State v. LittleState v. Little
WILLAMOWSKI, J.
{¶2} On September 6, 2015, Shirley Jones (“Jones“) was in her home when she heard a commotion outside her house. Tr. 80. She went to her door where she saw the two children of YJ and Little, her neighbors. Id. At trial, Jones testified that the children were crying and “asked [her] if [she] could call the police because their mom was bleeding and their dad was fighting their mom.” Tr. 81. In response, she called 9-1-1 and reported a domestic disturbance. Tr. 82. The recording of this 9-1-1 call was later admitted into evidence and captured Jones saying, “The kids just ran over here wanting me to call. They said their dad‘s over there beating on their mama.” Ex. 8. Patrolman Matt Boss (“Boss“) responded to this report of domestic violence in progress. Tr. 51, 53. Boss later testified that approximately
{¶3} After Boss arrived on the scene, he approached YJ, who was standing outside of her home. At trial, Boss testified that YJ looked “defeated” and “in pain.” Tr. 52. He observed signs of a struggle: YJ had a cut on her arm, blood on her neck and hands, and a laceration on the back of her head. Tr. 52, 55. Boss then asked YJ what had happened. Tr. 56. Boss testified at trial that YJ told him “[t]hat Larisco Little grabbed her by her hair and slammed her head into a glass dining room table.” Id. Boss then called for medical assistance and began searching for Little. Tr. 57. YJ permitted the police to clear her house, but Little was not inside. Id. Boss began searching the vicinity and found Little wandering roughly one block away from YJ‘s home. Id. Boss then arrested Little. Doc. 1.
{¶4} Later that day, Little called his mother from jail on a recorded line. Tr. 121. In this conversation, Little said, “She kept on pushing my buttons, mama.” Ex. 9. He then said, “I pushed her, and she hit thе table, mama. That—that was a mistake.” Id. On September 8, 2015, Little was charged with domestic violence under
{¶5} The State then called Jones, YJ‘s neighbor, to testify. Tr. 79. During her testimony, the defense objected when Jones began stating what the children told her. Tr. 80. The court, however, overruled the objection and admitted the statements of the children. Id. Several times in his closing argument, the prosecutor referenced Jones‘s earlier testimony regarding what the children had said at Jones‘s house and related the children as saying, “Help, help, my daddy‘s beating up my mommy and she‘s bleeding; call 9-1-1.” Tr. 209, 211. In the closing argument, the prosecutor also referenced records of Little‘s two prior convictions, which were admitted into evidence to prove an element of the charged crime. Tr. 227. Ex. 6, 7. See
{¶6} On appeal, Little raises three assignments of error.
First Assignment of Error
The trial court erred in admitting hearsay statements in violation of the defendant-appellant‘s right to confrontation.
The verdict of the trial court was against the manifest weight of the evidence since the State of Ohio failed to prove each and every element of the crime of domеstic violence beyond a reasonable doubt.
Third Assignment of Error
The closing argument by the State of Ohio created a manifest miscarriage of justice violating the defendant-appellant‘s right to a fair trial.
First Assignment of Error
{¶7} In his first assignment of error, Little challenges the admission of hearsay into evidence in violation of his right to confrontation. While the wording of this assignment of error primarily addresses the alleged violation of Little‘s right to confrontation, the arguments in Little‘s brief also question the admissibility of these hearsay statements. For this reason, we will first consider whether the admission of the hearsay statements was proper under the rules of evidence. State v. Dever, 64 Ohio St.3d 401, 415, 596 N.E.2d 436 (1992).1 We will then consider whether the admission of these statements violated Little‘s rights under the Confrontation Clause. Id.
