[Cite as State v. Anderson, 2016-Ohio-7814.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                         C.A. No.      14AP0054

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ALEXANDER T. ANDERSON                                 WAYNE COUNTY MUNICIPAL COURT
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   2014 CR-B 000722

                                 DECISION AND JOURNAL ENTRY

Dated: November 21, 2016



        MOORE, Judge.

        {¶1}     Defendant-Appellant Alexander Anderson appeals from the judgment of the

Wayne County Municipal Court. This Court affirms.

                                                 I.

        {¶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.
                                                2


       {¶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.
                                                 3


       {¶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.
                                                 4


                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
       COMMENTING ON TESTIMONY OF A PROSECUTION WITNESS
       DEPRIVING [MR. ANDERSON] OF HIS RIGHT TO A FAIR TRIAL AS
       GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH
       AMENDMENTS TO THE UNITED STATE[S’] CONSTITUTION AND
       ARTICLE ONE, SECTION TEN OF THE OHIO STATE CONSTITUTION.

       {¶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,

“Thank you very much for your testimony * * *. You did a very nice job.”

       {¶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, ¶ 51

(concluding an issue of judicial vouching was subject to plain error review); State v. King, 9th

Dist. Summit No. 27069, 2014-Ohio-4189, ¶ 9 (declining to conduct a plain error review when

the appellant failed to develop a plain error argument).

       {¶13} Mr. Anderson’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN THE COURT
       REFUSED TO ALLOW [MR. ANDERSON] TO PRESENT EVIDENCE OF
       THE HISTORY OF CUSTODY DISPUTES BETWEEN HIMSELF AND HIS
       EX-WIFE.
                                                5


       {¶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,

¶ 14, quoting State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶ 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, ¶ 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, ¶ 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
                                                 6


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:

       [Defense counsel:] When did you two divorce?

       [Mr. Anderson:] I believe it was 2009 or 2010.

       [Defense counsel:] And since the time of your divorce have their [sic] issues
       regarding issues of custody?

       [Mr. Anderson:] Yes, there has been.

       [Defense counsel:] Has that been ongoing?

       [Mr. Anderson:] Yes, it has.

       [Defense counsel:] How many times have you been to court regarding custody?

       [Prosecution:] Objection, Your Honor.

       [Mr. Anderson:] Numerous times.

       [Trial court:] The objection will be sustained. This is not relevant. We are
       dealing with this particular case[.] This incident.

During the redirect examination of Mr. Anderson’s fiancée, the following exchange occurred:

       [Defense counsel:] * * *. Are you aware of what status of any custody orders are
       with [Mr. Anderson’s] children at this time?

       [Mr. Anderson’s fiancée:] Yes.

       [Trial court:] That is not relevant. We don’t need to get into custody issues
       involving these children.

       {¶18} To the extent the trial court excluded the statement that Mr. Anderson had been to

court “[n]umerous times” for custody-related issues, even if we were to conclude that the trial
                                                7


court abused its discretion in failing to admit it, we can only conclude that any error was

harmless. See Crim.R. 52(A). Prior to the trial court sustaining the objection, Mr. Anderson was

able to testify that he and his ex-wife divorced in 2009 or 2010 and that the two have had

ongoing custody issues.    Accordingly, we cannot say that the jury not knowing that Mr.

Anderson had been to court numerous times for custody issues affected Mr. Anderson’s

substantial rights when the jury was aware that Mr. Anderson and his ex-wife had ongoing

custody issues. Crim.R. 52(A).

       {¶19} To the extent that Mr. Anderson challenges the trial court’s statement about the

relevancy of custody issues, Mr. Anderson failed to proffer what other testimony he thought

should have been admissible concerning this issue. See Barrios, 2007-Ohio-7025, at ¶ 8. Thus,

Mr. Anderson cannot demonstrate how the exclusion of the evidence prejudiced him. See id.

       {¶20} Mr. Anderson’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THE
       TESTIMONY OF WITNESSES AS TO WHAT [A.A.] TOLD THEM WAS
       ADMISSIBLE PURSUANT TO EVID.[R.] 807.

       {¶21} In his third assignment of error, Mr. Anderson asserts that the trial court erred in

allowing A.A.’s teacher, the medical assistant, the school guidance counselor, the CSB

caseworker, and the police officer to testify about what A.A. told them about the events of May

4, 2014, as such testimony was not admissible pursuant to Evid.R. 807. Mr. Anderson asserts

that the trial court’s finding in its pretrial Evid.R. 807 ruling that the statements provide

particularized guarantees of trustworthiness was not supported by the record.

