[Cite as State v. Duncan, 2020-Ohio-3916.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,
                                                         CASE NO. 1-19-75
       PLAINTIFF-APPELLEE,

       v.

KARL F. DUNCAN,                                          OPINION

       DEFENDANT-APPELLANT.



                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR2019 0086

                                     Judgment Affirmed

                             Date of Decision: August 3, 2020



APPEARANCES:

        Chima R. Ekeh for Appellant

        Jana E. Emerick for Appellee
Case No. 1-19-75


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Karl F. Duncan (“Duncan”) appeals the judgment

of the Allen County Court of Common Pleas, alleging that the trial court erred by

(1) permitting a lay witness to give opinion testimony and (2) permitting the alleged

victim to give other acts testimony. For the reasons set forth below, the judgment

of the trial court is affirmed.

                            Facts and Procedural History

       {¶2} At roughly 3:30 A.M. on February 24, 2019, the Allen County Sheriff’s

Department received a call from a Speedway Station in which an incident of

domestic violence was reported. Tr. 307. The officers who responded to this call

encountered Duncan’s girlfriend, A.R., when they arrived at the Speedway Station.

Tr. 167, 206-207, 288. A.R. informed the officers that Duncan had been drinking

and that they had gotten into an argument. Tr. 180, 189, 289. She indicated to the

officers that Duncan began to get physical with her and that he eventually threatened

her with a knife. Tr. 190-197, 289-290.

       {¶3} A.R. reported that she separated herself from Duncan by leaving their

camper. Tr. 289-290, 294. She later testified that she ran from their camper to the

Speedway Station after Duncan fell asleep. Tr. 203, 206. After A.R. filled out an

incident report, the officers took several pictures of A.R.’s injuries in the bathroom

of the Speedway Station. Tr. 290-291. These photographs were later admitted as




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evidence at trial. Tr. 354. Ex. 3, 4. The officers then went to the camper, made

contact with Duncan, and then placed him under arrest. Tr. 299-301.

         {¶4} Detective Donavin Geiger (“Detective Geiger”) of the Allen County

Sheriff’s Office was assigned to investigate this case. Tr. 328-329. He met with

A.R. on February 25, 2019. Tr. 331. At this meeting, several pictures of A.R.’s

injuries were taken. Tr. 331-332. These pictures were later admitted as evidence at

trial. Tr. 351. Ex. 12- 17. On April 11, 2019, Duncan was indicted on one count

of domestic violence in violation of R.C. 2919.25(A), 2919.25(D)(3); one count of

felonious assault in violation of 2903.11(A)(2), 2903.11(D)(1)(a); and one count of

kidnapping in violation of R.C. 2905.01(A)(2), 2905.01(C)(1). Doc. 4.

         {¶5} The jury trial on these charges was held on September 3 and 4, 2019.

Tr. 1, 283. On September 5, 2019, the jury found Duncan not guilty of the charge

of felonious assault. Doc. 60. The jury found Duncan guilty of the charge of

domestic violence and found that he had a prior conviction for the offense of

domestic violence. Doc. 61. The trial court declared a mistrial as to the charge of

kidnapping, having determined that the jury could not reach a unanimous verdict on

his matter.1 Doc. 62. The trial court entered a judgment entry of sentencing on

November 7, 2019. Doc. 65.




1
 The State elected not to proceed to a retrial on this third count against Duncan. Sentencing Tr. 1. The trial
court then dismissed this charge. Tr. 1.


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      {¶6} The appellant filed his notice of appeal on December 5, 2019. Doc. 69.

On appeal, Duncan raises the following assignments of error:

                           First Assignment of Error

      The trial court erred when it permitted Detective Geiger to
      provide improper opinion testimony, and offer conclusions
      regarding the progression of a bruise.

                          Second Assignment of Error

      The trial court erred to the prejudice of the defendant’s
      substantial rights by admitting unduly prejudicial testimony
      about prior bad acts, the only probative value of which was to
      establish the defendant’s bad character and conduct in
      conformity therewith, the admission of this testimony violated the
      appellant’s right to due process under the Fourteenth
      Amendment.

                            First Assignment of Error

      {¶7} Duncan argues that the trial court erred by allowing Detective Geiger,

a lay witness, to give what he alleges to be improper opinion testimony.

