author: BROWN, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Shawn FUDGE, Defendant-Appellant.
    No. 16AP-821
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on February 15, 2018
    On brief: Richard C. Pfeiffer, Jr., City Attorney, Lara N. Baker, Melanie R. Tobias, Zachary Gwin, and Orly Ahroni, Columbus, for appellee. Argued: Zachary Gwin.
    On brief: The Koffel Law Firm, Bradley P. Koffel, Columbus, and Eric E. Willison, Hilliard, for appellant. Argued: Eric E. Willison.
    DECISION
   BROWN, P.J.

{¶ 1} This is an appeal by defendant-appellant, Shawn Fudge, from a judgment of conviction and sentence entered by the Franklin County Municipal Court following a jury trial in which he was found guilty of operating a vehicle under the influence of alcohol, and operating a vehicle under the influence of alcohol with a refusal to submit to chemical testing and a qualifying prior conviction within the past 20 years.

{¶ 2} On February 2, 2016, appellant was charged with operating a vehicle under the influence of alcohol ("OVI"), in violation of R.C. 4511.19(A)(1), OVI with a refusal to submit to a chemical test and a prior conviction within 20 years, in violation of R.C. 4511.19(A)(2), and failure to use a turn signal, in violation of R.C. 4511.39. The matter came for trial before a jury beginning September 26, 2016.

{¶ 3} The first witness for plaintiff-appellee, State of Ohio, was Bruce Allen, currently employed by the Ohio State University Police Department. Allen was previously employed as a trooper with the Ohio State Highway Patrol ("OSHP"), and was working in that capacity during the events at issue.

{¶ 4} On February 1, 2016, shortly after midnight, Allen was in a marked OSHP cruiser on Hudson Street when he observed a vehicle driven by appellant. Allen turned onto Interstate 71 and "accelerated at a normal speed" when he noticed appellant's vehicle "was accelerating at a much faster rate than mine." Allen "sped up" to pace appellant's speed, and Allen "had to speed up * * * over 100 miles per hour to catch back up to him." (Tr. at 139.) Allen testified he looked at his speedometer and "we were both going over 90 at that point." (Tr. at 140.)

{¶ 5} Allen initiated a traffic stop of the vehicle, at which time he "detected an odor of an alcoholic beverage coming from the vehicle." Appellant told Allen he was "coming from a birthday party," and "stated that he had consumed some alcoholic beverages." Appellant's "eyes were red" and his "speech was lethargic" or "[s]lurred." (Tr. at 142.) Allen requested appellant exit the vehicle to perform a field sobriety test. Allen performed the horizontal gaze nystagmus ("HGN") test and observed nystagmus in both of appellant's eyes.

{¶ 6} Allen "called for another trooper to come to the scene * * * to proceed with the investigation at this point" because it was his last week of employment with OSHP and he did not want to "take any more cases on for fear of not being available to testify." (Tr. at 150.) A second trooper arrived at the scene of the stop about ten minutes later and agreed to take over the investigation.

{¶ 7} On February 1, 2016, OSHP Trooper Brandi Allen (hereafter "Trooper Brandi") received a dispatch requesting assistance with a traffic stop. When Trooper Brandi arrived at the scene, she was advised by Bruce Allen that he had "stopped the vehicle for a turn signal violation and had to travel at speeds up to a hundred miles per hour in order to catch up to the vehicle." The driver was seated in the rear of Bruce Allen's patrol car; Bruce Allen indicated he had conducted the HGN test on the driver and "observed six clues." (Tr. at 175.) Because the trooper who initiated the stop was "getting ready to leave the highway patrol and go to another agency," the decision was made for Trooper Brandi to take over the primary duties with respect to the traffic stop. (Tr. at 178.)

{¶ 8} When Trooper Brandi first approached the other trooper's patrol car and opened the door, she "could observe [appellant] had bloodshot, glassy eyes," and she "could smell the odor of an alcoholic beverage coming from the rear of the patrol car." (Tr. at 185.) Trooper Brandi conducted the HGN test on appellant and observed six out of six potential clues.

{¶ 9} Trooper Brandi then had appellant perform the "walk-and-turn" test, which has eight clues. (Tr. at 184.) She testified that the presence of two out of eight clues is a reliable indicator of a blood alcohol content greater than .10. Trooper Brandi observed the presence of five clues during the walk-and-turn test. Specifically, she noted that appellant used his arms for balance, he took an "improper turn on the first nine steps," his first step was "off the line," he stopped on the fourth step, and he took 13 steps instead of 9 as instructed. On the second 9 steps, appellant's first 2 steps "were off the line," and he took a total of 17 steps. (Tr. at 190.)

{¶ 10} Trooper Brandi also instructed appellant to perform the "[o]ne-leg stand test." (Tr. at 191.) Appellant exhibited three out of four clues on this test; specifically, appellant "swayed, used his arms for balance, [and] put his foot down twice." (Tr. at 192-93.) According to Trooper Brandi, the presence of two clues is a reliable indicator of a blood alcohol content above .10.

{¶ 11} Trooper Brandi then instructed appellant to recite the alphabet "from the letter D to the letter X without singing it." (Tr. at 194.) She testified appellant was "unable to say it correctly." (Tr. at 195.) At the time, appellant admitted "he messed up the alphabet." (Tr. at 219.) Following administration of the alphabet test, Trooper Brandi placed appellant under arrest for OVI.

{¶ 12} Trooper Brandi offered appellant a breath test, but he refused to give a sample for testing. She testified she advised appellant of the potential penalties for refusing a breath test based on a prior conviction.

{¶ 13} During its case-in-chief, the state played a video depicting the interaction of the OSHP troopers with appellant, including Trooper Brandi's administration of the field sobriety testing. At trial, the state introduced as Exhibit No. 3 a vehicle inventory/custody report which indicated law enforcement personnel recovered from appellant's vehicle a "Pike Creek whiskey 750 milliliter filled to [the] shoulder." (Tr. at 218.) Also at trial, the parties stipulated appellant "was previously convicted of operating a vehicle under the influence of alcohol, a violation of Revised Code 4511.19, in Licking County Municipal Court, Case No. 10 TRC 8628, on January 25, 2011." (Tr. at 228.)

{¶ 14} Archie D. Williamson was called as a witness on behalf of appellant. On January 31, 2016, Williamson, who is engaged to appellant's mother, was at the Rumba Café with appellant's mother and appellant. Williamson and appellant's mother arrived at approximately 10:00 p.m., while appellant arrived between 10:15 and 10:30 p.m. During the evening, Williamson observed appellant "have one drink." They also ordered and ate a pizza at the establishment that evening. Williamson and appellant's mother left the Rumba Café between 11:30 and 11:45 p.m. According to Williamson, appellant left about the time "we were pulling out" of the parking lot. (Tr. at 245.) Williamson testified he did not notice any impairment on the part of appellant that evening.

{¶ 15} On cross-examination, Williamson stated when appellant arrived at the Rumba Café he mentioned that he had earlier been at "the casino" for a birthday party. (Tr. at 246.) Williamson estimated that approximately 15 of appellant's friends were at the Rumba Café that evening. Williamson thought he observed appellant with a "mixed drink" at the café. (Tr. at 248.)

