[Cite as State v. Douglas, 2019-Ohio-2067.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 9-18-19

        v.

JEROME DOUGLAS,                                          OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 9-18-20

        v.

JEROME DOUGLAS,                                          OPINION

        DEFENDANT-APPELLANT.


                 Appeals from Marion County Common Pleas Court
                 Trial Court Nos. 17-CR-527 and 17-CR-528

                      Judgment Affirmed in Case No. 9-18-19 and
                            Case No. 9-18-20 Dismissed

                             Date of Decision:   May 28, 2019


APPEARANCES:

        Todd A. Workman for Appellant

        Kevin P. Collins for Appellee
Case No. 9-18-19, 9-18-20



ZIMMERMAN, P.J.

      {¶1} Defendant-appellant, Jerome Douglas (“Douglas”), appeals the June 7,

2018 judgment entries of sentence of the Marion County Court of Common Pleas.

      {¶2} On December 27, 2017, the Marion County Grand Jury indicted

Douglas in case number 17-CR-0527 on three counts: Count One of felonious

assault in violation of R.C. 2903.11(A)(2), a second-degree felony; Count Two of

domestic violence in violation of R.C. 2919.25(A), a fourth-degree felony; and

Count Three of having weapons while under disability in violation of R.C.

2923.13(A)(3), a third-degree felony. (Case No. 17-CR-0527, Doc. No. 1). The

indictment also included a firearm specification under R.C. 2941.145 as to Count

One. (Id.). That same day, the Marion County Grand Jury indicted Douglas in case

number 17-CR-0528 on Count One of felonious assault in violation of R.C.

2903.11(A)(2), a second-degree felony, and Count Two of having weapons while

under disability in violation of R.C. 2923.13(A)(3), a third-degree felony. (Case

No. 17-CR-0528, Doc. No. 1). The indictment also included a firearm specification

under R.C. 2941.145 as to Count One. (Id.).

      {¶3} On January 2, 2018, Douglas appeared for arraignment and entered

pleas of not guilty to the indictments. (Case No. 17-CR-0527, Doc. No. 7); (Case

No. 17-CR-0528, Doc. No. 7).



                                       -2-
Case No. 9-18-19, 9-18-20



       {¶4} On January 24, 2018, under a superseding indictment, the Marion

County Grand Jury indicted Douglas in case number 17-CR-0528 on two additional

counts: Count Three of having weapons while under disability in violation of R.C.

2923.13(A)(3), a third-degree felony, and Count Four of receiving stolen property

in violation of R.C. 2913.51(A), a fourth-degree felony. (Case No. 17-CR-0528,

Doc. No. 10). The superseding indictment included the specification included in

the original indictment.    (Id.).   On February 5, 2018, Douglas appeared for

arraignment and entered pleas of not guilty to the new indictment. (Case No. 17-

CR-0528, Doc. No. 21).

       {¶5} On March 27, 2018, Douglas filed motions in limine in case number

17-CR-0527 requesting that the trial court prohibit the State from introducing at trial

evidence of “other acts” and evidence related to a firearm. (Case No. 17-CR-0527,

Doc. Nos. 60, 62). Douglas also filed a motion to sever Count Three for purposes

of trial and a motion “to require the State to divulge considerations to prosecution

witness in exchange for aid/testimony.” (Case No. 17-CR-0527, Doc. Nos. 61, 63).

The trial court granted Douglas’s motions to sever and “to require the State to

divulge considerations to prosecution witnesses in exchange for testimony”; and the

trial court also preliminarily granted, in part, Douglas’s motions in limine. (Case

No. 17-CR-0527, Doc. No. 64).



