[Cite as State v. Henson , 2020-Ohio-262.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delane y , J. -vs- Case No. 2019 CA 00017 ANTHONY HENSON Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Fairfield County Cour t ofCommon Pleas, Case No. 2018-CR00368

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: Januar y

28, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellan t

R. KYLE WITT BRADLEY S. NICODEMUS Fairfield Count y Prosecutin g Attorne y The Nicodemus Law Office, LPA 1409 West Market Stree t DARCY T. COOK Baltimore, Ohio 43105 Assistant Prosecutin g Attorne y 239 West Main Stree t Suite 101 Lancaster, Ohio 43130Fairfield Count y , Case No. 2019-CA-00017 2

Hoffman, J. {¶1} Appellant Anthony Henson appeals the judgment entered by the Fa irfield County Common Pleas Court convicting him of domestic violence w ith a pregnancy specification (R.C. 2919.25(A),(D)(5)), and sentencing him to s ix months incarceration. Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE {¶2} On June 6, 2018, H.H., the victim in the instant case, was marr ied to Appellant. The couple lived with H.H.’s parents. On that same day, H.H.’s mother left the residence for the dog groomer between 8:00 and 8:30 a.m. H .H. texted her mother

to come home around 9:00 a.m. When the victim’s mother returne d home, H.H. was in the bathroom vomiting. H.H. was shaken and crying, and told he r mother Appellant shoved her, knocked her into a table in the living room, and fo llowed her to the bathroom, where he grabbed her by the throat and hit her head against the wall. The victim’s mother observed the table in the entry way of the home had a leg which was bent, candle wax from a candle warmer had splashed on the wall, and there was vo mit on the arm of the

couch. H.H. had bruises on her arm and neck which were not the re the previous night. The victim’s mother called the victim’s father, who called the police. {¶3} Officer Curtis Guisinger of the Lancaster Police Department res ponded to the call. His body camera recorded his encounter with H.H. In the video, H.H. told Officer Guisinger Appellant grabbed her by the throat, and turned her o ver a box and through the living room stand, which flipped the stand over, causing wax to spill. When she tried to get up, Appellant turned her on her stomach and bashed her head into the carpet. H.H. told the officer Appellant grabbed her by the throat, and start ed choking her until she started vomiting. He bashed her head against the bathroom wall while she was vomiting.Fairfield Count y , Case No. 2019-CA-00017 3

The officer observed bruises on H.H.’s arm and neck, as well as redness on her neck. He further felt a bump on her head, and noted she was coughing in a manner consistent with being choked. {¶4} Appellant was charged with domestic violence, with a specificat ion the victim was pregnant at the time. Prior to trial, the state fil ed a motion in limine seeking to introduce other acts evidence of two past incidents of violence between Appellant and the victim pursuant to Evid. R. 404(B). The trial court ruled evid ence of one incident inadmissible, but would allow the State to present evidence of an incident which occurred on October 17, 2017. {¶5} The case proceeded to jury trial in the Fairfield County Common Pleas

Court. The victim was called as the court’s witness. She test ified on June 6, 2018, she asked Appellant to get their child’s car seat base out of the c ar, but when he tried to leave,

she held on to his arm and wouldn’t let him leave. He threaten ed to pack all his stuff and leave to avoid arguing with her. She testified he grabbed her arm, and she jerked away, catching her foot on the edge of a box and falling. She testif ied the table tipped during her fall. Appellant left the home after she fell. She admitte d in her application for a protective order, she stated Appellant choked her, grabbed her by the arm, bashed her head against the wall and kicked her. She also admitted the br uises on her arm were caused by Appellant grabbing her, but testified she did now kno w where the bruise on her neck came from in the photographs taken on the day in question, or why her lip was bleeding. She testified she did not think Appellant was trying to hurt her when he grabbed

her.Fairfield Count y , Case No. 2019-CA-00017 4

{¶6} As to the incident on October 7, 2017, H.H. testified she hit A ppellant, the police came, and Appellant fled out the window. {¶7} The victim’s sister testified on October 7, 2017, she was in th e basement watching television when she heard Appellant and H.H. screaming . She also heard banging. She heard H.H. say, “Stop, you are hurting me.” Tr. 2 12. When the sister went upstairs, she found the bedroom door where H.H. and Appellant w ere arguing was locked. H.H. opened the door, and her sister saw Appellant exiting the home through a window. H.H. was crying, upset, and backed up against the wall. {¶8} The jury found Appellant guilty of domestic violence with a pre gnancy specification. He was convicted as charged and sentenced to si x months incarceration. It is from the April 10, 2019 judgment of conviction and senten ce Appellant prosecutes his appeal, assigning as error:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT PERMITTED TESTIMONY OF APPELLANT’S PRIOR ACTS,

