[Cite as State v. Shouse,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BROWN COUNTY

STATE OF OHIO, : CASE NO. CA2013-11-014 Plaintiff-Appellee, : OPINION : 10/20/2014 - vs - :

SCOTT E. SHOUSE, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS Case No. 20132162

Jessica A. Little, Brown County Prosecuting Attorney, Mary McMullen, 510 East State Street, Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee

Timothy J. Kelly, 108 South High Street, P.O. Box 467, Mt. Orab, Ohio 45154, for defendant- appellant

M. POWELL, J.

{¶ 1} Defendant-appellant, Scott Shouse, appeals his conviction in the Brown County

Court of Common Pleas for domestic violence.

{¶ 2} Appellant was indicted in July 2013 on one count of domestic violence, with a

specification he had two prior domestic violence convictions. The state alleged that on June

25, 2013, appellant punched his wife, Veronica Shouse, in the face, lacerating and fracturing Brown CA2013-11-014

her nose. A jury trial was held on October 28, 2013.

{¶ 3} At the beginning of voir dire, the trial court read the indictment to the

prospective jurors, including the specification of appellant's two prior domestic violence

convictions. The reading of the specification included the case number and date of

conviction for both prior domestic violence offenses. Thereafter, voir dire was conducted, a

jury was selected and sworn, and the trial court gave the jury preliminary instructions. Then,

just before opening statements, defense counsel stipulated to the two prior domestic violence

convictions outside the presence of the jury. As a remedy to the fact the specification was

read at the beginning of voir dire, the trial court offered to give the jury a limiting instruction.

Defense counsel agreed this was a satisfactory resolution of the issue and further waived any

objection to the issue. The trial court subsequently instructed the jury that certain stipulations

had been entered into and that the issue as to whether there were any prior convictions

would not be part of their deliberations.

{¶ 4} At trial, several witnesses testified on behalf of the state, including Veronica.

Appellant did not testify but Charles Brock, a lifelong friend of appellant, testified on

appellant's behalf. Veronica's 911 call, the recording of a telephone conversation between

appellant and Veronica when the former was in jail, and medical records from the Southwest

Regional Medical Center, where Veronica was transported following the incident, were

admitted into evidence. Defense counsel did not object to the admission of the medical

records.

{¶ 5} On October 28, 2013, the jury found appellant guilty of domestic violence. The

trial court sentenced appellant to 30 months in prison and to the 427 days remaining on his

post-release control from a 2012 domestic violence conviction, and ordered that the

sentences be served consecutively.

{¶ 6} Appellant appeals, raising four assignments of error. -2- Brown CA2013-11-014

{¶ 7} Assignment of Error No. 1:

{¶ 8} IT WAS PLAIN ERROR FOR THE TRIAL COURT TO MINIMALLY INSTRUCT

THE JURY THAT THEY SHOULD SIMPLY IGNORE THE INDICTMENT ALLEGATION

THAT APPELLANT HAD TWO PRIOR DOMESTIC VIOLENCE CONVICTIONS AFTER

DEFENSE COUNSEL STIPULATED TO THOSE CONVICTIONS.

{¶ 9} Appellant argues it was plain error for the trial court to only give a minimal

limiting instruction to the jury following defense counsel's stipulation to appellant's two prior

domestic violence convictions. Appellant asserts that given the trial court's detailed reading

of the specification to the jurors during voir dire and Veronica's equivocal testimony at trial,

the trial court's limiting jury instruction could not "un-ring" the prior convictions "bell," the jury

was impermissibly tainted, and thus, "the only cure within the trial court's discretion would 1 have been to grant a mistrial."

{¶ 10} At the outset, we note that appellant concedes he did not object to the trial

court's limiting jury instruction, thereby waiving all but plain error on appeal. State v. Morgan,

12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147,

. Pursuant

to Crim.R. 52(B), an alleged error constitutes plain error only if the error is obvious and but

for the error, the outcome of the trial clearly would have been different. State v. Blankenburg,

,

, ¶ 53 (12th Dist.), citing State v. Lang,

,

. Notice of plain error is to be taken with the utmost caution, under

exceptional circumstances, and only to prevent a manifest miscarriage of justice. Morgan at

{¶ 11} We also note appellant never moved for or was denied a mistrial. Appellant

1. According to appellant, Veronica's testimony was equivocal in part because when asked during her 911 call whether appellant had punched her in the face, Veronica told the operator, "I think he punched me. I don't know, it like happened so quickly. I just remember getting off of the bed and then, there was blood pouring all over the floor, all over the clothes, everywhere all over the bed and everything." -3- Brown CA2013-11-014

asserts the trial court should have sua sponte granted a mistrial and erred in failing to do so.