{¶ 16} Laverne Blanchard Fudge is appellant's mother. On January 31, 2016, Fudge met appellant at the Rumba Café. She arrived with Williamson around 10:00 p.m., and appellant arrived around 10:15 p.m. Fudge and Williamson left the café that evening around 11:30 p.m., and appellant "walked out the door * * * with us." (Tr. at 251.)

{¶ 17} Fudge testified she observed appellant with "one drink" that evening. (Tr. at 252.) Fudge stated she was with her son the entire time while at the café, and she did not observe anything she thought might indicate her son was impaired. When asked on direct examination whether she would have let her son drive home if she thought there was a chance he was impaired, Fudge responded: "Absolutely, positively not." (Tr. at 271.)

{¶ 18} On cross-examination, Fudge stated that approximately ten of appellant's friends were at the Rumba Café that evening. When asked what appellant was drinking that evening, Fudge described the drink as "brown, had a lot of ice in it, and I kept thinking that thing has got to be watered down because he literally held onto that drink the whole time we were there. He had one drink and he sipped on it the whole time. It had ice in it." (Tr. at 276.) Fudge stated she was not at the casino with appellant earlier that evening.

{¶ 19} Appellant testified on his own behalf, and stated he was previously employed as a route driver with Culligan Water. On January 31, 2016, prior to going to the Rumba Café, appellant met some friends at the casino; he denied having anything to drink while there. Appellant stated he spent most of the time at the casino "talking to my friend that's sober about how he * * * makes mixed drinks." (Tr. at 287.)

{¶ 20} Appellant left the casino at approximately 9:30 p.m. He then went to the Rumba Café for "about an hour and a half." (Tr. at 287.) Appellant testified that he ate pizza and had one "whiskey Coke." Appellant stated he ordered the drink "before dinner, and * * * really didn't finish it, to be honest. It was basically clear. I mean, all the ice melted. It wasn't really that good by the end of it. Flat pop is not something good to drink." Appellant was with a group of friends, but testified he "spent the majority of the time with [his] mom and Archie." (Tr. at 288.) He stated the band played "three Michael Jackson songs in a row and one of [his] buddies likes Michael Jackson and just moonwalks everywhere. So the only time I really left and hung out with my friend was just to video tape him doing the moonwalk when he was going crazy." (Tr. at 289.)

{¶ 21} Appellant's mother and Williamson left the café "a little before midnight." Appellant, who was living at his mother's residence, left "[a]bout the same time." (Tr. at 289.) On the way home, a trooper stopped his vehicle. When asked if he knew why he was being pulled over, appellant responded: "No. Actually, I pulled over to let him by." (Tr. at 289.) The trooper "said I was speeding. And my response was I never speed. People don't like driving with me because I drive the speed limit." (Tr. at 290.) The trooper asked where he had been, and appellant said he "was leaving Rumba." The trooper asked if he had anything to drink, and appellant "said I had a drink." (Tr. at 291.) Appellant denied the trooper who initiated the stop administered the HGN test with a pen.

{¶ 22} A second trooper arrived and this trooper administered "the eye test." (Tr. at 294.) Appellant stated he told the trooper he had "old contacts and I had astigmatism and I asked her if it was okay if I blink." The trooper instructed appellant to perform the "stand-on-one-leg test." Appellant was wearing "an old pair of cowboy boots" that evening. (Tr. at 296.) Appellant related that he had "two surgeries. I have a metal rod and I have screws in my knees and screws in my hips." (Tr. at 297.) The trooper administered the alphabet test, and appellant "thought [he] did good." (Tr. at 298.)

{¶ 23} Appellant refused the troopers request to submit to a breath test. He explained he refused the test because "that's what I was told." He also stated that "they're faulty." (Tr. at 299.)

{¶ 24} On cross-examination, appellant was questioned about a bottle of whiskey found in the backseat of his vehicle. Appellant related that he was going to take the whiskey to a friend's house. According to appellant, the friend "likes that whiskey so I was going to give it to him." (Tr. at 304.) Appellant stated that he forgot about the whiskey bottle, and that it had "probably been in there for a couple weeks." (Tr. at 305.) Appellant, who testified he suffered a knee injury in 2010 or 2011, indicated his job delivering salt and water for Culligan Water required him to lift 50 pound bags of salt and water.

{¶ 25} Appellant testified the only reason he had a drink at the Rumba Café "is because I didn't have to pay the cover fee." (Tr. at 310.) Appellant acknowledged that he drinks "socially." (Tr. at 312.) He left the Rumba Café about a "quarter till midnight." (Tr. at 314.) He denied speeding that evening. According to appellant, he did not hear Trooper Brandi instruct him to take nine steps on the walk-and-turn and nine steps back. He acknowledged telling the trooper he understood her questions, and also acknowledged correcting himself during the alphabet test.

{¶ 26} Appellant stated he was told to refuse the breath test from "friends that have been through it and they've talked to their lawyer's. I mean you can't trust it." (Tr. at 331.) He acknowledged having a previous OVI, and he knew that if he refused the test he could lose his license for a longer period of time.

{¶ 27} Following deliberations, the jury returned verdicts finding appellant guilty of both OVI and OVI with a refusal to submit to a chemical test and a prior qualifying conviction within the past 20 years. The trial court made a separate finding of guilty as to the offense of failure to signal.

{¶ 28} By entry filed November 1, 2016, the trial court sentenced appellant to a 180-day jail term, with 160 days suspended. The court also placed appellant on probation for two years.

{¶ 29} On appeal, appellant sets forth the following four assignments of error for this court's review:

I. The Trial Court erred when it denied the admission of evidence of the death of Appellant's father as bolstering evidence.
II. The Trial Court erred When It Applied the Wrong Test for Bolstering.
III. The Trial Court Erred When It * * * Found Evidence of the Death of Appellant's Father to be Unfairly Prejudicial.
IV. The State of Ohio committed prosecutorial misconduct during its rebuttal to the Appellant's closing argument and the Trial Court erred in ignoring the Appellant's counsel's protests about this.

{¶ 30} Appellant's first, second, and third assignments of error are interrelated and will be considered together. Under these assignments of error, appellant argues the trial court erred in: (1) declaring evidence of his father's death inadmissible as bolstered evidence, (2) utilizing the wrong test for bolstering, and (3) finding evidence of his father's death to be unfairly prejudicial.

{¶ 31} By way of background, during the direct examination of appellant's mother, Laverne Fudge, the state objected to an inquiry by defense counsel regarding appellant's father. Outside the hearing of the jury, the state indicated the objection was based on the anticipation that "this line of questioning is directing this witness toward the fact that the defendant's father passed away in an OVI accident." (Tr. at 253.) Defense counsel responded the prosecutor "is right, that is where it's going," but argued that such evidence was relevant to demonstrate why appellant's mother "is going to pay attention" to how much alcohol her son had at the bar on the evening in question because of concern about "what happened with her husband." (Tr. at 253, 254.) Defense counsel further argued it was "extremely important for her to be able to add to her credibility." (Tr. at 254.)

