[Cite as State v. Grimm, 2019-Ohio-2961.]




                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLERMONT COUNTY




 STATE OF OHIO,                                    :

        Appellee,                                  :     CASE NO. CA2018-10-071

                                                   :          OPINION
     - vs -                                                    7/22/2019
                                                   :

 JASON ROBERT GRIMM,                               :

        Appellant.                                 :




    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                        Case No. 2018-CR-000074



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee

Stagnaro, Hannigan & Koop, Michaela M. Stagnaro, 30 Garfield Place, Suite 760,
Cincinnati, Ohio 45202, for appellant



        S. POWELL, P.J.

        {¶ 1} Appellant, Jason Robert Grimm, appeals his conviction in the Clermont

County Court of Common Pleas after a jury found him guilty of one count of domestic

violence. Grimm also appeals the trial court's decision sentencing him to serve a mandatory

15-month prison term. For the reasons outlined below, we affirm.
                                                                          Clermont CA2018-10-071

       {¶ 2} On January 25, 2018, the Clermont County Grand Jury returned an indictment

charging Grimm with domestic violence in violation of R.C. 2919.25(A). Due to Grimm's

prior domestic violence conviction, the offense was charged as a fourth-degree felony

pursuant to R.C. 2919.25(D)(3). The charge arose after it was alleged Grimm caused

physical harm to the victim, B.J., his then seven-months-pregnant girlfriend. Because there

could be no dispute that Grimm knew B.J. was pregnant when the alleged domestic violence

incident occurred, the offense carried with it a mandatory term of "at least" six months in

prison in accordance with R.C. 2919.25(D)(6)(a).

       {¶ 3} On August 28 and 29, 2018, the matter proceeded to a two-day jury trial.

During trial, the jury heard testimony from several witnesses. These witnesses included

B.J., Officer Geremy Grooms of the Union Township Police Department, and the two nurses

who treated B.J. for her injuries, Angela Gonzalez and Judith Faessler. Neither Grimm nor

any other witness testified in Grimm's defense.

       {¶ 4} As part of her testimony, B.J. testified that Grimm "busted" her lip, picked her

up by her neck, and slammed her into the wall of their apartment after she and Grimm

returned home from a festival held in Cincinnati. This caused B.J.'s left side of her body

and pregnant belly to go through the wall and leave an imprint. After slamming B.J. into the

wall, Grimm then strangled B.J. and struck her in the face and ribs. Grimm's attack

eventually stopped after B.J. was able to retrieve her cell phone and call the police Upon

learning B.J. had called the police, Grimm fled the scene and drove to his mother's house.

Photographs and a short video recording depicting Grimm aggressively coming toward B.J.

followed by several smacking sounds corroborates B.J.'s testimony.1




1. One photograph admitted as evidence shows a damaged wall with an imprint of what appears to be a
pregnant female body. Other photographs depict B.J.'s "busted" lip, as well as red marks, scratches, and
bruises on B.J.'s arms, chest, and neck.
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       {¶ 5} After both parties rested, the trial court provided its final instructions to the

jury. This included an instruction on flight as evidence of Grimm's consciousness of guilt.

Following deliberations, the jury returned a verdict finding Grimm guilty as charged. The

trial court then sentenced Grimm to serve a mandatory 15-month prison term. The trial

court issued its sentencing decision after considering the principles and purposes of felony

sentencing as set forth in R.C. 2929.11 and the serious and recidivism factors listed in R.C.

2929.12.   This is confirmed by the sentencing hearing transcript and the trial court's

sentencing entry, wherein the trial court specifically stated that it had reviewed and

considered both statutes prior to issuing its sentencing decision.

       {¶ 6} Grimm now appeals his conviction and sentence, raising six assignments of

error for review.

       {¶ 7} Assignment of Error No. 1:

       {¶ 8} THE TRIAL COURT ERRED AS A MATTER OF LAW BY ALLOWING THE

STATE TO INTRODUCE HEARSAY STATEMENTS WHICH VIOLATED APPELLANT'S

RIGHT TO A FAIR TRIAL.

