STATE OF OHIO, Plаintiff-Appellee, - vs - GYANMARCO FLORES, Defendant-Appellant.
CASE NO. CA2014-03-037
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
12/30/2014
[Cite as State v. Flores, 2014-Ohio-5751.]
CRIMINAL APPEAL FROM MASON MUNICIPAL COURT Case No. 13 CRB 01153
Blake P. Somers, LLC, Sarah E. Mosher, 114 East 8th Street, Cincinnati, Ohio 45202, for defendant-appellant
RINGLAND, P.J.
{1} Defеndant-appellant, Gyanmarco Flores, appeals from his conviction in the Mason Municipal Court on one count of domestic violence. For the reasons detailed below, we affirm.
{2} On November 4, 2013, a complaint was filed charging appellant with one count of domestic violence and one count of menacing arising out of an incident involving his Wife
{3} The state called three witnesses: (1) Kseniya Petrova, the victim; (2) Angelika Petrоva, the victim‘s mother who witnessed the altercation; and (3) Officer Andrew Herrlinger of the Mason Police Department who responded to the initial complaint.
{4} Following the close of the state‘s evidence, appellant moved for acquittal based on insufficient evidence pursuant to
{5} After concluding the evidence and closing remarks, the trial court found appellant guilty of one count of domestic violenсe, but not guilty of menacing. Appellant was then sentenced to 180 days in jail with 150 days suspended. Appellant now appeals his conviction, raising three assignments of error for review. For ease of discussion, we will address the assignments of error out of order.
{6} Assignment of Error No. 3:
{7} THE TRIAL COURT ERRED IN FAILING TO SUSTAIN THE DEFENDANT‘S MOTION FOR A JUDGMENT OF AQUITTAL.
{8} In his third аssignment of error, appellant argues his conviction is based on insufficient evidence.
{9}
{10} A determination as to whether the evidence presented at trial is legally sufficient to sustain a verdict is a question of law. State v. DeBorde, 12th Dist. Butler No. CA2013-04-058, 2014-Ohio-761, ¶ 9. “When reviewing the sufficiency of the evidence to support a
{11} The crime of domestic violence is defined in
{12} In the present case, the state presented the testimony of the victim, Ksenyia Petrova, the victim‘s mother, Angelika Petrova, and the investigating police officer, Officer Herrlinger.
{13} Kseniya testified that she was married to appellant in October 2010 and appellant is the father of her five-year-old son. Although she was still married to appellant at the time of the physical violence, Kseniya testified that the two were separated and in the middle of divorce proceedings. Kseniya stated that on November 1, 2013, appellant had driven over to her apartment to pick up their son for visitation pursuant to an interim court order. When appellant arrived, Kseniya testified that she walked her son out to appellant‘s vehicle where she met appellant. Kseniya described appellant‘s demeanor as very agitated and further explained that when she approached the vehicle, appellant immediately began arguing with her аbout child support and about clothing for the child. Kseniya testified that
{14} The state next presented the testimony оf Angelika Petrova, the victim‘s mother. Angelika corroborated the testimony of Kseniya and testified that on November 1, 2013, she was over at Kseniya‘s house to see her grandson. When appellant came at approximately 5:00 P.M., Angelika waited by the front door and watched Kseniya take her son to buckle him in appellant‘s vehicle. While Kseniya was doing that, Angelika testified that she could hear appellant yelling and arguing with Kseniya about child support payments and clothing. After a few minutes of arguing, Angelika tеstified that appellant got out of the vehicle, shoved Kseniya, grabbed her by the hair, and then spit on her. Thereafter, Angelika stated that appellant began yelling at her and threatened to kill her.
{15} Finally, the state presented the testimony of Officer Herrlinger, the investigating police officer. Officer Herrlinger testified that he was dispatched to Kseniya‘s house a few days after the altercation to investigate the allegations of domestic abuse. Officer Herrlinger testified that both Angelika and Kseniya infоrmed him of the physical altercation. In addition, Officer Herrlinger testified that Kseniya indicated during the interview that she did not inform authorities of the physical altercation until several days later because she was afraid for the safety of her child and feаred retribution.
{16} Based on the evidence presented at trial, we conclude the trial court‘s verdict was supported by sufficient evidence and the trial court did not err in denying appellant‘s
{17} Assignment of Error No. 1:
{18} THE TRIAL COURT ERRED IN FAILING TO ENSURE A PROPERLY QUALIFIED AND SWORN FOREIGN LANGUAGE “INTERPRETER” WAS USED IN THE PROCEEDINGS BELOW.
{19} In his first assignment of error, appellant argues that the trial court committed plain error by failing to administer the proper oath to the interpreter used during the testimony presented by Angelika, the victim‘s mother, who is a native Russian speaker. In addition, appellant argues that the trial court erred because it made no attempt to ascertain the interpreter‘s skill or experience.