Admission of Hearsay Statements
The Testimony of Patrolman Matt Boss
{¶9} The first statement Little challenges was made by YJ to Boss. At trial, Boss testified that YJ told him “[t]hat Larisco Little grabbed her by her hair and slammed her head into a glass dining room table.” Tr. 56. This statement appears to have been admitted as a nontestimonial, excited utterance. Tr. 112. Excited utterances are an exception to the general rule excluding hearsay statements “because excited utterances are the product of reactive rather than reflective thinking and, thus, are believed [to be] inherently reliable.” State v. Ducey, 10th Dist. Franklin No. 03AP-944, 2004-Ohio-3833, ¶ 17, citing State v. Taylor, 66 Ohio St.3d 295, 612 N.E.2d 316 (1993). This exception covers “statement[s] relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”
{¶10} A statement falls within the excited utterance exception and has, therefore, indicia of reliability when
the trial judge reasonably finds (a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his 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 declarant‘s reflective faculties so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his 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 his statement or declaration.
Hawkey at ¶ 63, quoting Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955).
{¶11} When evaluating statements under this test, “[t]here is no per se amount of time after which a statement can no longer be considered to be an excited utterance.” Taylor at 303. Rather, “each case must be decided on its own circumstances.” State v. Duncan, 53 Ohio St.2d 215, 219, 373 N.E.2d 1234 (1978).
questioning which: (1) is neither coercive nor leading, (2) facilitates the declarant‘s expression of what is already the natural focus of the declarant‘s thoughts, (3) and does not destroy the domination of the nervous excitement over the declarant‘s reflective facilities.
State v. Tebelman, 3d Dist. Putnam No. 12-09-01, 2010-Ohio-481, ¶ 31, quoting State v. Wallace, 37 Ohio St.3d 87, 93, 524 N.E.2d 466 (1988).
{¶12} Here, the statement YJ made to Boss meets the four elements of an excited utterance. First, YJ did endure a startling experience. When Boss approached YJ, she had just emerged from a verbal and physical altercation. She had sustained injuries to her head, her arm, and was bleeding. Boss testified that YJ still appeared “[d]efeated,” “somewhat” excited, and “in pain.” Tr. 52. Second, YJ‘s comments were made, at most, ten to fifteen minutes after the startling event. Boss testified that he arrived at the scene of the incident within ten to fifteen minutes of receiving Jones‘s call. Tr. 53. We know Jones‘s call was placed as the incident was still unfolding since the children reported to Jones what they had just seen. Tr. 81. See Cleveland v. Colon, 8th Dist. Cuyahoga No. 87824, 2007-Ohio-269, ¶ 5. Third, YJ‘s statements were directly related to the altercation since she was telling the responding officer what had transpired. Boss said she told him that “Larisco
{¶13} Further, there is no evidence that Boss asked leading questions. He sought only to find out what had happened. Tr. 53. Boss‘s interaction with YJ merely elicited what was likely already on her mind: the physical injuries she sustained and how she got them. Tr. 55-56. These statements were the result of Boss‘s initial interaction with YJ; this conversation occurred as Boss was detеrmining how to procure medical assistance for YJ, whether YJ or the first responders were still in danger, and the whereabouts of the perpetrator. Id. At that point, it does not appear that YJ had time to reflect upon or rehearse statements for a police interrogation. Thus, we find the trial court did not abuse its discretion as these hearsay statements were admissible under
Statement of Children to Shirley Jones
{¶14} The second challenged statement was made by Little‘s children to Jones. Tr. 81. On appeal, the State argues this falls within the present sense impression exception, which permits “statement[s] describing or еxplaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness.”
[t]he key to the statement‘s trustworthiness is the spontaneity of the statement, either contemporaneous with the event or immediately thereafter. By making the statement 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.
State v. Upshaw, 3d Dist. Logan No. 8-02-46, 2003-Ohio-5756, ¶ 7, quoting Cox at 35.
