[Cite as State v. Primeau, 2012-Ohio-5172.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 97901

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

PETER A. PRIMEAU

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-556885 

BEFORE: Cooney, J., Sweeney, P.J., and E. Gallagher, J. 

RELEASED AND JOURNALIZED: November 8, 2012 
ATTORNEYS FOR APPELLANT

Fernando O. Mack 

Myron P. Watson 

Lakeside Place, Suite 420 

323 West Lakeside Avenue 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Steven E. Gall 

Kerry A. Sowul 

Assistant County Prosecutors 

9th Floor, Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
COLLEEN CONWAY COONEY, J.: 

{¶1} Defendant-appellant, Peter Primeau (“Primeau”), appeals his convictions 

for murder and felonious assault. Finding no merit to the appeal, we affirm. 

{¶2} In March 2011, Primeau was indicted on two counts of murder. In 

December 2011, Primeau was re-indicted on two counts of murder and one count of 

felonious assault. A jury trial commenced in January 2012. The jury found him guilty 

on all three charges, which were merged as allied offenses for sentencing. The State 

elected to proceed on the second count of murder, in violation of R.C. 2903.02(B), and 

Primeau was sentenced to 15 years to life in prison. 

{¶3} Primeau now appeals, raising thirteen assignments of error. We shall 

address his assigned errors out of order. 

Sufficiency and Manifest Weight

{¶4} In the ninth assignment of error, Primeau argues that his convictions are 

against the manifest weight of the evidence. In his tenth assignment of error, he argues 

that the court erred in denying his Crim.R. 29 motion based on insufficient evidence. 

{¶5} A challenge to the sufficiency of the evidence supporting a conviction 

requires the court to determine whether the State has met its burden of production at trial. 

State v. Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d 541. On 

review for sufficiency, courts are to assess not whether the State’s evidence is to be 
believed, but whether, if believed, the evidence against a defendant would support a 

conviction. Id. The relevant inquiry 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. Jenks, 61 Ohio St.3d 

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. 

{¶6} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, 

¶25, the Ohio Supreme Court restated the standard of review for a criminal 

manifest-weight challenge as follows: 

The criminal manifest-weight-of-the-evidence standard was explained in 

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

Thompkins, the court distinguished between sufficiency of the evidence and 

manifest weight of the evidence, finding that these concepts differ both 

qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held 

that sufficiency of the evidence is a test of adequacy as to whether the 

evidence is legally sufficient to support a verdict as a matter of law, but 

weight of the evidence addresses the evidence’s effect of inducing belief. 

Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks 

whose evidence is more persuasive — the state’s or the defendant’s? We 

went on to hold that although there may be sufficient evidence to support a 

judgment, it could nevertheless be against the manifest weight of the 

evidence. Id. at 387, 678 N.E.2d 541. “When a court of appeals reverses 
a judgment of a trial court on the basis that the verdict is against the weight 

of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees 

with the factfinder’s resolution of the conflicting testimony.” Id. at 387, 

678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 

2211, 72 L.Ed.2d 652. 

{¶7} Moreover, an appellate court may not merely substitute its view for that of 

the jury, but must find that “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.” Thompkins at 387. Accordingly, reversal on manifest 

weight grounds is reserved for “the exceptional case in which the evidence weighs 

heavily against the conviction.” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 

485 N.E.2d 717 (1st Dist.1983). 

{¶8} Primeau was convicted of murder, pursuant to R.C. 2903.02(A) and (B), 

which state: 

(A) No person shall purposely cause the death of another * * *. 

(B) No person shall cause the death of another as a proximate result of the 

offender’s committing or attempting to commit an offense of violence that 

is a felony of the first or second degree and that is not a violation of section 

2903.03 or 2903.04 of the Revised Code. 

{¶9} Primeau was also convicted of felonious assault, pursuant to R.C. 2903.11, 

which states in pertinent part that “[n]o person shall knowingly * * * [c]ause serious 

physical harm to another.” 

{¶10} The following evidence was adduced at trial. 
{¶11} On March 11, 2011, Primeau arrived at the Fairview Hospital emergency 

room with his wife, Shinobu Higa (“Higa”), at approximately 9:30 p.m. Higa was 

admitted in critical condition, suffering from obvious signs of physical trauma. She was 

diagnosed with a perforation to her digestive tract, stomach, small intestine or colon, and 

was immediately intubated. 

{¶12} Primeau told doctors that Higa, a Japanese national, had gone out the night 

before to see a man about her immigration status, and that she returned by bus to their 

apartment the following morning. Upon her return, Higa told him that she had been 

beaten and sexually assaulted. Primeau informed the doctors that he had been with her 

all day and that, although she did not want to go to hospital, he decided to bring her to the 

emergency room when her condition worsened. 

