[Cite as State v. Nunez, 2017-Ohio-4295.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104623




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                   EMILIO NUNEZ, JR.
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-603121-A

        BEFORE: S. Gallagher, J., McCormack, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: June 15, 2017
ATTORNEY FOR APPELLANT

Edward F. Borkowski, Jr.
P.O. Box 609151
Cleveland, Ohio 44109


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY:    Adam M. Chaloupka
       T. Allan Regas
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1} Emilio Nunez, Jr., appeals his felonious assault conviction. Nunez was

sentenced to an eight-year term of imprisonment, but does not challenge his sentence,

only the finding of guilt. We affirm.

       {¶2} Nunez was charged in a two-count indictment with one count of felonious

assault, in violation of R.C. 2903.11(A)(1), and one count of domestic violence, in

violation of R.C. 2919.25(A). The domestic violence count alleged that Nunez had two

prior domestic violence convictions that elevated the charge from a first-degree

misdemeanor to a third-degree felony.

       {¶3} Nunez had a long-standing relationship with K.K., who became pregnant

during their relationship. One of the prior domestic violence incidents happened in

August 2015, when K.K. was eight months pregnant.                Lakewood police officers

responded to a report of a domestic dispute. K.K. was found outside the apartment

building with her belongings and a bruise under her left eye, and was visibly distraught.

She told the officers she had been arguing with the father of her unborn baby. A

surveillance video of the incident, played for the jury in the instant case, depicts the prior

assault. Photographs of K.K.’s injuries at the time of the 2015 assault were also admitted

into evidence. On cross-examination, Nunez admitted that he threw K.K. into the door

“intentionally,” and that he pleaded guilty to one count of domestic violence as a result of

the prior incident. Tr. 372, 392.
      {¶4} The incident giving rise to this case occurred in January 2016. At that time,

K.K. was subleasing an apartment from Matthew Allen because she needed a place to

stay. Sarah Brandenburg, the victim’s friend, testified that on the evening of January 24,

2016, she and Nunez went to visit K.K. at her apartment. K.K. appeared weak and had a

blackened right eye from another incident that occurred between K.K. and another person

weeks earlier. K.K. asked them to leave almost immediately, and when Nunez refused,

K.K. chased him from the room, striking his back multiple times.

      {¶5} Later that night, Allen called the Lakewood police for assistance in removing

K.K. from the apartment because he learned some disturbing information about K.K. and

he wanted her out of the apartment. One of the officers observed that K.K. had an old

bruise on her right eye and some old scrapes and bruises on her arm that showed signs of

healing. Tr. 189.

      {¶6} Two hours later, Lakewood police received a call from a nearby Walgreens

store at the corner of Detroit Avenue and West 117th Street in Lakewood, Ohio,

concerning a woman who had been assaulted. In the 911 call, which was played for the

jury and made part of the record, K.K. told the dispatcher that she had been assaulted by

her boyfriend, Nunez, twice in the last 24 hours, and that they had a prior domestic

violence case together. The 911 recording was played for the jury, and K.K. confirmed it

was her voice.

      {¶7} The same officers from earlier in the evening responded to the Walgreens

store and spoke with K.K., who had obviously sustained new injuries, including
additional swelling and redness around her eye. An ambulance transported K.K. to

Lakewood Hospital where she was diagnosed with a broken nose, multiple rib fractures,

and a contused sacrum. She told a nurse and physician’s assistant in the emergency room

that her “boyfriend” had beaten her that day, as well as the day before. K.K., in a written

statement for police officers, indicated Nunez had beaten her and caused her injuries. Tr.

246-250.

       {¶8} K.K. testified that she did not remember calling 911 or making a written

statement for police because she was intoxicated and on prescription medication at that

time. However, the attending physician and physician’s assistant testified that if K.K.

had been intoxicated, they would have noticed and documented that fact in K.K.’s chart.

They also testified that if K.K. was grossly intoxicated, they would have kept her in the

hospital overnight.    Nunez was subsequently arrested and charged with domestic

violence and felonious assault.

