[Cite as State v. Horton , 2017-Ohio-9078.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO Appellee

v. DELBERT HORTON Appellant C.A. No. 16AP0024

APPEAL FROM JUDGMENT ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO CASE No. 2016 CR-B 000001

DECISION AND JOURNAL ENTRY Dated: December 18, 2017

CARR, Judge. {¶1} Defendant-Appellant Delber t Horton appeals from the judgment of the Wayne County Municipal Court. This Court affirms.

I. {¶2} In January 2016, a complaint was filed ag ainst Horton alleging that he committed domestic violence by causing or attempting to caus e physical harm to his wife in violation of R.C. 2919.25(A). {¶3} The matter proceeded to a jury trial at which both Horton and his wife testified. Horton’s wife testified that on January 3, 2016, in the evening, Horton came home, grabbed a water bottle from her, and accused her of drinking alcohol. The bottle did have vodka in it, and Horton’s wife acknowledged that she had an alco hol problem. Horton was very angry and yelled at their children, who were playing nearby, to go to their rooms. The Horton’s adopted daughter2

testified that, while she did not see anything that happened, she heard Horton yelling, but did not hear her mother, Horton’s wife, yelling. {¶4} Horton continued to yell and push his wi fe. Hortons’ wife got up and started moving towards the stairs and Horton continued to yell at her and push her. According to Horton’s wife, she “kind of stumbled ” down the first set of stairs to a landing in an attempt to get away from him. They continued arguing and Horton pushed her down the second set of stairs

and she landed on her back at the bottom of the st airs. Horton “stood over top of [his wife] and continued to yell at [her] and kick and punch an d step on [her].” He stepped on her legs and side. She did not quite remember getting up but remembered going into the garage and Horton following her. Horton continued berating her an d she could not figure out how to get him to stop, so she grabbed some nearby firewood and star ted throwing it at him. She did not think she hit him. She also grabbed a bed post and swung it at him. She did not think she made contact but Horton claimed that she did. Horton then open ed the garage door, got into his vehicle, and left. Horton’s wife denied hitting or pushing Horton and instead maintained that she was only trying to get away from him. Horton’s wife had cuts along her arms and bruises on her legs and side. Photographs were submitted into evidence demonstrating her injuries. Horton’s wife

identified blood on the walls in some of the photographs as being her own blood. {¶5} Ten to fifteen minutes after the assault, Horton’s wife’s daughter N.W. arrived at

the house to visit her mother. Horton’s wife was still crying. She told N.W. that Horton “beat the crap out of [her].” N.W. called 911. Deputy Adam Bupp 1 of the Wayne County Sheriff’s Office responded to the call. Deputy Bupp testifie d that Horton’s wife was visibly shaking and

1 The transcript indicates that Deputy Bupp’s first name is Adan, but the remainder of the record refers to him as Adam.3

crying when he arrived on the scene. He immediately noticed the blood on her arms. Horton’s wife reported being in pain a ll over and that she was sore. Deputy Bupp opined that Horton’s wife had a slight odor of alcohol about her but did not appear to be impaired. Horton’s wife told Deputy Bupp that Horton had injured her during a physical altercation. Deputy Bupp stated that, in his experience, Horton’s wife’s injuries look ed like she was grabbed by her arms or hit. Deputy Bupp took photographs of Horton’s wife’s inju ries and the home. He testified that the blood on the wall appeared to be fresh. {¶6} Deputy Bupp located Horton at his mother’s house in Canton and arrested him. Horton seemed relaxed and did not appear to have any injuries, nor did he complain of any. Deputy Bupp averred that, in his experience, indivi duals whom claim self-defense tend to stay at the scene and report what happened. {¶7} Horton testified in his own defense, relayi ng a much different version of events. Horton admitted to pushing his wife to the ground three times, but denied kicking, punching, or scratching her. Horton indicated that, on that day, he came up from the basement and observed

his wife on the couch with a 12 ounce water bottle in her hand. Her eyes were closed. Horton told the children to go to their rooms so they would not witness any arguing. Horton grabbed the