       {¶ 9} In his first assignment of error, Grimm argues the trial court erred by admitting

several alleged hearsay statements from Officer Grooms at trial. Grimm also argues the

trial court erred by admitting other alleged hearsay statements from nurses Gonzales and

Faessler. Grimm acknowledges that he objected to only "some" of these challenged

statements, thereby waiving all but plain error as to those statements to which he did not

object. But, even when applying an abuse of discretion standard of review, we find no merit

to any of Grimm's arguments raised herein.

       {¶ 10} When properly objected to, this court reviews a trial court's decision to admit

or exclude evidence under an abuse of discretion standard. State v. Gerde, 12th Dist.

Clermont No. CA2016-11-077, 2017-Ohio-7464, ¶ 8. An abuse of discretion connotes more

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than an error of law or judgment; it implies the trial court's decision was unreasonable,

arbitrary, or unconscionable. State v. Grindstaff, 12th Dist. Clermont No. CA2013-09-074,

2014-Ohio-2581, ¶ 21. A decision is unreasonable when it is "unsupported by a sound

reasoning process." State v. Abdullah, 10th Dist. Franklin No. 07AP-427, 2007-Ohio-7010,

¶ 16, citing AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50

Ohio St.3d 157, 161 (1990). This court "should not disturb evidentiary decisions in the

absence of an abuse of discretion that has created material prejudice." State v. Boles, 12th

Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 14, citing State v. Smith, 12th Dist.

Fayette No. CA2007-10-035, 2008-Ohio-5931, ¶ 33.

       {¶ 11} Grimm initially argues the trial court erred by permitting Officer Grooms to

testify as to B.J.'s statements to him at the scene approximately five minutes after she called

the police. However, contrary to Grimm's claim, B.J.'s statements to Officer Grooms fall

squarely within the excited utterance exception to the hearsay rule. Pursuant to Evid.R.

803(2), a hearsay statement is admissible as an excited utterance if: "(1) there was an event

startling enough to produce a nervous excitement in the declarant; (2) the statement was

made while under the stress of excitement caused by the event; (3) the statement related

to the startling event; and (4) the declarant must have had an opportunity to personally

observe the startling event." State v. Worth, 10th Dist. Franklin No. 10AP1125, 2012-Ohio-

666, ¶ 22, citing State v. Taylor, 66 Ohio St.3d 295, 300-301 (1993). Given Officer Grooms'

testimony that B.J. was "very emotional," "clearly upset," crying, scared, red in the face, and

exhibiting signs that she "had been in an altercation," the trial court did not abuse its

discretion by admitting Officer Grooms' challenged testimony in accordance with Evid.R.

803(2). Grimm's claim otherwise lacks merit.

       {¶ 12} Also lacking merit are Grimm's claims the trial court erred by permitting nurses

Gonzalez and Faessler to testify regarding B.J.'s statements she made to them at the

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hospital while seeking treatment for herself and her unborn baby. Again, contrary to

Grimm's claim, the vast majority of B.J.'s statements made to nurses Gonzalez and

Faessler fall well within the "medical treatment" exception to the hearsay rule under Evid.R.

803(4). Pursuant to that rule, an exception exists for "[s]tatements made for purposes of

medical diagnosis or treatment and describing medical history, or past or present

symptoms, pain, or sensations, or the inception or general character of the cause or external

source thereof insofar as reasonably pertinent to diagnosis or treatment." "A fundamental

assumption underlying the medical-treatment exception is that this particular hearsay is

reliable." State v. Wagers, 12th Dist. Preble No. CA2009-06-018, 2010-Ohio-2311, ¶ 51.

This exception applies even to statements made to psychological caregivers, therapists,

and social workers. State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, ¶ 56.

       {¶ 13} The only questionable statement would be B.J.'s statements to nurses

Gonzalez and Faessler naming Grimm as her attacker. However, while a question may

exist as to the admissibility of this testimony, B.J. specifically testified that it was Grimm who

caused her injuries. The record also contains a short video recording depicting Grimm

aggressively coming toward B.J. followed by several smacking sounds. This evidence

alleviates any doubt as to the identity of B.J.'s alleged attacker, thereby rendering any error

the trial court may have made by admitting this evidence, at worst, harmless. "A reviewing

court properly finds the erroneous admission of evidence harmless error where there is

overwhelming evidence of guilt or some other indicia the error did not contribute to the

conviction." State v. Rowley, 12th Dist. Clinton No. CA2016-10-019, 2017-Ohio-5850, ¶ 24,

citing State v. Pottorf, 12th Dist. Warren No. CA2014-03-046, 2014-Ohio-5399, ¶ 20.

