[Cite as State v. Sullens, 2017-Ohio-4081.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                     No. 15AP-1159
v.                                                  :              (C.P.C. No. 15CR-1944)

Joseph L. Sullens,                                  :           (REGULAR CALENDAR)

                 Defendant-Appellant.               :


                                              D E C I S I O N

                                        Rendered on June 1, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                 Taylor, for appellee.

                 On brief: Hollern & Associates, and H. Tim Merkle, for
                 appellant.

                   APPEAL from the Franklin County Court of Common Pleas.

HORTON, J.
        {¶ 1} Defendant-appellant, Joseph L. Sullens, appeals from his conviction in the
Franklin County Court of Common Pleas, for domestic violence under R.C. 2919.25. For
the reasons set forth below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
        {¶ 2} Sullens was indicted on one count of domestic violence under R.C. 2919.25
on April 20, 2015. The indictment charged the domestic violence count as a third-degree
felony, based on the allegation that Sullens had multiple previous convictions for
domestic violence. (Apr. 20, 2015 Indictment.)
        {¶ 3} After pleading not guilty, Sullens waived his right to a jury trial. (Apr. 22,
2015 Plea of Not Guilty; Nov. 2, 2015 Entry.) The trial court held a bench trial on
November 3, 2015.
No. 15AP-1159                                                                               2

       {¶ 4} During a pretrial conference, the prosecution moved the trial court to call
the victim, Z.S., as its own witness. The defense objected, arguing that the request to have
the trial court call Z.S. as a witness was an attempt by the prosecution to circumvent the
rule that a party cannot impeach its own witness with a prior inconsistent statement. The
prosecution responded that it was within the trial court's discretion to call Z.S. as a
witness, regardless of any intent to impeach her with inconsistencies between her
testimony and prior statements to the police. The trial court overruled the defense's
objection and stated that it would call Z.S. as its own witness, citing its authority to do so
under Evid.R. 614(A). (Nov. 3, 2015 Tr. at 5-8.)
       {¶ 5} On the stand, Z.S. testified that Sullens had been convicted of domestic
violence on seven occasions with her as the victim and one additional occasion with her
father as the victim. (Tr. at 13-14.) She testified that on April 5, 2015, Sullens "got upset
and started arguing" with her after she received a phone call from a friend wishing her a
happy birthday. (Tr. at 15.) The prosecution and Z.S. had the following exchange:
               Q. Then what happened?

               A. I really don't remember, I really don't recall, but I think he
               smacked me.

               Q. Where did he smack you?

               A. Up side my head.

               Q. The side of your head?

               A. Uh-huh.

               Q. Alright. Were you upset when that happened?

               A. No. I just didn't want things to get out of hand. That is why
               I called the police.

               Q. So you called the police?

               A. I think. I don't remember if somebody else did. I'm not
               really sure.
(Tr. at 15.)
       {¶ 6} The prosecution then played a recording of a 911 call in which the caller
stated: "My husband beat me and I have blood (unintelligible). I need some help." (Tr. at
No. 15AP-1159                                                                               3

16.) The caller identified herself as Z.S. and Sullens as the assailant. When questioned,
Z.S. stated that she recognized her voice and that she had made the call. (Tr. at 16-17.)
       {¶ 7} Z.S. also testified that when the officers arrived, she "partially did and
partially didn't" talk to them because she had been drinking. (Tr. at 18.) The prosecution
presented Z.S. with a written statement she had made to the officers stating that Sullens
had hit her face and body. The prosecution also presented Z.S. with several photographs
the police had taken of her that day that showed injuries to her face, including a split lip
and scratches. Z.S. testified that Sullens was not responsible for the injuries in the
photographs:
                  Q. So you had those injuries when the police got there?

                  A. Yes. But they weren't caused by him.

                  Q. But he did hit you, right?

                  A. I never said that. I never said that.

                  Q. Didn't you say earlier today that he smacked you?

                  A. Uh-huh.

                  Q. Okay. And didn't you tell the police that he hit you?

                  A. Uh-huh.

                  Q. What is your relationship with Mr. Sullens like now?

                  A. We are still together.

                  ***

                  Q. [Z.S.], just so we are clear, your testimony today is that he
                  did strike you in the face that night in April, correct?