bottle from her and smelled it. It smelled like vodka and there was only approximately an ounce left in it. When Horton grabbed the bottle, Ho rton’s wife jumped up, took a swing at Horton’s head and hit him. Horton pushed her back ont o the couch. Horton’s wife got up and the couple began arguing. Horton expressed his desire to separate and his di sappointment with her drinking. They both were shoving each other. Horton then attempted to go down the stairs to get his things to leave, as his bedroom was do wnstairs while his wife’s was upstairs. Horton asserted that, at that point, he had to push his wife in order to get down the stairs because she4

would not let him leave and was blocking the wa y. While Horton was gathering his things, his wife continued to argue with him and he had to push past her to get into the garage. As he was putting his belongings in the car, his wife bega n throwing firewood at him. One piece landed right behind his head but did not hit him and at least one piece hit the car, leaving a dent that was photographed. Horton testified that he picked up a piece of the wood that had been thrown at

him and walked over to his wife and told he r that she had to stop because it was getting dangerous. She had to let him go. According to Horton, his wife then swung a bed post at him and hit him. In response, he pushed her on the side of her body with the wood he was holding and she fell to the ground in the garage. {¶8} After that, Horton dropped the firewood and go t in the car and left. He was afraid that he would get hurt as the situation was escala ting. As the garage door was closing, his wife was approaching him with two pieces of wood in her hands but she did not exit the garage. Horton testified that at no point during the incide nt was he trying to hurt his wife. Horton

asserted that he was sore for a few days but did not notice any bruising. {¶9} Ultimately, the jury found Horton guilty an d the trial court sentenced him. Horton has appealed, raising two assi gnments of error for our review.

II. ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED PLAIN ERROR BY MAKING CERTAIN COMMENTS TO THE JURY ABOUT THE EVIDENCE DURING CLOSING ARGUMENT. {¶10} Horton argues in his first assignment of error that the trial court committed plain error in making certain comments to the jury during closing argument. Under the circumstances of this particular case, we do not agree.5

{¶11} Horton’s trial counsel did not object to th e trial court’s comments, and thus this issue is only reviewable for plain error. See Crim.R. 52(B); State v. Jackson , 9th Dist. Summit No. 27479, 2015-Ohio-5096, ¶ 51. “[T]he accused bear s the burden of proof to demonstrate plain error on the record * * * and must show an error, i.e., a deviation from a legal rule that

constitutes an obvious defect in the trial proceedings[.]” (Inter nal quotations and citations omitted.) State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 22. “However, even if the error is obvious, it must have affected substantial ri ghts, and [w]e have interpreted this aspect of the rule to mean that the trial court’s error must have affected the outcome of the trial.” (Internal quotations and c itations omitted.) Id . “The accused is therefore required to demonstrate a reasonable probability that the error resulted in prejudice * * *.” (Emphasis omitted.) Id . Thus, it was Horton’s burden to demonstrate that, absent the comments, the jury would not have found him guilty. See State v. Morgan , Slip Opinion No. 2017-Ohio-7565, ¶ 51. {¶12} “‘In exercising his [or her] duty to control a criminal trial pursuant to R.C. 2945.03, the trial judge is to remain impartial a nd refrain from making comments which may influence a jury.’” Jackson at ¶ 52, quoting State v. McCarley , 9th Dist. Summit No. 22562, 2006-Ohio-1176, ¶ 9. “‘“[T]he judge must be cogn izant of the effect of his [or her] comments upon the jury[.]”’” Jackson at ¶ 52, quoting McCarley at ¶ 9, quoting State v. Wade , 53 Ohio St.2d 182, 187 (1978), vacated and remanded on other grounds , 438 U.S. 911 (1978). “A judge’s ‘participation by * * * comment must be scrupulously limited, lest the court, consciously or unconsciously, indicate to the jury its opinion on * * * the credibility of a witness.’” Jackson at ¶ 52, quoting State ex rel. Wise v. Chand , 21 Ohio St.2d 113 (1970), paragraph three of the syllabus. “Furthermore, ‘juries are highly sensitive to every utterance by the trial judge’ and any6