PURSUANT TO EVIDENCE RULE 404.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN

IT PERMITTED TESTIMONY OF APPELLANT’S PRIOR ACTS AS EVIDENCE OF HABIT, PURSUANT TO EVIDENCE RULE 406.

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

INCLUDING JURY INSTRUCTION REGARDING FLIGHT.

IV. THE JURY VERDICT IS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE AND THEREFORE CONTRARY TO LAW.Fairfield Count y , Case No. 2019-CA-00017 5

I. {¶9} In his first assignment of error, Appellant argues the court er red in admitting evidence of his prior bad acts pursuant to Evid. R. 404, specif ically the testimony of H.H. and her sister regarding the incident occurring October 7, 2017

. {¶10} Evid. R. 404(B) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof o f motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In criminal cases, the proponent of eviden ce to be offered under this rule shall provide reasonable notice in adva nce of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

{¶11} R.C. 2945.59 similarly provides:

In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendan t which tend to show his motive or intent, the absence of mistake or acciden t on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or su bsequentFairfield Count y , Case No. 2019-CA-00017 6

thereto, notwithstanding that such proof may show or tend to sh ow the commission of another crime by the defendant.

{¶12} “Because R.C. 2945.59 and Evid. R. 404(B) codify an exception to the common law with respect to evidence of other acts of wrongdoing , they must be construed against admissibility, and the standard for determining admissi bility of such evidence is

strict.” State v. Broom , 40 Ohio St.3d 277, 281–82, 533 N.E.2d 682, 689–90 (1988). Evidence to prove the “type” of person the defendant is in orde r to show he acted in conformity therewith in the instant case is barred by Evid. R. 404(B). State v. Greene , 5th Dist. Tuscarawas No. 2012 AP 02 0018, 2012–Ohio–5624, 983 N.E.2 d 773, ¶ 35. {¶13} The Ohio Supreme Court has set forth a three-part test for dete rmining the admissibility of other acts evidence:

The first step is to consider whether the other acts evidence i s relevant to making any fact that is of consequence to the deter mination of the action more or less probable than it would be without the e vidence. Evid. R. 401. The next step is to consider whether evidence of the ot her crimes, wrongs, or acts is presented to prove the character of the accu sed in order to show activity in conformity therewith or whether the other a cts 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 val ue of the other acts evidence is substantially outweighed by the danger of unfa ir prejudice.

See Evid. R 403.Fairfield Count y , Case No. 2019-CA-00017 7

{¶14} State v. Williams , 134 Ohio St.3d 521, 2012–Ohio–5695, 983 N.E.2d 1278, ¶ 20. {¶15} “[A] trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exerci in line with the rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St. 3d 269, 271, 559 N.E.2d 1056 (1991). {¶16} In the instant case, we find the other acts evidence was releva nt to making any fact of consequence to the determination of the action more or less probable than it would be without the evidence. Specifically, we find H.H.’s si ster’s testimony she heard H.H. tell Appellant to stop hurting her during the prior incide nt made it more probable Appellant intended to hurt H.H. on June 6, 2018. {¶17} Turning to whether the evidence was presented to prove the char acter of the accused in order to show activity in conformity therewith o r whether the evidence was presented for a legitimate purpose, the trial court found the e vidence admissible to prove Appellant’s intent, his motive, or absence of accident, and gav e the jury a limiting instruction in accordance with this ruling. {¶18} We find the evidence of the prior incident did demonstrate inte nt and absence of accident. Concerning the incident on June 6, 2018, the victim testified on cross-examination by the State 1 she asked Appellant to get their child’s car seat base out of the car, but when he tried to leave, she held on to his arm and wouldn’t let him leave. She testified he grabbed her arm, and she jerked away, catching her foot on the edge of a box and falling. Following cross-examination by the State, d uring defense counsel’s

