[Cite as State v. Evick,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2018-03-016

- vs - : OPINION 7/8/2019 JASON TODD EVICK, :

Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2017 CR 000191

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee

Craig A. Newburger, 477 Forest Edge Drive, South Lebanon, Ohio 45065, for appellant

HENDRICKSON, P.J.

{¶ 1} Appellant, Jason Todd Evick, appeals his convictions in the Clermont County

Court of Common Pleas for domestic violence and abduction. For the reasons stated below,

this court affirms his convictions.

{¶ 2} In early January 2017, a woman (the "victim") used the social media website

Facebook to request a ride home from work from her network of online "friends." Appellant

responded to the request and offered to drive her home. The victim accepted. As a result of

this meeting, appellant and the victim became romantically involved. Their relationship

continued for the next two and a half months. Initially, the two lived at the victim's step- Clermont CA2018-03-016

father's house. However, they eventually had to leave her step-father's residence and find

other accommodations. While staying with friends or at hotel rooms, appellant and the victim

continued to live together. The two eventually "settled" at a small campground style trailer

park in Clinton County, Ohio.

{¶ 3} According to the victim, throughout their relationship, appellant would physically

and mentally abuse her by kicking and punching her, threatening her, and otherwise exerting

control over her. At one point, appellant told her that he could get away with murder because

he could easily dispose of a body in a pond located on his friend's land. Additionally,

appellant told the victim he was familiar with the smell of burning skin.

{¶ 4} In mid-March 2017, the victim asked appellant to take her to the hospital.

Appellant ostensibly agreed and drove the victim into Clermont County. While on their

journey, appellant decided to make two unrelated stops, one at his mother's house and the

other at his mother's boyfriend's workplace. After the last stop, the two proceeded again to

drive around Clermont County. When appellant exited the interstate highway in Miami

Township the victim suspected that appellant was not taking her to the hospital, but was

instead heading to his friend's property with the pond. At that point, the victim asked

appellant where they were going and why they exited from the highway. Instead of

answering, appellant punched the victim in the head.

{¶ 5} As the car came to a stop at a traffic signal, the victim, fearing for her safety,

fled from appellant's vehicle and ran into a nearby IHOP restaurant. Upon entering the

restaurant, she attempted to hide behind one of the hostesses. Another IHOP employee

then brought the victim to the back of the restaurant and provided her with a cellular

telephone to call 911 – which she did. During this time, appellant came into the restaurant to

look for the victim, but quickly left. Law enforcement and emergency medical services

subsequently arrived on scene. -2- Clermont CA2018-03-016

{¶ 6} In addition to the victim's testimony, two of the IHOP employees testified about

their interactions with the victim. They both testified the victim appeared afraid and that her

face was red and swollen. Moreover, the responding police officer and emergency medical

technicians also testified about the victim's physical injuries, as well as her anxious and

fearful demeanor. Finally, the prosecutor presented, and had admitted into evidence, IHOP's

surveillance video showing the victim enter the restaurant, the victim's 911 call, and

photographs of the victim's injuries.

{¶ 7} Appellant was indicted for domestic violence and abduction, both charged as

third-degree felonies. A jury found appellant guilty of both offenses and the trial court

sentenced appellant to prison.

{¶ 8} Appellant now appeals his conviction, raising four assignments of error.

{¶ 9} Assignment of Error No. 1:

{¶ 10} THE TRIAL COURT ERRED BY ADMITTING OTHER BAD ACTS EVIDENCE

AND IMPROPERLY INSTRUCTING JURY ABOUT SAID ACTS.

{¶ 11} In his first assignment of error, appellant contends the trial court abused its

discretion by allowing the victim to testify to several past instances of physical and sexual

abuse because the testimony was not admissible under Evid.R. 404(B) and was unfairly

prejudicial. Further, appellant argues the trial court erred because the jury instructions on

this evidence differed from the court's evidentiary ruling.

{¶ 12} A trial court has broad discretion to admit or exclude evidence. State v. Hines,

12th Dist. Clermont CA2017-06-025,

. As such, a reviewing court will

not disturb that decision absent an abuse of discretion that creates material prejudice. State

v. Diar,

,

, ¶ 66; accord State v. Martin, 12th Dist. Butler

No. CA2007-01-022,

. An abuse of discretion is more than an error of

judgment or law, it signifies that the trial court's decision was unreasonable, arbitrary, or -3- Clermont CA2018-03-016

unconscionable. State v. Bennett, 12th Dist. Butler No. CA2017-09-138,

.