                                  Legal Standard

      {¶8} Different rules govern the admissibility of opinion testimony from

expert witnesses and lay witnesses. See Evid.R. 701, 702. Evid.R. 701 governs the

admissibility of opinion testimony from lay witnesses and reads as follows:

      If the witness is not testifying as an expert, the witness’ testimony
      in the form of opinions or inferences is limited to those opinions
      or inferences which are (1) rationally based on the perception of
      the witness and (2) helpful to a clear understanding of the witness’
      testimony or the determination of a fact in issue.




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Evid.R. 701. “The distinction between lay and expert witness opinion testimony is

that lay testimony ‘results from a process of reasoning familiar in everyday life,’

while expert testimony ‘results from a process of reasoning which can be mastered

only by specialists in the field.’” State v. McKee, 91 Ohio St.3d 292, 744 N.E.2d

737, fn. 2 (2001), quoting State v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992).

      {¶9} “The line between expert testimony under Evid.R. 702 and lay opinion

testimony under Evid.R. 701 is not always easy to draw.” (Citations omitted.) State

v. Salyers, 3d Dist. Allen No. 1-19-17, 2020-Ohio-147, ¶ 30, quoting State v. Ndao,

2d Dist. Montgomery No. 27368, 2017-Ohio-8422, ¶ 25. The Supreme Court of

Ohio has recognized that “courts have permitted lay witnesses to express their

opinions in areas in which it would ordinarily be expected that an expert must be

qualified under Evid.R. 702.” McKee, supra, at 296.

      Although these cases are of a technical nature in that they allow
      lay opinion testimony on a subject outside the realm of common
      knowledge, they still fall within the ambit of the rule’s
      requirement that a lay witness’s opinion be rationally based on
      firsthand observations and helpful in determining a fact in issue.
      These cases are not based on specialized knowledge within the
      scope of Evid.R. 702, but rather are based upon a layperson’s
      personal knowledge and experience.

McKee, supra, at 297. (Footnote omitted.) See Salyers at ¶ 30. Thus, courts across

Ohio have allowed police officers, as lay witnesses, to offer opinions if such

testimony meets the requirements of Evid.R. 701. See State v. Evans, 1st Dist.

Hamilton No. C-170034, 2018-Ohio-2534, ¶ 32; State v. Renner, 2d Dist.


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Montgomery No. 25514, 2013-Ohio-5463, ¶ 77; State v. Thacker, 4th Dist.

Lawrence No. 04CA18, 2005-Ohio-1227, ¶ 18; State v. Primeau, 8th Dist.

Cuyahoga No. 97901, 2012-Ohio-5172, ¶ 75.

       {¶10} “However, the erroneous admission of lay opinion testimony ‘does not

give rise to grounds for reversal where the opinion testimony was not [unfairly]

prejudicial to the defendant or where the opinion testimony did not [unfairly] bias

the jury against the defendant.’” (Bracketed insertions sic.) State v. Keith, 3d Dist.

Allen Nos. 1-06-46, 1-06-53, 2007-Ohio-4632, ¶ 44, quoting State v. Qualls, 3d

Dist. No. 9-01-07, 2001 WL 1261240, *4 (Oct. 22, 2001). See State v. Cooper, 8th

Dist. No. 86437, 2006-Ohio-817, ¶ 19; State v. Russell, 12th Dist. Butler No.

CA2012-08-156, 2013-Ohio-3079, ¶ 37.

       {¶11} The admissibility of relevant evidence lies within the sound discretion

of the trial court. State v. Little, 2016-Ohio-8398, 78 N.E.3d 323, ¶ 8 (3d Dist.). An

appellate court reviews a trial court’s determination on the admission of evidence

under an abuse of discretion standard. State v. Sullivan, 2017-Ohio-8937, 102

N.E.3d 86, ¶ 20 (3d Dist.). Thus, an appellate court is not to substitute its judgment

for that of the trial court but will reverse the trial court’s decision if it is

unreasonable, arbitrary, or capricious. State v. Howton, 3d Dist. Allen No. 1-16-35,

2017-Ohio-4349, ¶ 23.