{¶ 32} In response, the state argued that defense counsel was seeking to bolster the credibility of the witness "in a way that is way more prejudicial than probative." (Tr. at 254.) The state requested a motion in limine to preclude the witness from testifying as to "the OVI-related death in her family." (Tr. at 257.)

{¶ 33} The trial court, in addressing the respective arguments, stated that "the ultimate test" is whether the testimony "is * * * more prejudicial than probative." (Tr. at 261.) Outside the presence of the jury, counsel for appellant questioned appellant's mother on voir dire. Fudge testified that she had been married to Lamar Fudge for "about four years," and that he "was killed while driving and drinking because his friend let him leave a party after he had been drinking." Fudge further testified: "I would never let any of my sons, as long as they were with me anywhere, leave if I thought they had been drinking and could not drive because I would not want to sit at a funeral and hold his baby while he's in a casket like I had to hold my children because my husband died because somebody let him leave a party. So, no, I would not let him drive." (Tr. at 262.)

{¶ 34} Following voir dire of the witness, the court stated it was required to "weigh whether that is too prejudicial to be addressed in the way it was addressed on the stand." (Tr. at 263.) After entertaining arguments from both sides, the trial court sustained the state's objection, ruling that it was "going to disallow specifics." The court elaborated that the witness "can testify as to what she observed. She can testify as to her beliefs that it would be inappropriate for him to leave if he were intoxicated. But as to the specifics of a personal loss directly related to this charge, the Court is going to disallow that testimony." (Tr. at 268.) Fudge subsequently testified before the jury on direct examination (as noted under the facts) that she would not have let her son drive home if she thought there was a chance he was impaired.

{¶ 35} Appellant contends defense counsel's attempt to elicit testimony by appellant's mother that her husband died as a result of drinking and driving did not implicate impermissible bolstering; according to appellant, a witness' explanation as to why they paid special attention to a matter most people might view as trivial is not bolstering. Appellant contends the trial court should have analyzed any claim of bolstering based on a definition from Black's Law Dictionary, defining the term bolstering as "when one item of evidence is improperly used by a party to add credence or weight to some earlier unimpeached piece of evidence offered by the same party." Black's Law Dictionary 176 (6th Ed. 1990).

{¶ 36} Appellant argues the trial court improperly applied an Evid.R. 401 (relevance) versus Evid.R. 403 (probative value versus unfair prejudice) analysis to determine whether the evidence constituted improper bolstering. Appellant further argues that, to the extent the trial court performed such an analysis, the evidence was not unfairly prejudicial, citing this court's decision in State v. Urbina, 2016-Ohio-7009, 72 N.E.3d 105, ¶ 28 (finding abuse of discretion by trial court in precluding witness from testifying about suffering a miscarriage immediately after car accident, as witness's testimony regarding her actions the night of the accident would have aided the jury in assessing her credibility, and the danger of unfair prejudice would not have outweighed its probative value under Evid.R. 403 ).

{¶ 37} In response, the state argues that, because the trial court excluded the evidence on the basis of Evid.R. 403(A), appellant's argument that the excluded evidence did not constitute improper bolstering is immaterial. The state further maintains the trial court properly excluded the evidence as unduly prejudicial under Evid.R. 403(A).

{¶ 38} As noted, appellant's counsel argued at trial that the testimony at issue was relevant in explaining why appellant's mother paid close attention to how much alcohol her son consumed at the café, and that its admission would "add to her credibility." In reviewing the trial court's ruling, we are cognizant the court did not preclude the witness from testifying as to the amount of alcohol she observed her son consume (or as to "her beliefs that it would be inappropriate for him to leave if he were intoxicated") but, rather, limited the testimony to exclude evidence relating to her husband's alcohol-related death several years earlier. In general, " Evid.R. 403(A) favors the admissibility of evidence," and relevant evidence "should be viewed in a light most favorable to the proponent, in effect maximizing its probative value and minimizing any prejudicial effect." State v. Chaney, 4th Dist. No. 01CA41, 2002-Ohio-2605, 2002 WL 1291388, ¶ 15, citing State v. Maurer, 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984). In our view, the excluded evidence could have assisted the trier of fact in assessing the mother's testimony, and we do not agree with the trial court's conclusion that its admission was so prejudicial as to render it inadmissible. However, while we believe the trial court erred in excluding the subject testimony, we find the error to be harmless.

{¶ 39} Under Ohio law, "an accused has 'a constitutional guarantee to a trial free from prejudicial error, not necessarily one free of all error.' " State v. Tucker , 12th Dist. No. CA2010-10-263, 2012-Ohio-139, 2012 WL 131424, ¶ 17, quoting State v. Swartsell , 12th Dist. No. CA2002-06-151, 2003-Ohio-4450, 2003 WL 21998619, ¶ 31. Pursuant to Crim.R. 52(A), "any error, defect, irregularity or variance that does not affect the accused's substantial rights shall be disregarded as harmless error." Tucker at ¶ 17. In this respect, "[a] finding of harmless error is appropriate where there is 'overwhelming evidence of guilt' or 'some other indicia that the error did not contribute to the conviction.' " Id. , quoting State v. Sims, 12th Dist. No. CA2007-11-300, 2009-Ohio-550, 2009 WL 295402, ¶ 34. See also State v. Irby, 11th Dist. No. 2015-Ohio-5467, 2015 WL 9485735, ¶ 96, citing State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 29 ("Error is harmless when the remaining evidence of guilt is overwhelming.").

{¶ 40} An error by the trial court in excluding evidence "is harmless 'if such evidence would not negate the overwhelming proof of defendant's guilt.' " State v. Johnson , 3d Dist. No. 9-10-47, 2011-Ohio-994, 2011 WL 773407, ¶ 64, quoting State v. Gilmore, 28 Ohio St.3d 190, 193, 503 N.E.2d 147 (1986). See also State v. Smith , 3d Dist. No. 8-12-05, 2013-Ohio-746, 2013 WL 793208, ¶ 20 ("The improper exclusion of evidence is harmless where the remaining evidence provides overwhelming proof of a defendant's guilt."); State v. West , 10th Dist. No. 06AP-111, 2006-Ohio-6259, 2006 WL 3438651, ¶ 9 (noting that an "appellate court will not reverse a judgment for improper exclusion of evidence on a basis of error that is harmless," and that "error is harmless if the jury would not have rendered a different verdict had the excluded evidence been admitted at trial").

{¶ 41} In the present case, any error by the trial court in excluding the testimony at issue was harmless based on overwhelming evidence of appellant's intoxication. At trial, the state presented extensive evidence as to the troopers' observations of appellant at the time of the stop, including his performance on the field sobriety tests. Bruce Allen testified he paced appellant's vehicle as traveling "over 90" m.p.h. prior to initiating the stop. Following the stop, and upon approaching appellant's vehicle, the trooper detected an odor of alcohol. Appellant told the trooper he was "coming from a birthday party," and that he "had consumed some alcoholic beverages." The trooper noted appellant's "eyes were red" and his speech was "[s]lurred." The trooper performed the HGN test and observed nystagmus in both of appellant's eyes.

