State v. Santellana

[Cite as State v. Santellana, 2020-Ohio-5041.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-19-1088

Appellee Trial Court No. CR0201802824

v.

Emilio Santellana DECISION AND JUDGMENT

Appellant Decided: October 23, 2020

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

Sarah Haberland, for appellant.

*****

SINGER, J.

{¶ 1} Appellant, Emilio Santellana, appeals from the March 25, 2019 judgment of

the Lucas County Court of Common Pleas convicting him, following a jury trial, of

aggravated burglary with a firearm specification, R.C. 2911.11(A)(2) and (B) and

2941.145(A), (B), (C), and (F). The court sentenced appellant to serve nine years of
imprisonment and three additional years for the firearm specification. For the reasons

which follow, we affirm.

{¶ 2} On appeal, appellant asserts the following assignments of error:

I. The trial court abused its discretion at sentencing, by failing to

access all of the factors in accordance with R.C. 2929.11 and R.C. 2929.12.

II. The trial court abused its discretion in sentencing, by sentencing

in a manner that was clearly and convincingly contrary to Ohio law.

III. The trial court erred in allowing into evidence inadmissible

hearsay, denying appellant his constitutional right to confront witnesses.

{¶ 3} The following evidence was admitted at trial. The jury listened to the 911

call made by the victim on July 21, 2018. The victim stated he had been robbed at

gunpoint by two men who kicked in his door and stole the victim’s Xbox and PlayStation

4. He described the robbers as Hispanic and black males who wore masks over their

heads and brandished guns. He further stated the men left in a black car and the victim

indicated their direction of travel.

{¶ 4} A Toledo police officer who responded to the call testified he spoke to the

victim shortly after the 911 call and found he was still in an excited state when he stated

that two men dressed in black and wearing masks had entered his apartment through an

unlocked door while he and a guest were present. The two men held the victims at

gunpoint while the men stole items and then fled in a dark-colored, boxy SUV type

vehicle. Another officer who took over the investigation visited the victim’s home a

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short time later. The victim stated the men took an Xbox, other game consoles, a clear

plastic bin filled with dog food, and a wallet. The victim described the intruders as a

black male with braids and a Hispanic man, both wearing black clothing, and he indicated

the men fled in a black, boxy SUV, perhaps a Jeep.

{¶ 5} Other officers observed the described vehicle about 35 minutes later and

made a traffic stop. As the officers approached the vehicle, the driver sped away.

Another patrol car pursued the vehicle at a high rate of speed throughout the residential

area for about ten minutes through stop signs and red traffic lights. Eventually, the

occupants were apprehended when the Jeep crashed into a bridge abutment. Appellant

was the driver of the Jeep. A recording of the chase was submitted to the jury.

{¶ 6} A second 911 call was received from a bystander who observed an occupant

of the black vehicle being chased by the police throw a gun from the car. Another officer

spoke with the bystander and photographed the area before retrieving the gun from the

sidewalk and removing ammunition from the gun. Insufficient DNA was recovered from

the gun for testing. The gun was also test fired and determined to be inoperable.

However, the investigating officer testified the gun could have been damaged after

having been thrown from the vehicle during the chase. He further testified he would have

requested a trace on the ownership of the gun, but could not recall if it was ever

completed.

{¶ 7} The items described by the victim were found in the vehicle. The victim

was also taken to the scene where he could not identify appellant, but did identify the

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necklace appellant was wearing as the victim’s necklace. Appellant was photographed

shortly after the crash wearing the necklace. The car was registered to appellant’s

mother. Also found in the vehicle were what appeared to be sleeves cut from a t-shirt,

which the investigating officer believed were used as masks. When appellant was

removed from the vehicle, he was wearing a gray t-shirt and gray sweat pants. However,

also found in the Jeep was a bag containing a black t-shirt and black tennis shoes which

were not examined for DNA. The other occupant was wearing dark-colored clothing.

{¶ 8} In his first assignment of error, appellant asserts the trial court erred as a

matter of law by failing to assess all of the factors enumerated in R.C. 2929.11 and

2929.12. He asserts that the trial court did not consider appellant was a youthful offender

who had acknowledged his substance use dependency or that the current charges were the

only adult felony offenses he had committed.

{¶ 9} Our standard of review is limited by R.C. 2953.08(G)(2) to whether the trial

court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I)

are supported by clear and convincing evidence in the record and whether the sentence is

contrary to law.

{¶ 10} Before imposing a sentence the trial court must consider the record, any

information presented at the hearing by the victim or defendant, a presentence

investigation report, if prepared, and any victim impact statement made pursuant to R.C.