{¶13} Police were called to the hospital in response to Higa’s condition. Upon 

arrival, officers interviewed Primeau. He told them that Higa had left the night before 

and returned in the morning by bus, after having prostituted herself on Lorain Avenue and 

West 25th Street. Primeau told officers that Higa claimed to have been beaten by a 

black man. When Higa’s condition worsened, Primeau brought her to the emergency 

room. 

{¶14} Doctors performed surgery at approximately midnight on the night Higa was 

admitted to the hospital, in order to repair the perforation. After viewing her internal 

injuries, the surgeon determined that, based on the inflammation, the amount of fluid, and 

the color of the fluid, the perforation occurred within the last six hours. 
{¶15} Nurse Marie Balcerski (“Balcerski”) testified at trial that she had been 

treating Higa prior to the arrival of the police. Balcerski testified that she asked Higa, in 

the presence of nurse Hannah Horton (“Horton”), if she knew who had done this to her. 

In response, Higa nodded her head “yes.” Balcerski then asked who had done this. 

Higa pointed to her ring-finger on her left hand, and then to the empty chair where 

Primeau had been sitting just moments before. 

{¶16} Higa became agitated after indicating to Balcerski and Horton that Primeau 

had been her assailant. She began using her finger to spell words. Balcerski watched 

her spell the words “black man.” When asked if that was who beat her, Higa nodded her 

head “yes.” Higa later wrote on a piece of paper “my husband didn’t do that.” 

{¶17} Det. Beverly Fraticelli (“Fraticelli”) testified that Higa shook her head “no” 

when asked if her husband had done this to her. When offered pen and paper, Fraticelli 

testified that Higa wrote “black guy” in response to the question “who has done this to 

you?” When asked why she had been beaten, Higa wrote “he wanna ass sex but I say 

no.” Due to Higa’s inconsistent responses to questions regarding the identity of her 

assailant, Primeau was arrested. 

{¶18} Nurse Elizabeth Pettit and nurse Alison Rerko examined Higa for sexual 

abuse and discovered substantial injuries. The rape kit was tested for DNA. Semen 

samples were taken from the anal sample and Higa’s underwear. The semen and DNA 

samples were consistent with Higa and Primeau exclusively. 
{¶19} On March 16, 2011, Higa died as a result of her injuries. An autopsy was 

performed and determined the cause of death to be homicide, due to the blunt impact to 

the abdomen that caused a perforation to her duodenum, part of the small intestine. The 

coroner’s report also found that blunt trauma to her head, arms, and legs contributed to 

the cause of death. 

{¶20} Detectives began investigating the conflicting accounts of Higa’s assault. 

In the course of their investigation, they found no evidence to support Primeau’s version 

of events. An investigation by RTA police did not reveal any evidence of Higa’s 

presence on an RTA bus the morning of March 11 in the area of West 25th Street and 

Lorain, or en route to her apartment. RTA police Det. Pamela McGinty testified that 

there were no reports of a severely beaten woman on any bus in that vicinity. Video 

surveillance from a gas station near the bus stop closest to Higa’s apartment did not show 

anyone matching her description exiting a bus on the morning of March 11. 

{¶21} During a voluntary interview with police, Primeau stated that Higa’s 

clothing from the night of March 10 and morning hours of March 11 was located in a blue 

hamper in their apartment. Police executed a search warrant for the apartment. Police 

discovered what they believed to be signs of a struggle. There was damage to the door 

and living room wall, stains on the bedspread, clumps of hair on the bedroom floor, blood 

on the mattress cover, a first aid kit in the kitchen, latex gloves and cotton balls in the 

bedroom, and blood on the bathroom floor. Police, however, did not find a blue hamper 
or the clothing Higa was wearing when she sustained her injuries. The clothing was 

later discovered in the garbage dumpster outside the apartment building. 

{¶22} A second search warrant was executed to obtain swabs from the evidence 

discovered during the first search of the apartment and to measure the holes in the door 

and wall. During the second search, police found a food receipt on the kitchen table, 

time-stamped March 11, 2011, 4:57 p.m., from the Giant Eagle grocery store in Rocky 

River. 

{¶23} A third search warrant was executed for the vehicle Primeau drove to the 

hospital on March 11, 2011. Inside the car, police discovered a receipt for a withdrawal 

made at the Charter One Bank branch located near the Giant Eagle in Rocky River. The 

withdrawal was time-stamped March 11, 2011, 5:02 p.m. In addition, police found the 

parking lot receipt from the Fairview Hospital parking garage, time-stamped March 11, 

2011, 9:37 p.m. 