       {¶22} Evid.R. 807 provides:

       (A) An out-of-court statement made by a child who is under twelve years of age
       at the time of trial or hearing * * * describing any act of physical violence
                                            8


directed against the child is not excluded as hearsay under Evid.R. 802 if all of the
following apply:

(1) The court finds that the totality of the circumstances surrounding the making
of the statement provides particularized guarantees of trustworthiness that make
the statement at least as reliable as statements admitted pursuant to Evid.R. 803
and 804. The circumstances must establish that the child was particularly likely
to be telling the truth when the statement was made and that the test of cross-
examination would add little to the reliability of the statement. In making its
determination of the reliability of the statement, the court shall consider all of the
circumstances surrounding the making of the statement, including but not limited
to spontaneity, the internal consistency of the statement, the mental state of the
child, the child’s motive or lack of motive to fabricate, the child’s use of
terminology unexpected of a child of similar age, the means by which the
statement was elicited, and the lapse of time between the act and the statement. In
making this determination, the court shall not consider whether there is
independent proof of the * * * act of physical violence.

(2) The child’s testimony is not reasonably obtainable by the proponent of the
statement.

(3) There is independent proof of the * * * act of physical violence.

(4) At least ten days before the trial or hearing, a proponent of the statement has
notified all other parties in writing of the content of the statement, the time and
place at which the statement was made, the identity of the witness who is to
testify about the statement, and the circumstances surrounding the statement that
are claimed to indicate its trustworthiness.

(B) The child’s testimony is “not reasonably obtainable by the proponent of the
statement” under division (A)(2) of this rule only if one or more of the following
apply:

(1) The child refuses to testify concerning the subject matter of the statement or
claims a lack of memory of the subject matter of the statement after a person
trusted by the child, in the presence of the court, urges the child to both describe
the acts described by the statement and to testify.

(2) The court finds all of the following:

(a) the child is absent from the trial or hearing;

(b) the proponent of the statement has been unable to procure the child’s
attendance or testimony by process or other reasonable means despite a good faith
effort to do so;
                                                9


       (c) it is probable that the proponent would be unable to procure the child’s
       testimony or attendance if the trial or hearing were delayed for a reasonable time.

       (3) The court finds both of the following:

       (a) the child is unable to testify at the trial or hearing because of death or then
       existing physical or mental illness or infirmity;

       (b) the illness or infirmity would not improve sufficiently to permit the child to
       testify if the trial or hearing were delayed for a reasonable time.

       The proponent of the statement has not established that the child’s testimony or
       attendance is not reasonably obtainable if the child’s refusal, claim of lack of
       memory, inability, or absence is due to the procurement or wrongdoing of the
       proponent of the statement for the purpose of preventing the child from attending
       or testifying.

       (C) The court shall make the findings required by this rule on the basis of a
       hearing conducted outside the presence of the jury and shall make findings of fact,
       on the record, as to the bases for its ruling.

       {¶23} Thus, “Evid.R. 807(A) contains four elements that must be satisfied before a

child’s out-of-court statement regarding abuse can be admitted. Yet, the State need not satisfy

the rigors of Evid.R. 807(A) if the child’s statement can be admitted through a different hearsay

exception.” State v. Lortz, 9th Dist. Summit No. 23762, 2008-Ohio-3108, ¶ 20. Mr. Anderson

has only challenged the first element on appeal. See Evid.R. 807(A)(1). The Supreme Court has

held that “Evid.R. 807 contemplates that a pretrial hearing will be conducted at which time the

ability of the child to testify should be addressed and an initial determination as to the

admissibility of the child’s statements should be made.” (Emphasis added.) State v. Storch, 66

Ohio St.3d 280 (1993), paragraph two of the syllabus.

       {¶24} In the instant appeal, we find it difficult to review Mr. Anderson’s arguments on

the merits. Mr. Anderson has not specifically pointed to the locations in the transcript where the

challenged statements were admitted at trial; nor has he identified which specific statements he

believes violate Evid.R. 807.     See App.R. 16(A)(7); App.R. 12(A)(2).        Additionally, Mr.
                                                10


Anderson has not demonstrated that he objected to the admission of these statements at trial

pursuant to Evid.R. 807. See State v. Allen, 9th Dist. Lorain No. 94CA005944, 1996 WL 48550,

*2 (Feb. 7, 1996); State v. Hardway, 5th Dist. Licking Nos. 92-CA-4, 92-CA-6, 1992 WL

238440, *1 (Sept. 14, 1992). While there are occasional objections by defense counsel during

some portions of some of the aforementioned witnesses’ testimony, it is often difficult to discern

the basis of the objection. Further, some of the objections by defense counsel seem to be based

upon preventing the witness from testifying about what someone other than A.A. said. Given all

of the foregoing circumstances, this Court concludes it is unable to properly review the merits of

Mr. Anderson’s argument and overrules his third assignment of error on that basis.

       {¶25} Mr. Anderson’s third assignment of error is overruled.

                                                III.

       {¶26} Mr. Anderson’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
                                                11


instructed to 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.




                                                     CARLA MOORE
                                                     FOR THE COURT



CARR, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

NORMAN R. MILLER, JR., Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
