[Cite as State v. Simmons, 2011-Ohio-2068.]

 IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellee : C.A. CASE NO. 24009 

vs. : T.C. CASE NO. 09CR2348 

MICHELLE SIMMONS : (Criminal Appeal from 

 Common Pleas Court) 

Defendant-Appellant : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 29th day of April, 2011. 

 . . . . . . . . . 

Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros. Attorney, Atty. Reg. 

No.0069384, P.O. Box 972, Dayton, OH 45422 

Attorneys for Plaintiff-Appellee 

Ben Swift, Atty. Reg. No.0065745, 333 W. First Street, Suite 445, Dayton, OH 45402 

Attorney for Defendant-Appellant 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} Defendant, Michelle Simmons, appeals from her conviction and sentence for 

patient abuse. 

{¶ 2} In July 2009, Defendant was a State Tested Nursing Assistant (STNA) who 

worked at Riverside Nursing Home in Harrison Township, Montgomery County. Christine 

Leet was an eighty year old Alzheimer’s patient at that nursing home who had a history of 
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easily becoming agitated and combative and violent. Leet was confined to a wheelchair and 

restrained by a lap belt. In the early morning hours of July 9, 2009, an agitated Christine Leet 

made a futile attempt to escape from the nursing home. Leet set off alarms on the doors she 

opened. The staff decided to sedate Leet, and Defendant was asked to assist in restraining 

Leet while the nurse administered an injection. 

{¶ 3} While being held down for the injection, Leet became even more agitated and 

she threatened the staff. The nursing home’s policy required the staff to simply walk away 

and allow Leet to calm down. Defendant chose, however, to taunt and antagonize Leet. 

Defendant coaxed Leet into a secluded TV room of the main hall, where Defendant kicked 

Leet’s wheelchair and hit Leet in the chest and face. Defendant also pulled out a chunk of 

Leet’s hair. Defendant then walked away, laughing. 

{¶ 4} An investigation by the nursing home administrators resulted in Defendant’s 

termination from employment because of her assault on Leet. Several other staff members 

were fired for watching the assault but doing nothing to stop it. 

{¶ 5} Defendant was indicted on one count of patient abuse in violation of R.C. 

2903.34.(A)(1). Defendant filed a motion to suppress evidence of a surveillance video from 

inside the nursing home. The trial court overruled the motion to suppress. Following a jury 

trial, Defendant was found guilty of patient abuse. The trial court sentenced Defendant to 

five years of community control sanctions that include ten days in the Montgomery County 

jail. 

{¶ 6} Defendant timely appealed to this court from her conviction and sentence. 

FIRST ASSIGNMENT OF ERROR
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{¶ 7} “APPELLANT WAS DENIED A FAIR TRIAL THROUGH THE 

ADMISSION OF AN IMPROPERLY AUTHENTICATED VIDEOTAPE.” 

{¶ 8} Defendant argues that the trial court abused its discretion by admitting the 

nursing home’s surveillance video, over Defendant’s objection. 

{¶ 9} The admission or exclusion of evidence rests within the sound discretion of the 

trial court and will not be disturbed on appeal absent an abuse of that discretion. State v. 

Sage (1987), 31 Ohio St.3d 173. 

{¶ 10} “‘Abuse of discretion’ has been defined as an attitude that is unreasonable, 

arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 

OBR 123, 126, 482 N.E.2d 1248, 1252. It is to be expected that most instances of abuse of 

discretion will result in decisions that are simply unreasonable, rather than decisions that are 

unconscionable or arbitrary. 

{¶ 11} “A decision is unreasonable if there is no sound reasoning process that would 

support that decision. It is not enough that the reviewing court, were it deciding the issue de 

novo, would not have found that reasoning process to be persuasive, perhaps in view of 

countervailing reasoning processes that would support a contrary result.” AAAA Enterprises, 

Inc. v. River Place Community Redevelopment (1990), 50 Ohio St.3d 157, 161. 

{¶ 12} Defendant first argues that the videotape of Defendant’s attack on Leet was 

inadmissible because it was never properly authenticated pursuant to Evid.R. 901(A), and no 

chain of custody was established for this evidence. Evid.R. 901(A) requires, as a condition 

precedent to the admissibility of evidence, a showing that the matter in question is what it 

purports to be. The record demonstrates that the parties stipulated to the authenticity of this 
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videotape, that it is a video from Riverside Nursing Home on July 9, 2009. Their agreement 

satisfies Evid.R. 901(A). 