comments by the trial judge must be appropriate under the circumstances.” McCarley at ¶ 9, quoting Wade at 188. Generally, in determining whether a trial judge’s remarks were prejudicial, the courts will adhere to the following rule s: (1) The burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is presumed that the trial judge is in the best position to decide when a breach is committed and what corrective measures are called for, (3) the remarks are to be considered in light of the circumstances under which they are made, (4) consideration is to be given to their possible effect upon the jury, and (5) to their possible impairment of the effectiveness of counsel. Wade at 188; see also McCarley at ¶ 9. {¶13} Here, during closing argument, the State told the jury that when Horton saw his

wife had vodka he “beat her. He beat her do wn two flights of stairs.” Defense counsel responded, reminding the jury that closing argume nt was not evidence. Defense counsel then pointed out that “when the Prosecutor sa[id] [Hort on] beat his wife down the stairs[, t]hat’s not

what the evidence was. The evidence was that he pushed past her...” The trial court, sua sponte, then interjected the following: “I’m going to stop you * * *. There is evidence of that. It’s not, it’s not your version but there was evidence of that. Okay. Go ahead and proceed.” {¶14} Defense counsel did not object to the tria l court’s comments, but now challenges them on appeal. The trial court’s comments ar e very troubling and clearly inappropriate. However, Horton has failed to meet his burden to demonstrate that the comments rise to the level of plain error. See Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, at ¶ 22. In his brief on appeal, Horton seems to argue that the nature of the comments themselves was so inherently prejudicial

as to warrant the conclusion that plain error exists. While th e trial court did without a doubt commit obvious error by interjecting the foregoing comments into the closing argument, Horton has not explained how, in light of the evidence adduced at trial, the comments affected the

outcome. See id .; see also App.R. 16(A)(7).7

{¶15} Further, in reviewing the evidence that was submitted to the jury, we can only conclude that, even absent the inappropriate comments, the jury would have found Horton guilty. Horton himself admitted that he pushed his wife approximately three times causing her to fall to the ground. The second time occurred when, accord ing to Horton, his wife was blocking the stairs preventing him from going downstairs to gather his belongings. However, Horton acknowledged at trial that, at that time, his wife did not have a weapon and was not hitting him. In addition, Horton testified that, after his wife had thrown firewood at him and hit him with a bed post, he picked up a piece of firewood and hit he r in the side of her body with it, causing her to fall to the ground. While Horton’s wife had de monstrable injuries that were photographed and shown to the jury, and identified blood on the wall as being her own, Horton admitted that he did not have any visible injuries from being hit with the bed post. Finally, Horton’s wife testified that ten to fifteen minutes after the assault, her daughter, N.W., arrived at the house. N.W.

testified that Horton’s wife told N.W. that Horton “beat the crap out of [her].” {¶16} In light of the totality of the evidence presented to the jury and Horton’s limited argument on appeal, we cannot say that Horton me t his burden of demonstr ating that the trial judge’s comments resulted in plain error. See Rogers at ¶ 22. Accordingly, we overrule Horton’s first assignment of error.

ASSIGNMENT OF ERROR II THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING, OVER OBJECTION, HEARSAY TESTIMONY AND TESTIMONY FROM THE SAME WITNESS WHO WAS WITHOUT PERSONAL KNOWLEDGE OF THE MATTER. {¶17} Horton argues in his second assignment of error that the trial court erred in allowing certain testimony. Specifically, he ma intains that N.W. should have been prohibited from testifying that Horton’s wife told her that Ho rton “beat the crap out of [Horton’s wife].” In8

addition, Horton challenges N.W.’s testimony about what she noticed about the hallway after she arrived at the house; she testified over objecti on that, down the steps, “there was blood on the walls from where * * * [Horton] had pushed [Horton’s wife.]” {¶18} “The decision to admit or exclude evidence lies in the sound discretion of the trial

court.” State v. Haywood , 9th Dist. Summit No. 28040, 2017-Ohio-8299, ¶ 53, citing State v. Sage , 31 Ohio St.3d 173, 180 (1987). “Absent an issue of law, this Court, therefore, reviews the trial court’s decision regarding evidentiary matters under an abus e of discretion standard of

