[Cite as State v. Mack, 2015-Ohio-5214.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION

                 Plaintiff-Appellee,           :
                                                        CASE NO. 2015-A-0019
        - vs -                                 :

JASON PERRY MACK,                              :

                 Defendant-Appellant.          :


Criminal Appeal from the Ashtabula County Court, Western District, Case No. 2014
CRB00871W.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Aaron T. Baker, 38109 Euclid Avenue, Willoughby, Ohio            44094 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Jason Perry Mack, timely appeals his conviction for domestic

violence that arose from an altercation with his wife, Georgina Garcia. Garcia advised

the investigating officer that Mack pushed her into the wall causing a hole in the drywall,

but she later recanted her story.

        {¶2}     Mack argues on appeal that the trial court erred in failing to grant an

acquittal, that his conviction was not supported by sufficient evidence, that his
conviction was against the manifest weight of the evidence, that the trial court

committed plain error in accepting Garcia’s hearsay statements as substantive

evidence, and that his trial counsel’s performance was ineffective and prejudicial. For

the following reasons, however, Mack’s assignments of error lack merit and are

overruled.

        {¶3}   Appellant’s case was heard via bench trial on January 14, 2015. Officer

Roger Wilt from the Geneva City Police Department testified for the state. He was

dispatched in response to a 911 call reporting a domestic situation. Mack’s daughter

Haley had called for help, but she was not present when the officers arrived. She did

not testify.

        {¶4}   Wilt testified that Garcia answered the door stating, “thank God, it’s the

police. Do you see the red mark on my face?” Then, in order to separate Garcia and

Mack, Wilt interviewed Garcia inside the residence while Mack went outside with Officer

Gonzalez. Wilt noticed “fresh” red marks on Garcia’s forehead and left arm that “would

possibly turn into bruising later[.]” Wilt did not recall any dogs running loose in the

residence.

        {¶5}   Toward the end of his investigation at the residence, Wilt observed a

portion of the wall caved in approximately one foot off the ground that was about two to

four feet in height and approximately one to three feet wide. He then asked Garcia if

she had been shoved into the wall. She responded, “I’m not going to lie, yes, Jason * *

* pushed [me] into the wall.” Wilt then decided to arrest Mack based on the redness on

Garcia’s arm and forehead coupled with her statement that he had pushed her into the

wall.




                                            2
          {¶6}   Upon Haley’s return, she confirmed that the hole had not been there

before she left that evening. Haley and Garcia were crying and screaming while Mack

was being arrested. Wilt never heard Garcia recant her story on the date of Mack’s

arrest.

          {¶7}   On cross examination, Wilt agreed that Garcia’s redness could have been

caused by “anything” and that he did not witness the altercation between Mack and

Garcia.

          {¶8}   Garcia was the only other witness to testify at trial. She was called as the

court’s witness. She testified that she lives with Mack and their daughter, Jordan, and

that Haley has since moved out of the house.

          {¶9}   Garcia explained that she and Mack were having a “massive argument” on

the night of the 911 call. She said that they are generally loud people and that they

were screaming, but there was no physical contact during their argument.                 Garcia

believed that Haley called the police because she did not want Jordan to see them

fighting.

          {¶10} Garcia was asked by the state,

                 “Q. Do you remember saying ‘Thank God, it’s the police. Come in.

                 Do you see the red mark on my face?’

                 “A.   I don’t remember saying, ‘See the mark on my face.’           I

                 remember saying ‘Yes, come in.’ The police, yes, I invited, told

                 them to come in.

                 “Q. Now, you don’t remember * * * - - saying about the mark on

                 your face, but is it possible you said that?




                                                3
“A. Um, with my anger, it’s possible I said that, yes.

“Q. Okay. Did you have any red marks on your face?

“A. Um, I don’t remember * * *.

“* * *

“Q. And did you tell them what was going on?

“A. Well, I was angry. I was saying some things that I shouldn’t

have said, yes.

“Q. Such as?

“A. That, um, Jason hit me. I was so mad at him, I was beyond

angry. I was furious.

