State v. Barnett

[Cite as State v. Barnett, 2019-Ohio-3944.]

COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 19AP010007
:
JAMES M. BARNETT :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the New Philadelphia
Municipal Court, Case No. CRB
1801492

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 26, 2019

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

LACEE K. FELIX DAVID BLACKWELL
New Philadelphia Asst. Prosecutor 3405 Curtis Road SE
150 East High Ave., Suite 113 New Philadelphia, OH 44663
New Philadelphia, OH 44663
Tuscarawas County, Case No. 19AP010007 2

Delaney, J.

{¶1} Appellant James M. Barnett appeals from the December 18, 2018

Judgment Entry: Sentence Imposed after Guilty Verdict of the New Philadelphia Municipal

Court. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose on November 10, 2018, around 5:28 a.m., when Jane Doe

called the New Philadelphia Police Department to state that she needed an officer at her

residence. Officers were thereupon dispatched to the residence for a domestic dispute.

{¶3} The dispatcher testified at trial, over objection, to Jane Doe’s statements in

the call. Doe said she needed police right away and gave her address; the dispatcher

asked her name and what was going on; and Doe said her live-in boyfriend—appellant--

“put her up against the wall by her neck.” The dispatcher intended to keep Doe on the

phone until police arrived, but Doe said she had to hang up before appellant “caught” her

on the phone.

{¶4} Ptl. Dorsey was one of the officers dispatched to the residence. Upon his

arrival, he heard yelling inside and knocked on the front door. A woman came to the door

with a man following closely behind her; the man slammed the door shut in Dorsey’s face.

He knocked again and the woman opened the door; as Dorsey testified, she was again

“shoved out of the door by a male subject who yelled explicit words in [his] direction,”

including “fuck you, this is my house, get out.”

{¶5} Meanwhile, the woman was screaming that her babies were still in the

house, that appellant was going to hurt or kill them, and begging police to get the children
Tuscarawas County, Case No. 19AP010007 3

out of the house. Dorsey described Jane Doe as tearful, afraid, screaming, shaking, and

seemingly afraid for her life and her children.

{¶6} Another officer, Ptl. Kelley, pulled Jane Doe out of the house and took her

onto the porch to talk further. Kelley was the arresting officer on the case and dealt the

most directly with Doe. He described her as panicked and crying, stating “You have to

get my kids; he will kill my kids.” Kelley observed visible redness to Doe’s neck; he asked

to photograph the marks but she refused. Over objection, Kelley testified that Doe told

him appellant had both hands around her neck and threw her to the ground. She also

told him appellant threatened her children. Doe refused, however, to make a written

statement or to complete domestic violence paperwork Kelley requested from her. She

told Kelley that if she signed her name to anything, she was dead, and a piece of paper

could not protect her. She then told Kelley and another officer to “get the fuck out of [her]

house.” Kelley told her he needed to speak to the children to make sure they were O.K.,

but Doe told him he wasn’t talking to the children.

{¶7} Doe’s two children were present in the house. Officers testified they were

holding their faces, crying for their mother and visibly upset. Ptl. Kelley had Doe check

on the kids and worked with her to calm them and herself.

{¶8} Officers ordered appellant to the ground, took him into custody, and placed

him in a cruiser. Dorsey described appellant as agitated, angry, and sweating profusely.

Dorsey testified he observed signs of intoxication from appellant, including bloodshot,

watery eyes and an odor of an alcoholic beverage emanating from him when he was

placed in the cruiser. Appellant screamed obscenities, threatened officers, and slammed
Tuscarawas County, Case No. 19AP010007 4

his head against the divider inside the cruiser. Appellant stated that if police ever returned

to his residence, he would “raise pipe.”

{¶9} Appellant was charged by criminal complaint with one count of domestic

violence pursuant to R.C. 2919.25(A)(1), a misdemeanor of the first degree. Appellant

entered a plea of not guilty.

Proceedings related to bond and DVTPO

{¶10} We note that one day after the criminal complaint was filed, a “Motion for

Criminal Domestic Violence Temporary Protection Order (DVTPO) (R.C. 2919.26)” was

filed, signed by Jane Doe. An ex parte DVTPO was issued on November 13, 2018. A

return of personal service in the record notes appellant was served with the ex parte

DVTOP on November 13, 2018.

