[Cite as State v. Kennedy, 2022-Ohio-3369.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

- v -

JENNIFER CAMILLE KENNEDY,

Defendant-Appellant.

CASE NO. 2021-A-0030

Criminal Appeal from the

Court of Common Pleas

Trial Court No. 2021 CR 00187

O P I N I O N

Decided: September 26, 2022

Judgment: Reversed; remanded

Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant 

Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

Robert N. Farinacci, 65 North Lake Street, Madison, OH 44057 (For DefendantAppellant).

THOMAS R. WRIGHT, P.J.

{¶1} Appellant, Jennifer Camille Kennedy, appeals the sentencing entry issued 

following a jury trial through which she was found guilty of one count of patient abuse. 

We reverse and remand.

{¶2} In 2021, the Ashtabula County Grand Jury indicted Kennedy on one count

of patient abuse, a fourth-degree felony, in violation of R.C. 2903.34(A)(1) and 

2903.34(C). The charge stemmed from an allegation that Kennedy struck a resident of a 

care facility where Kennedy was employed.
2

Case No. 2021-A-0030

{¶3} Kennedy pleaded not guilty, and the matter proceeded to jury trial. At trial, 

the state presented the testimony of Kennedy’s former coworkers; the facility’s director of 

nursing, assistant director of nursing, and administrator; and a special agent for the Ohio 

Attorney General’s Office. A summary of the elicited testimony follows.

{¶4} One of Kennedy’s former coworkers, Skylar Darby, testified that she is a 

state tested nurse aide (“STNA”) and was employed at the facility for approximately one 

month prior to the incident. On the morning of October 28, 2019, at the end of her 

overnight shift, Darby was dressing an elderly female resident (“the patient”) who suffers 

from dementia and had been in a combative mood. As the shifts were changing at 

approximately 6:30 a.m., Kennedy requested a walkie-talkie to use to begin work. Darby

told her that she was in the patient’s room finishing her shift, and Kennedy could come 

assist her with the patient and then take Darby’s walkie-talkie. When Kennedy arrived in 

the room, the patient again became agitated. When Kennedy and Darby attempted to 

stand the patient, she resisted by sitting back down, and she did not want to be touched. 

At some point, Kennedy and Darby were able to stand the patient up long enough to finish 

dressing her and transfer her to a chair. After sitting the patient down, the patient spit in 

Kennedy’s face. Kennedy immediately backhanded the patient across the cheek and 

mouth area. The patient called Kennedy a “f***ing b*tch,” and Kennedy responded, “that’s 

f***ing nasty.” The patient then spit on Kennedy a second time, and Kennedy again 

backhanded her across the cheek and mouth area and said, “[Y]ou don’t spit in people’s 

faces.” After they left the room, Darby reported the incident to another coworker, 

Courtney Coffman, and then to the director of nursing and facility administration. On 
3

Case No. 2021-A-0030

cross-examination, Darby indicated that the slaps were hard enough to leave a red mark 

on the patient’s face, but not so hard as to force the patient’s head to turn.

{¶5} Coffman testified that she is also an STNA and was working the same shift 

as Darby on the morning at issue. At about 7:00 that morning, Coffman saw Darby in 

the hallway of the facility, and Darby was visibly upset. Darby told Coffman what she had 

observed, and Coffman informed her to report the incident to the director of nursing, Gina 

Gruey. Darby called Gruey, and Coffman observed that while Darby was speaking, her

voice was shaky, and she appeared pale. 

{¶6} Gruey, a registered nurse, testified that when Darby called her, she 

sounded distraught. Gruey directed Darby to return to the building and report the incident 

to the charge nurse. Gruey characterized the patient’s dementia as severe with 

behavioral disturbances. She maintained that she had interacted with the patient on 

numerous occasions, and the patient demonstrated an inability to recollect events. On 

cross-examination, Gruey indicated that she saw the patient on the morning at issue at 

approximately 8:00 or 8:30, and she did not see any bruising, redness, or swelling on the 

patient’s face.

{¶7} The assistant director of nursing, Katelyn Hosler, a trained wound care 

nurse, testified that when she arrived at the facility between 8:00 and 8:20 on the morning 

at issue, she was informed of the incident and conducted a skin assessment on the patient

for wounds. Hosler did not observe any injury to the patient. On cross-examination, 

Hosler indicated that the staff continued to check on the patient for signs of injury on the 

date of the incident and the day after; however, no surface signs of injury developed.
4

Case No. 2021-A-0030

{¶8} The administrator of the facility, Arkadiy Koltsov, testified that Darby was 

upset when reporting the incident to him. After speaking with Kennedy, a decision was 

made to terminate her employment. Koltsov indicated that the patient had a history of 

violent behaviors and had been diagnosed with dementia, persistent aggressive disorder, 

and depressive disorder. On cross-examination, Koltsov stated that he observed the 

patient at approximately 8:15 on the morning at issue, and he did not see any signs of 

injury to the patient. 