“Q. But you don’t remember why?

“A. No. We were just - - that’s Jason and I. We argue, and I don’t

even remember what we were arguing about.

“* * *

“Q. Now, you said you remember telling the officers that Jason hit

you. Did he, in fact, hit you that day?

“A. No. I – - I’m sorry to say and I’m ashamed to say that I did say

that and it wasn’t true. I’m sorry.”

[At this point the trial court advised Garcia of her Fifth Amendment

Right against self-incrimination and her ability to remain silent.]

“* * *

“Q. So you told the officers he hit you, correct?

“A. I said he pushed me into the wall and I fell into the wall.




                                4
                “Q. * * * And was the wall damaged?

                “A. Yes.

                “Q. Describe the damage to the wall.

                “A. * * * there was a hamper against the wall and I fell against it,

                and so my shoulders hit and it went on my side. You know just

                smashed it and - -

                “Q. * * * Was it a wall that was damaged?

                “A. Prior? No.

                “Q. Okay. And was there a hole put into the wall?

                “A. Yes.”

       {¶11} Garcia readily admitted at trial telling the police that Mack hit her and

pushed her into the wall that night. She explained that she was, “so angry at Jason, I

just wanted to hurt him the worst I could * * *.” So she decided to blame this on him.

However, Garcia then explained that the damage to the wall actually occurred when the

police arrived. She said her two big dogs “go crazy” when someone knocks on the

door. She said her dogs went “berserk,” and she stepped backward and hit the hamper

and fell into the wall. She had hip replacement surgery and was not steady on her feet.

She thinks her face hit the wall when she fell into the wall, but she did not recall hitting

her forehead.

       {¶12} Garcia further testified that when they were arresting Mack, she advised

the officers that he did not do this, that he had not hit her, and that she had just said that

because she was angry with him. She refused police requests to take photographs of

her red marks and the damage to the wall.




                                              5
       {¶13} Upon questioning by defense counsel, Garcia confirmed that she lied to

the police about Mack hitting and pushing her to “get back at him.” She explained that

when the officers were taking Mack from their home, she was begging them and

screaming, “I’m sorry, it wasn’t true. He didn’t hit me.”

       {¶14} Appellant’s four assignments of error on appeal assert:

       {¶15} “The trial court erred by failing to grant a judgment of acquittal pursuant to

Crim.R. 29(A), and thereafter entering a judgment of conviction of that offense which

was not supported by sufficient evidence in derogation of Appellant’s right to due

process of law, as protected by the Fourteenth Amendment to the United States

Constitution.

       {¶16} “The trial court erred by entering a judgment of conviction that was against

the manifest weight of the evidence in derogation of Appellant’s right to due process of

law, as protected by the Fourteenth Amendment to the United States Constitution.

       {¶17} “The trial court engaged in plain error when it considered Garcia’s hearsay

statement as substantive evidence.

       {¶18} “Trial counsel failed to provide effective assistance of counsel, guaranteed

by both the United States Constitution, and the Ohio Constitution.”

       {¶19} Each of Mack’s arguments is founded on his claim that the trial court

improperly relied on hearsay statements made by Garcia as a basis for its decision. For

ease of analysis, we collectively address Mack’s first three assigned errors.

       {¶20} Mack first argues that the trial court should have granted his motion for

acquittal. Crim.R. 29(A) provides that “[t]he court on motion of a defendant * * *, after

the evidence on either side is closed, shall order the entry of a judgment of acquittal of




                                             6
one or more of the offenses charged in the indictment * * * if the evidence is insufficient

to sustain a conviction of such offense * * *.”

       {¶21} On appeal of the denial of a Crim.R. 29(A) motion, 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.” State v. Williams, 74 Ohio St.3d 569, 576 (1996), citing State v.

Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. The trier of fact in this

case was the trial court judge. A sufficiency argument challenges whether the state has

presented adequate evidence on each element of the offense to sustain the verdict as a

matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       {¶22} Mack’s second argument asserts that the trial court’s decision was against

the weight of the evidence. He alleges that the only two people present during the

alleged offense deny that it occurred, and as such, the trial court’s decision is against

the weight of the evidence. Again, Mack relies on his claim that Garcia’s out-of-court

statements were improperly relied on for the truth of the matter asserted contrary to the

hearsay rule.

