[Cite as State v. Montgomery, 2013-Ohio-3040.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :     Appellate Case No. 24621
         Plaintiff-Appellee                      :
                                                 :     Trial Court Case No. 2010-CR-4028
 v.                                              :
                                                 :
 CLIFTON MONTGOMERY                              :     (Criminal Appeal from
                                                 :     (Common Pleas Court)
         Defendant-Appellant                     :
                                                 :
                                             ...........

                                             OPINION

                               Rendered on the 12th day of July, 2013.

                                             ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

DARRELL L. HECKMAN, Atty. Reg. #0002389, Harris, Meyer, Heckman & Denkewalter, One
Monument Square, Suite 200, Post Office Box 38130, Urbana, Ohio 43078
     Attorney for Defendant-Appellant

                                             .............

HALL, J.,

        {¶ 1}    Clifton Montgomery appeals his conviction for felonious assault with a deadly

weapon and the imposition of court costs. He contends that the trial court admitted inadmissible
                                                                                                     2


hearsay; permitted the prosecutor, during cross examination, to ask an improper line of questions;

and permitted the prosecutor, during closing arguments, to vouch for the credibility of a witness.

These contentions are meritless. Montgomery also contends that the trial court should not have

imposed court costs on him. This contention has merit. We therefore affirm in part and reverse in

part and remand.

                                     I. Facts and Evidence

       {¶ 2}    At trial, the victim, Montgomery’s girlfriend Tierra Montgomery (no relation),

testified about what happened. Around 4 a.m., on December 18, 2010, Clifton Montgomery

called her and asked if he could come to her apartment, and she told him that she would call him

when she got home. Tierra arrived at her apartment around 5 a.m. She found her cousin Destiny

Gregory asleep in the living room. Tierra called Clifton Montgomery and when he arrived around

5:15 a.m. they went to her bedroom and started listening to music. Not long after, Clifton

Montgomery said to Tierra, “‘You smell like sex and perfume.’” (Tr. 36). She responded, “‘How

do I smell like sex and perfume and I’ve been over at my sister’s house?’” (Id.). Then things

turned ugly. Clifton Montgomery punched Tierra twice in the face. Pinning her on the bed, he

pulled out a big knife. When Tierra tried to grab the knife, she cut her hand. She was also cut on

her shoulder. As they struggled, Tierra screamed for her cousin. Gregory testified that she heard

Tierra’s frightened screams and that they scared her. Gregory walked to Tierra’s room and slowly

opened the door. She saw Clifton Montgomery poised over Tierra with a big knife in his hand.

After unsuccessfully trying to persuade him to leave, Gregory went to the living room and used

her cell phone to call 911. While she was talking to the 911 operator, Tierra managed to escape

from Clifton. She ran into the living room crying and screaming. Clifton came out yelling and left
                                                                                                   3


the apartment. All of this was recorded by the 911 operator and played at trial. When the police

arrived, Tierra told them what had happened and who had done it. She told the police that Clifton

lived in his parent’s house–only about a block away from her apartment. The police found the

appellant there and arrested him. A police officer testified that Clifton Montgomery had told the

police that he had been home all night. Another officer, Mark Orick, testified that he heard his

sergeant ask Clifton Montgomery’s mother, Edwina Adams, whether Clifton had been home all

evening and that Adams said she did not know.

       {¶ 3}    The appellant presented alibi testimony from three people. His mother testified

that Clifton was home when she went to bed around 11:30 p.m. She said that she did not see him

again until the police arrived. Clifton’s father, Clifton Montgomery, Sr., testified that the last

time he saw his son was around 4:30 a.m. LiLica Williams, the mother of one of the appellant’s

children, testified that she spent the night in Clifton’s parent’s house with him. She said that the

only place he went that night was outside to smoke.

       {¶ 4}    On the jury’s guilty verdict, the trial court entered a judgment of conviction,

which imposed court costs on him as required by R.C. 2947.23.

       {¶ 5}    Montgomery appealed.

                                            II. Review

       {¶ 6}    Montgomery assigns four errors to the trial court. He alleges that the court erred

by imposing court costs on him; by admitting the 911-call recordings and Officer Orick’s

testimony about what his mother said; by permitting the prosecutor, on cross examination, to ask

his mother about his children and their mothers; and by permitting the prosecutor, during closing

arguments, to vouch for the credibility of Destiny Gregory.
                                                                                                   4


                                   A. Imposition of Court Costs

       {¶ 7}    The first assignment of error alleges that the trial court erred by imposing court

costs because at the sentencing hearing the trial judge did not tell him that it would do this. The

state concedes that this is reversible error. We agree.

