The Akron Legal News

Court rules wife's testimony allowable in domestic violence case

ANNIE YAMSON
Special to the Legal News
Published: November 8, 2013

The 11th District Court of Appeals recently released an opinion affirming the judgment of the Ashtabula County Court of Common Pleas convicting Donald Kelly of one count of domestic violence.

Upon his appeal, Kelly argued that the trial court allowed an incompetent witness to testify when it permitted his wife to take the stand.

The Ashtabula Court disagreed.

Case summary stated that Kelly’s indictment stemmed from an incident that took place on July 5, 2012.

The charge alleged violence against Kelly’s stepson, E.S., who was 10 years old at the time.

In the early morning hours, police responded to a phone call by a neighbor reporting a domestic dispute at the home of Kelly’s wife, Wanda Kelly, and her three children, including E.S.

Wanda had an active restraining order against Kelly and, when Officer Christopher Defina responded to the emergency call, he testified that he could hear Wanda yelling, “get out, get out” and saw Kelly exit the home.

Kelly was immediately placed under arrest for violating the terms of his restraining order.

E.S. was injured, unable to open his jaw and the inside of his lip was cut.

He told the officer that he was helping his mother push Kelly out of the house when Kelly punched him in the face.

A neighbor, Sharonn Bowden, came over to help Wanda and E.S. and Kelly attempted to choke Bowden, who was able to free himself.

Bowden took E.S. next door to his home for safety while they waited for the police.

E.S. was later taken to the hospital for treatment and Wanda provided a written statement.

She indicated that she had repeatedly asked Kelly to leave the house but he refused and “hit one of her boys.”

At trial, Wanda was called as a court’s witness because she refused to answer any phone calls from or to get in contact with the prosecution.

E.S. was also called as a court’s witness when he recanted his statements that he had made to police on the night of the incident.

Both Wanda and E.S. stated that the confrontation did not take place as they initially described it and they told the court that they lied because they were angry at Kelly.

Wanda claimed that, from that night, she only remembered Kelly and Bowden fighting, the police showing up and taking E.S. to the hospital.

E.S. stated that he jumped on Kelly’s back during the fight with Bowden and that Bowden, in an attempt to swing at Kelly, missed and accidentally punched E.S.

Wanda stated that she wrote the police statement because she was angry with Kelly at the time.

Despite the inconsistent statements, Kelly was found guilty of domestic violence and the trial court sentenced him to serve 36 months in jail followed by three years of post-release control.

Kelly stated in his appeal that Wanda was not competent to testify and that permitting her testimony constituted plain error by the trial court.

“He contends that because the trial court did not instruct Wanda regarding spousal competency or make a finding on the record that she voluntarily elected to testify, she was incompetent to do so,” wrote Judge Thomas Wright on behalf of the appellate court.

Kelly contended that Wanda was not informed of her right not to testify against her husband, but the appellate panel held that Kelly’s crime was an exception.

Judge Wright cited Evid.R. 601, which provides that a spouse testifying against another spouse charged with a crime is an incompetent witness, except when the crime is against the testifying spouse or a child of either spouse.

“Wanda was a competent witness because the crime charged was against her son, i.e. ‘a crime against a child of either spouse,’” wrote Judge Wright. “Thus, it was not necessary ... for the trial court to instruct Wanda of her right to choose not to testify or for Wanda to elect to testify on the record.”

The appellate panel also noted that it was unclear how permitting Wanda to testify affected Kelly’s rights.

It found that Wanda was called as a court’s witness because she was impeached by the prosecution with her prior inconsistent statements.

“She testified in favor of appellant,” Judge Wright stated. “Accordingly, even if her testimony had been admitted erroneously, it did not adversely affect appellant.”

The court of appeals proceeded to overrule claims from Kelly stating that his counsel was ineffective and that his conviction was against the manifest weight and sufficiency of the evidence.

The judgment of the Ashtabula County court of common pleas was affirmed with Judges Diane Grendell and Cynthia Rice joining Judge Wright to form the majority.

The case is cited State v. Kelly, 2013-Ohio-4755.

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