However, a mistrial should not be ordered in a criminal case merely because an error or

irregularity has occurred. State v. Zeune, 10th Dist. Franklin No. 10AP-1102, 2011-Ohio-

5170, ¶ 8. "Rather, a mistrial is appropriate only when the substantial rights of the accused

are adversely affected such that a fair trial is no longer possible."

"A trial court may grant

a mistrial sua sponte when there is manifest necessity for the mistrial or when the ends of

public justice would otherwise be defeated."

The determination of whether to grant a

mistrial is within the sound discretion of the trial court as it is in the best position to determine

whether the situation in the courtroom warrants the declaration of a mistrial. State v. Glover,

(1988).

{¶ 12} In the case at bar, the indictment and specification were read to the prospective

jurors at the very beginning of voir dire. Thereafter, voir dire was conducted, a jury was

selected and sworn, and the trial court gave the jury preliminary instructions. However, just

before opening statements, defense counsel stipulated to the two prior domestic violence

convictions outside the presence of the jury. As an agreed remedy to the fact the

specification was read at the beginning of voir dire, the trial court instructed the jury as

follows:

Ladies and gentlemen of the jury, during the recess, there were certain stipulations that had been entered into, by the parties, which at this point in time, will now no longer, or actually, I will take away from you, the issue as to whether or not there were any prior convictions, that will not be a part of your deliberations, in this matter. Can you all agree to not use that in any regard, in your deliberations, one way or the other?

The jurors all agreed to comply with the jury instruction. Nonetheless, the trial court again

asked: "Do you understand that that is not an issue before you. It is not to enter into your

deliberations in any regard; do you understand that?" The jurors all replied yes.

Subsequently, the trial court once again asked: "Can you all agree to do that?" Once again, -4- Brown CA2013-11-014

the jurors all agreed to comply with the jury instruction.

{¶ 13} "Curative instructions are presumed to be an effective way to remedy errors

that occur during trial." State v. Parker, 5th Dist. Stark No. 2013CA00217,

,

¶ 36, citing State v. Treesh,

(2001). A jury is presumed to follow and

comply with instructions given to them by the trial court. State v. Carpenter, 12th Dist. Butler

No. CA2005-11-494,

, citing Pang v. Minch,

(1990).

{¶ 14} We find that the limiting instruction given by the trial court was appropriate and

plainly instructed the jury not to consider appellant's prior domestic violence convictions

during its deliberations. Appellant asserts, however, that the trial court's minimal instruction

could not "un-ring" the reading of the specification. Appellant's position assumes that the

limiting instruction was ineffective and that the risk of prejudice from reading the specification

was too high for the instruction to negate it. However, we decline to make this assumption

because a jury is presumed to follow instructions given by the trial court. See State v.

Winston, 8th Dist. Cuyahoga No. 81436,

; State v. McKinney, 10th Dist.

Franklin No. 13AP-211,

. In addition, appellant could have moved for a

mistrial or for a more detailed limiting instruction but failed to do so.

{¶ 15} As is fully discussed in appellant's fourth assignment of error, Veronica's trial

testimony and the circumstantial evidence presented by the state clearly identified appellant

at the perpetrator. Given the ample evidence against appellant, the trial court's appropriate

limiting instruction, appellant's lack of request for further curative instructions, and the fact the

jury is presumed to follow instructions given by the trial court, we find no error, let alone plain

error, in the trial court's failure to sua sponte grant a mistrial.

{¶ 16} Appellant's first assignment of error is overruled.

