Croone v. Arif , 2014 Ohio 5546 ( 2014 )

[Cite as Croone v. Arif, 2014-Ohio-5546.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101103
SHEA CROONE
PLAINTIFF-APPELLEE
vs.
JAMAL ARIF
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DV-13-348638
BEFORE: Keough, J., Boyle, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: December 18, 2014
ATTORNEYS FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
Andrew J. Simon
6000 Freedom Square Drive
Freedom Square II, Suite 165
Independence, Ohio 44131
ATTORNEY FOR APPELLEE
Jonathan N. Garver
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103
KATHLEEN ANN KEOUGH, J.:
{¶1} Respondent-appellant Jamal Arif (“Arif”) appeals from the trial court’s judgment
that adopted a magistrate’s decision and granted a domestic violence civil protection order.
Finding no merit to the appeal, we affirm.
I. Background
{¶2} On September 6, 2013, petitioner-appellee Shea Croone (“Croone”) filed a
petition for a domestic violence civil protection order against Arif pursuant to R.C. 3113.31.
The trial court issued an ex parte temporary civil protection order and subsequently held a full
hearing on Croone’s petition at which the following evidence was adduced.
{¶3} Arif is the biological father of Shea’s son J.A. Because J.A.’s given name has an
inflammatory connotation, Croone calls him by a nickname. J.A.’s primary residence is with
Croone; he was ten years old at the time of the incident that led to Croone’s petition.
{¶4} Croone testified that she was sitting outside on the steps of her apartment building
at approximately 8 p.m. on September 2, 2013, waiting for Arif to return J.A. from a visit with
him. Arif, his ex-wife Kalena Holloway, and their daughter followed J.A. as he walked up the
sidewalk to his mother. Croone said that they stopped a few feet away from her and Arif and
Holloway whispered in J.A.’s ear, at which point J.A. turned to Croone and told her that he
wanted to be called by his given name instead of by a nickname. Croone testified that Holloway
then began videotaping her and J.A. Croone told Holloway that she could not believe she was
videotaping them, and then put her arm around J.A., told him to come inside with her, and
walked into her apartment building.
{¶5} Arif and Holloway told J.A. that “it was okay; they would help him with his
name,” and followed Croone and J.A. into the vestibule of Croone’s apartment building.
Croone said that as she unlocked the door into the hallway with her key, Holloway grabbed her
arm. Croone pushed back at Holloway in an effort to release her grip, but Arif pushed Croone
through the unlocked door. Croone testified that Holloway then grabbed her, “bashed” her head
against the wall, and scratched her neck, while Arif held her arms so that she could not defend
herself. Croone said that she tried to hit back at Holloway in self-defense, and they fell to the
floor, where Holloway kept hitting her and banging her head on the floor. Croone said the
altercation eventually stopped when a young woman came into the building and asked Arif if
everything was okay. At that point, Croone and J.A. went into Croone’s apartment, and Croone
called the police.
{¶6} Croone testified that she suffered multiple injuries, including scratches on her
face, and bruises on her legs, neck and face, as a result of the assault. An ambulance took
Croone to the hospital, where she was diagnosed with a “contusion,” given pain medication, and
prescribed physical therapy. At the time of the hearing, Croone was still taking pain medication
and undergoing physical therapy as a result of the incident. Croone identified several pictures
taken by the police on September 2, 2013, as pictures of her injuries.
{¶7} Croone testified that in addition to the incident on September 2nd, there had been
other incidents involving Arif that had caused her to fear for her safety. She testified that Arif
had purposely moved only three buildings down from her apartment, and that he and Holloway
would follow and harass her as she walked J.A. to school. She said that one or two years prior
to the September 2nd incident, Arif had grabbed her mother’s shoulder while her mother was
standing on the sidewalk at J.A.’s elementary school waiting to pick him up from school.
{¶8} Arif, who represented himself pro se at the hearing, testified that he and Holloway
followed Croone and J.A. into the apartment building because J.A. was upset. He testified that
when Holloway told J.A. that she loved him, Croone turned around, grabbed Holloway by the
neck, pulled her down to the floor, and hit her. Arif denied pushing Croone, and said “the only
grabbing” he did was to remove Croone’s hands from around Holloway’s neck.
{¶9} In her decision recommending that Croone’s petition be granted, the magistrate
made the following findings of fact:
Petitioner was sworn and gave testimony that supports finding that Respondent
committed domestic violence as defined in R.C. 3113.31 and that the Petitioner
and her son are in danger of domestic violence. Her testimony is found to be
credible. Respondent did not testify credibly. The magistrate finds that on or
about September 2, 2013 while returning the minor child to Petitioner following
Respondent’s parenting time, Respondent and his former wife, in the presence of
the minor child herein and a child in common between Respondent and his former
wife, entered Petitioner’s apartment building and physically assaulted Petitioner,
causing injury. Respondent coached the minor child to assist in instigating the
attack. Respondent has otherwise stalked and harassed Petitioner.