       {¶23} When an appellant asserts that his conviction is against the manifest

weight of the evidence, the appellate court must review the entire record and consider

the weight of the evidence, not just the legal sufficiency of the evidence.         State v.

Wilson, 8th Dist. Cuyahoga No. 88289, 2007-Ohio-2373, ¶10. “‘The weight to be given

evidence and the credibility of witnesses are determinations to be made by the triers of

fact. If there was sufficient evidence for the triers of fact to find defendant guilty beyond

a reasonable doubt [an appellate court] will not reverse a guilty verdict based on




                                              7
manifest weight of the evidence.’” (Citations omitted.) Id. Further, when testing the

manifest weight, an appellate court is to determine “whether in resolving conflicts in the

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), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist.1983).

       {¶24} Mack’s third assigned error claims that the trial court committed plain error

in relying on Garcia’s out-of-court statements as substantive evidence of the offense.

Mack did not object to the introduction of the claimed hearsay statements by Garcia.

Accordingly, he has waived all but plain error.

       {¶25} Crim.R. 52(B) provides that plain error or “errors affecting substantial

rights” may be noticed on appeal even if the alleged error was not brought to the

attention of the trial court. “Plain error is present only if the error is obvious and, but for

the error, the outcome of the trial clearly would have been different.” State v. Turner,

11th Dist. Ashtabula No. 2010-A-0060, 2011-Ohio-5098, ¶34, citing State v. Yarbrough,

95 Ohio St.3d 227, 2002-Ohio-2126 ¶108. Further, an appellate court will recognize

plain error “under exceptional circumstances and only to prevent a manifest miscarriage

of justice.” State v. Landrum, 53 Ohio St.3d 107, 111 (1990), quoting State v. Long, 53

Ohio St.2d 91 (1978), paragraph three of the syllabus.

       {¶26} Mack was charged with one count of domestic violence in violation of R.C.

2919.25(A), which states:      “No person shall knowingly cause or attempt to cause

physical harm to a family or household member.”




                                              8
       {¶27} He asserts that the trial court erroneously considered hearsay statements

by the victim as substantive evidence of guilt based on the trial court’s written judgment

entry, which states in part, “The court finds that the statement made by the victim on the

date of the occurrence * * * combined with the testimony of Officer Wilt regarding the

visible physical injuries/marks on her forehead and left arm are corroborative of the

victims [sic] original version to law enforcement.”

       {¶28} Mack claims that the trial court explicitly relied on Garcia’s hearsay

statements as evidence. We disagree. Instead, hearsay is “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.” (Emphasis added.) Evid.R. 801(C). Unless the

statement meets one of the exceptions to the rule, hearsay is not admissible at trial.

Evid.R. 802. Here, Officer Wilt was free to testify about Garcia’s statements to him

upon his arrival and during his response to the 911 call because her statements

constitute excited utterances, an exclusion to the hearsay rule.

       {¶29} 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.”   Evid.R. 803(2).     An excited utterance is not excluded by the

hearsay rule even if the declarant is available to testify. The rationale for the exception

is the premise that statements made under the stress of an event do not allow for

reflective thinking, and as such, the statements are considered reliable. State v. Taylor,

66 Ohio St.3d 295, 300 (1993).




                                             9
      {¶30} Further, the admission of evidence, such as an excited utterance, is within

the trial court’s discretion, and its decision will not be reversed absent an abuse of

discretion. Roach v. Roach, 79 Ohio App.3d 194, 205 (1992).

      {¶31} The Ohio Supreme Court has adopted a four-part test to determine the

admissibility of an excited utterance, referred to in common law as spontaneous

exclamations:

      {¶32} “Such testimony as to a statement or declaration may be
            admissible under an exception to the hearsay rule for spontaneous
            exclamations where the trial judge reasonably finds (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 or
            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 startling occurrence, and (d) that the
            declarant had an opportunity to observe personally the matters
            asserted in his statement or declaration.” (Emphasis sic.) Taylor at
            300-301, quoting Potter v. Baker, 162 Ohio St. 488 (1955).