                                         -3-
Case No. 9-18-19, 9-18-20



        {¶6} On March 29-30, 2018, case number 17-CR-0527 proceeded to a jury

trial on Counts One and Two and to a bench trial (after Douglas waived his right to

a jury trial) on Count Three. (Mar. 29, 2018 Tr., Vol. I, at 1); (Mar. 30, 2018 Tr.,

Vol. II, at 326); (Case No. 17-CR-0527, Doc. No. 77). On March 30, 2018, the jury

found Douglas not guilty of felonious assault as charged in Count One, but guilty

of assault as a lesser-included offense, and guilty of Count Two. (Case No. 17-CR-

0527, Doc. Nos. 79, 80). Contemporaneous with the jury verdict, the trial court

found Douglas guilty of Count Three. (Case No. 17-CR-0527, Doc. No. 81).

        {¶7} On April 19, 2018, under a second superseding indictment, the Marion

County Grand Jury indicted Douglas in case number 17-CR-0528 on four counts:

Counts One and Two of felonious assault in violation of R.C. 2903.11(A)(2),

second-degree felonies, and Counts Three and Four of having weapons while under

disability in violation of R.C. 2923.13(A)(3), third-degree felonies. (Case No. 17-

CR-0528, Doc. No. 61).1 The indictment also included firearm specifications under

R.C. 2941.145 as to Counts One and Two. (Id.). Douglas appeared for arraignment

on April 23, 2018 and entered pleas of not guilty. (Case No. 17-CR-0528, Doc. No.

71).




1
 On May 10, 2018, the trial court amended the date of the offense as alleged in Count Four of the second
superseding indictment. (Case No. 17-CR-0528, Doc. No. 84).

                                                  -4-
Case No. 9-18-19, 9-18-20



       {¶8} Case number 17-CR-0528 proceeded to a jury trial on May 25-26, 2018.

(May 25, 2018 Tr., Vol. I, at 1); (May 26, 2018 Tr., Vol. II, at 320). On May 26,

2018, the jury found Douglas not guilty of felonious assault as charged in Counts

One and Two of the second superseding indictment, but guilty of assault as a lesser-

included offense under both counts. (Case No. 17-CR-0528, Doc. Nos. 121, 122).

The jury also found Douglas guilty of Counts Three and Four. (Case No. 17-CR-

0528, Doc. Nos. 123, 124).

       {¶9} On June 6, 2018, Douglas filed a motion in both cases requesting that

the trial court merge his having-weapons-while-under-disability convictions

involved in both cases for purposes of sentencing. (Case No. 17-CR-0527, Doc.

No. 86); (Case No. 17-CR-0528, Doc. No. 128). The State filed memoranda in

opposition to Douglas’s motions. (Case No. 17-CR-0527, Doc. No. 87); (Case No.

17-CR-0528, Doc. No. 129).

       {¶10} On June 6, 2018, in case number 17-CR-0527, the trial court sentenced

Douglas to a term of 18 months in prison as to Count Two and a term of 24 months

in prison as to Count Three, and ordered that Douglas serve the terms concurrently.

(Case No. 17-CR-0527, Doc. No. 88). The trial court merged Douglas’s (lesser-

included) assault conviction relative to Count One and his conviction as to Count

Two, and the State elected to pursue Count Two for purposes of sentencing. (Id.).

That same day, in case number 17-CR-0528, the trial court sentenced Douglas to a

                                        -5-
Case No. 9-18-19, 9-18-20



term of 180 days in jail as to Count One and a term of 36 months in prison as to

Count Three, and ordered that Douglas serve the terms concurrently. (Case No. 17-

CR-0528, Doc. No. 130). The trial court merged Douglas’s (lesser-included) assault

convictions relative to Counts One and Two and his convictions as to Count Three

and Four, and the State elected to pursue Counts One and Three for purposes of

sentencing. (Id.). The trial court further ordered Douglas to serve the prison terms

in case number 17-CR-0527 consecutively to the prison terms in case number 17-

CR-0528 for an aggregate sentence of 78 months. (Case No. 17-CR-0527, Doc. No.

88); (Case No. 17-CR-0528, Doc. No. 130). The trial court filed its judgment entries

of sentence on June 7, 2018. (Id.); (Id.).