       {¶ 8}    “Despite the fact that former R.C. 2947.23 (like current R.C. 2947.23(A))

requires a judge to assess costs against all convicted criminal defendants, * * * ‘waiver of [the

payment of] costs is permitted but not required if the defendant is indigent.’” State v. Joseph, 125

Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 11, quoting State v. White,103 Ohio St.3d 580,

2004-Ohio-5989, 817 N.E.2d 393, ¶ 14. If the judge fails to orally notify a defendant that it is

imposing court costs on him, the defendant is “denied the opportunity to claim indigency and to

seek a waiver.” Id. at ¶ 22. The failure is prejudicial error. Id. The remedy is remand for the

limited purpose of allowing Montgomery to move the trial court for a waiver. See id. at ¶ 23.

       {¶ 9}    The first assignment of error is sustained.

                                            B. Hearsay

       {¶ 10} The second assignment of error alleges that the trial court erred in admitting

inadmissible hearsay into evidence. Montgomery contends that the 911-call recording and the

testimony about what Montgomery’s mother told the sergeant are inadmissible hearsay.

       {¶ 11} Hearsay may not be admitted as evidence, of course, unless it falls under an

exception. “911 calls are usually admissible under the excited utterance or the present sense

impression exception to the hearsay rule.” State v. Crowley, 2d Dist. Clark No. 2009 CA 65,

2009-Ohio-6689, 2009 WL 4893283 at *5, citing Ratliff v. Brannum, 2d Dist. Greene No.

2008-CA-5, 2008-Ohio-6732, ¶ 132 (saying that 911 calls are admissible as excited utterances),
                                                                                                  5


citing State v. Jackson, 2d Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143, ¶ 15

(determining that a 911 tape was properly admitted as a present sense impression). There are

three foundational requirements to satisfy the excited-utterance exception: “the existence of a

startling or shocking event, the declarant’s possessing firsthand knowledge of that event and

being under the stress or excitement caused by the event when her statement was made, and the

declarant’s statement that relates to that startling event.” (Citation omitted.) State v. Byrd, 160

Ohio App.3d 538, 2005-Ohio-1902, 828 N.E.2d 133, ¶ 21 (2d Dist.).

        {¶ 12} The 911 call here was made during an incident of domestic violence in which

Clifton Montgomery punched Tierra and then waived a knife in her face–plainly a startling event.

Destiny Gregory heard Tierra’s frightened cries and screams and saw Clifton Montgomery

holding the knife. Almost immediately after, Gregory called 911. The statements made in the

911-call recordings by Gregory, Clifton Montgomery, and Tierra satisfy the requirements for the

excited-utterance exception. Compare State v. McDaniel, 2d Dist. Montgomery No. 24423,

2011-Ohio-6326, ¶ 26 (determining that statements made to police by a victim of domestic

violence only moments after the event were admissible as excited utterances where the victim’s

hair was disheveled; she was crying hysterically, short of breath, and partially nude; and she had

numerous visible injuries); State v. Byrd, 2d Dist. Montgomery No. 24534, 2012-Ohio-1849, ¶

21 (determining that the statements made by a victim of domestic violence during a 911 call were

properly admitted as excited utterances to prove the truth of what the victim had said where the

victim called 911 immediately after her husband had jumped on her, pulled out her hair, and beat

her).

        {¶ 13} Officer Mark Orick testified that he heard his sergeant ask Montgomery’s
                                                                                                                                                 6


mother, Edwina Adams, “if he [Montgomery] in fact had been home all evening.” (Tr. 249). In

response, said Orick, “[s]he said she did not know, that she had just gotten out of bed, that she

had just–from the time she heard the knock and the commotion is then when she had gotten out

of bed. She did not offer up any information as to one way or another whether he had just arrived

home or had been home all evening because she had no knowledge of that due to the fact that she

was in bed.” (Id.).

         {¶ 14} This testimony is undoubtedly hearsay. But its admission is harmless because

Adams herself testified at trial and said almost exactly the same thing.1 Because Montgomery

was not prejudiced by the admission, the admission is not a basis for reversal. See App.R. 12(B);

Crim.R. 52(A).

         {¶ 15} The second assignment of error is overruled.

                                              C. Cross-examination questions

         {¶ 16} The third assignment of error alleges that the trial court erred by permitting the

prosecutor, during cross examination, to ask Clifton Montgomery’s mother improper questions.

The prosecutor ostensibly asked her about her grandchildren:

         Q * * * How many grandchildren do you have?

         ***

         Q How many of those grandkids are Clifton, Junior's kids?

         A Three.

            1
              Although the appellant does not raise the issue, we note that “the admission of hearsay does not violate the Confrontation Clause
 if the declarant testifies at trial.” State v. Keenan, 81 Ohio St.3d 133, 142, 689 N.E.2d 929 (1998), citing California v. Green, 399 U.S. 149, 90
 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The admission of the hearsay statement is not constitutional error. Id. And “‘[n]onconstitutional error is
 harmless if there is substantial other evidence to support the guilty verdict.’” Id., quoting State v. Webb, 70 Ohio St.3d 325, 335, 638 N.E.2d
 1023 (1994).
                                                                                              7


       ***

       A Divinity.

