CITY OF CLEVELAND HEIGHTS v. AVI COHEN
No. 101349
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 30, 2015
2015-Ohio-1636
Criminal Appeal from the Cleveland Heights Municipal Court, Case No. CRB 1302210
JUDGMENT: REVERSED
BEFORE: E.A. Gallagher, J., Keough, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: April 30, 2015
Robert L. Tobik
Cuyahoga County Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Tiffany A. Hill
Cleveland Heights City Prosecutor
Cleveland Heights City Hall
40 Severance Circle
Cleveland Heights, Ohio 44118
{¶1} Defendant-appellant Avi Cohen appeals his convictions for child endangering in violation of
{¶2} Cohen’s convictions arose out of a domestic dispute involving Cohen and his wife, Perel Cohen (“Perel”), at their home on the evening of November 19, 2013. The couple had been married for 20 years and have four children together. Two of the couple’s children, A.C., then age 13, and E.C., then age 10, were at home at the time of the dispute.
{¶3} On November 20, 2013, Cohen was charged with domestic violence in violation of
{¶4} Perel and the two police officers who responded at the scene — Officers Trhlin and Desgravise with the Cleveland Heights Police Department — testified on behalf of the city. Perel testified that on the evening of November 19, 2013, she and Cohen were having an argument regarding her visits to a local gym. She testified that she and Cohen had been arguing for the past couple of weeks about text messages she had been receiving from persons at her gym and that Cohen had asked her to go to another gym but that she had refused. Perel testified that when Cohen saw her in her gym clothing, they started arguing again. Perel testified that Cohen told her, “I want a divorce” and “I’m taking the kids.” Perel testified that after Cohen said this, she “got very angry” and “went ballistic”; “I just went nuts. I went absolutely nuts.”
{¶5} Perel testified that Cohen then went upstairs and told their two children to gather some clothing because he was taking them away for the night. Perel testified that when Cohen went upstairs, she started running after him “lunging at him” and “jump[ing] on his back, constantly” “to hold him down” and stop him from taking their children. Perel testified that she “acted irate” because she was “out of control,” “didn’t want them to leave” and “was scared of getting a divorce.”
{¶6} Perel testified that each time she jumped on his back, Cohen “kept pushing me off, pushing me off, pushing me off.” She described Cohen’s actions as a “normal response” to get her off his back but that she “went back again and * * * went back
{¶7} At some point during the dispute with Cohen, Perel sustained injuries to her forehead and nose. Perel testified that after Cohen left with the children, she went upstairs to her bedroom to call police because she wanted her children back. She testified that as she entered her bedroom, which was full of mirrors, she realized for the first time that she had a bump on the middle of her forehead and that her face was bleeding. Perel testified that her injuries must have occurred when Cohen was upstairs in their son’s room, getting pajamas for him. Perel testified that one of the times Cohen pushed her off his back, she “probably slipped” on the hardwood floor in her gym socks and “fell off backwards,” “[r]ight into the wall * * * [and] [i]nto the corner of [her son’s] closet,” hitting her head on the top corner of the closet and causing her injuries.2 Perel denied that her husband ever hit her or choked her. She testified that he was just “trying to get me off his back so he could handle the kids.” When asked whether Cohen had “ever done anything like this before,” Perel testified, “Never. I think that’s why he was scared.”
{¶9} Perel testified that, unbeknownst to her husband, she had recently begun taking medication for ADHD. She claimed that the medication caused her to act in an uncharacteristically aggressive, argumentative and defensive manner and that, as a result, she “was just not [her]self” at the time of the incident. She further testified that one of the officers was “very assertive” with her, pressuring her to make a domestic violence report. She testified that she told the officers that she did not “feel the need to report anything” and refused to sign anything.
{¶10} Officers Trhlin and Desgravise responded to the domestic disturbance call at the Cohen home that evening. Officer Trhlin testified that when he arrived on the scene,
{¶11} Officer Desgravise testified that when he arrived on the scene, he encountered Perel with “blood all over her face.” He testified that she was “really frantic,” “crying and yelling that her husband attacked her and beat her up.” He testified that Perel told Officer Trhlin that her husband threw her to the ground, choked her and elbowed her in the face. He further testified that Perel was upset about the children being taken away and told him that she wanted her children back. With respect to where the children were at the time of the incident, Officer Desgravise testified that Perel told him only that two of the children were in the house when the incident occurred and that Cohen had thereafter taken the children and left.