{¶ 17} Assignment of Error No. 2:

{¶ 18} IT WAS PLAIN ERROR FOR THE TRIAL COURT TO ADMIT THE SOUTHEST -5- Brown CA2013-11-014

REGIONAL MEDICAL CENTER RECORDS INTO EVIDENCE WHEN THEY MADE

REPEATED REFERENCES TO THE VICTIM'S STATEMENTS THAT SHE HAD BEEN

ASSAULTED BY HER HUSBAND. [sic]

{¶ 19} Appellant argues it was plain error for the trial court to admit Exhibit 11, the

medical records from the Southwest Regional Medical Center where Veronica was

transported following the incident, because it contained five hearsay statements identifying 2 appellant as the perpetrator. The state asserts Exhibit 11 was properly admitted under

Evid.R. 803(4).

{¶ 20} Generally, "[t]he admissibility of relevant evidence rests within the sound

discretion of the trial court," and "absent an abuse of discretion, an appellate court will not

disturb a trial court's ruling as to the admissibility of evidence." State v. Kingery, 12th Dist.

Fayette No. CA2009-08-014,

, ¶ 25. Appellant concedes, however, that he

did not object to the admission of the medical records, thereby once again waiving all but

plain error on appeal. As noted previously, pursuant to Crim.R. 52(B), an alleged error

constitutes plain error only if the error is obvious and that but for the error, the outcome of the

trial clearly would have been different. Blankenburg,

at ¶ 53.

{¶ 21} Hearsay is "a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R.

801(C). Pursuant to Evid.R. 802, hearsay is not admissible unless the statement comes

under some exception to the hearsay rule. State v. Nixon, 12th Dist. Warren No. CA2011-

11-116,

, ¶ 13.

{¶ 22} Evid.R. 803(4) excepts from the hearsay rule "[s]tatements made for the

2. Exhibit 11, a 16-page document, contains the following statements: (1) "patient is status post assault;" (2) "complaint of assault by husband – struck by fist on face, nose;" (3) "involved in domestic altercation with husband; suffered blows to face and sustained a nasal laceration;" (4) "s/p assault by husband;" and (5) "Pt states she was assaulted by husband. 'He punched me in the face. I was in the bedroom and fell to the bed.'" -6- Brown CA2013-11-014

purposes of medical diagnosis or treatment and describing medical history, or past or present

symptoms, pain, or sensations, or the inception or general character of the cause or external

source thereof insofar as reasonably pertinent to diagnosis or treatment." "Absent some

evidence that the identity of the perpetrator is necessary for medical purposes, however,

statements identifying an assailant are not properly admitted pursuant to Evid.R. 803(4)."

Kingery,

at ¶ 34, citing State v. Smith, 8th Dist. Cuyahoga No. 90476, 2008-

Ohio-5985.

{¶ 23} We find that the admission of the medical records did not rise to plain error.

The first challenged statement did not identify a perpetrator, let alone appellant. While the

other four statements identified Veronica's husband as the perpetrator, and were thus

admitted in error, the statements were simply cumulative to her testimony at trial. See

Kingery (although statements in medical records identifying the defendant as the perpetrator

were admitted in error, error was harmless as statements were cumulative to the victim's

testimony). As is fully discussed in appellant's fourth assignment of error, Veronica's

testimony at trial and the circumstantial evidence presented by the state clearly identified

appellant as the perpetrator. Thus, there was ample evidence against appellant to sustain

the guilty verdict despite the admission of the unredacted medical records. See State v.

Houston, 1st Dist. Hamilton No. C-090536,

(finding that although a police

report not admitted into evidence was erroneously given to the jury as an exhibit, error was

harmless where police report contained information that was largely cumulative of other,

properly admitted evidence, and where properly admitted evidence amply demonstrated the

defendant's guilt). Appellant has therefore failed to show that the outcome of his trial clearly

would have been different but for the alleged error, and he cannot prevail on his plain error

claim.

{¶ 24} Appellant's second assignment of error is overruled. -7- Brown CA2013-11-014

{¶ 25} Assignment of Error No. 3:

{¶ 26} APPELLANT WAS NOT AFFORDED THE EFFECTIVE ASSISTANCE OF

TRIAL COUNSEL.

{¶ 27} Appellant argues his trial counsel was ineffective because he failed to (1)

stipulate to appellant's prior domestic violence convictions in a timely manner (that is, before

voir dire), (2) object to the trial court's minimal limiting jury instruction following appellant's

stipulation to his prior domestic violence convictions, and (3) object to or seek redaction of

the statements in the medical records identifying appellant as the perpetrator.