{¶11} On November 15, 2018, appellant filed a motion for bail modification stating,

e.g., if he was released from jail he would not reside at the family home due to the DVTPO.

{¶12} On November 19, 2018, a “Motion” was filed, signed by Jane Doe, asking

the trial court to remove the DVTPO. The Motion was scheduled for hearing, along with

appellant’s motion for bond modification, on November 21, 2018.

{¶13} On November 20, 2018, appellant filed a waiver of full hearing on the

DVTPO, acknowledging that the DVTPO was in place and he must abide by its terms.

{¶14} On November 21, 2018, the trial court filed a Judgment Entry overruling the

motion to modify bond and the motion to lift the DVTPO. The trial court weighed the

statutory factors pursuant to R.C. 2929.251(B) and found, e.g., that appellant has a

history of violence, including prior domestic violence arrests and assault convictions; has

a history of harassing the victim, including violating the DVTPO by calling the victim after
Tuscarawas County, Case No. 19AP010007 5

he was served with the ex parte DVTPO, “and shouting to the protected person/alleged

victim, in open court and on the record at the hearing, that he would call her as soon as

he got back to the jail;” has a history of alcohol and substance abuse; allegedly choked

or strangled the victim in the instant case with physical evidence on her face and neck

observed by police; “exhibited controlling or obsessive verbal behaviors toward the

protected person/alleged victim during the 24 recorded telephone calls from the jail,

including swearing, threatening, and telling her to file the motion to remove the protective

order; and “committed the alleged offenses in the presence of the alleged victim’s two

small children, a 3 year old girl and an 11 year old boy. The 11 year old was allegedly

pushed by [appellant] in order to physically attack the alleged victim. According to the

incident report, the children hid themselves in another room and the 11 year old called

911 for help.” The trial court thereupon found appellant to be a potential threat to the

protected person/alleged victim and to her children, who are also named in the DVTPO.

The motions to modify bond and to lift the DVTPO were overruled.

Trial, conviction, and sentence

{¶15} The matter proceeded to trial by jury. Jane Doe did not testify.1 Appellant

moved for a judgment of acquittal pursuant to Crim.R. 29(A) at the close of appellee’s

evidence; the motion was overruled. Appellant rested without presenting evidence and

was found guilty as charged.

1 There is no explanation in the record why Jane Doe did not testify. The trial court
inquired and the prosecutor said Doe was subpoenaed to appear. The prosecutor
declined to request a warrant for her appearance.
Tuscarawas County, Case No. 19AP010007 6

{¶16} Sentencing was deferred. On the original date of the sentencing hearing,

appellant became highly agitated and disruptive. He had to be removed from the

courtroom and the hearing was continued.

{¶17} The matter proceeded to sentencing on December 18, 2018. Appellee

made sentencing recommendations on the record and spoke for the victim, who chose

not to appear. The prosecutor stated that Jane Doe did not request a no-contact order,

although she did not want appellant returning to the residence and the state was

requesting a no-contact order on behalf of Jane Doe and her children.

{¶18} Appellant was sentenced to a jail term of 180 days with 135 days suspended

on the conditions that he successfully complete a term of community supervision including

substance abuse monitoring and treatment, and evaluation for a batterers’ treatment

program. The DVTPO was terminated, but appellant was ordered not to reside with Jane

Doe. He was ordered to pick up his clothing and personal property from her residence

with a police escort.

{¶19} Appellant now appeals from the judgment entries of conviction and

sentence.

{¶20} Appellant raises two assignments of error:

ASSIGNMENTS OF ERROR

{¶21} “I. THE TRIAL COURT ERRED WHEN IT PERMITTED TESTIMONIAL

STATEMENTS AGAINST THE DEFENDANT TO BE PRESENTED TO THE JURY

WHEN THE ALLEGED VICTIM DID NOT TESTIFY.”

{¶22} “II. THE JURY VERDICT IS AGAINST THE SUFFICIENCY AND

MANIFEST WEIGHT OF THE EVIDENCE.”
Tuscarawas County, Case No. 19AP010007 7

ANALYSIS

I.

{¶23} In his first assignment of error, appellant argues the trial court erred in

admitting the statements of Jane Doe to the police dispatcher and to first responders. We

disagree.