      {¶33} In State v. Payne, 8th Dist. Cuyahoga No. 76539, 2000 Ohio App. LEXIS

3274, *6-*7 (Jul. 20, 2000), the court of appeals upheld the introduction of the victim’s

statement to officers that her boyfriend had punched her. The court explained that her

statement to officers was admissible as an excited utterance since she made the

statement at a time when she was still under the stress of the event. The victim later

retracted her statement and claimed that she was the aggressor. Id.




                                           10
      {¶34} In State v. Ducey, 10th Dist. Franklin No. 03AP-944, 2004-Ohio-3833, the

court applied the four-prong test and allowed officers to testify about statements made

by the domestic violence victim in that case, who refused to testify.        The officers’

testimony about the victim’s out-of-court statements was properly limited to the

identification of her attacker and to details as to what happened during the attack. Id. at

¶19-26.

      {¶35} In the instant case, Wilt testified that Garcia opened the door during her

“massive argument” with Mack and freely stated, “thank God, it’s the police. Do you see

the red mark on my face?” Furthermore, upon questioning during Wilt’s approximate

ten minute investigation, Garcia advised Wilt that she was “not going to lie” and that

Mack had pushed her into the wall and caused the hole in the drywall.

      {¶36} In applying the four prongs set forth in Potter, the foregoing statements

were properly before the court as excited utterances.         First, Garcia’s statements

immediately following her altercation with her husband to an officer responding to a 911

call were undoubtedly made during an event startling enough to produce nervous

excitement. Second, Garcia’s statements were made under the stress and excitement

of the domestic dispute and involvement of the police. Her statements were made

shortly after the domestic dispute and during Wilt’s questioning while still under the

excited nervousness of the dispute and police response. Garcia confirmed that she and

Mack had been screaming and fighting. Third, Garcia’s statements directly related to

this startling event, i.e., the massive argument.        And finally, Garcia personally

experienced the matters asserted in her statements.        Accordingly, Wilt was free to




                                            11
testify as to Garcia’s excited utterances, and the trial court did not rely on improper

testimony as a basis to determine Mack’s guilt.

       {¶37} Thus, as in Payne and Ducey, supra, Garcia’s statements were properly

admitted, and there was no plain error. Evid.R. 803(2). Appellant’s third assigned error

is meritless.

       {¶38} In addition, Garcia personally testified as to the substance of her prior,

out-of-court statements to the police. Although she attempted to explain at trial that her

prior statements to the police were lies manufactured to “get even” with Mack because

she was mad at him, the trial court was free to reject her in-court explanation. The trier

of fact is in the best position to determine witness credibility. State v. Crowe, 9th Dist.

Medina No. 04CA0098, 2005-Ohio-4082, ¶42.

       {¶39} Thus, and in applying the facts in the record to the applicable statute, we

find sufficient evidence for each element of Mack’s domestic violence conviction beyond

a reasonable doubt. Wilt testified that Garcia, Mack’s wife, advised him at the scene

that Mack pushed her into the wall. Wilt also described the damage to the wall and the

“fresh” red marks on Garcia’s arm and forehead. Furthermore, after reviewing the entire

record and in considering Garcia’s credibility, the trial court did not lose its way and

cause a miscarriage of justice. Accordingly Mack’s first and second assigned errors

lack merit.

       {¶40} Mack’s fourth and final assignment of error claims that he was denied

effective assistance of trial counsel based on his counsel’s failure to object to the

introduction of Garcia’s alleged hearsay statements. We disagree. To succeed on a

claim of ineffective assistance of counsel, an appellant must show that his attorney’s




                                            12
representation fell below an objective standard of reasonableness, and that but for such

errors, there is a reasonable probability that the outcome of the case would have been

different. Westlake v. Zidian, 8th Dist. Cuyahoga No. 93084, 2010-Ohio-1577, ¶29-30,

quoting Strickland v. Washington, 466 U.S. 668 (1984).