{¶ 13} Evidence of an accused's other acts, wrongs, or crimes is not admissible when

the sole purpose of that evidence is to prove the accused has a propensity to commit crime

or has acted in conformity with his or her bad character. State v. Hignite, 12th Dist. Warren

No. CA2015-07-063,

; accord State v. Kirkland,

,

. However, pursuant to Evid.R. 404(B) and R.C. 2945.59, evidence of

those "other acts" is admissible if there is substantial proof the acts were committed by the

accused and "the evidence tends to prove motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident." State v. Lowe,

(1994). Moreover, Evid.R. 404(B) does not limit the "other purposes" to those outlined in

the rule. State v. Williams,

,

.

{¶ 14} In Williams, the Ohio Supreme Court created a three-part test a trial court must

conduct when determining whether the evidence of other acts is admissible. State v. Tench,

Slip Opinion No.

, citing

. First, the court must decide

whether the other acts evidence is relevant, that is, "whether the evidence tends to make the

existence of any fact of consequence to the determination of the action more or less

probable than it would be without the evidence."

Second, the court must decide if the

evidence is used for a "legitimate other purpose" or merely to show the character of the

person and conduct in conformity to that character.

Third, the court must decide

"whether the probative value of the evidence is substantially outweighed by the danger of

unfair prejudice" pursuant to Evid.R. 403.

{¶ 15} In this case, the state charged appellant with abduction in violation of R.C.

2905.02(A)(2). Therefore, the state had to prove appellant knowingly used force or threats to

restrain the liberty of the victim under circumstances that created "a risk of physical harm to -4- Clermont CA2018-03-016

the victim" or placed "the victim in fear." (Emphasis added.) R.C. 2905.02(A)(2).

{¶ 16} At trial, the victim testified both generally and specifically to other acts and

wrongs that appellant perpetrated against her. In general, the victim testified that over the

course of their relationship, appellant had frequently physically abused her and otherwise

threatened serious violence against her. She testified that the attacks not only consisted of

punches and kicks, but also choking. The victim recalled, at one point, appellant choked her

near the point of unconsciousness.

{¶ 17} Specifically, the victim testified that when the two moved to the trailer park

appellant's attacks against her escalated. Shortly after moving there, appellant accused the

victim of engaging in sexual intercourse with another man at the trailer park. Appellant then

forced the victim to remove her pants and shoes and digitally penetrated her. After removing

his hand, appellant smelled his fingers. At another point, the victim attempted to treat a cut

on her hand by going to the campground bathroom, when appellant suddenly appeared and

kicked and punched her. A few days before the instant offenses, appellant asked the victim

to perform oral sex. The victim refused. In retaliation, appellant pinned the victim to the bed

with his knees and ejaculated on her face. In the victim's struggle to get free from appellant,

she dislocated her shoulder. At some point, appellant also broke the victim's tailbone.

{¶ 18} Because of those serious injuries, the victim asked appellant to drive her to the

hospital. Appellant relented and drove her to a nearby hospital, but ordered the victim to lie

to the medical staff about the cause of her injuries. In addition to the physical attacks, as

noted above, the victim testified that at different points in their relationship appellant would

threaten to kill her and would explain how he could get away with murder because he could

dispose of her body in a pond on his friend's property. The victim testified that she had been

to appellant's friend's property, so she knew its whereabouts and how to get there. Finally,

the victim testified that the reason she asked to again go to the hospital on the day of the -5- Clermont CA2018-03-016

offenses was appellant had kicked her in the ribs and lower back earlier that morning and

she had trouble breathing.

{¶ 19} After reviewing the record, this court finds it was not an abuse of discretion to

admit the other acts evidence. First, the victim's testimony of the prior attacks constituted

substantial proof that appellant committed these "other acts." State v. Ward, 12th Dist.

Clermont No. CA2013-07-059,

(a victim's testimony alone can

constitute substantial proof of the other acts).

