State v. Walter

[Cite as State v. Walter, 2022-Ohio-1982.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 20AP0020
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JEFFREY WALTER WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2020 CR-B 000151
DECISION AND JOURNAL ENTRY
Dated: June 13, 2022
HENSAL, Judge.
{¶1} Jeffrey Walter appeals from the judgment of the Wayne County Municipal Court.
This Court affirms.
I.
{¶2} Mr. Walter was charged with three counts of domestic violence and two counts of
disorderly conduct related to an altercation with his girlfriend, J.B.’s, 12-year-old son (“Son”) and
13-year-old daughter (“Daughter”). He pleaded not guilty, and the matter proceeded to a bench
trial. Son, Daughter, and Deputy Ben Rubenstein with the Wayne County Sheriff’s Office testified
on behalf of the State. At the State’s request, the trial court called J.B. as the court’s witness. Mr.
Walter then testified on his own behalf.
{¶3} The trial court found Mr. Walter guilty of two counts of domestic violence and one
count of disorderly conduct. On appeal, Mr. Walter challenges his convictions for domestic
2
violence only. Those counts related to allegations that Mr. Walter slapped Daughter and choked
Son. The following testimony was adduced at trial.
{¶4} While the witnesses’ testimony varied at trial, the following facts were not in
dispute. J.B. grew up in Medina County but moved to California, where she lived with Son and
Daughter. Mr. Walter lives in Wayne County. J.B. and Mr. Walter knew each other from
childhood and reconnected through Facebook. They began dating, and J.B. moved from California
to Wayne County in 2019 with Son and Daughter to live with Mr. Walter at his rental house.
{¶5} On February 8, 2020, several months after J.B., Son, and Daughter moved to Ohio,
the underlying incident took place. It occurred one evening after J.B., Son, and Daughter returned
from Son’s hockey game. After dinner, Mr. Walter asked Son and Daughter to get firewood from
near the detached garage and to stack it by the sliding glass door. This was one of their chores,
and they had done it in the past. Daughter was initially reluctant because it was cold outside, but
she and Son went outside and started stacking the firewood. J.B. felt badly for Son and Daughter,
so she went outside and helped them. Son, Daughter, and J.B. stacked firewood for about 15
minutes while Mr. Walter remained inside watching television. What happened next varied among
the witnesses.
{¶6} Son testified that when he, Daughter, and J.B. finished stacking the firewood, all
three of them started to walk back into the house. Daughter entered the house first, followed by
Son, and then J.B. Son testified that Mr. Walter was waiting for them at the door, and that Mr.
Walter slapped Daughter across the face as soon as Daughter walked into the house. Son then
positioned himself between Mr. Walter and Daughter, and Mr. Walter grabbed him by the throat
with both hands and choked him. Son was able to get Mr. Walter’s hands off him, and J.B. and
3
Mr. Walter started yelling at each other. Mr. Walter then told them to get out of his house, so they
started packing their belongings.
{¶7} Son testified that Daughter called the police, and that he, Daughter, and J.B. got
into the car and drove to IGA, which was a few minutes away. The police met them at IGA, and
they all gave statements to the police. In his written statement, Son indicated that Mr. Walter
slapped Daughter, and that Mr. Walter grabbed his throat with two hands and choked him. Son
testified that an ambulance arrived, but that he was not taken to the hospital. Son also testified that
neither he, nor Daughter, swung at or hit Mr. Walter. He further testified that Mr. Walter had been
drinking liquor that evening. When presented with pictures of his neck taken on the night of the
incident, Son indicated that the marks on his neck had gone away between the time Mr. Walter
grabbed his neck and the time the pictures were taken, which was about 45 minutes later.
{¶8} According to Daughter, she did not want to move the firewood because she had just
showered, her hair was wet, and it was cold outside. She eventually went outside to help Son, and
J.B. also came outside to help. Daughter testified that she tossed some of the firewood down, but
that she did not throw it at the house. As they walked back into the house, Mr. Walter gave her “a
little slap on [her] face” with his opened hand. Son then stepped in front of her and shoved Mr.
Walter away from her. Mr. Walter then grabbed Son by the shirt and pushed him against the wall.
Daughter testified that she did not see Mr. Walter grab Son’s neck, and that she did not think Mr.
Walter choked Son.