{¶9} Debra Gearhiser, a special agent for the Ohio Attorney General’s Office, 

testified that she investigates allegations of patient abuse. Here, Gearhiser affirmed that 

after her investigation, she compiled a referral for prosecution. On cross-examination, 

Gearhiser affirmed that she had not seen any pictures of injuries to the patient or any 

indication that the patient had complained of pain or discomfort.

{¶10} On behalf of the defense, Kennedy and Nicole Allen, her former coworker,

testified. Kennedy testified that she has been an STNA for over 15 years, and she worked 

at the facility at issue for over six years. On the morning at issue, Kennedy clocked in for 

work at 6:30. The facility was short on walkie-talkies that morning, and Kennedy used 

another nurse’s walkie-talkie to ask the third shift nurses for one she could borrow for the 

day. Darby informed Kennedy that she could use hers and to come to the patient’s room 

to retrieve it. Kennedy had provided care to the patient many times, as she was often 

assigned to the patient’s floor. When Kennedy arrived at the room, Darby had the patient 

fully dressed from the waist up and had a brief and pants around the patient’s ankles

ready to be pulled up. Kennedy then assisted Darby in finishing the patient’s care, and 

the patient became agitated, which was typical for this patient, who did not like to be 
5

Case No. 2021-A-0030

touched. After they sat the patient back down, the patient began smacking with her 

hands, and Kennedy took the patient’s hands and held them in the patient’s lap. At that 

point, the patient twice spit on Kennedy. After the first time, Kennedy told the victim that 

“was f***ing nasty,” but she did not physically react to the patient. The patient then began 

calling her names and said she was going to spit on Kennedy again. Kennedy put one

hand in front of her face, but she did not extend her hand out or come into contact with 

the patient with her hand. After the patient spit on her the second time, Kennedy left the 

room, cleaned the spit off of her glasses, and began her shift. Less than a half-hour later, 

Kennedy received a call to come to the nurse’s station. When she did, she was instructed 

to immediately leave the facility. Kennedy became upset when she learned of the 

allegations against her. Kennedy testified that she did not strike the patient either 

purposefully or by mistake. Kennedy further testified that an incident occurred prior to the 

incident at issue where Darby had neglected a patient, and Kennedy was blamed for that

incident. 

{¶11} On cross-examination, Kennedy identified a written statement that she had 

made on the day of the incident at issue. In the statement, Kennedy acknowledged that 

she had written that both she and the patient were wailing their arms. On redirect, 

Kennedy maintained that she was frustrated and upset when she wrote the statement, 

and she had only about five minutes available to write the statement. 

{¶12} Allen testified that she is an STNA that worked with Kennedy nearly every 

day. Allen maintained that Kennedy was “one of the best” at the facility. On crossexamination, Allen affirmed that she did not have any knowledge regarding the incident 

at issue until Kennedy’s attorney informed her of the charges against her.
6

Case No. 2021-A-0030

{¶13} The jury found Kennedy guilty on the sole count, and the trial court set the 

matter for sentencing. At sentencing, the court imposed five years of community control 

and sixty days of confinement. 

{¶14} In her three assigned errors, Kennedy argues: 

{¶15} “[1.] The Trial Court committed reversible error by permitting lay witnesses 

to provide their opinions as to the Defendant’s guilt or innocence to the Jury and by 

allowing extensive testimony by each to support the validity of their ultimate conclusions 

of guilt.”

{¶16} “[2.] The Trial Court committed prejudicial error by permitting the 

introduction of witness testimony that was hearsay, irrelevant, prohibitively prejudicial or 

the product of leading questions the volume of which were so pervasive as to deprive the 

Defendant of a fair trial.”

{¶17} “[3.] The Trial Court erred to the prejudice of the Defendant in permitting 

lay witnesses to offer opinion testimony, as if testifying as an Expert, on a central issue 

of guilt or innocence. R.Evid. 16(K).”

{¶18} We first note that several of the challenges that Kennedy raises in her three 

assigned errors pertain to admission of specific portions of testimony and leading 

questions by the state to which defense counsel did not object. Accordingly, to that 

extent, Kennedy’s arguments were forfeited for purposes of appeal, save for plain error

review. See State v. Fecko, 11th Dist. Trumbull No. 2021-T-0021, 2022-Ohio-1277, ¶ 36. 

However, as we find admission of certain testimony to which objections were raised 

constitutes reversible error, we need not address the remaining challenges, whether or 

not forfeited, as they are rendered moot. See App.R. 12(A)(1)(c).
7

Case No. 2021-A-0030

{¶19} In her first assigned error, Kennedy maintains that the state’s witnesses 

impermissibly provided opinion testimony as to Kennedy’s guilt and Darby’s veracity. 

