[Cite as State v. Williams, 2015-Ohio-3578.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :     Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                   :     Hon. Patricia A. Delaney, J.
                                               :     Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :
DONALD MAURICE WILLIAMS                        :     Case No. 2014CA00199
                                               :
        Defendant - Appellant                  :     OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No.
                                                     2014CR1056



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    August 31, 2015



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      JACOB T. WILL
Prosecuting Attorney                                 116 Cleveland Ave. NW
                                                     Suite 808
By: RONALD MARK CALDWELL                             Canton, OH 44702
Assistant Prosecuting Attorney
110 Central Plaza South, Suite 510
Canton, OH 44702
Stark County, Case No. 2014CA00199                                                      2

Baldwin, J.

      {¶1}    Appellant Donald Maurice Williams appeals a judgment of the Stark

County Common Pleas Court convicting him of attempted murder (R.C. 2923.02(A),

R.C. 2903.02(A)), felonious assault (R.C. 2903.11(A)(1)), and aggravated burglary (R.C.

2911.11(A)(1)). Appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    During the early morning hours of June 29, 2014, Melissa Johnston

knocked frantically on the front door of the Canton residence of Clifford Jordan.

Jordan's friend Joe Sherrell, who was visiting from Tennessee, answered the door to

find a bloodied and scared Johnston. Sherrell immediately got Jordan to come to the

door. Johnston repeatedly told the men, "He's going to kill me." They observed cuts on

her legs and arms. Before they could close the door, appellant pushed Jordan aside

and entered the residence.

      {¶3}    Jordan warned appellant that he was calling the police. Appellant pushed

Johnston on a couch, grabbed her, tore her shirt off, and said that he was going to get

her. Appellant was holding a knife with a blade four to six inches long. The men tried to

talk appellant out of hurting Johnston, while Johnston continued screaming that

appellant was going to kill her. Finally Jordan called his dog, a Lab-Rottweiler mix, from

the basement. Upon seeing the dog, appellant fled. Jordan shut the front door and

called 911.

      {¶4}    Canton Police Officer James Nixon responded to the call.          When he

arrived, paramedics were attending to Johnston, who was in the ambulance. After

speaking to Jordan and Sherrell, Officer Nixon spoke to Johnston in the ambulance.
Stark County, Case No. 2014CA00199                                                       3


She told him that she stays with appellant but they do not have a permanent residence,

they move from house to house together. They were staying at a home around the

corner from Jordan's home. She argued with appellant about whether she was involved

with or talked to another man, and he assaulted her, giving her a black eye and stab

wounds. She told the officer that appellant was intoxicated. She broke free, and fled to

Jordan's house for help, where appellant followed her and continued the attack. Officer

Nixon noted that Johnston had a serious stab wound to her neck, and other cutting

wounds to the back of her neck, her thigh, and her abdomen.

       {¶5}   Johnston was transported to Aultman Hospital where she was treated for

23 lacerations. Ten of the wounds were closed by stitches, and she had numerous

other abrasions, scrapes and bruises covering her body.

       {¶6}   Appellant was indicted with attempted murder, felonious assault, and

aggravated burglary, all including repeat violent offender (RVO) specifications. The

case proceeded to jury trial.       During the reading of the indictment, the court

inadvertently read the RVO specifications, which had been severed for purposes of trial

and were to be tried to the court. The court declared a mistrial.

       {¶7}   A second jury trial commenced one week later. Appellant was found guilty

of all charges by the jury, and the court found appellant guilty of the RVO specifications.

He was sentenced to an aggregate prison term of nineteen years.

       {¶8}   Appellant assigns two errors on appeal:

       {¶9}   "I.      APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT

WITNESSES           AGAINST   HIM WAS      VIOLATED WHEN            THE   TRIAL   COURT

PERMITTED THE ADMISSION OF HEARSAY STATEMENTS.
Stark County, Case No. 2014CA00199                                                      4


        {¶10} "II.    APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE."

                                                  I.

        {¶11} Appellant argues that the admission of Johnston's statement to Officer

Nixon violated his Sixth Amendment right to confront witnesses.            Johnston was

unavailable to testify at trial.

        {¶12} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004), the United States Supreme Court concluded that the Sixth Amendment prohibits

the introduction of testimonial statements by a nontestifying witness, unless the witness

is “unavailable to testify, and the defendant had had a prior opportunity for cross-

examination.” Id. at 54. Applying that definition to the facts in Crawford, the court held

that statements by a witness during police questioning at the station house were

testimonial and thus could not be admitted. Id.

        {¶13} In Davis v. Washington and Hammon v. Indiana, 547 U.S. 813, 126 S.Ct.