{¶12} Both officers testified that they observed lacerations and/or abrasions on Perel’s forehead and nose and substantial swelling of her nose. Officer Desgravise
{¶13} At the close of the city’s case, Cohen moved for acquittal pursuant to
{¶14} Cohen testified that he left work the evening of November 19 after he received a phone call from one of his children advising him that his wife had just come home from the gym. He testified that there were some things he had heard about the gym he did not like and that he had previously told his wife he did not want her going back to the gym. Cohen testified that when he came home and saw his wife, he told her: “I can’t deal with this any more[.] I want a divorce. I can’t live here anymore, and I’m taking the kids with me.” He testified that his decision had not been made “out of the blue” and that Perel had been acting “unusually” and “really crazy for a period of time.”
{¶15} He testified that Perel told him that she did not want a divorce and did not want him to take the kids and that she then began jumping on him repeatedly. He testified that “downstairs, upstairs, on the stairs * * * over and over,” Perel “kept jumping on my back,” “constantly, * * * lunging at me,” and that every time she jumped on his back, Cohen pushed her off, and she fell onto the floor. Cohen testified that he was not sure exactly how he pushed Perel off him. He testified that Perel “is strong, she goes to
{¶16} With respect to Perel’s injuries, Cohen testified that Perel’s injury to the middle of her face occurred when Perel hit her head on their son’s closet “the last time that she fell off.” Cohen claimed that he was standing in the doorway of his son’s room when Perel jumped on his back again and he pushed her off. He testified that she fell backwards into the wall, then “slipped” or “bounced” off the wall and fell forward into the closet door. Although he was not sure exactly how Perel’s injuries occurred, he acknowledged on cross-examination that he must have pushed Perel “pretty hard” for her to “bounce off [the] wall and hit the closet door.” With respect to Perel’s other injuries, Cohen testified that it was “possible” that he elbowed her while pushing her off his back and speculated that the injuries Perel sustained “on the front” “probably happened” when she fell on the floor. He testified that he saw that Perel was bleeding and considered whether he should stop and take care of her before leaving but that Perel then came at him again, pushing him into a window at the end of the hallway and breaking it. He testified that he then ran downstairs where the children were waiting and left the home with them. When he learned that charges had been filed against him, Cohen turned himself in.
{¶17} With respect to where in the house the children were at the time Perel’s injuries occurred, Cohen’s testimony was unclear. He testified that “right before [Perel]
{¶18} A.C., the couple’s then 13-year-old daughter, also testified. She testified that she was upstairs when she heard her parents arguing downstairs. She testified that she heard her father tell her mother that he was going to take the kids and that he wanted a divorce. She further testified that she heard her mother pleading with her father not to leave and not to take the kids. She testified that her father then came upstairs and told her and her brother to get their belongings together because the three of them were going to leave for the night. A.C. testified that she first went to her room and collected her belongings and then went to her brother’s bedroom to help him. At some point, her parents came into her brother’s bedroom.
{¶19} A.C. testified that while her father was in her brother’s bedroom, standing next to her, her mother jumped on his back. She testified that she saw her mother jump on her father’s back “three times or two times or something like that” and that her father “was just trying to walk away from it.” She testified that her brother had already left the room and that she was approximately three feet in front of her brother’s closet, heading out of the room, when she heard a fall. She turned around and saw her mother on the floor. A.C. testified that her mother was holding her head like she fell into the closet. A.C. testified that she did not see any blood or other signs of injury on her mother and that she never saw her father elbow her mother in the face, get on top of her, choke her or
{¶20} The trial court found Cohen not guilty of domestic violence in violation of
All right. Based on the evidence that I’ve heard, there clearly was violence that took place in that home on that evening, November 19th of 2013. The question is who was the aggressor in this case, and that’s pretty much what it comes down to. And as I consider the testimony that was given by the wife and the husband in this case for Avi Cohen and Perel Cohen, I don’t think that their testimony is completely credible.