Therefore, finding no merit to any of the arguments raised herein, Grimm's first assignment

of error is overruled.

       {¶ 14} Assignment of Error No. 2:

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      {¶ 15} THE TRIAL COURT ERRED AS A MATTER OF LAW BY PERMITTING

OTHER ACTS TESTIMONY INTO EVIDENCE THUS PREJUDICING APPELLANT'S

RIGHT TO A FAIR TRIAL.

      {¶ 16} In his second assignment of error, Grimm argues the trial court erred by

admitting so-called "other acts" evidence at trial. We disagree.

      {¶ 17} Evidence that an accused committed a crime other than the one for which he

is on trial is not admissible when its sole purpose is to show the accused's propensity or

inclination to commit crime or that he acted in conformity with bad character. State v.

Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶

40. Pursuant to Evid.R. 404(B), evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show that a person acted in conformity

therewith on a particular occasion. State v. Hart, 12th Dist. Warren No. CA2008-06-079,

2009-Ohio-997, ¶ 11. Such evidence, however, is permitted for other purposes, including

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or the absence

of mistake or accident. State v. Thomas, 12th Dist. Butler No. CA2012-11-223, 2013-Ohio-

4327, ¶ 22.

      {¶ 18} Similar to Evid.R. 404(B), the General Assembly has promulgated R.C.

2945.59, which provides:

              In any criminal case in which the defendant's motive or intent,
              the absence of mistake or accident on his part, or the
              defendant's scheme, plan, or system in doing an act is material,
              any acts of the defendant which tend to show his motive or
              intent, the absence of mistake or accident on his part, or the
              defendant's scheme, plan, or system in doing the act in question
              may be proved, whether they are contemporaneous with or prior
              or subsequent thereto, notwithstanding that such proof may
              show or tend to show the commission of another crime by the
              defendant.

      {¶ 19} Both the statute and the rule "codify the common law with respect to evidence


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of other acts of wrongdoing," and preclude admission of other acts evidence to prove a

character trait in order to demonstrate conduct in conformity with that trait. State v. Williams,

134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 16; State v. Vore, 12th Dist. Warren No. CA2011-

08-093, 2012-Ohio-2431, ¶ 39-40. Therefore, under either Evid.R. 404(B) or R.C. 2945.59,

"[t]o be admissible, the other-act evidence must tend to show by substantial proof one or

more of the things that the rule or statute enumerates," such as motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.              State v.

Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 68 (12th Dist.). "[T]he trial court is

afforded broad discretion regarding the admission of other acts evidence." State v. Ward,

12th Dist. Clermont No. CA2013-07-059, 2014-Ohio-990, ¶ 40.

       {¶ 20} Grimm initially argues the trial court erred by admitting testimony that he was

intoxicated on the night in question, as well as testimony that he "wanted to fight other

people that night," and that he fled the scene and drove to his mother's house after B.J.

called the police. However, none of this testimony can be considered "other acts" evidence

under either Evid.R. 404(B) or R.C. 2945.59. Rather, this testimony was properly admitted

in order to describe the events that formed "'the immediate background of the alleged act

which forms the basis for the crime charged.'" State v. Wainscott, 12th Dist. Clermont No.

CA2015-07-056, 2016-Ohio-1153, ¶ 19, quoting State v. Crew, 2d Dist. Clark No. 2009 CA

45, 2010-Ohio-3110, ¶ 99. "[E]vidence of other crimes or wrongs may be admitted when

such acts are so inextricably intertwined with the crime as charged that proof of one involves

the other, explains the circumstances thereof, or tends logically to prove any element of the

crime charged." State v. Davis, 64 Ohio App.3d 334, 341 (12th Dist.1989), citing State v.

Wilkinson, 64 Ohio St.2d 308, 317 (1980). Therefore, because this challenged testimony

was admissible to describe the events in question, Grimm's first argument lacks merit.