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                                   Legal Analysis

       {¶12} Duncan identifies the following exchange between the prosecutor and

Detective Geiger as the basis of his first assignment of error:

       [Prosecutor]: And in your experience with the Sheriff’s Office,
       have you responded to a number of assaults or domestic
       violences?

       [Detective Geiger]: I have.

       [Prosecutor]: Involving injuries?

       [Detective Geiger]: Yes.

       [Prosecutor]: Okay. And are you familiar with the progression
       of a bruise?

       [Detective Geiger]: I am.

       [Prosecutor]: Okay. And could you just—

       [Defense Counsel]: Your Honor, objection. He is not a medical
       expert and we are going a little bit beyond lay opinion. Thank
       you.

       [Prosecutor]: Your Honor, he testified as to he had experience
       with numerous calls involving injuries of the sort. This isn’t
       necessarily expert testimony, but due to his experience as a police
       officer responding to such calls he should be able to testify about
       this.

       [The Court]: I am going to agree with the prosecution at this
       point, but keep it limited.

       [Prosecutor]: Thank you, your Honor.

       [Prosecutor]: Uhm, is it typical, in your experience, is it typical
       for a bruise to appear immediately after injury?



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       [Detective Geiger]: No, uhm, from what I have noticed
       throughout my years of responding to these type of calls, typically
       it will look red first and then the actual, I guess, what I would
       consider the bruising—the blue and black and green colors, they
       should usually come sometime after.

       [Prosecutor]: Okay, when you say sometime, maybe a couple of
       days in your experience?

       [Detective Geiger]: Yes it could be.

Tr. 338-340. Duncan argues that Detective Geiger, as a lay witness, gave an opinion

regarding the progression of bruising in the absence of “specialized knowledge,

skill, experience, or training” in this area. Appellant’s Brief, 9. However, in this

case, we do not ultimately need to decide whether the trial court erred in allowing

Detective Geiger to offer this opinion because, even if this testimony had been

erroneously admitted, this would constitute harmless error.

       {¶13} At trial, pictures of A.R.’s injuries were introduced as evidence. Ex.

3-4, 12-16. Some of these pictures were taken at the Speedway Station on February

24, 2019 (“February 24 Pictures”), and some of these pictures were taken when A.R.

met with Detective Geiger on February 25, 2019 (“February 25 Pictures”). Ex. 3-

4, 12-16. These pictures were introduced to establish the nature and extent of A.R.’s

injuries. Tr. 332-334. A.R.’s injuries in the February 24 Pictures appeared as areas

of redness, but her injuries appeared as black and blue areas in the February 25

Pictures. Ex. 3-4, 12-16. In this context, Detective Geiger’s opinion, as to the




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progression of bruising, was sought to explain why the same injuries could appear

differently in the two sets of pictures.

       {¶14} However, at trial, A.R. testified that the police took pictures at the

Speedway Station and identified her injuries in the resulting February 24 Pictures.

Tr. 206-207, 210. Ex. 3-4. A.R. then testified that police took more pictures of her

injuries at the interview with Detective Geiger on February 25, 2019. Tr. 230. Ex.

12-16. A.R. identified her injuries in the February 25 Pictures. Tr. 231-234. She

stated that the “bruising * * * was more visible” at that time of the February 25

Pictures were taken. Tr. 231. She also expressly connected the injuries in the

February 24 Pictures and in the February 25 Pictures to Duncan’s actions. Tr. 208-

209, 230-236. We also note that Duncan did not raise an objection to A.R.’s

testimony regarding her bruises or her testimony regarding the pictures of her

injuries. Tr. 208-209, 230-236. See State v. Blair, 2016-Ohio-2872, 63 N.E.3d 798,

¶ 95 (4th Dist.).

       {¶15} In her trial testimony, A.R. gave far more detailed descriptions of her

injuries and expressly connected her injuries, as depicted in both sets of pictures, to

Duncan’s actions. Tr. 208-209, 230-236. Given the content of A.R.’s testimony,

Duncan has not demonstrated how the admission of Detective Geiger’s opinion

testimony unfairly prejudiced him or affected his substantial rights. While we need

not and do not reach a conclusion as to whether the trial court erred in permitting

this opinion evidence, we do find that, even if this testimony was improperly


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admitted, this error was harmless. See Crim.R. 52(A). Thus, Duncan’s first

assignment of error is overruled.