{¶24} “A trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the

rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d

1056 (1991). An abuse of discretion is more than a mere error in judgment; it is a

“perversity of will, passion, prejudice, partiality, or moral delinquency.” Pons v. Ohio State

Med. Bd. 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). When applying an abuse of

discretion standard, an appellate court may not substitute its judgment for that of the trial

court. Id.

{¶25} An accused's right to confront and cross-examine witnesses against him at

trial is guaranteed by both the Sixth Amendment to the United States Constitution and the

Ohio Constitution, Section 10, Article I. Jane Doe did not testify at trial, but the trial court

admitted her call to police dispatch and her statements to first responders over appellant’s

objections, finding the statements to be admissible as excited utterances. On appeal,

appellant does not disagree that the statements were excited utterances (and therefore

need not be excluded as inadmissible hearsay) but instead argues admission of the

statements violated the Confrontation Clause. “Evidence ... admissible at trial as a

hearsay exception ... may nonetheless be inadmissible because it violates a defendant's

right of confrontation.” State v. Dever, 64 Ohio St. 3d 401, 415, 596 N.E.2d 436 (1992).
Tuscarawas County, Case No. 19AP010007 8

{¶26} The Confrontation Clause of the Sixth Amendment to the U.S. Constitution

guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be

confronted with the witnesses against him * * *.” 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

testimonial statements of a witness who does not appear at trial may not be admitted or

used against a criminal defendant unless the declarant is unavailable to testify, and the

defendant has had a prior opportunity for cross-examination.

{¶27} In the instant case, therefore, the issue is whether Doe’s statements to first

responders were “testimonial.” According to Crawford, the initial analysis to be made in

determining whether a defendant's right to confrontation has been violated by the

admission of out-of-court statements that are not subject to cross-examination “is not

whether [the statements] are reliable but whether they are testimonial in nature.” Toledo

v. Sailes, 180 Ohio App.3d 56, 2008-Ohio-6400, 904 N.E.2d 543, ¶ 13 (6th Dist.), citing

Crawford at 61. To determine whether a statement is testimonial or nontestimonial, we

inquire whether a reasonable person in the declarant's position would anticipate his

statement being used against the accused in investigating and prosecuting the case.

State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraph two of

the syllabus.

{¶28} The Confrontation Clause guarantees the right of a defendant in a criminal

case “to be confronted with the witnesses against him.” Crawford at 38. A witness is a

person who “bear[s] testimony,” Id. at 51, quoting 2 N. Webster, An American Dictionary

of the English Language (1828), therefore “the Confrontation Clause applies only to

testimonial statements.” State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d
Tuscarawas County, Case No. 19AP010007 9

944, ¶ 59, citing State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶

15. For testimonial hearsay to be admitted, the witness must be “unavailable to testify,

and the defendant [must have] had a prior opportunity for cross-examination.” Crawford

at 54. With nontestimonial hearsay, however, “the States [have] flexibility in the

development of hearsay law.” Id. at 68.

{¶29} In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224

(2006), the Supreme Court expanded its holding in Crawford by stating that the

Confrontation Clause does not apply to non-testimonial statements that are made for the

purpose of enabling police to meet an “ongoing emergency.” Id., at 822. However, such

statements are testimonial in nature “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 prosecution.” Id.

{¶30} When out-of-court statements made to law enforcement are at issue, the

primary purpose test applies. State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876

N.E.2d 534, ¶ 28. An ongoing emergency does not necessarily end when the police

arrive. Cleveland v. Merritt, 2016-Ohio-4693, 69 N.E.3d 102, ¶ 18 (8th Dist). To determine

whether an ongoing emergency exists, courts must “objectively evaluate the

circumstances in which the encounter occurs and the statements and actions of the

parties.” Michigan v. Bryant, 562 U.S. 344, 369, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011).

“The court should consider the primary purpose of both the declarant and the

interrogator.” State v. Diggle, 3d Dist. Auglaize No. 2–11–19, 2012-Ohio-1583, ¶ 25, citing

Bryant at 1160. This analysis “cannot narrowly focus on whether the threat solely to the

first victim has been neutralized because the threat to the first responders and public may
Tuscarawas County, Case No. 19AP010007 10

continue.” Id. at 1158. Further, formal questioning may suggest the emergency situation

has subsided whereas informal interrogation may suggest the police were “address[ing]

what they perceived to be an ongoing emergency.” Id. at 1166. Regarding the victim, any

potential injuries may shed light on his or her intentions. Id. at 1161. However, this “inquiry

[regarding the victim's physical state] is still objective because it focuses on the

understanding and purpose of a reasonable victim in the circumstances of the actual

victim.” Id.