{¶9} Daughter testified that Mother went to the garage and called the police, and that
they packed their belongings and met the police at IGA. In her written statement to the police,
Daughter indicated that Mr. Walter grabbed her face and slapped her, and that Son stepped in
4
between her and Mr. Walter to protect her. Her written statement also indicated that Mr. Walter
grabbed Son by the neck and choked him.
{¶10} When presented with her written statement, Daughter acknowledged that it was
different than her testimony at trial. She testified that it all happened very fast, and that she now
thinks Mr. Walter only grabbed Son by the shirt. She acknowledged that she was aware that Mr.
Walter might go to jail as a result of the charges against him and testified that she and J.B. love
Mr. Walter. When presented with a picture of her face taken on the night of the incident, Daughter
acknowledged that the picture showed a red mark on her face, which was a result of being slapped.
During the State’s re-direct examination of Daughter, the prosecutor played a portion of Deputy
Rubenstein’s bodycam video wherein Daughter told Deputy Rubenstein that Mr. Walter grabbed
her face and smacked her with about 70% force.
{¶11} According to J.B., she went outside to help her children bring in firewood because
she felt badly for them. When she came back inside, Daughter was crying, and Mr. Walter was
grabbing Son by the shirt collar. Mr. Walter told her that her kids were being disrespectful and
ordered her to take her children and leave the house. She then went to her car, called the police,
and told her children to pack their belongings. They then drove to IGA.
{¶12} In her written statement to the police, J.B. indicated that Mr. Walter grabbed
Daughter by the face and slapped her, and that he grabbed Son by the neck with two hands. When
presented with her written statement, J.B. indicated that she told the police that Mr. Walter grabbed
Daughter’s face and slapped her because that was what Daughter told her had happened. She also
indicated that, by the time she came back into the house, Son was already up against the wall, and
Mr. Walter was grabbing Son’s shirt collar, not his neck.
5
{¶13} J.B. testified that she was still dating Mr. Walter at the time of trial, and that she
did not want him to go to jail. She testified that she regretted calling the police and did not realize
that it would result in Mr. Walter being charged with domestic violence.
{¶14} Deputy Rubenstein testified that he responded to IGA and spoke with J.B., Son,
and Daughter. He testified that J.B. told him that Mr. Walter had been drinking, and that he choked
Son and slapped Daughter. He also testified that he personally observed a red mark on Son’s neck.
{¶15} Mr. Walter provided a different version of the events. According to him, Daughter
did not want to stack the firewood, so she threw some of it at the house while he was sitting inside.
Mr. Walter testified that he opened the door and told her not to come back in his house. When
Daughter attempted to come back inside the house, he met her at the door, put his hand on her
shoulder, and told her not to come inside. Mr. Walter testified that Daughter dropped to the floor
and said he was hurting her. He then looked up and saw Son approaching him with his fists in the
air. Mr. Walter testified that he put his hands out and Son hit his arms a few times. He then
grabbed Son’s shirt and started to push Son and Daughter out of the door. At that point, J.B. came
inside and started yelling. Mr. Walter testified that he let Son go and told J.B. to take her kids and
leave. Mr. Walter testified that he never slapped Daughter, and that he did not choke Son.
{¶16} As previously noted, the trial court found Mr. Walter guilty of two counts of
domestic violence and one count of disorderly conduct. One of the domestic-violence counts
related to Son, and the other count related to Daughter. On appeal, Mr. Walter challenges his
convictions for domestic violence only, and raises three assignments of error for this Court’s
review.
II.
ASSIGNMENT OF ERROR I
6
WALTER’S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE AS
A MATTER OF LAW AND WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶17} In his first assignment of error, Mr. Walter challenges the sufficiency and the
weight of the evidence presented at trial. It is well-established, however, that “a review of the
sufficiency of the evidence and a review of the manifest weight of the evidence are separate and
legally distinct determinations.” State v. Vicente-Colon, 9th Dist. Lorain No. 09CA009705, 2010-
Ohio-6242, ¶ 18. Accordingly, “it is not appropriate to combine a sufficiency argument and a
manifest weight argument within a single assignment of error.” State v. Mukha, 9th Dist. Wayne
No. 18AP0019, 2018-Ohio-4918, ¶ 11; see Loc.R. 16(A)(7) of the Ninth District Court of Appeals
(“Each assignment of error shall be separately discussed * * *.”); App.R. 12(A)(2) (“The court
may disregard an assignment of error presented for review if the party raising it fails to * * * argue
the assignment separately in the brief[.]”). Nonetheless, we exercise our discretion to consider the
merits of Mr. Walter’s combined assignment of error.