       {¶41} Mack correctly points out that his trial counsel did not object to the

introduction of Garcia’s out-of-court statements in Wilt’s testimony.     However, as

outlined herein, Wilt’s testimony containing Garcia’s statements she made on the date

of the offense was properly before the trial court. Evid.R. 803(2). Thus, even assuming

that counsel had objected to the admission of Garcia’s out-of-court statements, the

outcome of the case would have remained unchanged. Thus, Mack’s fourth assignment

of error lacks merit.

       {¶42} For the reasons outlined in the opinion of this court, appellant’s

assignments of error lack merit. The judgment of the Ashtabula County Court, Western

District, is affirmed.



DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

                            ________________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


       {¶43} The majority contends that Ms. Garcia’s prior statements were properly

before the trial court as excited utterances even though she recanted her story upon




                                          13
direct testimony and cross-examination at trial that her husband had committed

domestic violence. For the reasons stated, I respectfully dissent.

       {¶44} “‘Hearsay’ is 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).

       {¶45} Pursuant to Evid.R. 802, hearsay is inadmissible unless it falls within an

exception provided by the rules of evidence.

       {¶46} Evid.R. 803, “Hearsay exceptions; Availability of declarant immaterial”

states in part:

       {¶47} “The following are not excluded by the hearsay rule, even though the

declarant is available as a witness:

       {¶48} “* * *

       {¶49} “(2) Excited utterance.

       {¶50} “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.”

       {¶51} This matter involves an appeal of Mr. Mack’s conviction for domestic

violence that arose from an altercation with his wife, Ms. Garcia. Mack’s daughter

placed a 911 call reporting a domestic situation.      Officer Wilt responded.    Garcia

answered the door stating, “thank God, it’s the police. Do you see the red mark on my

face?” Officer Wilt noticed “fresh” red marks on Garcia’s forehead and left arm. He also

noticed a portion of a wall which appeared caved in. At that time, Garcia initially said

Mack pushed her into the wall. Based on the redness on Garcia’s forehead and arm




                                           14
coupled with her statement that Mack pushed her into the wall, Officer Wilt arrested

Mack for domestic violence. However, Garcia immediately recanted her story.

      {¶52} Both Officer Wilt and Garcia testified at trial. Officer Wilt testified with

respect to Garcia’s initial statements when she answered the door, which she later

recanted.   The trial court permitted that testimony as an excited utterance hearsay

exception. On cross-examination, Officer Wilt testified that Garcia’s redness could have

been caused by “anything” and that he did not witness the altercation between Mack

and Garcia.   In fact, Mack and Garcia deny that any physical altercation occurred.

There was no testimony or evidence supporting these assumptions other than Garcia’s

statement which did not, in any detail, accuse her husband of physical touching.

      {¶53} Garcia was available as a witness and testified at trial. Garcia testified

she and Mack had an argument and screamed at each other. Garcia said there was no

physical contact. She stated that her initial story to Officer Wilt was false. Garcia

further testified that Mack never hit her and that the damage to the wall was caused by

her dogs. Garcia was merely angry at Mack and wanted to “get back at him.”

      {¶54} The excited utterance “‘exception applies regardless of the declarant’s

availability as a witness.’” State v. Canada, 10th Dist. Franklin No. 14AP-523, 2015-

Ohio-2167, ¶28, quoting State v. McClain, 10th Dist. Franklin No. 13AP-347, 2014-

Ohio-93, ¶26, citing Evid.R. 803. However, “[t]he best evidence is generally given by

one who can offer direct testimony.” Brate v. Rolls-Royce Energy Sys., 5th Dist. Knox

No. 12CA000001, 2012-Ohio-4577, ¶25.

      {¶55} This writer believes that Garcia’s direct testimony was the best evidence

which included the fact that she made up the whole story and that her husband was not




                                          15
guilty. Notwithstanding this direct testimony, however, the trial court relied solely on

Officer Wilt’s testimony repeating Garcia’s excited utterances, which she recanted, for

the truth of the matter asserted.