       {¶9} K.K.’s friend, Gale Sinopoli, testified that Nunez called her cell phone

several times from jail because he wanted to speak with K.K., in violation of a no-contact

order. According to Sinopoli, K.K. answered at least one of these phone calls and spoke

with Nunez, who called from the jail under another inmate’s name and personal

identification number to avoid detection.

       {¶10} Nunez testified at trial. He admitted that he instructed K.K. (1) not to sign

a medical release for the Lakewood Hospital medical records; (2) not to appear for trial;

(3) to refuse to testify pursuant to the Fifth Amendment; and (4) to testify that she had no
recollection of the events of January 26, 2016, because she was intoxicated.            On

cross-examination, Nunez testified that K.K.’s lack of memory and claim of intoxication

or influence from pain medication all mirrored what Nunez had told K.K. to do at trial

because Nunez did not want the jury hearing any of the statements or evidence. Tr.

402-403, 413-414. Nunez also admitted that he pleaded guilty to one count of domestic

violence in Nevada in 2005 and one count of domestic violence with respect to the

August 2015 assault. Despite these admissions, Nunez denied assaulting K.K. in January

2016. He claimed the victim had lied and that Nunez was elsewhere on the night in

question.

       {¶11} After considering all the evidence, the jury returned guilty verdicts on both

counts. The parties agreed the counts were allied offenses of similar import that merged

for purposes of sentencing. The state elected to proceed on the felonious assault charge,

and the court sentenced Nunez to the maximum prison term of eight years. Nunez now

appeals his conviction for felonious assault1 claiming that (1) the evidence of the August

2015 domestic violence crime was inadmissible under Evid.R. 404(B), and (2) that his

conviction for felonious assault is against the manifest weight of the evidence. Within

the framework of the first assignment of error, Nunez also claims that the trial court erred

by admitting (1) jail-house recorded phone conversations between Nunez and K.K., (2)



       1 In light of the fact that the domestic violence count merged with the
felonious assault one, there is no final conviction for domestic violence. A
conviction consists of both a finding of guilt and a sentence. State v. Worley, 8th
Dist. Cuyahoga No. 103105, 2016-Ohio-2722, ¶ 23.
hearsay evidence within K.K.’s medical records, and (3) the victim’s recorded

recollection to police officers on the night of the assault. Neither assignment of error has

merit.

         {¶12} Before oral argument, Nunez filed a notice of supplemental authority

seeking our consideration of State v. Creech, Slip Opinion No. 2016-Ohio-8440, in which

it was concluded a trial court abuses its discretion by refusing a defendant’s offer to

stipulate to the fact of a prior conviction “when the sole purpose of the evidence is to

prove the element of the defendant’s prior conviction or indictment.” (Emphasis added.)

 Creech at ¶ 40. The supplemental authority has no bearing on the arguments advanced

in the assignments of error presented for our review, which focus on the applicability of

Evid.R. 404(B) as a basis for admitting the other acts evidence. In Old Chief v. United

States, 519 U.S. 172, 190, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), which supplied the

rationale adopted in Creech, it was specifically noted that the “issue of substituting one

statement for the other normally arises only when the record of conviction would not be

admissible for any purpose beyond proving status, so that excluding it would not deprive

the prosecution of evidence with multiple utility.” (Emphasis added.) If the state is

justified in admitting the evidence of prior acts on some issue other than status — for

example, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident — Evid.R. 404(B) along with its federal counterpart

“guarantees the opportunity to seek its admission.” Id. We see no reason to adopt the

proposition of law from Old Chief to the exclusion of the limitations noted therein.
       {¶13} The purpose of the evidence demonstrating the past conduct in this case was

not solely to prove status or the element of the defendant’s prior conviction.            The

challenged evidence was useful for multiple purposes. The state introduced the other

acts evidence under Evid.R. 404(B) for the express purpose of demonstrating modus

operandi or identity. Tr. 139:4-19; state’s notice of intent to introduce evidence of prior

domestic violence conviction at trial, dated May 16, 2016. Nunez’s reliance on Creech

is misplaced and not in line with the arguments presented in his brief.