{¶20} Pursuant to the Rules of Evidence, relevant evidence is generally 

admissible, and irrelevant evidence is inadmissible. Evid.R. 402. “‘Relevant evidence’

means evidence having any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it 

would be without the evidence.” Evid. R. 401. Pursuant to Evid.R. 701, “If the witness 

is not testifying as an expert, the witness’ testimony in the form of opinions or inferences 

is limited to those opinions or inferences which are (1) rationally based on the perception 

of the witness and (2) helpful to a clear understanding of the witness’ testimony or the 

determination of a fact in issue.” However, “‘“it is the fact finder, not the so-called expert 

or lay witnesses, who bears the burden of assessing the credibility and veracity of 

witnesses.”’” State v. Alex, 11th Dist. Ashtabula No. 2016-A-0055, 2017-Ohio-8527, ¶ 

25, quoting State v. Boston, 46 Ohio St.3d 108, 129, 545 N.E.2d 1220 (1989), overruled, 

in part, on other grounds by State v. Dever, 64 Ohio St.3d 401, 596 N.E.2d 436 (1992), 

quoting State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988) (Brown, J., 

concurring). Accordingly, witnesses are not permitted to offer opinions on the truthfulness 

of other witnesses. State v. Bowden, 11th Dist. Ashtabula No. 2013-A-0040, 2014-Ohio158, ¶ 43, citing State v. Bajaj, 7th Dist. Columbiana No. 03CO 16, 2005-Ohio-2931, ¶ 72 

and State v. Kovac, 150 Ohio App.3d 676, 2002-Ohio-6784, 782 N.E.2d 1185, ¶ 43 (2d 

Dist.). “The state elicits such opinion evidence at its peril, particularly where the evidence 

essentially involves a credibility contest and significant independent evidence of the 
8

Case No. 2021-A-0030

offenses * * * is lacking.” State v. Miller, 2d Dist. Montgomery No. 18102, 2001 WL 62793, 

*7 (June 26, 2001).

{¶21} As indicated in our summary of the testimony, the trial focused primarily on 

the credibility of Darby and Kennedy as to their accounts of the incident. The parties 

agree that the patient was unable to competently relay information regarding the incident 

due to her conditions. It is further undisputed that no physical evidence of injury to the 

patient was discovered aside from Darby’s testimony that the slaps left a red mark on the 

patient’s face. 

{¶22} At the end of the direct examination of Gruey, the state questioned her as 

follows:

Q. And based on all the knowledge that you have, did you 

have any reason not to believe Ms. Darby?

MR. LOFTUS: Objection.

THE COURT: One moment. Overruled. 

BY [THE STATE]:

Q. You can answer.

A. Can you repeat the question?

Q. Absolutely. With all of the knowledge that you have, did 

you have any reason not to believe Ms. Darby?

A. No.

{¶23} On redirect examination of Gruey, the following exchange 

occurred:

Q. Ms. Gruey, were you part of the decision process to let 

Ms. Kennedy go?

A. Yes.
9

Case No. 2021-A-0030

Q. And knowing all that you know about that incident, the one 

we’re here for today, are you comfortable with that decision?

[DEFENSE COUNSEL]: Objection.

THE COURT: Overruled.

BY [THE STATE]:

Q. You can answer.

A. Yes.

{¶24} These questions impermissibly infringed upon the province of the jury to 

determine the truthfulness of witnesses and were therefore improper. See State v. Lentz, 

6th Dist. Erie No. E-91-58, 1993 WL 241679, *7 (June 30, 1993) (if objection had been 

raised to question of whether witness had reason to believe officers were lying, then the 

testimony would not have been admissible); Miller, 2001 WL 62793, at *6 (“police officers’

testimonies * * * were in direct violation of Boston because they offered an opinion as to 

the truth of [victim’s] accusations”).

{¶25} Further, Kennedy challenges portions of Gearhiser’s testimony. After 

Gearhiser testified as to her role in investigating crimes against nursing home residents 

as an agent in the patient and abuse section of the Ohio Attorney General’s Office, the 

following exchange occurred:

Q. And approximately, your best guess, in a given year, how 

many cases come into your office?

A. Well, this case occurred in 2019, and during that year, um 

– well, in general, on an annual basis we probably get a 

thousand complaints in general to our office; at least a 

thousand complaints.

Q. And in 2019, do you know how many specific abuse and 

neglect complaints you received?
10

Case No. 2021-A-0030

A. Abuse and neglect complaints, we received approximately 

224 or 225 complaints. 

Q. And of those 225ish, how many were actually opened and 

investigated?

[DEFENSE COUNSEL]: Objection.

THE COURT: Overruled.