{¶15} In this case, the children‘s statements to Jones fall squarely within the present sense impression exception. According to Jones, the children “ran over” to her house, Exhibit 8; “[were] beating at the windows and doors” of her home, Tr. 80; and “[were] crying.” Tr. 81. The children‘s statements described what they had witnessed firsthand immediately prior to arriving at Jones‘s door. These statements were contemporaneous with the unfolding аltercation between Little and YJ. Having seen their mother bleeding and injured, these children were seeking emergency assistance and were asking Jones to “call the police.” Id. These children did not have time to reflect upon their statements before speaking and do not appear to have had a motivation outside of helping their mother, giving these statements
Confrontation Clause Analysis
{¶16} Next, we will determine whether either of these “statement[s]...should have been exсluded under the Confrontation Clause as construed in Crawford.” Cleveland v. Colon, 8th Dist. Cuyahoga No. 87824, 2007-Ohio-269, ¶ 16, citing Crawford v. Washington, 541 U.S. 36, 54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). See United States v. Hadley, 431 F.3d 484, 498 (6th Cir. 2005). “Evidence...admissible at trial as a hearsay exception...may nonetheless be inadmissible because it violates a defendant‘s right of confrontation.” Dever at 415. “The question of whether a criminal defendant‘s rights under the Confrontation Clause have been violated is reviewed under a de novo standard.” State v. Douglas, 3d Dist. Marion No. 9-05-24, 2005-Ohio-6304, ¶ 39, citing United States v. Robinson, 389 F.3d 582, 592 (6th Cir. 2004).
{¶17} The Confrontation Clause guarantees the right of defendants in criminal cases “to be confronted with the witnesses against him.” Crawford at 38. Since a witness is a person who “bear[s] testimony,” Id. at 51, quoting 2 N. Webster, An American Dictionary of the English Language (1828), “the Confrontation Clause applies only to testimonial statements.” State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 59, citing State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 15. Fоr 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.
The Testimony of Patrolman Matt Boss
{¶18} 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, ¶ 28.2 Under this test,
[s]tatements are nontestimonial when 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. 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.
State v. Perkins, 3d Dist. Seneca No. 13-10-36, 2011-Ohio-2705, ¶ 4, quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). An ongoing emergency does not necessarily end when the police arrive. Cleveland v. Merritt, 2016-Ohio-4693, --- N.E.3d ---, ¶ 18 (8th Dist).
{¶20} In this case, we find YJ‘s statements to Boss were nontestimonial under the primary purpose test. When Boss arrived, his primary purpose was to determine how to address what was, from his standpoint as a first responder, an ongoing emergency. See Bryant at 1160. Boss sought information from YJ to obtain appropriate medical assistance for her injuries, to determine whether the
{¶21} While the victim and perpetrator were separated at the time of the interview, the ongoing emergency continued as Boss did not know whether Little was present on the scene or if the area was secure. Id. See Cleveland v. Williams, 8th Dist. Cuyahoga No. 101588, 2015-Ohio-1739; State v. Sanchez, 8th Dist. Nos. 93569 and 93570, 2010-Ohio-6153. Compare with Toledo v. Green, 2015-Ohio-1864, 33 N.E.3d 581 (6th Dist.) (holding no ongoing emergency existed when police knew exactly where the perpetrator was and the altercation had already ended); Toledo v. Sailes, 180 Ohio App.3d 56, 2008-Ohio-6400, 904 N.E.2d 543 (6th Dist.). Boss then cleared YJ‘s residence and found that Little was at large. Tr. 58. The police searched for and apprehended Little around one block away from YJ‘s residence. Id.
{¶22} Further, YJ‘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. YJ was also injured and in need of medical attention. Tr.
{¶23} Altogether, the surrounding circumstances of this situation show that Boss had few alternatives to an informal interview to procure the basic information he needed to proceed responsibly. Boss appears to have obtained these statements to serve as the basis for further, responsive police action; these statements do not seem to have been tаken for the primary purpose of documenting past events for later prosecution. See Colon at ¶ 20; Merritt at ¶ 13. Compare Hammon v. Indiana, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (holding statements were testimonial where officers arrived after the emergency ceased and simultaneously questioned the spouses separately in different rooms). See Merritt at ¶ 13-14. For these reasons, we find admission of this statement at trial did not violate Little‘s right to confrontation.
Statement of Children to Shirley Jones
{¶24} While the primary purpose test applies to statements made to law enforcement, the Ohio Supreme Court has “adopted the ‘objective-witness test’ for out-of-court statements made to a person who is not law enforcement.” State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 161, citing Stahl at ¶ 36. Under this test, testimonial statements are those
made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177. In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant‘s expectations.