Based on what was stated to the police at the time of the incident and [sic] the testimony here today is not credible in my judgment. But one thing that is clear, is that Mr. Cohen, by his own admission, did push his wife into the wall, according to his testimony, and caused her allegedly to bounce off the wall and then hit this closet, and that is an act certainly of disorderly conduct. So I’m not going to find you guilty of domestic violence, Mr. Cohen, but clearly you were a voluntary participa[nt] in the violence that took place on that evening.
You may not have been the aggressor initially and may not have been the aggressor throughout the entire incident, but clearly you were while in the bedroom of your son the aggressor by pushing your wife, according to your own testimony, into a wall, and then causing her to strike the corner of your son’s closet and to injure herself in a very significant way. Whether or not you elbowed her, whether or not you did all these other things that she told the police at that time, the evidence is questionable about that, but clearly you were engaged in disorderly conduct.
So I am going to find you guilty of that lesser included offense of disorderly conduct. That’s a third degree misdemeanor.
{¶21} The trial court provided no explanation of its verdict on the child endangering charge. The trial court sentenced Cohen to a six-month suspended jail term and one year of probation. He also imposed a $1,000 fine, which was suspended except for $200 on the disorderly conduct charge and $100 on the child endangering charge.
{¶22} Cohen appealed his convictions, raising four assignments of error:
ASSIGNMENT OF ERROR I:
Avi Cohen’s child endangering conviction is not supported by legally sufficient evidence as required by state and federal due process.ASSIGNMENT OF ERROR II:
The trial court erred and violated Avi Cohen’s due process rights when it found him guilty of disorderly conduct which is not a lesser included offense of the offense charged, domestic violence in violation ofR.C. 2919.25(A) .ASSIGNMENT OF ERROR III:
Avi Cohen’s disorderly conduct conviction is not supported by legally sufficient evidence as required by state and federal due process.ASSIGNMENT OF ERROR IV:
The trial court committed error and denied Avi Cohen’s right to a fair trial when, after finding Cohen not guilty of domestic violence, it found him guilty of disorderly conduct.
Child Endangering
{¶23} In his first assignment of error, Cohen argues that his conviction for child endangering in violation of
Sufficiency of the Evidence
{¶25}
No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support.
Proof of recklessness is also required. State v. McGee, 79 Ohio St.3d 193, 680 N.E.2d 975 (1997), syllabus (“The existence of the culpable mental state of recklessness is an essential element of the crime of endangering children under
{¶26} Cohen argues that his conviction for child endangering should be overturned because none of the witnesses who testified at trial “even hinted at any risk to the health or safety of the children” — “let alone a substantial one created by Avi Cohen” — and the city failed to present “a shred of evidence that Mr. Cohen violated a duty of
{¶27}
{¶28} After a thorough review of the record, we find that the evidence, when viewed in a light most favorable to the prosecution, does not support a finding beyond a reasonable doubt that Cohen recklessly created a substantial risk to E.C. or A.C.’s health or safety by violating a duty of care, protection or support.
{¶29} There has been no claim that A.C. or E.C. was in any way part of the altercation involving their parents. There is no evidence in the record that the children were at any risk of harm — much less a substantial risk of harm — to their mental or physical health or safety as a result of Cohen’s actions that evening. Perel, Cohen and A.C. each testified that the couple began arguing in the kitchen while the children were in another room. As Cohen was heading upstairs to assist the children with collecting their belongings, Perel began jumping on Cohen’s back and Cohen began pushing her off. At that time, the children were already upstairs. The witnesses testified that Perel continued to jump on Cohen’s back and that Cohen continued to push her off once the couple and A.C.4 were upstairs in E.C.’s bedroom. Although A.C. testified that she saw her mother jump on her father’s back and her father push her mother off him two or three times, the city presented no evidence that Cohen’s action in pushing Perel off his back presented a substantial risk to A.C.’s health or safety. Cohen, Perel and A.C. all testified that Cohen’s actions were directed at “protecting” the children — not harming them.
