[Cite as State v. Cioffi,
2025-Ohio-423.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
CASE NO. 8-24-36
PLAINTIFF-APPELLEE,
v.
CARLOS M. CIOFFI, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
General Division
Trial Court No. CR-23 06 0137
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: February 10, 2025
APPEARANCES:
Christopher Bazeley for Appellant
Nathan Yohey for Appellee
Case No. 8-24-36
MILLER, J.
{¶1} Defendant-Appellant, Carlos Cioffi (“Cioffi”), appeals from the May
30, 2024 judgment of the Logan County Court of Common Pleas, following a jury
trial and sentencing resulting in convictions for four counts of domestic violence
and two counts of felonious assault. Cioffi argues the trial court erred in failing to
merge some of his convictions and in allowing the State to present evidence of his
prior conduct. For the reasons that follow, we agree with Cioffi regarding merger
and disagree with him regarding the evidence of his prior conduct. Accordingly,
the trial court’s judgment is reversed with respect to its failure to merge Counts 2
and 3 and with respect to its failure to merge Counts 4 and 5, and we remand the
matter for the limited purpose of resentencing Cioffi in accordance with this
opinion. In all other respects, the trial court’s judgment is affirmed.
I. FACTS AND PROCEDURAL HISTORY
{¶2} Mindy Cioffi (“Mindy”) was married to Cioffi during all relevant times
and is the alleged victim of the offenses. On June 14, 2023, Cioffi was indicted on
six charges. Counts 1, 3, 5, and 6 each charged Cioffi with committing domestic
violence, first-degree misdemeanors in violation of R.C. 2919.25(A). These four
charges stemmed from alleged incidents on January 14, March 2, March 12, and
April 22, 2023. Counts 2 and 4 both charged Cioffi with committing felonious
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assault, second-degree felonies in violation of R.C. 2903.11(A)(1). These two
charges stemmed from alleged incidents on March 2 and March 12, 2023—the same
dates as the domestic violence charges in Counts 3 and 5, respectively.
{¶3} The case proceeded to trial on April 24-25, 2024. The witnesses at trial
included a police sergeant from the Bellefontaine Police Department, Mindy, and
expert witness Deborah Brownlee (“Brownlee”). Most of the numerous exhibits
admitted at trial were photos of Mindy’s injuries allegedly inflicted by Cioffi. After
deliberation, the jury found Cioffi guilty of all six charges.
{¶4} The trial court held a sentencing hearing on May 30, 2024. The trial
court sentenced Cioffi to 180 days in jail on each of the four domestic violence
counts, four to six years in prison on Count Two for felonious assault, and four years
in prison on Count Four for felonious assault. The trial court ordered all six
sentences to be served concurrently for an aggregate total of four to six years in
prison. This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶5} Cioffi raises two assignments of error for our review:
First Assignment of Error
The trial court erred when it failed to merge Cioffi’s convictions on
Counts Two and Three, and, separately, his convictions on Counts Four
and Five.
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Second Assignment of Error
The trial court erred when it allowed the State to present evidence of
Cioffi’s prior conduct to the jury.
III. DISCUSSION
A. First Assignment of Error
{¶6} In the first assignment of error, Cioffi argues that the domestic violence
and felonious assault offenses that occurred on March 2, 2023 (i.e., Counts 2 and 3)
should have merged. He also argues that the domestic violence and felonious
assault offenses that occurred on March 12, 2023 (i.e., Counts 4 and 5) should have
merged. Notably, the State does not contest this assignment of error.
{¶7} “We review de novo whether certain offenses should be merged as
allied offenses under R.C. 2941.25.” State v. Bailey, 2022-Ohio-4407, ¶ 6. The
defendant bears the burden of establishing he or she is entitled to the protection
provided by R.C. 2941.25 against multiple punishments for a single criminal act.
State v. Washington,
2013-Ohio-4982, ¶ 18.
{¶8} When a defendant’s conduct supports multiple offenses, courts apply
the allied offenses analysis in R.C. 2941.25 to determine if the offenses merge or if
the defendant may be convicted of separate offenses. State v. Cass, 2024-Ohio-
2614, ¶ 19 (3d Dist.). The statute states:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
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(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may contain
counts for all such offenses, and the defendant may be convicted of
all of them.
