State v. Scott

[Cite as State v. Scott, 

.]


                                IN THE COURT OF APPEALS OF OHIO
                                   FOURTH APPELLATE DISTRICT
                                      WASHINGTON COUNTY

STATE OF OHIO,                                  :       Case No. 15CA2

        Plaintiff-Appellee,                     :

v.                                              :       DECISION AND
                                                        JUDGMENT ENTRY
KENNETH P. SCOTT,                               :

        Defendant-Appellant.                    :       RELEASED 10/02/2015

                                            APPEARANCES:

James S. Sweeney, James Sweeney Law, LLC, Columbus, Ohio, for appellant.

James E. Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.


Hoover, P.J.
        {¶1}     Defendant-appellant, Kenneth P. Scott, appeals from his convictions for felonious

assault and domestic violence entered by the Washington County Court of Common Pleas

following a jury trial. Tana Senften, Scott’s live-in girlfriend, claimed that Scott brutally attacked

her in their shared apartment following an evening out at a gambling café. Scott denied attacking

Senften and claimed that an intoxicated Senften injured herself when she tried to attack him and

fell.

        {¶2}     On appeal, Scott contends that his conviction was against the manifest weight of

the evidence because his version of the events should be believed over Senften’s. However, a

conviction is not against the manifest weight of the evidence simply because the jury rejects the

defendant’s version of the events and instead resolves the conflicting evidence in favor of the

State. Rather, the jury, as the trier of fact, was free to reject Scott's version of the events, which it
Washington App. No. 15CA2                                                                            2


apparently did. As such, we cannot conclude that this is a case where the jury clearly lost its way

or created a manifest miscarriage of justice.

       {¶3}    Scott next argues that the trial court erred in denying his Crim.R. 29 motion for

acquittal. He contends that the State did not prove that Senften suffered “serious physical harm”,

an essential element of felonious assault, because it failed to provide testimony from an expert

witness regarding the nature and extent of Senften’s injuries. However, expert medical testimony

is not required to prove the element of “serious physical harm”. Substantial testimony from the

victim regarding her injuries was also presented. Scott further argues that the motion should have

been granted because Senften’s version of events was contradicted by Scott’s testimony and the

testimony of another defense witness. Because this argument asks for a weighing of the evidence

and a determination of witness credibility, it is not proper. The trial court correctly determined

that a reasonable juror could conclude, beyond a reasonable doubt, that Senften suffered serious

physical harm when viewing the evidence in the light most favorable to the prosecution.

       {¶4}    Finally, Scott argues that the trial court erred by failing to admit other acts

testimony because the proffered testimony was purportedly admissible to show motive; and

because the State had opened the door to other acts evidence. We disagree. Accordingly, we

affirm the judgment of the trial court.

                                                 I. FACTS

       {¶5}    On May 1, 2014, Scott was indicted for one count of felonious assault, in

violation of R.C. 2903.11(A)(1), a felony of the second degree, and one count of domestic

violence, in violation of R.C. 2919.25(A), a misdemeanor of the first degree. The indictment

arose from an incident that occurred on April 2, 2014, between Scott and Senften.
Washington App. No. 15CA2                                                                          3


       {¶6}    A review of the record and the transcript from the jury trial held on October 8,

2014, indicates that Scott had been dating and living with Senften at the time of the events

leading to Scott's indictment. On April 1, 2014, Scott and Senften visited a gambling café in

Lubeck, West Virginia. After a short visit the pair returned home to their shared apartment in

Belpre, Washington County, Ohio, and watched television for some time before Senften decided

to go to sleep in the apartment’s second bedroom (also referred to at trial as the computer room

or storage room). Senften testified that she had one beer at the gambling café and one beer at the

apartment. Scott testified that Senften had “a couple of beers” at the gambling café and two

twenty-four ounce cans of beer at the apartment.

