[Cite as State v. McDaniel, 2011-Ohio-6326.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee :C.A. CASE NO. 24423
vs. : T.C. CASE NO. 10CRB9666
CHARLES A. MC DANIEL, JR. : (Criminal Appeal from
Municipal Court)
Defendant-Appellant :
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OPINION
Rendered on the 9th day of December, 2011.
.........
John J. Danish, City Attorney; Stephanie L. Cook, Chief Prosecutor; Troy B. Daniels,
Asst. Pros. Attorney, Atty. Reg. No. 0084957, 335 W. Third Street, Rm. 372, Dayton, OH
45402
Attorneys for Plaintiff-Appellee
Timothy L. Carlin, Atty. Reg. No. 0085457, 765 Troy Street, Dayton, OH 45404
Attorney for Defendant-Appellant
.........
GRADY, P.J.:
{¶ 1} On September 19, 2010, two neighbors of Defendant, Charles McDaniel,
called 911 to report a domestic disturbance at Defendant’s residence at 208 Huron Avenue in
Dayton. The callers reported that a seven year old girl who was sitting inside a Buick parked
in front of Defendant’s home was very upset and crying and had said that her dad had killed
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her mom. The callers also reported that they could see a bald, African-American male
wearing a tank top who was pacing back and forth inside the home, like he was crazy.
{¶ 2} Several officers were dispatched to Defendant’s home on a domestic violence
call involving a possible shooting. Three officers went to the front of the home and three
went to the back. One of the officers spoke to the girl sitting in the Buick. The girl said that
her mom and dad were inside fighting and that she was afraid for her life. As officers
approached the front door they saw Defendant inside the home pacing back and forth. He
had a metal cylindrical object in his hand, similar to a pipe or the barrel of a shotgun.
{¶ 3} When Defendant noticed the officers approach he moved to the back of the
house, out of view. Defendant tried to exit out the back door but was confronted by Officer
Clinger, who ordered him to the ground. Defendant instead went back inside the home and
shut the door. Meanwhile, three officers had entered the home via the front door because
they feared there might be an injured victim inside. When Defendant re-entered and went to
the front of the home, he was taken into custody by the officers.
{¶ 4} As Defendant was being removed from the home, Lamonica Smithson
emerged from a back bedroom. She was crying hysterically, out of breath, and had difficulty
speaking. Smithson was topless except for a shirt she held over her chest. Smithson stated
that Defendant had tried to kill her and that she was afraid for her life. Smithson had scratch
marks on her chest, neck, back and face. She was bleeding from the back of her head, had a
lump on the left side of her head, and she complained of an injury to her leg. Photographs
taken a few days later show severe bruising to Smithson’s forearms, right thigh, and back.
{¶ 5} The officers observed shattered glass strewn about the inside of the home and
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items that were thrown to the floor. A metal pipe was found near the back door through
which Defendant had tried to exit. Defendant was arrested for domestic violence. While
being escorted to a police cruiser, Defendant asked officers if they could work something out
so he didn’t have to go to jail.
{¶ 6} Defendant was charged by complaint in Dayton Municipal Court with domestic
violence, R.C. 2919.25(A), and assault, R.C. 2903.13(A). On November 3, 2010, the case
proceeded to a bench trial. The trial court found Defendant guilty of both charges. The trial
court merged the offenses and sentenced Defendant only on the domestic violence charge to
one hundred and eighty days in jail, with one hundred and eighteen days suspended and credit
given for two days, leaving a balance of sixty days to serve. Defendant was also placed on
community control for two years and fined one thousand dollars, with six hundred dollars
being suspended. The trial court stayed execution of Defendant’s sentence pending this
appeal.
{¶ 7} Defendant timely appealed to this court from his conviction and sentence.
Defendant’s appellate counsel filed an Anders brief, Anders v. California (1967), 386 U.S.
738, 87 S.Ct. 1396, 19 L.Ed.2D 493, stating that he could find no meritorious issues for
appellate review. We notified Defendant of his appellate counsel’s representations and
afforded him ample time to file a pro se brief. None has been received. This case is now
before us for our independent review of the record. Penson v. Ohio (1988), 488 U.S. 75, 109
S.Ct. 346, 102 L.Ed.2d 300.
{¶ 8} Defendant’s appellate counsel has identified two possible issues for appeal, the
first of which is:
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{¶ 9} “APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
AND THUS DEPRIVED OF HIS RIGHT TO DUE PROCESS UNDER BOTH THE OHIO
AND UNITED STATES CONSTITUTION.”
{¶ 10} Counsel’s performance will not be deemed ineffective unless and until
counsel’s performance is proved to have fallen below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel’s performance. Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To show that a defendant
has been prejudiced by counsel’s deficient performance, the defendant must affirmatively
demonstrate to a reasonable probability that were it not for counsel’s errors, the result of the
trial would have been different. Id.; State v. Bradley (1989), 42 Ohio St.3d 136.
{¶ 11} Defendant fails to identify any conduct on the part of his trial counsel that he
claims constituted deficient performance, much less that resulted in prejudice to Defendant as
defined by Strickland v. Washington. Accordingly, this assignment of error lacks arguable
merit.
