State v. Primeau , 2012 Ohio 5172 ( 2012 )

[Cite as State v. Primeau, 2012-Ohio-5172.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97901
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
PETER A. PRIMEAU
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-556885
BEFORE: Cooney, J., Sweeney, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: November 8, 2012
ATTORNEYS FOR APPELLANT
Fernando O. Mack
Myron P. Watson
Lakeside Place, Suite 420
323 West Lakeside Avenue
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Steven E. Gall
Kerry A. Sowul
Assistant County Prosecutors
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶1} Defendant-appellant, Peter Primeau (“Primeau”), appeals his convictions
for murder and felonious assault. Finding no merit to the appeal, we affirm.
{¶2} In March 2011, Primeau was indicted on two counts of murder. In
December 2011, Primeau was re-indicted on two counts of murder and one count of
felonious assault. A jury trial commenced in January 2012. The jury found him guilty
on all three charges, which were merged as allied offenses for sentencing. The State
elected to proceed on the second count of murder, in violation of R.C. 2903.02(B), and
Primeau was sentenced to 15 years to life in prison.
{¶3} Primeau now appeals, raising thirteen assignments of error. We shall
address his assigned errors out of order.
Sufficiency and Manifest Weight
{¶4} In the ninth assignment of error, Primeau argues that his convictions are
against the manifest weight of the evidence. In his tenth assignment of error, he argues
that the court erred in denying his Crim.R. 29 motion based on insufficient evidence.
{¶5} A challenge to the sufficiency of the evidence supporting a conviction
requires the court to determine whether the State has met its burden of production at trial.
State v. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d 541. On
review for sufficiency, courts are to assess not whether the State’s evidence is to be
believed, but whether, if believed, the evidence against a defendant would support a
conviction. Id. The relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶6} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶25, the Ohio Supreme Court restated the standard of review for a criminal
manifest-weight challenge as follows:
The criminal manifest-weight-of-the-evidence standard was explained in
State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. In
Thompkins, the court distinguished between sufficiency of the evidence and
manifest weight of the evidence, finding that these concepts differ both
qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held
that sufficiency of the evidence is a test of adequacy as to whether the
evidence is legally sufficient to support a verdict as a matter of law, but
weight of the evidence addresses the evidence’s effect of inducing belief.
Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks
whose evidence is more persuasive — the state’s or the defendant’s? We
went on to hold that although there may be sufficient evidence to support a
judgment, it could nevertheless be against the manifest weight of the
evidence. Id. at 387, 678 N.E.2d 541. “When a court of appeals reverses
a judgment of a trial court on the basis that the verdict is against the weight
of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
with the factfinder’s resolution of the conflicting testimony.” Id. at 387,
678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct.
2211, 72 L.Ed.2d 652.
{¶7} Moreover, an appellate court may not merely substitute its view for that of
the jury, but must find that “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.” Thompkins at 387. Accordingly, reversal on manifest
weight grounds is reserved for “the exceptional case in which the evidence weighs
heavily against the conviction.” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983).
{¶8} Primeau was convicted of murder, pursuant to R.C. 2903.02(A) and (B),
which state:
(A) No person shall purposely cause the death of another * * *.
(B) No person shall cause the death of another as a proximate result of the
offender’s committing or attempting to commit an offense of violence that
is a felony of the first or second degree and that is not a violation of section
2903.03 or 2903.04 of the Revised Code.
{¶9} Primeau was also convicted of felonious assault, pursuant to R.C. 2903.11,
which states in pertinent part that “[n]o person shall knowingly * * * [c]ause serious
physical harm to another.”
{¶10} The following evidence was adduced at trial.
{¶11} On March 11, 2011, Primeau arrived at the Fairview Hospital emergency
room with his wife, Shinobu Higa (“Higa”), at approximately 9:30 p.m. Higa was
admitted in critical condition, suffering from obvious signs of physical trauma. She was
diagnosed with a perforation to her digestive tract, stomach, small intestine or colon, and
was immediately intubated.
{¶12} Primeau told doctors that Higa, a Japanese national, had gone out the night
before to see a man about her immigration status, and that she returned by bus to their
apartment the following morning. Upon her return, Higa told him that she had been
beaten and sexually assaulted. Primeau informed the doctors that he had been with her
all day and that, although she did not want to go to hospital, he decided to bring her to the
emergency room when her condition worsened.
