State v. KennedyState v. Kennedy
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 Defendant-Appellаnt).
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
{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 аgitated. 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 patiеnt 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
{5} Coffman testified that she is also an STNA and was working the same shift as Darby оn 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 registеred 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 demonstratеd 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.
{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, shе 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 thе 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 cаre, and the patient became agitated, which was typical for this patient, who did not like to be
{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 cross-examination, 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.
{14} In her three assigned errors, Kennedy argues:
{15} “[1.] The Trial Court committed reversible error by permitting lay witnesses to рrovide 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 аssigned 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 оbjections were raised constitutes reversible error, we need not address the remaining challenges, whether or not forfeited, as they are rendered moot. See
{20} Pursuant to the Rules of Evidence, relevant evidenсe is generally admissible, and irrelevant evidence is inadmissible.
{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.
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 violаtion 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 negleсt complaints you received?
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 employеd 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
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 disregardеd.” 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-Ohio-2761, 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., quotingCrim.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
{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 conviсtion 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.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.