       {¶14} Furthermore, even if Creech could apply, Nunez did not orally stipulate to

the prior convictions when given the opportunity to do so. Tr. 139:4-19 (the state asked

for a stipulation for the domestic violence count that was not provided). It was not until

the state called its first witness that Nunez first attempted to “stipulate,” but at that point

the state was using the prior acts to prove identity or modus operandi, not for the purpose

of proving his status. Tr. 138. The state most likely would have preferred Nunez to

stipulate to being the person who attacked K.K., but the trial court correctly noted the

nature of the evidence to which Nunez was attempting to stipulate and denied Nunez’s

request.

       {¶15} The trial court did not err in admitting the evidence of the past conduct

under Evid.R. 404(B). A trial court is vested with broad discretion to determine the

admissibility of evidence, as long as that discretion is exercised in accordance with the

rules of procedure and evidence. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d

1056 (1991). We, therefore, will not disturb the trial court’s decision to admit or exclude
evidence absent an abuse of discretion. An abuse of discretion connotes an attitude on

the part of the court that is unreasonable, unconscionable, or arbitrary. Franklin Cty.

Sheriff’s Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 506, 589 N.E.2d 24

(1992).

       {¶16} Nunez claims that the state presented surplus evidence of the prior

convictions for the purpose of proving the domestic abuse charge.               Under R.C.

2945.75(B), a certified copy of the final judgment entry in the prior conviction together

with sufficient evidence of the identity of the defendant is sufficient. This is not the

issue in this case. The state presented the evidence of the prior acts in order to prove that

Nunez was the perpetrator of the latest crime, not to prove the prior convictions, although

the prior convictions were an element of the offenses. As a further demonstration of this

point, with respect to the Nevada domestic violence charge that was one of the two

required prior convictions, the state limited the evidence to the fact of conviction. We

need not address Nunez’s argument under R.C. 2945.75(B). The sole issue is whether

the evidence regarding the August 2015 domestic violence conviction was admissible

under Evid.R. 404(B).

       {¶17} Evid.R. 404(B) precludes the admission of evidence regarding a defendant’s

prior criminal acts when such evidence is offered to prove the defendant’s character and

that his actions were in conformity with that character. State v. Herring, 8th Dist.

Cuyahoga No. 104441, 2017-Ohio-743, ¶ 12. However, evidence of the defendant’s

prior criminal acts may be admissible for other purposes, such as to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.”    Evid.R. 404(B); Herring.        Nunez has not presented any argument

challenging the state’s introduction of the August 2015 domestic violence evidence, used

by the state in an attempt to prove the identity of the attacker in the 2016 incident.

App.R. 16(A)(7). His sole claim is that the required Evid.R. 404(B) analysis was not

provided. We disagree.

       {¶18} In the state’s pretrial notice of intent to use the prior conviction, Nunez was

put on notice that the evidence was going to be introduced to prove identity. Before the

first witness testified about the 2015 domestic violence conviction and the underlying

facts, both the state and the trial court stated that the purpose was to prove Nunez was the

person who caused K.K.’s 2016 injuries. His argument that the trial court failed to

consider Evid.R. 404(B) is without merit.2

       {¶19} In response, Nunez claims that even if the evidence of the prior conviction

was permissible, the video evidence of the past assault was not proper impeachment

evidence introduced through K.K.’s testimony because it was not “permitted by Evid.R.

608(A), 609, 613, 616(A), 616(B), or 706.” See Evid.R. 616(C). On the contrary,

Evid.R. 613(C) permitted the state to present extrinsic evidence of prior inconsistent


       2  The fact that the state may have abandoned the theory in closing
arguments does not affect the admissibility of evidence during trial. If anything,
the self-limiting approach taken by the state, in asking the jury to not consider the
prior crime for anything other than proving the elements of domestic violence
instead of to prove the identity of K.K.’s attacker, benefitted Nunez. Regardless,
closing arguments do not affect the admissibility of evidence during the state’s case
in chief.
conduct.   Nunez has not addressed Evid.R. 613(C) or explained its inapplicability.