{¶13} Police were called to the hospital in response to Higa’s condition. Upon
arrival, officers interviewed Primeau. He told them that Higa had left the night before
and returned in the morning by bus, after having prostituted herself on Lorain Avenue and
West 25th Street. Primeau told officers that Higa claimed to have been beaten by a
black man. When Higa’s condition worsened, Primeau brought her to the emergency
room.
{¶14} Doctors performed surgery at approximately midnight on the night Higa was
admitted to the hospital, in order to repair the perforation. After viewing her internal
injuries, the surgeon determined that, based on the inflammation, the amount of fluid, and
the color of the fluid, the perforation occurred within the last six hours.
{¶15} Nurse Marie Balcerski (“Balcerski”) testified at trial that she had been
treating Higa prior to the arrival of the police. Balcerski testified that she asked Higa, in
the presence of nurse Hannah Horton (“Horton”), if she knew who had done this to her.
In response, Higa nodded her head “yes.” Balcerski then asked who had done this.
Higa pointed to her ring-finger on her left hand, and then to the empty chair where
Primeau had been sitting just moments before.
{¶16} Higa became agitated after indicating to Balcerski and Horton that Primeau
had been her assailant. She began using her finger to spell words. Balcerski watched
her spell the words “black man.” When asked if that was who beat her, Higa nodded her
head “yes.” Higa later wrote on a piece of paper “my husband didn’t do that.”
{¶17} Det. Beverly Fraticelli (“Fraticelli”) testified that Higa shook her head “no”
when asked if her husband had done this to her. When offered pen and paper, Fraticelli
testified that Higa wrote “black guy” in response to the question “who has done this to
you?” When asked why she had been beaten, Higa wrote “he wanna ass sex but I say
no.” Due to Higa’s inconsistent responses to questions regarding the identity of her
assailant, Primeau was arrested.
{¶18} Nurse Elizabeth Pettit and nurse Alison Rerko examined Higa for sexual
abuse and discovered substantial injuries. The rape kit was tested for DNA. Semen
samples were taken from the anal sample and Higa’s underwear. The semen and DNA
samples were consistent with Higa and Primeau exclusively.
{¶19} On March 16, 2011, Higa died as a result of her injuries. An autopsy was
performed and determined the cause of death to be homicide, due to the blunt impact to
the abdomen that caused a perforation to her duodenum, part of the small intestine. The
coroner’s report also found that blunt trauma to her head, arms, and legs contributed to
the cause of death.
{¶20} Detectives began investigating the conflicting accounts of Higa’s assault.
In the course of their investigation, they found no evidence to support Primeau’s version
of events. An investigation by RTA police did not reveal any evidence of Higa’s
presence on an RTA bus the morning of March 11 in the area of West 25th Street and
Lorain, or en route to her apartment. RTA police Det. Pamela McGinty testified that
there were no reports of a severely beaten woman on any bus in that vicinity. Video
surveillance from a gas station near the bus stop closest to Higa’s apartment did not show
anyone matching her description exiting a bus on the morning of March 11.
{¶21} During a voluntary interview with police, Primeau stated that Higa’s
clothing from the night of March 10 and morning hours of March 11 was located in a blue
hamper in their apartment. Police executed a search warrant for the apartment. Police
discovered what they believed to be signs of a struggle. There was damage to the door
and living room wall, stains on the bedspread, clumps of hair on the bedroom floor, blood
on the mattress cover, a first aid kit in the kitchen, latex gloves and cotton balls in the
bedroom, and blood on the bathroom floor. Police, however, did not find a blue hamper
or the clothing Higa was wearing when she sustained her injuries. The clothing was
later discovered in the garbage dumpster outside the apartment building.
{¶22} A second search warrant was executed to obtain swabs from the evidence
discovered during the first search of the apartment and to measure the holes in the door
and wall. During the second search, police found a food receipt on the kitchen table,
time-stamped March 11, 2011, 4:57 p.m., from the Giant Eagle grocery store in Rocky
River.
{¶23} A third search warrant was executed for the vehicle Primeau drove to the
hospital on March 11, 2011. Inside the car, police discovered a receipt for a withdrawal
made at the Charter One Bank branch located near the Giant Eagle in Rocky River. The
withdrawal was time-stamped March 11, 2011, 5:02 p.m. In addition, police found the
parking lot receipt from the Fairview Hospital parking garage, time-stamped March 11,
2011, 9:37 p.m.
{¶24} Adam Rodeghiero (“Rodeghiero”), a good friend of Primeau’s, testified at
trial that he and Primeau spoke on the phone on March 11, 2011, just after 6:00 p.m.