{¶24} Adam Rodeghiero (“Rodeghiero”), a good friend of Primeau’s, testified at 

trial that he and Primeau spoke on the phone on March 11, 2011, just after 6:00 p.m. 

The phone call lasted approximately 40 minutes, during which time Primeau told him that 

Higa was nauseous and acting ill. Primeau asked Rodeghiero if he thought that Higa 

could be “faking being sick for attention or empathy or something along those lines. Or 

if she was really ill.” Rodeghiero suggested that Primeau take Higa to the hospital. 

Rodeghiero testified that had Higa been assaulted, he would expect Primeau to have told 

him. Primeau never mentioned the assault to Rodeghiero. 
{¶25} In addition, several neighbors in the apartment building testified at trial that 

they had heard arguing, loud noises, and screaming on numerous occasions coming from 

the apartment Higa and Primeau shared, including the night of March 10, 2011, and the 

day of March 11, 2011. 

{¶26} Teressa Fiala (“Fiala”) testified that she lives directly above the apartment 

shared by Higa and Primeau. Fiala began hearing a loud and angry male voice in the 

apartment below hers in the fall of 2010. In December 2010, she heard what she 

believed to be the sound of someone being struck, followed by the sound of a woman 

crying. Fiala called management and complained. In February 2011, Fiala again heard 

the sound of someone being struck, followed by a woman crying. Fiala testified that on 

March 11, 2011, she was working at home with headphones on when she heard loud 

pounding noises coming from the apartment below hers. She was so afraid that she 

locked her own sliding glass door, fearing that someone would enter her apartment. 

{¶27} Nicholas Lovano (“Lovano”) testified at trial about his encounters with Higa 

and Primeau at their apartment building. In his job as a pizza delivery driver, he brought 

pizza to Primeau and Higa approximately three times per month. He recalled observing 

bruises on Higa and marks on her body and face on multiple occasions. 

{¶28} Detectives interviewed Primeau’s ex-wife, Tiffany Redding (“Redding”), 

who testified at trial. Redding and Primeau were married from 2003 to 2009 and lived 

in Japan, where Primeau was stationed while in the Air Force. Redding testified that 

Primeau had been physically abusive to her during their marriage. She described being 
beaten in the head so severely that she had scars. Redding described being kicked in the 

abdomen so violently that she required medical attention. She testified that initially 

Primeau withheld medical treatment but eventually agreed, only after she promised to lie 

about how she had been injured. The trial court overruled the defense’s objection to her 

testimony. 

{¶29} Dr. Warner Spitz (“Spitz”) testified for the defense that in his expert 

opinion, the first set of surgeons could not have determined when the perforation to 

Higa’s duodenum occurred. Spitz testified that surgeons could not have determined 

during the first surgery that the perforation occurred within the last six hours because the 

trauma to the abdomen and the actual perforation could have occurred at two separate 

times. 

{¶30} Primeau argues that the State’s case was based purely on circumstantial 

evidence and, therefore, his convictions are not supported by sufficient evidence and are 

against the manifest weight of the evidence. Proof of guilt may be made by 

circumstantial evidence, real evidence, and direct evidence, or any combination of the 

three, and all three have equal probative value. State v. Nicely, 39 Ohio St.3d 147, 529 

N.E.2d 1236 (1988); Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492. Moreover, 

“[c]ircumstantial evidence and direct evidence inherently possess the same probative 

value and therefore should be subjected to the same standard of proof.” Jenks at 

paragraph one of the syllabus. Indeed, “[c]ircumstantial evidence * * * may also be 

more certain, satisfying and persuasive than direct evidence.” State v. Lott, 51 Ohio 
St.3d 160, 555 N.E.2d 293 (1990). “‘[C]ircumstantial evidence is sufficient to sustain a 

conviction if that evidence would convince the average mind of the defendant’s guilt 

beyond a reasonable doubt.’” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 

837 N.E.2d 315, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026 

(1990). In the instant case, the State presented satisfying and persuasive circumstantial 

evidence illustrating that Primeau was Higa’s assailant. 

{¶31} Furthermore, “[i]n reaching its verdict, the jury is free to believe all, part, or 

none of the testimony of each witness.” State v. Jackson, 86 Ohio App.3d 29, 33, 619 

N.E.2d 1135 (4th Dist.1993). “The weight to be given the evidence and the credibility 

of the witnesses are primarily for the trier of the facts.” State v. Richey, 64 Ohio St.3d 

353, 363, 1992-Ohio-44, 595 N.E.2d 915. 