{¶ 42} Trooper Brandi arrived shortly after the traffic stop and conducted a number of field sobriety tests. She could smell the odor of alcohol from where appellant was seated in the patrol car, and observed appellant had bloodshot, glassy eyes. Trooper Brandi administered the HGN test on appellant and observed six out of six clues for nystagmus. She next administered the walk-and-turn test, in which the presence of two out of eight clues is a reliable indicator of impairment. On the walk-and-turn test, appellant exhibited five out of eight clues; specifically, appellant used his arms for balance, stepped off the line, took an improper turn, stopped on the fourth step and took 13 steps forward (instead of 9) and 17 steps back (instead of 9).

{¶ 43} Trooper Brandi administered the one-leg stand test, in which the presence of two out of four clues is a reliable indicator of impairment. Appellant exhibited three out of four clues as he swayed, used his arms for balance, and twice put his foot down. Trooper Brandi also administered the alphabet test, and appellant was "unable to say it correctly." (Tr. at 195.) Appellant refused to take a breath test, despite Trooper Brandi informing him that he faced a two-year suspension based on a prior conviction. She also found a whisky bottle, filled to the shoulder, in appellant's vehicle. Further, the jury had the opportunity, based on the state's introduction of video from the patrol cars, to view the troopers' interaction with appellant, including Trooper Brandi's administration of the field sobriety tests.

{¶ 44} Here, even if the excluded testimony (as to the death of Laverne Fudge's husband) had been admitted, such evidence would not have negated the overwhelming proof of appellant's guilt which included, as cited above, evidence as to appellant's operation of his vehicle at over 90 m.p.h., the troopers' detection of the odor of alcohol, glassy eyes, slurred speech, appellant's admission that he had been drinking, the testimony of the troopers that he failed all field sobriety tests administered (i.e., the HGN test, the walk-and-turn test, the one-leg stand test, and the alphabet test), the discovery of a whiskey bottle in his vehicle, and his refusal to submit to a breath test. See , e.g. , Bedford Heights v. Nieminen , 8th Dist. No. 71826, 1997 WL 723404 (Nov. 20, 1997) (while it may have been error for trial court to exclude testimony by defendant's expert, such exclusion was not prejudicial because of overwhelming evidence of defendant's intoxication, including evidence that officer noted strong odor of alcohol, slurred speech, and glassy eyes, and that defendant failed to adequately perform field sobriety tests and refused to submit to breath alcohol test). Because the state presented overwhelming evidence of appellant's intoxication, any error by the court in excluding the testimony at issue was harmless beyond a reasonable doubt.

{¶ 45} Accordingly, appellant's first, second, and third assignments of error are without merit and are overruled.

{¶ 46} Under the fourth assignment of error, appellant contends the prosecutor engaged in misconduct during closing argument by attacking the credibility of Laverne Fudge. Appellant points to a comment by the prosecutor that Williamson and Fudge "obviously had talked about this during the six months that happened in the meantime." According to appellant, the prosecutor's comment suggests these witnesses were colluding. Appellant also challenges a statement by the prosecutor regarding Fudge's testimony that she recalled "looking at that glass. There was a lot of ice in that glass." The prosecutor further stated: "I ask you the last time you can remember when you were at a bar you ever paid attention to how much ice was in a person's glass they were drinking?" (Tr. at 362.)

{¶ 47} Under Ohio law, "[t]he test for prosecutorial misconduct is whether the conduct complained of deprived the defendant of a fair trial." State v. Jackson, 92 Ohio St.3d 436, 441, 751 N.E.2d 946 (2001), citing State v. Apanovitch , 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). In analyzing whether a defendant has been deprived of a fair trial, "an appellate court must determine whether, absent the improper remarks, the jury would have found the appellant guilty beyond a reasonable doubt." Columbus v. Aleshire , 187 Ohio App.3d 660, 2010-Ohio-2773, 933 N.E.2d 317, ¶ 42 (10th Dist.). In determining if "alleged misconduct resulted in prejudice, we must consider ' "(1) the nature of the remarks, (2) whether an objection was made by counsel, (3) whether corrective instructions were given by the court, and (4) the strength of the evidence against the defendant." ' " Id. , quoting State v. Tyler , 10th Dist. No. 05AP-989, 2006-Ohio-6896, 2006 WL 3775876, ¶ 20, quoting State v. Braxton , 102 Ohio App.3d 28, 41, 656 N.E.2d 970 (8th Dist. 1995).

{¶ 48} The test for prosecutorial misconduct in closing arguments is whether "the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant." State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). In general, "prosecutors are entitled to considerable latitude in closing argument." State v. Muhleka , 2d Dist. No. 19827, 2004-Ohio-1822, 2004 WL 759249, ¶ 85, citing State v. Ballew, 76 Ohio St.3d 244, 255, 667 N.E.2d 369 (1996). During closing argument, "a prosecutor may comment freely on ' "what the evidence has shown and what reasonable inferences may be drawn therefrom." ' " Id. , citing State v. Lott , 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990), quoting State v. Stephens , 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970). Furthermore, " 'because isolated instances of prosecutorial misconduct are harmless, the closing argument must be viewed in its entirety to determine whether the defendant has been prejudiced.' " Id. , quoting State v. Stevens , 2d Dist. No. 19572, 2003-Ohio-6249, 2003 WL 22764527, ¶ 34.

{¶ 49} In the present case, appellant did not object to the comments he now claims were improper. In cases where a defendant "fails to object to the prosecutor's alleged misconduct, he waives all but plain error." Wellston v. Horsley , 4th Dist. No. 05CA18, 2006-Ohio-4386, 2006 WL 2457392, ¶ 22, citing Crim.R. 52 ; State v. Hartman , 93 Ohio St.3d 274, 294, 754 N.E.2d 1150 (2001). Notice of plain error, pursuant to Crim.R. 52(B), "is to be taken with the utmost of caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. Further, "[p]lain error should not be invoked unless it can be said that, but for the error, the outcome of the trial would clearly have been otherwise." Id.

{¶ 50} As noted, appellant points to the prosecutor's comment that Williamson and Fudge had "talked about this during the six months that happened in the meantime." (Tr. at 362.) However, during cross-examination of Williamson, when questioned whether appellant had discussed what happened "after he got picked up by yourself and Laverne," Williamson responded: "He discussed it. We-Yes, he discussed it." (Tr. at 249.) Thus, the prosecutor's remark appears to have been a fair comment on the record, and no plain error occurred.

{¶ 51} Appellant also challenges the prosecutor's statement that appellant's mother, Fudge, testified as to observing a lot of ice in appellant's glass. As noted by the state, however, Fudge acknowledged during cross-examination that she did not know what type of drink her son was consuming. During closing argument, the prosecutor cited testimony by Fudge that she did not see appellant purchase the drink, and she "didn't see the drink poured." The prosecutor argued that if Fudge and Williamson "didn't see that, it's certainly possible they didn't see another drink that was purchased." (Tr. at 363.) In context, we find the statement was arguably a fair comment on the evidence. Even if not a fair comment, though, we cannot conclude the outcome of the trial would have been different absent the prosecutor's remarks.