R.C. 2941.25. The Supreme Court of Ohio clarified certain aspects of this statute
in State v. Ruff, 2015-Ohio-995. The court’s syllabus held:
1. In determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, courts must evaluate three
separate factors—the conduct, the animus, and the import.
2. Two or more offenses of dissimilar import exist within the meaning
of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses
involving separate victims or if the harm that results from each offense
is separate and identifiable.
3. Under R.C. 2941.25(B), a defendant whose conduct supports
multiple offenses may be convicted of all the offenses if any one of
the following is true: (1) the conduct constitutes offenses of dissimilar
import, (2) the conduct shows that the offenses were committed
separately, or (3) the conduct shows that the offenses were committed
with separate animus.
Id. at syllabus.
{¶9} The domestic violence statute provides that “[n]o person shall
knowingly cause or attempt to cause physical harm to a family or household
member.” R.C. 2919.25(A). The felonious assault statute prohibits someone from
knowingly causing “serious physical harm to another.” R.C. 2903.11(A)(1).
{¶10} Based on our review of the record, we agree with Cioffi that the
domestic violence and felonious assault offenses on March 2, 2023 (i.e., Counts 2
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and 3) should have merged and the domestic violence and felonious assault offenses
on March 12, 2023 (i.e., Counts 4 and 5) should have merged. Based on Mindy’s
testimony, the March 2, 2023 incident consisted of a single act by Cioffi (pushing
her down the porch stairs), was committed with a single animus, and resulted in the
same harm. The same is true for the March 12, 2023 incident (single punch to face).
{¶11} Accordingly, Cioffi’s first assignment of error is sustained. The trial
court’s judgment of sentence with respect to Counts 2 and 3 and with respect to
Counts 4 and 5 is reversed, and this cause is remanded for the limited purpose of
resentencing. State v. Trigg, 2016-Ohio-2752, ¶ 12-15 (2d Dist.) (trial court
committed plain error in failing to merge the felonious-assault and domestic-
violence convictions as allied offenses of similar import); State v. Brown, 2014-
Ohio-728, ¶ 3-7 (2d Dist.) (where State conceded failure to merge counts, and trial
court did not engage in merger analysis, reversing trial court’s judgment and
remanding matter for the limited purpose of merging counts and, after such merger,
allowing the State to elect either count for sentencing).
B. Second Assignment of Error
{¶12} In the second assignment of error, Cioffi argues that the trial court
erred in allowing the State to present certain evidence of Cioffi’s prior conduct
through Mindy’s testimony at trial. He claims the evidence should have been barred
as impermissible prior-acts evidence pursuant to Evid.R. 404(B). Notably, Cioffi
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does not challenge Brownlee’s qualifications to testify as an expert witness on
domestic violence or any of Brownlee’s testimony.
{¶13} Cioffi specifically complains about Mindy’s testimony on three topics
concerning their relationship prior to the charged offenses. First, Mindy testified
that Cioffi was more than just physically abusive. Specifically, when asked what
was going on in her relationship with Cioffi at the time of the events in the
indictment, Mindy testified they “weren’t getting along at all” and “[t]here was
abuse . . . in the relationship, there was control. There was emotional abuse,
financial abuse, mental abuse, physical abuse.” (Trial Tr. I at 164).
{¶14} Second, Mindy testified that Cioffi controlled all of the couple’s
money and she had to go to him for funds to purchase anything. According to
Mindy, Cioffi was “the only one that had the money and only one that had the access
to the money.” (Id. at 166). She explained how she was dependent on him for food,
medication (for her various medical issues), transportation, clothes, and even
hygiene products. She summarized: “He was my only source of financial income.”
(Id. at 168). Prior to Mindy testifying about these first two topics, the trial court
gave a limiting instruction to the jury concerning what they could and could not
consider for purposes of this testimony.
{¶15} Third, Mindy testified Cioffi had an extra-marital affair. She
explained she had suspected it based on phone records, confronted him about it, and
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he admitted it. Mindy testified she was hurt and very upset because she still loved
Cioffi and wanted to continue her relationship with him.
{¶16} In support of Cioffi’s argument that the testimony at issue constituted
impermissible prior-acts evidence under Evid.R. 404(B), he asserts that none of this
testimony was relevant; it was not offered for any purpose set forth in Evid.R.
404(B)(2); and its only purpose was to make him look bad in front of the jury and
suggest that he must have been abusive on the dates of the alleged offenses if he
was abusive in the past.