{¶18} Whether a conviction is supported by sufficient evidence is a question of law, which
we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this
review, our “function * * * is to examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “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.” Id.{¶19} On the other hand, when considering a challenge to the manifest weight of the
evidence, this Court is required to consider the entire record, “weigh the evidence and all
7
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). “A reversal on this basis is reserved for the exceptional
case in which the evidence weighs heavily against the conviction.” State v. Croghan, 9th Dist.
Summit No. 29290, 2019-Ohio-3970, ¶ 26.
{¶20} Mr. Walter argues that his two domestic violence convictions under Section
2919.25(A) were not supported by sufficient evidence and/or were against the manifest weight of
the evidence because: (1) the State failed to prove beyond a reasonable doubt that he did not act
in self-defense when he pushed Son; (2) the evidence demonstrated that he was acting in loco
parentis, and that he pushed Son and Daughter as a form of parental discipline, which is an
affirmative defense to domestic violence; and (3) the witnesses provided inconsistent testimony.
We will address each argument in turn, beginning with an analysis of the sufficiency of the
evidence.
{¶21} Section 2919.25(A) provides that “[n]o person shall knowingly cause or attempt to
cause physical harm to a family or household member.” “A person acts knowingly, regardless of
purpose, when the person is aware that the person’s conduct will probably cause a certain result or
will probably be of a certain nature.” R.C. 2901.22(B). Section 2901.01(A)(3) defines “[p]hysical
harm to persons” as “any injury, illness, or other physiological impairment, regardless of its gravity
or duration.” We note that Mr. Walter has not argued that Son and Daughter were not “household
member[s]” under Section 2919.25(A).
{¶22} The State presented testimony from Son that Mr. Walter grabbed him by the neck
with two hands and choked him. The State also presented the written statements of Son, Daughter,
8
and J.B., all of whom indicated that Mr. Walter grabbed Son by the neck, and slapped Daughter
across the face. While Daughter’s testimony at trial differed from her written statement, she still
testified that Mr. Walter slapped her, and that this resulted in a red mark on her face. The State
also played a portion of Deputy Rubenstein’s bodycam wherein Daughter told him that Mr. Walter
grabbed her face and smacked her. Additionally, Son testified that Mr. Walter’s actions left a mark
on his neck, and Deputy Rubenstein testified that he observed the mark on Son’s neck. Viewing
the evidence in a light most favorable to the State, a rational trier of fact could have found the
essential elements of domestic violence proven beyond a reasonable doubt.
{¶23} We now turn to Mr. Walter’s argument that the State failed to prove beyond a
reasonable doubt that he did not act in self-defense. This argument lacks merit. As this Court has
stated,
“Self-defense requires that a defendant ‘was not at fault in creating the situation
giving rise to the affray; * * * [had] a bona fide belief that he was in imminent
danger of death or great bodily harm and that his only means of escape from such
danger was in the use of such force; and * * * [did] not * * * violate[ ] any duty to
retreat or avoid the danger.’” (Alterations sic.) State v. Williams, 9th Dist. Summit
No. 29444, 2020-Ohio-3269, ¶ 9, quoting State v. Robbins, 58 Ohio St.2d 74(1979), paragraph two of the syllabus. On March 28, 2019, amendments to Section
2901.05 went into effect that changed the burden of going forward and burden of
proof as to self-defense. The amendments changed self-defense from an
affirmative defense that a defendant must prove to a burden that the prosecution
must carry to show that the defendant did not use force in self-defense. R.C.
2901.05(A), (B)(1).
State v. Pittman, 9th Dist. Summit No. 29705, 2021-Ohio-1051, ¶ 17. “Consequently, once
there is evidence presented at trial that tends to support that the defendant acted in self-
defense, the State must disprove one of the elements of self-defense beyond a reasonable
doubt.” State v. Williams, 9th Dist. Summit No. 29444, 2020-Ohio-3269, ¶ 10.
{¶24} Initially, we note that Mr. Walter did not assert self-defense at trial. Mr. Walter
testified that, after he put his hand on Daughter’s shoulder and told her not to come back into the
9
house, he looked up and saw Son approaching him with his fists in the air. Mr. Walter testified
that he put his hands out and Son hit his arms a few times. According to him, he then pushed Son
and Daughter toward the door. Even if Mr. Walter had raised the affirmative defense of self-
defense at trial, we cannot say that this evidence, without more, tended to support that Mr. Walter
acted in self-defense as defined above.
