[Cite as State v. Phelan, 2017-Ohio-7025.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :        OPINION

                  Plaintiff-Appellee,           :
                                                         CASE NO. 2016-G-0061
         - vs -                                 :

JULIE A. PHELAN,                                :

                  Defendant-Appellant.          :


Criminal Appeal from the Chardon Municipal Court, Case No. 2015 CRB 00493.

Judgment: Reversed and remanded.


Dennis M. Coyne, City of Chardon Prosecutor, 111 Water Street, Chardon, OH 44024
(For Plaintiff-Appellee).

Dennis J. Ibold, Petersen & Ibold, Inc., 401 South Street, Bldg. 1-A, Chardon, OH
44024-1495 (For Defendant-Appellant).



THOMAS R. WRIGHT, J.


         {¶1}     Appellant, Julie A. Phelan, appeals her convictions for domestic violence

and disorderly conduct. She argues that the convictions are against the manifest weight

of the evidence and contests two evidentiary rulings. We reverse and remand for a new

trial.

         {¶2}     The charges stem from a physical altercation between appellant and her

husband, Brian J. Phelan. On the day of the incident, June 6, 2015, the couple had
been married for nearly four years and had one child, a daughter, approximately one

year old.

       {¶3}   On the morning before the altercation, the couple and their daughter went

to a dog show in a neighboring county. Upon arriving home in the early afternoon, Brian

and his daughter went to his parents so that they could visit with them and relatives who

had flown in from another state. According to Brian, appellant did not go with them

because she did not care for his family. According to appellant, Brian did not ask her to

go.

       {¶4}   Brian did not return home until late that evening. At some point, appellant

sent Brian a text message stating that she was going to bed, that she did not want to be

disturbed, and that he should spent the night at his parents. Brian’s responsive text

informed that he was already on his way home. Appellant still went on to bed, locking

both the door from the garage to the basement and the door to their bedroom.

       {¶5}   Upon arriving home at approximately 11:15 p.m., Brian put his daughter to

bed in a separate bedroom. After unlocking the door to the couple’s bedroom, he got

undressed and got into bed beside appellant. Immediately, the couple engaged in a

physical and verbal altercation that lasted for approximately four hours.

       {¶6}   The initial altercation was confined to the bedroom. According to Brian,

when he laid down, appellant quickly rolled over on top of him and began to choke him.

Eventually, he was able to push her off his chest and sit up on the edge of the bed.

While still lying on the bed, appellant then kicked him, hitting his shoulder and neck with

her shin. After that, Brian tried to calm appellant by hugging her and asking her to go

back to bed. However, she continued to fight in his grip and was soon able to free




                                            2
herself.

       {¶7}   According to appellant, Brian initiated the altercation by wrapping his arms

around her in the bed and then rolling on top of her. After telling Brian to let her go, she

began to resist by moving her arms and hips. When she was able to get away, she ran

toward the bedroom door, but he blocked her path, grabbed her, and pushed/threw her

to the hardwood floor. Brian again laid down directly on top of her, and she continued to

flail against him until he released her. She then got dressed and went to the garage.

       {¶8}   According to both appellant and Brian, after the initial confrontation in the

bedroom, she tried to leave home in her car. However, he got dressed, followed her to

the garage, and stood in such a manner that she could not shut the front door on the

driver’s side. Each time appellant tried to put the key into the ignition or start the car, he

grabbed the key and threw it on the car’s roof. She would then retrieve the key, get

back into the car, and the process would begin again.

       {¶9}   Eventually, appellant exited her car and began to walk down the driveway.

On at least one occasion, Brian followed her, grabbed her in his arms, and carried her

back to the garage. According to appellant, Brian grabbed her with such force that she

thought he would crack her ribs. According to Brian, he only hugged her and again was

trying to convince her to come back in and go to bed.

