[Cite as State v. Bulger, 2011-Ohio-3828.]


                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                  Nos. 94665, 94666, 94667



                                       STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.

                                        DEON BULGER
                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                        Case Nos. CR-521783, CR-526276, and CR-526612

        BEFORE: Cooney, J., Kilbane, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: August 4, 2011


ATTORNEY FOR APPELLANT
                                             2


Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Erica Barnhill
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




COLLEEN CONWAY COONEY, J.:

       {¶ 1} Defendant-appellant, Deon Bulger (“Bulger”), appeals his conviction for having a

weapon while under disability. Finding no merit to the appeal, we affirm.

       {¶ 2} In March 2009, Bulger was indicted on one count of drug possession, two counts

of drug trafficking, and one count of possession of criminal tools. He pled guilty to one count

of drug trafficking, and the remaining counts were nolled. Bulger was sentenced to one year of

community control sanctions.1




            Common Pleas Case No. CR-521783 — Cuyahoga App. No. 94665; no assignments of
       1


error pertaining to this case have been raised.
                                               3

        {¶ 3} In July 2009, Bulger was indicted for burglary, drug possession, and drug

trafficking.   He pled guilty to burglary and drug trafficking, and was sentenced to four years in

prison.2

        {¶ 4} In July 2009, Bulger was indicted again for drug possession, drug trafficking,

possession of criminal tools, having a weapon under disability, and tampering with evidence.3

His codefendant, Byron Turner (“Turner”), was also charged in connection with this case.4

Both defendants waived a jury trial, and the cases were tried to the bench.

        {¶ 5} The following evidence was adduced at trial. On July 1, 2009, Cleveland police

organized a “buy-bust” operation.        Detective Luther Roddy (“Det. Roddy”) drove the

confidential reliable informant (“CRI”) to the buy site. Det. Roddy parked his undercover car

nearby and observed the CRI approach the suspected dealer in the driveway of a home. Another

officer, Detective Michael Raspberry (“Det. Raspberry”), was also observing nearby from

another undercover car. Both detectives observed the CRI engage in conversation with a man

later identified as Turner.   The detectives observed the CRI back away from Turner and then

quickly leave the scene. The CRI returned to Det. Roddy’s car and informed him that Turner

had a gun.




            Common Pleas Case No. CR-526612 — Cuyahoga App. No. 94667; no assignments of
        2


error pertaining to this case have been raised.

            Common Pleas Case No. CR-526276 — Cuyahoga App. No. 94666; two assignments of
        3


error pertaining to this case have been raised.

           Turner was found guilty of carrying a concealed weapon. This court affirmed his
        4


conviction in State v. Turner, Cuyahoga App. No. 94617, 2010-Ohio-6475.
                                               4

       {¶ 6} Det. Roddy informed the other units, and police immediately converged on the

house. Detective Frank Woyma, one of the responding officers, observed Turner quickly take a

dark object from his waistband and hand it to another man, later identified as Bulger.   Bulger

then ran into the house as the officers approached. Bulger was apprehended on the first floor,

and a gun was discovered in the basement. Turner and Bulger were arrested and charged.

       {¶ 7} At trial, a joint motion to suppress evidence was filed and denied. This motion

to suppress pertained only to the search inside the house and seizure of the items discovered

inside, and made no mention of any statement made by the CRI. Bulger also filed a Crim.R. 29

motion, which was granted in part, dismissing the drug possession and drug trafficking charges.

Bulger was found guilty of having a weapon under disability and not guilty of all the remaining

charges.   He was sentenced to four years for having a weapon under disability, to run

concurrently to the four-year prison sentence in the burglary case.

       {¶ 8} Bulger raises two assignments of error in this delayed appeal.

       {¶ 9} In his first assignment of error, Bulger argues that the trial court erred by

admitting hearsay evidence.