       {¶ 21} Grimm also argues the trial court erred by admitting B.J.'s testimony that he

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had a history of domestic violence against her. Grimm, however, did not object to this

testimony, thereby waiving all but plain error.    State v. Rogers, 12th Dist. Butler No.

CA2017-08-112, 2018-Ohio-1356, ¶ 24.         Pursuant to Crim.R. 52(B), "[p]lain errors or

defects affecting substantial rights may be noticed although they were not brought to the

attention of the court." Plain error does not exist unless, but for the error, the outcome of

the trial would have been different. State v. Blacker, 12th Dist. Warren No. CA2008-07-

094, 2009-Ohio-5519, ¶ 39, citing State v. Waddell, 75 Ohio St.3d 163, 166 (1996). Notice

of plain error "'is to be taken with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice.'" State v. Haney, 12th Dist. Clermont No.

CA2005-07-068, 2006-Ohio-3899, ¶ 50, quoting State v. Long, 53 Ohio St.2d 91 (1978),

paragraph three of the syllabus.

      {¶ 22} The trial court did not commit error, let alone plain error, in admitting B.J.'s

testimony regarding Grimm's history of domestic violence against her. The complained of

testimony – that B.J. was the victim of "cycles of abuse" during her multi-year relationship

with Grimm – was elicited during cross-examination. However, regardless of how Grimm's

history of domestic violence came to light, the record indicates B.J.'s testimony was

innocuous and had no impact on the outcome of the case. This is particularly true here

when considering the extensive, overwhelming evidence of Grimm's guilt and the parties'

stipulation to the jury that Grimm had a prior domestic violence conviction. Given his prior

domestic violence conviction, the fact that B.J. testified she was the victim of "cycles of

abuse" during her multi-year relationship with Grimm would have had little, if any, impact

on the jury's verdict.   Therefore, because the trial court did not err by admitting the

challenged testimony at issue, let alone commit plain error, Grimm's second argument also

lacks merit. Accordingly, finding no merit to any of the arguments raised herein, Grimm's

second assignment of error is overruled.

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        {¶ 23} Assignment of Error No. 3:

        {¶ 24} THE TRIAL COURT ERRED AS A MATTER OF LAW IN INSTRUCTING THE

JURY.

        {¶ 25} In his third assignment of error, Grimm argues the trial court provided

improper and otherwise incomplete jury instructions. Specifically, Grimm argues the trial

court erred by failing to instruct the jury on assault as a lesser included offense, as well as

by instructing the jury on flight as evidence of his consciousness of guilt. We disagree.

        {¶ 26} Jury instructions are matters that are left to the sound discretion of the trial

court. State v. Brannon, 12th Dist. Clinton No. CA2014-09-012, 2015-Ohio-1488, ¶ 20. The

trial court, however, "must fully and completely give jury instructions which are relevant and

necessary for the jury to weigh the evidence and discharge its duty as the fact-finder." State

v. Davis, 12th Dist. Madison, CA2015-05-015, 2016-Ohio-1166, ¶ 27, citing State v. Comen,

50 Ohio St.3d 206 (1990), paragraph two of the syllabus. In turn, this court may not reverse

a conviction based upon faulty jury instructions unless it is clear that the jury instructions

constituted prejudicial error. State v. Napier, 12th Dist. Clermont No. CA2016-04-022,

2017-Ohio-246, ¶ 30. Therefore, when reviewing a trial court's jury instructions, this court's

duty is to merely "review the instructions as a whole, and, if taken in their entirety, the

instructions fairly and correctly state the law applicable to the evidence presented at trial,"

affirm the trial court's decision. Davis at ¶ 28.

        {¶ 27} Grimm initially argues the trial court erred by failing to instruct the jury on

assault as a lesser included offense. A jury instruction on a lesser included offense is

required only where the evidence presented at trial would reasonably support both an

acquittal on the crime charged and a conviction on the lesser included offense. State v.