App.R. 16(A)(7).     We will not consider the summarily presented statement as an

argument in favor of reversal.

       {¶20} Finally, with regard to the remaining evidentiary issues advanced, Nunez

claims that (1) the prior acts evidence was unduly prejudicial under Evid.R. 403; (2)

K.K.’s medical records contained hearsay when she identified Nunez as the attacker to

medical personal; (3) K.K.’s written statement to police officers regarding the 2016

assault was impermissible to be used to refresh the witness’s recollection under Evid.R.

612, and the proper foundation for a recorded recollection under Evid.R. 803(5) was not

laid before introducing the recording; (4) the jail-recorded conversations between K.K.

and him were not admissible as extrinsic impeachment evidence under “Evid.R. 608(A),

609, 613, 616(A), 616(B), or 706”; (5) the cumulative effect of the errors in the

evidentiary rulings invalidated the trial result; and (6) the court failed to give a limiting

instruction on the use of all of the above evidence because it could not be used as

substantive evidence.

       {¶21} We find no merit to any of those six claims because of the following:

1.     The prior acts evidence was not unduly prejudicial — Nunez testified at trial, and
       the prior conviction was going to be placed in front of the jury in one form or
       another; State v. Brown, 10th Dist. Franklin No. 15AP-935, 2016-Ohio-7944, ¶ 24
       (prior conviction is admissible under Evid.R. 609(A) when a defendant testifies at
       trial in his own defense), and in light of the state’s attempt to prove identity
       through the other acts evidence, we cannot find an abuse of discretion;

2.     The mere assertion of prejudice from a properly admitted medical record that
       contained hearsay identifying an assailant, but not by name, is not sufficient to
       demonstrate reversible error — State v. Schultz, 8th Dist. Cuyahoga Nos. 102306
       and 102307, 2015-Ohio-3909, ¶ 27; State v. Smith, 8th Dist. Cuyahoga No. 90476,
       2008-Ohio-5985 — and Nunez did not object to the introduction of the medical
       records, waiving all but plain error. Tr. 336:17;

3.     The victim’s unrecanted statement to police officers read into the record as a
       recorded recollection was proper because it was made at or near the date of the
       event when the matter was fresh in the witness’s memory and reflected the
       witness’s knowledge at the time of making the statement based on the witness’s
       testimony. Evid.R. 803(5); State v. Fields, 8th Dist. Cuyahoga No. 88916,
       2007-Ohio-5060, ¶ 20 (signature on statement attests to the truth of the statement);

4.     Jail-recorded conversations are admissible to demonstrate a victim’s credibility.
       Herring, 8th Dist. Cuyahoga No. 104441, 2017-Ohio-743, at ¶ 11, citing State v.
       Carter, 8th Dist. Cuyahoga No. 90796, 2009-Ohio-226;

5.     The trial court did not abuse its discretion in admitting any of the evidence, and
       therefore, there is no error for the purposes of claiming cumulative error;

6.     Nunez waived any error with respect to the limiting instruction by failing to
       request any such instruction on the use of the evidence. State v. Dean, 146 Ohio
       St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 191.

The first assignment of error is overruled.

       {¶22} Finally, when reviewing a claim challenging the manifest weight of the

evidence, the court, reviewing the entire record, must weigh the evidence and all

reasonable inferences, consider the credibility of witnesses, and determine whether, in

resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.

Reversing a conviction as being against the manifest weight of the evidence should be

reserved for only the exceptional case in which the evidence weighs heavily against the

conviction. Id.
       {¶23} We cannot conclude that a manifest miscarriage of justice occurred in this

instance. Nunez largely relies on the evidentiary issues as the basis to demonstrate the

jury lost its way. Having overruled the evidentiary arguments, we need not reconsider

them. Further, Nunez’s only argument is that he is more credible than K.K. because the

only identification of Nunez as the attacker came from prior statements that K.K. had

conveniently “forgotten” by the time of trial. Nunez, by his own admission, violated the

no-contact order and enticed K.K. into “forgetting” about the incident, thereby causing

the credibility issue he now relies on. Nevertheless, the jury was free to assess K.K.’s

trial credibility from all the evidence presented, and in this case, we cannot conclude from

the arguments presented that the jury lost its way. Importantly, K.K. did not recant her

prior statements; she merely stated a lack of memory. Nunez’s second assignment of

error is overruled.