{¶32} Therefore, after viewing the evidence in a light most favorable to the 

prosecution, we find sufficient evidence to establish, beyond a reasonable doubt, that 

Primeau committed murder and felonious assault. Moreover, based on the 

aforementioned facts and circumstances, we find that the convictions are not against the 

manifest weight of the evidence. We cannot say that the jury lost its way and created a 

manifest injustice in convicting Primeau. 

{¶33} Accordingly, the ninth and tenth assignments of error are overruled. 

Search Warrants
{¶34} In the first assignment of error, Primeau argues that the trial court erred 

when it denied his motion to suppress evidence that was illegally obtained through search 

warrants issued without the requisite probable cause. 

{¶35} In reviewing a trial court’s ruling on a motion to suppress, the reviewing 

court must keep in mind that weighing the evidence and determining the credibility of 

witnesses are functions for the trier of fact. State v. DePew, 38 Ohio St.3d 275, 277, 528 

N.E.2d 542 (1988); State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). A 

reviewing court is bound to accept those findings of fact if supported by competent, 

credible evidence. See State v. Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th 

Dist.1994), citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990). The 

reviewing court, however, must decide de novo whether, as a matter of law, the facts 

meet the appropriate legal standard. Id.; see also State v. Claytor, 85 Ohio App.3d 623, 

627, 620 N.E.2d 906 (4th Dist.1993). 

{¶36} Primeau argues that the first search warrant was illegally obtained due to the 

omission of the allegation that Higa was beaten by a black man on West 25th Street and, 

in turn, the fruits of the search warrant, as well as the subsequent search warrants should 

be excluded. A search warrant containing deliberate falsehoods and/or reckless 

misstatements, where such falsehoods or misstatements are material to the finding of 

probable cause, will be invalidated. State v. Hunt, 22 Ohio App.3d 43, 488 N.E.2d 901

(8th Dist.1984). However, mere omissions do not have same effect. Primeau does not 

argue that the affidavit used in support of the initial search warrant contains any 
deliberate falsehoods and/or reckless misstatements; therefore, there is no basis on which 

to find that the court lacked probable cause with which to grant the State’s request. 

Furthermore, paragraph two of the officer’s affidavit contains the information that 

Primeau claims was omitted. 

{¶37} Moreover, we find that the magistrate had a substantial basis for concluding 

that probable cause existed with which to grant the warrant. In State v. George, 45 Ohio 

St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the syllabus, the Ohio Supreme 

Court established the standard of review on appeal of a magistrate’s determination that 

probable cause existed to issue a search warrant: 

* * * [T]he duty of a reviewing court is simply to ensure that the magistrate 

had a substantial basis for concluding that probable cause existed. In 

conducting any after-the-fact scrutiny of an affidavit submitted in support of 

a search warrant, trial and appellate courts should accord great deference to 

the magistrate’s determination of probable cause, and doubtful or marginal 

cases in this area should be resolved in favor of upholding the warrant. 

{¶38} Within the four corners of the affidavit, it is clear that based on Primeau’s 

own voluntary admission that Higa’s clothing from the night of her alleged assault could 

be found in the apartment, the magistrate had probable cause to grant the search warrant 

for these and any other items of evidentiary value. Thus, the trial court did not err in 

denying the motion to suppress. 

{¶39} Accordingly, the first assignment of error is overruled. 

Other Acts Evidence

{¶40} In the second assignment of error, Primeau argues that the trial court erred 

when it improperly allowed the State to present other acts evidence, in violation of 
Evid.R. 404(B). In his third assignment of error, Primeau argues that the trial court 

erred when it permitted the State to offer testimony to establish alleged prior domestic 

abuse, in violation of Evid.R. 404(B). In his twelfth assignment of error, Primeau 

argues that the trial court erred when it allowed the State to present evidence of an alleged 

prior domestic violence call involving him and the victim, in violation of Evid.R. 404(A) 

and (B). 

{¶41} Primeau argues that the “other acts” evidence, including testimonial 

evidence from his ex-wife, the pizza delivery man, the apartment neighbors, and the 

police did not fall under any of the Evid.R. 404 exceptions and thus, should have been 

excluded. 