{¶25} Aside from generally asserting that he acted in self-defense in his merit brief, Mr.
Walter has not argued that he was not at fault in creating the situation that gave rise to the affray,
that he had a bona fide belief that he was in imminent danger of death or great bodily harm and
that his only means of escape from such danger was in the use of such force, and that he did not
violate any duty to retreat. See Pittman at ¶ 17. We, therefore, reject his argument as it relates to
self-defense.
{¶26} Mr. Walter next argues that he pushed Son and Daughter toward the door as an act
of parental discipline, claiming that he was acting in loco parentis. We reject this argument.
Initially, we note that Mr. Walter did not raise the affirmative defense of parental discipline at trial,
nor did he claim to be acting in loco parentis. State v. Faggs, 159 Ohio St.3d 420, 2020-Ohio-523,
¶ 24 (concluding that parental discipline is an affirmative defense). His argument on appeal is
supported by his own testimony that he shoved Son and Daughter, and ignores the evidence
presented by the State that he slapped Daughter and choked Son. Relying on his own testimony,
he concludes that he did not physically harm Son and Daughter, and that he was simply punishing
disrespectful children.
{¶27} “In regard to parental discipline, the Ohio Supreme Court has held that R.C.
2919.25(A) does not preclude a parent from disciplining his child, but does prohibit a parent from
causing ‘‘physical harm’ as that term is defined in [Section 2901.01(A)(3)].’” State v. Clark, 9th
10
Dist. Wayne No. 14AP0002, 2015-Ohio-2978, ¶ 13, quoting State v. Suchomski, 58 Ohio St.3d 74,
75 (1991). “The term ‘in loco parentis’ means ‘charged, factitiously, with a parent’s rights, duties,
and responsibilities.’” State v. Noggle, 67 Ohio St.3d 31, 33 (1993), quoting Black’s Law
Dictionary 787 (6th Ed.1990); see Faggs at ¶ 10 (acknowledging that the domestic violence statute
applies to persons acting in loco parentis).
{¶28} Mr. Walter has not directed this Court to anything in the record to support his
position that he was acting in loco parentis. After reciting the relevant law, he summarily
concludes – without any citations to the record – that he was acting in loco parentis and the
affirmative defense of parental discipline applies. Moreover, his argument ignores the evidence
presented by the State that he choked Son, which left a mark on his neck, and slapped Daughter,
which left a red mark on her face. He has not explained how these injuries do not constitute
“[p]hysical harm” as defined in Section 2901.01(A)(3). In short, even if Mr. Walter had raised
this affirmative defense below, he has not established on appeal that it applies.
{¶29} Lastly, Mr. Walter argues that his convictions were against the manifest weight of
the evidence because all four witnesses who were present at the time of the incident provided
different accounts of what occurred. He asserts that Son testified that he choked his neck with two
hands, yet Daughter testified that she did not see him choke Son. He asserts that J.B. testified that
she did not see what happened because she was still walking into the house, and she only saw that
he had his hands on Son’s shirt collar. He also asserts that Son testified that Daughter called the
police while they were on the way to IGA, yet Daughter testified that J.B. called the police while
J.B. was in the garage. He further asserts that Son, Daughter, and J.B.’s testimonies differed from
their prior statements to the police.
11
{¶30} Mr. Walter is correct in that Daughter and J.B.’s trial testimony differed from their
prior statements to the police. The trial court, however, was in the best position to assess their
credibility. See State v. Robinson, 9th Dist. Wayne No. 18AP0045, 2019-Ohio-3613, ¶ 10, quoting
State v. Andrews, 9th Dist. Summit No. 25114, 2010-Ohio-6126, ¶ 28 (“As the trier of fact, the
trial court was in the best position to observe the witnesses’ demeanor and to ‘use th[o]se
observations to weigh the credibility and resolve the conflicts in the testimony.’”). The trial court
was free to determine that the statements Daughter and J.B. made to the police shortly after the
incident took place were more credible than their trial testimonies. This is especially so given that
J.B. testified that she was still dating Mr. Walter and did not want him to go to jail, and that
Daughter testified that she loved Mr. Walter and had been told about the potential consequences
of the trial.