       {¶11} Douglas filed his notices of appeal on June 25, 2018 in both cases,

which were consolidated for purposes of appeal. (Case No. 17-CR-0527, Doc. No.

92); (Case No. 17-CR-0528, Doc. No. 134). Because Douglas does not assign any

error as to case number 17-CR-0528, assigned as appellate case number 9-18-20,

we dismiss that appellate case. App.R. 12 and 16.

       {¶12} Douglas raises three assignments of error as to case number 17-CR-

0527, assigned appellate case number 9-18-19.

                            Assignment of Error No. I

       Defendant-Appellant’s conviction of Domestic Violence was
       against the manifest weight of the evidence.


                                         -6-
Case No. 9-18-19, 9-18-20



       {¶13} In his first assignment of error, Douglas argues that his domestic-

violence conviction is against the manifest weight of the evidence. In particular,

Douglas contends that the evidence that Douglas and the victim, R.P., were not

family or household members outweighs the evidence that Douglas and R.P. were

family or household members.

                                 Standard of Review

       {¶14} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the

evidence and all reasonable inferences, consider[ ] the credibility of witnesses and

determine[ ] whether in resolving conflicts in the evidence, the [trier of fact] 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 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). 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. DeHass, 10 Ohio St.2d 230, 231 (1967).                  When applying the

manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs

heavily against the conviction,’ should an appellate court overturn the trial court’s

judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9,

quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

                                          -7-
Case No. 9-18-19, 9-18-20



                                      Analysis

       {¶15} R.C. 2919.25 sets forth the offense of domestic violence and provides,

in its relevant part, “No person shall knowingly cause or attempt to cause physical

harm to a family or household member.” R.C. 2919.25(A). Because it is the only

element that Douglas challenges on appeal, we will address only whether the jury

clearly lost its way in concluding that R.P. was a family or household member.

       {¶16} For purposes of R.C. 2919.25,

       (1) “[f]amily or household member” means any of the following:

       (a) Any of the following who is residing or has resided with the
       offender:

       (i) A spouse, a person living as a spouse, or a former spouse of the
       offender;

       ***

       (2) “Person living as a spouse” means a person who is living or has
       lived with the offender in a common law marital relationship, who
       otherwise is cohabiting with the offender, or who otherwise has
       cohabited with the offender within five years prior to the date of the
       alleged commission of the act in question.

R.C. 2919.25(F).

       {¶17} In this case, there is no dispute that Douglas was never married to R.P.

or that they ever lived together in a common-law marriage. Thus, we must review

whether the jury clearly lost its way in concluding that R.P. was a “person living as

a spouse” with Douglas. This requires us to weigh the evidence supporting whether

                                         -8-
Case No. 9-18-19, 9-18-20



R.P. cohabitated with Douglas or whether R.P. has cohabitated with Douglas within

five years prior to the date of the alleged offense. See State v. Williams, 79 Ohio

St.3d 459, 461 (1997).

       {¶18} The Supreme Court of Ohio has defined “‘cohabitation’ to include two

essential elements: (1) the sharing of familial or financial responsibilities and (2)

consortium.” State v. Eberly, 3d Dist. Wyandot No. 16-04-03, 2004-Ohio-3026, ¶

21, citing Williams at 465.

       Possible factors establishing shared familial or financial
       responsibilities might include provisions for shelter, food, clothing,
       utilities, [or] commingled assets. Factors that might establish
       consortium include mutual respect, fidelity, affection, society,
       cooperation, solace, comfort, aid of each other, friendship, and
       conjugal relations. These factors are unique to each case and how
       much weight, if any, to give to each of these factors must be decided
       on a case-by-case basis by the trier of fact.

Williams at 465.

       {¶19} Here, Douglas contends that the jury lost its way in concluding that

R.P. cohabitated with him because “she was not a resident of that household or a

family member of [Douglas’s] at the exact time of the alleged offense.”

