[Cite as State v. Cutshall, 2013-Ohio-3591.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :
                                               :     Hon. Sheila G. Farmer, P.J.
        Plaintiff - Appellee                   :     Hon. John W. Wise, J.
                                               :     Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :
EDWARD A. CUTSHALL                             :     Case No. 2012CA00235
                                               :
                                               :
        Defendant - Appellant                  :     OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No.
                                                     2012CA1236




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    August 19, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

RENEE M. WATSON                                      GEORGE URBAN
Assistant Prosecuting Attorney                       116 Cleveland Ave., NW, Suite 808
110 Central Plaza South, Suite 510                   Canton, OH 44702
Canton, OH 44702-1413
Stark County, Case No. 2012CA00235                                                    2

Baldwin, J.

     {¶1}     Appellant Edward A. Cutshall appeals a judgment of the Stark County

Common Pleas Court convicting him of one count of burglary in violation of R.C.

2911.12(A)(2) and sentencing him to five years incarceration. Appellee is the State of

Ohio.

                                 STATEMENT OF FACTS AND CASE

     {¶2}     On August 9, 2012, Brittany Buccini was home in her apartment with her

two-year-old daughter.    Appellant knocked on the door, yelling that he wanted his

money back. Brittany pretended she was not home, and appellant left. Several days

earlier, appellant attended a small party at Brittany’s apartment. Appellant became

intoxicated at the party and had to be carried home to his apartment across the street,

where he lived with his friends Sarah Lyon and Jonah Fowler.

     {¶3}     Brittany called her friend Amanda Foster and told her about appellant’s

“visit.” The two met at the park with their children. Brittany returned home around 5:00

p.m. While she was making dinner, appellant began pounding on her door again.

Brittany ignored him, and he went away. Brittany was disturbed by appellant’s visit and

called her friend Amanda to come over with her boyfriend, Miguel Aguayo.

     {¶4}     Amanda and Miguel began playing cards with Brittany in Brittany’s

apartment. Appellant returned between 8:00 p.m. and 8:30 p.m. A shouting match

ensued between appellant and the occupants of Brittany’s apartment. Appellant ran up

the steps to Brittany’s apartment. Brittany, Amanda and Miguel ran inside and closed

the door. Appellant kicked the exterior door to the apartment completely off the frame.

Brittany and her friends ran into the living room and held the interior door shut.
Stark County, Case No. 2012CA00235                                                     3


Appellant continued to yell about missing money, and threatened to kill Brittany and

stab her daughter.    Amanda called the police.     Appellant ran outside and started

throwing rocks at the building.

     {¶5}    When Canton Police Officer Michael Rastetter arrived, a neighbor flagged

him down and told him a white male was throwing rocks at the building and yelling, and

had kicked in the door of Brittany’s apartment.

     {¶6}    Rastetter proceeded up the steps to Brittany’s apartment, where he noted

the exterior door had been broken off both hinges and the deadbolt, and was hanging

by a piece of wood. He found Brittany and her daughter in the living room, along with

Amanda and Miguel.      Brittany was distraught and crying, and very nervous.       She

jumped at any sound coming from outside. She told Rastetter that appellant kicked in

her exterior door and tried to gain access to the living room, but they held the interior

door shut.   Brittany was hesitant to go with Rastetter to his cruiser to complete

paperwork, but reluctantly complied.

     {¶7}    While in the cruiser, Brittany thought she heard something in the back of

the apartment building. Rastetter went to check the noise to make Brittany feel better.

As he checked the backyard, Brittany started screaming, “He’s out here!”          When

Rastetter returned, appellant was standing by the cruiser.

     {¶8}    Appellant was charged with one count of burglary. The case proceeded to

jury trial in the Stark County Common Pleas Court. At trial, Jonah Fowler testified that

although appellant kicked the door, he did not break the door open, and appellant

never entered the apartment. A neighbor also testified that appellant kicked the door

but it did not open, and he never entered the apartment.
Stark County, Case No. 2012CA00235                                                     4


     {¶9}    Appellant was convicted as charged and sentenced to five years

incarceration. He assigns two errors on appeal:

     {¶10}   “I.    THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

ALLOWED TESTIMONY UNDER THE EXCITED UTTERANCE EXCEPTION TO

HEARSAY.

     {¶11}   “II.   APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

                                                I.

     {¶12}   In his first assignment of error, appellant argues that the court erred in

allowing Officer Rastetter to testify as to what Brittany said when he arrived on the

scene. Appellant argues that the court erred in admitting her statements as excited

utterances when they were made in response to questioning, and sufficient time had

lapsed in order for her to have reflected on the events that transpired.

     {¶13}   The decision to admit or exclude evidence rests in the sound discretion of

the trial court. State v. Sage, 31 Ohio St. 3d 173, 510 N.E.2d 343 (1987), paragraph

two of the syllabus. An abuse of discretion connotes that the court’s decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d

217, 219, 450 N.E.2d 1140 (1983).