The phone call lasted approximately 40 minutes, during which time Primeau told him that
Higa was nauseous and acting ill. Primeau asked Rodeghiero if he thought that Higa
could be “faking being sick for attention or empathy or something along those lines. Or
if she was really ill.” Rodeghiero suggested that Primeau take Higa to the hospital.
Rodeghiero testified that had Higa been assaulted, he would expect Primeau to have told
him. Primeau never mentioned the assault to Rodeghiero.
{¶25} In addition, several neighbors in the apartment building testified at trial that
they had heard arguing, loud noises, and screaming on numerous occasions coming from
the apartment Higa and Primeau shared, including the night of March 10, 2011, and the
day of March 11, 2011.
{¶26} Teressa Fiala (“Fiala”) testified that she lives directly above the apartment
shared by Higa and Primeau. Fiala began hearing a loud and angry male voice in the
apartment below hers in the fall of 2010. In December 2010, she heard what she
believed to be the sound of someone being struck, followed by the sound of a woman
crying. Fiala called management and complained. In February 2011, Fiala again heard
the sound of someone being struck, followed by a woman crying. Fiala testified that on
March 11, 2011, she was working at home with headphones on when she heard loud
pounding noises coming from the apartment below hers. She was so afraid that she
locked her own sliding glass door, fearing that someone would enter her apartment.
{¶27} Nicholas Lovano (“Lovano”) testified at trial about his encounters with Higa
and Primeau at their apartment building. In his job as a pizza delivery driver, he brought
pizza to Primeau and Higa approximately three times per month. He recalled observing
bruises on Higa and marks on her body and face on multiple occasions.
{¶28} Detectives interviewed Primeau’s ex-wife, Tiffany Redding (“Redding”),
who testified at trial. Redding and Primeau were married from 2003 to 2009 and lived
in Japan, where Primeau was stationed while in the Air Force. Redding testified that
Primeau had been physically abusive to her during their marriage. She described being
beaten in the head so severely that she had scars. Redding described being kicked in the
abdomen so violently that she required medical attention. She testified that initially
Primeau withheld medical treatment but eventually agreed, only after she promised to lie
about how she had been injured. The trial court overruled the defense’s objection to her
testimony.
{¶29} Dr. Warner Spitz (“Spitz”) testified for the defense that in his expert
opinion, the first set of surgeons could not have determined when the perforation to
Higa’s duodenum occurred. Spitz testified that surgeons could not have determined
during the first surgery that the perforation occurred within the last six hours because the
trauma to the abdomen and the actual perforation could have occurred at two separate
times.
{¶30} Primeau argues that the State’s case was based purely on circumstantial
evidence and, therefore, his convictions are not supported by sufficient evidence and are
against the manifest weight of the evidence. Proof of guilt may be made by
circumstantial evidence, real evidence, and direct evidence, or any combination of the
three, and all three have equal probative value. State v. Nicely, 39 Ohio St.3d 147, 529
N.E.2d 1236 (1988); Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492. Moreover,
“[c]ircumstantial evidence and direct evidence inherently possess the same probative
value and therefore should be subjected to the same standard of proof.” Jenks at
paragraph one of the syllabus. Indeed, “[c]ircumstantial evidence * * * may also be
more certain, satisfying and persuasive than direct evidence.” State v. Lott, 51 Ohio
St.3d 160, 555 N.E.2d 293 (1990). “‘[C]ircumstantial evidence is sufficient to sustain a
conviction if that evidence would convince the average mind of the defendant’s guilt
beyond a reasonable doubt.’” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046,
837 N.E.2d 315, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026(1990). In the instant case, the State presented satisfying and persuasive circumstantial
evidence illustrating that Primeau was Higa’s assailant.
{¶31} Furthermore, “[i]n reaching its verdict, the jury is free to believe all, part, or
none of the testimony of each witness.” State v. Jackson, 86 Ohio App.3d 29, 33, 619
N.E.2d 1135 (4th Dist.1993). “The weight to be given the evidence and the credibility
of the witnesses are primarily for the trier of the facts.” State v. Richey, 64 Ohio St.3d
353, 363, 1992-Ohio-44, 595 N.E.2d 915.
{¶32} Therefore, after viewing the evidence in a light most favorable to the
prosecution, we find sufficient evidence to establish, beyond a reasonable doubt, that
Primeau committed murder and felonious assault. Moreover, based on the
aforementioned facts and circumstances, we find that the convictions are not against the
manifest weight of the evidence. We cannot say that the jury lost its way and created a
manifest injustice in convicting Primeau.