{¶ 52} We further note the trial court instructed the jury the evidence did not include "opening statements or closing argument of counsel or any other statement made by counsel during trial," and that "[o]pening statements and closing arguments are designed to assist you but they are not evidence." (Tr. at 366.) It is presumed that "the jurors followed these instructions and that the verdict was not, therefore, based on the content of the closing arguments." State v. Thompson , 2017-Ohio-792, 85 N.E.3d 1108, ¶ 26, citing Pang v. Minch, 53 Ohio St.3d 186, 187, 559 N.E.2d 1313 (1990).

{¶ 53} Accordingly, appellant's fourth assignment of error is not well-taken and is overruled.

{¶ 54} Based on the foregoing, appellant's first, second, third, and fourth assignments of error are overruled, and the judgment of the Franklin County Municipal Court is hereby affirmed.

Judgment affirmed.

DORRIAN and LUPER SCHUSTER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE ESTATE OF ANDRE T., a Minor
    (Lillian M., Petitioner-Appellant, v. Andre T., Respondent-Appellee).
    No. 1-17-2613
    Appellate Court of Illinois, First District, Fourth Division.
    Rule 23 filed March 8, 2018 Motion to Publish Granted April 10, 2018 Opinion filed April 19, 2018
    Tia L. Haywood, of Haywood Monte Law Offices, of Chicago, for appellant.
    Deborah Filipovich, of Chicago Volunteer Legal Services, of Chicago, for appellee.
   JUSTICE McBRIDE delivered the judgment of the court, with opinion.

¶ 1 Petitioner Lillian M. is the biological mother of minor Andre T., who was born January 15, 2003. In November 2016, Lorenzo S. and Patricia S., Andre T.'s paternal uncle and aunt, filed a petition for guardianship of Andre T. In March 2017, the trial court granted the petition over Lillian M.'s objection, and appointed Lorenzo S. and Patricia S. as guardians for Andre T. (hereinafter, the Guardians). In June 2017, Lillian M., now represented by counsel, filed a motion to dismiss the order of guardianship. Lillian M. subsequently withdrew her motion to dismiss and filed a petition to discharge guardianship under section 11-14.1(b) of the Probate Act of 1975 ( 755 ILCS 5/11-14.1(b) (West 2016) ). Prior to the evidentiary hearing on the petition, a guardian ad litem (GAL) was appointed to represent Andre T., and the GAL filed a motion in limine to clarify the issues to be raised at the hearing to those related to the petition for discharge and exclude Lillian M.'s arguments related to the entry of guardianship. The trial court granted the GAL's motion. At the evidentiary hearing, the trial court granted the GAL's motion for a directed finding following Lillian M.'s case and denied petitioner's petition to discharge guardianship.

¶ 2 Lillian M. appeals, arguing that the trial court erred by (1) granting the GAL's motion in limine limiting the issues for the evidentiary hearing, (2) admitting the GAL's supplemental report on the day of the evidentiary hearing, and (3) granting the GAL's motion for a directed finding and denying the petition to discharge guardianship.

¶ 3 Andre T. was a foster child from January 23, 2003, through May 21, 2008, when the juvenile court returned him to the care of Lillian M. In 2008, Lillian M. agreed to relinquish custody of Andre T. to the Guardians. Since 2008, the Guardians have been the primary caretakers of Andre T. The Guardians have stated that from 2008 to approximately 2011, Lillian M. had little or no contact with Andre T. From approximately 2011 until the filing of the petition for guardianship, Lillian M. has had regular contact and visitation with Andre T. while he lives with the Guardians.

¶ 4 In November 2016, the Guardians filed their initial petition for guardianship of Andre T. in the trial court. In their petition, the Guardians indicated that they were Andre T.'s paternal grandparents and that both parents' addresses were unknown. Andre T. nominated the Guardians as guardian of his person, but was 13 years old at the time of filing. An amended petition was filed in February 2017, at which time Andre T. was 14 and able to sign the nomination. The amended petition also correctly identified the Guardians as Andre T.'s paternal aunt and uncle and listed Lillian M.'s address. Lillian M. appeared pro se in the proceedings on the petition for guardianship and objected to its entry. In December 2016, the GAL was appointed for Andre T. and was ordered to conduct an investigation into Andre T.'s best interest and make a recommendation.

¶ 5 On March 24, 2017, the GAL filed a report. The GAL stated that Lillian M. and the Guardians differ in their accounts on visitation. Lillian M. stated that she saw Andre T. "nearly every weekend during the school year" and that Andre T. "spends summers primarily" with Lillian M. The Guardians stated that Andre T. spends two weekends per month with Lillian M. and spends the summer with the Guardians. The GAL noted that visitation and communication between Lillian M. and the Guardians had broken down.

¶ 6 The GAL interviewed Lillian M., the Guardians, and Andre T. Lillian M. was 52 years old and resided in the North Lawndale neighborhood in Chicago. Lillian M. has five children in addition to Andre T., but all other children are over 21 years old and reside outside of Lillian M.'s apartment. She has a two-bedroom apartment with rent "partially subsidized through the Department of Housing and Human [sic ] Development." Lillian M. was employed at UPS, working 4 to 5 hours per day. She also receives social security disability benefits and SNAP benefits. Lillian M. has a history of drug abuse and criminal activity. Her last arrest occurred in May 2011, and her last drug-related arrest occurred in February 2010. Lillian M. stated she has been sober for six or seven years. The GAL had recommended a drug test for Lillian M., and the results were negative.

¶ 7 The Guardians are the paternal aunt and uncle of Andre T. Patricia S. is the sister of Andre T.'s father. Patricia has been a homemaker for 20 years, and Lorenzo was employed by the Chicago Fire Department for 23 years, but has now retired. Criminal background checks showed neither had a criminal history. They own a four-bedroom condo in the Woodlawn neighborhood and reside there with Andre T. and their 26-year-old son. The Guardians have four other children, but all are over 21 years old and reside outside of their home. Andre T.'s father is not a party to the case. The father visits Andre T. at the Guardians' home on an occasional basis, but no visits occur when Andre T. is with Lillian M. The GAL acknowledged the errors in the Guardians' initial petition and observed that the Guardians stated the errors were mistakes in filling out the form with the assistance of the Chicago Child Care Society.

¶ 8 The GAL interviewed Andre T., who was polite and cooperative, but seemed intimidated and apprehensive about the interview. The GAL informed Andre T. that the final decision of who he lived with was up the trial court and there was "no pressure." When asked for his thoughts on the topic, Andre T. "put his head down and declined to answer the question at all."

¶ 9 The GAL offered the following analysis:

"[Andre T.] is currently in the middle of two competing parties that each, in their own way, genuinely want the best for him and for his future. [The Guardians] have cared for [Andre T.] since he was a small child and, by all accounts, provide a safe and stable environment for [Andre T.] On the other hand, [Lillian M.] wants to regain custody of her son after dealing with her own troubled past. While her past behavior and criminal activity made her unfit to care for a child at the time, it has been almost six years since her last arrest.
[Lillian M.] should be commended on the positive direction that her life has taken over the past six or seven years and her desire to play a more active role in [Andre T.'s] life. A more important consideration, in the GAL's view, is the fact that [Andre T.] has spent his entire childhood in the care of [the Guardians]. [The Guardians] provide a safe and stable environment for [Andre T.] The GAL fears that completely disrupting the status quo by asking [Andre T.] to live with [Lillian M.] full time would be detrimental to [Andre T.] in the months before he starts high school."

