State v. Anderson
| Decision Date | 21 November 2016 |
| Docket Number | No. 14AP0054.,14AP0054. |
| Citation | 2016 Ohio 7814,74 N.E.3d 773 |
| Parties | STATE of Ohio, Appellee v. Alexander T. ANDERSON, Appellant. |
| Court | Ohio Court of Appeals |
Norman R. Miller, Jr., Attorney at Law, for Appellant.
Daniel R. Lutz, Prosecuting Attorney, and Nathan R. Shaker, Assistant Prosecuting Attorney, for Appellee.
{¶ 1} Defendant–Appellant Alexander Anderson appeals from the judgment of the Wayne County Municipal Court. This Court affirms.
{¶ 2} A.A., then 7 years old, and his sister, then 11 years old, were living with their father, Mr. Anderson. Mr. Anderson and the children's mother were divorced at the time and had had ongoing issues concerning custody of their children. On May 4, 2014, Mr. Anderson discovered that the cord of his children's Wii controller had been chewed. Mr. Anderson asked both the children who did it, and they both denied involvement. Eventually, A.A. confessed to damaging the controller. Mr. Anderson's daughter indicated that Mr. Anderson then "got really mad[ ]" and was screaming at A.A. She witnessed Mr. Anderson choke A.A. with the Wii cord and slap him across the face.
{¶ 3} Mr. Anderson called the school the next day and left a message reporting that he and A.A. had been wrestling over the weekend and that A.A. had some minor bumps and scrapes that were nothing to worry about.
{¶ 4} A.A.'s teacher was with A.A.'s class on a field trip that next day. She sat next to A.A. on the bus ride back to the school and became very concerned because she observed marks on his cheeks, neck, face, and forehead that appeared to be bruises and scratch marks. She thought one of the marks resembled a hand print. She had previously heard the voicemail from Mr. Anderson. A.A. told her the injuries happened from wrestling with Mr. Anderson.
{¶ 5} Upon returning to the school, A.A. went to see the school medical assistant because the teacher remained concerned given the severity of A.A.'s injuries. A.A. told the medical assistant that he got the injuries from wrestling with Mr. Anderson. The medical assistant described marks that looked like hand prints and indicated that it looked like something had been wrapped around A.A.'s neck. Due to the medical assistant's concerns, she then went and got the school guidance counselor. A.A. again told the school guidance counselor that the injuries happened while wrestling. However, when the school guidance counselor indicated that that did not look like what had happened, A.A. told her that Mr. Anderson got mad at him for having the dog in his room, choked him, put his hands around his neck, and knocked him into the door knob.
{¶ 6} Upon hearing this, the school guidance counselor called Wayne County Children Services ("CSB"). After meeting with A.A., the caseworker called police and implemented a safety plan. A.A., who had been living with Mr. Anderson, was then placed with his paternal grandparents. A.A. told police that Mr. Anderson had choked him with a Wii cord for having the dog in his room.
{¶ 7} Police questioned Mr. Anderson about the incident. Mr. Anderson indicated that A.A. had gotten in trouble for biting the Wii cord. Mr. Anderson admitted to swatting A.A. on the butt and hitting him in the butt with the side of his foot. Mr. Anderson denied choking A.A., but indicated that he did put a hand on the back of A.A.'s neck to guide A.A. to the couch so they could talk about the Wii cord. Mr. Anderson stated that after he disciplined A.A., he and A.A. were wrestling and rough housing.
{¶ 8} Subsequently, a complaint was filed against Mr. Anderson for one count of domestic violence. Prior to trial, the State filed a notice of its intent to request the admission of hearsay statements of A.A. pursuant to Evid.R. 807. The trial court thereafter held a competency hearing. The trial court determined A.A. to be competent but also found that A.A. had refused to testify at trial. Following the competency hearing, the trial court allowed the attorneys to present argument with respect to whether A.A.'s statements were admissible pursuant to Evid.R. 807. Ultimately, the trial court concluded that the statements to "professional teachers, counselors, medical assistants, and police officers[ ]" were admissible under Evid.R. 807 and issued a judgment entry with findings related to that conclusion.
{¶ 9} The matter proceeded to a jury trial. The jury found Mr. Anderson guilty of domestic violence and the trial court sentenced him to 24 months of community control along with certain conditions, 45 days in jail, and imposed a $250 fine and court costs. Mr. Anderson filed a motion to stay the execution of his sentence, which the trial court granted following the posting of a $500 bond plus costs.
{¶ 10} Mr. Anderson has appealed, raising three assignments of error for our review.
{¶ 11} Mr. Anderson argues in his first assignment of error that the trial court erred in commenting on the testimony of Mr. Anderson's daughter, a witness for the prosecution. Specifically, Mr. Anderson asserts that the trial court vouched for Mr. Anderson's daughter and bolstered her credibility when the trial court addressed her at the end of her testimony and stated,
{¶ 12} However, we decline to address the merits of Mr. Anderson's argument because he did not object to the trial court's comments and he has failed to develop a plain error argument on appeal. See State v. Jackson, 9th Dist. Summit No. 27479, 2015-Ohio-5096, 2015 WL 8348077, ¶ 51 (); State v. King, 9th Dist. Summit No. 27069, 2014-Ohio-4189, 2014 WL 4724772, ¶ 9 ().
{¶ 13} Mr. Anderson's first assignment of error is overruled.
{¶ 14} Mr. Anderson argues in his second assignment of error that the trial court erred in refusing to allow him to present evidence about the history of the custody disputes between himself and his ex-wife.
{¶ 15} "The admission of evidence lies within the broad discretion of a trial court, and a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice." State v. Spy, 9th Dist. Summit No. 27450, 2016-Ohio-2821, 2016 WL 2343384, ¶ 14, quoting State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 43. Further, "[i]t is a fundamental rule of evidence that error cannot be based on a ruling which excludes evidence unless a substantial right of the party is affected, and ‘the substance of the evidence was made known to the court by offer or was apparent from the context [.]’ " State v. Barrios, 9th Dist. Lorain No. 06CA009065, 2007-Ohio-7025, 2007 WL 4554171, ¶ 8, quoting Evid.R. 103(A)(2).
{¶ 16} Mr. Anderson argues that the trial court erred in excluding evidence pertaining to the custody issues he and his ex-wife have faced because such evidence would tend to show his children's potential bias and motive to fabricate their statements. Mr. Anderson argues that State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 49, supports his argument that such testimony is admissible. However, Muttart, did not deal with the precise issue before us. Muttart dealt with "whether a child's out-of-court statements to medical personnel [were] admissible pursuant to Evid.R. 803(4) in the absence of a judicial determination of the competency of the child as a witness and whether the admission of those hearsay statements violated [an] appellant's Sixth Amendment rights of confrontation [.]" Id. at ¶ 2. In that case, the Supreme Court determined that, in determining whether a child's statement was made for the purpose of medical diagnosis or treatment, courts should examine certain factors, including "whether there [was] a motive to fabricate, such as pending legal proceeding such as a bitter custody battle." (Internal quotations and citations omitted.) Id. at ¶ 49. Thus, in certain contexts, the Supreme Court has determined that custody disputes can be relevant factor in evaluating a child's statement.
{¶ 17} On appeal, Mr. Anderson points to two incidents during the trial when he alleges such testimony was excluded. Both occurred during direct examination of defense witnesses: Mr. Anderson and Mr. Anderson's fiancée. During Mr. Anderson's testimony the following series of questions and answers took place:
During the redirect examination of Mr. Anderson's fiancée, the following exchange occurred:
{¶ 18} To the extent the trial court...
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