(Appellant’s Brief at 9). Instead, he contends that the weight of the evidence reflects

that R.P. considered the friend’s residence—with whom she was staying on the date

of the alleged offense—as her residence.




                                         -9-
Case No. 9-18-19, 9-18-20



       {¶20} Douglas’s argument that his domestic-violence conviction is against

the manifest weight of the evidence because the weight of the evidence shows that

R.P. was not a resident of a household with Douglas or a family member of Douglas

on the exact date of the alleged offense lacks merit. That is, the statute reflects that

a person can be considered a “person living as a spouse” if he or she “has cohabited

with the offender within five years prior to the date of the alleged commission of

the act in question.” R.C. 2919.25(F)(2).

       {¶21} Moreover, the evidence that R.P. cohabitated with Douglas within five

years prior to the date of the alleged commission of the act in question is weightier

than the evidence that she did not. See State v. Long, 9th Dist. Summit No. 25249,

2011-Ohio-1050, ¶ 12-13. At trial, R.P. testified that she and Douglas began dating

on July 24, 2017. (Mar. 29, 2018 Tr. at 252). R.P. testified that the couple (together)

initially moved into Douglas’s sister’s residence, then moved, together, to a

residence located at 760 Creston Avenue in Marion, Ohio. R.P. further testified that

she and Douglas were living together “[t]he whole time” from July 24 through

November 3, 2017—the date of the offense. (Id. at 252, 282). In addition, she

testified that she and Douglas “acted” like a married couple by sharing household

responsibilities. (Id. at 283). See State v. Carswell, 114 Oho St.3d 210, 2007-Ohio-

3723, ¶ 35 (noting that cohabitation “is a person’s determination to share some

measure of life’s responsibilities with another”). See also State v. Combs, 2d Dist.

                                         -10-
Case No. 9-18-19, 9-18-20



Montgomery No. 16796, 1998 WL 226375, *3 (May 8, 1998). Despite indicating

that she “went and stayed with a friend for a few days” (prior to the November 3

incident), R.P. testified that “[t]he majority of [her] clothes” remained at the

residence she shared with Douglas. (Id. at 253, 283). Further, R.P. listed “760

Creston Avenue” as her address on the police report that was prepared as to the

November 3 incident. (Id. at 286); (State’s Ex. 28).

       {¶22} For these reasons, we cannot conclude that the jury clearly lost its way

and created such a manifest miscarriage of justice that Douglas’s domestic-violence

conviction must be reversed and a new trial ordered.            Thus, Douglas’s first

assignment of error is overruled.

                            Assignment of Error No. II

       The Trial Court erred in allowing evidence to be presented which
       violated Defendant-Appellant’s rights under the Confrontation
       Clause of the United States Constitution.

       {¶23} In his second assignment of error, Douglas argues that the trial court

erred by admitting into evidence an audio recording of a 911 emergency call because

the 911 caller did not testify at trial. Specifically, Douglas argues that the admission

of the evidence violated his rights under the Confrontation Clause of the Sixth

Amendment to the United States Constitution.




                                         -11-
Case No. 9-18-19, 9-18-20



                                Standard of Review

       {¶24} Generally, the admission or exclusion of evidence lies within the trial

court’s discretion, and a reviewing court should not reverse absent an abuse of

discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-

2815, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of discretion

implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State

v. Adams, 62 Ohio St.2d 151, 157 (1980). “However, we review de novo evidentiary

rulings that implicate the Confrontation Clause.” State v. McKelton, 148 Ohio St.3d

261, 2016-Ohio-5735, ¶ 97. “De novo review is independent, without deference to

the lower court’s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-

Ohio-647, ¶ 27, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d

145, 147 (1992).

                                      Analysis

       {¶25} “The Confrontation Clause to the Sixth Amendment of the United

States Constitution, made applicable to the states by the Fourteenth

Amendment, provides, ‘In all criminal prosecutions, the accused shall enjoy the

right * * * to be confronted with the witnesses against him * * *.’” State v.