{¶10} The trial court subsequently approved and adopted the magistrate’s decision
granting the protection order for five years. This appeal followed.
II. Analysis
A. Civ.R. 53 Objections
{¶11} In his first assignment of error, Arif contends that the trial court erred in adopting
the magistrate’s decision without giving him notice of his right to object as required by Civ.R.
53.
{¶12} Civil protection orders are governed by Civ.R. 65.1, however, not Civ.R. 53.
Civ.R. 65.1(F)(1) authorizes a court to refer the proceedings concerning civil protection orders to
a magistrate. Under Civ.R. 65.1(F)(3)(b), “a magistrate’s denial or granting of a protection
order after full hearing * * * does not constitute a magistrate’s order or a magistrate’s decision
under Civ.R. 53(D)(2) or (3) and is not subject to the requirements of those rules.” Thus, Arif’s
argument is without merit.
{¶13} Likewise, Croone’s argument that this court should not consider Arif’s other
assignments of error because he did not file any objections to the magistrate’s decision under
Civ.R. 65.1 is also without merit. The trial court may adopt the magistrate’s decision after
determining that there is no error of law or other defect evident on the face of the order. Civ.R.
65.1(F)(3)(c)(ii). “A civil protection order is final and appealable and may be reviewed on
appeal with or without objections being filed in the trial court.” B.C. v. A.S., 9th Dist. Medina
No. 13CA0020-M, 2014-Ohio-1326, ¶ 5; Civ.R. 65.1(G).
{¶14} Here, neither party filed objections to the magistrate’s decision. The trial court
subsequently adopted the magistrate’s decision, and Arif appeals from this final and
appealable order. The first assignment of error is overruled. B. Manifest Weight of
the Evidence
{¶15} In his second assignment of error, Arif contends that the trial court’s judgment
granting the civil protection order is against the manifest weight of the evidence.
{¶16} A trial court’s decision to grant or deny a civil protection order will not be
reversed where the decision is supported by the manifest weight of the evidence. Glancy v.
Spradley, 12th Dist. Butler No. CA2012-02-024, 2012-Ohio-4224, ¶ 8. When conducting a
manifest weight analysis, the reviewing court weighs the evidence and all reasonable inferences,
considers the credibility of witnesses, and determines whether in resolving conflicts in the
evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice
that the judgment must be reversed and a new trial ordered. Eastley v. Volkman, 132 Ohio St. 3d
328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20.
{¶17} When considering a manifest weight challenge, the appellate court must indulge
every reasonable presumption in favor of the trial court’s judgment and findings of fact. Id. at ¶
21; Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 79, 461 N.E.2d 1273 (1984). The
rationale for giving deference to the trial court’s findings is that the trial court is in the best
position to view witnesses and observe their demeanor, voice inflection, and gestures, and use
those observations in weighing the credibility of the proffered testimony. Id.
{¶18} To grant a protection order, the trial court must find that the petitioner has shown
by a preponderance of the evidence that petitioner or petitioner’s family or household members
are in danger of domestic violence. Felton v. Felton, 79 Ohio St. 3d 34, 1997-Ohio-302, 679
N.E.2d 672, paragraph two of the syllabus; R.C. 3113.31(D). Domestic violence includes
“attempting to cause or recklessly causing bodily injury.” R.C. 3113.31(A)(1). “Preponderance
of the evidence” means the greater weight of the evidence, or evidence that leads the trier of fact
to find that the existence of a contested fact is more probable than its nonexistence. State v.
Stumpf, 32 Ohio St. 3d 95, 102, 512 N.E.2d 598 (1987).
{¶19} Two witnesses testified at the hearing — Croone and Arif. Croone testified
about Holloway’s assault, with Arif’s assistance. Arif gave a different version of what
happened. However, after listening to both witnesses over two days of hearing, and reviewing
exhibits submitted by Croone and admitted into evidence — which included photographs of
Croone’s injuries and her medical records from the hospital — the magistrate expressly found
that Croone’s testimony was credible while Arif’s was not. In light of the deference we must
accord to the finder of fact, we find no reason to overturn the trial court’s judgment.
{¶20} Croone’s credible testimony established that Arif and Holloway instigated the
incident with her. They followed her and J.A. into the apartment building, even though there
was no need to do so, and then Holloway, with Arif’s assistance, initiated a physical assault upon
Croone.
{¶21} Arif contends that the trial court should have found Croone’s testimony
“exaggerated, if not completely fabricated” because the pictures admitted into evidence do not
show injuries consistent with her description of the incident, and Croone’s medical records show
she was diagnosed with a “contusion,” which Arif characterizes as only a small bruise. He
further contends that he introduced a picture that showed scratches to Croone’s chest, which
demonstrates that the fight was not as one-sided as Croone testified to and that, in fact, Croone
attacked Holloway. In light of these “inconsistencies,” Arif contends that the trial court should
not have found Croone’s testimony credible enough to support a civil protection order.