{¶31} Regarding Son’s testimony that Daughter called the police, defense counsel played
the 911 call during Son’s cross-examination. Son acknowledged that J.B., not Daughter, called
911. On re-direct examination, Son indicated that the 911 call refreshed his memory. Regarding
Mr. Walter’s assertion that Son’s testimony differed from his prior statement to the police, he has
not cited any specific testimony or explained how Son’s testimony was inconsistent. See
App.R.16(A)(7) (requiring an appellant’s brief to include “[a]n argument containing the
contentions of the appellant with respect to each assignment of error presented for review and the
reasons in support of the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies.”).
{¶32} While J.B. and Daughter’s testimonies differed from their prior statements to the
police, and the details of the incident differed among the witnesses, this Court cannot say that the
trial court clearly lost its way and created such a manifest miscarriage of justice that Mr. Walter’s
12
convictions must be reversed and a new trial ordered. Mr. Walter’s first assignment of error is
overruled.
ASSIGNMENT OF ERROR II
WALTER WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL AT TRIAL.
{¶33} In his second assignment of error, Mr. Walter argues that his trial counsel provided
ineffective assistance. We disagree.
{¶34} To prevail on a claim of ineffective assistance of counsel, Mr. Walter must
establish: (1) that his counsel’s performance was deficient to the extent that “counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”; and (2) that “the
deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). A deficient performance is one that falls below an objective standard of reasonable
representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. A court,
however, “must indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance * * *.” Strickland at 689, quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955). To establish prejudice, Mr. Walter must show that there existed a reasonable
probability that, but for his counsel’s errors, the outcome of the proceeding would have been
different. State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, ¶ 138.
{¶35} Mr. Walter asserts that his trial counsel provided ineffective assistance for four
reasons. First, he asserts that the Wayne County Children’s Services (“the Board”) investigated
this matter, and that the Board closed the investigation without taking any action on the basis that
the claims were unsubstantiated. He asserts that his trial counsel had a duty to investigate and
present evidence regarding the Board’s investigation, which, he asserts, could have had a
significant effect on this case.
13
{¶36} Second, Mr. Walter asserts that his trial counsel failed to call an EMS employee as
a witness, who would have testified that neither Son nor Daughter suffered any injuries or received
medical treatment. He surmises that an EMS employee could have impeached Son’s version of
the events and verified that, if Son was choked, there would have been marks on his neck.
{¶37} Third, he asserts that his trial counsel should have presented evidence regarding the
fact that Daughter had called EMS on a different occasion. He asserts that the police investigated
the other matter and concluded that he did not hurt Daughter, and that Daughter called EMS for
no reason. He concludes that Daughter’s prior false report would have shown that she was not
credible, and that she harbored animosity toward him.
{¶38} Lastly, Mr. Walter asserts that his trial counsel should have called his (Mr.
Walter’s) son as a witness. He asserts that his son lived with him, and that he witnessed other
incidents where Son and Daughter lied to him. He concludes that this could have raised doubts
about Son and Daughter’s credibility.
{¶39} Each of Mr. Walter’s arguments fails to establish that his trial counsel provided
ineffective assistance. Regarding the Board’s alleged investigation in this matter, his argument
relies upon matters outside of the record. “This is problematic because ‘[w]hen an appellant argues
that trial counsel was ineffective based on evidence that is outside of the trial court record, it is
‘impossible’ for this Court to determine the merits of the argument.’” State v. Price, 9th Dist.
Medina No. 14CA0070-M, 2015-Ohio-5043, ¶ 35, quoting State v. Alston, 9th Dist. Lorain No.
14CA010612, 2015-Ohio-4127, ¶ 21. “Thus, we cannot conclude based on the record before us
whether there was any ineffective assistance on trial counsel’s part in this regard.” Id.{¶40} Each of Mr. Walter’s remaining arguments is based upon his trial counsel’s failure
to call certain witnesses. As the Ohio Supreme Court has stated, trial “[c]ounsel’s decision to call
14
a witness is a matter of trial strategy. Such decisions will generally not be second-guessed by a
reviewing court.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 113. Moreover, Mr.