{¶42} Pursuant to Evid.R. 404(B), evidence of other acts that are wholly 

independent of the crime charged is generally inadmissible. State v. Thompson, 66 Ohio 

St.2d 496, 497, 422 N.E.2d 855 (1981). Trial court decisions regarding the admissibility 

of other-acts evidence under Evid.R. 404(B) are evidentiary determinations that rest 

within the sound discretion of the trial court. Appeals of such decisions are reviewed by 

an appellate court for an abuse of discretion. State v. Morris, 132 Ohio St.3d 337, 

2012-Ohio-2407, 972 N.E.2d 528. “The term ‘abuse of discretion’ connotes more than 

an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary 

or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 

(1983). 
{¶43} Pursuant to Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is 

not admissible to prove” a defendant’s character as to criminal propensity. “It may, 

however, be admissible for other purposes, such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. In 

State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975), the Ohio Supreme Court 

explained when other acts evidence is admissible pursuant to the “scheme, plan, or 

system” exception: evidence of a defendant’s scheme, plan, or system in doing an act is 

only relevant in two situations: (1) the other acts are part of one criminal transaction such 

that they are inextricably related to the charged crime, or (2) a common scheme or plan 

tends to prove the identity of the perpetrator. Id. at 72-73. See also State v. Williams, 

195 Ohio App.3d 807, 2011-Ohio-5650, 961 N.E.2d 1203 ¶ 50 (8th Dist.).1

 “Identity is 

in issue when the fact of the crime is open and evident but the perpetrator is unknown and 

the accused denies that he committed the crime.” State v. Ogletree, 8th Dist. No. 94512, 

2011-Ohio-819, ¶ 36, appeal not accepted, 129 Ohio St.3d 1409, 2011-Ohio-3244, 949 

N.E.2d 1004, citing State v. Smith, 84 Ohio App.3d 647, 666, 617 N.E.2d 1160 (2d 

Dist.1992). 

{¶44} The State argues that Redding’s testimony and the evidence of other acts 

was admissible because it tended to show Primeau’s scheme, plan, or system of physically 

abusing his wives and refusing to allow them medical treatment unless they agreed to lie 

 1

 Discretionary appeal allowed, State v. Williams, 131 Ohio St.3d 1472, 2012-Ohio-896, 962 

N.E.2d 803. 
about the circumstances of their injuries, which tends to prove the identity of the 

perpetrator in the instant case. 

In State v. Bey, 85 Ohio St.3d 487, 1999-Ohio-283, 709 N.E.2d 484, 

certiorari denied, 528 U.S. 1049, 120 S.Ct. 587, 145 L.Ed.2d 488 (1999), 

the Ohio Supreme Court affirmed the trial court’s decision allowing other 

acts evidence to show identity, finding that the other acts evidence 

established a “behavioral fingerprint” linking the appellant to the crime due 

to the common features. The Court noted that the deaths of the current 

and prior victims occurred under nearly identical circumstances: both 

victims were businessmen who were killed at their place of business, both 

died after being stabbed with a knife in the chest, both men had their 

trousers removed and their shoes were placed next to their bodies, and 

although both businesses were robbed, jewelry was left on each person. 

Id. at 491. The Court found that because the evidence demonstrated a 

similar method of operation, it was probative of identity. Id.

Williams at ¶ 55. 

{¶45} In the instant case, the identity of the perpetrator is clearly a central issue. 

The State argues that, as in Bey, the injuries sustained by Redding and Higa occurred 

under nearly identical circumstances; both victims were married to Primeau, both were 

physically abused in the marital home, both suffered serious injuries to their abdomens, 

and both needed immediate medical attention that Primeau withheld until they agreed to 
lie about how they sustained their injuries. Redding was married to Primeau from 2003 

to 2009, near in time to the alleged assault of Higa. 

{¶46} Furthermore, the testimony from the pizza delivery man that he had 

observed bruises on Higa on multiple occasions, and from the neighbors who heard 

yelling and loud noises from Higa and Primeau’s apartment on multiple occasions, tended 

to prove the identity of the attacker in the instant case. Det. Thomas Harrington testified 

that he had responded to a December 2010 domestic abuse call from Higa at the 

apartment she shared with Primeau. Therefore, we find that the court did not err in 

admitting the testimonial evidence of Primeau’s prior bad acts because it was offered for 

a valid purpose under Evid.R. 404(B). 

{¶47} However, even if a court finds that the other acts evidence was offered for a 

valid purpose under Evid.R. 404(B), the court must still consider whether the evidence is 

substantially more prejudicial than probative; if so, then it must still be excluded because 

of its deleterious effects on an accused’s right to a fair trial. See State v. Matthews, 14 

Ohio App.3d 440, 471 N.E.2d 849 (8th Dist.1984); Evid.R. 403(A). 

{¶48} There is no doubt that the “other acts” evidence was prejudicial. However, 

the trial court did not err in finding that the probative value of the “other acts” evidence 

outweighed any prejudicial effect. Thus, we find no abuse of discretion. 

{¶49} Accordingly, the second, third, and twelfth assignments of error are 

overruled. 

Medical Records
{¶50} In the fourth assignment of error, Primeau argues that the trial court erred 

when it allowed Tiffany Redding to testify without compelling the State to produce 

medical records proving alleged prior acts of domestic violence, and that such a discovery 

violation under Crim.R. 16 violated Primeau’s due process rights. 