       {¶10} At some point, Brian did not follow appellant when she tried to walk down

the driveway. This occurred during the early morning hours of June 7, 2015. According

to appellant, she walked a short distance, but then hid under a tree because she was

fearful that Brian might be following her.        After approximately one hour, appellant

returned home.




                                              3
       {¶11} Once inside the garage, Brian continued to stop appellant whenever she

tried to leave in her car. Ultimately, appellant gave up and laid down in the car’s back

seat. However, when Brian left the garage to use the bathroom, she started the car and

drove away. She eventually parked at a local supermarket, where she fell asleep from

exhaustion at approximately 4:00 a.m.

       {¶12} After appellant left, Brian placed their daughter in his vehicle and drove to

the South Russell Police Department, where he gave a statement alleging that appellant

had assaulted him. He also showed the officers injuries he sustained to his right cheek,

his neck/shoulders, and his right arm. Furthermore, he showed them that his shirt had

ripped during their struggles in the driveway.

       {¶13} When appellant called Brian on his cell phone while he was at the police

department, he told her that the officers wanted to speak to her about the incident. After

she arrived, she gave the officers a separate statement in which she accused Brian of

assaulting her. Due to perceived inconsistencies in appellant’s statement, the officers

concluded that Brian’s version was more credible. Hence, she was charged with one

count of domestic violence, a first-degree misdemeanor under R.C. 2919.25(A), and

one count of disorderly conduct, a minor misdemeanor under R.C. 2917.11(A)(1).

       {¶14} Within five days of the incident, appellant brought a divorce action against

Brian. During that proceeding, a guardian ad litem was appointed to produce a report

as to best interests of the child. When the bench trial in the criminal case proceeded,

appellant attempted to call the guardian ad litem to testify regarding a statement Brian

had made to the guardian. After directly questioning the guardian concerning his role in

the divorce proceeding, the trial court ruled that the alleged statement was inadmissible




                                             4
because it was a part of the guardian’s work product.

       {¶15} Appellant also sought to introduce the testimony of her grandmother, who

indicated that Brian made a statement to her during a private conversation regarding his

relationship with appellant.      After the trial court ruled the proposed testimony

inadmissible, the defense proffered that according to the grandmother, Brian told her

that his brother informed him that appellant would not be able to obtain custody of their

daughter if she were ordered to serve jail time.

       {¶16} In addition to Brian’s testimony, the state presented the testimony of the

two police officers who investigated the incident. In response, appellant testified on her

own behalf and also called her cousin to testify. At the close of the evidence, the trial

court found appellant guilty on both charges. After a presentencing report was filed, the

court sentenced her to 180 days in jail, but suspended the term and placed her on one-

year probation. The court also imposed a $100 fine.

       {¶17} In appealing her conviction, appellant asserts three assignments of error

for review:

       {¶18} “[1.] As a matter of law, the trial court erred in failing to allow [the guardian

ad litem] to testify based on the work product doctrine.

       {¶19} “[2.] As a matter of law, the trial court erred in failing to allow [appellant’s]

grandmother to testify based on hearsay.

       {¶20} “[3.] As a matter of law, the trial court erred in finding that the State proved

beyond a reasonable doubt that Julie Phelan committed Domestic Violence and

Disorderly Conduct.”

       {¶21} Under her first assignment, appellant challenges the trial court’s decision




                                              5
excluding the testimony of the guardian ad litem on the grounds that it is shielded under

the work product doctrine. She contends that since the guardian was not representing

her, Brian, or their child, the doctrine does not apply.

       {¶22} After the trial court rendered its ruling regarding the admissibility of the

proposed testimony, no proffer was made as to what the guardian ad litem would have

stated if he had testified. As a result, no determination can be made as to whether the

ruling was prejudicial. Appellant has waived the right to contest the evidentiary ruling on

appeal. Evid.R. 103(A)(2). State v. Grubb, 28 Ohio St.3d 199, 203, 503 N.E.2d 142

(1986). Thus, appellant’s first assignment lacks merit.