2947.051. R.C. 2929.19(B)(1).

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 {¶ 11} If the trial court complied with the statutory policies governing felony

sentencing by considering the factors set forth in R.C. 2929.11 (the principles and

purposes of felony sentencing) and R.C. 2929.12 (the seriousness and recidivism factors)

and determined a prison term is consistent with the principles and purposes of sentencing

and imposed a sentence within the statutory range pursuant to R.C. 2929.14, the sentence

is not clearly and convincingly contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124, ¶ 18, abrogated by statute as stated in State v. Marcum, 146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 16 (abuse of discretion standard

of review rejected); State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425,

¶ 15.

{¶ 12} Where the court does not expressly state that it considered the statutory

sections or sentencing factors and appellant does not raise this issue at trial, we presume

the trial court gave proper consideration to the factors unless the defendant shows

otherwise on appeal. State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d

1, ¶ 243; Kalish at ¶ 18, fn. 4; State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793

(2000); State v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988), paragraph three of

the syllabus; State v. Smith, 6th Dist. Sandusky No. S-14-037, 2015-Ohio-1867, ¶ 11.

Therefore, the burden is on the defendant to prove otherwise. State v. Cyrus, 63 Ohio

St.3d 164, 166, 586 N.E.2d 94 (1992); State v. Magee, 6th Dist. Sandusky No. S-18-029,

2019-Ohio-1921, ¶ 16. The trial court is not required to specify which statutory factors it

found to support its determination and the appellate court cannot substitute its judgment

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for that of the trial court. State v. Polley, 6th Dist. Ottawa No. OT-19-039, 2020-Ohio-

3213, ¶ 17-18.

{¶ 13} In this case, appellant was convicted of aggravated burglary, a felony of the

first degree, with a firearm specification. Therefore, the trial court was required to

impose an indefinite prison term with a stated minimum term of 3-11 years, R.C.

2929.14(A)(1)(a), and a maximum term as determined under R.C. 2929.144. The court

imposed a nine-year sentence for the offense and a mandatory term of three years for the

specification. The trial court stated it considered the presentencing report and heard from

appellant’s attorney about appellant’s juvenile record, his young age, his lack of parental

oversight, and his substance abuse dependency.

{¶ 14} While the trial court did not expressly state it was considering the factors of

R.C. 2929.11 and 2929.12, the court discussed some of the facts applicable to the factors

it was required to consider under these two statutory sections. The court found that

appellant’s failure to comply with an order or signal of a police officer was the worst

form of the offense and endangered many vehicles and persons. Furthermore, the court

found appellant’s juvenile record to be “horrendous” and included juvenile felony

adjudications. The trial court noted appellant is a youthful offender, but also that he was

a repeat offender and that the use of a firearm in this case indicated recidivism was

certain. During the trial, the trial court had noted that appellant displayed no regard or

concern for the safety of others during the chase and had used a weapon to facilitate the

robbery before discarding it in a neighborhood. The court determined that any sentence

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close to the minimum would fail to adequately protect the public from future crime and

would offend the seriousness of the offenses. The trial court further stated that the only

mitigating factor it found significant was appellant’s age.

{¶ 15} The failure of the court to reference appellant’s alleged substance use

dependency, does not establish that the court did not consider it during its evaluation of

the sentence. Upon a review of the record, we find the court considered the statutory

sentencing factors and, therefore, the sentence was not contrary to law. Appellant’s first

assignment of error is found not well-taken.

{¶ 16} In his second assignment of error, appellant argues the trial court abused its

discretion in sentencing. He argues the trial court never considered that: there were two

perpetrators in this case and no evidence regarding who was the primary aggressor; the

victim only identified appellant by the necklace he was wearing; the gun was inoperable;

and appellant was young and had a substance use dependency.

{¶ 17} Again, our standard of review on appeal is whether the sentence was

contrary to law. State v. Steck, 6th Dist. Wood No. WD-13-017, WD-13-018, 2014-

Ohio-3623, ¶ 14. As found above, there is nothing in the record to support a finding that

the trial court did not consider the factual evidence in this case and facts relating to

appellant before imposing a sentence. Therefore, appellant’s second assignment of error

is found not well-taken.

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

allowing into evidence inadmissible hearsay, denying appellant his constitutional right to

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confront witnesses. He asserts the testimony of the officers regarding the homeowner’s

statements made to them was inadmissible hearsay and went beyond what was necessary

to explain their investigation. The essence of appellant’s argument is that the victim did

not testify and his statements made to the police should not have been admissible under

the Confrontation Clause.

{¶ 19} We review the admission of hearsay under an abuse of discretion standard,

but alleged errors involving the Confrontation Clause are reviewed de novo. State v.

McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97.

{¶ 20} The Sixth Amendment Confrontation Clause guarantees the right of a

defendant in a criminal action “to be confronted with the witnesses against him.”

Therefore, the clause bars the use of testimonial statements made, from an objective point

of view, “‘“for a primary purpose of creating an out-of-court substitute for trial

testimony.”’” State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d

180, ¶ 87, quoting State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930,

¶ 40, quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93

(2011). See also Ohio v. Clark, 576 U.S. 237, 246, 135 S.Ct. 2173, 192 L.Ed.2d 306

(2015) (citations omitted). Such out-of-court testimonial statements are generally

inadmissible under the Confrontation Clause unless the declarant is unavailable and the

defense has had a prior opportunity to cross-examine the declarant. Crawford v.

Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177; State v. Ford, 158

Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 214.

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 {¶ 21} Under the primary purpose test, we consider whether the statements were

“made in the course of police interrogation under circumstances objectively indicating

that the primary purpose of the interrogation is to enable police assistance to meet an

ongoing emergency” rather to “establish or prove past events potentially relevant to later

criminal prosecution.” State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d

534, ¶ 30, adopting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165

L.Ed.2d 224 (2006). Furthermore, a 911 call made to describe “current circumstances

requiring police assistance” rather than to prove a past fact is not testimonial and,

therefore, does not violate the Confrontation Clause. Davis at 827; Toledo v. Green, 6th

Dist. Lucas No. L-14-1093, 2015-Ohio-1864, 33 N.E.3d 581, ¶ 11; State v. Jacinto, 8th

Dist. Cuyahoga No. 108944, 2020-Ohio-3722, ¶ 71.

{¶ 22} In the case before us, appellant challenges the admission of the officers’

testimonies regarding three out-of-court statements made by the victim: 1) to the

responding officer shortly after the robbery; 2) to an investigating officer who

interviewed the victim at his home a short time later; and 3) to an officer when appellant

was apprehended approximately 45 minutes later, which identified the necklace appellant

was wearing as the victim’s stolen necklace.

{¶ 23} We find that all three statements were made in the course of the

investigation of the emergency by the police to provide the officers with the information

needed to apprehend the robbers. Therefore, none of the statements violated the

Confrontation Clause.

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 {¶ 24} Next, we consider where these same statements were inadmissible under

Ohio’s evidentiary rules as 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). Generally, hearsay is inadmissible unless it falls

under a specific exception. Evid.R. 802. Evid.R. 803(1) permits the admission of a

present sense impression, “[a]statement describing or explaining an event or condition

made while the declarant was perceiving the event or condition, or immediately thereafter

unless circumstances indicate lack of trustworthiness.” Evid.R. 803(2) permits the

admission of an 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.” Both types of statements must have been made “at the time of the event or

shortly thereafter, the minimal lapse of time between the event and statement reflects an

insufficient period to reflect on the event perceived—a fact which obviously detracts

from the statement's trustworthiness.” Cox v. Oliver Mach. Co., 41 Ohio App.3d 28, 36,

534 N.E.2d 855 (12th Dist.1987). See also State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-

1017, 926 N.E.2d 1239, ¶ 100; State v. Singleton, 2nd Dist. Montgomery No. 26889,

2016-Ohio-5443, ¶ 44.

{¶ 25} Furthermore, when a law-enforcement officer testifies as to an out-of-court

statement to explain the course of an investigation, the statement is not being used for the

truth of the matter asserted and, therefore, is not hearsay. State v. Thomas, 61 Ohio St.2d

223, 232, 400 N.E.2d 401 (1980); Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d

10.
224. However, such testimony must meet three criteria: “(1) the conduct to be explained

is relevant, equivocal, and contemporaneous with the statements, (2) the probative value

of the statements is not substantially outweighed by the danger of unfair prejudice, and

(3) the statements do not connect the accused with the crime charged.” State v. Beasley,

153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 172 citing State v. Ricks, 136

Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 27. Generally, a 911 call is

admissible as excited utterances or present sense impressions, exceptions to the hearsay

rule. State v. Jacinto, 8th Dist. Cuyahoga No. 108944, 2020-Ohio-3722, ¶ 75.

{¶ 26} Appellee asserts it sought to admit the out-of-court statements as non-

hearsay because they were not offered for the truth of the matter asserted but to establish

the course of the police investigation.

{¶ 27} We find this argument unpersuasive. We agree these three statements in

part establish why the police officers became interested in appellant’s vehicle and

attempted to stop it. However, the state also introduced the statements to establish the

victim was robbed, what items were stolen, and to connect appellant to the crime.

Therefore, the statements were intended to be used to prove the truth of the matter at

issue and were hearsay.

{¶ 28} We next consider appellee’s argument that the statements made to the

police were admissible as present sense impressions and excited utterances, exceptions to

the hearsay rule under Evid.R. 803(1) and (2).

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 {¶ 29} The statements describing the robbery and the stolen property shortly after

it happened while the victim was still upset and for purposes of providing the officers

with the information necessary to apprehend the robbers and identify the victim’s stolen

property. Furthermore, the statement identifying the victim’s necklace was also made at

the moment the victim saw it while he was still under stress of excitement from the

robbery and police chase. We find that all of these statements were properly admitted

under both the present sense impressions and excited utterances exceptions.

Accordingly, we find appellant’s third assignment of error not well-taken.

{¶ 30} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Lucas County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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