Carroll, 12th Dist. Clermont Nos. CA2007-02-030, CA2007-03-041, 2007-Ohio-7075, ¶ 136,

citing State v. Carter, 89 Ohio St.3d 593, 600 (2000). An instruction is not warranted,

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however, simply because the defendant offers some evidence to establish the lesser

included offense. State v. Gray, 12th Butler No. CA2010-03-064, 2011-Ohio-666, ¶ 23,

citing State v. Shane, 63 Ohio St.3d 630, 632-633 (1992). There must instead be sufficient

evidence to allow the jury to reasonably reject the greater offense and find the defendant

guilty on a lesser included offense. State v. Anderson, 12th Dist. Butler No. CA2005-06-

156, 2006-Ohio-2714, ¶ 11. When making this determination the trial court must view the

evidence in a light most favorable to the defendant. Napier, 2017-Ohio-246 at ¶ 33. We

review a trial court's decision to not instruct the jury on a lesser included offense for an

abuse of discretion. State v. Doby, 12th Dist. Butler No. CA2013-05-084, 2014-Ohio-2471,

¶ 17.

        {¶ 28} As noted above, Grimm was convicted of domestic violence in violation of

R.C. 2919.25(A). Pursuant to that statute, "[n]o person shall knowingly cause or attempt to

cause physical harm to a family or household member." This is "very similar to the assault

language in R.C. 2903.13(A)," which provides that "[n]o person shall knowingly cause or

attempt to cause physical harm to another or to another's unborn." State v. Maynard, 4th

Dist. Washington No. 10CA43, 2012-Ohio-786, ¶ 27. That is to say "[d]omestic violence in

R.C. 2919.25(A) is essentially assault with the added element that the person assaulted is

a 'family or household member.'" State v. Houston, 10th Dist. Franklin No. 16AP-157, 2017-

Ohio-1122, ¶ 45. Therefore, given their similarities, assault in violation of R.C. 2903.13(A)

can rightfully be considered a lesser included offense to domestic violence in violation of

R.C. 2919.25(A). See State v. Carner, 8th Dist. Cuyahoga No. 96766, 2012-Ohio-1190, ¶

43; see also State v. Juntunen, 10th Dist. Franklin No. 09AP-1108, 2010-Ohio-5625, ¶ 10

(remarking that the jury found the defendant "guilty of domestic violence and the lesser

included offense of assault").

        {¶ 29} Grimm argues an instruction on assault as a lesser included offense should

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have been given to the jury since the jury could have reasonably rejected the state's

evidence that B.J. was his "family or household member" at the time of the offense, thereby

leading to an acquittal on domestic violence while at the same time supporting a conviction

on assault. Grimm supports this claim by arguing that because B.J. had yet to give birth

that she could not be considered his "family and household member" as set forth by R.C.

2919.25(F)(1)(b). Pursuant to that statute, a "family or household member" means "[t]he

natural parent of any child of whom the offender is the other natural parent or is the putative

other natural parent." Therefore, because B.J. had yet to give birth, Grimm argues B.J. was

not yet the mother of any "child" for whom he was the father.

        {¶ 30} However, even if we were to agree with Grimm's claim as it relates to the

application of R.C. 2919.25(F)(1)(b), the record contains overwhelming and uncontroverted

evidence that B.J. was his "family or household member" at the time the offense occurred

under R.C. 2919.25(F)(1)(a)(i).2           Under that statute, the phrase "family or household

member" includes any person "who is residing or has resided with the offender" who at the

time of the offense was "a spouse, a person living as a spouse, or a former spouse of the

offender[.]" As defined by R.C. 2919.25(F)(2), a "person living as a spouse" means:

                a person who is living or has lived with the offender in a common
                law marital relationship, who otherwise is cohabiting with the
                offender, or who otherwise has cohabited with the offender
                within five years prior to the date of the alleged commission of
                the act in question.

