[Cite as State v. Fox, 2018-Ohio-1995.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Plaintiff-Appellee                        Hon. Patricia A. Delaney, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 17 CA 000012
JAMES E. FOX III

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case No. 17 CRB 00129


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         May 22, 2018



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

BRITTANY A. WHITNEY                            JOHN A. DANKOVICH
ASSISTANT DIRECTOR OF LAW                      ASSISTANT PUBLIC DEFENDER
5 North Gay Street, Suite 222                  110 East High Street
Mount Vernon, Ohio 43050                       Mount Vernon, Ohio 43050
Knox County, Case No. 17 CA 000012                                                    2

Wise, John, P. J.

      {¶1}   Defendant-Appellant James E. Fox, III, appeals his conviction on one count

of Domestic Violence and one count of Assault following a jury trial in the Mount Vernon

Municipal Court, Knox County.

      {¶2}   Appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶3}   The relevant procedural facts leading to this appeal are as follows.

      {¶4}   On February 5, 2017, six-year-old S.F. returned home from a weekend

at her father's house. S.F. normally returned from her father's at seven o'clock on

Sunday evenings, but her aunt Melissa brought her home early. S.F.'s mother, Casey

Beck, noticed that S.F. seemed sad and anxious to get away from her Aunt Melissa.

S.F. did not give Aunt Melissa a hug before she left, and her mother could hardly get

her to say "bye." (Tr. at 147-157).

      {¶5}   When S.F. came through the front door, she told her mother that she had

a loose tooth. Her mother observed that, unlike when S.F. had a loose tooth that past

December, she did not seem excited. As Ms. Beck examined her daughter's tooth,

she noticed that her lip was busted. S.F. then pushed past her and went into her great-

grandmother's room. (Tr. at 147-157).

      {¶6}   After S.F.'s aunt left, Ms. Beck put S.F. in the bathtub and asked her

about her loose tooth and busted lip. S.F. told her mother that she "didn't remember

what she was supposed to say." (Tr. at 151). Ms. Beck then called her mother, S.F.'s

grandmother, who came to the house and talked with S.F. (Tr. at 151).
Knox County, Case No. 17 CA 000012                                                    3


      {¶7}   The two women then took S.F. to the Knox County Sheriff's Office where

they met with Deputy Tim Knell. Deputy Knell observed the injury to S.F.'s lip to be

fresh. Deputy Knell also noted that S.F. seemed frightened and subdued. Based on

his interaction with S.F., her mother, and her grandmother, Deputy Knell called for

back-up and went to the residence of S.F.'s father, James E. Fox, III, to arrest him for

Domestic Violence and Assault. (Tr. at 160-165).

      {¶8}   The following day, on February 6, 2017, Lindsey Anders, the school

social worker at Cardington Elementary, stopped to chat with S.F. in the school

lunchroom. Ms. Anders and S.F. had known each other for over a year; and Ms.

Anders liked to check up on S.F. As they were chatting, S.F. told Ms. Anders that she

had a loose tooth because of her Daddy. (Tr. at 181-183).

      {¶9}   Later that same day, Ms. Beck took S.F. to Nationwide Children's

Hospital. The emergency room triage nurse who met with S.F. on February 6, 2017,

was Brittany Kaptur. During intake, S.F. stated to Nurse Kaptur that her tooth was

loose because her Dad hit her in the face. Nurse Kaptur found S.F.'s injuries to be

consistent with S.F.'s explanation. (Tr. at 190-195).

      {¶10} On April 5, 2017, Knox County Sheriff's Office Detective Sergeant Dan

Bobo, who specializes in investigating crimes against children, interviewed A.F. at

Dan Emmett Elementary School. A.F. and S.F. have the same father; and A.F. was

present at Mr. Fox's home on February 5, 2017. Detective Bobo found A.F.’s version

of events to corroborate S.F.'s explanation for how she received a loose tooth and

busted lip on Sunday, February 5, 2017. (Tr. 118-140).
Knox County, Case No. 17 CA 000012                                                     4


      {¶11} On February 6, 2017, Appellant was charged in the Mount Vernon Municipal

Court with one count of Domestic Violence, in violation of R.C. §2919.25(A) and one count

of Assault, in violation of R.C. §2903.13(A), both first-degree misdemeanors.

      {¶12} A jury trial was scheduled May 18, 2017. In the interim, a competency

hearing was scheduled to determine whether S.F. and A.F., both under the age of ten

years, were competent to testify. That hearing was held on April18, 2017.

      {¶13} In an April 28, 2017, entry filed by Judge John C. Thatcher of the Mount

Vernon Municipal Court, both children were found competent to testify at trial.