{¶ 20} Second, using the Williams test, the testimony was relevant to the instant

offenses, was used for a legitimate purpose pursuant to Evid.R. 404(B), and was not unfairly

prejudicial. It provided context into why the victim feared appellant and decided to flee from

the vehicle. This court has previously held that in the context of a domestic violence trial,

evidence of the offender's prior acts of violence against the same victim are "'highly probative

in establishing the victim's belief of impending harm.'" State v. Binks, 12th Dist. Butler No.

CA2017-08-118,

, quoting State v. Rhoads, 12th Dist. Clermont No.

CA2012-05-040,

; see also State v. Thomas, 12th Dist. Butler No.

CA2008-08-197,

, ¶ 16 (a victim's state of fear is an element of an abduction

offense, therefore evidence of prior criminal actions is relevant).

{¶ 21} In this case, the evidence of past violence showed that the victim had a

legitimate reason to fear appellant. Appellant's threats to kill the victim and dispose of her

body in a specific manner were necessary to show the jury that he placed the victim in fear or

otherwise created a risk of physical harm to the victim. Moreover, these "other acts"

establish that when appellant exited the highway the victim believed appellant was no longer

taking her to the hospital but was instead going to his friend's property. Therefore, the

evidence of the past threats and violence was important to establish the victim's fear of

appellant. Consequently, such evidence was used for a legitimate purpose under Evid.R. -6- Clermont CA2018-03-016

404(B) and not as character evidence.

{¶ 22} Furthermore, the evidence was not unfairly prejudicial. Under Evid.R. 403(A),

the trial court must exclude evidence when the danger of unfair prejudice substantially

outweighs the probative value. As noted above, the prior acts are highly probative of the

victim's fear. Moreover, there is no undue prejudice. The trial court properly instructed the

jury that the evidence was not to be considered to show appellant's character or that he

acted in conformity with his character. See State v. Mills, 12th Dist. Clermont No. CA2015-

12-101,

(a trial court minimizes potential prejudice by providing limiting

instructions at the time the evidence is offered and before deliberation). An appellate court

presumes the jury followed the court's limiting instructions. Hines,

.

Consequently, the trial court did not abuse its discretion admitting this evidence because it

was not unfairly prejudicial.

{¶ 23} Next, appellant argues the trial court erred because it improperly instructed the

jury on how to consider the other acts evidence. Specifically, appellant argues the trial court

ruled that the evidence was admissible for the purpose of considering the victim's state of

mind, but instructed the jury to consider the evidence for the defendant's state of mind.

{¶ 24} Appellant did not object to the limiting instructions at the time they were given

by the trial court. A failure to object to jury instructions waives all but plain error review.1

1. Appellant implied in his brief that the assigned error amounted to structural error. A reviewing court presumes that any constitutional errors are subject to a harmless error analysis if the defendant was represented by counsel and tried by an impartial adjudicator. State v. Wamsley,

,

, ¶ 16. A structural error is a constitutional defect that affects the whole framework of the trial, such that the trial is not a reliable vehicle for determining guilt or innocence. State v. Perry,

,

, ¶ 17. In the context of jury instructions, a structural error analysis is applicable when a trial court misdefines the state's burden of proof, i.e. reasonable doubt, because that error vitiates all of the jury's findings. State v. Wilks,

,

, citing Sullivan v. Louisiana,

,

(1993). The Wamsley court held that a plain error analysis was proper even though the trial court failed to instruct the jury on the requisite mental state and elements of the offense because the improper instruction did not undermine the framework of the trial.

at ¶ 24. Following Wamsley and Wilks, this court will apply a plain error analysis to the case at bar because the jury instructions did not render the trial fundamentally unfair or otherwise vitiate all of the jury's findings. -7- Clermont CA2018-03-016

State v. Taylor,

(1997); see also State v. Barnes,

(2002). To constitute plain error there must be a deviation from a legal rule.

.

Second, the error must be fundamental, palpable, and obvious on the record such that it

should have been apparent to the court without an objection. State v. Barnette, 12th Dist.

Butler No. CA2012-05-099,

. Third, the error must have affected

appellant's substantial rights, i.e. the error affected the outcome of the trial.

.

An appellate court will take notice of plain error with "utmost caution, under exceptional

circumstances, and only to prevent a manifest miscarriage of justice." State v. Baldev, 12th

Dist. Butler No. CA2004-05-106,

.

{¶ 25} When reviewing jury instructions, an appellate court reviews the instructions as

a whole. State v. Johnson, 12th Dist. Warren No. CA2015-09-086,

.

If the instructions fairly and correctly state the law applicable to the evidence at trial, a

reviewing court will not find reversible error merely on the possibility the jury may have been

misled.

After reviewing the jury instructions, this court finds no plain error. The trial court

properly instructed the jury not to consider the evidence for the purpose of appellant's

character or that appellant acted in conformity with that character. Furthermore, instructing

the jury to consider the evidence for purposes of the defendant's mental state is within the

legitimate purposes of Evid.R. 404(B) and R.C. 2945.59, since both the rule and the statute

allow "other acts" evidence to prove an offender's motive, plan, or scheme. Hines, 2018-

Ohio-1780 at ¶ 52-54. Therefore, it was proper for the jury to consider this evidence for the

purpose of considering appellant's motive or scheme in taking the detour off the highway and

otherwise not delivering the victim to a hospital.

{¶ 26} Accordingly, the trial court did not abuse its discretion by admitting the other

acts evidence and the provided jury instructions did not constitute plain error. Appellant's first

assignment of error is overruled. -8- Clermont CA2018-03-016

{¶ 27} Assignment of Error No. 2:

{¶ 28} THE TRIAL COURT ERRED BY GRANTING STATE'S MOTION IN LIMINE.

{¶ 29} Next, appellant argues that the trial court erred when it granted the prosecutor's

motion in limine and ruled that appellant could not question the victim about her drug use on

the days prior to the offense.

{¶ 30} A trial court's decision on a motion in limine is a tentative, preliminary or

presumptive ruling on anticipated evidentiary issues and it is

incumbent upon a defendant, who has been temporarily restricted from introducing evidence by virtue of a motion in limine, to seek the introduction of the evidence by proffer or otherwise in order to enable the court to make a final determination as to its admissibility and to preserve any objection on the record for purposes of appeal.

State v. Grubb,

(1986). However, an offer of proof is not necessary if

the evidence is excluded during cross-examination. Evid.R. 103(A)(2). The failure to object

to the admissibility of the evidence waives all but plain error. State v. Palmer, 12th Dist.

Butler Nos. CA2013-12-243 and CA2014-01-014,

. As mentioned

above, plain error occurs when the outcome of the trial clearly would have been different, but

for the error. Baldev,

.

{¶ 31} In this case, the record shows that during his cross-examination of the victim,

appellant did not attempt to introduce evidence of the victim's drug use, except as allowed to

determine if she was impaired on the day of the offense. Therefore, appellant has waived all

but plain error.

{¶ 32} Appellant has not established that error occurred. Despite the initial ruling,

appellant was not prevented from introducing evidence of the victim's prior drug use. During

redirect examination, the prosecutor "opened the door" into the victim's drug use when he

directly inquired into the reason the victim and appellant had to leave her step-father's house.

-9- Clermont CA2018-03-016

In response to those questions, the victim admitted she had previously been addicted to

heroin. As such, appellant had the opportunity to question the victim on her prior drug use on

recross-examination. Consequently, there was no error, much less plain error.

{¶ 33} Appellant's second assignment of error is overruled.

{¶ 34} Assignment of Error No. 3:

{¶ 35} THE TRIAL COURT ERRED BY ADMITTING VICTIM'S TESTIMONY ABOUT

CONDITIONS OF CAMPER.

{¶ 36} In his third assignment of error, appellant argues the trial court erred when it

allowed the victim to testify about the specific conditions of the camper-trailer in which she

lived in the days leading up to the instant offense. Appellant asserts that the victim's

testimony regarding the camper-trailer was more prejudicial than probative, because it went

beyond what was necessary to prove appellant cohabitated with the victim.

{¶ 37} Since appellant did not object to the victim's testimony about these conditions

or otherwise request limiting instructions for the jury, he has waived all but a plain error

review. Palmer,

.

{¶ 38} As noted above, Evid.R. 403(A) requires the trial court to exclude evidence

when the danger of unfair prejudice substantially outweighs the probative value of the

evidence. Nevertheless, "[u]nfairly prejudicial evidence is not merely unfavorable evidence;

rather, it is evidence, which might result in an improper bias for a jury decision." Mills, 2016-

Ohio-6985 at ¶ 18.

{¶ 39} The prosecutor introduced the victim's testimony about the camper-trailer for

two reasons: (1) to prove an element of the domestic violence offense, i.e., that the victim

and appellant lived together and (2) to show additional reasons why the victim feared

appellant. Therefore, the miserable living conditions of the camper-trailer, such as the door

only locking from the outside, no running water, and that appellant forced the victim to use a - 10 - Clermont CA2018-03-016

bucket instead of the campground toilet, were probative as to why the victim feared appellant.

The testimony demonstrated that the victim had limited access to the outside world because

of appellant's dominion over her. Moreover, the victim's testimony on this subject was brief

and the jury had other evidence of the victim's fear, e.g. the testimony from the IHOP

employees. Therefore, appellant cannot show that the outcome of the trial clearly would

have been different in the absence of this evidence. Consequently, it was not plain error to

admit this evidence.

{¶ 40} Appellant's third assignment of error is overruled.

{¶ 41} Assignment of Error No. 4:

{¶ 42} THE TRIAL COURT ERRED BY ADMITTING VICTIM'S TESTIMONY

REGARDING APPELLANT'S USE OF ICE AND ALSO REGARDING PHOTOS OF

INJURIES THAT DID NOT OCCUR IN CLERMONT COUNTY.

{¶ 43} In his fourth assignment of error, appellant argues that the trial court erred

when it did not strike the victim's testimony regarding appellant's purchase of "ice" after the

court sustained appellant's objection.2 Moreover, appellant argues that the trial court erred

when it admitted photographs of the victim's injuries that were not the subject of the instant

offenses.

{¶ 44} Appellant objected to the "ice" testimony and the trial court sustained his

objection. Yet, appellant did not request that the court strike this testimony from the record.

Since appellant did not request that the court strike the testimony, he has waived all but plain

error review. State v. Carmen, 12th Dist. Clinton No. CA2007-06-030,

.

{¶ 45} Appellant cannot show that it was plain error for the court to fail to strike the

2. Presumably "ice" refers to the street name of an illicit drug, most likely methamphetamine. While neither appellant nor appellee define the term in their merit briefs, at trial, during a side-bar discussion of appellant's objection, the prosecutor sought admission of this testimony because, he argued, appellant's use of "meth" was relevant. - 11 - Clermont CA2018-03-016

testimony. First, as part of the final jury charge, the trial court specifically instructed the jury

that when the court sustained an objection to a question they were to disregard any answers

and not consider it as part of the evidence. Again, we presume that the jury followed the

instructions of the trial court. State v. Jones,

,

.

Second, the testimony about the "ice" was relatively short and inconspicuous. The victim

testified that appellant bought "ice," but did not mention or describe what ice was. These two

factors indicate that the outcome of the trial would not have been different had the court

stricken the testimony at the time of the objection. Therefore, appellant cannot establish

plain error.

{¶ 46} Next, appellant argues the court erred by admitting photographs of injuries the

victim received prior to the instant offenses because these photographs created unfair

prejudice. Specifically, the photographs showed abrasions and contusions the victim

sustained to her face, elbow, and shoulder. Appellant did not object to the admission of

these photographs into evidence, therefore appellant has waived all but plain error. Barnette,

.

{¶ 47} It was not plain error to admit this evidence. First, the photographs were

relevant and probative of the injury the victim received from the instant offenses. The

photographs showed the victim's face as it appeared on the day of the offense and several

days afterward. Second, to the extent that the photographs depict the victim's other injuries,

the photographs were used to corroborate the victim's testimony about why she feared

appellant. Thus, the probative value was considerable. Moreover, the court specifically

instructed the jury not to consider the "other acts" evidence for the purpose of determining

whether appellant committed the instant offenses. The jury instructions lessened any

potential prejudice. Mills,

. Therefore, the danger of unfair prejudice

did not substantially outweigh the probative value of the photographs. Consequently, - 12 - Clermont CA2018-03-016

appellant cannot establish the admission of these photographs constituted plain error.

{¶ 48} Accordingly, appellant's fourth assignment of error is overruled.

{¶ 49} Judgment affirmed.

S. POWELL and M. POWELL, JJ., concur.

- 13 -