        {¶ 31} Cohabitation, for purposes of R.C. 2919.25(F)(2), "encompasses two




2. The term "child" is not specifically defined under R.C. 2901.01. However, as set forth in R.C.
2901.01(B)(1)(a)(ii), the term "person" includes "[a]n unborn human who is viable." The term "viable" is
defined by R.C. 2901.01(B)(1)(c)(ii) as "the state of development of a human fetus at which there is a realistic
possibility of maintaining and nourishing of a life outside the womb with or without temporary artificial life-
sustaining support." While this court need not determine whether the human fetus B.J. was carrying was
viable at the time of the offense, we note that B.J. testified she was then 28-weeks pregnant with what would
become Grimm's son. We also note that Grimm himself referred to the human fetus B.J. was then carrying
as an "unborn child" as part of his appellate brief submitted to this court.
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essential elements; namely, (1) the sharing of familial or financial responsibilities and (2)

consortium." State v. Perkins, 12th Dist. Fayette No. CA2009-10-019, 2010-Ohio-2968, ¶

12, citing State v. Williams, 79 Ohio St.3d 459, 465 (1997). Possible factors establishing

shared familial or financial responsibilities "'include provisions for shelter, food, clothing,

utilities, and/or commingled assets,'" whereas factors that establish consortium "'include

mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other,

friendship, and conjugal relations.'" State v. Partlow, 10th Dist. Franklin No. 12AP-459,

2013-Ohio-2771, ¶ 7, quoting Williams. These factors are unique to each case and how

much weight to give to each factor, if any, must be decided by the trier of fact on a case-by-

case basis. State v. Brauer, 12th Dist. Warren No. CA2012-11-109, 2013-Ohio-3319, ¶ 16.

But, although decided on a case-by-case basis, the trier of fact "should be guided by

common sense and by ordinary human experience" when making this determination. State

v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, ¶ 73 (2d Dist.).

       {¶ 32} A finding of cohabitation is proper where the victim and the offender "lived

together and were in a relationship from which the domestic violence arose." State v.

McGlothan, 138 Ohio St.3d 146, 2014-Ohio-85, ¶ 17. That is certainly the case here.

Although acknowledging that she had occasionally stayed with her mother, B.J. testified

that she had nevertheless resided in an apartment with Grimm throughout their multi-year

relationship. This included times when B.J. stayed at the apartment alone for several weeks

while Grimm was out of town for work. B.J. also testified that she kept "all [her] belongings"

and clothes at the apartment, that she owned much of the furniture in the apartment, and

that she routinely cleaned the apartment. B.J. further testified that she helped pay for rent,

groceries, and that she had the cable bill placed in her name for a year. Therefore, because

the record contains overwhelming and uncontroverted evidence that B.J. was his "family or

household member" at the time of the offense under R.C. 2919.25(F)(1)(a)(i), the trial court

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did not err by failing to instruct the jury on assault as a lesser included offense to domestic

violence. This is true regardless of whether B.J. could also be considered a "family or

household member" pursuant to R.C. 2919.25(F)(1)(b). Grimm's claim otherwise lacks

merit.

         {¶ 33} Grimm also argues the trial court erred by providing the jury with an instruction

on flight as evidence of his consciousness of guilt. However, contrary to Grimm's claim, the

record fully supports the trial court's decision to provide the instruction that it did. This

includes the undisputed evidence that Grimm fled the scene and drove to his mother's

house after B.J. called the police. The fact that Grimm may not have left the county is

immaterial. Equally immaterial is the fact that Grimm may not have made any additional

attempts to avoid apprehension by the police. Grimm's fleeing from the scene shortly after

striking, choking, strangling, and slamming B.J. into the wall was strong evidence of his

consciousness of guilt irrespective of the fact that he did not continue his efforts to evade

the police. Therefore, under these circumstances, the trial court did not abuse its discretion

by providing the jury with an instruction on flight as evidence of his consciousness of guilt.

Accordingly, finding no merit to any of the arguments advanced herein, Grimm's third

assignment of error is overruled.

         {¶ 34} Assignment of Error No. 4:

         {¶ 35} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN

VIOLATION OF HIS CONSTITUTIONAL RIGHTS THUS PREJUDICING HIS RIGHT TO A

FAIR TRIAL.

         {¶ 36} In his fourth assignment of error, Grimm argues his conviction must be

reversed since he was provided with ineffective assistance of counsel. Grimm supports this

claim by arguing his trial counsel should have objected to the alleged hearsay statements

and so-called "other acts" evidence discussed above. Grimm also argues his trial counsel

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was ineffective for failing to object to the trial court instructing the jury on flight as evidence

of consciousness of his guilt, as well as by not arguing that instructing the jury "about

whether [he] was the natural father of the child, was inappropriate, and even suggested that

the instruction should be given." Given our holdings above in Grimm's first, second, and

third assignments of error, we find Grimm's trial counsel was not deficient, and therefore,

did not provide Grimm with ineffective assistance of counsel. Therefore, finding no merit to

any of Grimm's claims raised herein, Grimm's fourth assignment of error is overruled.