A. Approximately 114.

Q. And of that 114, how many got to the stage of referring for 

prosecution?

[DEFENSE COUNSEL]: Objection.

THE COURT: Overruled.

A. 14 for that particular year.

Q. And this would be one of them?

A. Yes.

{¶26} Assuming, without deciding, that the investigative methods and procedures 

that Gearhiser employed in this case were relevant, we cannot discern a proper relevant 

purpose for the testimony regarding the particular numbers of cases winnowing from 

those reported to the Attorney General’s Office, to those investigated, and then to those

referred for prosecution. See Evid.R. 401. The only basis that this court can discern for 

evidence of the rarity with which the Attorney General’s Office refers these complaints for 

prosecution is to improperly bolster Darby’s credibility through statistics that did not 

pertain to a fact at issue in this case. Accordingly, the trial court erroneously overruled 

Kennedy’s objections to this testimony.
11

Case No. 2021-A-0030

{¶27} However, having concluded that the trial court erroneous overruled defense 

counsel’s objections to the questions posed to Gruey and Gearhiser does not end our 

inquiry, as we must further determine whether admission of this testimony was harmless. 

Crim.R. 52(A) defines harmless error in the context of criminal 

cases and provides: “Any error, defect, irregularity, or 

variance which does not affect substantial rights shall be 

disregarded.” During a harmless-error inquiry, the state has 

the burden of proving that the error did not affect the 

substantial rights of the defendant. State v. Perry, 101 Ohio 

St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15. 

Furthermore, if there is “a ‘[d]eviation from a legal rule,’” courts 

undertake a “‘harmless error’ inquiry—to determine whether 

the error ‘affect[ed] substantial rights’ of the criminal 

defendant.” State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio2761, 789 N.E.2d 222, ¶ 7, quoting United States v. Olano, 

507 U.S. 725, 732–733, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 

(1993). The term “substantial rights” has been interpreted to 

require that “‘the error must have been prejudicial.’ (Emphasis 

added.)” Id., quoting Olano at 734 * * *[.] If a court determines 

that the error did not affect the defendant’s substantial rights, 

then the error is harmless and “‘shall be discarded.’” Id., 

quoting Crim.R. 52(A).

State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 23. In Morris, 

the Supreme Court of Ohio identified three steps in determining whether an error is 

harmless pursuant to Crim.R. 52(A). “First, there must be prejudice to the defendant as 

a result of the admission of the improper evidence at trial.” Id. at ¶ 27. “Second, an 

appellate court must declare a belief that the error was not harmless beyond a reasonable 

doubt.” (Citations omitted.) Id. at ¶ 28. “Third, in determining whether a new trial is 

required or the error is harmless beyond a reasonable doubt, the court must excise the 

improper evidence from the record and then look to the remaining evidence.” Id. at ¶ 29.

“‘“[T]he cases where imposition of harmless error is appropriate must involve either 

overwhelming evidence of guilt or some other indicia that the error did not contribute to 
12

Case No. 2021-A-0030

the conviction.”’” Id., quoting State v. Rahman, 23 Ohio St.3d 146, 151, 492 N.E.2d 401 

(1986), quoting State v. Ferguson, 5 Ohio St.3d 160, 166, 450 N.E.2d 265 (1983), fn. 5. 

When reviewing the remaining evidence, the reviewing court’s role “‘is not to sit as the 

supreme trier of fact, but rather to assess the impact of this erroneously admitted 

testimony on the jury.’” Morris at ¶ 29, quoting Rahman at 151, fn. 4.

{¶28} Here, Gruey’s statements that she had no reason to disbelieve Darby and 

that she was comfortable with the decision to terminate Kennedy’s employment were 

prejudicial to Kennedy, as the statements of Darby and Kennedy were inconsistent on the 

central issue of whether Kennedy slapped the patient. Further, Gruey was in a position 

of authority at the care facility that employed both Darby and Kennedy, allowing an 

inference that her position and familiarity with these individuals provided her with superior 

assessment of their veracity. Although we cannot say that the outcome would have 

necessarily been different if not for Gruey’s and Gearhiser’s challenged testimony, this is 

not a case where there was overwhelming evidence of guilt or other indicia that the 

challenged testimony did not contribute to the conviction, as the primary issue pertained 

to the credibility of Darby and Kennedy. Accordingly, admission of the testimony was not

harmless beyond a reasonable doubt, and Kennedy’s conviction must be reversed on this 

issue alone. Consequently, to this extent, Kennedy’s first assigned error has merit. 

{¶29} Having found reversible error regarding this aspect of Kennedy’s first 

assigned error, we do not further address the remaining challenges presented on appeal, 

as they have been rendered moot. 
13

Case No. 2021-A-0030

{¶30} The judgment is reversed, and the matter is remanded for further 

proceedings consistent with this opinion.

CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.