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 34, quoting the Confrontation

Clause. Article I, Section 10 of the Ohio Constitution “provides no greater right of



                                        -12-
Case No. 9-18-19, 9-18-20



confrontation than the Sixth Amendment.” State v. Arnold, 126 Ohio St.3d 290,

2010-Ohio-2742, ¶ 12.

       {¶26} The United States Supreme Court has interpreted the Sixth

Amendment right to confrontation

       to mean that admission of an out-of-court statement of a witness who
       does not appear at trial is prohibited by the Confrontation Clause if
       the statement is testimonial unless the witness is unavailable and the
       defendant has had a prior opportunity to cross-examine the witness.

Maxwell at ¶ 34, citing Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354

(2004). The United States Supreme Court

       did not define the word “testimonial’ but stated that the core class of
       statements implicated by the Confrontation Clause includes
       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.”

Id., quoting Crawford at 52.

       {¶27} “Testimonial statements exist where there is no ongoing emergency

and the statements resulted from a police interrogation whose ‘primary purpose was

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

State v. Heard, 12th Dist. Warren No. CA2016-11-095, 2017-Ohio-8796, ¶ 9,

quoting State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, ¶ 17. See also State

v. Stewart, 3d Dist. Seneca No. 13-08-18, 2009-Ohio-3411, ¶ 84. “In making this

‘primary purpose’ determination, courts must consider ‘all of the relevant


                                         -13-
Case No. 9-18-19, 9-18-20



circumstances.’” Heard at ¶ 9, quoting Michigan v. Bryant, 562 U.S. 344, 369, 131

S.Ct. 1143 (2011).

       {¶28} “Other factors to be considered in determining the ‘primary purpose’

of an interrogation include the formality of the situation, the standard rules of

hearsay, as well as the statements and actions of both the declarant and the officer

questioning the declarant.” Id. at ¶ 10, quoting Bryant at 367. “Thus, the question

is whether, in light of all the circumstances, the primary purpose of the conversation

was to create ‘an out-of-court substitute for trial testimony.’” Id., quoting Bryant at

358.

       {¶29} In this case, Douglas argues that the trial court erred by admitting a

911 emergency call when the caller did not testify at his trial. We will start by

addressing whether the admission of the 911 emergency call violated Douglas’s

Sixth Amendment rights. In reviewing the content of the 911 emergency call, we

conclude that such call was not testimonial. See State v. Smith, 1st Dist. Hamilton

No. C-160836, 2017-Ohio-8558, ¶ 37 (“Because 911 calls seeking police assistance

are not testimonial in nature, the Confrontation Clause does not apply.”), citing State

v. McGee, 1st Dist. Hamilton No. C-150496, 2016-Ohio-7510, ¶ 16. Indeed, the

911 emergency call was placed to address an ongoing emergency. Compare Heard

at ¶ 15 (concluding “that the 9-1-1 call was used to address an ongoing emergency,

and as such, was not testimonial in nature”); State v. Williams, 6th Dist. Lucas No.

                                         -14-
Case No. 9-18-19, 9-18-20



L-11-1084, 2013-Ohio-726, ¶ 14 (concluding “that statements in the 911 call were

nontestimonial” because “the primary purpose of the statements by the neighbor in

the 911 call was [sic] to seek police assistance to aid [the victim] in an ongoing

emergency involving domestic violence”).

       {¶30} Moreover, the audio recording of the 911 emergency call in this case

reveals that the dispatcher was determining the emergency to which law

enforcement needed to respond; whether the victim needed medical attention; and

whether law enforcement should be aware if the assailant was present. See Heard

at ¶ 15 (analyzing that the dispatcher was listening to determine what was happening

to establish what emergency law enforcement needed to respond); State v. Martin,

5th Dist. Tuscarawas No. 2015AP0010, 2016-Ohio-225, ¶ 50 (“The nature of the

call and the questions asked by the dispatcher clearly related to the ongoing

emergency, whether [the victim] needed medical attention, whether the police

should be aware that the assailant was still present and who the police should be

cautious in approaching.”). Accordingly, we conclude that the admission of the 911

emergency call did not violate Douglas’s Sixth Amendment rights. See State v.