Walter speculates as to the testimony those witnesses could have provided. This speculation,
however, is insufficient to establish ineffective assistance. State v. Short, 129 Ohio St.3d 360,
2011-Ohio-3641, ¶ 119, quoting State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 217
(stating that mere speculation “is insufficient to establish ineffective assistance.”). In light of the
foregoing, Mr. Walter’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING THE
STATE OF OHIO[’S] MOTION FOR THE COURT TO CALL WITNESS, AS
ITS OWN WITNESS, PURSUANT TO EVID. RULE 614(A).
{¶41} In his third assignment of error, Mr. Walter argues that the trial court abused its
discretion and committed reversible error when it called J.B. as the court’s witness. This Court
disagrees.
{¶42} Evidence Rule 614(A) provides that “[t]he court may, on its own motion or at the
suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus
called.” “The decision as to whether to call a witness on its own motion pursuant to Evid.R. 614(A)
is within the discretion of the trial court, and will be reversed only for an abuse of such discretion.”
State v. Marshall, 9th Dist. Lorain No. 01CA007773, 2001 WL 1647706, * 2 (Dec. 26, 2001).
“An abuse of discretion means that the trial court was unreasonable, arbitrary, or unconscionable
in its ruling.” State v. Basford, 9th Dist. Medina No. 20CA0017-M, 2021-Ohio-161, ¶ 34,
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Even if a trial court abuses its discretion
in calling a witness as the court’s witness, that error may be deemed harmless if it did not affect
the outcome of the trial. State v. Watson, 9th Dist. Summit No. 25229, 2011-Ohio-2882, ¶ 15
15
(“[E]ven assuming, without deciding, that the trial court abused its discretion in calling the
witnesses as court’s witnesses, [the appellant] has not established that the error was anything other
than harmless.”); Crim.R. 52(A).
{¶43} “This Court has specifically recognized that a trial court has the discretion to call
a domestic violence victim as its own witness under Evid.R. 614(A) where the victim changes her
testimony at trial.” State v. Gilcreast, 9th Dist. Summit No. 25509, 2011-Ohio-2883, ¶ 8.
Additionally, “[i]t is well-established that a trial court does not abuse its discretion in calling a
witness as a court’s witness when the witness’s testimony would be beneficial to ascertaining the
truth of the matter and there is some indication that the witness’s trial testimony will contradict a
prior statement made to police.” State v. Clay, 9th Dist. Summit No. 27015, 2014-Ohio-3806, ¶
57, quoting State v. Arnold, 189 Ohio App.3d 507, 2010–Ohio–5379, ¶ 44 (2d Dist.).
{¶44} Here, the record reflects that the State requested that the trial court call J.B. as a
court witness under Rule 614(A). The prosecutor stated that she had “briefly spoken with [J.B.]
in the hallway and she indicated, again, essentially that what she is going to say today is going to
be much different than what she said during the incident[.]” The prosecutor also noted that the
parties briefly discussed this issue in chambers, but that discussion is not part of the record on
appeal. Defense counsel objected, arguing that J.B. should testify as a witness for the State and
that, if J.B. testified as the prosecutor anticipated she would, then the parties could address the
issue at that time.
{¶45} Even assuming that the trial court abused its discretion by calling J.B. as the court’s
witness, we cannot say that this resulted in reversible error. Watson at ¶ 15. Criminal Rule 52(A)
governs harmless error and provides that “[a]ny error, defect, irregularity, or variance which does
not affect substantial rights shall be disregarded.” “Whether the defendant’s substantial rights
16
were affected depends on whether the error was prejudicial, i.e., whether it affected the outcome
of the trial.” State v. Jones, 160 Ohio St.3d 314, 2020-Ohio-3051, ¶ 18.
{¶46} Here, as the State anticipated, J.B.’s testimony differed significantly from her prior
statement to the police. The prosecutor used J.B.’s prior statement to the police, as well as Deputy
Rubenstein’s bodycam footage, to impeach her trial testimony. Defense counsel then had the
opportunity to cross-examine J.B. We cannot say that any error in the trial court calling J.B. as
the court’s witness affected the outcome of trial, nor has Mr. Walter argued as much. See Mahoney
v. Mahoney, 9th Dist. Medina No. 16CA0061-M, 2017-Ohio-7917, ¶ 9 (“It is the appellant’s
burden to affirmatively demonstrate error on appeal.”). Consequently, Mr. Walter’s third
assignment of error is overruled.
III.
{¶47} Mr. Walter’s assignments of error are overruled. The judgment of the Wayne
County Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, 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
17
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.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
WESLEY A. JOHNSTON, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting
Attorney, for Appellee.