¶ 10 The GAL recommended that a resolution of the matter would be in Andre T.'s best interest. The recommendation was for the Guardians to be granted guardianship, but with the stipulation that the Guardians and Lillian M. work together in good faith to provide Lillian M. with visitation on a consistent basis, at least two weekends per month.

¶ 11 On March 24, 2017, the trial court appointed the Guardians as guardians of Andre T. "over the objection of Lillian M. who may file a subsequent motion." The order further required that Lillian M. have visitation at least two weekends per month and that she be permitted to speak to Andre T. on the phone at reasonable times. The order also stated, "The GAL can untangle issues that arise regarding communication and visitation." Finally, the order stated, "The court wishes the adult cooperation that existed for years can be restored!" The case was taken off call.

¶ 12 On June 22, 2017, Lillian M., now represented by counsel, filed a motion to dismiss the case for lack of subject matter jurisdiction pursuant to section 2-619(a)(1) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619(a)(1) (West 2016) ) and section 11-5(b) of the Probate Act of 1975 (Probate Act) ( 755 ILCS 5/11-5(b) (West 2016) ). The motion asserted that the trial court lacked subject matter jurisdiction to proceed on the guardianship petition filed by the Guardians, the Guardians lacked standing to petition to be guardians of Andre T., and no finding was entered that Lillian M. was unfit or unable and unwilling to care for Andre T.

¶ 13 On July 14, 2017, the trial court entered an order stating that Lillian M. withdrew her motion to dismiss and was given leave to file a petition to discharge guardianship, using a form petition. In her petition, Lillian M. listed as the following as the changes of circumstances: (1) the Guardians "lacked standing to petition for guardianship after a false misrepresentation on the initial petition, which was amended and continued over Lillian M.'s objection"; (2) "the Court lacks subject matter jurisdiction to proceed on a guardianship by a paternal aunt and uncle without a hearing as to whether Lillian M. is willing and able to carry out the day to day child care decisions"; and (3) Lillian M. "can carry out, has carried out day to day child care decisions concerning minor including the decision to temporarily allow minor to reside with the [Guardians]." In September 2017, Lillian M. filed a memorandum of law in support of her petition to discharge guardian, which offered the same reasons.

¶ 14 On October 2, 2017, the GAL filed a motion in limine , asking the trial court to "clarify certain issues for trial, and to prohibit the introduction of certain testimony and evidence." Specifically, the GAL contended that Lillian M.'s issues of standing, subject matter jurisdiction, and fraud are not relevant factors for a petition to discharge guardianship, which is governed by section 11-14.1 of the Probate Act ( 755 ILCS 5/11-14.1 (West 2016) ). The GAL observed that the proper vehicle for Lillian M. to raise these issues was a "timely motion to vacate guardianship." In response, Lillian M. filed an "opposition to guardian ad litem 's motion in limine ," arguing that she should be permitted to raise these issues in her petition as a motion to vacate pursuant to section 2-1401 of the Code ( 735 ILCS 5/2-1401 (West 2016) ), which permits such relief from judgment.

¶ 15 On October 11, 2017, the trial court entered an order on the GAL's motion in limine . The court found that Lillian M., "through counsel, [responded] that the matters of subject matter jurisdiction, standing and fraud are relevant and probative. In addition, the mother argued the relevance of a Motion to Vacate, which has not been filed nor before the Court in any proper pleading." The court further held, "Given the option, the mother and her counsel informed the court the mother will proceed not on a Motion to Vacate, but only on the Petition to Discharge, which was filed on July 14, 2017 set for hearing." The court then granted the GAL's motion for the following reasons:

"The issue of subject matter jurisdiction and standing are not relevant or probative to a Petition to Discharge. The fraud argument is moot because the mother appeared and participated in the court proceeding prior to any appointment of a guardian. To clarify the matter to be heard on October 19-20, the Court orders the testimony germane to the issues surrounding a Petition to Discharge can be heard, but the testimony cannot be used to argue original standing, jurisdiction or alleged fraud."

¶ 16 On October 19, 2017, the GAL filed a supplemental report based on interviews with Lillian M., the Guardians, and Andre T. The GAL observed that both Lillian M. and the Guardians reported how visitation has broken down but offered differing accounts.

Both agreed that Andre T. has been "struggling with the litigation" and that he needs therapy. The GAL report detailed times in which Lillian M.'s attorney has contacted the GAL with complaints about the Guardians regarding travel without Lillian M.'s consent, taking him to the doctor, and taking him to the barber. The GAL informed counsel that the Guardians have legal authority for all these actions. The GAL detailed an incident over a haircut for Andre T. The Guardians took Andre T. for a required haircut for school where the barber "nicked" Andre T. and the haircut was bad. Lillian M.'s attorney contacted the GAL with photographs of Andre T.'s head. Lillian M. took Andre T. to a barber during visitation and the haircut was fixed. The GAL observed that the haircut incident was an example of Lillian M.'s inability to put Andre T.'s interests in front of her own.

¶ 17 The GAL observed that both Lillian M. and the Guardians love Andre T., and he is a "talented, smart, sweet young man, due in large part to the Guardians['] rearing." The GAL also acknowledged that despite her history, Lillian M. has "really begun to step up and feels she is finally ready to become [Andre T.'s] primary caregiver. Lillian M. must be commended for her growth not only personally, but as a parent." The GAL recommended that Andre T. remain with the Guardians because Lillian M. has not provided evidence of a change of circumstances since the appointment.

"It is unclear to me if this is due to [Lillian M.]'s hyper-focus on the fact that guardianship should have never been entered or if this is because the evidence just does not exist. Even if [Lillian M.] can prove a change in circumstances, it remains unclear whether [Lillian M.] can and will provide a stable environment for [Andre T.] on a full-time basis. Further, [Andre T.] is dealing with a great deal of turmoil given the litigation. It is for these reasons and the reasons below I believe it to be in [Andre T.'s] best interests to remain with his Guardians and not cause more sudden upheaval that he'll have to deal with."

¶ 18 The GAL further noted concerns that Lillian M. had never been the sole or primary caregiver for Andre T., and any transition to Lillian M. would be a "major adjustment" for Andre T. The report also discussed bad communication; Lillian M.'s misunderstanding of legal guardianship, leading to conflict; and Lillian M.'s lack of respect for the Guardians' authority. The GAL concluded as follows:

"Even though I do not recommend discharge at this particular point in time, I believe that if [Lillian M.] continues to make personal progress, does her part to communicate in a respectful manner with Guardians and continues to grow as a parent, discharge of Guardians is something that can be achieved in the near future. Given that [Andre T.] has lived with Guardians so long, this is just a case that will take time in regard to transition to [Lillian M.]'s care. Very little time has passed since guardianship was granted. Ideally, I would like to see the following prior to discharging guardianship: [Lillian M.] consistently taking advantage of her visitation with [Andre T.], [Lillian M.] showing that she is working with the child on his homework during her visitation, [Lillian M.] particularly working to support Guardians' decisions and legal authority, and [Lillian M.] and Guardians working together to support one another. Additionally, I would like to hear from the minor's therapist after he is enrolled in regard to what [Andre T.] needs to promote his stability."