Ladson, 8th Dist. Cuyahoga No. 104642, 2017-Ohio-7715, ¶ 21 (“Ladson has also

not demonstrated that the Confrontation Clause was violated by the admission of

the recorded 911 call from his girlfriend who did not testify at the trial. The

Confrontation Clause is not implicated solely because a witness is not present to

                                       -15-
Case No. 9-18-19, 9-18-20



testify.”), citing State v. Herring, 8th Dist. Cuyahoga No. 104441, 2017-Ohio-743,

¶ 14, citing State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, ¶ 88.

       {¶31} Having determined that the 911 emergency call was not barred by the

Confrontation Clause, we must now address whether it was admissible under the

Ohio Rules of Evidence. See Martin at ¶ 52, citing State v. Jones, 135 Ohio St.3d

10, 2012-Ohio-5677, ¶ 165. As an initial matter, because Douglas failed to object

to the admission of the 911 emergency call, he waived all but plain error on appeal.

“Crim.R. 52(B) governs plain-error review in criminal cases.” State v. Bagley, 3d

Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 55, citing State v. Risner, 73 Ohio

App.3d 19, 24 (3d Dist.1991). “A court recognizes plain error with the utmost

caution, under exceptional circumstances, and only to prevent a miscarriage of

justice.” State v. Smith, 3d Dist. Hardin No. 6-14-14, 2015-Ohio-2977, ¶ 63, citing

State v. Saleh, 10th Dist. Franklin No. 07AP-431, 2009-Ohio-1542, ¶ 68. Under

plain-error review, “[w]e may reverse only when the record is clear that defendant

would not have been convicted in the absence of the improper conduct.” Id. at ¶ 63,

citing Williams, 79 Ohio St.3d at 12.

       {¶32} 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.” Evid.R. 801(C). Hearsay is generally not admissible

unless an exception applies. Evid.R. 802. “Evid.R. 803 is one such rule which

                                        -16-
Case No. 9-18-19, 9-18-20



permits the admission of certain hearsay statements even though the declarant is

available as a witness.” Dayton v. Combs, 94 Ohio App.3d 291, 300 (2d Dist.1993).

Under Evid.R. 803, the following hearsay statements are admissible: (1) present

sense impression; (2) excited utterance; (3) then existing mental, emotional, or

physical condition; and (4) statements for the purpose of medical diagnosis or

treatment.

       {¶33} 911 emergency calls are generally admissible as an excited utterance

or under the present-sentence-impression exception to the hearsay rule. See Martin,

2016-Ohio-225, at ¶ 59 (“9-1-1 calls are generally admissible as excited utterances

or under the present sense impression exception to the hearsay rule.”), citing

Navarette v. California, 572 U.S. 393, 400, 134 S.Ct. 1683 (2014), State v. Smith,

80 Ohio St.3d 89, 107-108 (1997), State v. Johnson, 10th Dist. Franklin No. 08AP-

652, 2009-Ohio-3383, ¶ 22, Williams, 2013-Ohio-726, at ¶ 24, and State v. Combs,

1st Dist. Hamilton No. C-120756, 2013-Ohio-3159, ¶ 32; Smith, 2017-Ohio-8558,

at ¶ 37. Because it is dispositive, we will address only whether the 911 emergency

call at issue in this case was admissible as an excited utterance.

       {¶34} “An excited utterance is ‘[a] statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by the

event or condition.’” State v. Thompson-Shabazz, 2d Dist. Montgomery No. 27155,

2017-Ohio-7434, ¶ 105, quoting Evid.R. 803(2). See also Jones, 135 Ohio St.3d

                                         -17-
Case No. 9-18-19, 9-18-20



10, 2012-Ohio-5677, at ¶ 166. The Supreme Court of Ohio has set forth the

following test for determining whether a statement qualifies as an excited utterance

under Evid.R. 803(2):

       (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 of 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 his
       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 starling occurrence, and

       (d) that the declarant had an opportunity to observe personally the
       matters asserted in his statement or declaration.