                            Second Assignment of Error

       {¶16} Duncan alleges that the trial court erred in permitting the victim, A.R.,

to give other acts testimony that was unfairly prejudicial.

                                    Legal Standard

       {¶17} In general, “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith.” Evid.R. 404(B). “Evid.R. 404(B) applies to the admission of ‘other

acts’ extrinsic to the charged offense and not those acts intrinsic to the offense * *

*.” State v. Lester, 3d Dist. Union Nos. 14-18-21, 14-18-22, 2020-Ohio-2988, ¶ 43.

This general rule “is intended to preclude a prejudicial attack on a defendant’s

character.” State v. Smith, 49 Ohio St.3d 137, 140, 551 N.E.2d 190, 193 (1990).

       {¶18} However, evidence of other acts “may * * * be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” Evid.R. 404(B). The Ohio Supreme

Court has set forth the following three step analysis for applying the exception

contained in Evid.R. 404(B):

       The first step is to consider whether the other acts evidence is
       relevant to making any fact that is of consequence to the
       determination of the action more or less probable than it would
       be without the evidence. Evid.R. 401. The next step is to consider


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       whether evidence of the other crimes, wrongs, or acts is presented
       to prove the character of the accused in order to show activity in
       conformity therewith or whether the other acts evidence is
       presented for a legitimate purpose, such as those stated in Evid.R.
       404(B). The third step is to consider whether the probative value
       of the other acts evidence is substantially outweighed by the
       danger of unfair prejudice. See Evid.R 403.

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

The admission of other acts evidence under Evid.R. 404(B) lies within the discretion

of the trial court. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d

565, ¶ 66. Thus, an appellate court will not reverse such a decision “in the absence

of an abuse of discretion that has created material prejudice.” Id.

                                  Legal Analysis

       {¶19} Duncan identifies the following exchange between the prosecutor and

A.R. as the basis of his second assignment of error:

       [Prosecutor]: Okay. Once he had finished kicking you what
       happened next?

       [A.R.]: We sat there for a few minutes and I tried to ask to go to
       the bathroom and after I asked to go to the bathroom he said that
       I couldn’t leave. He walked over to the kitchenette, he pulled a
       knife out of the drawer. He walked over to me and held it to my
       eye and told me that I wasn’t going to leave him like that again,
       that he would f***ing kill me.

       [Prosecutor]: Okay. And you said that in response to you asking
       to go to the bathroom is when he went and got this knife out of the
       drawer?

       [A.R.]: Yes, because he—any time that we have had any fights or
       disputes there is only one way out—



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      [Defense Counsel]: Objection, prior bad acts.

      [Prosecutor]: She said disputes, your Honor, so, I mean, she
      didn’t say anything about him committing any crimes.

      [The Court]: Given her wording I am going to overrule the
      objection at this time.

      [Prosecutor]: Okay. * * * You said that any time you had any
      prior disputes or altercations, continue with what you were going
      to say about the bathroom.

      [A.R.]: Uhm, like I said, when I tried to ask to go to the bathroom
      he had pulled it out, held it up to my eye, told me he would f***ing
      kill me and I was very scared for my life.

      [Prosecutor]: Okay. You had started to talk about there was only
      one way out of the camper and that had something to do with you
      asking to go to the bathroom. You started to discuss that, can you
      elaborate a little further on that?

      [A.R.]: Well any time that we have had any arguments and he has
      kept me there without letting me leave—

      [Defense Counsel]: Objection, same grounds. Now we are talking
      about something that would constitute a bad act.

      [The Court]: Approach please.

      (Whereupon there was an off record discussion at the bench)

      [The Court]: Go ahead.

      [Prosecutor]: Thank you, your Honor.

      [Prosecutor]: * * * I will cut right to the chase. Prior times that
      you and Karl had arguments or disputes and you just wanted to
      get out of there, had you said I am going to use the restroom and
      then leave? Is that kind of what you are saying?




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[A.R.]: Yes.

       [Prosecutor]: Okay. And so when you asked to use the restroom
       after he was kicking you in the shin that is when you said he got
       the knife and said you are not leaving me like that again?

