[Cite as State v. Smith, 2011-Ohio-4409.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                Nos. 95932 and 95933




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                  GEORGE E. SMITH
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                           Case Nos. CR-539250 and CR-536454


        BEFORE: Celebrezze, J., Blackmon, P.J., and Jones, J.
    RELEASED AND JOURNALIZED:                  September 1, 2011
ATTORNEY FOR APPELLANT

Michael P. Maloney
24441 Detroit Road
Suite 300
Westlake, Ohio 44145


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Jeffrey S. Schnatter
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} Appellant, George Smith, appeals his convictions for menacing by

stalking and domestic violence. Upon review of the record and relevant case

law, we affirm appellant’s convictions.

      {¶ 2} On July 15, 2010, appellant was indicted in Case No. CR-536454 for

kidnapping, felonious assault, menacing by stalking, and domestic violence in

connection with events that occurred on April 9, 2009.         Appellant was

indicted in a separate matter, Case No. CR-539250, for attempted murder,

kidnapping, felonious assault, violation of a protective order, and menacing by

stalking in connection with events that occurred from March 1, 2009 through

May 11, 2010. Appellant pled not guilty at his arraignments in these cases,
and the matters proceeded to a bench trial on June 28, 2010. The following

facts were presented to the trial court.

        {¶ 3} Appellant served as the program manager at Employment

Connection, a reentry program that helps exoffenders find employment upon

release.    In October 2007, appellant hired Brandi Pope to work at

Employment Connection shortly after Pope was released from prison.

Initially, appellant’s relationship with Pope was professional. However, by

December 2007, their relationship became intimate. At all times during his

relationship with Pope, appellant was married.

        {¶ 4} The relationship turned violent in January 2008 and, over time,

appellant’s violent acts towards Pope progressively became more frequent and

aggressive. At trial, the prosecution presented the testimony of Tanya Perez,

who explained her knowledge of a physical altercation that occurred between

appellant and Pope in March 2009. Perez testified that in March 2009, she

received a phone call from Pope, who was distraught and asked her to come

over.    Perez testified that when she went to Pope’s apartment, Pope was

crying and had marks on her neck. Pope told Perez about a fight she had with

appellant in her office and said that the marks on her neck were caused by

appellant choking her. Perez testified that she took pictures of Pope’s neck

because she felt she needed to document the altercation.
      {¶ 5} On direct examination, Pope testified about a separate altercation

that occurred on April 9, 2009 while Pope was working at the Northstar

Reentry Resource Center.1 Pope testified that while she was in a meeting

with a coworker, appellant went into her office and waited at her desk. When

Pope entered her office, she found appellant at her desk looking through her

cell phone. At that time, Pope took her cell phone from appellant and refused

to answer his questions. Pope testified that as she attempted to leave her

office, appellant grabbed her by the throat and pushed her against the wall,

holding her by her throat for a few minutes until someone walked by, causing

him to release her.

      {¶ 6} Allecia Creighton testified that she was at work at Northstar on

April 9, 2009 when she observed appellant enter the facility and go into the

back office where Pope was located. Creighton testified that appellant left

the facility approximately 32 minutes later. Once appellant left the facility,

Creighton went back to Pope’s office to check on her. When Creighton opened

the door, she found Pope hysterical, crying, with her hair messed up and her

belongings in disarray on the desk.       When Creighton asked what had

occurred, Pope stated that appellant grabbed her by her hair, choked her, and




1 Northstar Reentry Resource Center is a reentry program that assists convicted
felons with finding housing and employment upon their release from prison.
banged her head against the wall. Pope showed Creighton the red marks on

her neck and stated, “look what he did.”

      {¶ 7} Marcus Bell testified that he was working at the Northstar facility

on April 9, 2009. Bell learned from Creighton that Pope was upset. Bell

stated that when he approached Pope, she was still distraught and explained

to Bell that she had been assaulted and that appellant told her if she told

anybody about their relationship, he would kill her. Bell testified that he

could see a red mark on Pope’s neck, and he used her cell phone to take a

picture of the mark to show to the police.

      {¶ 8} Nicolasa Roberts testified that she is employed at Northstar as the

Coordinator. Roberts was working on April 9, 2009. She testified that she

saw appellant in Pope’s office. After appellant left, Roberts met with Pope in

her office where she appeared to be “disheveled and an emotional mess.”

Pope told Roberts that she had been trying to break up with appellant, but he

would not allow her to and would not leave her alone.

      {¶ 9} After the incident, Pope attempted to drive home; however, as she

exited the facility, appellant followed her in his vehicle. Pope testified that at

one point, appellant pulled up next to her and yelled at her to pick up her cell

phone.   Eventually, Pope managed to elude appellant and subsequently

contacted the Cleveland Police Department.
      {¶ 10} Officer Michelle Wolf of the Cleveland Police Department testified

that she was working on April 9, 2009 and responded to a 911 call involving a

female who had been assaulted and followed in her car by a male. When

Officer Wolf met with Pope, she observed bruises and scratches on Pope’s neck,

which she photographed. Officer Wolf testified that Pope was emotional and

crying while she was being interviewed.