       {¶7}    Between 3:00 and 4:00 a.m. on April 2, 2014, Scott awoke from sleep and entered

the second bedroom. Senften claims that Scott entered the bedroom uninvited and offered her a

blanket. Scott, on the other hand, claims that he was awakened by Senften’s shouts that she was

“freaking freezing” and that he entered the bedroom to offer her a blanket. There is more

conflicting testimony about the exchange that took place between Scott and Senften while inside

of the room. Senften stated that she and Scott began to argue because he was upset that she did

not go to bed with him, and that the argument moved into the dining room. Once in the dining

room, Senften contends that Scott pinned her against the floor and punched her twelve to fifteen

times causing her to bleed from her left eye, ears, nose, and mouth. Senften was eventually able

to escape to the bathroom where she locked the door and called her son in Athens, Ohio. Her son

then apparently called the police. Meanwhile, Scott testified that soon after he entered the

bedroom Senften became agitated. He claims that Senften pushed him aside, then moved to the

kitchen knocking items to the floor, and eventually swung a toaster at him causing an injury to

his knuckle. Scott also testified that in her fit of rage Senften flipped over a table and then
Washington App. No. 15CA2                                                                              4


tripped over the table’s leg. As she fell to the floor Scott claims that Senften hit her face on the

table’s edge causing her to bleed profusely. Scott testified that he attempted to assist Senften, but

that she refused assistance and locked herself in the bathroom.

        {¶8}    At approximately 5:30 a.m., Patrolmen Adam Holiday and T.G. Heddleston of the

Belpre Police Department were dispatched to the apartment. The officers separated Scott and

Senften upon arriving at the apartment. Senften told Patrolman Holiday that she and Scott had

gotten into an argument and that Scott punched in her in face repeatedly. Meanwhile, Scott

informed Patrolman Heddleston that Senften attacked him and swung a toaster at him at which

time she fell and hit the table.

        {¶9}    As a result of the incident, Senften bled profusely from her face and her head.

The testimony indicates that Senften lost or loosened several of her top front teeth and broke her

nose during the incident. Senften’s left eye was also swollen for three weeks following the

incident. Senften described suffering great pain in her head, face, ear, throat, and back,

necessitating the use of anti-inflammatory medication and prescription painkillers. Senften also

developed a blood clot following the incident and was still taking prescription painkillers at the

time of trial. Senften also indicated at trial that she continued to suffer from tenderness in her jaw

and neck, headaches, toothaches, and had diminished vision in one eye. While Senften initially

refused law enforcement transport to the hospital, family members eventually took Senften to

Marietta Memorial Hospital for treatment.

        {¶10} Scott and Senften’s next-door-neighbor, Randy McGrew, also testified at trial.

McGrew testified that on the morning of the incident he was awakened by a loud commotion that

sounded “pretty intense” coming from the neighboring apartment. In particular, McGrew heard a

female’s voice say, “You’re killing me, you’re killing me.” He also heard what he thought to be
Washington App. No. 15CA2                                                                            5


furniture thrown about the apartment. He described the incident as similar to “[what] you would

think a bar fight might sound [like].”

       {¶11} Patrolman Holiday testified at trial that Senften did not appear to be impaired

when he spoke to her on the morning of the incident, but that he did detect an odor of alcohol.

Patrolman Holiday also testified about the injuries he observed on Senften. Patrolman Holiday

also indicated that he observed a laceration on Scott’s right knuckle and a little bit of swelling

and blue or purple on his right hand and knuckle.

       {¶12} Patrolman Heddleston testified that Scott’s knuckles appeared red and swollen.

He also observed the laceration in the right knuckle area and noted that slight red marks appeared

on Scott’s arm and neck area. Patrolman Heddleston stated that according to Scott, Senften had

been drinking that night and that she has a problem with alcohol. Nonetheless, Patrolman

Heddleston testified that Scott’s version of events did not “explain the amount of injuries that

[Senften] had to her facial area and the swelling.”

