{¶ 3} Amy Marcum apprised the police that Appellant was intoxicated, was taking nitroglycerin for a heart condition, and was complaining of chest pains when she left. Mrs. Marcum gave Chief Blakeman her home phone number, and he called the number to determine if Appellant needed medical care. Chief Blakeman identified himself and asked to speak to Matt Marcum, to which Appellant responded: "This is Matt." (2/24/04 Tr., p. 11.) Appellant then proceeded to tell Chief Blakeman that he knew he was going to jail for shooting at Mrs. Marcum, and that he fired shots from the house. (2/24/04 Tr., p. 12.) He also stated, "[i]f someone came back to the house tonight, somebody was gonna die." (2/24/04 Tr., p. 12.)
{¶ 4} An arrest warrant was issued, and the regional Special Response Team ("SRT") went to Appellant's residence to execute the warrant. The SRT believed Appellant to be armed and dangerous. Upon arriving at the residence, the members of the SRT took up positions around the house. The SRT was prepared to use a battering ram to enter the house. Deputy Willie Coleman shouted "Sheriff's Office," waited five to ten seconds for a response, and then hit the front door with the battering ram when there was no response. The officers also threw an explosive 3device, known as a "flash bang" grenade or percussion grenade, through one of the windоws in the home. (2/19/04 Tr., p. 16.) The officers found Appellant asleep in his bed with a handgun lying next to him. They arrested Appellant and confiscated the gun as evidence.
{¶ 5} On October 31, 2003, the Columbiana County Grand Jury issued a two-count indictment against Appellant. Count one was for felonious assault, a second degree felony pursuant to R.C. §
{¶ 6} On February 3, 2004, Appellant filed a motion to suppress any oral statements he made to the police, including any statements he made to Chief Blakeman. A hearing was later held on this motion.
{¶ 7} Also on February 3, 2004, Appellant filed a motion to suppress the evidence that was seized during his arrest, including the 9mm handgun fоund on his bed. A hearing was also held on this motion.
{¶ 8} On March 5, 2004, the trial court filed a journal entry overruling the motion to suppress the handgun, and partially overruling the motion to suppress statements made to the police.
{¶ 9} The case went to jury trial on October 4, 2004. At the close of the evidence, Appellant made an oral motion that the jury be instructed on the inferior degree offense of aggravated assault. The motion was overruled. The jury returned a guilty verdict on October 6, 2004, on one count of felonious assault. A sentencing hearing was held November 18, 2004, and the trial court imposed a six-year prison term.
{¶ 11} On February 3, 2004, Appellant filed a motion to suppress all physical evidence seized from his home after the police executed their arrest warrant by knocking down his front door and throwing a percussion grenade through the living room window. Appellant argues that the police action violated the statutory "knockand-announce" rule found in R.C. §
{¶ 12} "(A) When making an arrest or executing an arrest warrant or summons in lieu of an arrest warrant, or when executing a search warrant, the peace officer, law enforcement officer, or other authorized individual making the arrest or executing the warrant or summons may break down an outer or inner door or window of a dwelling house or other building, if, after notice of his intention to make the arrest or to execute the warrant or summons, he is refused admittance, but the law enforcement officer or other authorized individual executing a search warrant shall not enter a house or building not described in the warrant."
{¶ 13} Appellant argues that the statutory rule codifies rulings of the United States Supreme Court, such as Wilson v. Arkansas (1995),
{¶ 14} The trial court ruled that the police violated the knock-and-announсe rule by breaking the door down after only five to ten seconds, and by failing to announce that they were there to execute an arrest warrant. (Oct. 7, 2004 Opinion, p. 2.) The trial court found, though, that exigent circumstances excused the officers' actions. The trial court found that Appellant was known to have earlier fired shots inside the house and that the officers' safety was at stake, constituting exigent circumstances. The trial court concluded that Appellant's constitutional rights had not been violated and that no evidence should be suppressed.
{¶ 15} The United States Supreme Court has very recently held that the suppression of evidence is not an applicable remedy for a violation of the constitutional knock-and-announce rule. Hudson v. Michigan (2006),
{¶ 16} Even if Hudson does not apply to the instant appeal, the parties agree that a police officer is excused from following the "knock and announce" rule when exigent circumstances exist. See State v.Furry (1971),
{¶ 17} It is well-settled that, "where officers hold a reasonable belief that they are in danger of bodily harm or that suspects are trying tо escape or destroy evidence, compliance with the knock-and-announce principle is excused." Gaston v. Toledo (1995),
{¶ 18} From the overwhelming evidence admitted at the suppression hearing, it was clear that the police had a reasonable belief of danger when executing the arrest warrant. This provided еxigent circumstances to excuse the requirements of the knock-and-announce rule. For all the aforementioned reasons, Appellant's first assignment of error is overruled.
{¶ 20} Appellant argues that certain statements he made during a telephone call with Chief Blakeman should have been suppressed because the state never authenticated that Appellant was actually the person speaking on the phоne. The phone call was obviously an important piece of the evidence, because during the call, Appellant admitted that he tried to shoot Mrs. Marcum. Appellant has not raised any
{¶ 21} "Ordinarily, 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 County (1991),
{¶ 22} Evid. R. 901(A) states: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."
{¶ 23} Evid. R. 901(B) provides a number of examples of valid authentication, "[b]y way of illustration only, and not by way of limitation * * *." Evid. R. 901(B)(6) provides an example of how to authenticate a telephone conversation:
{¶ 24} "(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (a) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (b) in the case of a business, the call was made to a place of business and thе conversation related to business reasonably transacted over the telephone."
{¶ 25} The staff notes to Evid. R. 901 clarify how a telephone call may be authenticated:
{¶ 26} "Thus if the testifying witness testifies that he dialed a number listed under the name of a particular person, and the person answering the phone identified himself as the person listed in the directory, then the testifying witness may testify as to the contents of the call; that is, `self-identificаtion' (of the person called) is sufficient authentication." (Staff notes to Evid. R. 901(B)(6)).
{¶ 27} In the instant case, Mrs. Marcum provided Chief Blakeman with her home phone number, which was also Appellant's home phone number. Chief Blakeman dialed the number, identified himself, and asked to speak with Matt Marcum, who then identified himself:
{¶ 28} "Q. [Prosecutor Gamble] Okay. Can you describe to us then what took place when you dialed the Marcum number?
{¶ 29} "A. [Chief Blakeman] Mr. Marcum answerеd the phone, sounded very intoxicated, and he explained to me, you know, I asked him if, you know, he was okay, if he was experiencing any chest pains, do you need medical attention, are you all right? And he just said that he had been drinking, obviously.
{¶ 30} "Q. Did he — did you identify yourself?
{¶ 31} "A. Yes, I did.
{¶ 32} "Q. Okay, and do you recall how you identified yourself?
{¶ 33} "A. I told him that I was Chief Blakeman from Washingtonville Police Department, that I was assisting Leetonia.
{¶ 34} "Q. All right. And did you ask to speak to Matt Marcum, or did you ask him to identify himself?
{¶ 35} "A. I asked for Matt Marcum, and he said, `This is Matt.'
{¶ 36} "Q. All right. I'm sorry to interrupt you.
{¶ 37} "A. Yeah. And uh, at that point he says, `I — He said, `I know why you're calling, I'm going to go to jail.' You know, he says, `I missed, I'd have shot the bitch.' And this is basically the gist of it." (2/24/04 Tr., pp. 11-12.)
{¶ 38} This evidence, if believed by the trial court, was sufficient to authenticate that Matt Marcum was the person speaking on the phone. One of the residents of the home (Mrs. Marcum) provided the phone number, and another resident of the home (Appellant) answered the phone and identified himself. This is at least as reliable a method of authenticаting a phone call as that provided in the illustration in Evid. R. 901, which involves a person looking up the number in a phone directory and having the person who answers the phone identify himself or herself. Therefore, the trial court did not abuse its discretion in accepting that the phone call was properly authenticated, and Appellant's second assignment of error is overruled.
{¶ 40} Appellant argues that the trial court should have given a jury instruction on the lesser included offense of aggravated assault. It should first be clarified that aggravated assault is not a lesser included offense of felonious assault, but is an inferior degree offense, meaning that, "its elements are identical to those of felonious assault, except for the additional mitigating element of serious provocation." State v. Deem (1988),
{¶ 41} Appellant contends that a jury instruction should be given for an inferior degree offense, "if under any reasonable view of the evidence, and when all of the evidence is construed in a light most favorable to the defendant, a reasonable jury could find that the defendant had established by a preponderance of the evidence the existence of one or both of the mitigating circumstances." State v.Rhodes (1992),
{¶ 42} Appellant preserved this issue for review by requesting an instruction on the inferior degree offense, which was denied. (Tr., pp. 599-601.)
{¶ 43} When reviewing a trial court's jury instructions, the рroper standard of review for an appellate court is whether the trial court's refusal to give a requested jury instruction constituted an abuse of discretion under the facts and circumstances of the case. State v.Wolons (1989),
{¶ 44} When a defendant requests an instruction on an inferior degree offense, the burden is on the defendant to persuade the factfinder of the mitigating elements of the offense. See State v. Hill (1996),
{¶ 45} Appellant took the stand in his own defense. He testified that he thought someone was stealing his van, so he took his gun and ran outside. (Tr., p. 551.) He testified that the van was coming toward him, and he fired some shots in self-defense, or possibly as warning shots. (Tr., p. 583.) Special Agent Ed Carlini also noted that the bullet hole in the hood of the van likely indicated that Appellant was either walking toward the van, or that the van was moving toward him, when the shots were fired. (Tr., p. 425.) This is the evidence Appellant relies on in support of his claim that the trial court should have given an instruction on aggravated assault.
{¶ 46} Appellant's argument is unpersuasive. Appellant never testified that he was afrаid, that he was provoked, that he was in a rage, or anything similar to these emotions. Appellant did claim that he shot in self-defense, but a self-defense theory is usually contradictory to proof of sudden passion or rage. State v. Baker (1996),
{¶ 47} Appellant also testified that the shots he fired were meant to be warning shots. (Tr., p. 573.) Firing a warning shot implies rational and objective thought, not passion and rage. This testimony is also inconsistent with the elements of aggravated assault.
{¶ 48} Even if one could construe that Appellant had a moment of fear in seеing the van coming toward him, fear alone is not a basis for establishing the mitigating circumstances of aggravated assault.State v. Mack (1998),
{¶ 49} Even if we could surmise that the alleged theft of the van was the provocation for firing the shots, it is clear that theft of personal property is not the type of provocation that satisfies the provocation element in aggravated assault. State v. Clark, 8th Dist. No. 83474,
{¶ 50} Appellant also testified that he got into a slight argument with his wife over some money prior to the shooting. (Tr., p. 545.) A single argument, or even a history of arguments, with another person is not sufficient provocation to satisfy the requirements of aggravatеd assault. State v. Serrano,
{¶ 51} Appellant's testimony completely contradicts any theory of sudden passion or sudden rage sufficient to provoke deadly force. Appellant spoke about a minor argument with his wife, "nothing to amount to much." (Tr., p. 547.) According to Appellant, it was Amy Marcum who brought the gun into the living room, and the shot in the living room supposedly occurred as they were wrestling over the gun. (Tr., p. 549.) There is no indication of any passion or rage on Aрpellant's part involved in the incident. Concerning the two shots into the van, Appellant again provided no testimony of anger, rage, or sudden passion. In fact, he very clearly established that, during the time period of the crime, he was calm, was not provoked by anything his wife said or did, was clear-headed, and did not intend to hurt anyone when he shot at the van. His account of the events is that he either fired warning shots or fired in self-defense, neither of which is consistent with sudden rage or sudden passion brought on by serious provocation. Appellant points to nothing in the record that could remotely establish a sudden passion or rage brought on by sufficient provocation, and therefore, this assignment of error is overruled.
{¶ 52} In conclusion, the record fully supports the trial court's decision on both the evidentiary and jury instruction questions. The U.S. Supreme Court has held that suppression of evidencе is not appropriate as a remedy to violations of the knock-and-announce rule.Hudson, supra. Furthermore, the police had exigent circumstances for violating the knock-and-announce rule. The phone call in which Appellant admitted shooting at his wife was properly authenticated. Finally, there was no proof of provocation and passion or rage that would have warranted a jury instruction on aggravated assault. All three assignments of error are overruled, and the judgment of trial court is hereby affirmed in full.
Donofrio, P.J., concurs.
Vukovich, J., concurs.