Disorderly Conduct
{¶31} Cohen’s second, third, and fourth assignments of error relate to his conviction for disorderly conduct. In his second assignment of error, Cohen contends that disorderly conduct under CHCO 509.03(a)(1) is not a lesser included offense of domestic violence under
Lesser Included Offense
{¶32} When a lesser included offense is included within the offense charged in a complaint or indictment, the defendant may be found guilty of the lesser included offense even though the lesser included offense was not separately charged in the complaint or indictment.
{¶33} In determining whether one offense is a lesser included offense of another, a court must consider whether: (1) “one offense carries a greater penalty than the other,” (2) “some element of the greater offense is not required to prove commission of the lesser offense” and (3) “the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed.” State v. Evans, 122 Ohio St. 3d 381, 2009-Ohio-2974, 911 N.E.2d 889, paragraph two of the syllabus, clarifying State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988).5
{¶34}
{¶35} CHCO 509.03(a)(1) provides:
No person shall recklessly cause inconvenience, annoyance or alarm to another, by * * * [e]ngaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.
{¶36} It is undisputed that the first two prongs of the Evans test are met in this case. The offenses of domestic violence and disorderly conduct carry different penalties — i.e., disorderly conduct under CHCO 509.03(a)(1) is a third-degree misdemeanor while domestic violence under
{¶37} The third prong of the Evans test requires that we examine the elements of the two offenses and compare them in the abstract to determine whether one element is the functional equivalent of the other. Evans at ¶ 25. The proper overall focus is on the nature and circumstances of the offenses as defined, rather than on the precise words used to define them. Id. at ¶ 22. This step focuses on whether the language used in defining the greater offense puts the offender on notice that a charge for that offense could also result in prosecution for the lesser offense. Id. The facts of the case are irrelevant to our determination of whether disorderly conduct, as defined in the CHCO, is necessarily included in the greater offense of domestic violence under
{¶38} As the parties point out, there is a split among appellate districts as to whether disorderly conduct is a lesser included offense of domestic violence under
{¶39} Those courts that have held that disorderly conduct is not a lesser included offense of domestic violence under
“One may attempt to cause physical harm to another without his or her knowledge, in which case the victim will not have suffered inconvenience, annoyance, or alarm. We concede that, in most cases, the actions by which one causes or attempts to cause physical harm to another may also cause inconvenience, annoyance, or alarm to that person. But a victim might be wholly unaware of an attempt to cause physical harm where, for example, the perpetrator throws an object at the victim, who is not looking at the perpetrator, but misses his target, and thus the victim suffers no inconvenience, annoyance, or alarm.” [State v. Schaefer, 2d Dist. Greene No. 99CA88, 2000 Ohio App. LEXIS 1828 (April 28, 2000).]
Since a situation exists where an offender could commit domestic violence but not commit disorderly conduct, the second Deem element7
cannot be met. [State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240,] requires us to look at whether a set of factual circumstances exists whereby the greater offense could ever be committed without the lesser offense also being committed. Because such a factual scenario exists, disorderly conduct is not a lesser included offense of domestic violence.
(Emphasis sic.) Blasdell at ¶ 21-22.
{¶40} In addition to the unaware victim hypothetical, Cohen argues that the third prong of the Evans test cannot be met because an individual could conceivably commit domestic violence under
{¶41} In Shaker Hts v. Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, 865 N.E.2d 859, the Ohio Supreme Court considered whether disorderly conduct under
{¶42} However, Blasdell and the other cases cited above that have held that disorderly conduct is not a lesser included offense of domestic violence under
An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.
(Emphasis added.) Deem, 40 Ohio St.3d 205, 533 N.E.2d 294, at paragraph 3 of the syllabus.
{¶43} As explained previously, in Evans, the Ohio Supreme Court “clarif[ied]” the Deem test by deleting the word “ever” from the requirement that “the greater offense cannot as statutorily defined be committed without the lesser offense, as statutorily
{¶44} We believe that the unaware victim and did-not-take-threat-seriously hypotheticals are the very types of “implausible scenarios” and “remote possibilit[ies]” that the Evans court sought to address in clarifying the Deem test. We, therefore, conclude that the existence of such possibilities does not preclude disorderly conduct under
{¶45} We find that the language used in
{¶46} Further, this court has previously held that disorderly conduct in violation of
Sufficiency of the Evidence
No person shall recklessly cause inconvenience, annoyance or alarm to another, by * * * [e]ngaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.