¶ 19 A hearing was conducted on Lillian M.'s petition to discharge guardianship on October 20, 2017. Following the presentation of Lillian M.'s case, the GAL moved for a directed finding, which the trial court granted in a written order. The record on appeal does not contain transcripts from the hearing.

¶ 20 The trial court's written order contains its findings and a brief summary of Lillian M.'s testimony at the hearing. Lillian M. testified that she agreed for Andre T. to remain with the Guardians through grade school. She has made contact at Kenwood Academy for Andre T. to attend. She stated that she receives social security disability and works at "Uniques for minimum wage" and full time at UPS. She receives Section 8 housing and has a two-bedroom apartment, but was looking for a larger place. The court observed that Lillian M. "made inconsistent statements surrounding the benefits she receives and her finances generally." She "testified at length about a bad haircut the minor received and how the co-guardians did not take him to her barber of preference." Two of Lillian M.'s other children also testified. "Each said or would say they love their mother, she is a good mother and she provides a good environment."

¶ 21 The court found that Lillian M.'s testimony failed to persuade the court that "but for rebutted evidence she had made material changes. She failed to provide sufficient [evidence] to establish the fact or raise the presumption she can take on the role of parenting full time." The court made the following finding:

"The mother's testimony did not provide any significant time lines to establish the change. And, at times, during the testimony, the dates/years changed. The mother did not establish sufficient evidence of her current financial situation and confused the Court with her collecting SSI and government benefits while working full time. The mother's living situation seems unclear. The mother testified she could change her work hours to accommodate [Andre T.'s] schedule but could not explain how she could go from 'full-time' to 10am-3pm. The mother complained about the minor's need for therapy but, until recently, she held the medical card actually interfering with the co-guardians ability to obtain necessary medical treatment. She testified to life insurance on her life and on [Andre T.'s] life, but the document admitted into evidence indicates on her life, her daughter is the beneficiary-not this minor. The policy on [Andre T.'s] life, which is not complete, could not benefit [Andre T.] Although the mother referred to being with her son, there was no evidence articulating how often she sees him, the length of time they are together. Other than testimony from another son who is with her on some pick-ups and drop-offs, it is not clear about transportation plans. There was no testimony addressing [Andre T.'s] needs as a 14½ year old in high school. There was no information about the mother's awareness of his academics-other than the mother saying she helps him with homework. The mother gave no testimony related to the minor's social life and how she would manage if he were to change schools."

¶ 22 The court granted the GAL's motion for a directed finding. The court noted that Lillian M. was "not precluded from filing another Petition to Discharge." The court ordered visitation with Lillian M. every other weekend and that communication between Lillian M. and the Guardians was to be through "Talking Parents an on-line, email type program intended to take the emotion out of the communication." The court further ordered the GAL to remain on the case and "NO ONE-other than the GAL-is to discuss the proceedings in this courtroom with the minor."

¶ 23 This appeal followed. Lillian M. filed a timely notice of appeal on October 20, 2017, listing the orders appealed from as the grant of the GAL's motion in limine and the grant of the directed finding. Accordingly, this court has jurisdiction of Lillian M.'s appeal regarding the petition to discharge proceedings under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994).

¶ 24 On appeal, Lillian M. argues that the trial court erred (1) in granting the GAL's motion for a directed finding at the hearing on her petition to discharge guardianship, (2) in granting the GAL's motion in limine limiting the subject matter at the hearing on her petition, and (3) allowing the GAL to submit a supplemental report after discovery had closed.

¶ 25 Initially, we note that the record on appeal does not contain transcripts from either the hearing on the GAL's motion in limine or the evidentiary hearing on Lillian M.'s petition to discharge guardianship. Lillian M., as the appellant, bears the burden of providing a sufficiently complete record to support her claim or claims of error. In the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis. Foutch v. O'Bryant , 99 Ill. 2d 389, 391-92, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984). Moreover, any doubt arising from the incompleteness of the record will be resolved against the appellant. Id. at 392, 76 Ill.Dec. 823, 459 N.E.2d 958. Here, without a transcript or bystander's report, we are limited in our review to the trial court's orders. We presume that the trial court acted in conformity with the law at both the hearing on the motion in limine and the evidentiary hearing.

¶ 26 We first consider whether the trial court erred in granting the GAL's motion for a directed finding at the evidentiary hearing and denial of Lillian M.'s petition to discharge guardianship. "When a circuit court grants a directed finding in favor of the defendant, a reviewing court must determine whether the lower court erred in deciding that the plaintiff failed to present a prima facie case." In re Marriage of Charnogorsky , 302 Ill. App. 3d 649, 654, 236 Ill.Dec. 234, 707 N.E.2d 79 (1998). "To establish a prima facie case, a plaintiff must present at least some evidence to support each element essential to [her] cause of action." Id. "This court will not reverse a lower court's ruling on this issue unless it is contrary to the manifest weight of the evidence." Id.

¶ 27 Guardianship of a person includes a right to custody. 755 ILCS 5/11-13(a) (West 2016). "The most important consideration in child custody disputes is the best interest of the child." In re Estate of K.E.S. , 347 Ill. App. 3d 452, 461, 283 Ill.Dec. 76, 807 N.E.2d 681 (2004). A petition to discharge guardianship is governed by section 11-14.1(b) of the Probate Act. 755 ILCS 5/11-14.1(b) (West 2016). Section 11-14.1(b) codified prior case law requiring a natural parent to establish a change in circumstances when seeking to terminate a guardianship. See In re K.E.S. , 347 Ill. App. 3d at 462-63, 283 Ill.Dec. 76, 807 N.E.2d 681 ; In re Estate of Wadman , 110 Ill. App. 3d 302, 305, 66 Ill.Dec. 61, 442 N.E.2d 333 (1982).

¶ 28 Section 11-14.1(b) provides:

"Upon the filing of a petition by a minor's living, adoptive, or adjudicated parent whose parental rights have not been terminated, the court shall discharge the guardian and terminate the guardianship if the parent establishes, by a preponderance of the evidence, that a material change in the circumstances of the minor or the parent has occurred since the entry of the order appointing the guardian; unless the guardian establishes, by clear and convincing evidence, that termination of the guardianship would not be in the best interests of the minor. In determining the minor's best interests, the court shall consider all relevant factors including:
(1) The interaction and interrelationship of the minor with the parent and members of the parent's household.
(2) The ability of the parent to provide a safe, nurturing environment for the minor.
(3) The relative stability of the parties and the minor.
(4) The minor's adjustment to his or her home, school, and community, including the length of time that the minor has lived with the parent and the guardian.
(5) The nature and extent of visitation between the parent and the minor and the guardian's ability and willingness to facilitate visitation." 755 ILCS 5/11-14.1(b) (West 2016).

