. Jones. Ms. Jones testified that Mr. Harmon grabbed and shoved M.V., and Sergeant
Engelhart testified that M.V. reported being slapped by Mr. Harmon. While M.V. denied that
Mr. Harmon had hit, grabbed, or otherwise engaged in any violence against her, she did testify
that she chased Mr. Harmon from the apartment while holding their newborn, and Ms. Jones
testified that M.V. had the couple’s newborn with her in the hallway, which is where Ms. Jones
saw Mr. Harmon grab and shove M.V. The jury was required to weigh the credibility of the
witnesses in light of the competing testimony. Upon review of the record, we do not discern
anything apart from M.V.’s testimony that calls the credibility of Ms. Jones and Sergeant
Engelhart into question. Thus, we cannot say that, to the extent that the jury believed the
testimony of Sergeant Engelhart and Ms. Jones, it lost its way. Accordingly, we cannot
conclude that his convictions for domestic violence and child endangerment on May 31, 2011,
are against the manifest weight of the evidence.
{¶30} Mr. Harmon’s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT ALLOWED
EXPERT TESTIMONY REGARDING DOMESTIC VIOLENCE IN THE
STATE’S CASE IN CHIEF IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT TO THE U.S.
11
CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO
CONSTITUTION.
{¶31} Mr. Harmon argues in his first assignment of error that the trial court should not
have allowed Ms. Zedak to testify about battered-woman syndrome. He asserts that the trial
court abused its discretion in allowing expert testimony when there was no established pattern of
domestic violence. We disagree.
{¶32} When determining whether expert testimony about battered woman syndrome is
admissible, the initial question is whether it is relevant. State v. Haines, 112 Ohio St.3d 393,
2006-Ohio-6711, ¶ 44. “Generally, battered woman syndrome testimony is relevant and helpful
when needed to explain a complainant’s actions, such as prolonged endurance of physical abuse
accompanied by attempts at hiding or minimizing the abuse, delays in reporting the abuse, or
recanting allegations of abuse.” (Internal quotations and citations omitted.) Id.Such seemingly inconsistent actions are relevant to a witness’s credibility.
Because the victim’s credibility can be attacked during cross-examination of the
victim or even during opening statements, the prosecution need not wait until
rebuttal to present expert testimony on battered woman syndrome. Rather, such
testimony may be presented as rehabilitative evidence during the state’s case-in-
chief.
(Internal quotations and citations omitted.) Id.{¶33} In this case, Mr. Harmon does not argue that the expert testimony lacked
relevance under Evid.R. 401.3 The record in this case establishes that M.V., despite 911 calls
and reports to the police, repeatedly recanted her allegations of abuse at trial. Testimony showed
that M.V. recanted numerous reports of abuse, professed her love for the defendant and blamed
3
We note that Mr. Harmon does not argue that Ms. Zedak lacked the necessary
qualifications of an expert on the battered-woman syndrome.
12
herself for some of the incidents. M.V.’s recantation was the focus of cross-examination by the
State and defense. Accordingly, the battered-woman syndrome testimony could be relevant and
helpful to explain M.V.’s recantations of alleged abuse. Haines at ¶ 44. Moreover, M.V.’s
credibility was at issue in light of her recantation. Thus, as in Haines, expert testimony “could
address those supposed anomalies.” Id. at ¶ 46.
{¶34} However, “while such testimony can be relevant for explaining a victim’s
behavior, it cannot be considered relevant if there is no evidence that the victim suffers from
battered-woman syndrome.” Id. “‘The battering relationship itself is often described as cyclical
in nature, with three distinct phases: tension building, confrontation, and contrition.’” Id. at ¶ 48,
quoting Hawes, Removing the Roadblocks to Successful Domestic Violence Prosecutions:
Prosecutorial Use of Expert Testimony on the Battered Woman Syndrome in Ohio, 53
Clev.St.L.Rev. 133, 137 (2005). “Evidence generally establishing the cycles of a battering
relationship is an appropriate foundation for battered-woman-syndrome expert testimony.”
(Emphasis added.) Haines at ¶ 48. “[I]n order to be classified as a battered woman, the couple
must go through the battering cycle at least twice. Any woman may find herself in an abusive
relationship with a man once. If it occurs a second time, and she remains in the situation, she is
defined as a battered woman.” (Internal quotations and citations omitted.) Id. at ¶ 49.
{¶35} Mr. Harmon argues that the State did not establish that M.V. suffered from
battered-woman syndrome. According to Mr. Harmon, there was no evidence of the tension-
building phase in the battered-woman cycle, although he concedes that the State presented
evidence concerning confrontation and contrition, or honeymoon, stages of the cycle. Thus, he
contends that the trial court improperly allowed the jury to infer that that the tension-building
13
phase of the cycle was present solely by virtue of the existence of the two phases. However, a
set of rigid foundational requirements is unnecessary, rather
the party seeking to introduce battered woman syndrome evidence must lay an
appropriate foundation substantiating that the conduct and behavior of the witness
is consistent with the generally recognized symptoms of the battered woman
syndrome, and that the witness has behaved in such a manner that the jury would
be aided by expert testimony which provides a possible explanation for the
behavior.
Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, at ¶ 47.
{¶36} The evidence against Harmon generally established the cycles of a battered-
woman syndrome. The prosecution established that multiple, successive incidents of abuse were
followed by reconciliation. In the most recent instance, a third party, Ms. Jones, stated she
witnessed violence against M.V. Ms. Jones testified that M.V. told her that the violent incident
was not abnormal, that she did not know why she stayed with Mr. Harmon, and that she was
scared to leave him because Mr. Harmon had threatened to kill her. We also note that M.V.
admitted that their disagreements often rise to the level of screaming at each other and also
admitted that, even when he was in jail, Mr. Harmon ordered her to stop visiting a friend and go
home. M.V. also testified that Mr. Harmon had often threatened to call Children’s Services to
have her children taken from her. While M.V. characterized Mr. Harmon’s threats about calling
Children’s Services as attempts to have her stop her drug habit, they could also constitute
evidence of the tension-building stage of the cycle given that, according to Ms. Zedak’s
testimony, the tension-building phase typically consists of the abuser making threats or otherwise
intimidating the woman, which can include using children against her. See also id., quoting
Hawes, 53 Clev.St.L.Rev. at 137 (“‘During the ‘tension building’ phase, the woman is generally
compliant, often feeling as though she deserves the abuse.’”); Haines at ¶ 50 (“The prosecution
established through testimony about the October 2001 incident and the March 2002 incident that
14
Haines’s psychological abuse and controlling behavior were followed first by an outburst of
violence and then by Haines’s supposed regret and a reconciliation.”). Thus, the State laid the
necessary foundation substantiating that M.V.’s behavior was consistent with generally
recognized symptoms of battered woman syndrome and that she behaved in such a manner that
the jury would be aided by expert testimony.
{¶37} However, Mr. Harmon also argues that the testimony was impermissible because
it was not rehabilitative in nature. Haines involved a situation in which the State had called the
victim as its witness to testify. The victim testified to ongoing abuse and was subjected to cross-
examination by defense counsel during which the victim admitted to staying with the defendant
despite repeated abuse. See Haines at ¶ 45. In rebuttal, the State sought to introduce expert
testimony concerning the battered-woman syndrome. See id. at ¶ 14. In this context, the Ohio
Supreme Court determined that “when a [domestic abuse] victim’s credibility is challenged upon
cross-examination during the state’s case-in-chief, the state may introduce expert testimony
regarding battered-woman syndrome to aid the trier-of-fact in understanding the victim’s state of
mind, e.g., to explain why she returned to the defendant despite his aggressions toward her.” Id.
at ¶ 65. Mr. Harmon argues that, unlike the victim in Haines, M.V.’s credibility was not
challenged by defense counsel during the State’s case-in-chief. Instead, because M.V. was
called as the court’s witness, it was the State that called M.V.’s credibility into question, not the
defense, and, therefore, the State should not have been allowed to attempt to rehabilitate her.4
4
Mr. Harmon also appears to suggest in passing that the trial court should not have called
M.V. as its own witness. However, he never develops any argument on this point, Cardone,
1998 WL 224934, at *8, and, regardless, one of Mr. Harmon’s attorneys asserted on the record
that she had no objection to the trial court calling M.V. as its witness. State v. Hairston, 9th Dist.
No. 05CA008768, 2006-Ohio-4925, ¶ 50, quoting Lester v. Leuck, 142 Ohio St. 91 (1943),
syllabus (“Invited error prohibits a party from ‘tak[ing] advantage of an error which he himself
invited or induced the trial court to make.’”).
15
However, it is undisputed that the defense also questioned M.V. about why her testimony at trial
differed from her statements to the police, characterizing her statements to the police as false
reporting. In other words, M.V.’s recantation of successive instances of domestic violence was
the focus of both the State and the defense. Furthermore, Mr. Harmon’s counsel informed the
jury during her opening argument that M.V. had recanted her statements to the police. See
Haines at ¶ 44 (“Because the victim’s credibility can be attacked during cross-examination of the
victim or even during opening statements, the prosecution need not wait until rebuttal to present
expert testimony on battered woman syndrome. Rather, such testimony may be presented as
rehabilitative evidence during the state’s case-in-chief.”) (Emphasis added.) (Internal quotations
and citations omitted.).
