STATE OF OHIO v. GREGORY NORRIS
C.A. CASE NO. 26147
T.C. NO. 14CRB607
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
February 20, 2015
[Cite as State v. Norris, 2015-Ohio-624.]
(Criminal appeal from Municipal Court)
Rendered on the 20th day of February, 2015.
GARRETT P. BAKER, Atty. Reg. No. 0084416, Assistant City Prosecutor, 335 W. Third Street, Rm. 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
THADDEUS HOFFMEISTER, Atty. Reg. No. 0081977, University of Dayton Law Clinic, 300 College Park Drive, Dayton, Ohio 45469
Attorney for Defendant-Appellant
{¶ 1} Gregory Norris appeals from a judgment of the Dayton Municipal Court, which found him guilty of domestic violence following a bench trial and sentenced him accordingly. For the following reasons, the judgment of the trial court will be affirmed.
Facts and Procedural History
{¶ 2} On January 30, 2014, Patria Battle called 911 from a residence on Ridge Avenue in Dayton; she reported that she was being hit by her daughter‘s father. She identified the perpetrator as Norris, stated that he was still inside the house, and answered affirmatively when the dispatcher asked if she needed a medic, as well as the police.
{¶ 3} Officer Jeffrey Holmes of the Dayton Police Department testified that he arrived at the home about 10 minutes after the dispatch, and Battle answered the door. She was crying, her eyes were red, she was “dabbing blood with a tissue from her nose,” bleeding slightly from her upper lip, and her nose, right cheek, and upper lip were “slightly swollen.” When Holmes asked Battle what had happened, she said, “he hit me,” referring to Norris, who was sitting on a nearby couch. One child was also at the home.
{¶ 4} Sergeant Brian Lewis of the Montgomery County Sheriff‘s Department testified as the custodian of the 911 call records. He produced a copy of Battle‘s 911 call on CD, which was played at trial. On the 911 call, Battle stated that Norris (whom she identified by name and as her daughter‘s father) was fighting her and hit her. She also provided a physical description of Norris and stated that he was still in the house, “probably” intoxicated. Battle remained on the line awaiting the arrival of the police; the call lasted about 12½ minutes.
{¶ 6} In March 2014, Norris filed his notice of appeal. In December 2014, we filed an order to show cause why Norris‘s appeal should not be dismissed as moot, because it appeared that he had fully served his community control sentence. He filed a response in which he pointed out that, although his community control sentence had been served, the case remained open, and he therefore faced the potential imposition of the three-day suspended sentence. Because it is unclear from the record and the municipal court website whether the other aspects of Norris‘s community control, such as anger management class and drug assessments, have been completed, we concur with Norris‘s assertion that he may still be subject to the suspended sentence. As such, his appeal is not moot.
{¶ 7} Norris raises four assignments of error on appeal.
Evidentiary Issues
{¶ 8} The first two assignments challenge the admission at trial of statements Battle made to the dispatcher on the 911 call and to Officer Holmes when he responded to the home. Norris claims that he was denied his right to confront a witness against him
{¶ 9} “Hearsay” is defined as “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.”
{¶ 10}
{¶ 11} The excited utterance and present sense impression exceptions to the definition of hearsay reflect “an assumption that statements or perceptions that describe
{¶ 12} In keeping with this rationale, 911 calls are usually admissible under the excited utterance or the present sense impression exception to the hearsay rule. Ratliff v. Brannum, 2d Dist. Greene No. 2008-CA-5, 2008-Ohio-6732, ¶ 132 (911 calls are admissible as excited utterances), citing State v. Williams, 2d Dist. Montgomery No. 20368, 2005-Ohio-213, at ¶ 17; State v. Jackson, 2d Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143, ¶ 15 (911 tape was properly admissible as a present sense impression); Crowley. “The controlling factor is whether the declaration was made under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.” Crowley, citing State v. Humphries, 79 Ohio App.3d 589, 598, 607 N.E.2d 921 (12th Dist.1992). Whether a statement is made in response to a question from the dispatcher is relevant, but not determinative.
{¶ 13} Moreover, the Sixth Amendment right to confrontation of witnesses does not extend to nontestimonial hearsay. State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 21. Testimonial statements have been defined to include statements “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Thus statements made to police without an ongoing emergency are testimonial when the circumstances objectively indicate that * * * the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Internal citations omitted.) State v. Lewis, 1st Dist. Hamilton No. C-050989 and C-060010, 2007-Ohio-1485, ¶ 31, citing Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We have generally held that a 911 call made by a domestic assault victim is not testimonial in nature and that, where the excited utterance exception to the hearsay rule applies, the admission of such a statement does not violate the Sixth Amendment right to confrontation of witnesses. State v. Byrd, 160 Ohio App.3d 538, 2005-Ohio-1902, 828 N.E.2d 133, ¶ 17 (2d Dist.), citing State v. Williams, 2d Dist. Montgomery No. 20368, 2005-Ohio-213, ¶ 20.
{¶ 14} A trial court has broad discretion regarding the admission or exclusion of evidence, and its exercise of that discretion will not be disturbed on appeal absent an abuse of discretion. State v. Woling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88. An “abuse of discretion” implies an arbitrary, unreasonable, or unconscionable attitude on the part of the court. State v. Ulery, 2d Dist. Clark No. 2010-CA-89, 2011-Ohio-4549, ¶ 9, citing State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).
{¶ 15} The trial court‘s conclusion that Battle‘s statements to the 911 dispatcher and to Officer Holmes were excited utterances and/or present sense impressions and, thus, exceptions to the hearsay rule, was supported by the following evidence: the statements were
{¶ 16} In his brief, Norris relies on Byrd, 160 Ohio App.3d 538, 2005-Ohio-1902, 828 N.E.2d 133 (2d Dist.), in support of his arguments. With respect to the use of statements made during a 911 call, the holding in Byrd is consistent with our conclusion in this case; the statements during the 911 call in Byrd were admitted under the excited utterance exception to the hearsay rule. Byrd differed in holding that incriminating statements about Byrd made by Byrd‘s girlfriend to the police during their investigation at the scene were testimonial and should not have been admitted as an exception to the hearsay rule. Byrd‘s girlfriend did not testify at trial, and we found that the use of her prior statements violated Byrd‘s right to confront a witness against him. However, this conclusion was based on the particular facts of that case.
{¶ 18} The first and second assignments of error are overruled.
Authentication
{¶ 19} In his third assignment of error, Norris contends that the State failed to authenticate the identity of the 911 caller and that the recording should have been excluded on that basis.
{¶ 20}
{¶ 22} At trial, Norris objected to the 911 recording on the basis that it was “being offered by the prosecution to prove essential elements of the crimes“; he did not object on the basis of the State‘s failure to adequately authenticate the recording. Thus, he has waived all but plain error with respect to the authentication of the 911 tape. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 187; Akron v. Stalnaker, 9th Dist. Summit No. 23617, 2007-Ohio-6789, ¶ 12. In order to constitute plain error, the error must be an obvious defect in the trial proceedings, and the error must have affected substantial rights. State v. Haynes, 2d Dist. Clark No. 13 CA 90, 2014-Ohio-2675, ¶ 7, citing State v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240.
{¶ 23} Sgt. Lewis testified that the CD he produced contained the call from the Ridge Avenue address to the regional dispatch center on the date and time in question. Officer Holmes testified that, upon responding to that dispatch, he found Battle bleeding and crying at the home; Battle described having been hit, just as the 911 caller had done. On the tape itself, the caller stated the address to which Officer Holmes responded, and the caller informed the dispatcher that the police had arrived just as the dispatcher stated, “They should be pulling up outside Ma‘am.”
{¶ 24} These statements leave little doubt that Battle was, in fact, the 911 caller. Moreover, we have held that 911 recordings are sufficiently authenticated when the keeper
{¶ 25} There was no error, let alone plain error, in admitting the recording of the 911 call.
{¶ 26} The third assignment of error is overruled.
Sufficiency of the Evidence
{¶ 27} In his fourth assignment of error, Norris contends that the trial court should have granted his
{¶ 28} When reviewing the denial of a
{¶ 29} Insofar as it is relevant to this case, the offense of assault is defined as knowingly causing or attempting to cause physical harm to another.
{¶ 30} On the 911 call that was played at trial, the caller stated that “[her] daughter‘s dad” was “trying to fight” her (the caller), and she identified the man as Gregory Norris. Norris argues that the statement establishing their family relationship was “testimonial,” and therefore should have been excluded and not considered as evidence against him. As discussed above, the trial court did not err in concluding that the statements contained in the 911 call were not “testimonial,” and that they were admissible under the
{¶ 31} Officer Holmes‘s description of Battle‘s injuries and her statement during the 911 call that Norris had hit her supported the trial court‘s conclusion that there was sufficient evidence that Battle‘s injuries had been inflicted knowingly and that Norris had caused her physical harm. Moreover, Battle‘s statement during the 911 call that Norris was her daughter‘s father provided sufficient evidence that Norris was a “family member” of Battle, as required for a conviction of domestic violence.
{¶ 32} The trial court did not err in denying Norris‘s
{¶ 33} The fourth assignment of error is overruled.
{¶ 34} The judgment of the trial court will be affirmed.
FAIN, J. and HALL, J., concur.
Copies mailed to:
Garrett P. Baker
Thaddeus Hoffmeister
Acting Judge Edward Utacht