{¶51} Crim.R. 16 requires the State to provide copies of items related to discovery 

for the defense. This rule applies to items obtained by or belonging to the State. The 

rule does not require the State to obtain items requested by the defense that the State does 

not already possess. 

{¶52} Primeau argues that he was not allowed access to Redding’s medical 

records. However, a review of the record shows that defense counsel raised this issue 

prior to jury selection, and the court granted him time to procure the records himself, 

agreeing to sign an affidavit in support if needed. Primeau has failed to show that the 

records were within the State’s possession, custody, or control, and that the State withheld 

them from the defense. 

{¶53} Primeau also argues that the State intentionally delayed the submission of 

Redding’s written statement to police. Primeau fails to prove this allegation or to 

establish how he was prejudiced by the alleged delay. 

{¶54} Thus, we find that Primeau has failed to show that his due process rights 

were violated by the State’s failure under Crim.R. 16 to provide Redding’s medical 

records, as he did not show that the records were in the State’s possession at any time. 

{¶55} Accordingly, the fourth assignment of error is overruled. 
Rerko Opinion Testimony

{¶56} In the fifth assignment of error, Primeau argues that the trial court erred 

when it allowed a State witness, Nurse Allison Rerko (“Rerko”), to opine conclusions 

regarding the behavioral patterns of victims of domestic violence, in violation of Evid.R. 

401 and 403. 

{¶57} “A ruling concerning the admission of expert testimony is within the broad 

discretion of the trial court and will not be disturbed absent an abuse of discretion.” 

Scott v. Yates, 71 Ohio St.3d 219, 221, 1994-Ohio-462, 643 N.E.2d 105. An expert 

witness must possess knowledge in the relevant subject area that is superior to an ordinary 

person, and may be “qualified as an expert by specialized knowledge, skill, experience, 

training, or education regarding the subject matter of the testimony.” Evid.R. 702(A) 

and (B). 

{¶58} Primeau argues that Rerko’s testimony exceeded her ability and 

qualifications as an expert witness due to her lack of a bachelor or advanced degree. He 

does not specifically argue that Rerko’s testimony violated Evid.R. 702. Although 

Rerko was not declared an expert on the record, we find no error. State v. Skinner, 2d 

Dist. No. 11704, 1990 Ohio App. LEXIS 4178 (Sept. 26, 1990) (“[S]o long as the record 

indicates that the trial court did not abuse its discretion, we will not disturb a decision to 

allow a witness to offer expert opinion testimony simply because ‘magic’ words do not 

appear on the face of the record.”); see also State v. Monroe, 105 Ohio St.3d 384, 

2005-Ohio-2282, 827 N.E.2d 285, ¶ 95. 
{¶59} In the instant case, Rerko testified that she has been a registered nurse since 

1998 and a sexual assault nurse examiner (SANE) since 2002. She is currently the 

SANE nurse coordinator at Fairview Hospital, and is also in charge of training nurses in 

the area of sexual assault and domestic violence. Rerko’s testimony was within the 

scope of her expertise because she is a trained medical professional whose qualifications 

are in areas of domestic violence injuries and sexual assault. We find no abuse of 

discretion. 

{¶60} Furthermore, we find the admission of Rerko’s testimony regarding 

domestic abuse victims did not violate Evid.R. 401 or 403. Rerko testified regarding her 

examination of Higa on the date in question. She testified about domestic violence 

victims in general terms, including the “cycle of violence” experienced by most domestic 

abuse victims. She did not opine whether Higa was the victim of domestic abuse or 

sexual assault. 

{¶61} The Ohio Supreme Court has recognized that the State may introduce 

testimony on the “cycle of violence” in its case-in-chief, provided that such testimony is 

relevant and helpful. State v. Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, 860 N.E.2d 

91, ¶ 44. The testimony was relevant to the State’s argument that Higa’s contradictory 

gestures and notes about her assailant were consistent with those of a victim of domestic 

violence and sexual assault. 

{¶62} Rerko properly limited her testimony to the general characteristics of a 

victim suffering in a cycle-of-violence situation. She answered only hypothetical 
questions regarding specific behaviors exhibited by women suffering from abuse. She 

never opined specifically about Higa or Primeau. 

{¶63} Therefore, we find no abuse of discretion in admitting Rerko’s testimony. 

Accordingly, the fifth assignment of error is overruled. 

Hearsay

{¶64} In the sixth assignment of error, Primeau argues that the trial court erred 

when it permitted Officer Richard Rutt (“Rutt”) to testify to hearsay statements, in 

violation of Evid.R. 801. 

