[Cite as State v. King, 2013-Ohio-1694.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25151
v. : T.C. NO. 12CRB1413
MATTHEW KING : (Criminal appeal from
Municipal Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 26th day of April , 2013.
..........
ANDREW D. SEXTON, Atty. Reg. No. 0070892, Assistant City Prosecutor, 335 W. Third
Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
TINA M. MCFALL, Atty. Reg. No. 0082586, Assistant Public Defender, 117 S. Main
Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} Defendant-appellant Matthew King appeals his conviction and sentence for
2
one count of assault, in violation of R.C. 2903.13(A), a misdemeanor of the first degree.
King filed a timely notice of appeal with this Court on April 10, 2012.
{¶ 2} The incident which forms the basis for the instant appeal occurred on the
morning of March 2, 2012, at approximately 8:41 a.m. when Dayton Police Officer Scott M.
Carico was dispatched to 626 Pritz Avenue in Dayton, Ohio, on a report of a female and
male fighting in an alleyway. Officer Lyn C. Dunkin was also dispatched to the same
address. Officers Carico and Dunkin arrived at the scene simultaneously approximately five
minutes after receiving the dispatch.
{¶ 3} Upon arriving in the alleyway located behind the residence, Officer Carico
made contact with a female, later identified as Dreama Allen, who he initially described as
“physically upset” and “crying.” Officer Carico testified that before he said anything to
Allen, she stated, “He choked me.” Officer Carico asked her who choked her, and she
responded, “My boyfriend.” Allen then informed Officer Carico that her boyfriend’s name
was Matthew. Officer Carico testified that while he spoke to Allen, he observed that she
had bloody abrasions on her elbow, blood on her pants and shoe, and red marks on her neck.
{¶ 4} Officer Carico testified that approximately one minute later,
defendant-appellant King appeared in the backyard of either 624 or 626 Pritz Avenue.
Officer Carico further testified that he approached King and asked him what had just
occurred in the alley. All King would said was that Allen had called the “f*** police.”
King never admitted to Officer Carico that he had struck or choked Allen. Officer Dunkin
testified that Allen informed him that she and King “stayed together” but did not specify for
3
how long. Based on Allen’s statements and her injuries, Officer Carico arrested King and
took him into custody.
{¶ 5} King was subsequently charged by complaint with one count of domestic
violence, in violation of R.C. 2919.25(A)(1), a misdemeanor of the first degree, and one
count of assault, in violation of R.C. 2903.13(A), a misdemeanor of the first degree. At his
arraignment, King pled not guilty to both counts.
{¶ 6} The matter was tried to the bench on March 13, 2012. Although the State
sent her a subpoena, Allen failed to appear and testify at trial. The trial court found King
not guilty of domestic violence and guilty of assault. Following a pre-sentence
investigation, the trial court sentenced King to 180 days in jail, suspended ninety days of his
sentence, gave him credit for twenty-days already served, and ordered him to serve the
balance thereof forthwith.
{¶ 7} It is from this judgment that King now appeals.
{¶ 8} King’s sole assignment of error is as follows:
{¶ 9} “THE TRIAL COURT ERRED WHEN IT ADMITTED OVER
OBJECTION DREAMA ALLEN’S TESTIMONIAL OUT-OF-COURT STATEMENTS
VIOLATING THE DEFENDANT’S RIGHT TO CONFRONTATION UNDER THE
SIXTH AMENDMENT OF THE U.S. CONSTITUTION.”
{¶ 10} In his sole assignment, King contends that the trial court erred by permitting
Officer Carico to testify, over defense counsel’s objection, regarding Allen’s initial,
unsolicited statement, “He choked me,” that she made when the police first arrived.
Specifically, King argues that his Sixth Amendment right to confront any witnesses against
4
him was violated when Officer Carrico testified regarding statements made by Allen.
{¶ 11} The decision of a trial court to admit or exclude evidence rests within the
sound discretion of the court and will not be disturbed on appeal absent a showing of an
abuse of discretion. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987).
{¶ 12} “Abuse of discretion” has been defined as an attitude that is unreasonable,
arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482
N.E.2d 1248, 1252 (1985). It is to be expected that most instances of abuse of discretion will
result in decisions that are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.