{¶17} In response, the State contends the testimony on the first two topics
provided the foundation for relevant expert testimony from Brownlee. Relatedly,
the State says it was offered in response to Cioffi criticizing Mindy’s actions and to
help the jury understand why she did not immediately report the offenses to the
police, remained in the abusive relationship with Cioffi, and lied to her doctors about
the cause of her injuries. The State also argues that, because Cioffi “introduced and
exploited his extra-marital affair to the benefit of his defense,” the testimony relating
to the affair was permissible. (Appellee’s Brief at 5).
1. Background
{¶18} Among his other defenses at trial, Cioffi sought to show that he was
not present when at least some of the alleged incidents took place because he was
living with another woman, that Mindy was angry about his infidelity, and that
Mindy was, therefore, motivated to lie in order to retaliate against him. Another
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part of the defense’s trial strategy was to highlight Mindy’s delayed reporting of the
alleged incidents and lies to doctors about the cause of her injuries.
{¶19} Cioffi’s counsel introduced these topics during opening statements
and explored them during his cross-examination of Mindy. For example, he asked
Mindy if Cioffi had been unfaithful to her and been periodically living with someone
else—including permanently as of April 22, 2023. Mindy answered affirmatively.
Defense counsel explored Mindy’s delayed disclosure by having her admit it was
not until May 7, 2023 that she reported the four separate alleged incidents to law
enforcement—despite her claim she took the pictures of her injuries shortly after
each offense. She also admitted to not telling her brother—whom she was staying
with during portions of the time period the alleged incidents occurred—that Cioffi
had beaten her up. Defense counsel was also successful in getting Mindy to admit
she may have been untruthful to her doctors about how she had sustained injuries.
The cross-examination concluded with the following exchange, where defense
counsel affirmatively used Cioffi’s control of their finances and infidelity in an
attempt to show why Mindy might be falsely accusing Cioffi of the alleged offenses:
Q: . . . And losing [Cioffi] or having him going to someone else, you
would be losing quite a bit of financial support?
A: I lost everything. I lost my house, I lost my cat, I lost my furniture.
I lost my financial support.
Q: But again - -
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A: He’s done this, I - - but it’s a normal pattern for him, he’s done it
before. He’s done it for the whole 23 years we were together, so - -
Q: And then you hadn’t filed for a divorce?
A: No, because I have no money to do so.
(Trial Tr. II at 38).
{¶20} Afterward, Brownlee testified as an expert on domestic violence,
without objection. Brownlee testified she had not done any analysis of this
particular case, had never interacted with Mindy or Cioffi, and her testimony at trial
was “to just generally discuss phenomena that [Brownlee had] experienced as an
expert in domestic violence.” (Id. at 59-60). Among other testimony, Brownlee
explained that a woman who has been physically harmed by a husband or significant
other over a period of time may have difficulty taking steps to seek outside help,
may have a perceived inability of escaping the abuse, and—in a “counterintuitive
manner”—may feel she needs “to stay close to the batterer” to “be sure that he won’t
hurt me.” (Id. at 66-67). Brownlee said it is typical for such victims not to call the
police when the abuse happens and to still love their abuser (“they love their
abuser,” but “hate the abuse”). (Id. at 83). She also said it can be difficult for such
victims who are dependent on their abuser to leave the situation.
2. Applicable Law and Standards of Review
{¶21} “Evid.R. 404(B) does not contain a blanket prohibition on the
introduction of other-acts evidence.” State v. Echols, 2024-Ohio-5088, ¶ 30.
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Instead, it “broadly prohibits the use of ‘[e]vidence of any other crime, wrong, or
act . . . to prove a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.’” Id. at ¶ 24, quoting Evid.R.
404(B)(1). The rule goes on to reference permitted uses of other crimes, wrongs, or
acts: “This evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Evid.R. 404(B)(2). Importantly, “[t]hough Evid.R.
404(B) lists specific examples of permissible nonpropensity purposes for which
other-act evidence may be admitted, its list is not exhaustive.” Echols at ¶ 31. “The
key [to admissibility] is that the evidence must prove something other than the
defendant’s disposition to commit certain acts.” State v. Hartman,
2020-Ohio-4440,
¶ 22 (“evidence of other acts is admissible when the evidence is probative of a
separate, nonpropensity-based issue”).