{¶65} “[A] trial court’s decision to admit or exclude evidence ‘will not be reversed 

unless there has been a clear and prejudicial abuse of discretion.’” State v. Hancock, 108 

Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, quoting O’Brien v. Angley, 63 Ohio 

St.2d 159, 163, 407 N.E.2d 490 (1980). 

{¶66} Primeau argues that the trial court erred in allowing Rutt to testify regarding 

Higa’s indication to Nurse Balcerski that Primeau was the assailant, and Higa’s responses 

to Det. Fraticelli’s questions about who beat her. The State argues that Rutt’s testimony 

was admissible because it was offered to explain his conduct during the course of the 

investigation. 

{¶67} Hearsay is “a statement, other than one made by the declarant while 

testifying at a trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” Evid.R. 801(C). Out-of-court statements offered for reasons other than the 

truth are not hearsay. State v. Freeman, 8th Dist. No. 85137, 2005-Ohio-3480, ¶ 40, 
citing State v. Lewis, 22 Ohio St.2d 125, 132-133, 258 N.E.2d 445 (1970). Generally, 

statements offered to explain a police officer’s underlying reasons for conduct while 

investigating a crime are not hearsay. Freeman, citing State v. Price, 80 Ohio App.3d 

108, 110, 608 N.E.2d 1088 (9th Dist.1992); State v. Thomas, 61 Ohio St.2d 223, 232, 400 

N.E.2d 401 (1980). “The conduct to be explained should be relevant, equivocal and 

contemporaneous with the statements. * * * Additionally, such statements must meet the 

standard of Evid.R. 403(A).” State v. Blevins, 36 Ohio App.3d 147, 149, 521 N.E.2d 

1105 (10th Dist.1987). 

{¶68} A review of the transcript reveals that Rutt was testifying regarding his 

conduct in the course of the investigation and Primeau’s subsequent arrest in light of the 

conflicting indications from Higa regarding her assailant. However, Rutt’s testimony 

also established elements of the crime related to identity. See State v. Gresh, 5th Dist. 

No. 09-CAA-012-0102, 2010-Ohio-5814, ¶31 (when an officer relates out-of-court 

statements that establish the elements of the crime charged, the statements should not 

exceed that which is needed to establish a foundation for the officer’s subsequent 

conduct). Thus, the court erred in allowing Rutt to testify to hearsay statements that 

established the elements of the crime in the instant case. 

{¶69} We find this error, however, to be harmless. The main premise behind the 

hearsay rule is that the adverse party is not afforded the opportunity to cross-examine the 

declarant. In the instant case, the defense had the opportunity to cross-examine both 

declarants, nurse Balcerski and Det. Fraticelli. As Primeau correctly points out in his 
brief, the trustworthiness of Rutt’s statements was challenged and shown to contradict 

Fraticelli’s testimony. Therefore, we find the court’s error in allowing his testimony to 

be harmless. 

{¶70} Accordingly, the sixth assignment of error is overruled. 

Rutt Opinion Testimony

{¶71} In the seventh assignment of error, Primeau argues that the trial court erred 

when it permitted Officer Rutt to testify regarding his medical opinion of Primeau’s 

physical appearance after he was arrested. 

{¶72} As stated above, “a trial court’s decision to admit or exclude evidence ‘will 

not be reversed unless there has been a clear and prejudicial abuse of discretion.’” 

Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, quoting O’Brien, 63 

Ohio St.2d 159, 163, 407 N.E.2d 490. 

{¶73} Primeau argues that the trial court erred in admitting Officer Rutt’s 

observations of Primeau’s hand lacerations during the booking process, because Rutt has 

no medical expertise. The State argues that Rutt’s testimony was admissible because it 

was his opinion. Evid.R. 701 states that: 

If the witness is not testifying as an expert, the witness’ testimony in the 

form of opinions or inferences is limited 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. 

{¶74} Under Evid.R. 701, 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. State v. McKee, 91 Ohio St.3d 292, 2001-Ohio-41, 744 N.E.2d 737. 

 In McKee, the issue was whether a drug user could testify about the identity of drugs. 

The court stated that: 

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. Id. at 297. 

{¶75} We find that Rutt’s testimony fits into this classification. In this case, Rutt 

was testifying as a lay witness describing the photos of Primeau taken during the booking 

process. His description of the photos was based on his experience as a police officer, 

his previous investigations of assaults, and his perception of Primeau’s lacerations at the 

time. Therefore, his testimony was properly admitted under Evid.R. 701. 

{¶76} Accordingly, the seventh assignment of error is overruled. 