{¶33} Accordingly, the ninth and tenth assignments of error are overruled.
Search Warrants
{¶34} In the first assignment of error, Primeau argues that the trial court erred
when it denied his motion to suppress evidence that was illegally obtained through search
warrants issued without the requisite probable cause.
{¶35} In reviewing a trial court’s ruling on a motion to suppress, the reviewing
court must keep in mind that weighing the evidence and determining the credibility of
witnesses are functions for the trier of fact. State v. DePew, 38 Ohio St.3d 275, 277, 528
N.E.2d 542 (1988); State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). A
reviewing court is bound to accept those findings of fact if supported by competent,
credible evidence. See State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th
Dist.1994), citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990). The
reviewing court, however, must decide de novo whether, as a matter of law, the facts
meet the appropriate legal standard. Id.; see also State v. Claytor, 85 Ohio App.3d 623,
627, 620 N.E.2d 906 (4th Dist.1993).
{¶36} Primeau argues that the first search warrant was illegally obtained due to the
omission of the allegation that Higa was beaten by a black man on West 25th Street and,
in turn, the fruits of the search warrant, as well as the subsequent search warrants should
be excluded. A search warrant containing deliberate falsehoods and/or reckless
misstatements, where such falsehoods or misstatements are material to the finding of
probable cause, will be invalidated. State v. Hunt, 22 Ohio App.3d 43, 488 N.E.2d 901(8th Dist.1984). However, mere omissions do not have same effect. Primeau does not
argue that the affidavit used in support of the initial search warrant contains any
deliberate falsehoods and/or reckless misstatements; therefore, there is no basis on which
to find that the court lacked probable cause with which to grant the State’s request.
Furthermore, paragraph two of the officer’s affidavit contains the information that
Primeau claims was omitted.
{¶37} Moreover, we find that the magistrate had a substantial basis for concluding
that probable cause existed with which to grant the warrant. In State v. George, 45 Ohio
St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the syllabus, the Ohio Supreme
Court established the standard of review on appeal of a magistrate’s determination that
probable cause existed to issue a search warrant:
* * * [T]he duty of a reviewing court is simply to ensure that the magistrate
had a substantial basis for concluding that probable cause existed. In
conducting any after-the-fact scrutiny of an affidavit submitted in support of
a search warrant, trial and appellate courts should accord great deference to
the magistrate’s determination of probable cause, and doubtful or marginal
cases in this area should be resolved in favor of upholding the warrant.
{¶38} Within the four corners of the affidavit, it is clear that based on Primeau’s
own voluntary admission that Higa’s clothing from the night of her alleged assault could
be found in the apartment, the magistrate had probable cause to grant the search warrant
for these and any other items of evidentiary value. Thus, the trial court did not err in
denying the motion to suppress.
{¶39} Accordingly, the first assignment of error is overruled.
Other Acts Evidence
{¶40} In the second assignment of error, Primeau argues that the trial court erred
when it improperly allowed the State to present other acts evidence, in violation of
Evid.R. 404(B). In his third assignment of error, Primeau argues that the trial court
erred when it permitted the State to offer testimony to establish alleged prior domestic
abuse, in violation of Evid.R. 404(B). In his twelfth assignment of error, Primeau
argues that the trial court erred when it allowed the State to present evidence of an alleged
prior domestic violence call involving him and the victim, in violation of Evid.R. 404(A)
and (B).
{¶41} Primeau argues that the “other acts” evidence, including testimonial
evidence from his ex-wife, the pizza delivery man, the apartment neighbors, and the
police did not fall under any of the Evid.R. 404 exceptions and thus, should have been
excluded.