{¶ 13} Defendant next argues that the videotape was inadmissible because it 

prejudiced Defendant. Of course, it was prejudicial. It was part of the State’s evidence 

against Defendant showing she committed the crime of patient abuse. The fact that evidence 

is unfavorable to a party does not make it unfairly prejudicial or inadmissible. State v. 

Wright (1990), 48 Ohio St.3d 5, 8. 

{¶ 14} Evid.R. 403(A) prohibits the admission of relevant evidence only if the 

probative value is substantially outweighed by the danger of unfair prejudice. State v. 

Wright, supra. Logically, all evidence presented by a prosecutor is prejudicial, but not all 

evidence unfairly prejudices a defendant. Evid.R. 403 only prohibits the latter. Id. 

{¶ 15} Defendant’s principal complaint is that the video depicts conduct by Defendant 

that is partially concealed behind a barrier or partial wall, and it cannot be determined from 

the video alone what Defendant is doing. That remains speculative. Such an argument goes 

to the weight, and not the admissibility, of the evidence, and in no way establishes unfair 

prejudice. Eyewitnesses to Defendant’s assault on Leet testified at trial, describing what 

Defendant was doing and what was occurring as depicted on the video. To the extent the 

video corroborates the eyewitness testimony and refutes Defendant’s own testimony as to 

what occurred, it has significant probative value that is not “substantially outweighed by the 

danger of unfair prejudice.” Evid.R. 403(A). The trial court did not abuse its discretion in 

admitting the videotape. 

{¶ 16} Defendant’s first assignment of error is overruled. 
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SECOND ASSIGNMENT OF ERROR

{¶ 17} “APPELLANT WAS DENIED A FAIR TRIAL THROUGH INEFFECTIVE 

ASSISTANCE OF COUNSEL.” 

{¶ 18} Counsel's performance will not be deemed ineffective unless and until 

counsel's performance is proved to have fallen below an objective standard of reasonable 

representation and, in addition, prejudice arose from counsel's performance. Strickland v. 

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To show that a defendant 

has been prejudiced by counsel’s deficient performance, the defendant must affirmatively 

demonstrate to a reasonable probability that were it not for counsel’s errors, the result of the 

trial would have been different. Id., State v. Bradley (1989), 42 Ohio St.3d 136. 

{¶ 19} Defendant claims that her counsel performed deficiently by failing to obtain 

and review the victim’s, Christine Leet’s, medical records. According to Defendant, had 

counsel reviewed Leet’s medical records, something useful might have been discovered 

regarding the medications Leet was taking that offered an alternative explanation for why 

Leet’s hair came out, other than the State’s claim that Defendant pulled out a wad of Leet’s 

hair. The claim is too speculative to demonstrate that Defendant was prejudiced by counsel’s 

failure. Furthermore, two of the State’s witnesses testified at trial that they saw Defendant 

pull Leet’s hair, as well as punch Leet in the face and body. In view of that evidence, we 

cannot say that there is a reasonable probability that had Defendant’s counsel obtained Leet’s 

medical records, Defendant would have been found not guilty. No prejudice, as defined by 

Strickland, has been demonstrated. 

{¶ 20} Defendant next claims that her counsel performed deficiently by eliciting 
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inadmissible prior bad acts evidence through a line of questioning that allowed Defendant’s 

former supervisor, Christy Smith, to reveal that Defendant had previously been investigated 

for pulling another patient’s hair: 

{¶ 21} “Q. Before the alleged attack, were you aware of any past violent outburst by 

Michelle? 

{¶ 22} “A. Michelle was investigated four months prior for pulling hair. 

{¶ 23} “Q. Was she terminated at that time? 

{¶ 24} “A. No. There were no evidence supporting that Michelle had pulled the hair 

at that time. 

{¶ 25} “Q. And was that allegation based on a complaint made by somebody else 

there? 

{¶ 26} “A. No. A demented resident made the complaint.” (T. 84). 