       {¶24} We affirm.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE

TIM McCORMACK, P.J., CONCURS;
EILEEN T. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION


EILEEN T. GALLAGHER, J., DISSENTING:

       {¶25} I respectfully dissent from the majority’s decision to affirm Nunez’s

convictions because I think the trial court should have excluded excess evidence of the

August 27, 2015 domestic violence incident pursuant to Evid.R. 403(A). In my view, the

surveillance video of the August 27, 2015 incident as well as the photographs of the

injuries K.K. sustained as a result of that incident were of little to no probative value,

were unfairly prejudicial, and deprived Nunez of a fair trial.

       {¶26} Evid.R. 403 specifies the circumstances under which the trial court is

required or permitted to exclude evidence. As relevant here, Evid.R. 403(A) provides

that the trial court must exclude relevant evidence “if its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading

the jury.”   Thus, even if evidence of a defendant’s past conduct is relevant and

admissible under Evid.R. 404(B), the court must nevertheless exclude the evidence if its

probative value is substantially outweighed by the danger of unfair prejudice. State v.

Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20.

       {¶27} Nunez argued in his appellate brief that the state presented an

overabundance of evidence regarding the August 27, 2015 domestic violence incident,
and that the piling on of the evidence offered no additional probative value and was

“extremely prejudicial.” (Appellant’s Brief p. 4.) He supplemented his argument with

additional authority provided in State v. Creech, Slip Opinion No. 2016-Ohio-8440. I

disagree with the majority’s conclusion that Creech is inapplicable to Nunez’s arguments

since Creech clarifies the analysis of Evid.R. 403, and Evid.R. 403 is “the threshold test

of relevancy.” State v. Moore, 8th Dist. Cuyahoga No. 93042, 2010-Ohio-518, ¶ 27.

       {¶28} In Creech, the court explained that the probative value of the evidence is

calculated by comparing it to evidentiary alternatives:

       Probative value is measured partially by the relative scarcity of evidence on
       the same issue. * * * That is, if the state offers evidence for which there
       is an evidentiary alternative that has substantially similar or greater
       probative value but is less prejudicial, the probative value of the state’s
       evidence must be discounted. The danger of unfair prejudice is then
       weighed against this reduced probative value.

Id. at ¶ 22, citing Old Chief v. United States, 519 U.S. 172, 185, 117 S.Ct. 644, 136
L.Ed.2d 574 (1997). For purposes of proving a prior conviction, the court further
explained that

       “there is no cognizable difference between the evidentiary significance of
       an admission and of the legitimately probative component of the official
       record the prosecution would prefer to place in evidence.” * * * In terms
       of probative value, a stipulation and the official record are equal. So when
       weighing the probative against the prejudicial, the distinguishing
       characteristic between the two types of competing evidence is that one
       carries inherent risk and the other does not.

Id. at ¶ 30, quoting Old Chief at 191. The court in Creech concluded that the state’s

evidence, which established not only the name but also the nature of Creech’s prior

convictions, created a risk of unfair prejudice to him that warranted a reversal of his

convictions. Id. at ¶ 36.
        {¶29} Here, the state called Officer Raymond Halas (“Halas”) of the Lakewood

Police Department as its first witness.    The state called Halas, who responded to the

August 27, 2015 domestic violence incident, to identify photographs of the injuries K.K.

sustained as a result of that incident. Defense counsel objected to the photographs,

stating “[W]e are willing to stipulate.”   (Tr. 138.)   Defense counsel also asserted that

the photographs served no purpose but to “prejudice” the jury. (Tr. 138.)         The trial

court dismissed the objection, stating: “They don’t have to accept your stipulation.” (Tr.

138.)