       [A.R.]: Right.

Tr. 195-197. Duncan argues that A.R.’s testimony of these other actions was offered

to show his conformity with this prior behavior. We turn now to examining the

content of this exchange under the Ohio Supreme Court’s three-step test.

       {¶20} First, A.R.’s testimony regarding Duncan’s prior actions was relevant

evidence. A.R. indicated that, in previous arguments, she would tell Duncan that

she needed to use the restroom as an excuse to leave. Tr. 197. This prior history

explains why Duncan responded to her statement about using the restroom by

pulling out a knife and telling her that she “wasn’t going to leave him like that again,

that he would f***ing kill me.” (Emphasis added.) Tr. 195-196. From A.R.’s

testimony, Duncan appears to have interpreted her statement about going to the

restroom as an attempt, on her part, to leave. Tr. 195-197.

       {¶21} Further, in this case, Duncan had been charged with kidnapping. Doc.

4. A.R.’s testimony indicates that she intended to leave. Tr. 196. Her testimony

regarding their prior interactions suggests that Duncan understood that she was

attempting to leave and that he may have threatened her with a knife as a means to

“restrain her liberty.” R.C. 2905.01(A)(2). This prior history also sheds light on




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how A.R. would have interpreted Duncan’s actions and whether she would have

understood herself as free to leave at that time.

       {¶22} Second, A.R.’s challenged statements were offered for permissible

purposes under Evid.R. 404(B). This prior history was used to establish Duncan’s

motive in pulling out the knife. A.R.’s testimony suggests that he understood she

was trying to leave and pulled out the knife to prevent her from leaving as she had

during previous arguments. This prior history is also probative of A.R.’s intent at

the time of this altercation. This statement indicates that she intended to leave when

she stated she was going to the restroom. Further, this prior history is also probative

as to how she understood his statements; why she chose to stay until Duncan fell

asleep; and whether she felt free to leave at that time. Demonstrating motive and

intent were permissible purposes for using this evidence. Evid.R. 404(B).

       {¶23} Third, the probative value of this evidence was not substantially

outweighed by the potential for unfair prejudice. A.R.’s testimony in this exchange

was limited to what was required to understand her statement about going to the

restroom on the night of the alleged offense. Tr. 195-197. Her testimony primarily

concerned her own previous practices. Beyond this, A.R. did not mention any other

unnecessary details about Duncan or any prior arguments that they may have had.

Tr. 195-197. Further, as we have already noted, this evidence was probative of

A.R.’s mental state and Duncan’s motive at this time.




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       {¶24} In this case, the trial judge also gave the jurors a limiting instruction

as to how they were to view this portion of A.R.’s testimony. The trial judge stated:

       Evidence was received involving other incidences [sic] involving
       the defendant drinking and/or not allowing a witness to leave.
       This evidence is evidence of the commission of wrongs other than
       the offenses with which the defendant is charged in this trial. That
       evidence was received only for a limited purpose. To describe the
       mental status of the alleged victim and her actions and to explain
       some of the defendants alleged comments during the events at
       issue in these charges. It was not received and you may not
       consider it to prove the character of the defendant in order to
       show that he acted in conformity with that character. You may
       consider that evidence only for the purpose with which it was
       given. The evidence cannot be considered for any other purpose.

Tr. 505. See State v. Powih, 2017-Ohio-7208, 97 N.E.3d 1, ¶ 28 (12th Dist.). We

are to “presume that the jurors followed the trial court’s instructions.” State v.

Baker, 3d Dist. Allen No. 1-17-61, 2018-Ohio-3431, ¶ 21.

       {¶25} After reviewing the evidence in the record, we conclude that the

challenged testimony from A.R. was relevant, was provided for a permitted purpose,

and had a probative value that outweighed the potential danger of unfair prejudice.

The admission of this evidence was consistent with Evid.R. 404(B). We do not find

any indication that the trial court abused its discretion in permitting this testimony

at trial. Thus, Duncan’s second assignment of error is overruled.




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                                   Conclusion

       {¶26} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Allen County Court of Common Pleas is

affirmed.

                                                              Judgment Affirmed

PRESTON and ZIMMERMAN, J.J., concur.

/hls




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