{¶42} Pursuant to Evid.R. 404(B), evidence of other acts that are wholly
independent of the crime charged is generally inadmissible. State v. Thompson, 66 Ohio
St.2d 496, 497, 422 N.E.2d 855 (1981). Trial court decisions regarding the admissibility
of other-acts evidence under Evid.R. 404(B) are evidentiary determinations that rest
within the sound discretion of the trial court. Appeals of such decisions are reviewed by
an appellate court for an abuse of discretion. State v. Morris, 132 Ohio St.3d 337,
2012-Ohio-2407, 972 N.E.2d 528. “The term ‘abuse of discretion’ connotes more than
an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary
or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶43} Pursuant to Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is
not admissible to prove” a defendant’s character as to criminal propensity. “It may,
however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. In
State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975), the Ohio Supreme Court
explained when other acts evidence is admissible pursuant to the “scheme, plan, or
system” exception: evidence of a defendant’s scheme, plan, or system in doing an act is
only relevant in two situations: (1) the other acts are part of one criminal transaction such
that they are inextricably related to the charged crime, or (2) a common scheme or plan
tends to prove the identity of the perpetrator. Id. at 72-73. See also State v. Williams,
195 Ohio App.3d 807, 2011-Ohio-5650, 961 N.E.2d 1203 ¶ 50 (8th Dist.).1 “Identity is
in issue when the fact of the crime is open and evident but the perpetrator is unknown and
the accused denies that he committed the crime.” State v. Ogletree, 8th Dist. No. 94512,
2011-Ohio-819, ¶ 36, appeal not accepted, 129 Ohio St.3d 1409, 2011-Ohio-3244, 949
N.E.2d 1004, citing State v. Smith, 84 Ohio App.3d 647, 666, 617 N.E.2d 1160 (2d
Dist.1992).
{¶44} The State argues that Redding’s testimony and the evidence of other acts
was admissible because it tended to show Primeau’s scheme, plan, or system of physically
abusing his wives and refusing to allow them medical treatment unless they agreed to lie
Discretionary appeal allowed, State v. Williams, 131 Ohio St.3d 1472, 2012-Ohio-896, 962
1
N.E.2d 803.
about the circumstances of their injuries, which tends to prove the identity of the
perpetrator in the instant case.
In State v. Bey, 85 Ohio St.3d 487, 1999-Ohio-283, 709 N.E.2d 484,
certiorari denied, 528 U.S. 1049, 120 S.Ct. 587, 145 L.Ed.2d 488 (1999),
the Ohio Supreme Court affirmed the trial court’s decision allowing other
acts evidence to show identity, finding that the other acts evidence
established a “behavioral fingerprint” linking the appellant to the crime due
to the common features. The Court noted that the deaths of the current
and prior victims occurred under nearly identical circumstances: both
victims were businessmen who were killed at their place of business, both
died after being stabbed with a knife in the chest, both men had their
trousers removed and their shoes were placed next to their bodies, and
although both businesses were robbed, jewelry was left on each person.
Id. at 491. The Court found that because the evidence demonstrated a
similar method of operation, it was probative of identity. Id.
Williams at ¶ 55.
{¶45} In the instant case, the identity of the perpetrator is clearly a central issue.
The State argues that, as in Bey, the injuries sustained by Redding and Higa occurred
under nearly identical circumstances; both victims were married to Primeau, both were
physically abused in the marital home, both suffered serious injuries to their abdomens,
and both needed immediate medical attention that Primeau withheld until they agreed to
lie about how they sustained their injuries. Redding was married to Primeau from 2003
to 2009, near in time to the alleged assault of Higa.
{¶46} Furthermore, the testimony from the pizza delivery man that he had
observed bruises on Higa on multiple occasions, and from the neighbors who heard
yelling and loud noises from Higa and Primeau’s apartment on multiple occasions, tended
to prove the identity of the attacker in the instant case. Det. Thomas Harrington testified
that he had responded to a December 2010 domestic abuse call from Higa at the
apartment she shared with Primeau. Therefore, we find that the court did not err in
admitting the testimonial evidence of Primeau’s prior bad acts because it was offered for
a valid purpose under Evid.R. 404(B).
{¶47} However, even if a court finds that the other acts evidence was offered for a
valid purpose under Evid.R. 404(B), the court must still consider whether the evidence is
substantially more prejudicial than probative; if so, then it must still be excluded because
of its deleterious effects on an accused’s right to a fair trial. See State v. Matthews, 14
Ohio App.3d 440, 471 N.E.2d 849 (8th Dist.1984); Evid.R. 403(A).
{¶48} There is no doubt that the “other acts” evidence was prejudicial. However,
the trial court did not err in finding that the probative value of the “other acts” evidence
outweighed any prejudicial effect. Thus, we find no abuse of discretion.
{¶49} Accordingly, the second, third, and twelfth assignments of error are
overruled.
Medical Records
{¶50} In the fourth assignment of error, Primeau argues that the trial court erred
when it allowed Tiffany Redding to testify without compelling the State to produce
medical records proving alleged prior acts of domestic violence, and that such a discovery
violation under Crim.R. 16 violated Primeau’s due process rights.
{¶51} Crim.R. 16 requires the State to provide copies of items related to discovery
for the defense. This rule applies to items obtained by or belonging to the State. The
rule does not require the State to obtain items requested by the defense that the State does
not already possess.