Jones at ¶ 166. “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.’” State v. Little, 3d Dist. Allen No. 1-16-29, 2016-Ohio-8398, ¶ 11,

quoting State v. Taylor, 66 Ohio St.3d 295, 303 (1993). “Rather, ‘each case must

be decided on its own circumstances.’” Id., quoting State v. Duncan, 53 Ohio St.2d

215, 219 (1978). “‘The central requirements are that the statement must be made



                                        -18-
Case No. 9-18-19, 9-18-20



while the declarant is still under the stress of the event and the statement may not

be a result of reflective thought.’” Id., quoting Taylor at 303.

       {¶35} The 911 emergency call at issue in this case satisfies the four elements

of an excited utterance that are discussed above. Indeed, the 911 caller was

contemporaneously reporting a startling experience—that is, the 911 caller

experienced a startling experience when R.P. appeared and collapsed on her porch.

According to the 911 caller, R.P., who was crying, banged on her door screaming

that a “man was beating her to death” and that he was “trying to kill” her. (State’s

Ex. 23). When asked if she saw the man, the 911 caller responded that she saw

“someone driving around.” (Id.). The caller also informed the 911 operator that

she was too afraid to open the door. Accordingly, in our review of the 911

emergency call, we conclude that it was admissible as an excited utterance. See

Williams, 2013-Ohio-726, at ¶ 22, 24. Thus, it was not error, let alone plain error,

for the trial court to admit the 911 emergency call and Douglas’s second assignment

of error is overruled.

                           Assignment of Error No. III

       Defendant was denied his Constitutional right to Effective
       Assistance of Counsel in Case No. 2017 CR 0527

       {¶36} In his third assignment of error, Douglas argues that his trial counsel

was ineffective. In particular, he argues that his trial counsel was ineffective for:


                                         -19-
Case No. 9-18-19, 9-18-20



(1) failing “to follow up on any video or transcript of the Municipal Court

proceedings that [Douglas] believes exists” relative to the domestic-violence charge

“that he believes he pled guilty to”; (2) failing to investigate whether R.P. “was

made certain promises or given certain consideration in exchange for her testimony

in this case”; and (3) failing “to object to the confrontation clause issue raised as the

second assignment of error * * *.” (Appellant’s Brief at 12-13).

                                 Standard of Review

       {¶37} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or

unreasonable, the defendant must overcome the presumption that counsel provided

competent representation and must show that counsel’s actions were not trial

strategies prompted by reasonable professional judgment.            Strickland at 687.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675

(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally

constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995).

Rather, the errors complained of must amount to a substantial violation of counsel’s

                                          -20-
Case No. 9-18-19, 9-18-20



essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136, 141-42

(1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on

other grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978).

       {¶38} “Prejudice results when ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting

Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142

and citing Strickland at 694.

                                       Analysis

       {¶39} First, Douglas argues that his trial counsel was ineffective for failing

to obtain evidence reflecting that he previously pled guilty to the domestic-violence

charge; thus, subjecting him to double jeopardy. The Double Jeopardy Clause of

the Fifth Amendment to the United States Constitution, made applicable to the states

by the Fourteenth Amendment, provides that no person shall “be subject for the

same offence to be twice put in jeopardy of life or limb.” Section 10, Article I of the

Ohio Constitution provides that “[n]o person shall be twice put in jeopardy for the

same offense.”

       The prohibition against double jeopardy has three distinct aspects. “It
       protects against a second prosecution for the same offense after
       acquittal. It protects against a second prosecution for the same offense

                                         -21-
Case No. 9-18-19, 9-18-20



       after conviction. And it protects against multiple punishments for the
       same offense.”