       {¶23} Appellant’s next assignment addresses the trial court’s exclusion of the

grandmother’s testimony. As to her proposed testimony, a proffer was included in the

record.   Specifically, the grandmother was prepared to state that during a private

conversation with Brian, he told her that according to his brother, appellant would not be

allowed to see or have custody of the child if appellant were jailed. Appellant argues

the testimony is admissible because it was not offered for the truth of the matter

asserted. She claims the testimony was admissible to show Brian’s motive.

       {¶24} Evid.R. 801(C) defines hearsay as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted.” Hence, “if a statement is not offered for the truth of the matter

asserted, it is not prohibited by the hearsay rule and will be admissible, subject to the

standards governing relevancy and undue prejudice.” State v. Hall, 5th Dist. Fairfield

No. 05 CA 35, 2006-Ohio-2160, ¶27, citing State v. LaMar, 95 Ohio St.3d 181,196,

2002-Ohio-2128, 767 N.E.2d 166. Under this rule, a declarant’s out-of-court statement




                                              6
is admissible if it is offered to provide a reason for the person’s subsequent actions.

       {¶25} The mere fact that Brian would make such a statement is evidence that he

has reason to misrepresent appellant’s role in the altercation as it would serve his

interest to have sole custody of his daughter. To this extent, the proposed testimony

was not offered for the truth of the matter asserted, but instead to establish bias or

motive. See State v. Irizarry, 8th Dist Cuyahoga Nos. 93353 and 93354, 2010-Ohio-

5117, ¶13. Thus, the testimony was admissible, and the trial court should have allowed

the grandmother to testify and considered her testimony in determining guilt.             The

second assignment is well-taken. Moreover, although couched in terms of sufficiency,

the substance of appellant’s third assignment of error is that the convictions are against

the manifest weight of the evidence. Accordingly, this court’s ruling on the second

assignment renders the third assignment moot.

       {¶26} The judgment of the Chardon Municipal Court is reversed, and the case is

hereby remanded for additional proceedings consistent with this opinion.



CYNTHIA WESTCOTT RICE, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.


                                ____________________



COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

       {¶27} I concur with the majority’s well-reasoned decision.        I write separately

simply to emphasize that on the record before us, Brian could be found both guilty of

domestic violence, and disorderly conduct.       Indeed, this case presents a textbook



                                             7
scenario of domestic violence in which the police, the prosecutor, and the trial court

failed to recognize the essential elements. It is clear that further training is mandated

for police, prosecutors, and trial judges in this area.

       {¶28} Accepting Julie’s version of events, Brian instigated the fight.          As a

cohabitant, in her own home, she was not required to retreat, but had every right to

defend herself with force. State v. Maine, 4th Dist. Washington No. 04CA46, 2005-

Ohio-3742, ¶12.

       {¶29} However, even accepting Brian’s version of events, I believe he can be

held liable. Both parties agree he repeatedly blocked Julie from trying to leave in her

car. R.C. 2919.25(C), “Domestic violence,” provides: “No person, by threat of force,

shall knowingly cause a family or household member to believe that the offender will

cause imminent physical harm to the family or household member.” Brian’s actions fit

this description.

       {¶30} R.C. 2917.11, “Disorderly conduct,” provides, in pertinent part:

       {¶31} “(A) No person shall recklessly cause inconvenience, annoyance, or alarm

to another by doing any of the following:

       {¶32} “(4) Hindering or preventing the movement of persons * * * to, from, within,

or upon * * * private property, so as to interfere with the rights of others, and by any act

that serves no lawful and reasonable purpose of the offender[.]”

       {¶33} Brian had no lawful purpose in preventing Julie from driving away.

       {¶34} It is clear from the record that Julie was a victim of domestic violence and

disorderly conduct, facts which the police, prosecutor, and trial court failed to recognize.

       {¶35} I respectfully concur.




                                              8