       {¶13} Upon cross-examination at trial, defense counsel asked Senften if she had a

charge pending in West Virginia for operating a vehicle while intoxicated (“OVI”), and if she

had an alcohol problem and a history of falling and injuring herself at bars. The State objected to

the line of questioning and the trial court heard argument regarding the admissibility of such

evidence. Defense counsel asserted that Senften had opened the door to the line of questioning

by testifying that she did not have an alcohol problem. Specifically, defense counsel stated:

“Your Honor, she’s testified she doesn’t have an alcohol problem. She has a pending warrant for

arrest for OVI. In addition, she’s testified she’s fallen before and hurt her face * * *.” Defense

counsel also stated that she intended to elicit testimony from Robert Davis that Senften had

fabricated a story about how she received the injuries to law enforcement because she had a
Washington App. No. 15CA2                                                                                             6


warrant out for her arrest on the OVI charge. Ultimately, the trial court sustained the State’s

objection, noting that “ * * * at this point, [the warrant/pending OVI charge is] only an

allegation, and it’s prejudicial effect and it’s – it’s-- doesn’t go to credibility, because only a

conviction can go to credibility, not an arrest.” The trial court then ordered stricken from the

record “any reference to pending charges” and instructed the jury to disregard the “line of

testimony about [the] pending charge * * *.”

        {¶14} Robert Davis testified for the defense. Davis is the boyfriend of Senften’s

daughter. Senften had called Davis from inside of the locked bathroom and asked for his help.

When Davis first arrived at the scene, Senften told him that Scott had “drug her out of the

room—out of the room for no reason and proceeded to beat on her.” However, he testified that at

a later time she changed her story and told him that she fabricated the original story because she

was worried about her warrant in Parkersburg and that she actually sustained the injuries to her

face when she fell. During a voir dire examination1 of Davis, outside the presence of the jury,

Davis indicated that on prior occasions he had picked Senften up from bars and that she had

sustained facial injuries at bars presumably because she had fallen while drunk. The trial court,

however, did not permit Davis to testify about Senften’s history of falling at bars in the presence

of the jury.

        {¶15} On rebuttal, the state called Patrolman Holiday to testify again. Patrolman

Holiday indicated that he ran Senften’s name and identification on the date of the incident and

that there were no active warrants for her arrest in the system. However, on cross-examination,

he stated that it was possible that the warrant was not in the system because it was out of the

“pickup radius”.


1
 The trial court conducted voir dire examination of Davis because defense counsel had not listed him as a potential
witness in discovery and there was argument that he should not be permitted to testify.
Washington App. No. 15CA2                                                                            7


       {¶16} Photographs of Senften’s injuries and of Scott’s hands and neck were introduced

and authenticated at trial; and eight of the photographs were admitted into evidence.

       {¶17} After all the evidence and testimony had been presented, defense counsel made a

Crim.R. 29 motion for acquittal, contending that there was insufficient evidence to prove the

charges and that the State failed to prove the “serious physical harm” element of the felonious

assault charge because it did not call a doctor to testify about Senften’s injuries. After hearing

argument from both parties, the trial court denied the motion. The jury then found Scott guilty of

felonious assault and domestic violence, as charged in the indictment. Subsequently, a

sentencing hearing was held and the trial court issued a sentencing entry on December 17, 2014,

in which it determined that the two charges were allied offenses of similar import and imposed

sentence upon the charge of felonious assault. Scott was then sentenced to two years

imprisonment. It is from the sentencing entry that Scott now brings his timely appeal.

                                     II. ASSIGNMENTS OF ERROR

       {¶18} Scott assigns the following errors for our review:

     1.   THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT
AGAINST THE APPELLANT WHEN THE JUDGMENT WAS NOT SUPPORTED
BY THE MANIFEST WEIGHT OF THE EVIDENCE.

     2.   THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT THE
DEFENDANT’S MOTION FOR ACQUITTAL AS THE GUILTY VERDICTS AT THE
TRIAL COURT WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE.

     3.   THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
EXCLUDED RELEVANT CHARACTER EVIDENCE OF THE ALLEGED VICTIM.

                                       III. LAW AND ANALYSIS

       {¶19} For ease of analysis, we will address Scott’s assignments of error out of order.