     {¶14}   Evid. R. 803(2) provides that an excited utterance is not excluded by the

hearsay rule. An excited utterance is defined by the rule as “[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.”
Stark County, Case No. 2012CA00235                                                      5


     {¶15}   In order to qualify as an excited utterance, there must be an occurrence

startling enough to produce a nervous excitement in the declarant, the statement must

be made before there was time for the nervous excitement to lose influence over the

declarant’s reflective faculties, the statement must be related to the startling

occurrence, and the declarant must have had an opportunity to personally observe the

matters asserted in her statement. State v. Duncan, 53 Ohio St. 2d 215, 373 N.E.2d

1234 (1978), at syllabus. Statements made in response to questioning may still be

admitted pursuant to the excited utterance exception to the hearsay rule if the

questioning is neither coercive nor leading, facilitates the declarant’s expression of

what is already the natural focus of the declarant’s thoughts, and does not destroy the

domination of the nervous excitement over the declarant’s reflective faculties. State v.

Wallace, 37 Ohio St. 3d 87, 93, 524 N.E.2d 466, 472 (1988).

     {¶16}   The officer arrived on the scene shortly after the incident between Brittany

and appellant. The officer testified that Brittany was distraught and crying, and very

nervous. She jumped at any sound coming from outside.           The officer’s question to

Brittany was “what made her so upset or something along those lines.” Tr. Vol. 1 page

147. The question was not coercive nor was it leading. Further, Brittany remained

upset even after making the statements to the officer. She was afraid to go to the

police cruiser to fill out paperwork, and asked the officer to check out a suspicious

noise behind the apartment. The trial court did not abuse its discretion in admitting
Stark County, Case No. 2012CA00235                                                                                  6


 Brittany’s statement to Officer Rastetter as an excited utterance. 1

       {¶17}      The first assignment of error is overruled.

                                                             II.

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

 conviction is against the manifest weight and sufficiency of the evidence. Specifically

 he argues that he did not trespass with the purpose to commit the offense of assault;

 he merely kicked the door out of frustration.

       {¶19}      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,

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

 N.E.2d 717 (1983).

       {¶20}      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).


         1
           Although properly admitted as an excited utterance, a hearsay statement may still be inadmissible as a
violation of the Confrontation Clause if the statement is testimonial in nature. See State v. Siler, 164 Ohio App. 3d
680, 2005-Ohio-6591, 843 N.E.2d 863. However, we need not reach this issue in the instant case because the
declarant testified at trial. When the declarant appears for cross-examination at trial, the Confrontation Clause
places no constraints on the use of his prior testimonial statements. Crawford v. Washington, 541 U.S. 36, 59, 124
S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Stark County, Case No. 2012CA00235                                                       7


     {¶21}   Appellant was convicted of burglary in violation of R.C. 2911.12(A)(2):

     {¶22}   “(A) No person, by force, stealth, or deception, shall do any of the

following:

     {¶23}   (2) Trespass in an occupied structure or in a separately secured or

separately occupied portion of an occupied structure that is a permanent or temporary

habitation of any person when any person other than an accomplice of the offender is

present or likely to be present, with purpose to commit in the habitation any criminal

offense.”

     {¶24}   The trial court instructed the jury that to find appellant guilty, they had to

find that appellant had purpose to commit the crime of assault, defined as knowingly

causing or attempting to cause physical harm to another. Tr. Vol. 3, p. 24.

     {¶25}   Appellant argues that he kicked the door, but it did not open. Officer

Rastetter testified that when he arrived, the door had been kicked off its hinges and

was hanging on by a little bit of wood. Miguel Aguayo, Amanda Foster and Brittany

Buccini all testified that appellant kicked the exterior door off its frame and then

attempted to come through the living room door. They managed to hold the interior

door closed while calling the police to keep appellant form entering the living room.

     {¶26}   Further, Brittany testified that appellant threatened to harm her and her

daughter. While other witnesses did not hear this threat, appellant’s actions in forcibly

kicking through the exterior door and attempting to break through the interior door

support the jury’s conclusion that he intended to assault someone upon gaining entry

to the apartment.
Stark County, Case No. 2012CA00235                                                     8


      {¶27}   The jury’s verdict is not against the manifest weight or sufficiency of the

evidence. The second assignment of error is overruled.

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

Costs are assessed to appellant.


By: Baldwin, J.

Farmer, P.J. and

Wise, J. concur.




                                        HON. CRAIG R. BALDWIN



                                        HON. SHEILA G. FARMER



                                        HON. JOHN W. WISE




CRB/rad
[Cite as State v. Cutshall, 2013-Ohio-3591.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
        Plaintiff -Appellee                       :
                                                  :
-vs-                                              :      JUDGMENT ENTRY
                                                  :
EDWARD A. CUTSHALL                                :
                                                  :
        Defendant - Appellant                     :      CASE NO. 2012CA00235


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs

assessed to appellant.




                                               HON. CRAIG R. BALDWIN



                                               HON. SHEILA G. FARMER



                                               HON. JOHN W. WISE