{¶ 28} In order to establish ineffective assistance of counsel, appellant must show that

his trial counsel's performance was both deficient and prejudicial. Strickland v. Washington,

,

(1984); State v. Bradley,

(1989). Deficiency exists where trial counsel's performance "fell below an objective standard

of reasonableness."

. Prejudice exists where there is a reasonable

probability that, but for his counsel's unprofessional errors, the outcome of the proceeding

would have been different.

.

{¶ 29} "A defendant's failure to satisfy one prong of the Strickland test negates a

court's need to consider the other." State v. Madrigal,

(2000); State

v. Gilbert, 12th Dist. Butler No. CA2010-09-240,

, ¶ 73. A reviewing court

"need not determine whether counsel's performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies." State v. White,

12th Dist. Butler No. CA2008-02-046,

, ¶ 32;

.

{¶ 30} After reviewing the record, we find that trial counsel's failure to earlier stipulate

to appellant's prior domestic violence convictions and object to the trial court's limiting

instruction following appellant's stipulation to his prior domestic violence convictions did not

create a reasonable probability that, but for counsel's errors, the outcome of the trial would -8- Brown CA2013-11-014

have been different. As we stated earlier, there was ample evidence against appellant to

sustain the guilty verdict. Further, the trial court's limiting instruction was appropriate and the

jury is presumed to follow jury instructions.

{¶ 31} Likewise, we find that trial counsel's failure to object to or seek redaction of the

statements in the medical records identifying appellant as the perpetrator did not create a

reasonable probability that, but for counsel's errors, the outcome of the trial would have been

different. Given Veronica's testimony at trial and the circumstantial evidence presented by

the state identifying appellant as the perpetrator, the disputed statements in the medical

records would have been cumulative evidence. See State v. Jeffries, 5th Dist. Stark No.

2005 CA 00128,

(trial counsel was not ineffective for failing to object to or

seek redaction of victim's medical records which identified defendant as the perpetrator

where disputed portion of medical records would have been cumulative evidence); Houston,

(defendant suffered no prejudice where there was ample evidence against

defendant to sustain guilty verdict despite the erroneously submitted police report to jury).

{¶ 32} Appellant's claim of ineffective assistance of trial counsel having failed under

the prejudice prong of the Strickland test, his third assignment of error is overruled.

{¶ 33} Assignment of Error No. 4:

{¶ 34} APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

{¶ 35} Appellant argues that given Veronica's equivocal testimony, the jury clearly lost

its way in finding him guilty of domestic violence. Appellant also asserts the jury was

necessarily swayed by the reading of the prior convictions specification and by the

unredacted medical records.

{¶ 36} In determining whether a conviction is against the manifest weight of the

evidence, this court, reviewing the entire record, must weigh the evidence and all reasonable -9- Brown CA2013-11-014

inferences, consider the credibility of the witnesses, and determine whether 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. Lang, 2011-Ohio-

4215 at ¶ 220. The discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction. State v.

Thompkins,

(1997).

{¶ 37} An appellate court will not reverse a judgment as against the manifest weight of

the evidence in a jury trial unless it unanimously disagrees with the jury's resolution of any

conflicting testimony. State v. Estes, 12th Dist. Warren No. CA2013-12-126, 2014-Ohio-

3295, ¶ 15. When reviewing the evidence, an appellate court must be mindful that the

original trier of fact was in the best position to judge the credibility of witnesses and the

weight to be given the evidence.

{¶ 38} Appellant was convicted of domestic violence in violation of R.C. 2919.25(A),

which prohibits any person from "knowingly caus[ing] or attempt [ing] to cause physical harm

to a family or household member."

{¶ 39} Appellant's assertion he was convicted of domestic violence because the jury

was swayed by the medical records and the reading of the specification is speculative. The

jury was instructed three times not to consider appellant's prior convictions in its

deliberations. The jury is presumed to follow the trial court's instructions. See Carpenter,

. Further, the information contained in the medical records, including the fact

that appellant was the perpetrator, was cumulative to Veronica's testimony at trial.

{¶ 40} Veronica testified that on the morning of June 25, 2013, she and appellant were

arguing "really bad" at their house and appellant told her to leave. Appellant was angry.