                  A. Uh-huh.

                  Q. Okay. You have to answer out loud.

                  A. Yes.

(Tr. at 21-23.)
No. 15AP-1159                                                                                 4

       {¶ 8} After Z.S. testified, the prosecution called two police officers who had
responded to the 911 call as witnesses. One officer testified that he had taken the pictures
of Z.S., and that "she was visibly shaken and upset, breathing heavily, [and] had a hard
time speaking to us at first." (Tr. at 33.) The other officer testified that he had Z.S. prepare
the written statement, and that she "was virtually terrified. She was scared. She was
having a hard time speaking, [and was] out of breath. She appeared very frightened." (Tr.
at 39.) The trial court admitted the 911 call recording and Z.S.'s written statement as prior
inconsistent statements under Evid.R. 613 over the objection of Sullens' attorney, and
admitted the photographs and certified court records of Sullens' previous convictions.
       {¶ 9} The trial court found Sullens guilty of the charge of domestic violence under
R.C. 2919.25. (Tr. at 59.) At a sentencing hearing held on December 4, 2015, the trial
court imposed a sentence of 12 months. (Dec. 10, 2015 Jgmt. Entry.) Sullens appeals,
asserting the following assignments of error:
              [I.] THE TRIAL COURT IMPROPERLY ADMITTED AND
              THEN RELIED UPON IMPEACHMENT EVIDENCE AS
              SUBSTANTIVE EVIDENCE AGAINST THE APPELLANT
              AND AS A RESULT DENIED THE APPELLANT HIS RIGHT
              TO A FAIR TRIAL AND DUE PROCESS AS GUARANTEED
              BY THE SIXTH AND FOURTEENTH AMENDMENTS TO
              THE UNITED STATES CONSTITUTION.

              [II.] THE STATE FAILED TO PRODUCE SUFFICIENT
              EVIDENCE TO SUPPORT A CONVICTION AND/OR THE
              FINDING WAS AGAINST THE MANIFEST WEIGHT OF
              THE EVIDENCE FOR THE VERDICT OF THE TRIAL
              COURT FINDING THE APPELLANT GUILTY OF FELONY
              DOMESTIC VIOLENCE AND FINDING THE APPELLANT
              GUILTY OF DOMESTIC VIOLENCE.

II. FIRST ASSIGNMENT OF ERROR
       {¶ 10} In his first assignment of error, Sullens argues that the trial court
improperly admitted the 911 call and police statement as impeachment evidence against
him, and relied upon that evidence as substantive evidence against him, in violation of his
due process rights.
       {¶ 11} We must first address the applicable standard of review. "The trial court has
broad discretion in the admission of evidence, and unless it has clearly abused its
discretion and the defendant has been materially prejudiced thereby, an appellate court
No. 15AP-1159                                                                               5

should not disturb the decision of the trial court." State v. Issa, 93 Ohio St.3d 49, 64
(2001). A trial court abuses its discretion if its evidentiary ruling is "unreasonable,
arbitrary, or unconscionable." State v. Connally, 10th Dist. No. 16AP-53, 2016-Ohio-7573,
¶ 23, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
       {¶ 12} The State argues that plain error review should apply because Sullens did
not object to the admission of the 911 call or the police statement during Z.S.'s testimony.
(Appellee's Brief at 6.)
       {¶ 13} To preserve error for appeal, a party must make a "timely objection" to an
evidentiary ruling. Evid.R. 103(A)(1). Here, the record reflects that Sullens' attorney
objected to the trial court's decision to admit the 911 call and the statement Z.S. made to
police at the time the State introduced the exhibits into evidence. (Nov. 3, 2015 Tr. at 40 &
43.) The trial court admitted the statement "[o]ver the Defense objection * * * for the
purpose of impeaching the witness" and admitted the 911 call recording "for the same
reasons" immediately after Sullens' attorney objected again. Furthermore, defense
counsel had also objected to Z.S.'s testimony before the trial court called her as a witness,
anticipating that the State would attempt to use the 911 call recording and the statement
as impeachment evidence. (Tr. at 5-8.) Under these circumstances, Sullens' attorney was
not required to object during Z.S.'s testimony. Multiple objections contemporaneous with
the trial court's decision to admit the evidence satisfy the "timely objection" requirement
of Evid.R. 103. Accordingly, we reject the State's argument that plain error review should
apply, and we will review the first assignment of error under an abuse of discretion
standard.
       {¶ 14} Evid.R. 613 allows the admission of a witness's prior inconsistent statement
if two conditions are met. First, the examiner must lay a proper foundation before the
admission of the prior inconsistent statement. Evid.R. 613(B); see also State v. Ferguson,
10th Dist. No. 12AP-1003, 2013-Ohio-4798, ¶ 19 (observing that the rule "is explicit that
extrinsic evidence is admissible to impeach credibility only if a foundation is laid"). To lay
a proper foundation, the witness must be "afforded a prior opportunity to explain or deny
the statement and the opposite party is afforded an opportunity to interrogate the witness
on the statement or the interests of justice otherwise require." Evid.R. 613(B)(1). "If a
witness denies making a prior inconsistent statement, a proper foundation has been laid,
and if, in addition, the prior inconsistent statement does not relate to a collateral matter,
No. 15AP-1159                                                                                 6

extrinsic evidence is admissible." Ferguson at ¶ 15, citing State v. Kulasa, 10th Dist. No.
11AP-826, 2012-Ohio-6021, ¶ 19. However, "[i]f a witness admits having made the
contradictory statements, then extrinsic evidence is not admissible." Kulasa at ¶ 12, citing
In re M.E.G., 10th Dist. No. 06AP-1256, 2007-Ohio-4308, ¶ 37.
       {¶ 15} Second, the "subject matter" of the prior inconsistent statement must
concern:
              (a) A fact that is of consequence to the determination of the
              action other than the credibility of a witness;