State v. Dixon, 2d Dist. Montgomery No. 24281, 2011-Ohio-5290, ¶ 14, quoting

North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072 (1969). “For the

purposes of double jeopardy, state and municipal courts are the same entity.” State

v. Smiley, 8th Dist. Cuyahoga No. 03853, 2010-Ohio-4349, ¶ 22, citing Waller v.

Florida, 397 U.S. 387, 395, 90 S.Ct. 1184 (1970) and State v. Delfino, 22 Ohio St.3d

270, 273 (1982).

       {¶40} In this case, despite Douglas’s trial counsel’s admission that he did not

attempt to locate a video recording of the arraignment during which Douglas claims

that he pled guilty to the domestic-violence charge, Douglas cannot demonstrate

that his trial counsel was ineffective. Specifically, Douglas cannot demonstrate that

the outcome of the proceedings would have been different—that the domestic-

violence charge would have been dismissed—had his trial counsel located a video

recording of his arraignment. See Dixon at ¶ 19, citing State v. Barr, 178 Ohio

App.3d 318, 2008-Ohio-4754, ¶ 3 (4th Dist.) (noting that Barr “put[] forward no

facts demonstrating that he could reasonably rely on his [municipal-court] plea to

terminate any additional criminal liability” and the record did not “contain evidence

of a plea agreement or similar implied promise by the prosecution * * *.”). When

the trial court inquired of Douglas as to what charges to which he thought he


                                        -22-
Case No. 9-18-19, 9-18-20



previously entered pleas, Douglas responded, “I entered a plea on an aggravated

menacing, a no contest on the possession of marijuana charge; the only two charges

I went to video arraignment on.” (Mar. 29, 2018 Tr., Vol. I, at 33-34). In other

words, Douglas did not testify that he had entered any plea to a domestic-violence

charge. Further, Douglas’s counsel provided the trial court documents from the

Marion Municipal Court contending that the domestic-violence charge filed in the

Marion Municipal Court for the conduct at issue in this case was “dismissed” after

Douglas was charged with a felony-level offense for the conduct. (See id. at 28-31).

In other words, the record does not reflect that jeopardy ever attached under the facts

presented. See, e.g., State v. Larabee, 69 Ohio St.3d 357, 358-359 (1994)

       {¶41} Next, Douglas contends that his trial counsel was ineffective for

failing to investigate whether R.P. was made any promises or given consideration

in exchange for her testimony. In our review of the record, we conclude that

Douglas’s argument is meritless because the record reflects that R.P. was not made

any promises or given any consideration in exchange for her testimony.

Specifically, on direct-examination, R.P. testified that she was not made any

promises or given any consideration in exchange for her testimony. (Mar. 29, 2018

Tr., Vol. I, at 266-267). Further, Douglas’s trial counsel inquired of R.P. as to

whether she was made any promises or given any consideration in exchange for her

testimony to which she responded in the negative.          (Id. at 279).    Moreover,

                                         -23-
Case No. 9-18-19, 9-18-20



Douglas’s trial counsel filed a pre-trial motion, which was granted by the trial court,

to compel the State to divulge any promises or consideration it provided its

witnesses in exchange for their testimony. (Case No. 17-CR-0527, Doc. Nos. 63,

64).   Accordingly, Douglas has failed to demonstrate that any additional

investigation would have had a reasonable probability of success or that the outcome

of the proceedings would have been different.

       {¶42} Finally, based on our resolution of Douglas’s second assignment of

error, Douglas’s trial counsel cannot be ineffective for failing to object to the

Confrontation Clause issue relative to the admission of the recording of 911

emergency call.

       {¶43} For these reasons, Douglas’s trial counsel was not ineffective and his

third assignment of error is overruled.

       {¶44} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court in case

number 9-18-19, and dismiss case number 9-18-20.

                                                         Judgment Affirmed in Case
                                                              No. 9-18-19 and Case
                                                             No. 9-18-20 Dismissed
SHAW and PRESTON, J.J., concur.

/jlr




                                          -24-