      {¶14} On May 18, 2017, a jury trial commenced in this matter. At trial, the jury

heard testimony from S.F., A.F., Detective Sergeant Dan Bobo, Casey Beck, Deputy

Tim Knell, Elizabeth Minser, Lindsey Anders and Brittany Kaptur on behalf of the

State. The jury also heard testimony from Chris Fox, Whitney Barnes, Lisa Fox,

James Fox, II, Melissa Fox, Brandon Spaulding and Appellant James Fox, III, on

behalf of Appellant.

      {¶15} Following deliberations, after the conclusion of all evidence, the jury

found Appellant guilty on both counts of Domestic Violence and Assault.

      {¶16} Appellant now appeals, raising the following Assignments of Error:

                                 ASSIGNMENTS OF ERROR

      {¶17} “I. THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE IN VIOLATION

OF CONSTITUTIAL (SIC) RIGHTS AND FUNDAMENTAL FAIRNESS.

      {¶18} II. THE COURT ERRED IN FINDING COMPETENCY AND ALLOWING

THE ALLEGED CHILD VICTIM TO TESTIFY

      {¶19} III. THE COURT ERRED IN ALLOWING TESTAMONIAL (SIC) HEARSAY
Knox County, Case No. 17 CA 000012                                                            5


       {¶20} IV. THE COURT ERRED IN DISALLOWING THE ENTIRE RECORDED

STATEMENTS.”

                                               I.

       {¶21} In his first Assignment of Error, Appellant argues the trial court erred in

excluding evidence regarding custody matters and an allegation of sexual abuse. We

disagree.

       {¶22} Appellant herein argues that he should have been permitted to question

S.F. regarding recent custody changes, alleged prior false accusations of abuse, coercion

and undue influence.

       {¶23} The admission or exclusion of relevant evidence rests in the sound

discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d

343. As a general rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802.

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. Wilmington Steel

Products, Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122, 573 N.E.2d

622, 624. Absent an abuse of discretion resulting in material prejudice to the defendant,

a reviewing court should be reluctant to interfere with a trial court's decision in this regard.

State v. Sage (1987), 31 Ohio St.3d 173, 180.

       {¶24} The trial court, in refusing to allow this line of questioning, stated:

              As the Court has said, this is a domestic violence and assault case.

       It is going to be proved or not proved based on the evidence presented here

       in the courtroom. I don't want the jury to be prejudiced or lose its way based

       on either a sexual abuse allegation, so that the State can bootstrap its case
Knox County, Case No. 17 CA 000012                                                         6


       up until a conviction or going the other way because of some alleged false

       allegations that were made by the mother. Okay. This is going to be a fact-

       based decision by the jury, not based on what I think are a lot of unfounded

       allegations on both sides here. (T. at 217-218).

       {¶25} The trial court further explained:

              You can impeach her [the State] witnesses all day long based on

       what they told law enforcement and what they are saying now. If the mother

       has testified under oath in some other proceeding somewhere, custody, that

       it has been found a lie in some other court, you can impeach her on those

       grounds. (T. at 142-143).

       {¶26} We find no Sixth Amendment Confrontation Clause violation as argued by

Appellant because Appellant was able to confront and cross-examine the witnesses on

their testimony.

       {¶27} Upon review, this Court does not find that the trial court abused its discretion

in limiting the testimony and evidence to the charges of domestic violence and assault.

       {¶28} Appellant’s First Assignment of Error is overruled.

                                                  II.

       {¶29} In his Second Assignment of Error, Appellant argues the trial court erred

finding the child victim competent to testify. We disagree.

       {¶30} Evidence Rule 601 states:

              “Every person is competent to be a witness except:
Knox County, Case No. 17 CA 000012                                                          7


              “(A) Those of unsound mind, and children under ten years of age,

       who appear incapable of receiving just impressions of the facts and

       transactions respecting which they are examined, or of relating them truly.”

       {¶31} The Ohio Supreme Court has set forth the following factors for a

competency determination pursuant to Evid. R. 601(A):

              In determining whether a child under ten is competent to testify, the

       trial court must take into consideration (1) the child's ability to receive

       accurate impressions of fact or to observe acts about which he or she will

       testify, (2) the child's ability to recollect those impressions or observations,

       (3) the child's ability to communicate what was observed, (4) the child's

       understanding of truth and falsity and (5) the child's appreciation of his or her

       responsibility to be truthful.” State v. Frazier (1991), 61 Ohio St.3d 247, 251.

       The trial court must find, then, that the child witness: (1) has the ability to

       recall the alleged acts of abuse; (2) has the ability to communicate those

       facts; and (3) understands his responsibility to be truthful.