¶ 29 Here, the trial court found that Lillian M. failed to establish a material change in circumstances occurred since the initial granting of guardianship of Andre T. to the Guardians. "The logic of this rule is that absent a change in circumstances, a court would be merely ruling on the exact issue previously decided." Wadman , 110 Ill. App. 3d at 305, 66 Ill.Dec. 61, 442 N.E.2d 333. While Lillian M. contends that the trial court erred in granting the GAL's motion for a directed finding, she fails to discuss any evidence she presented at the hearing to show a material change in circumstances as required under section 11-14.1(b). Rather, Lillian M. devotes this section in her brief to arguing about the GAL's role in the case, raising allegations against the Guardians, and suggesting that the GAL failed to act on behalf of Andre T. and improperly represented the Guardians' interests. None of these arguments relate to the change of circumstances Lillian M. was required to establish for her petition to discharge guardianship.

¶ 30 Lillian M. briefly contends that the "hostile communications are enough to warrant a finding of significant change of circumstances" to discharge the guardianship, but fails to cite any authority. Lillian M. misunderstands what she has to demonstrate to show a "material change of circumstances" under the statute. Instead, this argument further supports the GAL's observation that Lillian M. fails to put Andre T.'s needs before her own as the record indicates the "hostile communications" involve both Lillian M. and the Guardians to the detriment of Andre T.

¶ 31 In Wadman , the natural mother established a material change in circumstances by showing that since the entry of guardianship, she did not work late nights, changed her housing, made an effort to change the people with whom she associated, and no longer felt unable to cope with parenting. Wadman , 110 Ill. App. 3d at 307-08, 66 Ill.Dec. 61, 442 N.E.2d 333.

¶ 32 In contrast, the trial court in this case found:

"The mother's testimony and those of her children failed to persuade the court that but for rebutted evidence she has made material changes. She failed to provide sufficient [evidence] to establish the fact or raise the presumption she can take on the role of parenting full time."

¶ 33 Lillian M. has not set forth any argument or evidence to establish a material change in circumstances since the entry of guardianship. Accordingly, we find that the trial court's decision to grant a directed finding and to deny Lillian M.'s petition was not against the manifest weight of the evidence.

¶ 34 Next, Lillian M. asserts that the trial court erred in granting the GAL's motion in limine to exclude evidence irrelevant to a petition for guardianship. Specifically, she contends that the court erred in requiring her to file a separate petition to discharge guardianship and a motion to vacate under section 2-1401 of the Code ( 735 ILCS 5/2-1401 (West 2016) ). She maintains that she should have been allowed to challenge subject matter jurisdiction and standing for the entry of the guardianship order as well as fraud based on the initial errors in the petition for guardianship. "A trial court's ruling on a motion in limine addressing the admission of evidence will not be disturbed on review absent a clear abuse of discretion." Aguilar-Santos v. Briner , 2017 IL App (1st) 153593, ¶ 61, 410 Ill.Dec. 652, 70 N.E.3d 779. "An abuse of discretion occurs when the ruling is arbitrary, fanciful, or unreasonable or when no reasonable person would take the same view." Id.

¶ 35 The trial court entered the order appointing the Guardians on March 24, 2017. Lillian M. objected to the appointment, but failed to file any motion until June 22, 2017, when Lillian M.'s attorney filed a motion to dismiss pursuant to section 2-619 of the Code. At a July 2017 hearing, Lillian M. withdrew that motion and filed a petition to discharge guardianship. The GAL subsequently sought to limit the hearing on the petition to discharge to evidence related to that claim. At the hearing, Lillian M. opted to proceed on the petition to discharge only. The trial court correctly observed that Lillian M. never filed a motion to vacate judgment under section 21401 of the Code.

¶ 36 Initially, we point out that Lillian M.'s original motion to dismiss was untimely and the trial court lacked jurisdiction to consider that motion on its merits. Once a final order has been entered, the trial court retains jurisdiction for 30 days. Harchut v. Oce/Bruning, Inc. , 289 Ill. App. 3d 790, 793, 224 Ill.Dec. 871, 682 N.E.2d 432 (1997). Section 2-1202(c) of the Code provides that a posttrial motion must be filed within 30 days after the entry of judgment or "within any further time the court may allow within the 30 days or any extensions thereof." 735 ILCS 5/2-1202(c) (West 2016). "Hence, if the trial court extends the time for filing a posttrial motion beyond the initial 30-day period, that order must be entered within the 30-day period or within any period of extension already given." In re Estate of Kunsch , 342 Ill. App. 3d 552, 554, 276 Ill.Dec. 809, 794 N.E.2d 1059 (2003). "Stated differently, when the 30-day period has expired without the entry of a new order setting a new deadline, the trial court loses jurisdiction over the case." Id. Here, the order appointing the Guardians was a final judgment, which gave Lillian M. 30 days to file a motion attacking that order. Instead, Lillian M.'s motion to dismiss under section 2-619 of the Code was filed nearly three months after the final order appointing the Guardians and was therefore untimely.

¶ 37 However, after a court loses jurisdiction, a party may seek relief from a final order by filing a motion under section 2-1401. 735 ILCS 5/2-1401 (West 2016). A section 2-1401 action is considered a new action rather than a continuation of the original action. Harchut , 289 Ill. App. 3d at 793, 224 Ill.Dec. 871, 682 N.E.2d 432 ; 735 ILCS 5/2-1401(b) (West 2016). In her brief, Lillian M. correctly points out that a motion to vacate under section 2-1401 is timely when filed within two years of the judgment. 735 ILCS 5/2-1401(c) (West 2016). However, as the trial court noted, Lillian M. never filed a motion to vacate. Thus, any argument that the trial court should have allowed her to proceed with a motion to vacate is without merit.

¶ 38 The only filing pending before the trial court was a petition to discharge, which, as discussed above, is governed by section 11-14.1(b) of the Probate Act. Lillian M.'s arguments that she should have been permitted to raise issues related to the guardianship order fail because she failed to file any timely challenge of that order. As the trial court found, the issue of subject matter jurisdiction and standing were not probative to a petition to discharge, and the fraud argument was moot because Lillian M. participated in the guardianship proceedings. We find that the trial court properly limited the hearing on the petition to discharge guardianship to evidence germane to that proceeding. Accordingly, the trial court did not abuse its discretion in granting the GAL's motion in limine .

¶ 39 Finally, Lillian M. argues that the trial court erred in allowing the GAL's supplemental report to be admitted the day of trial after the close of discovery. Lillian M. contends that the supplemental report "operated as a surprise" to her counsel and "prejudiced" her. She asserts that the report was admitted over her objection. However, without a transcript of the hearing, we presume that the trial court properly allowed the supplemental report as any doubt arising from the incompleteness of the record will be resolved against the appellant. See Foutch , 99 Ill. 2d at 392, 76 Ill.Dec. 823, 459 N.E.2d 958. Further, we observe that the trial court's written order, granting the directed finding, does not discuss the GAL's supplemental report, but that the trial court's decision was based on Lillian M.'s testimony and evidence presented in her case. We find no error.

¶ 40 Lastly, we point out, as the trial court did as well, that Lillian M. is not prevented from filing a new petition to discharge guardianship, in which she can assert a change in circumstances. Since the order appointing the Guardians was entered on March 24, 2017, a section 2-1401 motion to vacate can be filed up to two years after its entry if Lillian M. wishes to pursue her claims. See 735 ILCS 5/2-1401(c) (West 2016). We offer no opinion on the potential outcome if Lillian M. seeks such relief.

¶ 41 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook County.

¶ 42 Affirmed.

Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.