       A. Sufficiency and Manifest Weight of the Evidence
Washington App. No. 15CA2                                                                            8


       {¶20} In his second assignment of error, Scott contends that the trial court erred by

overruling his Crim.R. 29(A) motion for acquittal and that the verdicts are not supported by

sufficient evidence. Our standard of review for both arguments is the same. State v. Jackson, 

, 

, 

 (4th Dist.); State v. Hairston, 4th Dist.

Scioto No. 06CA3081, 

. Here, we must determine whether the evidence

adduced at the trial, if believed, reasonably could support a finding of guilt beyond a reasonable

doubt. State v. Davis, 4th Dist. Ross No. 12CA3336, 

. “The standard of

review is whether, after viewing the probative evidence and inferences reasonably drawn

therefrom in the light most favorable to the prosecution, any rational trier of fact could have

found all the essential elements of the offense beyond a reasonable doubt.” 

 citing Jackson v.

Virginia, 

, 

, 

 (1979). A reviewing court will not

overturn a conviction on a sufficiency of the evidence claim unless reasonable minds could not

reach the conclusion the trier of fact did. State v. Tibbetts, 

, 

 (2001); State v. Treesh, 

, 

 (2001).

       {¶21} In the case sub judice, Scott was charged with one count of felonious assault, in

violation of R.C. 2903.11(A)(1), and one count of domestic violence, in violation of R.C.

2919.25(A). R.C. 2903.11(A)(1) defines the offense of felonious assault and provides in

pertinent part as follows: “No person shall knowingly * * * [c]ause serious physical harm to

another or to another's unborn[.]” R.C. 2919.25(A) defines the offense of domestic violence as

follows: “No person shall knowingly cause or attempt to cause physical harm to a family or

household member.”

       {¶22} Here, Scott specifically contends that he should have been granted a judgment of

acquittal on the felonious assault charge because “the State failed to provide any testimony from
Washington App. No. 15CA2                                                                              9


any medical professional to establish * * * [the] serious physical harm” element of R.C.

2903.11(A)(1). We disagree with Scott.

       {¶23} “Serious physical harm” is defined under R.C. 2901.01(A)(5)(c), (d), and (e) as

including harm that produces “temporary, substantial incapacity”, “temporary, serious

disfigurement”, or “acute pain of such duration as to result in substantial suffering or that

involves any degree of prolonged or intractable pain.” At trial, Senften testified in great detail

about the injuries she sustained. Specifically, Senften testified that her left eye was swollen shut

for three weeks following the incident, that she broke her nose and lost teeth as a result of the

incident, and that a blood clot developed under her eye. The State corroborated Senften’s injuries

by introducing photographs of her injuries. Certainly these types of injury constitute “temporary,

substantial incapacity” and “temporary, serious disfigurement” as those words are commonly

understood. Moreover, there is no doubt that Senften experienced “prolonged or intractable pain”

as a result of the incident. At trial, which took place approximately six months after the incident,

Senften testified that she still experienced pain in her jaw, neck, head, and teeth necessitating the

use of prescription painkillers. Courts have also determined that “serious physical harm” exists “

‘where the injuries caused the victim to seek medical treatment.’ ” State v. Muncy, 4th Dist.

Scioto No. 11CA3434, 

, quoting State v. Sharp, 12th Dist. Butler No.

CA2009-09-236, 

, ¶ 11. And here, the testimony established that Senften did

visit a hospital and was prescribed pain medication. Thus, we believe that sufficient evidence of

“serious physical harm” supported the trial court's denial of Scott's Crim.R. 29(A) motion.

       {¶24} We also hold that the State need not present expert medical testimony to establish

the element of serious physical harm. We note that other courts have rejected similar arguments.

See State v. Driesbaugh, 11th Dist. Portage No. 2002-P-0017, 

, ¶ 46 (rejecting a
Washington App. No. 15CA2                                                                            10


nearly identical argument and citing other appellate district courts in support of its ruling).