1 The victim was called as the court’s witness; therefore, both parties were permitted to cross-examine the witness pursuant to Evid. R. 614.Fairfield Count y , Case No. 2019-CA-00017 8

cross-examination of the victim, counsel asked, “When you grabb ed Anthony’s arm and he grabbed yours back, do you think he was trying to hurt you?” Tr. 119. Appellant thereby raised the issue of whether or not he intended to hurt her by grabbing her, or whether she was injured by accident, and evidence of a prior in cident in which the victim was heard saying Appellant was hurting her became relevant to e stablish his intention to

harm her and the absence of accident. {¶19} Subsequent to this portion of the victim’s questioning, the co urt ruled the State could present evidence of the past incident. We find the court did not abuse its discretion in finding evidence of the October, 2017, incident a dmissible pursuant to Evid. R. 404(B). {¶20} Turning to the third prong of the Williams test, whether the probative value of the other acts evidence is substantially outweighed by the d anger of unfair prejudice, the victim testified she was the one who hit Appellant in the p rior incident. We find the victim’s testimony about the prior incident was not prejudicial to Appellant. The victim’s sister testified she heard yelling and banging, and heard the v ictim tell Appellant to stop hurting her. We find the victim’s sister’s testimony concernin g the past incident was probative on the issue of whether Appellant intended to hurt th e victim or whether the incident on June 6, 2018, was an accident. We also find her te stimony was not particularly prejudicial, as she witnessed no act of physical violence betwe en the parties. We find the prejudicial effect of evidence of the October, 2017, incident d id not outweigh its probative

value. {¶21} The first assignment of error is overruled.Fairfield Count y , Case No. 2019-CA-00017 9

II. {¶22} In his second assignment of error, Appellant argues the court e rred in admitting evidence of the prior act as habit evidence pursuant to Evid. R. 406. The trial court found the evidence admissible pursuant to Evid. R. 406 as an alternative basis to admission from Evid. R. 404(B). Because we have found the evid ence admissible pursuant to Evid. R. 404(B), we find this assignment of error c oncerning habit evidence

to be moot. {¶23} The second assignment of error is overruled.

III.

{¶24} In his third assignment of error, Appellant argues the court er red in instructing the jury on flight. The court gave the following i nstruction to the jury regarding evidence Appellant fled the scene:

Concerning flight. Testimony has been admitted indicating that the Defendant may have fled the scene. You are instructed that fle eing the scene alone does not raise a presumption of guilt, but it may t end to indicate the Defendant’s consciousness of guilt. If you find the facts do not support that the Defendant fled the scene, or if you find that some oth er motive prompted the Defendant’s conduct, or if you are unable to decid e what the Defendant’s motivation was, then you should not consider the ev idence for any purpose. However, if you find the facts support the Defend ant engaged in such conduct, and if you decide that Defendant was motivated by a consciousness of guilt, you may, but you are not required to co nsider thatFairfield Count y , Case No. 2019-CA-00017 10

evidence in deciding whether the Defendant is guilty of the cri mes charged. You alone will determine what weight, if any, to give to this e vidence.

{¶25} Tr. 314. {¶26} A mere departure from the scene of the crime is not to be confu sed with deliberate flight from the area in which the suspect is normall y to be found . State v.

Jackson , 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶45. Accordin gly, it must be clear the defendant took affirmative steps to avoid detection a nd apprehension beyond simply not remaining at the scene of the crime. Id. at ¶46. {¶27} The evidence in the instant case did not warrant a flight instr uction. There is no evidence Appellant took affirmative steps to avoid detect ion and apprehension beyond simply leaving the scene of the crime. {¶28} However, a reviewing court may not reverse a conviction in a cr iminal case due to jury instructions unless it is clear the jury instructio ns constituted prejudicial error. State v. McKibbon, 1st Dist. Hamilton No. C–010145, 2002–Ohio–2041, ¶ 4, citing State v. Adams, 62 Ohio St.2d 151, 154, 404 N.E.2d 144 (1980). In order to de termine whether an erroneous jury instruction was prejudicial, a reviewing cour t must examine the jury