{¶48} Cohen argues that the city failed to present sufficient evidence that he acted with the requisite mens rea, i.e., that he recklessly caused inconvenience, annoyance or alarm to Perel. Cohen contends because he and Perel testified that Cohen “simply pushed his wife off his back as she continued to jump on him,” he could not be said to have “perverse[ly] disregard[ed] a known risk” or to have been acting “with heedless indifference to the consequences” of his actions. Cohen also argues that the trial court erroneously concluded that he was “engaging in fighting” when he was “merely attempting to disengage himself from his wife” and that there was insufficient evidence to support his conviction for disorderly conduct because the city failed to prove that any annoyance, inconvenience or alarm Perel experienced was “caused by” his “engaging in fighting.” Following a thorough review of the record, viewing the evidence in the light most favorable to the city, we agree that the evidence was insufficient to support Cohen‘s conviction for disorderly conduct.
{¶49} There are significant gaps in the city‘s evidence, particularly with regard to Cohen‘s state of mind and precisely what Cohen did and how he did what he did, that lead us to conclude that a rational trier of fact could not have found, beyond a reasonable
{¶50} First, there was no evidence that Cohen at any point “threatened harm” to Perel (or to any other person or property) or “engag[ed] in fighting” or other “violent or turbulent behavior” that evening. To “engage” means “[t]o employ or involve one‘s self; to take part in.” Black‘s Law Dictionary 528 (6th Ed.1990). To “fight” means “to give mutual blows” or “to be one of two or more combatants in physical combat.” The New Lexicon Webster‘s Dictionary of the English Language 350 (Encyclopedic Ed.1989). “Violent” means “[m]oving, acting, or characterized, by physical force, especially by extreme and sudden or by unjust or improper force” or “characterized by the exercise or production of a very great force.” The New Lexicon Webster‘s Dictionary of the English Language at 1099; Black‘s Law Dictionary at 1570. “Turbulent” means “‘tumultuous behavior or unruly conduct characterized by violent disturbance or commotion.‘” State v. Walker, 5th Dist. Stark No. 2013 CA 00204, 2014-Ohio-3693, ¶ 18, quoting State v. Reeder, 18 Ohio St.3d 25, 26, 479 N.E.2d 280 (1985).
{¶51} When viewed in the light most favorable to the city, the evidence at most establishes that (1) when Cohen pushed Perel off his back “the last time * * * she fell off,” he pushed her off with sufficient force to cause her to “bounce” off the wall and slip or fall forward, hitting her head on the closet, and (2) at some point during the altercation,
{¶53} Cohen, Perel and A.C. each testified that Cohen pushed Perel off his back numerous times (prior to “the last time that she fell off“) and that each time, she “went back again” and jumped on his back. Although Officer Desgravise testified that Perel was “really frantic” and “crying and yelling” when he arrived at the Cohen residence, there was no evidence this was “caused by” Cohen‘s actions in pushing her off his back (or any other conduct by Cohen). To the contrary, Perel testified that she was “upset” and had called police because her husband told her he wanted a divorce and had taken their children away for the night, not because Cohen had pushed her, had been “fighting” with her, or had otherwise exhibited any “violent or turbulent behavior.” See, e.g., Patterson at ¶ 40-42 (insufficient evidence existed to support defendant‘s conviction for disorderly conduct where city failed to elicit any testimony from victim that defendant‘s push caused him “inconvenience, annoyance or alarm” “over and above that which he may have already been experiencing due to [defendant‘s] presence on [victim‘s] premises“); State v. Fort, 7th Dist. Mahoning No. 99-CA-219, 2003-Ohio-1075, ¶ 23 (although police officer testified that defendant caused an annoyance to neighbors and passersby, there was insufficient evidence to support defendant‘s disorderly conduct
{¶54} Finally, there was no evidence that Cohen acted with the requisite mental state. There is no evidence in the record that Cohen pushed Perel off his back with heedless indifference to whether his actions were likely to cause inconvenience, annoyance or alarm to her or that his actions were motivated by anything other than getting Perel off his back so he could continue his efforts to gather the children‘s belongings and leave with them for the night. Cohen testified that each time Perel jumped on him, “[i]t was just a matter of getting her off me and trying to free myself to continue to get the kids.” Perel acknowledged that she was “out of control” that evening, and that in pushing her, Cohen just “trying to get [her] off his back so he could handle the kids.”
