[Cite as Toledo v. Murray, 2014-Ohio-3625.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-13-1234
Appellee Trial Court No. CRB-12-18950
v.
Anthony Murray DECISION AND JUDGMENT
Appellant Decided: August 22, 2014
*****
David Toska, City of Toledo Chief Prosecutor, Henry Schaefer
and Christopher Lawrence, Assistant Prosecutors, for appellee.
John W. Yerman, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Anthony Murray, appeals his conviction in the Toledo Municipal
Court for one count of domestic violence, a violation of Toledo Municipal Code
537.19(A) and a misdemeanor of the first degree. For the reasons that follow, we affirm.
{¶ 2} Appellant’s trial commenced on October 8, 2013. Toledo police officer
Kellie Kenney testified that she was working on the evening of October 23, 2012, when
she responded to a call. She arrived at the location where she met a woman who told her
that she had just gotten into a fight with the father of her child she identified as appellant.
The woman stated that he punched her in the face several times. She pointed to a nearby
house where she claimed appellant resided. He was ultimately arrested. The woman did
not appear at trial.
{¶ 3} Appellant took the stand and denied punching the woman. Following the
testimony, the court found appellant guilty of domestic violence and sentenced him to jail
for 180 days. Appellant now appeals setting forth the following assignments of error:
I. The trial court erred by allowing hearsay evidence to be admitted
regarding statements made by alleged victim pursuant to an excited
utterance exception.
II. The trial court erred by refusing to grant defendant’s motion of
acquittal after the state had rested its case.
III. The trial court erred by allowing officer Kenney’s testimony to
be admitted into evidence thus allowing the state to elicit such testimony
apparently citing exigent circumstances and thus an exception to the
prohibition expressed in Crawford v. Washington 541 US 36 (2004).
{¶ 4} Appellant’s first and third assignments of error address the admission of
Officer Kenney’s hearsay testimony pursuant to the excited utterance hearsay exception.
2.
{¶ 5} The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343
(1987). It is well-established that when examining admissibility issues, such as the
disputed testimony before us, a reviewing court may not reverse the trial court absent an
abuse of discretion. State v. Easter, 75 Ohio App.3d 22, 26, 598 N.E.2d 845 (4th
Dist.1991). An abuse of discretion connotes that the trial court’s decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 6} “‘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 not admissible into evidence unless permitted by
constitution, statute, or rule. Evid.R. 802. One exception to the hearsay rule is the
“excited utterance” of the declarant. Evid.R. 803(2). An “excited utterance” 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.” Id.
{¶ 7} In order for testimony to be allowed into evidence under the excited
utterance exception, the following elements must be met “(1) there was an event startling
enough to produce a nervous excitement in the declarant, (2) the statement must have
been made while under the stress of excitement caused by the event, (3) the statement
must relate to the startling event, and (4) the declarant must have had an opportunity to
personally observe the startling event.” State v. Boles, 190 Ohio App.3d 431,
3.
2010-Ohio-5503, 942 N.E.2d 417, ¶ 34 (6th Dist.), citing State v. Duncan, 53 Ohio St.2d
215, 373 N.E.2d 1234.
{¶ 8} Officer Kenney testified that upon responding to the call she saw the woman
outside. She was “visibly upset” and “slouched over.” When the woman noticed the
police cruiser, she “perked up and starting waving at me.” Kenney described her face as
“tear stained.” Kenney further testified that: “She had visible bruising and swelling to
the right side of her face, and scratch marks as well.”
{¶ 9} Appellant contends that because Officer Kenney did not arrive until
approximately 20 minutes after the woman called the police that too much time had
elapsed for the woman to still be under the stress of excitement caused by the event.
{¶ 10} There is no specific amount of time after which a statement can no longer
be considered as an excited utterance and not the result of reflective thought. State v.
Taylor, 66 Ohio St.3d 295, 612 N.E.2d 316 (1993). Here, the record in this matter
encompasses no evidence suggesting that the disputed statements were the result of
reflective thought as the woman was described as “visibly upset.” Accordingly, the court
did not abuse its discretion in admitting the testimony of Officer Kenney. Appellant’s
first and third assignments of error are found not well-taken.
{¶ 11} In his second assignment of error, appellant contends that the court erred in
failing to grant his motion for acquittal after the state had rested its case. We review the
denial of a Crim.R. 29(A) motion for acquittal under the same standard used to review a
sufficiency of the evidence claim. State v. Barnes, 6th Dist. Wood. No. WD-07-024,
4.
2008-Ohio-1854, ¶ 10. When reviewing a challenge of the sufficiency of the evidence,
an appellate court examines the evidence admitted at trial and determines whether such
evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph
two of the syllabus. The relevant elements of Toledo Municipal Code 537.19(A),
domestic violence, are as follows:
(a) No person shall knowingly cause or attempt to cause physical
harm to a family or household member.
***
(e) As used in this section and Ohio R.C. 2919.25, 2919.251 and
2919.26:
(1) “Family or household member” means any of the following:
***
B. The natural parent of any child of whom the offender is the
natural parent or is the putative other natural parent.
{¶ 12} Here, through the testimony of their sole witness, the state presented
evidence that appellant physically assaulted the mother of his child. That evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a reasonable
doubt. Appellant’s second assignment of error is found not well-taken.
5.
{¶ 13} The judgment of the Toledo Municipal Court is affirmed. Pursuant to
App.R. 24, appellant is hereby ordered to pay the costs incurred on appeal.
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.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, 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.sconet.state.oh.us/rod/newpdf/?source=6.
6.
Toledo v. Murray
Combined Opinion