review.” Haywood at ¶ 53, quoting State v. Aguirre , 9th Dist. Lorain No. 13CA010418, 2015- Ohio-922, ¶ 6. An abuse of discretion indicates that the trial court’s a ttitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶19} Horton first argues that N.W.’s testimony , over objection, that Horton’s wife told N.W. that Horton “beat the crap out of [Horton’s wife]” was inadmissible hearsay. He maintains there was “no foundation offered to prove that [Horton’s wife’s] quoted statement was made

while under the stress of exciteme nt caused by the event * * * as required by Evid.R. 803(2).” However, because we conclude that the trial court reasonably found that the testimony was

admissible under the excited-utte rance exception, we disagree. {¶20} That exception provides that “[a] statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by the event or condition” is not excluded by the rule against hearsay irrespective of whether the declarant is available as a witness. Evid.R. 803(2). “To be admissible under Evid.R 803(2) as an excited

utterance, a statement must concern some oc currence startling enough to produce a nervous excitement in the declarant, which occurrence the declarant had an opportunity to observe, and

must be made before there had been time for such nervous excite ment to lose a domination over9

his reflective faculties.” (Internal quotations and citations omitted.) State v. Flowers , 9th Dist. Summit No. 25841, 2012-Ohio-3783, ¶ 19. {¶21} At trial, Horton’s wife testified that he r daughter, N.W., arrived ten to fifteen minutes after the assault happened while Horton’s wife was “just sitting there crying and just in shock and just scared.” At that point, Horton’s wife had not even given thought to filing a police report. N.W. testified that she went over to Ho rton’s wife’s house for a “random visit” and when she arrived, Horton’s wife was crying and “had cu ts and bruises all over he r arms and [N.W. then asked] what happened.” In response, Horton’s wi fe said, Horton “beat the crap out of [her].” N.W. then called 911. In fact, Deputy Bupp testifie d that, even when he arrived at the scene, Horton’s wife was visibly shaking and crying. {¶22} Given the foregoing, we cannot say that the trial court abused its discretion in admitting the foregoing testimony of N.W. Despite Horton’s argument to the contrary, there was

evidence from which the trial court could have reasonably concluded that Horton’s wife was

under “the stress of excitement caused by the [assault]” when she told N.W. that Horton “beat the crap out of [Horton’s wife].” Evid.R. 803(2) . Prior to N.W.’s testimony, Horton’s wife testified about her mental state following the a ssault and about when N.W. arrived. Horton has not pointed to any law indicating that the trial court could not consider that testimony in determining that N.W.’s testimony was admi ssible under the excited-utterance exception. See App.R. 16(A)(7). {¶23} Horton next argues that the trial court abused its discretion in admitting testimony about what N.W. noticed about the hallway after she arrived at the house; she testified that, down the steps, “there was blood on the walls from wher e * * * [Horton] had pushed [Horton’s wife.]”10

Horton argues that N.W.’s statement was not based on personal knowledge as N.W. did not

witness the assault. {¶24} Evid.R. 602 provides, in part, that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.” Here, the record is clear that N.W. did not witness the assault on Horton’s wife and the State offered no evidence to suggest th at N.W. would have pe rsonal knowledge of how blood came to be on the walls. Accordingly, we agree the statement was not admissible. See Evid.R. 602. However, Horton’s wi fe herself testified that the blood on the walls was her own and that Horton had pushed her down the stairs. Further, she discussed the photographs of her injuries, which included cuts and scratches. Given the foregoing, we can only conclude that the admission of N.W.’s testimony was harmless error. See Crim.R. 52(A) (“Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.”). {¶25} Accordingly, we overrule Horton’ s second assignment of error.

III. {¶26} Horton’s assignments of error are overrul ed. The judgment of the Wayne County Municipal Court is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal.11

We order that a special mandate issue out of this Court, directing the Wayne County Municipal Court, County of Wayne, State of Ohi o, to carry this judgment into execution. A certified copy of this journa l entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

HENSAL, P. J. TEODOSIO, J. CONCUR.

APPEARANCES: TODD E. CHEEK, Attorney at Law, for Appellant. DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting Attorney, for Appellee.