       {¶32} A court conducting a voir dire to determine competency is not chained to a

ritualistic formula to ask specific questions. However, it must satisfy itself of the elements

enumerated in Frazier. State v. Swartsell, Butler App. No. CA2002–06–151, 2003–Ohio–

4450 at ¶13. As long as a witness understands the oath, or has the mental capacity

sufficient to receive just impressions of the facts and transactions relating to what he or

she is being questioned upon, then he or she is competent to testify at trial. State v.

Bradley (1989), 42 Ohio St.3d 136, 140–141, 538 N.E.2d 373. See, also, State v. Wildman

(1945), 145 Ohio St. 379, 61 N.E.2d 790, paragraph three of the syllabus.
Knox County, Case No. 17 CA 000012                                                          8


       {¶33} “A child may be competent to testify even though the child * * * initially does

not recognize the concept of truth, so long as the voir dire continues on to demonstrate

that the child * * * generally * * * understands the concept of truthfulness.” State v. Brooks

(Oct. 26, 2001), 2nd Dist. No. 18502, quoting State v. Boyd (Oct. 31, 1997), 2d Dist. No.

97 CA 1.

       {¶34} A trial court's decision that a presumed incompetent witness is competent

to testify must be approached by a reviewing court with great deference because the trial

judge has the opportunity to observe the person's appearance, his or her manner of

responding to the questions, general demeanor and any indicia of ability to relate the facts

accurately and truthfully. See Frazier, 61 Ohio St.3d 247, 251, 574 N.E.2d 483; State v.

Lewis (1982), 4 Ohio App.3d 275, 277, 448 N.E.2d 489, 490. See also, State v. Uhler

(1992), 80 Ohio App.3d 113, 118, citing State v. Bradley (1989), 42 Ohio St.3d 136,

paragraph one of the syllabus. See, also, State v. Wilson (1952), 156 Ohio St. 525; Banez

v. Banez, Stark App. No. 006CA00216, 2007–Ohio–4584 at ¶ 20.

       {¶35} In the case at bar, appellant argues that the trial court should have found

S.F. incompetent to testify because she lacked the ability to respond in more than a one-

word answer.

       {¶36} Upon review, we find that during the court’s in camera interview with S.F.,

she was able to tell the court her name, the name of the school she attended, the name

of her teacher, that she was in kindergarten, the color of her house, the names of her

brother and sister and the year she was born. She also understood the court’s example

of what was a lie as opposed to the truth as well as an understanding that telling a lie was
Knox County, Case No. 17 CA 000012                                                           9


"bad" and in kindergarten telling a lie could get you sent to the principal's office. S.F. was

also able to tell the court how she lost each of her baby teeth. (Tr. 3-10).

       {¶37} Based on the foregoing and because the trial court had the ability to

observe S.F.’s appearance, manner of responding to the questions, general demeanor

and her ability to relate the facts accurately and truthfully during her interview, we will not

disturb the trial court’s finding of competency to testify in this matter.

       {¶38} Appellant’s Second Assignment of Error is overruled.

                                                  III.

       {¶39} In his Third Assignment of Error, Appellant argues the trial court improperly

allowed hearsay evidence. We disagree.

       {¶40} Although somewhat unclear from the brief summary statements Appellant

makes under this assignment or error, it appears Appellant is arguing that Det. Bobo’s

testimony as to what A.F. told him concerning whether Appellant hit S.F. was testimonial

and therefore improper hearsay.

       {¶41} Upon review, we find that at trial, A.F. changed her testimony from what she

had initially told Det. Bobo, stating “He didn’t hit her and bust her lip.” (T. at 115).

       {¶42} Evidence Rule 607(A) reads,

              A) Who may impeach

              The credibility of a witness may be attacked by any party except that

       the credibility of a witness may be attacked by the party calling the witness

       by means of a prior inconsistent statement only upon a showing of surprise

       and affirmative damage. This exception does not apply to statements

       admitted pursuant to Evid.R. 801(D)(1)(a), 801(D)(2), or 803.
Knox County, Case No. 17 CA 000012                                                          10


       {¶43} We review a trial court's application of this rule for an abuse of discretion.

Davie, 80 Ohio St.3d at 323, 686 N.E.2d 245.

       {¶44} “Surprise” occurs when a witness's testimony materially differs from a prior

statement and counsel had no reason to believe that the witness would testify as he did

at trial. See id.; Ferguson Realtors v. Butts, 37 Ohio App.3d 30, 33, 523 N.E.2d 534 (12th

Dist.1987); State v. Blair, 34 Ohio App.3d 6, 9, 516 N.E.2d 240 (8th Dist.1986).