2266, 165 L.Ed.2d 224 (2006), which the U.S. Supreme Court decided together, the

court   concluded that statements are not testimonial if the primary purpose of the

interrogation by law enforcement was to enable police to respond to an ongoing

emergency. Statements 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 past events that are potentially relevant to later criminal

prosecution. Id. at 822.

        {¶14} The Supreme Court further expounded on the primary purpose test in

Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). In that case,
Stark County, Case No. 2014CA00199                                                           5


the victim of a shooting made statements to the police within five to ten minutes of the

shooting, which ultimately resulted in his death. The armed shooter remained at large.

In finding the victim's statements to the police to be non-testimonial, the court explained

that the existence of an “ongoing emergency” at the time of the encounter is among the

most important circumstances informing the interrogation's “primary purpose.” Id. at

361. Whether an emergency exists and is ongoing is a highly context-dependent

inquiry. Id. at 363. An assessment of whether an emergency threatening the police and

public is ongoing cannot narrowly focus on whether the threat to the first victim has

been neutralized because the threat to the first responders and public may continue. Id.

An   emergency's duration and scope may depend in part on the type of weapon

involved. Id. at 364.

       {¶15} A victim's medical condition is also important to the primary purpose

inquiry to the extent that it sheds light on the victim's ability to have any purpose at all in

responding to police questions and on the likelihood that any such purpose would be

testimonial. Id. at 364-365. The victim's condition also provides an important context

for first responders to judge the existence and magnitude of a continuing threat to the

victim, themselves, and the public. Id. at 365. An emergency does not necessarily last

the entire time that a perpetrator is on the loose, but trial courts can determine in the

first instance when an interrogation transitions from non-testimonial to testimonial. Id.

       {¶16} Finally, another factor to consider pursuant to the "primary purpose" test is

the encounter's informality.      Id. at 366.    Formality suggests the absence of an

emergency, but informality does not necessarily indicate the presence of an emergency

or the lack of testimonial intent.    Id.   However, the court distinguished the facts in
Stark County, Case No. 2014CA00199                                                     6

Bryant, where the questioning occurred in an exposed public area, before emergency

medical services arrived, and in a disorganized fashion, from the formal station-house

interrogation in Crawford. Id.

      {¶17} The circumstances reflect that at the time police spoke to Johnston, there

was an ongoing emergency. Officer Nixon arrived on the scene about seven minutes

after dispatch received the 911 call. Johnston had been attacked by a man armed with

a knife in one location, and he had pursued her into the street and into another home.

She indicated to police that appellant was intoxicated. He fled on foot with the knife in

his possession. It was night-time, and there were known "flop houses" in the area

which could possibly provide cover for the armed assailant. The officer testified that he

did not have a reason to believe that the victim was still in danger from appellant, but

there "were other issues going on in the neighborhood outside at that time." Tr. (II) 66.

After speaking to Johnston, police first secured a home in the area which had high

bushes that might conceal the presence of an assailant. Officer Nixon then noticed that

the door to the duplex where the attack began was open, and he radioed for backup

and a canine unit to search the home. The actions taken by the officers after speaking

to Johnston clearly indicate that they perceived an ongoing emergency until they could

determine whether appellant was still present in the neighborhood.

      {¶18} In addition, Johnston's medical condition lends itself to a conclusion that

her statements were non-testimonial. She was in pain, scared and upset when Officer

Nixon spoke to her. She had been stabbed 23 times and the officer was concerned

about a stab wound to her neck. Her condition further indicates that appellant posed a
Stark County, Case No. 2014CA00199                                                     7


threat to first responders and others in the area, as he repeatedly attacked her with a

knife in more than one location.

       {¶19} Finally, the setting in which Johnston was questioned was informal.

Unlike Bryant, emergency personnel had arrived on the scene before police spoke to

Johnston. However, the questioning occurred shortly after the attack and while the

victim was still in an ambulance in the neighborhood where the incident took place, not

in a more formal setting such as the police station.

       {¶20} The court did not err in finding that the statement Johnston made to the

police was non-testimonial in nature, and its admission did not violate the Confrontation

Clause. The first assignment of error is overruled.

                                                II.

       {¶21} In his second assignment of error, appellant argues that the judgment is

against the manifest weight and sufficiency of the evidence, specifically as to the

identity of the perpetrator.   He argues that the identification offered by Jordan and

Sherrell was unreliable and equivocal, and that there were discrepancies in their

testimony concerning what both Johnston and appellant were wearing.

       {¶22} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in 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. Thompkins, 78 Ohio St. 3d 380, 387,
Stark County, Case No. 2014CA00199                                                      8

1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485

N.E.2d 717 (1983).