       {¶ 37} Assignment of Error No. 5:

       {¶ 38} THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN APPELLANT'S

CONVICTIONS.

       {¶ 39} In his fifth assignment of error, Grimm argues his conviction was not

supported by sufficient evidence and was against the manifest weight of the evidence.

Grimm supports this claim by arguing the state failed to prove B.J. was his "family or

household member" under either R.C. 2919.25(F)(1)(a) or (b). However, as noted above,

the state provided overwhelming and uncontroverted evidence that B.J. was Grimm's

"family or household member" at the time of the offense as that phrase is defined under

R.C. 2919.25(F)(1)(a)(i). This, as stated previously, is true regardless of whether B.J. could

also be considered a "family or household member" pursuant to R.C. 2919.25(F)(1)(b).

Therefore, when considering the evidence presented at trial, the jury could have found the

essential elements of the crime were proven beyond a reasonable doubt. The jury did not

lose its way in reaching this decision. Accordingly, finding his conviction was supported by

sufficient evidence and not against the manifest weight of the evidence, Grimm's fifth

assignment of error lacks merit and is overruled.

       {¶ 40} Assignment of Error No. 6:

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       {¶ 41} THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPROPERLY

SENTENCING APPELLANT.

       {¶ 42} In his sixth assignment of error, Grimm argues the trial court erred by

sentencing him to serve a mandatory 15-month prison term. We disagree.

       {¶ 43} As with all felony sentences, we review the trial court's sentencing decision

under the standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio

St.3d 516, 2016-Ohio-1002, ¶ 1. Pursuant to that statute, this court may modify or vacate

a sentence only if, by clear and convincing evidence, "the record does not support the trial

court's findings under relevant statutes or that the sentence is otherwise contrary to law."

State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7. A sentence

is not clearly and convincingly contrary to law where the trial court "considers the principles

and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly

imposes postrelease control, and sentences the defendant within the permissible statutory

range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-Ohio-2890, ¶ 8. This

court may therefore "increase, reduce, or otherwise modify a sentence only when it clearly

and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the

record." State v. Brandenburg, 146 Ohio St.3d 221, 2016-Ohio-2970, ¶ 1, citing Marcum at

¶ 7.

       {¶ 44} Grimm initially argues the trial court erred by sentencing him to serve a

mandatory 15-month prison term in accordance R.C. 2919.25(D)(6)(a) when that statute

grants the trial court authority to impose a mandatory prison sentence of just six months.

However, based on the plain language found in that statute, the trial court was required to

impose a mandatory prison term of "at least" six months. This was because Grimm, who

had a prior domestic violence conviction, knew that B.J. was pregnant when the domestic

violence indecent occurred. Therefore, by sentencing Grimm to a mandatory 15-month

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prison term, the trial court complied with the statutory requirements set forth in R.C.

2919.25(D)(6)(a) when sentencing him to that fourth-degree felony domestic violence

offense. Grimm's claim otherwise lacks merit.

       {¶ 45} Grimm also argues the trial court's decision sentencing him to a mandatory

15-month prison term must be reversed because the trial court failed to give proper

consideration to either the principles and purposes of felony sentencing as set forth in R.C.

2929.11 or the serious and recidivism factors listed in R.C. 2929.12. Grimm's argument is

essentially a challenge to the trial court's decision as to the most effective way to comply

with the purposes and principles of sentencing set forth in section 2929.11, as well as the

analysis and balancing of the seriousness and recidivism factors in R.C. 2929.12. However,

rather than this court on appeal, it is the trial court, who, "in imposing a sentence, determines

the weight afforded to any particular statutory factors, mitigating grounds, or other relevant

circumstances." State v. Steger, 12th Dist. Butler No. CA2016-03-059, 2016-Ohio-7908, ¶

18, citing State v. Stubbs, 10th Dist. Franklin No. 13AP-810, 2014-Ohio-3696, ¶ 16. The

fact that the trial court chose to weigh the various sentencing factors differently than how

Grimm would have liked does not mean the trial court erred by imposing the sentence that

it did. State v. Abrams, 12th Dist. Clermont Nos. CA2017-03-018 and CA2017-03-019,

2017-Ohio-8536, ¶ 17. Therefore, finding no error with the trial court's sentencing decision,

Grimm's sixth assignment of error is overruled.