When Veronica told him she needed to go upstairs to get her cell phone, he told her "he was

gonna beat me up when he got me up there." Once in their bedroom (where her cell phone - 10 - Brown CA2013-11-014

was), Veronica leaned down to get her phone, appellant went to grab her, she "shrugged him

off" of her, and he lost his footing. She ended up on her back on the bed with appellant

above her, his right fist pulled back. Veronica "told him not to do it" and closed her eyes.

When she opened her eyes, "blood was everywhere" and "pouring out of [her] face," her

teeth hurt, and she had a really bad headache. Veronica testified appellant did not want her

to leave and kept telling her he was sorry. However, feeling angry and scared, Veronica

drove to her parents' house where she would feel safe. Once there, she called 911.

Veronica testified she "was in shock that he did it, and [she] was scared."

{¶ 41} The recording of the 911 call was played to the jury. Veronica told the 911

operator that her husband beat her and described the events leading to the incident.

Veronica's description of the events mirrored her trial testimony, including appellant's threat

he would beat her up once upstairs. Veronica told the operator that after she shrugged

appellant off during the scuffle, appellant attacked her. When asked by the operator whether

appellant had punched her in the face, Veronica replied: "I think he punched me. I don't

know, it like happened so quickly. I just remember getting off of the bed and then, there was

blood pouring all over the floor, all over the clothes, everywhere all over the bed and

everything."

{¶ 42} Following the 911 call, a police officer dispatched to Veronica's parents' home

took pictures of Veronica. One of the pictures showed Veronica with blood all over her face

and clothes. At trial, Veronica testified the blood came from "where I was punched in the

nose." The officer also took pictures of appellant after his arrest. One of the pictures

showed blood on appellant's shorts. Veronica testified the blood was hers. She further

testified she suffered a broken nose and a laceration on the bridge of her nose which were

caused "from where he punched me in the face."

{¶ 43} The recording of one of the numerous telephone calls appellant made to - 11 - Brown CA2013-11-014

Veronica despite the no-contact order, was played to the jury. During that telephone call,

appellant apologized for all the pain he put Veronica through, and told her (1) not to go to

court, (2) she would not get in trouble if she did not come to court, and (3) "you don't have to

go and I can go home."

{¶ 44} The police officer dispatched to the parents' home, a paramedic dispatched to

the home, and Veronica's mother testified that Veronica was shaky, nervous, upset, and

scared following the incident. The officer also testified that when he went to arrest appellant,

the latter was agitated, denied he hit Veronica, and told the officer Veronica was lying.

During the state's case in chief, the jury heard testimony that during her argument with

appellant, Veronica broke the glass top of a table out of anger.

{¶ 45} Charles Brock, appellant's lifelong friend, testified on behalf of appellant. Brock

testified that on the day of the incident, he was sleeping in a tent in appellant's backyard,

having been just released from prison. Upon hearing a commotion, Brock "went up to the

house, and Veronica come running out, screaming she was gonna call the law and say that

he hit her and lie and say he hit her." Brock acknowledged he did not see appellant hit

Veronica. It is undisputed no one witnessed what happened between appellant and Veronica

in the bedroom.

{¶ 46} After carefully reviewing the record, we find that the jury did not lose its way in

convicting appellant of domestic violence. Veronica testified at trial, and the state presented

circumstantial evidence that appellant punched her in the face, lacerating and fracturing her

nose. There was no suggestion or contrary explanation that she could have sustained these

injuries in some other way. We decline to overturn the verdict because the jury did not

believe testimony presented on appellant's behalf. "When conflicting evidence is presented

at trial, a conviction is not against the manifest weight of the evidence simply because the

jury believed the prosecution testimony." State v. Davis, 12th Dist. Butler No. CA2010-06- - 12 - Brown CA2013-11-014

143,

, ¶ 43. As the trier of fact in this case, the jury was in the best position

to judge the credibility of witnesses and the weight to be given the evidence. Estes, 2014-

Ohio-3295 at ¶ 15. The jury was thus free to accept or reject any or all of appellant's

evidence. Davis at

Appellant's conviction for domestic violence is not against the

manifest weight of the evidence.

{¶ 47} Appellant's fourth assignment of error is overruled.

{¶ 48} Judgment affirmed.

HENDRICKSON, P.J., and S. POWELL, J., concur.

- 13 -