Although Jane [Doe] minimized Mr. France’s actions on Christmas Eve 2021, variously claiming not to remember what happened or that it was she who struck Mr. France, or she just wanted him to go to jail, the trier of fact was free to accept or reject any and all of the evidence offered by the parties and assess the witness’s credibility. Mr. France’s convictions are supported by sufficient evidence.

 

State v. France

2023 – Ohio – 2129

Fifth District Appellate Court

Richland County, Ohio

June 26, 2023

 

Domestic Violence Call Begins with 911 Call

On Friday December 24, 2021 Jane Doe called 911 and the recording was played at trial as appellee’s Exhibit 1. On the recording are two female voices; Jane identified her own voice as the one yelling “You fucking hit me; you hit me with a rock; I can’t breathe; he came in the bathroom and was hitting me in front of my kids.”

Calvin Fled Scene with His Mother

As Jane called 911, Mr. Calvin France had already fled from the scene with his mother.

Mansfield Police Responds

Mansfield Police Officer Young and Officer Perry responded. Jane Doe told officers she was in the bathroom bathing the children when Mr. France came into the room, upset. Mr. France also threw miscellaneous items around the house. Jane and Mr. France argued; Mr. France struck her in the face and pulled her hair.

Jane Doe Explained What Occurred

Officer Perry asked which side Mr. France struck her on; Jane said both sides of her face hurt and were “burning.” She told Mr. France to leave. The two ended up outside where Mr. France picked up rocks and threw them at her. Mr. France also threatened to kill Jane, and she told Officer Perry she took the threat seriously. The officers’ interaction with Jane, including her statements, were recorded on Officer Perry’s bodycam and the video was introduced.

Mr. France was a DV Recidivist

While at the scene, Officer Perry looked up Mr. France’s criminal history, learned Mr. France had three prior domestic violence convictions, and investigated the matter as a potential felony. Jane completed an affidavit in support of probable cause for a domestic violence arrest, writing that Mr. France struck her with a closed fist, pulled her hair, and threw rocks at her. She complained of pain in her face and head. Officer Perry also urged Jane to follow through with obtaining a protection order through Legal Aid, but she did not do so.

Photos of the Victim and Scene

Officer Perry took photos of Jane which were introduced as Mr. France’s Exhibit 8. Officer Perry testified he did not observe visible injuries but did not find this fact dispositive of the domestic violence allegation. Jane declined medical treatment. Officer Perry also photographed items Mr. France threw around the household, such as a comb, medicine, tape, and a child’s backpack; photos of these items were introduced.

911 Call was Different from Testimony

When asked whether he was surprised that Jane minimized the incident during her trial testimony, Officer Perry said he was not surprised at all because minimizing or recanting after a domestic violence arrest is frequently part of the cycle of violence; often victims don’t cooperate with police or prosecution at all. Officer Perry noted the 911 dispatcher said Jane was so upset during the call that it was very difficult to understand her. Officer Perry and Officer Young arrived on the scene within ten minutes of the 911 call and found Jane still very distressed.

Upon cross-examination Officer Perry agreed Jane said she wanted Mr. France arrested that night. When asked whether it was possible for someone to retaliate against a romantic partner by falsely initiating a domestic violence arrest, Officer Perry acknowledged it was possible but rare.

Jane Testifies She Has No Memory of the Incident and has Mental Problems

Jane was Mr. France’s first witness at trial. She acknowledged police came to her residence on Christmas Eve of 2021 but claimed to have no memory of what she told them. The prosecutor played the 911 call and Jane acknowledged it was her voice on the call. She was also surprised when the prosecutor showed her the bodycam video; she acknowledged that on the video she alleged Mr. France struck her, but claimed she has mental problems and tends to over-exaggerate. Jane also said that when she gets mad, she “wants that person to go through some stuff.”.

Jane Testifies that Mr. France’s Nap Made her Upset

Upon cross-examination, Jane said she was angry that Mr. France was napping and not helping her prepare for Christmas. They argued and Mr. France wanted to leave. Jane testified she decided if Mr. France wasn’t going to be with them on Christmas Eve, he should go to jail. When asked about the 911 call, Jane said she exaggerated Mr. France’s actions. She denied Mr. France struck her.

Prosecution Could not Treat Jane as a Hostile Witness

Before redirect, the prosecutor asked the trial court’s permission to treat Jane as a hostile witness, but the court declined at that time.

Was there an Assault or was Jane Just Saying Stuff?

The prosecutor asked Jane why, if she needed help with five young children, she wanted Mr. France to go to jail. Jane responded she couldn’t remember anything that happened, but she might have hit Mr. France. The prosecutor asked why she clearly related what happened when police asked her on the bodycam video, but she couldn’t remember anything now. Jane responded that she was “just saying stuff to get [Mr. France] locked up.”

Jane Testified She has Limited Memory

Jane acknowledged she had nowhere to live at the time of trial and was staying in a shelter with the children. When asked whether she would be surprised to know Mr. France called her over twenty times from jail, Jane said she “didn’t know.”

Mr. France’s mother blames Jane

Mr. France’s mother was the sole defense witness and testified Mr. France called her on Christmas Eve to come pick him up because Jane was “acting up” and told him to get out of the house. The mother also testified she was present during the argument and denied Mr. France struck Jane; she claimed it was Jane who tried to hit Mr. France, but the mother broke up the fight. The mother testified she was in the hallway when Jane and Mr. France argued in the bathroom and “[Jane] started it.” When asked why she didn’t tell stay on the scene to explain to police that Jane was at fault, the mother said she didn’t know what to do.