instructions as a whole. State v. Van Gundy , 64 Ohio St.3d 230, 233–234, 594 N.E.2d 604 (1992). Pursuant to Crim. R. 52(A), “[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.” {¶29} We find the flight instruction in the instant case did not cons titute prejudicial error. The court did not instruct the jury flight was a fact, but rather allowed the jury to determine for itself whether Appellant did in fact flee, and if so, whether flight wasFairfield Count y , Case No. 2019-CA-00017 11

motivated by consciousness of guilt. The jury was instructed t o disregard evidence of flight if it found flight did not occur or was not motivated by consciousness of guilt. Further, the jury was instructed even if it found Appellant fled and his flight was motivated by guilt, they were to determine what weight, if any, to give to the evid ence. In light of the other evidence of guilt as discussed in assignment of error one above , we find the jury instruction did not rise to the level of prejudicial error. {¶30} The third assignment of error is overruled.

IV.

{¶31} In his fourth assignment of error, Appellant argues the judgmen t convicting him of domestic violence is agai nst the manifest weight of the evidence. Specifically, he argues the testimony was conflicting because the victim’s testi mony at trial does not support a finding of guilt. {¶32} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirteenth juror and “i n reviewing the entire record, weighs the evidence and all reasonable inferences, considers th e credibility of witnesses, and determines whether in resolving conflicts in evidence the j ury ‘clearly lost its way and created such a manifest miscarriage of justice that the convict ion must be reversed and

a new trial ordered.’” State v. Thompkins , 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983). {¶33} Appellant was convicted of domestic violence in violation of R. C. 2919.25, which provides in pertinent part:Fairfield Count y , Case No. 2019-CA-00017 12

(A) No person shall knowingly cause or attempt to cause physica l harm to a family or household member. (D)(5) Except as otherwise provided in division (D)(3) or (4) o f this section, if the offender knew that the victim of the violation was pregnant at the time of the violation, a violation of division (A) or (B) o f this section is a felony of the fifth degree, and the court shall impose a mandat ory prison term on the offender pursuant to division (D)(6) of this sectio n, and a violation of division (C) of this section is a misdemeanor of t he third degree.

{¶34} Appellant does not challenge the finding pursuant to R.C. 2919. 25(D)(5) he knew the victim was pregnant at the time, but solely argues the judgment finding he knowingly caused or attempted to cause harm to H.H. is against the manifest weight of

the evidence. {¶35} While we agree with Appellant the victim’s testimony at trial m ay not have supported a conviction, there was ample other evidence presente d, based on her statements to her mother and to police at the time of the incid ent, from which the jury could find the elements of the crime proven beyond a reasonable doubt. {¶36} The State submitted evidence of the photographs of the victim’s injuries, as well as the video from the officer’s body camera in which H.H. recounted Appellant grabbed her by the throat, turned her over a box and through a stand, which flipped the stand over, causing wax to spill. When she tried to get up, Ap pellant turned her on her stomach and bashed her head into the carpet. H.H. told the of ficer Appellant grabbed her by the throat, and started choking her until she started vo miting. He bashed her headFairfield Count y , Case No. 2019-CA-00017 13

against the bathroom wall while she was vomiting. The officer observed bruises on H.H.’s arm and neck, as well as redness on her neck. He further felt a bump on her head, and noted she was coughing in a manner consistent with being choked

. {¶37} In addition, H.H.s mother testified H.H. texted her to come hom e around 9:00 a.m. on June 6, 2018. When the victim’s mother returned home, H.H. was in the bathroom vomiting. H.H. was shaken and crying, and told her mo ther Appellant shoved her, knocked her into a table in the living room, and then foll owed her to the bathroom, where he grabbed her by the throat and hit her head against the wall. The victim’s mother observed the table in the entry way of the home had a leg which was bent, candle wax from a candle warmer had splashed on the wall, and there was vo mit on the arm of the

couch. H.H. had bruises on her a rm and neck which were not the re the previous night. {¶38} We find the jury did not lose it s way in believing H.H.’s state ments made at the time of the incident, which were recorded by the officer’s body camera, over her trial testimony. The fourth assignment of error is overruled. {¶39} The judgment of the Fairfield Co unty Common Pleas Court is affi rmed.

By: Hoffman, J. Gwin, P.J. and Delaney, J. concur