{¶ 27} Defendant argues that this testimony about a previous hair pulling allegation 

constitutes a prior bad act that prejudiced Defendant by allowing the jury to impermissibly 

infer that because Defendant may have previously pulled another patient’s hair, she probably 

pulled Leet’s hair. According to Defendant, this prior bad acts evidence was inadmissible per 

Evid.R. 404(B). As the evidence demonstrates, however, the previous allegation about hair 

pulling does not constitute another crime, wrong, or bad act because there was no evidence 

that the previous incident ever occurred. That benefits, not prejudices, Defendant. 

Additionally, this evidence further benefitted Defendant by demonstrating that patients with 

dementia, like Leet, can make claims of abuse that are untrue, a fact to which Christy Smith 

testified. No deficient performance by counsel, much less resulting prejudice, is 
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demonstrated. 

{¶ 28} Defendant next reargues her first assignment of error and claims that her 

counsel performed deficiently by failing to object to the fact that the nursing home’s 

surveillance video was not properly authenticated. As we pointed out in disposing of 

Defendant’s first assignment of error, this claim is frivolous because the parties stipulated to 

the authenticity of that video. No deficient performance by counsel is demonstrated. 

{¶ 29} Defendant next claims that her counsel performed deficiently by failing to 

object to this leading question by the prosecutor: 

{¶ 30} “Q. Did she (Leet) eventually roll out of the TV room? 

{¶ 31} “A. Yes, she did. 

{¶ 32} “Q. And was she more sullen at that time, meaning did she seem somewhat 

defeated? 

{¶ 33} “A. Yeah. She was real like in a sad demeanor. She was quiet after it 

happened the rest of the night.” (T. 108). 

{¶ 34} A leading question is one that instructs the witness how to answer or puts into 

his or her mouth words to be echoed back. State v. D’Ambrosio (1993), 67 Ohio St.3d 185, 

190. Leading questions may not be used on direct examination. Evid.R. 611(C). A 

question is not leading merely because it directs the witness to a point to which the witness is 

asked to respond. State v. Carruth, Montgomery App. No. 19997, 2004-Ohio-2317. 

Furthermore, by asking the witness, Melissa Rickman, did Leet seem somewhat defeated, any 

leading suggestion is avoided. Id. No deficient performance by counsel is demonstrated. 

{¶ 35} Defendant next claims that her counsel performed deficiently by failing to 
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object to a misstatement by the prosecutor during closing argument. When discussing the 

legal definition of “physical harm,” the prosecutor inadvertently misspoke and described it as 

“psychological” impairment, as opposed to “physiological” impairment, as R.C. 

2901.01(A)(3) provides. The prosecutor stated: 

{¶ 36} “And once again, you’re going to get a definition of what abuse is. The Judge 

is going to give it to you. But it’s quite simply knowingly causing physical harm, that when 

the Defendant did those actions, she knew that she was going to hurt Christine. There is no 

other reason to do that than to harm her. And it can be any injury, illness, or psychological 

impairment regardless of its gravity or duration.” (T. 219-220). 

{¶ 37} The State’s witnesses in this case all testified regarding the physical harm 

Defendant caused by hitting, kicking, and pulling Leet’s hair. In addition, the trial court 

properly instructed the jury that the definition of physical harm included “physiological” 

impairment. 

{¶ 38} “Physiological” refers to characteristics of or appropriate to an organism’s 

healthy or normal functioning - contrasted with pathological. Webster’s Third New 

International Dictionary. We cannot conclude that but for one, isolated incident where the 

prosecutor misspoke and said psychological, when she meant physiological, there is a 

reasonable probability Defendant would have been found not guilty. No prejudice to 

Defendant, as defined by Strickland resulted from counsel’s performance. 

{¶ 39} Finally, Defendant complains that her counsel performed deficiently by failing 

to object to hearsay. Melissa Rickman, an eyewitness to Defendant’s assault on Leet, 

testified about what transpired when the attack ended: 
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{¶ 40} “Q. And what was the Defendant doing as she left? 

{¶ 41} “A. Laughing. 

{¶ 42} “Q. And what did Christine do? 

{¶ 43} “A. Just was just upset, and she said she was – oh, I’m going to have a black 

eye and, you know, the next day. That’s what she was saying. She just was made, upset.” 

(T. 107-108). 

{¶ 44} The witness’s testimony repeating what Leet had said, that she was going to 

have a black eye, is inadmissible hearsay. Evid.R. 801(C), 802. However, Melissa Rickman 

testified that she saw Defendant punch Leet in the face. Elizabeth Dudon likewise saw 

Defendant punch Leet. The witnesses also testified that Leet did not develop a black eye. 