              (b) A fact that may be shown by extrinsic evidence under
              Evid.R. 608(A), 609, 616(A), or 616(B);

              (c) A fact that may be shown by extrinsic evidence under the
              common law of impeachment if not in conflict with the Rules
              of Evidence.

Evid.R. 613(B)(2).
       {¶ 16} Here, the State failed to lay a proper foundation for the introduction of
impeachment evidence. The impeachment evidence the State sought to introduce—the 911
recording and Z.S.'s written statement to police—were not inconsistent with her
testimony. The State sought to introduce this evidence to counter a denial by Z.S. that
Sullens had hit her. However, in her testimony, Z.S. denied no such thing. Although she
initially appeared to be unsure of what had happened after they started arguing, Z.S.
finished her thought by confirming that Sullens had hit her "up side [her] head." (Tr. at
15.) After Z.S. made this statement, the prosecutor played the 911 recording. (Tr. at 15-16.)
Instead of contradicting what she had said, Z.S.'s statement on the recording that Sullens
had beat her confirmed her testimonial statement. Because the 911 recording was
consistent with Z.S.'s testimony, it failed to even qualify as impeachment evidence.
       {¶ 17} Similarly, Z.S.'s written statement to police failed the basic definition of
impeachment evidence: it must contradict a witness's statement. Immediately after
playing the 911 recording, the prosecutor asked several questions about its contents. Z.S.
confirmed that she had said that Sullens had "assaulted" her on the recording. (Tr. at 17.)
       {¶ 18} Z.S. did deny having made a written statement to police before the
prosecutor handed her the statement in which she had reported that Sullens had hit her.
(Tr. at 18.) However, that denial was irrelevant, because impeachment evidence must
No. 15AP-1159                                                                                            7

contradict a statement regarding a "fact that [was] of consequence to the determination of
the action." Evid.R. 613(B)(2)(a). Here, the State was not attempting to impeach Z.S. for
asserting that she had not made a statement to police. As the prosecutor asserted to the
trial court when arguing for the admission of the impeachment evidence:
                Again, Your Honor, we have a statement that goes right
                to the heart of this matter, whether or not [Z.S.] was
                assaulted. She was given the opportunity to review the
                statement and confirm or deny it. Defense counsel was
                afforded the opportunity to cross examine her as to the
                content of that statement. And this was used to impeach
                [Z.S.] with regard to her testimony today and how it
                differed from the content of her written statement.

(Emphasis added.) (Tr. at 41-42.)
        {¶ 19} However, at the moment the prosecutor confronted Z.S. with her written
statement to the police, she had not denied that Sullens had assaulted her during her
testimony. Contrary to the prosecution's assertion, neither the 911 recording nor Z.S.'s
statement to police contradicted or "differed from" her testimony as to whether Sullens
caused her physical harm.1
        {¶ 20} Furthermore, Z.S. admitted that she made the statements after the
prosecutor confronted her with them. (Tr. at 17-18.) Such an admission renders the
proffered impeachment evidence inadmissible. Kulasa at ¶ 12.
        {¶ 21} On the facts of this case, the prior statements which Z.S. admitted to making
and were consistent with her testimony were outside the realm of evidence admissible
under Evid.R. 613. For this reason, the trial court erred by admitting the 911 recording
and Z.S.'s written statement to police as evidence of prior inconsistent statements.
        {¶ 22} Nevertheless, the admission of this evidence was harmless and, therefore,
not cause for reversal. Under Crim.R. 52(A), "[a]ny error, defect, irregularity, or variance
which does not affect substantial rights shall be disregarded." The error in question must
have     been     prejudicial      by     affecting     the    outcome        of    the    proceedings.
State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, ¶ 7.