{¶ 13} A decision is unreasonable if there is no sound reasoning process that would
support that decision. It is not enough that the reviewing court, were it deciding the issue de
novo, would not have found that reasoning process to be persuasive, perhaps in view of
countervailing reasoning processes that would support a contrary result. AAAA Enterprises,
Inc. v. River Place Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597
(1990).
{¶ 14} Regarding whether the statements made by Allen to Officer Carico were
“testimonial” in nature and therefore violated Defendant’s Sixth Amendment confrontation
rights, in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),
the United States Supreme Court held that a “testimonial” statement from a witness who
does not appear at trial is inadmissible against the accused unless the witness is unavailable
to testify and the defendant had a prior opportunity to cross-examine the witness. In a later
case, Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the
5
United States Supreme Court provided the following definition of “testimonial” and
“non-testimonial” statements:
[S]tatements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.
{¶ 15} With respect to whether the admission of Allen’s statements to police
violated King’s confrontation rights, we note that Officers Carico and Dunkin were
responding to an ongoing emergency at the time Allen made her statements. Allen’s
primary purpose was to obtain assistance from the officers in resolving that emergency
because King was still on the scene. Allen’s initial statement that King had choked her was
not the product of any police questioning. Under those circumstances, Allen’s statement
was not testimonial and the Confrontation Clause does not apply. State v. McDaniel, 2d Dist.
Montgomery No. 24423, 2011-Ohio-6326, at ¶ 27; State v. Williams, 6th Dist. Lucas No.
L-08-1371, 2009-Ohio-6967, at ¶58.
{¶ 16} Although not addressed by appellant in his brief, we further find that the
statements made by Allen were excited utterances, and therefore, not inadmissible hearsay.
Hearsay is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C).
6
Hearsay is generally not admissible, subject to several exceptions. Evid.R. 802, 803. One
such exception is an excited utterance under Evid.R. 803(2), which provides:
Excited utterance. A statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the
event or condition.
{¶ 17} In order for a statement to qualify as an excited utterance, one must
establish:
(a) that there was some occurrence startling enough to produce a nervous
excitement in the declarant, which was sufficient to still [her] reflective
faculties and thereby make [her] statements and declarations the unreflective
and sincere expression of [her] actual impressions and beliefs, and thus
render [her] statement or declaration spontaneous and unreflective, (b) that
the statement or declaration, even if not strictly contemporaneous with its
exciting cause, was made before there had been time for such nervous
excitement to lose a domination over [her] reflective faculties, so that such
domination continued to remain sufficient to make [her] statements and
declaration the unreflective and sincere expression of [her] actual impressions
and beliefs, (c) that the statement or declaration related to such startling
occurrence or the circumstances of such startling occurrence, and (d) that the
declarant had an opportunity to observe personally the matters asserted in her
statement or declaration. State v. Duncan, 53 Ohio St.2d 215, 373 N.E.2d
1234 (1978).
[Cite as State v. King, 2013-Ohio-1694.]
{¶ 18} Upon first seeing Officers Carico and Dunkin, Allen immediately stated that
King had just choked her. Allen had just been the victim of an assault moments earlier, a
startling event. According to Officer Carico, Allen was crying and upset. Less than five
minutes had elapsed since police were dispatched to the home on a report of domestic
violence, and less than a minute had elapsed since police made contact with Allen. Allen
exhibited numerous visible injuries, to wit: bloody abrasions on her elbow, and red marks on
her neck. Officer Carico also observed blood on her pants and on her shoe. Clearly, Allen
was still under the stress of excitement caused by the startling violent event. Allen’s
statements related to the assault by King. Additionally, as the victim of the assault, Allen
personally observed the violent attack. Accordingly, Allen’s statements were also
admissible as excited utterances. Thus, the trial court did not abuse its discretion when it
admitted Allen’s initial statements to police at the scene.
{¶ 19} King’s sole assignment of error is overruled.
{¶ 20} King’s sole assignment of error having been overruled, the judgment of the
trial court is affirmed.
..........
FROELICH, J. and WELBAUM, J., concur.
Copies mailed to:
Andrew D. Sexton
Tina M. McFall
Hon. Christopher D. Roberts