       {¶ 46} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.


       PIPER, J., concurs separately.



       PIPER, J., concurring separately.

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       {¶ 47} I concur with the opinion of my colleagues yet write separately because

Grimm apparently labors under the misconception that statements in medical records which

identify a perpetrator are automatically inadmissible and not subject to the exception

created by Evid.R. 803(4). To the contrary, we have previously noted that medical records

that contain the identity of the offender can be pertinent to treatment. State v. Evans, 12th

Dist. Butler No. CA86-09-130, 1987 Ohio App. LEXIS 6579 (Apr. 27, 1987). Statements

given that are reasonably pertinent to obtaining medical treatment including "the inception,

or general character of the cause or external source" are not hearsay. Evid.R. 803(4).

       {¶ 48} The Sixth District Court of Appeals recently considered a case wherein an

adult female was sexually assaulted by her child's father. State v. Holmes, 6th Dist. Lucas

No. L-17-1111, 2019-Ohio-896. In describing the events to medical professionals at the

hospital, the victim included statements pertaining to where, how, and who assaulted her.

The court stated, "we have previously found that a description of the injuring event and

identification of the perpetrator fall within the medical diagnosis or treatment hearsay

exception." Id. at ¶ 77.

       {¶ 49} The Holmes court made reference to State v. Stahl, 9th Dist. Summit No.

22261, 2005-Ohio-1137. In Stahl, the rape victim provided a statement to hospital nurses

facilitating the medical exam toward assuring an appropriate course of physical, mental,

and emotional treatment. The victim's statement included a description of the event and

identity of the perpetrator. The court stated:

              statements made for purpose of medical diagnosis or treatment
              are hearsay by definition, but are generally admissible under a
              particular exception. Evid.R. 801; 802; 803(4). Furthermore,
              under these rules, this Court has consistently held that a
              description of the encounter and even identification of the
              perpetrator are within the exception, as statements made for
              purposes of diagnosis or treatment. * * * Therefore, we must

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                reject any contention by Mr. Stahl that the statements describing
                the assault and identifying him as the perpetrator serve to
                render those statements beyond the conceivable scope of
                medical treatment and diagnosis.

Id. at ¶ 15. Even where defense counsel argued there was a motive to fabricate the

allegations against the identified offender, the finder of fact can evaluate the credibility of

statements given in medical records. State v. Diaz, 8th Dist. Cuyahoga No. 103878, 2016-

Ohio-5523 (admission into evidence of statements identifying the defendant as the

perpetrator of abuse violated neither Evid.R. 803[4] nor the confrontation clause).

        {¶ 50} Courts have recognized "that sexual abuse involves more than physical injury,

the physician must be attentive to treating the victim's emotional and physical injuries, the

exact nature and extent of which often depend on the identity of the abuser." United States

v. Nez, 9th Cir. No. 14-10104, * 378, 2016 U.S. App. LEXIS 14629 (Aug. 9, 2016). Domestic

violence situations can also involve psychological trauma requiring the need for treatment.

Victims are sometimes suicidal, emotionally devastated, and sometimes wrongfully blame

themselves, only to place themselves in the hands of abusers again and again. The

treatment offered by physicians extends to psychological needs.

        {¶ 51} Children should never be placed back in the hands of a family member who

is an abuser. State v. Miller, 43 Ohio App.3d 44 (9th Dist.1988). Thus, so too, it is accurate

to say that statements in medical records identifying an abuser are not always unreasonable

or impertinent to the treatment for physical and psychological abuse in domestic violence

cases.3




3. See Crawford and Beyond: Exploring the Future of the Confrontation Clause in Light of Its Past: Remember
the Ladies and the Children Too: Crawford's Impact on Domestic Violence and Child Abuse Cases, 71
Brooklyn L. Rev. 311.
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