Stahl at ¶ 36. Statements to persons outside of law enforcement are “muсh less likely to be testimonial than statements to law enforcement officers.” Ohio v. Clark, 135 S.Ct. 2173, 2180, 192 L.Ed.2d 306, 83 U.S.L.W. 4484 (2015). Further, “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause.” State v. Saltz, 3d Dist. Hancock No. 5-14-33, 2015-Ohio-3097, ¶ 34, quoting Clark at 2182.3
{¶25} The statements Little‘s children made to Jones were nontestimonial. As these children urgently cried to Jones for assistance, they were undoubtedly thinking about helping their injured mother; we find it unlikely that their young minds were contemplating the role their statements could play in criminal litigation. The children merely said what was necessary to obtain assistance for their mother
Second Assignment of Error
{¶26} In his second assignment of error, Little argues that the verdict of the trial court was against the manifest weight of the evidence. To evaluate this type of challenge,
an appellate court “review[s] the entire record, weighs the evidence and all reasonable inferences, considers the crеdibility 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 reversed and a new trial ordered.
State v. Wilder, 3d Dist. Van Wert No. 15-15-08, 2016 -Ohio- 251, 58 N.E.3d 421, ¶ 18, quoting State v. Mendoza, 137 Ohio App.3d 336, 738 N.E.2d 822 (3d Dist. 2000).
{¶27} “A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses.” State v. Torman, 3d Dist. Putnam No. 12-15-10, 2016-Ohio-748, ¶ 7, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one
{¶28} Little was convicted of domestic violence.
{¶29} Jones‘s testimony of what the childrеn reported to her further connects Little to the injuries YJ sustained. In the 9-1-1 call, Jones states that the children “just ran over here wanting me to call. They said their dad‘s over there beating on their mama.” Ex. 8. At trial, Jones said Little‘s children told her that “their mom was bleeding and their dad was fighting their mom.” Tr. 81. These statements point to Little as the cause of YJ‘s injuries. The testimony of Jones also indicates that YJ was a member of Little‘s household under Ohio law as YJ and Little had children
Third Assignment of Error
{¶30} In his third assignment of error, Little argues that statements in the prosecution‘s closing argument constituted a manifest miscarriage of justice. In general, “the State has ‘wide latitude’ in its closing argument.” Call at ¶ 15, citing State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984). “The State is largely free to comment on ‘what the evidence has shown and what reasonable inferences may be drawn therefrom.‘” Id., quoting State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990).
The test for prosecutorial misconduct during closing argument is [1] whether the remarks made by the prosecutor were improper and, if so, [2] whether they prejudicially affected a substantial right of the accused. State v. Siefer, 3d Dist. No. 5–09–24, 2011–Ohio–1868, ¶ 46, citing White, 82 Ohio St.3d at 22, 693 N.E.2d 772.
State v. Klein, 3d Dist. Union No. 14-12-09, 2013-Ohio-2387, ¶ 60. For this determination,
an appellate court should consider[four factors:] (1) the nature of the remarks, (2) whether an objection was made by counsel, (3) whether corrective instructions were given by the court, and (4) the strength of the evidence against the defendant. Johnson at ¶ 87, quoting State v. Braxton, 102 Ohio App.3d 28, 41, 656 N.E.2d 970 (8th Dist.1995).
State v. Potts, 3d Dist. Hancock No. 5-16-03, 2016-Ohio-5555, ¶ 84. “We evaluate the allegedly improper statements in the context of the entire trial.” Klein at ¶ 60, citing, State v. Treesh, 90 Ohio St.3d 460, 464, 739 N.E.2d 749 (2001), citing State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993).
An improper comment does not affect a substantial right of the accused if it is clear beyond a reasonable doubt that the jury would have found the defendant guilty even without the improper comments. Id., citing State v. Smith, 14 Ohio St.3d 13, 15, 470 N.E.2d 883, (1984).
Klein at ¶ 60. “To establish prejudice, a defendant must show that a reasonable probability exists that, but for the prosecutor‘s improper remarks, the result of the proceeding would have been different.” State v. Liles, 3d Dist. No. 1-14-61, 2015-Ohio-3093, ¶ 31, quoting State v. Porter, 4th Dist. Meigs No. 10CA15, 2012–Ohio–1526, ¶ 20, citing State v. Landrum, 53 Ohio St.3d 107, 112, 559 N.E.2d 710, (1990). “Unless the statement made by the prosecutor in argument to a jury is so misleading or untruthful that the defendant‘s rights are prejudiced, which deprivеs him of a fair and impartial trial, the claimed error cannot be considered prejudicial.” State v. Singleton, 11th Dist. Lake No. 2002–L–077, 2004-Ohio-1517, quoting State v. Daugert, 11th Dist. No. 89–L–14–091, 1990 WL 94835 (June 29, 1990) (citations omitted).
{¶31} If the defense does not object during closing arguments, then “all but plain error” is waived. State v. Fairley, 3d Dist. Hancock No. 5-03-41, 2004-Ohio-2616, ¶ 23. Under
{¶32} “Accordingly, plain error exists only in the event that it can be said that ‘but for the error, the outcome of the trial would clearly have been otherwise.‘” Klein at ¶ 58, citing State v. Biros, 78 Ohio St.3d 426, 431, 678 N.E.2d 891 (1997). “Thus, prosecutorial misconduct constitutes plain error only if it is clear that the defendant would not have been convicted in the absence of the improper comments.” Call at ¶ 17, citing State v. Slagle, 65 Ohio St.3d 597, 606, 605 N.E.2d 916 (1992); State v. Johnson, 46 Ohio St.3d 96, 102, 545 N.E.2d 636 (1989).
{¶33} Little‘s first argument alleges the State engaged in prosecutorial misconduct by misstating the statements that Little‘s children made to Jones. At
{¶34} Considering the four factors from Braxton, we find that the prosecutor‘s comments in closing arguments do not constitute prosecutorial misconduct. First, the prosecutor‘s remarks appear to be a mere misstatement that conflates Jones‘s in-court testimony and Jones‘s remarks on the 9-1-1 recording. Both of these statements had been admitted earlier by the court at trial, and the jury was permitted to consider both statements as evidence. Tr. 81-82. The prosecutor‘s imprecision was not misleading or prejudicial. Second, the defense did not object to these misstatements during closing arguments, waiving “all but plain error.” Fairley, 3d Dist. Hancock No. 5-03-41, 2004-Ohio-2616, ¶ 23. Third, although the court did not issue an instruction specifically addressing these remarks, the court gave a jury instruction that explained the closing arguments were not evidence. Tr. 231. The jurors had the exact quotations in evidence as they made their determination. We are to presume the jurоrs acted in accordance with these
{¶35} Even if the comments were improper, we cannot see how the absence of these remarks would have changed the jury‘s determination given the larger context of the trial and the evidence presented by the prosecution. While Little establishes that these remarks were inexact, he does not explain how exact quotations in the State‘s closing argument would have affected the verdict. Thus, the defense does not demonstrate how these remarks prejudiced the defendant. See Potts at ¶ 86, citing State v. Williams, 1st Dist. Hamilton No. C-040747, 2005-Ohio-6772, ¶ 28. Even if these misstatements were removed from closing arguments,
{¶36} Little‘s second allegation of prosecutorial misconduct surrounds the prosecution‘s use of the records of Little‘s two prior convictions during the state‘s closing arguments. In closing arguments, the prosecutor stated, “You saw the evidence—the entries. He‘s got two prior convictions for Domestic Violence. All the elements have been met.” Tr. 227. Under
Evidence was received that the defendant was previously convicted of Domestic Violence. The evidence was received because the prior convictions are an element of the offense charged. It was not
received, and you may not consider it, to prove the character of the defendant in order to show that he acted in conformity with that character.
Tr. 236. Since the prosecution had to present evidence of two prior convictions to elevate the domestic violence charged to a felony conviction, this statement did not prejudice Little‘s substantial rights and does not constitute plain error. We, therefore, overrule the third assignment of error.
{¶37} Having found no error prejudicial to the appellant in the particulars assigned and argued, the judgment of the Court of Common Pleas of Allеn County is affirmed.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/hls