Based upon this evidence, we cannot say that but for defense counsel’s failure to object to 

the single, isolated hearsay statement by Rickman, there is a reasonable probability that 

Defendant would have been acquitted by the charges. Prejudice as defined by Strickland has 

not been demonstrated. Ineffective assistance of counsel has not been shown. 

{¶ 45} Defendant’s second assignment of error is overruled. 

THIRD ASSIGNMENT OF ERROR

{¶ 46} “THE COURT DEPRIVED APPELLANT OF A FAIR TRIAL BY LIMITING 

EVIDENCE CONCERNING THE CREDIBILITY OF ONE OF THE STATE’S 

WITNESSES.” 

{¶ 47} Defendant argues that the trial court erred by unduly limiting the scope of 

cross-examination of State’s witness Elizabeth Dudon, which denied Defendant her rights to 

due process and a fair trial. During cross-examination of Dudon, the following exchange 
10

occurred: 

{¶ 48} “Q. You’ve never been written up for a sexual relationship with somebody -- 

{¶ 49} “MS. HEAPY: Objection, Your Honor. 

{¶ 50} “MR. BAMBERGER: – named Chris? 

{¶ 51} “THE WITNESS: Are you serious? 

{¶ 52} “MS. HEAPY: - as to relevance. 

{¶ 53} “THE COURT: Counsel approach, please. 

{¶ 54} BENCH CONFERENCE 

{¶ 55} “THE COURT: Is there some kind of history that you’re aware of? 

{¶ 56} “MR. BAMBERGER: Yes. I’m pursuing an alternate theory that if there was 

any attack, she was involved and she’s accusing my client because at the time she had such a 

record. 

{¶ 57} “THE COURT: That’s not what I asked. My question is do you have a 

good-faith basis for asking the questions like you have some kind of indication that those 

things have happened? 

{¶ 58} “MR. BAMBERGER: Yes. 

{¶ 59} “THE COURT: And is that from -- 

{¶ 60} “MS. HEAPY: What is that -- 

{¶ 61} “THE COURT: – something other than from your client? 

{¶ 62} “MR. BAMBERGER: No. 

{¶ 63} “THE COURT: Then I’m not going to allow you to get into alternate theories 

like that, and I will sustain the objection.” (T. 152-153). 
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{¶ 64} Evid.R. 611 provides in relevant part: 

{¶ 65} “(A) Control by court. The court shall exercise reasonable control over the 

mode and order of interrogating witnesses and presenting evidence so as to (1) make the 

interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless 

consumption of time, and (3) protect witnesses from harassment or undue embarrassment. 

{¶ 66} “(B) Scope of cross-examination. Cross-examination shall be permitted on all 

relevant matters and matters affecting credibility.” 

{¶ 67} In State v. Ross, Montgomery App. No. 22958, 2010-Ohio-843, at ¶9, we 

observed: 

{¶ 68} “On cross-examination, a party may inquire into all matters pertinent to the 

case that the party calling the witness would have been entitled or required to raise. In re 

Fugate (Sept. 22, 2000), Darke App. No. 1512, citing Smith v. State (1932), 125 Ohio St. 137, 

180 N.E. 695, paragraph one of the syllabus. However, the trial court has broad discretion in 

imposing limits on the scope of cross-examination. State v. Cobb (1991), 81 Ohio App.3d 

179, 183, 610 N.E.2d 1009. Trial judges have wide latitude ‘to impose reasonable limits on 

such cross-examination based on concerns about, among other things, harassment, prejudice, 

confusion of the issues, the witness' safety, or interrogation that is repetitive or only 

marginally relevant.’ Delaware v. Van Arsdall (1986), 475 U.S. 673, 679, 106 S.Ct. 1431, 89 

L.Ed.2d 674. An appellate court will not interfere with a trial court's decision about the scope 

of cross-examination absent an abuse of discretion. Fugate, supra. The term ‘abuse of 

discretion’ ‘connotes more than an error in * * * judgment; it implies that the court's attitude 

is unreasonable, arbitrary or unconscionable.’ Blakemore v. Blakemore (1983), 5 Ohio St.3d 
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217, 219, 450 N.E.2d 1140.” 