      {¶ 11} Following the     April 9, 2009 altercation, Pope obtained a

protection order against appellant. However, appellant continued to interact

with Pope and frequently sent her text messages.            Pope testified that

appellant threatened her that “protection orders don’t really protect anybody.”

      {¶ 12} Appellant testified on his own behalf.   He testified that all of the

physical altercations in the relationship were initiated by Pope, and the only

times he placed his hands on her were to restrain her.              Additionally,

appellant admitted that he violated the protection order issued against him,

which banned him from contacting Pope.

      {¶ 13} In CR-536454, appellant was convicted of assault, in violation of

R.C. 2903.13, a misdemeanor of the first degree; menacing by stalking, in

violation of R.C. 2903.211, a felony of the fourth degree; and domestic violence,

in violation of R.C. 2919.25, a misdemeanor of the first degree.2


2In CR-536454, appellant was acquitted on the kidnapping charge pursuant to
Crim.R. 29.
      {¶ 14} In CR-539250, appellant was found not guilty of kidnapping;

however, he was convicted of felonious assault, in violation of R.C. 2903.11, a

felony of the second degree; violating a protective order, in violation of R.C.

2919.27, a felony of the third degree; and menacing by stalking, in violation of

R.C. 2903.211, a felony of the fourth degree.3

      {¶ 15} At sentencing, appellant was sentenced in CR-536454 to one year

of imprisonment for the menacing by stalking charge and six months on the

assault and domestic violence charges.           In CR-539250, appellant was

sentenced to three years of imprisonment on the felonious assault charge and

one year on the violating a protective order and menacing by stalking charges.

The sentences in CR-536454 and CR-539250 were arranged by the trial court

so that appellant is to serve an aggregate term of four years imprisonment.

      {¶ 16} Appellant timely appealed, raising three assignments of error for

review:

      {¶ 17} “The trial court erred in denying appellant’s Criminal Rule 29

motion for acquittal when there was insufficient evidence to prove the

elements of menacing by stalking.”




3 In CR-539250, appellant was acquitted on the attempted murder charge pursuant
to Crim.R. 29.
      {¶ 18} “The trial court erred in denying appellant’s Criminal Rule 29

motion for acquittal when there was insufficient evidence to prove the

elements of domestic violence.”

      {¶ 19} “The trial court     erred in admitting the victim’s hearsay

statements.”

                             Law and Analysis

                                       I.

      {¶ 20} For the purposes of clarity and judicial economy, appellant’s first

two assignments of error will be considered together. Appellant contends

that the trial court erred in denying his motions for acquittal under Crim.R. 29

when there was insufficient evidence to prove the elements of menacing by

stalking and domestic violence.

      {¶ 21} After the prosecution’s case in chief, appellant moved for a

judgment of acquittal pursuant to Crim.R. 29, which the trial court denied. A

motion for acquittal under Crim.R. 29(A) is governed by the same standard

used for determining whether a verdict is supported by sufficient evidence.

State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386.

      {¶ 22} An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted

at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt. State v.
Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the

syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560. “The relevant inquiry is 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.”

Id. “[T]he weight to be given the evidence and the credibility of the witnesses

are primarily for the trier of the facts.” State v. DeHass (1967), 10 Ohio St.2d

230, 227 N.E.2d 212, paragraph one of the syllabus.

                           Menacing by Stalking

      {¶ 23} In the case at hand, appellant was convicted of two counts of

menacing by stalking. R.C. 2903.11 provides, in pertinent part:

      {¶ 24} “(A)(1) No person by engaging in a pattern of conduct shall

knowingly cause another person to believe that the offender will cause

physical harm to the other person or cause mental distress to the other

person.”

      {¶ 25} Upon viewing the evidence in its totality, we find that a rational

jury could have found, beyond a reasonable doubt, that appellant knowingly

caused the victim to believe he would cause her mental distress, if not physical

harm. In the case at bar, the transcript is replete with descriptions by Pope

and others of the violence and threats that Pope was consistently subjected to

from March 2009 to May 2010. Pope testified that it was the very belief that
appellant would cause her physical harm that caused her to remain in the

relationship as long as she did.

      {¶ 26} After the events of April 9, 2009, Pope obtained a protection order

against appellant. However, appellant continued to contact Pope despite her

constant demands to leave her alone. Pope testified that appellant sent her

text messages that indicated he was following her and included threatening

remarks,   such    as   “protection   orders   don’t   really   protect   anybody.”

Additionally, Pope testified that appellant threatened that he “could drive by,

shoot out [her] window, and nobody would know it was him,” or he “could jump

out of a bush when [she] was coming home and beat [her] until [she] was

unrecognizable, and know nobody would know it was him.” This behavior

continued for months and amounted to “a pattern of conduct” that knowingly

caused Pope to believe that appellant would cause her mental distress or

physical harm.

                              Domestic Violence

      {¶ 27} Appellant was convicted of domestic violence, in violation of R.C.