1Z.S.'s only denials that were material to the prosecution's case concerned the origin of her injuries that
the police had photographed, as she denied that Sullens had caused them. However, the prosecution had
already presented the 911 recording and Z.S.'s statement to the police before showing her the
photographs. They were admitted without objection and not offered as impeachment evidence. (Tr. at 19-
20.)
No. 15AP-1159                                                                                8

       {¶ 23} Sullens argues that the trial court improperly relied on the 911 call recording
and Z.S.'s written statement as substantive evidence. Although he asserts that the
admission of this evidence violated his due process right to a fair trial, there was sufficient
evidence to support the trial court's guilty verdict without considering either the 911 call
or the written statement as substantive evidence. As previously discussed, Z.S. testified
that Sullens had assaulted her. When her testimony is considered along with that of the
officers and the photographic evidence of the injuries, which was admitted without
objection, more than enough evidence was put before the trial court to support its
ultimate finding that Sullens "knowingly cause[d] or attempt[ed] to cause physical harm
to a family or household member," in violation of R.C. 2919.25(A). The first assignment
of error is overruled.
III. SECOND ASSIGNMENT OF ERROR
       {¶ 24} In his second assignment of error, Sullens argues that there was insufficient
evidence to support his conviction, and that the conviction was against the manifest
weight of the evidence.
       {¶ 25} Two different legal standards apply to the legal sufficiency of the evidence
and the manifest weight of the evidence, the issues raised by Sullens' second assignment
of error. See State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), paragraph two of the
syllabus ("The legal concepts of sufficiency of the evidence and weight of the evidence are
both quantitatively and qualitatively different."). Whether the evidence is legally sufficient
to sustain a verdict is a question of law. State v. Jennings, 10th Dist. No. 09AP-70, 2009-
Ohio-6840, ¶ 37, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). "Sufficiency is
a test of adequacy." Id., citing Thompkins. "The standard when testing the sufficiency of
the evidence '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.' " State v. Beverly, 143 Ohio St.3d 258, 2015-Ohio-
219, ¶ 15, quoting State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 70. A
reviewing court "will not disturb a verdict on appeal on sufficiency grounds unless
'reasonable minds could not reach the conclusion reached by the trier-of-fact.' " State v.
Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d
421, 430 (1997).
No. 15AP-1159                                                                              9

       {¶ 26} The manifest weight of the evidence analysis, on the other hand, requires
the appellate court to consider the state's evidence as an additional, or "thirteenth juror."
Thompkins at 387. After " 'reviewing the entire record,' " the appellate court " 'weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.' " Id., quoting State v. Martin, 20 Ohio App. 3d 172 (1st Dist.1983).
" 'The discretionary power to grant a new trial should be exercised only in the exceptional
case in which the evidence weighs heavily against the conviction." Id., quoting Martin.
       {¶ 27} According to Sullens, the State failed to prove his previous domestic
violence convictions beyond a reasonable doubt, as is necessary to elevate the conviction
from a misdemeanor to a felony. Under R.C. 2919.25(D)(4), "[i]f the offender previously
has pleaded guilty to or been convicted of two or more offenses of domestic violence," a
subsequent violation is "a felony of the third degree." Specifically, Sullens argues that the
court records of the previous convictions that had been admitted as evidence were
insufficient to identify him as the defendant named in those convictions where the
prosecution failed to show the records to Z.S. when questioning her as to whether Sullens
had committed the offenses: "Simply rattling off dates to a court witness is not enough to
tie the appellant to those convictions." (Appellant's Brief at 22.)
       {¶ 28} We disagree, particularly when the "court witness" was the victim of
domestic violence in seven of the convictions that the prosecution asked about, and her
father was the victim in one other conviction. R.C. 2945.75(B)(1) states that "to prove a
prior conviction, a certified copy of the entry of judgment in such prior conviction
together with evidence sufficient to identify the defendant named in the entry as the
offender in the case at bar, is sufficient to prove such prior conviction." Here, the
prosecution introduced certified copies of eight previous convictions and the victim in
seven of those convictions testified before the trial court that they had occurred, and that
Sullens was the perpetrator. We can think of no evidence more probative of the
defendant's identity in a domestic violence case than a victim's sworn testimony
identifying him as the assailant in the previous convictions. We, therefore, reject Sullens'
contention that the prosecution brought "insufficient evidence of identity" to support the
elevation of his conviction under R.C. 2919.25 to a felony. (Appellant's Brief at 22.)
No. 15AP-1159                                                                        10

      {¶ 29} Sullens' final argument asserts that the verdict was against the manifest
weight of the evidence because "no credible evidence of physical harm or an attempt to
cause physical harm exists," as the trial court relied on the improperly admitted
impeachment evidence. (Appellant's Brief at 24-25.) As we concluded in our discussion of
the first assignment of error, the State introduced ample evidence to support the trial
court's determination that Sullens committed domestic violence under R.C. 2919.25, even
without considering the erroneously admitted evidence. The second assignment of error is
overruled.
      {¶ 30} Having overruled Sullens' two assignments of error, the judgment of the
Franklin County Court of Common Pleas is affirmed.
                                                                    Judgment affirmed.

                        DORRIAN and BRUNNER, JJ., concur.
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