{¶22} In considering other-acts evidence, “trial courts should conduct a
three-step analysis.” State v. Williams, 2012-Ohio-5695, ¶ 19. “The first step is to
consider whether the other acts evidence is relevant to making any fact that is of
consequence to the determination of the action more or less probable than it would
be without the evidence.” Id. at ¶ 20, citing Evid.R. 401. “[I]t is not enough to say
that the evidence is relevant to a nonpropensity purpose.”
Hartman at ¶ 27. “The
nonpropensity purpose for which the evidence is offered must go to a ‘material’
issue that is actually in dispute between the parties.”
Id.
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{¶23} The second step “is to consider whether evidence of the other crimes,
wrongs, or acts is presented to prove the character of the accused in order to show
activity in conformity therewith or whether the other acts evidence is presented for
a legitimate purpose, such as those stated in Evid.R. 404(B).” Williams at ¶ 20.
“[C]ourts must scrutinize the proponent’s logic to determine exactly how the
evidence connects to a proper purpose without relying on any intermediate
improper-character inferences.”
Hartman at ¶ 23.
{¶24} “The third step is to consider whether the probative value of the other
acts evidence is substantially outweighed by the danger of unfair prejudice.”
Williams at ¶ 20, citing Evid.R 403. Given that the evidence rules do not bar all
prejudicial evidence but only that which is unfairly prejudicial, “the primary
concern is that the evidence creates an undue tendency to lead the factfinder to find
guilt based on an impermissible character-based inference.” Echols, 2024-Ohio-
5088, at ¶ 41; see also State v. Creech,
2016-Ohio-8440, ¶ 36 (if the evidence
arouses the jury’s emotional sympathies, evokes a sense or horror, or appeals to an
instinct to punish, the evidence may be unfairly prejudicial). Such evidence must
be excluded when its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury. Hartman, 2020-
Ohio-4440, at ¶ 29, citing Evid.R. 403(A).
{¶25} Under Evid.R. 404(B), “[t]he determination of whether other-acts
evidence is admitted for a permissible purpose is a question of law, which we review
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de novo.” Echols, 2024-Ohio-5088, at ¶ 30, citing Hartman,
2020-Ohio-4440, at ¶
22. However, the portion of our analysis regarding whether the probative value of
the other-acts evidence is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury is reviewed for an abuse
of discretion. Id. at ¶ 38-39, citing
Hartman at ¶ 30. A trial court abuses its
discretion when its conduct is unreasonable, arbitrary, or unconscionable. State v.
Hill,
2022-Ohio-4544, ¶ 9.
3. Analysis
{¶26} Looking to the first step of the analysis from Williams, we find the
testimony at issue was relevant. Although there are various hurdles and limitations
to do so, the Supreme Court of Ohio has decided that expert testimony concerning
battered-woman syndrome can be introduced by the State through a qualified
witness under certain circumstances, in order to aid the trier of fact in understanding
the victim’s actions. State v. Haines, 2006-Ohio-6711, ¶ 44-47, 50, 65; see also
Williams,
2012-Ohio-5695, at ¶ 22 (victim’s testimony about prior act was relevant
to rebut defenses suggested during the defendant’s opening statement). “‘Generally,
battered woman syndrome testimony is relevant and helpful when needed to explain
a complainant’s actions, such as prolonged endurance of physical abuse
accompanied by attempts at hiding or minimizing the abuse, delays in reporting the
abuse, or recanting allegations of abuse.’”
Haines at ¶ 44, quoting People v.
Christel,
449 Mich. 578, 580 (1995). For example, in Haines, testimony concerning
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the defendant’s psychological abuse of the victim and controlling behavior was
relevant to support testimony by an expert witness. Id. at ¶ 44-45, 50. The defense
on cross-examination of the victim attacked her behavior following the incidents of
alleged abuse—she did not report the abuse, she gave differing explanations
regarding some of her injuries, and she remained in the relationship. Id.
{¶27} Here, in view of Cioffi’s attacks on Mindy’s delayed reporting of the
alleged incidents, lying to her doctors, and decision to remain in her relationship
with Cioffi, we find her testimony at issue concerning past abuse and control was
relevant. It related to a material issue in dispute between the parties. See id.; State
v. Harris, 2023-Ohio-3994, ¶ 98-99 (10th Dist.) (victim’s testimony concerning
previous threats made by defendant was relevant where part of defense’s trial
strategy was to undermine the veracity of victim’s allegations by emphasizing her
delay in reporting the offense).