{¶ 69} In State v. Bolling, Montgomery App. No. 20225, 2005-Ohio-2509, at ¶64, we 

stated: 

{¶ 70} “The credibility of any witness may be attacked by any party. Evid.R. 607(A). 

 However, a questioner must have a reasonable basis for asking any question pertaining to 

impeachment that implies the existence of an impeaching fact. Evid.R. 607(B); State v. 

Gillard (1988), 40 Ohio St.3d 226. This rule prevents counsel from testifying and asserting 

as fact mere innuendo that is included within a question when there is no reasonable belief 

that a factual predicate exists for the implied impeaching fact. Weissenberger, Ohio 

Evidence Courtroom Manual (2005), p. 218.” 

{¶ 71} Defense counsel, by his own admission, did not have a good faith basis for 

asking his question that implies the existence of an impeaching fact, whether Dudon had ever 

been disciplined by the nursing home for having a sexual relationship with somebody named 

Chris, other than what Defendant had said to her counsel. Absent evidence that an 

independent factual predicate exists for the implied impeaching fact, the trial court’s exclusion 

of that question was not an unreasonable exercise of the discretion conferred on the court by 

Evid.R. 611. No abuse of discretion by the court has been demonstrated. 

{¶ 72} Defendant’s third assignment of error is overruled. 

FOURTH ASSIGNMENT OF ERROR

{¶ 73} “APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST 

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.” 

{¶ 74} Defendant argues that her conviction for patient abuse is not supported by 
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legally sufficient evidence and is against the manifest weight of the evidence because the State 

failed to prove the physical harm element of the charge. 

{¶ 75} Defendant was found guilty of patient abuse in violation of R.C. 2903.34. 

That section provides: 

{¶ 76} “(A) No person who owns, operates, or administers, or who is an agent or 

employee of, a care facility shall do any of the following: 

{¶ 77} “(1) Commit abuse against a resident or patient of the facility. 

{¶ 78} “Abuse” is defined in R.C. 2903.33(B): 

{¶ 79} “‘Abuse’ means knowingly causing physical harm or recklessly causing serious 

physical harm to a person by physical contact with the person or by the inappropriate use of a 

physical or chemical restraint, medication, or isolation on the person.” 

{¶ 80} “Physical harm” is defined in R.C. 2901.01(A)(3): 

{¶ 81} “‘Physical harm to persons’ means any injury, illness, or other physiological 

impairment, regardless of its gravity or duration.” 

{¶ 82} A sufficiency of the evidence argument challenges whether the State has 

presented adequate evidence on each element of the offense to allow the case to go to the jury 

or sustain the verdict as a matter of law. State v. Thompkins, (1997), 78 Ohio St.3d 380. 

The proper test to apply to such an inquiry is the one set forth in paragraph two of the syllabus 

of State v. Jenks (1991), 61 Ohio St.3d 259: 

{¶ 83} “An appellate court's function when reviewing the sufficiency of the evidence 

to support a criminal conviction is to examine the evidence admitted at trial to determine 

whether such evidence, if believed, would convince the average mind of the defendant's guilt 
14

beyond a reasonable doubt. 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.” 

{¶ 84} A weight of the evidence argument challenges the believability of the evidence 

and asks which of the competing inferences suggested by the evidence is more believable or 

persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App. No. 15563. The proper 

test to apply to that inquiry is the one set forth in State v. Martin (1983), 20 Ohio App.3d 172, 

175: 

{¶ 85} “The court, reviewing the entire record, weighs the evidence and all reasonable 

inferences, considers the credibility of witnesses and determines whether in resolving conflicts 

in the evidence, the jury lost its way and created such a manifest miscarriage of justice that the 

conviction must be reversed and a new trial ordered.” Accord: State v. Thompkins, 78 Ohio 

St.3d 380, 1997-Ohio-52. 

{¶ 86} The credibility of the witnesses and the weight to be given to their testimony 

are matters for the trier of facts to resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In 

State v. Lawson (August 22, 1997), Montgomery App. No. 16288, we observed: 

{¶ 87} “Because the factfinder . . . has the opportunity to see and hear the witnesses, 

the cautious exercise of the discretionary power of a court of appeals to find that a judgment is 

against the manifest weight of the evidence requires that substantial deference be extended to 

the factfinder’s determinations of credibility. The decision whether, and to what extent, to 

credit the testimony of particular witnesses is within the peculiar competence of the factfinder, 

who has seen and heard the witness.” 
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{¶ 88} This court will not substitute its judgment for that of the trier of facts on the 

issue of witness credibility unless it is patently apparent that the trier of facts lost its way in 

arriving at its verdict. State v. Bradley (Oct. 24, 1997), Champaign App. No. 97-CA-03. 