        {¶30} Although neither the state nor the court is required to accept a defendant’s

stipulation, the court must weigh the probative value of the evidence against the risk of

unfair prejudice. Evid.R. 403. The state offered the photographs of the injuries K.K.

sustained on August 27, 2015, as evidence of modus operandi to prove that Nunez caused

K.K.’s injuries on January 24, 2016. (Tr. 139.) However, since Halas was the state’s

first witness, K.K. had not yet testified. Although there was some indication that K.K.

would be a hostile witness, the state should have given her the opportunity to identify

Nunez as the individual who assaulted her on January 24, 2016, before introducing highly

prejudicial photographs of injuries from an unrelated incident.

        {¶31} Moreover, both the state and the court were aware that the state was going to

introduce recorded jail conversations in which Nunez instructed K.K. to claim she had no

recollection of the January 24, 2016 assault because she was intoxicated.       They also

knew the state was going to introduce medical records from the hospital in which K.K.
identified Nunez as her attacker.    These evidentiary alternatives to the photographs were

sufficient to identify Nunez as the perpetrator who caused her injuries on January 24,

2016.    The photographs were not necessary to prove Nunez’s identity.          Therefore,

under the analysis described in Creech, they contained no probative value and served only

to inflame the jury.

        {¶32} The state also called Detective Donald Mladek (“Mladek”) for the purpose

of playing the surveillance video of the August 27, 2015 assault for the jury. But again,

Nunez was not on trial for the August 27, 2015 domestic violence incident. Indeed, he

pleaded guilty to that offense, and Mladek testified to that fact. (Tr. 288.) Yet, the

surveillance video shows Nunez throwing K.K., who was visibly pregnant at the time,

into a door jam in the lobby of the Marine Towers apartment building. Again, defense

counsel made a timely objection to the video:

        My objection is that this has nothing to do with this case. * * * They don’t
        have to show how the incident happened, what happened. As far as I’m
        concerned, it’s already been established what they have to establish as part
        of this cause action.

(Tr. 291.)

        {¶33} The state argued the surveillance video was necessary to establish that K.K.

mischaracterized the August 27, 2015 incident as an accident instead of an intentional act

of violence.   (Tr. 292.)   In other words, the state introduced the surveillance video to

impeach K.K.’s credibility. However, K.K. initially admitted that the August 27, 2015

incident was an intentional assault, but subsequently changed her testimony.           Her

inconsistent testimony, by itself, cast doubt on her credibility.
       {¶34} Furthermore, the state sufficiently discredited K.K.’s testimony by playing

the recorded jail-phone conversations for the jury and reading K.K.’s prior written

statement to police.     Indeed, K.K. followed the instructions Nunez gave her in the

recording and testified that she had no memory of the January 24, 2016 assault because

she was intoxicated.    K.K.’s prior written statement to police also contradicted her trial

testimony, while also explaining how Nunez caused her injuries.

       {¶35} Moreover, Nunez’s identity as the perpetrator was further established by the

emergency room physician and physician’s assistant who tended to K.K.’s injuries on

January 24, 2016.      They testified that K.K. identified Nunez as the individual who

caused her injuries and that she was not intoxicated on the night of the January 24, 2016

assault.

       {¶36} Thus, the surveillance video was not necessary to impeach K.K.’s

credibility.   Nor was it necessary to establish the fact of Nunez’s prior domestic violence

conviction that resulted from that incident. Detective Mladek testified that during the

course of his investigation, he discovered that Nunez had two prior domestic violence

convictions, including one in which Nunez pleaded guilty to domestic violence in

Lakewood, Ohio in October 2015.            Mladek authenticated the journal entries of

conviction and they were admitted into evidence.

        {¶37} In light of the many evidentiary alternatives offered to impeach K.K.’s
credibility and to establish the fact of Nunez’s prior conviction, the surveillance video and
photographs of K.K.’s injuries on August 27, 2015, offered no probative value, but
carried an extreme risk of unfair prejudice. In accordance with Creech and the mandate
set forth in Evid.R. 403(A), I would find the unfair prejudice caused by this evidence was
substantial enough to deprive Nunez of a fair trial.