{¶52} Primeau argues that he was not allowed access to Redding’s medical
records. However, a review of the record shows that defense counsel raised this issue
prior to jury selection, and the court granted him time to procure the records himself,
agreeing to sign an affidavit in support if needed. Primeau has failed to show that the
records were within the State’s possession, custody, or control, and that the State withheld
them from the defense.
{¶53} Primeau also argues that the State intentionally delayed the submission of
Redding’s written statement to police. Primeau fails to prove this allegation or to
establish how he was prejudiced by the alleged delay.
{¶54} Thus, we find that Primeau has failed to show that his due process rights
were violated by the State’s failure under Crim.R. 16 to provide Redding’s medical
records, as he did not show that the records were in the State’s possession at any time.
{¶55} Accordingly, the fourth assignment of error is overruled.
Rerko Opinion Testimony
{¶56} In the fifth assignment of error, Primeau argues that the trial court erred
when it allowed a State witness, Nurse Allison Rerko (“Rerko”), to opine conclusions
regarding the behavioral patterns of victims of domestic violence, in violation of Evid.R.
401 and 403.
{¶57} “A ruling concerning the admission of expert testimony is within the broad
discretion of the trial court and will not be disturbed absent an abuse of discretion.”
Scott v. Yates, 71 Ohio St.3d 219, 221, 1994-Ohio-462, 643 N.E.2d 105. An expert
witness must possess knowledge in the relevant subject area that is superior to an ordinary
person, and may be “qualified as an expert by specialized knowledge, skill, experience,
training, or education regarding the subject matter of the testimony.” Evid.R. 702(A)
and (B).
{¶58} Primeau argues that Rerko’s testimony exceeded her ability and
qualifications as an expert witness due to her lack of a bachelor or advanced degree. He
does not specifically argue that Rerko’s testimony violated Evid.R. 702. Although
Rerko was not declared an expert on the record, we find no error. State v. Skinner, 2d
Dist. No. 11704, 1990 Ohio App. LEXIS 4178 (Sept. 26, 1990) (“[S]o long as the record
indicates that the trial court did not abuse its discretion, we will not disturb a decision to
allow a witness to offer expert opinion testimony simply because ‘magic’ words do not
appear on the face of the record.”); see also State v. Monroe, 105 Ohio St.3d 384,
2005-Ohio-2282, 827 N.E.2d 285, ¶ 95.
{¶59} In the instant case, Rerko testified that she has been a registered nurse since
1998 and a sexual assault nurse examiner (SANE) since 2002. She is currently the
SANE nurse coordinator at Fairview Hospital, and is also in charge of training nurses in
the area of sexual assault and domestic violence. Rerko’s testimony was within the
scope of her expertise because she is a trained medical professional whose qualifications
are in areas of domestic violence injuries and sexual assault. We find no abuse of
discretion.
{¶60} Furthermore, we find the admission of Rerko’s testimony regarding
domestic abuse victims did not violate Evid.R. 401 or 403. Rerko testified regarding her
examination of Higa on the date in question. She testified about domestic violence
victims in general terms, including the “cycle of violence” experienced by most domestic
abuse victims. She did not opine whether Higa was the victim of domestic abuse or
sexual assault.
{¶61} The Ohio Supreme Court has recognized that the State may introduce
testimony on the “cycle of violence” in its case-in-chief, provided that such testimony is
relevant and helpful. State v. Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, 860 N.E.2d
91, ¶ 44. The testimony was relevant to the State’s argument that Higa’s contradictory
gestures and notes about her assailant were consistent with those of a victim of domestic
violence and sexual assault.
{¶62} Rerko properly limited her testimony to the general characteristics of a
victim suffering in a cycle-of-violence situation. She answered only hypothetical
questions regarding specific behaviors exhibited by women suffering from abuse. She
never opined specifically about Higa or Primeau.
{¶63} Therefore, we find no abuse of discretion in admitting Rerko’s testimony.
Accordingly, the fifth assignment of error is overruled.
Hearsay
{¶64} In the sixth assignment of error, Primeau argues that the trial court erred
when it permitted Officer Richard Rutt (“Rutt”) to testify to hearsay statements, in
violation of Evid.R. 801.
{¶65} “[A] trial court’s decision to admit or exclude evidence ‘will not be reversed
unless there has been a clear and prejudicial abuse of discretion.’” State v. Hancock, 108
Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, quoting O’Brien v. Angley, 63 Ohio
St.2d 159, 163, 407 N.E.2d 490 (1980).