Moreover, Scott has failed to cite any case law in support of his proposition.

        {¶25} Scott also asserts that the trial court should have sustained his motion for acquittal

because “the statements of Ms. Senften that she was violently assaulted by Mr. Scott were

contradicted by the testimony of Mr. Scott and Mr. Davis.” It is well settled that the weight of

the evidence and credibility of witnesses are issues for the jury as the trier of fact. State v.

DeHass, 

, 

 (1967), at paragraph one of the syllabus; State v.

Antill, 

, 67, 

 (1964). A jury is free to believe all, some, or none of

a particular witness's testimony. State v. Caldwell, 

, 

(4th Dist.1992). In the case sub judice, the jury obviously found the testimony from Senften

credible, and her testimony is sufficient to sustain the jury verdicts.

        {¶26} Based on the foregoing, we conclude that sufficient evidence was adduced to

support the trial court's denial of Scott's Crim.R. 29(A) motion, as well as the jury verdicts.

Accordingly, we overrule Scott's second assignment of error.

        {¶27} In his first assignment of error, Scott challenges the jury’s guilty verdicts as being

against the manifest weight of the evidence. Specifically, he argues that the evidence presented at

trial corroborates his version of events, i.e., that Senften drunkenly attacked him and fell and hit

her head against a table. He cites McGrew’s testimony that it sounded like furniture was being

thrown about the apartment. He also cites Davis’s testimony that Senften admitted to sustaining

the injuries when she fell and hit her head; and that she initially lied about the assault because

she had a warrant for her arrest. Scott asserts that Davis’s testimony shows that Senften believed

that if she told the officers the truth - as opposed to claiming to be a victim of a violent assault -

she would be arrested on her outstanding warrant. Thus, Scott claims that Senften had an
Washington App. No. 15CA2                                                                                 11


incentive to lie to the officers about how she sustained her injuries. Finally, Scott cites Senften’s

testimony elicited on cross-examination that she had fallen in the past and caused injury to her

head.

        {¶28} The State argues, on the other hand, that the greater weight of the evidence

supports Scott’s conviction. The State notes that: (1) Senften testified undoubtedly that Scott

attacked her; (2) the neighbor testified that a women’s voice could be heard yelling, “You’re

killing me, you’re killing me”; (3) the responding officers testified that Senften did not appear

intoxicated, that swelling and marks were visible on Scott’s hand and knuckles, and that the

injuries did not appear consistent with Scott’s version of events; and (4) the photographs

admitted at trial depict injuries that are consistent with Senften’s claims that Scott beat her with

his fists.

        {¶29} “ ‘Although a court of appeals may determine that a judgment of a trial court is

sustained by sufficient evidence, that court may nevertheless conclude that the judgment is

against the weight of the evidence.’ ” State v. Topping, 4th Dist. Lawrence No. 11CA6, 2012–

Ohio–5617, ¶ 60, quoting State v. Thompkins, 

, 

 (1997).

“When an appellate court considers a claim that a conviction is against the manifest weight of the

evidence, the court must dutifully examine the entire record, weigh the evidence, and consider

the credibility of witnesses.” 

 “The reviewing court must bear in mind, however, that

credibility generally is an issue for the trier of fact to resolve.” 

 citing State v. Issa, 

, 

 (2001), and DeHass, 10 Ohio St.2d at paragraph one of the

syllabus, 

. This is so because “[t]he trier of fact ‘is best able to view the

witnesses and observe their demeanor, gestures, and voice inflections, and use these observations

in weighing the credibility of the proffered testimony.’ ” State v. Pippen, 4th Dist. Scioto No.
Washington App. No. 15CA2                                                                          12


11CA3412, 2012–Ohio–4692, ¶ 31, quoting Seasons Coal Co. v. Cleveland, 

, 

 (1984).