2919.25(A), which provides as follows: “No person shall knowingly cause or

attempt to cause physical harm to a family or household member.” “A person

acts knowingly, regardless of his purpose, when he is aware that his conduct

will probably cause a certain result or will probably be of a certain nature.”

R.C. 2901.22(B).    “Physical harm” means “any injury, illness, or other
physiological impairment, regardless of its gravity or duration.”             R.C.

2901.01(A)(3).

      {¶ 28} In challenging his conviction for domestic violence, appellant

contends that the prosecution failed to present sufficient evidence that Pope

was a “family or household member.” R.C. 2919.25(F)(1)(a)(i) defines “family

or household member” in relevant part as a “spouse, a person living as a

spouse, or a former spouse of the offender[.]” “Person living as a spouse” is

further defined as “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)(2).

      {¶ 29} “The offense of domestic violence * * * arises out of the relationship

of the parties rather than their exact living circumstances.”             State v.

Williams, 79 Ohio St.3d 459, 1997-Ohio-79, 683 N.E.2d 1126, at paragraph one

of the syllabus. In Williams, the Ohio Supreme Court determined that the

essential elements of “cohabitation” with respect to R.C. 2919.25 are: “(1)

sharing of familial or financial responsibilities and (2) consortium.” Id. at

paragraph two of the syllabus.

      {¶ 30} The Williams court further stated:    “Possible factors establishing

shared familial or financial responsibilities might include provisions for
shelter, food, clothing, utilities, and/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 .” Id. at 465.

      {¶ 31} In the case at hand, appellant shared a sexual relationship with

Pope over a three-year period. Pope testified that during their relationship,

appellant had keys to her apartment and came and went as he pleased. The

record reflects that appellant kept personal items at Pope’s apartment and

assisted Pope financially, including paying for her prescriptions, two medical

procedures, and utility and cell phone bills when she needed it. Additionally,

appellant shared a relationship with Pope’s son and was his emergency

contact at her son’s day care facility. Pope testified that she depended on

appellant to help her with family matters.

      {¶ 32} Based on the testimony adduced at trial, it is clear that Pope and

appellant shared both family and financial responsibilities, satisfying the first

prong of the Williams test, and remained intimate throughout their

relationship, satisfying the consortium prong. Therefore, we find that the

prosecution presented sufficient evidence that Pope was a “family or

household member.”
      {¶ 33} Further, the state presented sufficient evidence that appellant

caused Pope physical harm through the testimony of Pope and the numerous

witnesses who testified on her behalf. Viewing this evidence in a light most

favorable to the state, we find that a rational trier of fact could find the

essential elements of domestic violence proven beyond a reasonable doubt.

      {¶ 34} Appellant’s first and second assignments of error are overruled.

                                      II.

      {¶ 35} In his third assignment of error, appellant argues that the trial

court erred by admitting into evidence statements made by Pope to Creighton,

Roberts, Bell, and Perez.

      {¶ 36} A trial court enjoys broad discretion in the admission and

exclusion of evidence. That decision will not be reversed absent a clear abuse

of discretion that materially prejudices the objecting party. State v. McCray

(1995), 103 Ohio App.3d 109, 658 N.E.2d 1076.

      {¶ 37} Hearsay is an out-of-court statement, offered in evidence to prove

the truth of the matter asserted. Evid.R. 802(C). Hearsay statements are

generally not admissible. Evid.R. 802. However, when a declarant makes a

statement while under the stress of excitement caused by a startling event or

condition, that statement may be an admissible “excited utterance,” one of the

exceptions to the hearsay rule. Evid.R. 803(2); State v. Fowler, Cuyahoga

App. No. 94798, 2011-Ohio-717.
      {¶ 38} For   an alleged excited utterance to be admissible, four

prerequisites must be satisfied: (1) an event startling enough to produce a

nervous excitement in the declarant, (2) the statement must have been made

while still under the stress of excitement caused by the event, (3) the

statement must relate to the startling event, and (4) the declarant must have

personally observed the startling event. Id. citing State v. Brown (1996), 112

Ohio App.3d 583, 601, 679 N.E.2d 361.

      {¶ 39} Pope’s statements to each of the four witnesses satisfy the criteria

outlined in Fowler. Her statements to Creighton, Roberts, and Bell were made

immediately after she was assaulted in her office and while she was under

distress from that assault. Perez testified that when Pope told her about

appellant choking her in March 2009, she was “super distraught.”

      {¶ 40} The testimony adduced at trial clearly demonstrated that each of

the statements admitted into evidence were made after Pope was assaulted by

appellant, an event startling enough to produce a nervous utterance; that Pope

was still under stress caused by the assault; that the statements related to the

assaults; and that Pope had personal knowledge of the startling event because

she was the victim of the assault.      Accordingly, we conclude that Pope’s

statements to the witnesses were admissible pursuant to Evid.R. 803 as

excited utterances.

      {¶ 41} Appellant’s third assignment of error is overruled.
      Appellant’s convictions are affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA A. BLACKMON, P.J., and
LARRY A. JONES, J., CONCUR