Right to Remain Silent

{¶77} In his eighth assignment of error, Primeau argues that the trial court erred 

when it allowed Officer Rutt to render an opinion that Primeau’s exercising his Fifth 

Amendment right to remain silent was unusual, “thus insinuating that his silence was 

telling and he must be, in fact, guilty.” 

{¶78} A thorough review of the record reveals that Rutt did not offer his opinion 

as to Primeau’s guilt or innocence. Rutt merely stated that it is unusual for someone he 

arrests to remain quiet. He testified that when being placed under arrest, Primeau was 
very calm, said nothing, and showed no emotion. Neither Rutt nor the State made any 

mention of guilt. 

{¶79} As stated in the previous assignment of error, pursuant to Evid.R. 701, 

Rutt’s testimony about his experience in arresting people falls within the scope 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. Rutt’s opinion was based upon 

his personal knowledge and experience. See McKee, 91 Ohio St.3d 292, 2001-Ohio-41, 

744 N.E.2d 737. Therefore, his testimony was properly admitted under Evid.R. 701 and 

we find no abuse of discretion. 

{¶80} Accordingly, the eighth assignment of error is overruled. 

Videotape Interview

{¶81} In the eleventh assignment of error, Primeau argues that the trial court erred 

when it denied his motion to redact portions of the videotape interview that included 

irrelevant and inadmissible evidence. 

{¶82} Again, “a trial court’s decision to admit or exclude evidence ‘will not be 

reversed unless there has been a clear and prejudicial abuse of discretion.’” Hancock, 108 

Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, quoting O’Brien, 63 Ohio St.2d 159, 

163, 407 N.E.2d 490. 

{¶83} Primeau argues that the trial court erred in admitting his videotape interview 

with police in its entirety, as opposed to a redacted version in which certain comments 

and questions were removed. Primeau argues that officers made comments during the 
course of the interview that were prejudicial. He cites no authority to support his 

argument. 

{¶84} Evid.R. 403(A) states that, although relevant, evidence is not admissible if 

its probative value is substantially outweighed by the danger of unfair prejudice, or 

confusion of the issues, or of misleading the jury. 

{¶85} After viewing the videotape in question, we find no error in admitting it into 

evidence in its entirety. We find that its probative value was not substantially 

outweighed by the danger of unfair prejudice. 

{¶86} Accordingly, the eleventh assignment of error is overruled. 

Photographs

{¶87} In the thirteenth assignment of error, Primeau argues that the trial court 

erred when it allowed the State to introduce photographs that were duplicative and 

gruesome. 

{¶88} When considering the admissibility of photographic evidence under Evid.R. 

403, the question is whether the probative value of the photographic evidence is 

substantially outweighed by the danger of unfair prejudice to the defendant. See State v. 

Tingler, 31 Ohio St.2d 100, 103-104, 285 N.E.2d 710 (1972); State v. Rahman, 23 Ohio 

St.3d 146, 152, 492 N.E.2d 401 (1986). The admission or exclusion of such 

photographic evidence is left to the discretion of the trial court. State v. Hill, 12 Ohio 

St.2d 88, 232 N.E.2d 394 (1967), paragraph two of the syllabus; State v. Wilson, 30 Ohio 

St.2d 199, 203-204, 222, 283 N.E.2d 632 (1972). Accordingly, a trial court may reject 
an otherwise admissible photo which, because of its inflammatory nature, creates a 

danger of prejudicial impact that substantially outweighs the probative value of the photo 

as evidence. Absent such danger, the photo is admissible. 

{¶89} Primeau challenges the admission of five photos of the victim. These 

photos illustrated the testimony of the doctors, nurses, and police officers who observed 

Higa’s injuries, and illustrated the body’s condition as witnessed by the medical 

examiners. See, e.g., State v. Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-4121, 792 

N.E.2d 1081, ¶ 72. 

{¶90} None of these photos is a duplicate or repetitive. Each depicts a different 

view of the victim’s body and her injuries. Four of the five photos show bruising on 

Higa’s body as seen in the hospital. The remaining photo was taken of the victim’s 

entire body prior to her autopsy. We find the value of each of the four hospital photos 

outweighs any prejudicial impact. We find the gruesome nature and prejudicial impact 

of the fifth photo is also outweighed by its probative value regarding the entirety of 

Higa’s injuries. Thus, we find no abuse of discretion in the court’s admitting the photos. 

{¶91} Accordingly, the thirteenth assignment of error is overruled. 

{¶92} Judgment affirmed. 

It is ordered that appellee recover of 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. 

______________________________________________ 

COLLEEN CONWAY COONEY, JUDGE 

JAMES J. SWEENEY, P.J., and 

EILEEN A. GALLAGHER, J., CONCUR