       {¶30} “Once the reviewing court finishes its examination, the court may reverse the

judgment of conviction only if it appears that the fact-finder, when resolving the conflicts in

evidence, clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” (Quotations omitted.) Davis, 2013-Ohio-

1504, at ¶ 14. A reviewing court should find a conviction against the manifest weight of the

evidence “ ‘only in the exceptional case in which the evidence weighs heavily against the

conviction.’ ” 

, quoting State v. Martin, 

, 

 (1st Dist.1983); see also State v. Lindsey, 

, 

 (2000).

       {¶31} After reviewing the trial record, we are confident that the jury did not lose its way

in finding Scott guilty of felonious assault and domestic violence.

       {¶32} The theme of Scott’s argument under this assignment of error is that Senften’s

testimony was not credible or reliable, and thus should not have been believed by the jury.

Rather, he contends that the jury should have believed his version of events. However, the

weight to be afforded evidence and the credibility of testimony are issues to be determined by the

trier of fact. State v. Frazier, 

, 

 (1995), citing State v.

Grant, 

, 

 (1993). As stated above, the fact finder “is best

able to view the witnesses and observe their demeanor, gestures and voice inflections, and use

these observations in weighing the credibility of the proffered testimony.” Seasons Coal Co., 

, 

. Here, both the State and defense counsel fully examined

Senften, Scott, and all the other witnesses. Thus, the jury had before it sufficient information to
Washington App. No. 15CA2                                                                         13


ascertain the credibility of the witnesses and to weigh their testimonies accordingly, and we will

not substitute our judgment for that of the jury.

       {¶33} Furthermore, other evidence corroborates Senften’s version of events. The

photographs admitted at trial, for example, are consistent with Senften’s claims and clearly show

a significant amount of blood and significant injury to Senften’s face. The photographs also

show Senften’s swollen eye and the swelling and redness of Scott’s knuckles. The neighbor’s

testimony about a woman’s scream is also telling and bolsters Senften’s version of events. We

also note that the responding officers did not believe that Senften was intoxicated as Scott

claimed. Moreover, Scott’s claim that Senften’s injuries were caused by a fall was not

corroborated by any evidence except for Davis’s testimony.

       {¶34} Insofar as Scott contends that his conviction for felonious assault is against the

manifest weight of the evidence because the State failed to produce expert medical testimony to

establish the “serious physical harm” element, we note that the argument is misplaced for the

reasons set forth above.

       {¶35} Simply put, the jurors chose to believe Senften’s version of events, which was

supported by substantial evidence. This is not one of those rare cases where the jury clearly lost

its way in arriving at a guilty verdict. Accordingly, we overrule Scott’s first assignment of error.


       B. Admissibility of Evidence


       {¶36} In his third assignment of error, Scott contends that the trial court erred by

excluding relevant and admissible testimony. First, Scott argues that the trial court erred by not

allowing him to ask Senften during cross-examination if she had a pending warrant for OVI in

West Virginia. Scott claims that such evidence was relevant because “it showed that [Senften]

had motive, whether or not her beliefs were well-founded, to be less than truthful to officers
Washington App. No. 15CA2                                                                         14


about what happened the night in question”, and thus should have been admitted under Evid.R.

404(B) as evidence of other acts.

       {¶37} “The trial court has broad discretion in the admission and exclusion of evidence,

including evidence of other acts under Evid.R. 404(B).” State v. Kirkland, 

,

2014–Ohio–1966, 

. “Appeals of such decisions are considered by an

appellate court under an abuse-of-discretion standard of review.” State v. Morris, 

, 2012–Ohio–2407, 

, syllabus. The Supreme Court of Ohio has “defined

‘abuse of discretion’ as an ‘unreasonable, arbitrary, or unconscionable use of discretion, or as a

view or action that no conscientious judge could honestly have taken.’ ” 

,

quoting State v. Brady, 

, 2008–Ohio–4493, 

.