      {¶23} An appellate court's function when reviewing the sufficiency of the

evidence is to determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574

N.E.2d 492, paragraph two of the syllabus (1991).

      {¶24} Johnston identified appellant to Officer Nixon as the person who attacked

her. She knew appellant, as they were living together and romantically involved at the

time of the incident. Jordan's in-court identification of appellant was equivocal due to

appellant's growth of a beard. He testified that appellant looked familiar, but he was not

sure about the beard.       However, Sherrell positively identified appellant as the

perpetrator, noting that he didn't have a beard at the time of the incident. While there

were discrepancies in the testimony of the two men regarding the clothing worn by

Johnston and appellant, they testified that they were paying more attention to

appellant's knife and Johnston's medical condition than to what they were wearing.

      {¶25} The evidence was sufficient to identify appellant as the perpetrator of the

offenses, and the judgment is not against the manifest weight of the evidence.
Stark County, Case No. 2014CA00199                                        9


      {¶26} The judgment of the Stark County Common Pleas Court is affirmed.

Costs are assessed to appellant.


By: Baldwin, J.

and Delaney, J. concur.

Hoffman, P.J. concurs in part
and dissents in part.
Stark County, Case No. 2014CA00199                                                       10

Hoffman, P.J., concurring in part and dissenting in part

         {¶27} I concur in the majority's analysis and disposition of Appellant's second

assignment of error. However, I respectfully dissent from the majority's disposition of

Appellant's first assignment of error.

         {¶28} Unlike the majority [and trial court], I do not find the circumstances herein

justify the characterization of Johnston's statements to Officer Nixon as non-testimonial

due to the existence of an "ongoing emergency".

         {¶29} I find the majority's conclusion based upon the primary purpose test set

forth in Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed. 2d 93(2011), leads

me to a different conclusion.1 I find the factual distinctions between Bryant and the case

sub judice significant.

         {¶30} First and foremost is that the weapon involved herein was a knife whereas

the weapon in Bryant was a gun. Second, unlike the scenario in Bryant, here Johnston

was already in the ambulance and being attended to by medical personnel at the time

Officer Nixon was questioning her.

         {¶31} The object of Appellant's violent act was clearly focused on Johnston.

Appellant took no violent action against either Jordan or Sherrell, nor did the nature of

the attack suggest a random, unprovoked threat against the general public.

         {¶32} Appellant, having been told Jordan was calling the police and upon seeing

Jordan's dog, fled. At that point, it seems unlikely Appellant would attempt to re-enter

Jordan's residence to continue his assault on Johnston.




1
    Of the eight justices participating in Bryant, two dissented.
Stark County, Case No. 2014CA00199                                                        11


       {¶33} By the time Officer Nixon arrived, Johnston was already being attended to

by medical personnel and had been secured in the ambulance. This is a far different

scenario from that in Bryant where the victim was found by the police lying in a gas

station parking lot bleeding from a mortal gunshot wound.

       {¶34} Of significance to the majority in Bryant, in concluding the emergency

encompassed a potential threat to the police and the public, was the fact the case

involved a gun; therefore, the physical separation between the victim and the defendant

was not necessarily sufficient to end the threat.        In contrast, I find the physical

separation between Appellant and Johnston was sufficient to end the potential threat

given the fact the weapon involved, a knife, and the injuries inflicted during the attack

required close proximity between Appellant and Johnston or, for that matter, any other

person. Appellant fled before the ambulance or police arrived. Unlike situations we too

frequently see reported on the national news involving random mass shootings in public

locations - this attack was clearly focused on one individual and involved a weapon less

potentially threatening to armed police officers.   I find the threat to the first responders

and general public was insufficient to find an ongoing emergency existed.

       {¶35} Also of significance to the majority in Bryant was the medical condition of

the victim. Unlike the medical condition of the victim in Bryant, whose response to

questions by the police were punctuated by his questions about when emergency

medical services would arrive, Johnston was already being attended to by medical

personnel and secured in the ambulance.             While the circumstances lacked the

"formality" attendant to the station-house interview in Crawford, it was more formal than

the unsafe, not tranquil environment existent in Davis v. Washington, and Hammon v.
Stark County, Case No. 2014CA00199                                                       12

Indiana, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed. 224 (2006).           I find the "primary

purpose" of the questioning of Johnston would have been understood by her and Officer

Nixon to establish or prove past events potentially relevant to later criminal prosecution.

       {¶36} In conclusion, I find Johnston's statements to Officer Nixon were

testimonial and were improperly admitted in violation of Appellant's Sixth Amendment to

confront witnesses.