{¶28} Next, the State’s purpose in eliciting the testimony concerning past
abuse and conrol was to provide the necessary foundation for Brownlee’s expert
testimony—a prerequisite to allowing the State to introduce expert testimony on
battered-woman syndrome in a domestic violence case. Haines at ¶ 46; State v.
McKelton,
2016-Ohio-5735, ¶ 163-164 (prosecutors established an adequate
foundation for the expert testimony by presenting evidence that defendant and
victim were in a cycle of domestic violence). It was presented for a “legitimate
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purpose,” not to prove Cioffi’s character “in order to show that the conduct was in
conformity with that character.” Williams, 2012-Ohio-5695, at ¶ 20, 23.
{¶29} Generally, expert testimony about battered-woman syndrome may be
used if there is some evidentiary foundation that a party or witness to the case is a
battered woman and that party or witness has behaved in such a manner that a jury
would be aided by expert testimony providing an explanation for the behavior.
McKelton at ¶ 163; Haines,
2006-Ohio-6711, at ¶ 46. The testimony at issue here
established the foundation and relevance for portions of Brownlee’s testimony.
Haines,
2006-Ohio-6711, at ¶ 45-46, 50; State v. Drew,
2008-Ohio-2797, ¶ 53 (10th
Dist.). One of Cioffi’s trial strategies was to suggest Mindy had fabricated the
incidents alleged in the indictment because she delayed in reporting them.
Consequently, Mindy’s testimony was pertinent for the jury to understand her
actions and as foundational testimony in order for Brownlee to offer her expert
opinion.
Drew at ¶ 54; see also State v. Lucas,
2020-Ohio-1602, ¶ 85, 88 (8th Dist.)
(victim’s testimony was not offered to prove defendant acted in conformity with his
character as an abusive, jealous, or controlling boyfriend, but rather to show the
relationship was strained). Thus, we disagree with Cioffi’s assertion that the only
purpose of this testimony was to make him look bad in front of the jury and suggest
that he must have been abusive on the dates of the alleged offenses because he was
abusive in the past. Additionally, the trial court gave a limiting instruction to the
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jury concerning what they could and could not consider for purposes of that
testimony. See Williams, 2012-Ohio-5695, at ¶ 23.
{¶30} Regarding the third step, the trial court did not abuse its discretion in
determining the probative value of the testimony at issue was not substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury. This testimony was necessary foundation to permit the expert testimony.
In addition it was probative in attempting to counter some of Cioffi’s defenses. We
further note that Cioffi does not challenge Brownlee’s expert testimony; his
challenge is limited to Mindy’s testimony. Compare Haines, 2006-Ohio-6711, at ¶
55-58, 61, 63 (trial court erred in permitting certain testimony from battered-
woman-syndrome expert witness without tailoring the scope of the State’s
questioning or instructing the jurors as to the limits of the expert’s testimony, such
that the expert’s testimony “crossed the line” and was unfairly prejudicial).
{¶31} We also find Mindy’s testimony that Cioffi had an extra-marital affair
to be relevant, presented for a legitimate purpose, and not unfairly prejudicial,
particularly given Cioffi’s own reliance on his infidelity to show he may have been
elsewhere during the alleged incidents and that Mindy had motivation to falsely
accuse him of the alleged offenses. See Williams, 2012-Ohio-5695, at ¶ 22; State v.
Hymes,
2021-Ohio-3439, ¶ 43-44 (7th Dist.) (to establish a relevant, permissible use
of other-acts evidence, the State may rely on the defendant’s pretrial statements that
a particular defense will be presented in the case).
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{¶32} Cioffi’s second assignment of error is overruled.
IV. CONCLUSION
{¶33} For the foregoing reasons, Cioffi’s first assignment of error is
sustained and his second assignment of error is overruled. Having found error
prejudicial to the appellant in the particulars assigned and argued, we vacate the
judgment of sentencing issued by the Logan County Court of Common Pleas with
respect to its failure to merge Counts 2 and 3 and its failure to merge Counts 4 and
5, and we remand this cause for further proceedings consistent with this opinion. In
all other respects, the trial court’s judgment is affirmed.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
WALDICK, P.J. and ZIMMERMAN, J., concur.
/jlm
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