{¶66} Primeau argues that the trial court erred in allowing Rutt to testify regarding
Higa’s indication to Nurse Balcerski that Primeau was the assailant, and Higa’s responses
to Det. Fraticelli’s questions about who beat her. The State argues that Rutt’s testimony
was admissible because it was offered to explain his conduct during the course of the
investigation.
{¶67} Hearsay is “a statement, other than one made by the declarant while
testifying at a trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). Out-of-court statements offered for reasons other than the
truth are not hearsay. State v. Freeman, 8th Dist. No. 85137, 2005-Ohio-3480, ¶ 40,
citing State v. Lewis, 22 Ohio St.2d 125, 132-133, 258 N.E.2d 445 (1970). Generally,
statements offered to explain a police officer’s underlying reasons for conduct while
investigating a crime are not hearsay. Freeman, citing State v. Price, 80 Ohio App.3d
108, 110, 608 N.E.2d 1088 (9th Dist.1992); State v. Thomas, 61 Ohio St.2d 223, 232, 400
N.E.2d 401 (1980). “The conduct to be explained should be relevant, equivocal and
contemporaneous with the statements. * * * Additionally, such statements must meet the
standard of Evid.R. 403(A).” State v. Blevins, 36 Ohio App.3d 147, 149, 521 N.E.2d
1105 (10th Dist.1987).
{¶68} A review of the transcript reveals that Rutt was testifying regarding his
conduct in the course of the investigation and Primeau’s subsequent arrest in light of the
conflicting indications from Higa regarding her assailant. However, Rutt’s testimony
also established elements of the crime related to identity. See State v. Gresh, 5th Dist.
No. 09-CAA-012-0102, 2010-Ohio-5814, ¶31 (when an officer relates out-of-court
statements that establish the elements of the crime charged, the statements should not
exceed that which is needed to establish a foundation for the officer’s subsequent
conduct). Thus, the court erred in allowing Rutt to testify to hearsay statements that
established the elements of the crime in the instant case.
{¶69} We find this error, however, to be harmless. The main premise behind the
hearsay rule is that the adverse party is not afforded the opportunity to cross-examine the
declarant. In the instant case, the defense had the opportunity to cross-examine both
declarants, nurse Balcerski and Det. Fraticelli. As Primeau correctly points out in his
brief, the trustworthiness of Rutt’s statements was challenged and shown to contradict
Fraticelli’s testimony. Therefore, we find the court’s error in allowing his testimony to
be harmless.
{¶70} Accordingly, the sixth assignment of error is overruled.
Rutt Opinion Testimony
{¶71} In the seventh assignment of error, Primeau argues that the trial court erred
when it permitted Officer Rutt to testify regarding his medical opinion of Primeau’s
physical appearance after he was arrested.
{¶72} As stated above, “a trial court’s decision to admit or exclude evidence ‘will
not be reversed unless there has been a clear and prejudicial abuse of discretion.’”
Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, quoting O’Brien, 63
Ohio St.2d 159, 163, 407 N.E.2d 490.
{¶73} Primeau argues that the trial court erred in admitting Officer Rutt’s
observations of Primeau’s hand lacerations during the booking process, because Rutt has
no medical expertise. The State argues that Rutt’s testimony was admissible because it
was his opinion. Evid.R. 701 states that:
If the witness is not testifying as an expert, the witness’ testimony in the
form of opinions or inferences is limited 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.
{¶74} Under Evid.R. 701, courts have permitted lay witnesses to express their
opinions in areas in which it would ordinarily be expected that an expert must be qualified
under Evid.R. 702. State v. McKee, 91 Ohio St.3d 292, 2001-Ohio-41, 744 N.E.2d 737.
In McKee, the issue was whether a drug user could testify about the identity of drugs.
The court stated that:
Although these cases are of a technical nature in that they allow lay opinion
testimony on a subject outside the realm of common knowledge, they still
fall within the ambit of the rule’s requirement that a lay witness’s opinion
be rationally based on firsthand observations and helpful in determining a
fact in issue. These cases are not based on specialized knowledge within the
scope of Evid.R. 702, but rather are based upon a layperson’s personal
knowledge and experience. Id. at 297.
{¶75} We find that Rutt’s testimony fits into this classification. In this case, Rutt
was testifying as a lay witness describing the photos of Primeau taken during the booking
process. His description of the photos was based on his experience as a police officer,
his previous investigations of assaults, and his perception of Primeau’s lacerations at the
time. Therefore, his testimony was properly admitted under Evid.R. 701.