{¶55} The dissent maintains that sufficient evidence existed to support Cohen‘s conviction for disorderly conduct based on the statements Perel made to police following the incident reasoning that such statements were admissible as substantive evidence under the excited utterance exception to the hearsay rule. We disagree. First, the state has not claimed that Perel‘s statements to the officers were admissible as an excited utterance, and there is nothing in the record that indicates that the trial court admitted the statements as substantive evidence based on that exception (or any other exception) to the hearsay rule. When Cohen objected to Officer‘s Trhlin‘s testimony regarding the statements Perel made to him following the incident on hearsay grounds, the trial court overruled the
{¶56} Further, a review of the record in this case does not support the admissibility of Perel‘s statements to police under the excited utterance exception.
{¶57} In addition, here, there was evidence of “intervening circumstances” that could have influenced Perel‘s statements to the police, i.e., Cohen taking the children away. See
{¶58} For these reasons, we conclude that, when viewing the record in the light most favorable to the city, the record contains insufficient evidence to support Cohen‘s conviction for disorderly conduct. Cohen‘s conviction under
{¶60} For the foregoing reasons, Cohen‘s convictions are hereby reversed and his sentences are vacated.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the trial court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
_____________________________________
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., CONCURS;
MARY J. BOYLE, J., CONCURS IN PART AND DISSENTS IN PART (WITH SEPARATE OPINION ATTACHED)
MARY J. BOYLE, J., CONCURRING IN PART AND DISSENTING IN PART:
{¶61} I concur with the majority‘s conclusion that the state failed to present sufficient evidence of child endangering. I also agree that disorderly conduct under
{¶62} In analyzing whether there was sufficient evidence of disorderly conduct, the majority fails to consider the police officers’ testimony in this case, calling it impermissible hearsay. I disagree.
{¶63} The trial court permitted the officers’ testimony regarding Perel‘s statements over Cohen‘s objection. The trial court overruled Cohen‘s objection, stating that it would allow the testimony because it was part of the investigation. But it is my view that this evidence should have also been admitted for the truth of the matter asserted under the excited utterance exception to the hearsay rule.
{¶64} Under
(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, 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 (1978).
{¶66} The facts in this case are very similar to a recent decision by this court, Cleveland v. Amoroso, 8th Dist. Cuyahoga No. 100983, 2015-Ohio-95. In Amoroso, the officer testified that when he arrived at the scene, the victim was “very upset,” and “sitting down on the stairs, crying.” Id. at ¶ 43. Although the officer did not see any visible injuries on the victim, the victim complained of wrist pain and throat pain. We held that the victim‘s statements were admissible under the excited utterance exception to the hearsay rule because the victim‘s statements to the officer were made while she was still under the stress of the nervous excitement caused by the abuse. Id. at ¶ 45.
{¶67} In Amoroso, we relied on a similar case from the Fifth District, State v. Bennett, 5th Dist. Delaware No. 98CAC02010, 1998 Ohio App. LEXIS 5744 (Nov. 6, 1998). In Bennett, when the police officer arrived, the victim was crying, very upset,
{¶68} This court has also previously held that a domestic violence victim‘s statements to police officers are admissible under the excited utterance exception to the hearsay rule if the facts establish that the parameters of the exception are met. In State v. Fields, 8th Dist. Cuyahoga No. 88916, 2007-Ohio-5060, the defendant argued that the victim‘s statements to police when they arrived at the scene were hearsay and should have been excluded. This court disagreed, stating:
The victim‘s statements to Officer Lastuka fall within the excited utterance exception. Her assault was clearly a startling event. Officer Lastuka testified that upon entering the apartment, he saw the victim on the floor crying and bleeding, which shows she was still under nervous excitement. Officer Lastuka testified that she was still “upset and visibly shaken” while talking with him. Clearly, she was excited and upset throughout her discussion with the officer.
Appellant argues that, even if the victim was under nervous excitement at some point, her statements to the police were too far removed from the time frame, especially during the second interview with Officer Lastuka. This argument fails. The victim‘s statements were made immediately after the alleged assault. Officer Lastuka testified that the victim was still upset during the first and second interviews, which occurred immediately after the assault. Throughout her discussion with the officer, she was still at the scene of the crime.
It is not unreasonable to believe that the victim was notably upset and still under nervous excitement while being interviewed.
Fields at ¶ 53-55. See also Cleveland v. Colon, 8th Dist. Cuyahoga No. 87824, 2007-Ohio-269, discretionary appeal not allowed by Cleveland v. Colon, 114 Ohio St.3d 1426, 2007-Ohio-2904, 868 N.E.2d 680 (victim‘s statements to police officer that her ex-boyfriend assaulted her were admitted as excited utterances when the evidence established that when the officer arrived, the victim was sitting on a curb with a bruised and “bloodied face,” and the officer described the victim‘s demeanor as being “upset and crying“); State v. Sanchez, 8th Dist. Cuyahoga Nos. 93569 and 93570, 2010-Ohio-6153 (victim‘s statements to police officer identifying her boyfriend as the person who caused her injuries were admitted as excited utterances when the evidence established that when the officer arrived, the victim was upset and crying, and “waving her hands, yelling, just carrying on in an upset manner“).
{¶69} In this case, when the officers got to the home, Perel was “really frantic,” she had blood all over her face, and was crying and yelling that her husband attacked her and beat her up. She told the officers that her husband threw her to the ground and choked her with his forearm while she was lying on her back, and that he struck her in the
{¶70} The majority states that there was evidence of “intervening circumstances” that could have influenced Perel‘s statements to police. Specifically, the majority finds that because Cohen took the children with him when he left the house, that fact amounted to an intervening circumstance, preventing the excited utterance exception from applying. I disagree that this would qualify as an intervening circumstance. The key question is whether the declarant was still under the stress of the event and whether the statement was the result of reflective thought. Taylor, 66 Ohio St.3d 295, 303, 612 N.E.2d 316. It is my view that Perel was still under the stress of being physically abused by Cohen and had not had time to reflect on the incident at that point when the officers arrived.
{¶71} Accordingly, I would find that Perel‘s statement to the officers were admissible under the excited utterance exception to the hearsay rule.
{¶72} When addressing Cohen‘s sufficiency arguments relating to disorderly conduct, the majority finds that there are “significant gaps in the city‘s evidence, particularly with regard to Cohen‘s state of mind and precisely what Cohen did and how he did what he did[.]” But according to the police officers’ testimony, Perel told them
{¶73} Thus, I would find that the city presented sufficient evidence of disorderly conduct and overrule Cohen‘s third assignment of error.
{¶74} Finally, because I would overrule Cohen‘s second and third assignments of error, Cohen‘s fourth assignment of error would also have to be addressed. In his fourth assignment of error, Cohen argues that (assuming that disorderly conduct is a lesser included offense of domestic violence and that the city presented sufficient evidence of disorderly conduct) it was improper for the factfinder to consider the lesser included offense of disorderly conduct. I disagree.
{¶75} The question of whether a particular offense should be submitted to the finder of fact as a lesser included offense involves a two-tiered analysis. State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 13. The first tier, also called the “statutory-elements step,” is a purely legal question wherein we determine whether one offense is generally a lesser included offense of the charged offense. State v. Kidder, 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987). The second tier looks to the evidence in a particular case and determines whether “‘a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser
{¶76} Having already determined that disorderly conduct is a lesser included offense of domestic violence under the relevant subsections, the requirements of the first tier, therefore, are met. In analyzing the second tier, it is my view that the trial court did not err when it considered the lesser included offense of domestic violence because, in reviewing all of the evidence admitted at trial, I would conclude that a factfinder could reasonably find Cohen not guilty of domestic violence, but guilty of disorderly conduct. Thus, I would also overrule Cohen‘s fourth assignment of error.