{¶22} But the credibility of the witnesses and the weight to be given to their testimony
are matters primarily for the trier of fact to resolve. State v. DeHass, 10 Ohio St. 2d 230, 227
N.E.2d 212 (1967). “This court will not substitute its judgment for that of the trier of fact on the
issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
arriving at its verdict.” Luttrell v. Younce, 2d Dist. Miami No. 09-CA-45, 2011-Ohio-4458, ¶
22.
{¶23} The trial court did not lose its way in granting Croone’s petition for a civil
protection order. Our review of the record demonstrates that Arif’s testimony about the incident
was not credible, while Croone’s testimony was competent, credible, and demonstrated by a
preponderance of the evidence that she was in danger of domestic violence by Arif.
Accordingly, the trial court’s decision to grant the civil protection order was not against the
manifest weight of the evidence, and the second assignment of error is overruled.
C. Authentication of Photographs
{¶24} During his cross-examination of Croone, Arif attempted to question Croone about
several photographs of her taken by the police on September 2d while she was in the ambulance
and at the hospital. Croone admitted that the photographs were of her, but upon questioning by
the magistrate, said she did not know the name of the police officer who took the photographs.
When Arif told the magistrate that the officer who took the photographs was not present to
authenticate the photos, the magistrate excluded any testimony about the photographs. Arif
made no objection to the magistrate’s ruling.
{¶25} On appeal, Arif contends in his third assignment of error that the magistrate erred
in excluding his use of the photographs during Croone’s cross-examination because she
authenticated the photographs, as required by Evid.R. 103. He contends the error was
prejudicial and requires reversal of the civil protection order because the excluded pictures
demonstrated that Croone had fewer injuries than Holloway, thus refuting Croone’s testimony
that Holloway initiated the assault and hit her repeatedly.
{¶26} Generally, the admission of evidence lies within the broad discretion of the trial
court. Beard v. Meridia Huron Hosp., 106 Ohio St. 3d 237, 2005-Ohio-4787, 834 N.E.2d 323,
¶ 20. A reviewing court will uphold an evidentiary decision absent an abuse of discretion that
has affected the substantial rights of the complaining party or is inconsistent with substantial
justice. Id. “Abuse of discretion connotes more than an error of law or of judgment; it implies
an unreasonable, arbitrary, or unconscionable attitude on the part of the court.” Landis v.
Grange Mut. Ins. Co., 82 Ohio St. 3d 339, 342, 1998-Ohio-387, 695 N.E.2d 1140.
“The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponent claims.” Evid.R. 901(A). “A photograph is
admissible in evidence if it is shown to be an accurate representation of what or
whom it purports to represent.” State v. Hannah, 54 Ohio St. 2d 84, 88, 374
N.E.2d 1359 (1978), citing Cincinnati, H. & D. Ry. Co. v. De Onzo, 87 Ohio St.
109, 100 N.E. 320, 10 Ohio L.Rep. 477 (1912). Further, “[i]t is unnecessary to
show who took the photograph or when it was taken, provided that there is
testimony that the photograph is a fair and accurate representation of what it
represents.” State Farm Mut. Auto. Ins. Co. v. Anders, 197 Ohio App. 3d 22,
2012-Ohio-824, 965 N.E.2d 1056, ¶ 30 (10th Dist.Franklin), citing State v.
Farrah, 10th Dist. Franklin No. 01AP-968, 2002-Ohio-1918.
Constant v. Torres, 8th Dist. Cuyahoga No. 97543, 2012-Ohio-2926, ¶ 12.
{¶27} At the hearing, Croone testified that the pictures were of her and were taken on
September 2, 2013 by a police officer. We find this to be a proper authentication of the pictures;
it was not necessary that the police officer who took the pictures appear at the hearing to further
authenticate the photographs.
{¶28} Nevertheless, Arif did not object to the magistrate’s ruling excluding the
photographs and, therefore, waived all but plain error. State v. Loza, 71 Ohio St. 3d 61, 75,
1994-Ohio-409, 641 N.E.2d 1082. Plain error is limited to exceptionally rare cases in which the
error left unobjected to at the trial court “rises to the level of challenging the legitimacy of the
underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St. 3d 116, 122,
1997-Ohio-401, 679 N.E.2d 1099. Stated another way, plain error exists only when but for the
error, the outcome of the trial would clearly have been otherwise. State v. Cooperrider, 4 Ohio
St.3d 226, 227, 448 N.E.2d 452 (1983).
{¶29} We find no plain error in this case. Our review of the excluded photographs
demonstrates they are merely cumulative of photographs of Croone’s injuries that were admitted
into evidence. Further, the trial court heard Arif’s testimony regarding his version of the assault
and was able to compare his testimony with the pictures of Croone’s injuries. The court found
his testimony not credible, and we find nothing in this record to support Arif’s argument that the
admission of cumulative evidence regarding Croone’s injuries would have changed the court’s
decision to grant the civil protection order. The third assignment of error is therefore overruled.
{¶30} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR