STATE OF OHIO, Plaintiff-Appellee, v. LISA BUELL, Defendant-Appellant.
CASE NO. CA2015-11-102
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
8/22/2016
[Cite as State v. Buell, 2016-Ohio-5477.]
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 15CR30695
Engel & Martin, LLC, Mary K. Martin, 5181 Natorp Blvd., Suite 210, Mason, Ohio 45040, for defendant-appellant
OPINION
PIPER, P.J.
{¶ 1} Defendant-appellant, Lisa Buell, appeals her conviction in the Warren County Court of Common Pleas for patient abuse.
{¶ 2} Buell was employed with Residential Group Homes, Inc. as a direсt care provider for patients with varying disabilities. Buell worked in a specific house where three residents lived, and was working her morning shift when another employee observed her
{¶ 3} The matter proceeded to trial, where the state presented testimony from the employee who observed Buell hit the patient, as well as other employees who noticed marks on the victim and observed the victim uncharacteristically sad and angry on the day of the incident. After the state rested, the trial court dismissed the assault charge, but allowed the patient abuse charge to proceed.
{¶ 4} Buell testified on her own behalf and denied striking the victim. Buell also called witnesses who testified that the window to the home where the residents lived was obstructed by a Christmas tree, curtains, and fake snow. Another witness also testified that she was in the vicinity of Buell at the time of the alleged incident and that Buell never hit the patient.
{¶ 5} The jury found Buell guilty of patient abuse. The trial court sentenced Buell to 18 months in prison, which was suspended in its entirety, three years of community control, 60 days of house arrest, as well as fines and costs. Buell now appeals her conviction and sentence, raising the following assignments of error. For ease of discussion, wе will address the assignments of error out of order, and will combine some assignments of error where interrelated.
{¶ 6} Assignment of Error No. 4:
{¶ 7} THE JURY‘S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 9} THE JURY‘S VERDICT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶ 10} Buell argues in her fourth and fifth assignments of error that her conviction was not supported by sufficient evidence and was rendered against the manifest weight of the evidence.
{¶ 11} When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. 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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶ 12} A manifest weight of the evidence challenge, on the other hand, exаmines the “inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other.” State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.
{¶ 13} “While appellate review includes the responsibility to consider the credibility
{¶ 14} Although the legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different, a “determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of the issue of sufficiency.” State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19.
{¶ 15} Buell was convicted of patient abuse in violation of
{¶ 16} The state presented testimony from the employee whо witnessed Buell hit the patient. He testified that his duties include helping the patients with daily activities, including taking them to and from work or other activities. On the day in question, the employee was walking toward the house in which the victim resided. His job that morning was to transport some of the patients to another facility where they would spend the day. As he approached the house and looked through the large front window he observed Buell strike the victim thrеe times with an open palm.
{¶ 17} The employee testified that at the time he observed the incident, there was nothing blocking his view, and that there were no blinds or curtains drawn to obstruct his view into the home. The state asked the employee whether there was a Christmas tree
{¶ 18} The employee later testified that he observed the victim crying “big tears,” and also described the victim “wailing.” The victim cried during the entire drive to the facility, and the employee stated that the victim was still crying when he dropped her off. The employee further testified that he had never seen the victim cry in that manner before the day of the incident, and has not seen the victim cry like that since.
{¶ 19} The staff director and coordinator of рatient events at Residential Group Homes testified that the victim, who was 52 at the time of the incident, has Down‘s Syndrome. The director testified that the victim is approximately four-feet-tall and weighed 75-85 pounds. At the time of the incident, the victim had difficulty walking, and was “nonverbal.” The director testified that the victim behaves as a 18-month to two-year-old child would in regard to understanding and articulating verbally.
{¶ 20} The director testified that when the victim arrived at the fаcility on the day in question, she was “very upset,” “teary-eyed,” and had “outbursts” and “whales” [sic]. The director testified that she had never seen the victim act in that manner, that the victim‘s behavior was “unusual,” and that she has not seen the victim act in a similar manner since the day of the incident.
{¶ 21} The director testified that she took photos of the victim after being informed of Buell‘s actions. On the first day, the victim did not exhibit any marks or bruises. However, on the second dаy, or the day after the incident, the director observed a “red mark that kind of fingers out a little bit” on the victim‘s back.
{¶ 22} The state also presented the testimony of an employee who had known the victim for 14 years and who worked in the facility the victim was transported to after the
{¶ 23} The state next presented testimony from the detective who investigated Buell‘s actions. The detective testified that he interviewed the employee on the day that the incident occurred, and that he had no rеason to doubt the employee‘s recollection of events. The detective also testified that the photographs taken of the victim‘s back the day after the incident corroborated the employee‘s observations because the red marks were located in the same place where the employee stated the strikes occurred.
{¶ 24} The detective also testified that he went to the house where the victim lived to view the window through which the employee observed Buell striking the victim. The detective stated that he was able to look into the window and was able to see inside, and that he had no issues looking “right in.” The detective also testified that when he looked in, he could see inside clearly.
{¶ 25} The detective also testified that he interviewed another employee who was with Buell on the day of the incident, who claimed that at no time did she see Buell hit the victim. The detective testified that during his interview with the employee, she was “minimizing” several aspects of the incident, including that she and Buell were yelling at the
{¶ 26} In her own defense, Buell testified that she did not strike the victim. Buell also offered witnesses who testified that the view from the window was blocked by a Christmas tree and fake snow, and that someone looking inside the window would not have been able to see inside clearly. Another witness also testified that she was with Buell the morning on the day of the incident, and that Buell never hit the victim.
{¶ 27} Despite the testimony in favor of Buell, the jury was in the best position to determine the credibility of the witnesses, and we will not disturb its determination that the state‘s witnesses were more credible. “Upon acknowledging that such extensive testimony will inevitably produce some inconsistent or conflicting assertions, we recognize the sound principle that the trier оf fact is best positioned to weigh the credibility of the individual witness and reach a conclusion based on the totality of the evidence.” State v. Hernandez, 12th Dist. Warren No. CA2010-10-098, 2011-Ohio-3765, ¶ 41.
{¶ 28} After reviewing the evidence that Buell hit the victim three times in the back in a light most favorable to the prosecution, we find that any rational trier of fact could have found the elements of patient abuse proven beyond a reasonable doubt. Moreover, after reviewing the entire reсord, we find that the jury did not lose its way or create such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. As such, Buell‘s conviction is supported by sufficient evidence and was not rendered against the manifest weight of the evidence. Buell‘s fourth and fifth assignments of error are therefore, overruled.
{¶ 30} THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING PHOTOGRAPHS OF THE ALLEGED CRIME SCENE WITHOUT PROPER AUTHENTICATION.
{¶ 31} Buell argues in her first assignment of error that the trial court committed plain error by admitting certain рhotographs at trial because such were not authenticated.
{¶ 32} An appellate court will not reverse a trial court‘s decision regarding the admission of evidence absent an abuse of discretion. State v. Lamb, 12th Dist. Butler Nos. CA2002-07-171 and CA2002-08-192, 2003-Ohio-3870, ¶ 59. However, when a party fails to object to the issue now appealed, we review for plain error. State v. Dougherty, 12th Dist. Preble No. CA2013-12-014, 2014-Ohio-4760, ¶ 53. Plain error exists where there is an obvious deviation from a legal rule which affected the defendant‘s substantial rights, or influenced the outcome of the proceeding. State v. Sheldon, 12th Dist. Brown No. CA2013-12-018, 2014-Ohio-5488, ¶ 30. Under a plain error analysis, a reviewing court will not reverse a conviction based on a trial court‘s instruction “unless, but for the error, the outcome of the trial clearly would have been otherwise.” Dougherty at ¶ 53.
{¶ 33} “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” State v. Freeze, 12th Dist. Butler No. CA2011-11-209, 2012-Ohio-5840, ¶ 65. The “threshold requirement for authentication of evidence is low and does not require conclusive proof of authenticity.” Id. “Instead, the state only needs to demonstrate a reasonable likelihood that the evidence is authentic.” State v. Scott, 12th Dist. Warren No. CA2012-06-052, 2013-Ohio-2866, ¶ 35.
{¶ 34} Photographic evidence can be authenticated by a person with knowledge to state that the photograph represents a fair and accurate depiction of the item, person, or
{¶ 35} After reviewing the record, we find that the photographs were properly authenticated. The state presented the first photo during the testimony of the employee who witnessed the incident. The state gave the witness the picture of the window and house, and asked whether it was “a fair and accurate picture of the house* * *,” to which the witness responded, “It‘s an accurate picture, yes. It‘s the house.” While Buell argues that the witness did not address whether the photograph was “fair” in his response, we find that there is no plain error given that the witness was clearly indicating an affirmative answer to the state‘s question as to whether the photograph was a fair and accurate depiction. Moreover, the state again authenticated the photograph with the detective who actually took the picture. When the state asked whether the photograph “fairly and accurately depicts the way [the house] looks,” the detective answered, “Yes.”
{¶ 36} For the second photo, which was also a viеw of the house and window from the outside, the state asked the employee who observed the incident whether the photograph was a “fair and accurate photo of how the house was set up * * *.” The employee responded, “ah-huh.” The state again asked, “that is fair and accurate?” and the employee responded, “yes.”
{¶ 37} In regard to the third and fourth photographs, the record indicates that the photogrаphs were taken by the defense and given to the state during discovery. The photographs showed what the window looked like with the shades/blinds shut. The state addressed the photographs with the employee who observed the incident, and asked whether the photographs were accurate. While the witness testified that the photograph was of the window in question, the witness responded that the photographs were not
{¶ 38} While Buell now argues that this testimony demonstrates plain error because no witness testified that the picture was a fair and accurate depiction, the record indicates that the photographs were taken by the defense—nоt the state, and did not cause any prejudice to Buell given that the jury had an opportunity to view what the window would have looked like with blinds shut. As such, the results of the trial would not have been different had the third and fourth photographs not been admitted.
{¶ 39} After reviewing the record, we find that the photographs taken by the state‘s witness and entered into evidence were properly authenticated. Although no witness testified that the third and fourth photographs were a fair and accurate depiction of the house and window, no plain error exists because Buell has failed to show she was prejudiced as a result of the trial court admitting photographs that she, herself, took and included as discovery. As such, the trial court did not commit error, plain or otherwise, in admitting the photographs as evidence. Buell‘s first assignment of error is therefore, overruled.
{¶ 40} Assignment of Error No. 2:
{¶ 41} THE COURT COMMITTED PLAIN ERROR BY ALLOWING EXPERT MEDICAL TESTIMONY FROM A NON-EXPERT WITNESS.
{¶ 42} Buell argues in her second assignment of error that the trial court erred in allowing the witnesses to testify about medical issues without being medical experts.
{¶ 43} Pursuant to
{¶ 44}
{¶ 45} Buell argues that plain error occurred when the state‘s witnesses testified that they did not observe any bruises or marks on the victim on the day of the incident, but checked the day after the incident because bruises or marks can exhibit themselves the next day. Buell argues that this tеstimony and conclusion are not within the knowledge a layperson would have. We disagree.
{¶ 46} The record is clear that both witnesses who testified to checking the victim the day after the incident were knowledgeable of the circumstances surrounding checking patients for marks or bruises, as they had done such before as part of their normal employment. More specifically, the first witness testified that she had, in her own experience, seen injuries appear on the “second or third day” after an incident occurred. Similarly, the second witness who testified to checking for injuries on subsequent days testified that doing so was common practice because such marks may not be observable until the next day.
{¶ 47} The witnesses’ testimony did not require any specialized medical knowledge,
{¶ 48} Assignment of Error No. 3:
{¶ 49} THE TRIAL COURT ABUSED IT‘S [SIC] DISCRETION WHEN IT DENIED APPELLANT‘S MOTION FOR JURY VIEW.
{¶ 50} Buell argues in her third assignment of error that the trial court erred when it denied her motion for the jury to view the scene where the crime occurred.
{¶ 51} According to
{¶ 52} The record indicates that Buell asked the trial court to permit a jury view of the house in which the victim resided, and that the trial court denied the request. We find
{¶ 53} While Buell argues that a view of the home was “vital” to the case because the photographs did not depict the house at the time of the incident, we note that a jury view would not have allowed the jury to go back in time and observe the window and house as it was on the day in question. The trial occurred in September, and the house was not decorated for Christmas. As such, the jury would not have been able to determine anything differently about the position of the Christmas tree or alleged fake snow than it did through the conflicting testimony of the employees.
{¶ 54} After reviewing the record, we find that the trial court did not abuse its discretion in denying the jury view. Buell‘s third assignment of error is therefore, overruled.
{¶ 55} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.