       {¶45} The “affirmative damage” requirement is satisfied if a “party's own witness

testifies to facts that contradict, deny, or harm that party's trial position.” Blair at 9, 516

N.E.2d 240; see also Ferguson Realtors at 33, 523 N.E.2d 534.

       {¶46} In the instant case, the State argued to the court that it was surprised that

A.F.’s testimony at trial materially differed from her statement to police and that such

testimony could cause affirmative damage if allowed to stand unrefuted. (T. at 120).

Under these circumstances, it was reasonable for the trial court to find that the state was

surprised by the witness's testimony and that such testimony affirmatively damaged the

state's case

       {¶47} We find the trial court did not abuse its discretion by allowing the prosecutor

to impeach A.F. with prior inconsistent statements made to Det. Bobo.

       {¶48} The Staff Notes to Evid.R. 607 indicate, the reason for retaining the

requirement that a party demonstrate surprise and affirmative damage before the party

can impeach its own witness with prior inconsistent statements of that witness is to

prevent that party from calling “a known adverse witness simply for the purpose of getting

a prior inconsistent statement into evidence by way of impeachment, thus doing indirectly

what it could not have done directly.” State v. Warren, 67 Ohio App.3d 789, 798, 588
Knox County, Case No. 17 CA 000012                                                         11


N.E.2d 905, 911 (6th Dist.1990). There is no indication of any such motivation in the

instant case.

       {¶49} Appellant also appears to be challenging the testimony of Nurse Brittany

Kaptor who testified that when asked how her tooth became loose, S.F. told her that her

dad hit her in the face. (T. at 195). Appellant maintains the victim’s interview was primarily

forensic in nature; rather than for the purpose of medical diagnosis, pursuant to State v.

Arnold (2010), 126 Ohio St.3d 290, 2010–Ohio–2742.

       {¶50} Initially, we note that Appellant failed to object to Nurse Kaptor’s testimony

at trial. We therefore review such testimony under a plain error standard of review. In

order to prevail under a plain error analysis, Appellant bears the burden of demonstrating

the outcome clearly would have been different but for the error. State v. Long, 53 Ohio

St.2d 91, 372 N.E.2d 804(1978). Notice of plain error “is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” Id. at paragraph three of the syllabus.

       {¶51} {¶ 19} In State v. Arnold, supra, the Ohio Supreme Court held,

                We hold that statements made to interviewers at child-advocacy

       centers that are made for medical diagnosis and treatment are

       nontestimonial and are admissible without offending the Confrontation

       Clause. Thus, we affirm the judgment of the court of appeals to the extent

       that M.A.'s statements to Marshall for the purpose of medical treatment and

       diagnosis were properly admitted. We further hold that statements made to

       interviewers at child-advocacy centers that serve primarily a forensic or

       investigative purpose are testimonial and are inadmissible pursuant to the
Knox County, Case No. 17 CA 000012                                                        12


       Confrontation Clause when the declarant is unavailable for cross-

       examination at trial.

       {¶52} Upon review, we find Ms. Kaptur testified that on the day S.F. came to the

emergency room, she was working as the emergency room triage nurse and did S.F.’s

intake interview. (T. at 192). We therefore find that the statements made by S.F. to Ms.

Kaptor were for the purposes of medical diagnosis or treatment, not a forensic interview.

       {¶53} Based on the foregoing, we find the trial court did not err in admitting such

testimony.

       {¶54} Appellant’s Third Assignment of Error is overruled.

                                                  IV.

       {¶55} In his Fourth Assignment of Error, Appellant argues the trial court erred in

disallowing the entire recorded statements. We disagree.

       {¶56} Appellant argues that the trial court erred in permitting the redacted medical

notes into evidence. Appellant argues the trial court should have allowed the entire written

records and/or video from Nurse Brittany Kaptor as required by Evid.R. 106, which states:

                  When a writing or recorded statement or part thereof is introduced by

       a party, an adverse party may require the introduction at that time of any

       other part or any other writing or recorded statement which is otherwise

       admissible and which ought in fairness to be considered contemporaneously

       with it.

       {¶57} Upon review, this Court finds that the redacted portions of the medical

records concerned alleged sexual abuse suffered by S.F., which the court had previously

determined was inadmissible and therefore would be excluded.
Knox County, Case No. 17 CA 000012                                            13


       {¶58} Appellant’s Fourth Assignment of Error is overruled.

       {¶59} For the reasons stated in the foregoing opinion, the decision of the

Municipal Court OF Mount Vernon, Ohio, is affirmed.


By: Wise, John, P. J.

Delaney, J., and

Wise, Earle, J., concur.



JWW/d 0510