{¶38} Haines clearly recognizes that one of the proper uses of expert testimony about
battered-woman syndrome is to explain a victim’s “recanting allegations of abuse.” (Internal
quotations and citations omitted.) Id.. That was exactly what was at issue here with M.V.
testifying at trial that the abuse never occurred despite numerous 911 calls and reports to the
police. Although we recognize that Haines was decided under a different procedural posture, we
do not discern anything in Haines that suggests that it is inapplicable to a situation where the
victim is called as the court’s witness under circumstances where the victim has recanted the
allegations of abuse and an appropriate foundation has been laid that the victim suffers from
battered-woman syndrome. Thus, given the evidence in the record before us, we cannot say that
the trial court abused its discretion when it allowed Ms. Zedak to testify about battered-woman
syndrome.
{¶39} Mr. Harmon’s first assignment of error is overruled.
16
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED [MR.]
HARMON’S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH
AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION
16 OF THE OHIO CONSTITUTION WHEN IT FAILED TO SEVER THE 2009
CASE FROM THE 2011 CASE.
{¶40} In Mr. Harmon’s second assignment of error, he argues that the trial court erred in
denying his motion to sever the indictments. We disagree.
{¶41} “If it appears that a defendant * * * is prejudiced by a joinder of offenses * * * in
an indictment, * * * the court shall order an election or separate trial of counts, grant a severance
of defendants, or provide such other relief as justice requires.” Crim.R. 14. To prevail on a
motion to sever, a defendant has the burden of demonstrating three facts:
(1) that his rights were prejudiced, (2) that at the time of the motion to sever he
provided the trial court with sufficient information so that it could weigh the
considerations favoring joinder against the defendant’s right to a fair trial, and (3)
that given the information provided to the court, it abused its discretion in
refusing to separate the charges for trial.
State v. Schaim, 65 Ohio St.3d 51, 59 (1992).
{¶42} Mr. Harmon filed two motions to sever in the trial court: one to sever the counts
of the 2011 indictment and one to sever the 2010 and 2011 indictments after the trial court
granted the State’s motion for joinder. Mr. Harmon renewed both motions at the close of the
State’s case. However, on appeal, Mr. Harmon limits his argument to the second motion, and we
limit our analysis accordingly.
{¶43} We first examine Mr. Harmon’s claim of prejudice. “When a defendant claims
that he was prejudiced by the joinder of multiple offenses, a court must determine (1) whether
evidence of the other crimes would be admissible even if the counts were severed, and (2) if not,
whether the evidence of each crime is simple and distinct.” Id. Mr. Harmon argues that the
17
evidence of the incident occurring in December 2009 as contained in the 2010 indictment would
not have been admissible in the 2011 case. However, even assuming, without deciding, that the
evidence concerning the December 28, 2009 incident would not be admissible in the 2011 case,
we cannot conclude that he suffered prejudice because the evidence of the December 28, 2009
incident was simple and distinct from the incidents at issue in the 2011 indictment. See id.{¶44} Mr. Harmon makes a very limited argument in this regard. He contends that the
evidence was not simple and distinct because “[s]everal of the witnesses testified about multiple
events that were similar enough that the jury was not able to reach separate, distinct conclusions
regarding each offense.” However, he does not point to any specific evidence or testimony in
support of this argument. See App.R. 16(A)(7). Furthermore, he does not explain how the jury
was confused about the specific events occurring in December 2009 with those occurring many
months later. He does suggest that the testimony of the officers is “confusing[ because] [s]ome
officers were involved in more than one [] event, while others could testify to only a portion of
an event.” While it is true that Officers Radak, Kubasek, Wypasek, and Donohoe testified about
events on different days, their testimony about the events of December 28, 2009, was limited to
Mr. Harmon’s behavior when he was arrested whereas their testimony about the events of March
19 and March 27, 2010, involved their interaction with M.V. and did not involve any interaction
with Mr. Harmon. Thus, it is unclear why the jury would be unable to separate their testimony
about their interviews of M.V. in March 2010, from their testimony about Mr. Harmon’s actions
during his arrest three months earlier.
{¶45} Mr. Harmon also argues that during opening statements, the prosecutor and his
counsel confused the dates regarding incidents occurring on March 19 and March 27, 2010.
However, he does not explain how this is relevant to consideration of whether the 2009 incident
18
was simple and distinct from the incidents of March 2010, May 31, 2011, and June 1, 2011.
There was no suggestion that the prosecutor or his counsel displayed any confusion regarding the
December 2009 incident as set forth in the 2010 indictment. Ultimately, Mr. Harmon was
acquitted of the domestic violence charge associated with the 2009 incident.
{¶46} Thus, based on Mr. Harmon’s appellate arguments, we cannot conclude that the
trial court abused its discretion when it denied his motion to sever the 2010 indictment from the
2011 indictment because he has failed to demonstrate prejudice. See Schaim, 65 Ohio St.3d at
59. His second assignment of error is overruled.
III.
{¶47} Mr. Harmon’s assignments of error are overruled, and the judgment of the
Summit County Court of Common Pleas is affirmed.
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.
19
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
PAUL GRANT, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.