{¶ 89} Based upon the fact that an examination of the eighty year old victim by 

Director of Nursing Christy Smith failed to reveal any physical injuries, and none of the 

nursing assistants reported seeing any physical injuries on the victim, Defendant argues that 

the State failed to prove the physical harm element of patient abuse. 

{¶ 90} Melissa Rickman testified that Defendant was taunting Leet in an effort to 

make her angry. Defendant eventually coaxed Leet into the TV room. Rickman saw 

Defendant pull on Leet’s shirt, kick at Leet, hit Leet in the chest, and hit Leet in the face near 

an eye. Rickman also saw Defendant pull Leet’s hair. 

{¶ 91} Elizabeth Dudon testified that Defendant was trying to antagonize Leet. 

Defendant lured Leet into the TV room and then began kicking Leet’s wheelchair. Dudon 

also saw Defendant pull a wad of hair from Leet’s head, and punch Leet in the face. 

{¶ 92} After learning about the assault the next day, Director of Nursing Christy 

Smith examined Leet. Smith found strands of Leet’s hair on the back of her wheelchair. 

Smith viewed the surveillance videotape of the incident and turned it over to police. Smith 

fired Defendant for her assault on Leet, and fired Rickman and Dudon for watching the assault 

but doing nothing to stop it. 

{¶ 93} Defendant testified in her own defense and denied everything. Defendant 

denied taunting Leet, but the videotape contradicts that denial. Defendant claimed she was 

trying to get away from Leet who was coming at her in her wheelchair. The videotape shows 
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Defendant following Leet into the TV room and at times coming toward Leet. It also shows 

Defendant kicking at Leet’s wheelchair, which Defendant denied. Defendant claimed she 

directed Leet into the TV room because Leet’s aid was already there. But the video shows 

Leet enter the TV room first, followed closely by Defendant, and nobody else entering the 

room until after Defendant and Leet started to tussle. 

{¶ 94} Viewing this evidence in a light most favorable to the State, a rational trier of 

facts could find all of the elements of patient abuse proven beyond a reasonable doubt. 

Defendant’s conviction is supported by legally sufficient evidence. 

{¶ 95} The jury did not lose their way in this case simply because they chose to 

believe the State’s witnesses rather than Defendant, which they had a right to do. The 

credibility of the witnesses and the weight to be given to their testimony were matters for the 

trier of facts, the jury here, to decide. State v. DeHass, supra. 

{¶ 96} Reviewing this record as a whole, we cannot say that the evidence weighs 

heavily against a conviction, that the trier of facts lost its way in choosing to believe the 

State’s witnesses, or that a manifest miscarriage of justice has occurred. Defendant’s 

conviction is not against the manifest weight of the evidence. 

{¶ 97} Defendant’s fourth assignment of error is overruled. 

FIFTH ASSIGNMENT OF ERROR

{¶ 98} “THE CUMULATIVE EFFECT OF THE ERRORS OCCURRING AT TRIAL 

DEPRIVED APPELLANT OF A FAIR TRIAL.” 

{¶ 99} Defendant argues that due to the cumulative effect of the trial court’s multiple 

errors, she was denied a fair trial. State v. Demarco (1987), 31 Ohio St.3d 191. However, 
17

because Defendant has failed to demonstrate multiple errors committed by the trial court, the 

cumulative error doctrine is not applicable in this case. State v. Whitfield, Montgomery App 

No. 22432, 2009-Ohio-293. 

{¶ 100} Defendant’s fifth assignment of error is overruled. The judgment of 

the trial court will be affirmed. 

FROELICH, J. And BROGAN, J., concur. 

(Hon. James A. Brogan, retired from the Second District Court of Appeals, sitting by 

assignment of the Chief Justice of the Supreme Court of Ohio.) 

Copies mailed to: 

Andrew T. French, Esq. 

Ben Swift, Esq. 

Hon. Barbara P. Gorman, Presiding Judge