       Q And the mom is LaLica?

       A Yes.

       Q Okay. Celeon, that's the 11-year-old boy, right?

       A Yes.

       Q Okay. Who's Celeon's mom?

       A Jamie Tellis.

       ***

       A Oh, he has another daughter named Paris.

       ***

       Q Okay. And who's Paris' mom?

       ***

       A Wow, what's her name. I can't think of her name right now.

       Q Okay. But it's not Jamie and it's not LaLica?

       A No.

(Tr. 333-335). Montgomery contends that the prosecutor had no legitimate basis for asking these

questions. Rather, says Montgomery, by pointing out that each of his three children has a

different mother, the prosecutor was improperly trying to impugn his morals.

       {¶ 17} Montgomery did not object at trial to this line of questioning. Consequently he

has waived any error based on the questions other than plain error. State v. Williams, 79 Ohio

St.3d 1, 12, 679 N.E.2d 646 (1997); see Crim.R. 52(B). “The burden of demonstrating plain error
                                                                                                   8


is on the party asserting it. A reversal is warranted if the party can prove that the outcome ‘would

have been different absent the error.’” (Citation omitted.) State v. Payne, 114 Ohio St.3d 502,

2007-Ohio-4642, 873 N.E.2d 306, ¶17, quoting State v. Hill, 92 Ohio St.3d 191, 203, 749

N.E.2d 274 (2001).

       {¶ 18} We tend to agree that this line of questioning is only marginally relevant and

should have been limited or excluded. But given the substantial evidence presented of

Montgomery’s guilt, we are not convinced that without these questions he would have been

acquitted.

       {¶ 19} The third assignment of error is overruled.

                              D. The prosecutor’s closing argument

       {¶ 20} The fourth assignment of error alleges that the trial court erred by permitting the

prosecutor, during closing arguments, to express his opinion of a witness’s credibility.

Montgomery contends that the prosecutor improperly vouched for Tierra’s credibility when he

said to the jury, “she wasn’t lying to you.”

       {¶ 21} “Vouching occurs when the prosecutor implies knowledge of facts outside the

record or places his or her personal credibility in issue.” (Citations omitted.) State v. Davis,116

Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 232. So the prosecutor “may not express a

personal belief or opinion as to the credibility of a witness.” (Citation omitted.) Id. But the

prosecutor may comment on the evidence–what it shows and what reasonable inferences may be

drawn from it. State v. Baker, 159 Ohio App.3d 462, 2005-Ohio-45, 824 N.E.2d 162, ¶ 19 (2d

Dist.). This includes comments about the evidence that respond to defense attacks. Davis at ¶ 241

(finding no improper vouching because the prosecutor was “simply responding to defense attacks
                                                                                               9


by commenting on the experts’ collective experience”). Also, the prosecutor does not vouch for a

witness merely “because he asked the jurors to decide for themselves whether the[] witnesse[]

w[as] being truthful.” (Citation omitted.) Id. at ¶ 235.

       {¶ 22} The prosecutor here made the objected-to statement in the context of a response

to defense attacks on Tierra’s credibility:

               Let’s talk about Tierra’s credibility for just a second. Tierra Montgomery is

       a human being. She’s not a video camera and she’s not a tape recorder. There was

       a lot of time spent picking on her about little individual details. And you heard a

       lot of that in the defendant’s closing argument * * *.

               ***

               I challenge you–I ask you to get all your heads together and review Tierra’s

       testimony. * * * Read through it entirely and then decide if Tierra Montgomery

       was consistent when she talked to the police, when Destiny was on the phone with

       9-1-1, when she went to the preliminary hearing, and when she sat in that chair

       and told you what happened to her. * * *

               ***

               And then you’ve got to evaluate her demeanor on the witness stand in

       judging her credibility. And what I’m going to suggest to you was going on during

       her cross-examination was not her being untruthful, was not her trying to be

       difficult. What you were seeing was an attorney and a witness not understanding

       each other, failing to communicate, and yes, she got a little frustrated. But she

       wasn’t lying to you.
[Cite as State v. Montgomery, 2013-Ohio-3040.]
(Tr. 417-422). In our view the prosecutor was not vouching for Tierra. The prosecutor was simply

commenting on the evidence and asking the jury to decide for itself whether Tierra was being

truthful.

        {¶ 23} The fourth assignment of error is overruled.

        {¶ 24} The judgment of the trial court is reversed with respect to the payment of court

costs; the rest of the judgment is affirmed. This case is remanded for further proceedings

consistent with this opinion.

                                            ..............


FROELICH and WELBAUM, JJ., concur.



Copies mailed to:

Mathias H. Heck
Michele D. Phipps
Darrell L. Heckman
Hon. Gregory F. Singer