       {¶38} In general, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity therewith.” Evid.R. 404(B). “It

may, however, be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” 

       {¶39} Thus, evidence may properly be admitted under Evid.R. 404(B) to establish

motive. “However, where the purpose of the prior acts evidence is to establish ‘the motive of a

state’s witness to lie, rather than the motive of the criminal defendant to commit the alleged act,

it appears that the defendant is attempting to specifically impeach the witness’ character for

truthfulness * * * which is more appropriately accomplished through Evid.R. 607, 608, or 609.’ ”

Stow v. Braden, 9th Dist. Summit No. 22703, 

, ¶ 34, quoting State v. Lumpkin,

10th Dist. Franklin No. 91AP-567, 

, *4 (Feb. 25, 1992). Consequently, Evid.R.

404(B) is inapplicable, and we cannot say that the trial court erred in determining that the

evidence should not be admitted under Evid.R. 404(B). 

Washington App. No. 15CA2                                                                            15


        {¶40} Furthermore, evidence of Senften’s pending warrant and alleged motive to lie was

ultimately admitted through Davis’s testimony. Davis testified that Senften changed her story,

and told him that she could not tell the truth because she was worried about her warrant in West

Virginia. Davis also testified that Senften told him that she sustained her injuries to her face

when she fell. Thus, evidence of the pending warrant was ultimately admitted at trial, and the

trial court’s refusal to allow defense counsel to elicit similar testimony from Senften on cross-

examination was not prejudicial.

        {¶41} Next, Scott contends that the trial court erred by denying his counsel the

opportunity to directly examine Davis about his knowledge of Senften’s alleged history of

getting intoxicated and falling at bars and suffering similar injuries as were present in the instant

case. Scott argues that “the door was opened” for him “to provide testimony regarding prior

incidents” because Senften, “during cross examination”, denied having an alcohol problem.

        {¶42} “[W]here * * * a party chooses to open the door to otherwise inadmissible

testimony, it is within the court's discretion to allow the other party to elicit additional clarifying

testimony on the same issue.” State v. Collins, 7th Dist. Columbiana No. 

, 2011-Ohio-

6365, ¶ 93. “ ‘Under the rule of curative admissibility, or the “opening the door” doctrine, the

introduction of inadmissible evidence by one party allows an opponent, in the court's discretion,

to introduce evidence on the same issue to rebut any false impression that might have resulted

from the earlier admission.’ ” State v. Dunivant, 9th Dist. Stark No. 2003CA00175, 2005-Ohio-

1497, ¶ 12, quoting United States v. Whitworth, 

 (9th Cir.1988). “Rebuttal

evidence, the scope of which lies within the discretion of the trial court, is that which is ‘given to

explain, refute, or disprove new facts introduced into evidence by the adverse party.’ ” State v.

Essa, 

, 

, 

 (8th Dist.), quoting State v.
Washington App. No. 15CA2                                                                       16


McNeill, 

, 

 (1998). “The doctrine of ‘opening the door’ is

‘dangerously prone to overuse.’ ” State v. Gonzalez, 7th Dist. Mahoning No. 06MA58, 2008-

Ohio-2749, ¶ 114, quoting United States v. Winston, 

 (D.C.Cir.1971).

        {¶43} Here, the State did not induce any testimony regarding Senften’s history with

alcohol or prior incidents involving Senften and alcohol consumption. Rather, it was defense

counsel, upon cross-examination of Senften, who inquired whether Senften had problems with

alcohol. Thus, we cannot conclude that the State “opened the door” or that the trial court abused

its discretion by not allowing defense counsel to elicit testimony from Davis about Senften’s

prior incidents of purportedly falling and injuring herself while intoxicated.

        {¶44} For the reasons stated above, we overrule Scott’s third assignment of error.

                                            IV. CONCLUSION

        {¶45}      Having overruled all of Scott’s assignments of error, we affirm the judgment of

the trial court.

                                                                        JUDGMENT AFFIRMED.
Washington App. No. 15CA2                                                                             17


                                       JUDGMENT ENTRY

        It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

        The Court finds that reasonable grounds exist for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Washington
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Harsha, J. and McFarland, A.J.: Concur in Judgment and Opinion.

                                                        For the Court


                                                        BY: ________________________
                                                            Marie Hoover
                                                            Presiding Judge



                                      NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.