{20} Pursuant to
{21} Because appellant failed to object to the interpreter issue at trial, we will review for plain error. In re M.A.P., 12th Dist. Butler Nos. CA2012-08-164 and CA2012-08-165, 2013-Ohio-655, ¶ 59; Jama at ¶ 19. Plain error exists where there is an obvious deviation
{22} Here, the record indicates that the trial court did not administer an oath requiring the interpreter to affirm that he knows, understands, and acts according to the code of professional conduct for court interpreters. Instead, the record reflects that the trial court administеred the oath for witnesses.
{23} Nevertheless, after reviewing the reсord, we find no merit to appellant‘s argument. Although there were some irregularities in the use of the translator, there is simply nothing in the record to suggest plain error. During the course of the proceedings, appellant‘s trial attorney raised no objection as to the qualifications of the interpreter, to the form of the oath, or to the lack of summary of the court‘s efforts to use a certified or provisionally qualified interpreter. A review of the record indicates that the interpreter was utilized only for purposes of the administration of the witness oath to Angelika and to interpret Angelika‘s answer to one question. Other than those limited occasions, Angelika‘s examination and testimony was conducted in English. Moreover, appellant fails to sрecify how he was prejudiced by the use of this interpreter. Although appellant claims that the use of Angelika‘s testimony “was likely integral to the Court‘s finding of guilt,” he fails to offer any evidence to suggest improprieties or issues in the translation that would affect thе outcome of the trial. Accordingly, we find that plain error did not occur relative to the use of the
{24} Assignment of Error No. 2:
{25} THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE PROSECUTOR TO QUESTION THE DEFENDANT, OVER HIS OBJECTION, REGARDING A PRIOR CRIMINAL CONVICTION.
{26} In his third assignment of error, appellant argues that the trial court erred in admitting evidence of a prior conviction of battery in California. As previously noted, appellant testified in his own defense. Upon cross-examination, the following questions were asked and answered:
Q. Okay. Do you consider yourself an angry person?
A. No.
Q. A violent person?
A. No.
Q. But you have been convicted of battery in the past?
MR. BARTLETT: Judge, objection.
THE COURT: Let him answer the question.
MS. BENNETT: I‘m sorry?
THE COURT: Do you understand the question?
THE WITNESS: I understand the question.
THE COURT: Okay go ahead with the answer.
THE WITNESS: No.
Q. You have not been convicted of battery out in Califоrnia?
A. No. It was, well, it was (Inaudible) to a simple battery.
Q. A simple battery?
A. Yes.
Q. Who was the victim of that?
A. It was Henora.
Q. I‘m sorry?
A. Henora.
THE COURT: Who is Henora?
THE WITNESS: She was my ex wife.
THE COURT: Ok.
No further questions were elicited about this prior offense. However, on appeal appellant argues that the trial court inappropriately relied on this “other acts” evidence and therefore his conviction for domestic violence must be reversed. In support of this claim, appellant relies on
{27} Pursuant to
{28} Appellant is correct in noting that his prior conviction of battery in California was not admissible as evidence that he committed the present instance of domestic violence. In addition, we note that the record contains no evidence that appellant‘s prior conviction for
{29} As previously noted, appellant was tried to the bench. The Ohio Supreme Court has recognized that in bench trials, trial judgеs are “presumed to consider only the relevant, material and competent evidence in arriving at a judgment unless the contrary affirmatively appears from the record.” State v. Eubank, 60 Ohio St.2d 183, 187 (1979); State v. Layne, 12th Dist. Clermont No. CA2009-07-043, 2010-Ohio-2308, ¶ 60 (holding that “in reviewing a bench trial, an appellate court presumes that a trial court considered nothing but relevant and competent evidence in reaching its verdict“); State v. Wright, 6th Dist. Lucas No. L-12-1327, 2013-Ohio-5910, ¶ 24 (same); see also State v. Colegrove, 140 Ohio App.3d 306, 311 (8th Dist. 2000) (“It must be recognized that the very nature of the duties of a judge often require him to have knowledge of inadmissible evidence“).
{30} Based on our review of the evidence, we find no affirmative indication that the trial judge considered this testimony in rendering his verdict. The record reflects that the testimony regarding appellant‘s prior conviction accounted for a very small portion of the trial. The other еvidence introduced by the state included the victim‘s account of the incident, as well as the eyewitness testimony by the victim‘s mother, which supports appellant‘s conviction. Since there is no evidence that the trial court considered any otherwise impermissible evidence in reaching its verdict, we find that any such error was harmless. Appellant‘s second assignment of error is overruled.
{31} Judgment affirmed.
S. POWELL and M. POWELL, JJ., concur.