Indictment

Mr. France was charged by indictment with one count of domestic violence pursuant to O.R.C. §2919.25(A), a felony of the third degree [Count I], and one count of domestic violence pursuant to O.R.C. §2919.25(C), a misdemeanor of the first degree [Count II]. The indictment further states Mr. France has three previous domestic violence convictions which enhance the penalty levels of the instant domestic violence offenses.

Trial and Conviction

Mr. France entered pleas of not guilty and the matter proceeded to trial by jury. Mr. France moved for a judgment of acquittal pursuant to Crim.R. 29(A) at the close of Mr. France’s evidence but the motion was overruled. Mr. France was found guilty as charged, and the jury further found Mr. France had three prior convictions of domestic violence.

Sentencing

The trial court sentenced Mr. France to a prison term of 36 months upon Count I to be served concurrently with a jail term of 180 days upon Count II.

Appeal – Not Enough Evidence

Mr. France now appeals from the trial court’s sentencing entry of May 5, 2022.

Mr. France raises one assignment of error:

In his sole assignment of error, Mr. France argues his domestic violence convictions are not supported by sufficient evidence because Jane Doe testified Mr. France did not hit her and that she only called 911 because she was angry and wanted Mr. France to go to jail. We disagree.

Domestic Violence

Mr. France was convicted of one count of domestic violence pursuant to R.C. 2919.25(A) and one count of domestic violence pursuant to R.C. 2919.25(C). Those sections state as follows:

(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member [“physical harm domestic violence”].

(C) No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member [“threat domestic violence”].

In the instant case, Mr. France was charged with both physical harm domestic violence and threat domestic violence. To find Mr. France guilty of physical-harm domestic violence, the jury would have to find that Mr. France knowingly caused or attempted to cause physical harm to a family or household member. O.R.C. §2919.25(A). A “family or household member” includes the natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent. O.R.C. §2919.25(F)(1)(b). Physical harm to persons is defined as “any injury, illness, or other physiological impairment, regardless of its gravity or duration”. O.R.C. §2901.01(A)(3).

Established Case Law – Threat of Domestic Violence

We have previously found the offense of threat domestic violence requires fear inspired by the threat of force. State v. Bilyk, 2018 – Ohio – 1802, citing Gaydash v. Gaydash, 2006 – Ohio – 4080. Where the trial court has the opportunity to view the demeanor of the victim and the state of the residence on the date in question, including evidence the victim was crying and distressed and the house was in disarray, we have found sufficient credible evidence to support the trial court’s guilty verdict upon an offense of threat domestic violence.

Jane’s Credibility

At trial in the instant case, appellee introduced evidence of Jane’s 911 call and the bodycam video depicting her interaction with police. When Jane minimized the allegations and claimed not to remember what happened, the prosecutor confronted her with the 911 recording and the bodycam video. The jury could directly test the credibility of the victim’s recantation by reference to this evidence. See, State v. Sanders, supra, 2006 – Ohio – 5355.

Jury Rejects Jane’s Recantation

The record does contain evidence in addition to Jane’s recantation. The police officers testified to Jane’s demeanor within ten minutes of the 911 call and the statements she made verbally and in writing; she was visibly upset and told them Mr. France struck her in front of the children. Mr. France fled from the scene before police arrived; at the prosecutor’s request, the jury was given a flight instruction permitting them to infer consciousness of guilt. Mr. France’s mother’s testimony that Jane was the aggressor was confusing and may have been rejected by the jury.

Jury and the Appellate Court Believed Jane on the Body Camera and Not Jane in Court

Viewing the evidence in a light most favorable to Mr. France, we conclude that a reasonable person could have found beyond a reasonable doubt that Mr. France committed domestic violence. We find appellee met its burden of production regarding each element of Counts I and II and Mr. France’s convictions are supported by sufficient evidence. Although Jane minimized Mr. France’s actions on Christmas Eve 2021, variously claiming not to remember what happened or that it was she who struck Mr. France, or she just wanted him to go to jail, the trier of fact was free to accept or reject any and all of the evidence offered by the parties and assess the witness’s credibility.

Mr. France’s convictions are supported by sufficient evidence.

Conclusion

The sole assignment of error is overruled and the judgment of the Richland County Court of Common Pleas is affirmed.

Information for this article was obtained from State v. France, 2023 – Ohio – 2129.

State v. France, 2023 – Ohio – 2129 was issued on June 26, 2023 by the Fifth District Appellate Court and is binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.

Lessons Learned:

  1. Body Cameras have Changed the Domestic Violence Landscape – When responding to a domestic dispute that may be domestic violence, law enforcement must have in mind that later the suspect and victim may reconcile, and the victim may not want to proceed with prosecuting the suspect. Prior to body cameras it was often the word of the officers against the word of the victim and suspect.  Today, that landscape has changed significantly.  The body camera video will provide verbatim statements in real time.  So when the victim recants the original statement it will appear much different when the body camera video is played for the court. The key is that law enforcement is to document all of the statements made by the victim, witnesses and suspects.
  2. Preferred Course of Action – Though the courts did not address the obvious, the officers were operating under O.R.C. §2935.03 (B)(3)(b) Preferred Course of Action “If … a peace officer has reasonable grounds to believe that the offense of domestic violence or the offense of violating a protection order has been committed it is the preferred course of action in this state that officer arrest … that person.”.  Here, Mansfield Police Officer Young and Officer Perry had probable cause that Mr. France was the primary aggressor and had committed domestic violence.
  3. Pre-Sent Arms! Mansfield Police Officer Young, Officer Perry and the Richland County Prosecutor’s Office should be commended for their arrest and successful prosecution of Mr. France.

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Robert H. Meader Esq.