{¶31} In this case, we find Doe’s statements to first responders were

nontestimonial under the primary purpose test. Doe called the New Philadelphia Police

Department directly (as opposed to 911) and said she needed an officer immediately.

When Dorsey, Kelley, and other officers arrived at the residence, their primary purpose

was to determine how to address an ongoing emergency from his standpoint as a first

responder. See Bryant, supra, at 1160. At that point, Doe was distraught and afraid,

appellant was slamming the front door in their faces, and children were inside, crying.

Kelley sought information from Doe to determine whether she was injured upon viewing

the red marks to her neck, to determine whether the threat of immediate danger had

subsided, and to identify and locate the assailant. See, State v. Little, 3rd Dist. No. 1-16-

29, 2016-Ohio-8398, 78 N.E.3d 323, ¶ 21. Further, this interview was informal, taking

place at the location where Kelley first encountered Doe and indicating Kelley perceived

this situation as an ongoing emergency. Little, id.; see also, State v. Knecht, 12th Dist.

Warren No. CA2015–04–037, 2015-Ohio-4316, ¶ 25. The entire incident from Doe’s call

to police to arrival at the residence to departure with appellant in custody was just slightly

more than fifteen minutes.
Tuscarawas County, Case No. 19AP010007 11

{¶32} Doe’s statements were made “with the primary purpose of enabling the

police to ‘meet an ongoing emergency,’ i.e., to apprehend the person involved.” Colon at

¶ 23. Doe’s primary purpose was to get appellant out of the house and away from her and

the children; she did not cooperate in his arrest. Upon our review of the circumstances

from Doe’s perspective, “we find it unlikely that she or any reasonable person in this

situation would perceive this interaction with law enforcement as being primarily a means

for police to collect statements for later use at trial.” Little, supra, 2016-Ohio-8398 at ¶

22.

{¶33} We find that Doe’s statements to police arose during an informal interview

to procure the basic information police needed to proceed responsibly. Id. The

responding officers obtained the statements to serve as the basis for further, responsive

police action; the statements were not obtained for the primary purpose of documenting

past events for later prosecution. Id., citing Colon at ¶ 20 and Merritt at ¶ 13. Furthermore,

although appellant argues the emergency was effectively ended because appellant was

neutralized by placement in the cruiser, he continued to threaten officers and bang his

head against the divider of the car—the threat to first responders therefore continued.

Diggle, supra.

{¶34} Upon our review of the record, we find that Doe’s statements were made

before the scene was secured, during the course of an ongoing emergency at the time

the officers arrived and while they remained. The primary purpose of the officers’

questioning of Doe was to secure the scene, ensuring the safety of Doe and the children.

See, Toledo v. Sailes, supra, 180 Ohio App.3d 56, 2008-Ohio-6400, 904 N.E.2d 543, and
Tuscarawas County, Case No. 19AP010007 12

¶¶ 11-18 (6th Dist.). Accordingly, we find that Doe's statements were non-testimonial in

nature.

{¶35} We further note that the out-of-court statements of an unavailable declarant,

whether testimonial or nontestimonial, still constitute hearsay, because they were

“statement[s], 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). Neither

party addresses the “unavailability” of Doe for trial. We will not speculate in light of the

absence of explanation in the record.

{¶36} In cases where a hearsay statement is found to be nontestimonial in nature,

it may not be admitted at trial unless it “falls within a firmly rooted hearsay exception.”

Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Evid.R. 802. One

of those exceptions is an “excited utterance,” which is defined as 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.” Evid.R. 803(2).

{¶37} An excited utterance is one in which the declarant was under the excitement

of a startling event and, therefore, the statement was not the product of reflection. State

v. Triplett, 5th Dist. Stark No. 2012CA00200, 2013-Ohio-3114, ¶ 26, citing State v. Taylor,

66 Ohio St.3d 295, 300, 612 N.E.2d 316 (1993). For an alleged excited utterance to be

admissible, four prerequisites must be satisfied: (1) an event startling enough to produce

a nervous excitement in the declarant, (2) the statement must have been made while still

under the stress of excitement caused by the event, (3) the statement must relate to the

startling event, and (4) the declarant must have personally observed the startling event.

Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955), paragraph two of the syllabus;
Tuscarawas County, Case No. 19AP010007 13

State v. Duncan, 53 Ohio St.2d 215, 373 N.E.2d 1234 (1978). In Duncan, the Ohio

Supreme Court emphasized, “ * * * an appellate court should allow wide discretion in the

trial court to determine whether in fact a declarant was at the time of an offered statement

still under the influence of an exciting event.” Id. at 219.

{¶38} In the instant case, officers testified Doe was distraught, terrified, and

screaming that appellant was going to hurt or kill her children. She was shaking and

“scared for her life.” T. 85. The hearsay statements reported at trial were made

spontaneously, without any prompting by police, and without any time for thought or

reflection on the part of the declarant. Under such circumstances, we find the statements

have the requisite degree of trustworthiness to qualify as excited utterances. Triplett,

supra.

{¶39} We conclude the trial court did not err in permitting the testimony of first

responders about Jane Doe’s statements on November 10, 2018. Admission of the

statements did not violate the Confrontation Clause and the statements fall within an

exception to the hearsay rule. Appellant’s first assignment of error is therefore overruled.

II.

{¶40} In his second assignment of error, appellant argues his domestic violence

conviction is not support by sufficient evidence and is against the manifest weight of the

evidence. We disagree.

{¶41} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
Tuscarawas County, Case No. 19AP010007 14

St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.”

{¶42} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶43} Appellant was found guilty upon one count of domestic violence pursuant

to R.C. 2919.25(A), which states, “No person shall knowingly cause or attempt to cause

physical harm to a family or household member.” Appellant incorporates the arguments

from his first assignment of error, arguing his conviction is against the sufficiency and

manifest weight of the evidence because, absent the purportedly inadmissible statements

of Jane Doe, appellee did not prove him guilty beyond a reasonable doubt. We concluded

supra that the statements of Jane Doe were admissible, and those statements establish
Tuscarawas County, Case No. 19AP010007 15

that appellant knowingly caused or attempted to cause physical harm to Doe by grabbing

her around the neck, putting her up against the wall, and throwing her to the ground.

{¶44} However, even barring those statements, we note appellee presented

compelling evidence upon which the jury could find appellant guilty. This call occurred at

5:30 a.m.; the mother of the house was found with red marks to her neck, the children of

the house were awake and crying, and appellant was agitated, belligerent and aggressive

toward police, exhibiting indicators of intoxication. Several officers interacted with Jane

Doe on the night in question and all described her as distraught and terrified. The children

in the house were equally distraught and crying for their mother.

{¶45} The testimony of one witness, if believed by the jury, is enough to support

a conviction. State v. Dunn, 5th Dist. Stark No. 2008-CA-00137, 2009-Ohio-1688, ¶ 133.

After weighing the evidence and evaluating the credibility of the witnesses, with

appropriate deference to the trier of fact's credibility determination, we cannot say that

the jury clearly lost its way and created a manifest injustice with regard to the domestic-

violence conviction. It is well-established that a domestic violence conviction does not

require the testimony of the victim. Over twenty years ago, the unique nature of domestic

violence prosecutions was acknowledged in State v. Lee, 73 Ohio Misc.2d 9, 14, 657

N.E.2d 604 (M.C.1995):

No rule of law requires that a battered partner testify against

a once loved one for the state to proceed on a charge of domestic

violence. Murder cases obviously go forward without the testimony

of the victim—because s/he's dead. Thus, if domestic violence cases
Tuscarawas County, Case No. 19AP010007 16

are properly investigated and prepared for trial, the victim's presence

at trial may not be required.

{¶46} Construing all of the evidence in favor of appellee, sufficient evidence

supports appellant’s conviction. Also, this is not the case in which the jury clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

overturned and a new trial ordered. Appellant’s conviction is not against the manifest

weight of the evidence.

{¶47} Appellant’s second assignment of error is therefore overruled.

CONCLUSION

{¶48} Appellant’s two assignments of error are overruled and the judgment of the

New Philadelphia Municipal Court is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.