{¶76} Accordingly, the seventh assignment of error is overruled.
Right to Remain Silent
{¶77} In his eighth assignment of error, Primeau argues that the trial court erred
when it allowed Officer Rutt to render an opinion that Primeau’s exercising his Fifth
Amendment right to remain silent was unusual, “thus insinuating that his silence was
telling and he must be, in fact, guilty.”
{¶78} A thorough review of the record reveals that Rutt did not offer his opinion
as to Primeau’s guilt or innocence. Rutt merely stated that it is unusual for someone he
arrests to remain quiet. He testified that when being placed under arrest, Primeau was
very calm, said nothing, and showed no emotion. Neither Rutt nor the State made any
mention of guilt.
{¶79} As stated in the previous assignment of error, pursuant to Evid.R. 701,
Rutt’s testimony about his experience in arresting people falls within the scope of the
rule’s requirement that a lay witness’s opinion be rationally based on firsthand
observations and helpful in determining a fact in issue. Rutt’s opinion was based upon
his personal knowledge and experience. See McKee, 91 Ohio St.3d 292, 2001-Ohio-41,
744 N.E.2d 737. Therefore, his testimony was properly admitted under Evid.R. 701 and
we find no abuse of discretion.
{¶80} Accordingly, the eighth assignment of error is overruled.
Videotape Interview
{¶81} In the eleventh assignment of error, Primeau argues that the trial court erred
when it denied his motion to redact portions of the videotape interview that included
irrelevant and inadmissible evidence.
{¶82} Again, “a trial court’s decision to admit or exclude evidence ‘will not be
reversed unless there has been a clear and prejudicial abuse of discretion.’” Hancock, 108
Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, quoting O’Brien, 63 Ohio St.2d 159,
163, 407 N.E.2d 490.
{¶83} Primeau argues that the trial court erred in admitting his videotape interview
with police in its entirety, as opposed to a redacted version in which certain comments
and questions were removed. Primeau argues that officers made comments during the
course of the interview that were prejudicial. He cites no authority to support his
argument.
{¶84} Evid.R. 403(A) states that, although relevant, evidence is not admissible if
its probative value is substantially outweighed by the danger of unfair prejudice, or
confusion of the issues, or of misleading the jury.
{¶85} After viewing the videotape in question, we find no error in admitting it into
evidence in its entirety. We find that its probative value was not substantially
outweighed by the danger of unfair prejudice.
{¶86} Accordingly, the eleventh assignment of error is overruled.
Photographs
{¶87} In the thirteenth assignment of error, Primeau argues that the trial court
erred when it allowed the State to introduce photographs that were duplicative and
gruesome.
{¶88} When considering the admissibility of photographic evidence under Evid.R.
403, the question is whether the probative value of the photographic evidence is
substantially outweighed by the danger of unfair prejudice to the defendant. See State v.
Tingler, 31 Ohio St.2d 100, 103-104, 285 N.E.2d 710 (1972); State v. Rahman, 23 Ohio
St.3d 146, 152, 492 N.E.2d 401 (1986). The admission or exclusion of such
photographic evidence is left to the discretion of the trial court. State v. Hill, 12 Ohio
St.2d 88, 232 N.E.2d 394 (1967), paragraph two of the syllabus; State v. Wilson, 30 Ohio
St.2d 199, 203-204, 222, 283 N.E.2d 632 (1972). Accordingly, a trial court may reject
an otherwise admissible photo which, because of its inflammatory nature, creates a
danger of prejudicial impact that substantially outweighs the probative value of the photo
as evidence. Absent such danger, the photo is admissible.
{¶89} Primeau challenges the admission of five photos of the victim. These
photos illustrated the testimony of the doctors, nurses, and police officers who observed
Higa’s injuries, and illustrated the body’s condition as witnessed by the medical
examiners. See, e.g., State v. Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-4121, 792
N.E.2d 1081, ¶ 72.
{¶90} None of these photos is a duplicate or repetitive. Each depicts a different
view of the victim’s body and her injuries. Four of the five photos show bruising on
Higa’s body as seen in the hospital. The remaining photo was taken of the victim’s
entire body prior to her autopsy. We find the value of each of the four hospital photos
outweighs any prejudicial impact. We find the gruesome nature and prejudicial impact
of the fifth photo is also outweighed by its probative value regarding the entirety of
Higa’s injuries. Thus, we find no abuse of discretion in the court’s admitting the photos.
{¶91} Accordingly, the thirteenth assignment of error is overruled.
{¶92} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR