{¶ 2} Appellant was a nurse's assistant at a Butler County nursing care facility when he was charged with patient abuse for allegedly touching the breast of an elderly female patient ("victim") in 2003.
{¶ 3} The incident occurred when appellant and two female nurse's assistants entered the victim's room to attend to the needs of the victim and another patient in the room. One of the assistants testified that she obsеrved appellant walk over to the victim's bed and put his hand on the victim's breast. Appellant reportedly shook the victim and asked her to identify what it wаs he was touching. The witness testified that the victim was crying and telling appellant to stop. When the victim answered that appellant was touching her breаst, appellant said, "That's my girl," and released the victim's breast.
{¶ 4} The other nurse's assistant testified that she observed appellant touch the victim's breast and heard appellant ask the victim if he was touching her watermelon. The second witness testified that the victim was crying, was indicating that she was being hurt, and was аsking that the conduct stop.
{¶ 5} One of the nurse's assistants reported the incident to her supervisor. Eventually two nurse supervisors and the assistant who reported the conduct would testify that they returned to the victim's room to check on her well-being several minutes after the incident. They testified that the victim began сrying again and, when they asked how she was doing, the victim responded that a black man pinched her breast.1 One of the nurse supervisors testified that she examined the victim at that time and no signs of injury were present, but did find a bruise on the victim's breast a few days later.
{¶ 6} When confronted by a care facility supervisor аbout his actions, appellant indicated that he was kidding with the victim. Appellant would eventually admit to an investigator that he touched the victim's breast.
{¶ 7} Aftеr a jury found appellant guilty of patient abuse, the trial court sentenced appellant to 17 months in prison. Appellant appeals his cоnviction and sentence, setting forth two assignments of error.
{¶ 8} Assignment of Error No. 1:
{¶ 9} "The trial court erred to the prejudice of defendant-appellant when it admitted into evidence certain statements made by the victim."
{¶ 10} The basis of this assignment of error is the trial court's decision to admit into evidence as an excited uttеrance the victim's statements made to the nurse's assistant and nursing supervisors that a black man pinched or grabbed her breast.
{¶ 11} Appellant does not appear to contest whether the statements constituted an excited utterance. In any event, we agree with the trial court that the victim's statеments at issue were excited utterances. See Evid.R. 803(2); State v. Ducey,
Franklin App. 03AP-944,
{¶ 12} Appellant specifically argues that the viability of the excited utterance exception to the hearsay rule has been abrogated by Crawford v. Washington (2004),
{¶ 13} While a comprehensive definition of the term "testimonial" was not provided, the Supreme Court indicаted that the term testimonial applies, at a minimum, to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and responses to police interrogations. Crawford at 68; Statev. Byrd,
{¶ 14} The threshold determination, therefore, is whether the statements in question are classified as testimonial. City ofAkron v. Hutton, Summit App. No. 22425,
{¶ 15} Limiting our focus to statements considered excited or spontaneous utterances, we have found that the following cases influence the instant case: State v. Gaines, Hamilton App. No. C-040122, C-040139,
{¶ 16} As we previously stated, the victim made the statements to a nurse's assistant and two nursing supervisors when they entered her room and inquired about her well-being. The victim began crying and indicated that a black man had pinched or grabbed her breast. After reviewing the record and the applicable case law, we find that the statements in question were not testimonial in nature, and the admission of these statements by the trial court did nоt violate appellant's right to confrontation.
{¶ 17} Further, we find that violations of the Confrontation Clause are subject to a harmless-error review; as one court has noted, "Crawford does not suggest otherwise." State v. Nix,
citing United States v. McClain,
{¶ 18} A review of the record reveals that the introduction of the victim's statements was harmless when there was clear evidence presented by two eyewitnesses, and appellant's statement, that appellant touched the victim's breast.
{¶ 19} Appellant's first assignment of error is overruled.
{¶ 20} Assignment of Error No. 2:
{¶ 21} The trial court erred to the prejudice of defendant-appellant when it sentenced him to a term of imprisonment in excess of the minimum sentence.
{¶ 22} Appellant argues that a jury was required to make the necessаry findings for the imposition of more than the minimum prison term, pursuant to Blakely v. Washington (2004),
{¶ 23} The crime of patient abuse is a felony of the fourth degree. R.C.
{¶ 24} The trial court found that appellant had not previously served a prison term, and stated thаt imposition of the shortest prison term for a fourth-degree felony would demean the seriousness of the offense and not adequately protect the public. See R.C.
{¶ 25} We have cоnsidered appellant's arguments, reviewed the record and the pertinent case law. Appellant's second assignment of error is overruled on the basis of State v. Combs, Butler App. No. CA2005-03-047,
{¶ 26} Judgment affirmed.
Walsh and Young, JJ., concur.