{¶ 12} Defendant’s second possible issue for appeal is:
{¶ 13} “THE TRIAL COURT ERRED BY PERMITTING HEARSAY TESTIMONY
AGAINST THE DEFENDANT DENYING THE DEFENDANT HIS SIXTH AMENDMENT
RIGHT TO CONFRONT WITNESSES AGAINST HIM.”
{¶ 14} 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). 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:
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{¶ 15} “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.”
{¶ 16} In order for a statement to qualify as an excited utterance, one must establish:
{¶ 17} “(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.” Jackson; State v. Duncan (1978), 53 Ohio St.2d 215.
{¶ 18} 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 (1987), 31 Ohio St.3d 173.
{¶ 19} “‘Abuse of discretion’ has been defined as an attitude that is unreasonable,
arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19
OBR 123, 126, 482 N.E.2d 1248, 1252. 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
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unconscionable or arbitrary.
{¶ 20} “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 (1990), 50 Ohio St.3d 157, 161.
{¶ 21} Defendant first claims that recordings of the 911 calls made by his two
neighbors, which were played in court at the trial, constitute inadmissible hearsay. We
disagree. Both of these callers describe a little girl crying, sitting inside a Buick parked in
front of Defendant’s home, and a bald, African-American male, wearing a tank top, walking
around inside the house like he is crazy. Accordingly, these statements by the callers to the
911 dispatcher were admissible under Evid.R. 803(2) as excited utterances. We further note
that the trial court refused to consider the statements made by the little girl in the car, as
related by the callers.
{¶ 22} As to the further issue of whether the statements made by the two callers to the
911 dispatcher were “testimonial” in nature and therefore violated Defendant’s Sixth
Amendment confrontation rights, in Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct.
1354, 158 L.Ed.2d 177, 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 (2006), 547 U.S. 813, 126 S.Ct. 2266, 165
L.Ed.2d 224, the United States Supreme Court provided the following definition of
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“testimonial” statements:
{¶ 23} “[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.” Syllabus.
{¶ 24} Typically, 911 calls made to report an ongoing emergency that requires police
assistance to resolve that emergency are not “testimonial” in nature and therefore the
Confrontation Clause does not apply. Davis v. Washington; State v. Byrd, 160 Ohio App.3d
538, 2005-Ohio-1902 at ¶17-21; State v. Mills, Montgomery App. No. 21146,
2005-Ohio-2128 at ¶39. The 911 calls made by Defendant’s two neighbors are not
testimonial in nature. Those calls were not the product of any police interrogation, and the
callers called in to report an ongoing domestic disturbance involving a possible shooting that
required police assistance to resolve that emergency. Those kinds of 911 calls are not
testimonial and the Confrontation Clause does not apply.
{¶ 25} Defendant additionally complains that the statements made by the victim,
Smithson, to police officers upon first seeing them after they entered the home and took
Defendant into custody, that Defendant had just tried to kill her and she was afraid for her
life, which statements were related by the officers at trial, are also inadmissible hearsay.
Again, we disagree. Moments after police entered the home and took Defendant into
custody, Smithson emerged from a back bedroom. Upon first seeing the officers she
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immediately stated that Defendant had just tried to kill her and she was afraid for her life.
These statement fell within the excited utterance exception to the hearsay rule.
{¶ 26} Smithson had just been the victim of domestic violence moments earlier, a
startling event. Smithson’s hair was disheveled, she was crying hysterically, short of breath,
and partially nude. 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
entered the home. Smithson exhibited numerous visible injuries. Clearly, she was still
under the stress of excitement caused by the startling domestic violence event. Smithson’s
statements related to the domestic violence event, and as the victim of the domestic violence,
she had personally observed the violent attack. Accordingly, Smithson’s statements were
admissible as excited utterances. Jackson.
{¶ 27} With respect to whether the admission of Smithson’s statements to police
violated Defendant’s confrontation rights, we note that the officers were responding to an
ongoing emergency at the time Smithson made her statements. Smithson’s primary purpose
was to obtain assistance from the officers in resolving that emergency because Defendant was
still on the scene. Smithson’s statements were not the product of any police questioning.
Under those circumstances, Smithson’s statements were not testimonial and Confrontation
Clause does not apply. State v. Williams, Lucas App. No. L-08-1371, 2009-Ohio-6967 at
¶58.
{¶ 28} The trial court did not abuse its discretion in admitting the 911 calls or
Smithson’s initial statements to police at the scene. This assignment of error lacks arguable
merit.
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{¶ 29} In addition to reviewing the possible issues for appeal raised by Defendant’s
appellate counsel, we have conducted an independent review of the trial court’s proceedings
and have found no error having arguable merit. Accordingly, Defendant’s appeal is without
merit and the judgment of the trial court will be affirmed.
DONOVAN, J., And HALL, J., concur.
Copies mailed to:
Troy B. Daniels, Esq.
Timothy L. Carlin, Esq.
Charles A. McDaniel, Jr.
Hon. James Ruppert, Visiting Judge