       {¶56} “[T]he State is initially entitled to pursue the prior statement with the

witness - both to give the witness the fullest opportunity to respond to the alleged prior

statement and to more clearly determine whether the witness intends to specifically

deny the statement. See State v. Hubbard, 7th Dist. Jefferson No. 01JE4, 150 Ohio

App.3d 623, 2002-Ohio-6904, ¶¶13-14, * * *. At this stage, the issue is one of laying the

proper foundation for possible impeachment about what the witness has already stated

to another person * * *.” (Parallel citation omitted.) State v. Arnold, 3rd Dist. Seneca

No. 13-13-27, 2014-Ohio-1134, ¶39.

       {¶57} The trial court relied on those prior false statements uttered by the victim

in convicting and sentencing Mack for domestic violence in violation of R.C. 2919.25(A)

(“[n]o person shall knowingly cause or attempt to cause physical harm to a family or

household member.”)

       {¶58} Each of Mack’s arguments on appeal centers around his claim that the

trial court improperly relied on hearsay statements made by Garcia as a basis for its

decision. This writer agrees with Mack that the court committed plain error in relying on

Garcia’s out-of-court statements as substantive evidence of his guilt. The court’s written

judgment entry reveals that it explicitly relied on Garcia’s hearsay statements as

evidence, i.e., “The court finds that the statement made by the victim on the date of the

occurrence * * * combined with the testimony of Officer Wilt regarding the visible




                                           16
physical injuries/marks on her forehead and left arm are corroborative of the victims

(sic) original version to law enforcement.”

       {¶59} The majority asserts that Officer Wilt was free to testify about Garcia’s

statements to him upon his arrival and during his response to the 911 call finding

Garcia’s statements to be excited utterances, an exception to the hearsay rule, even

though she recanted her story. This writer disagrees.

       {¶60} Regarding excited utterances, the Staff Notes to Evid.R. 803(2) state that

“[t]his exception derives its guaranty of trustworthiness from the fact that declarant is

under such state emotional shock that his reflective processes have been stilled.

Therefore, statements made under these circumstances are not likely to be fabricated.

McCormick § 297 (2d ed. 1972).”

       {¶61} In addition, “there is a certain credibility attributable to excited utterances

because they are not based upon reflective thought.”         State v. Glossip, 12th Dist.

Warren No. CA2006-04-040, 2007-Ohio-2066, ¶10. “Excited utterances are deemed

reliable because, by their nature, they do not entail an opportunity for the declarant to

reflect and fabricate or to distort the truth.” State v. Sutphin, 8th Dist. Cuyahoga No.

96015, 2011-Ohio-5157, ¶35, citing State v. Wallace, 37 Ohio St.3d 87, 88 (1988).

       {¶62} In my humble opinion, the statements at issue were not properly before

the trial court as excited utterances. It is true that Garcia’s statements immediately

followed a verbal altercation she had with her husband. It is true that the statements

could have been made as a result of stress and excited nervousness. It is also true that

Garcia confirmed she and Mack had been screaming at each other. However, this

writer stresses again that Garcia immediately recanted her story during her husband’s




                                              17
arrest for domestic violence. Garcia revealed there was no physical contact. Garcia

further stated that her initial story to Officer Wilt claiming she was physically abused by

Mack was false. Thus, under Evid.R. 803(2), how were Garcia’s statements related to a

“startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition” if the whole thing was untrue? How could

Garcia be under stress due to a startling event since she admits she made up the whole

story?

         {¶63} Based on the facts presented and for the reasons addressed, this writer

believes there was plain error as Garcia’s initial statements do not constitute excited

utterances under the hearsay exception of Evid.R. 803(2). Even assuming they do,

Garcia’s direct testimony at trial revealed those initial statements were false. Thus, I

believe the court improperly relied on a recanted story instead of the best evidence, i.e.,

Garcia’s direct testimony, as a basis in determining Mack’s guilt.

         {¶64} I respectfully dissent.




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