       {¶ 10} The admission or exclusion of evidence is a matter left to the trial court’s sound

discretion; therefore, it will not be disturbed absent an abuse of discretion.   State v. Lundy

(1987), 41 Ohio App.3d 163, 169, 535 N.E.2d 664; State v. Duncan (1978), 53 Ohio St.2d 215,

219, 373 N.E.2d 1234. An abuse of discretion is a decision that is unreasonable, arbitrary, or

unconscionable, rather than a mere error in judgment. Blakemore v. Blakemore (1983), 5 Ohio

St.2d 217, 215 N.E.2d 384.
                                               5

       {¶ 11} Bulger argues that the CRI’s statement to Det. Roddy, that Turner “had a gun,”

does not fall under any of the hearsay exceptions and, therefore, the trial court erred in admitting

it. The State argues that the CRI’s statement falls under the present sense impression exception

and was, therefore, properly admitted.

       {¶ 12} The “present sense impression” exception, under Evid.R. 803(1), allows for the

admission of:

       {¶ 13} “A statement describing or explaining an event or condition made while the

declarant was perceiving the event or condition, or immediately thereafter unless circumstances

indicate lack of trustworthiness.”

       {¶ 14} The rationale for allowing such statements is based on the lack of time available

for reflection, and immediacy is strictly required. Neal v. Johnson, Cuyahoga App. No. 83124,

2004-Ohio-743; United States v. Lentz (E.D.Va.2002), 282 F.Supp.2d 399, 410.

       {¶ 15} “The key to the statement’s trustworthiness is the spontaneity of the statement,

either contemporaneous with the event or immediately thereafter.       By making the statement at

the time of the event or shortly thereafter, the minimal lapse of time between the event and

statement reflects an insufficient period to reflect on the event perceived — a fact which

obviously detracts from the statement’s trustworthiness.” Cox v. Oliver Mach. Co. (1987), 41

Ohio App.3d 28, 35, 534 N.E.2d 855.

       {¶ 16} In the instant case, the CRI’s statement “he had a gun” clearly constitutes a

description of the event the CRI had just perceived. It is also apparent from the testimony of

Det. Roddy that the CRI made the statement “while [he] was perceiving the event or condition,

or immediately thereafter.” Moreover, the short time-frame between when the CRI saw Turner
                                                  6

with the gun, and the moment he told Det. Roddy about the weapon indicates a level of

trustworthiness that allows this statement to conform to Evid.R. 803(1). Therefore, the CRI’s

statement to Det. Roddy constitutes an exception to the hearsay rule.

        {¶ 17} Thus, the trial court did not abuse its discretion when it admitted this evidence

under a hearsay exception. Accordingly, the first assignment of error is overruled.

        {¶ 18} In his second assignment of error, Bulger argues that the trial court erred by

admitting the CRI’s statement because it violated his Sixth Amendment right under the

Confrontation Clause, pursuant to Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354,

158 L.Ed.2d 177.

        {¶ 19} “The Sixth Amendment to the United States Constitution guarantees an accused

the right to confront witnesses against him.”           State v. Swaby, 9th Dist. No. 24528,

2009-Ohio-3690, at ¶6, citing Crawford. In Crawford, the United States Supreme Court held that

the testimonial statement of a witness who is absent from trial is to be admitted only when the

declarant is unavailable, and only when the defendant has had a prior opportunity to

cross-examine the declarant. Id. at 39.

        {¶ 20} Although the Crawford court declined to provide an exhaustive definition of

“testimonial,” it stated that the term encompasses, at a minimum, statements arising from

preliminary hearings, grand jury investigations, previous trials, and police interrogations.   Id. at

53. The court further recognized as testimonial those 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. at 52.
                                                7

        {¶ 21} This identical issue has previously been addressed by this court in Bulger’s

codefendant’s appeal. In his third assignment of error, Turner argued that the trial court erred in

allowing the testimony of Det. Roddy regarding the CRI’s statement following the failed

buy-bust, in violation of Turner’s Sixth Amendment right to confront the CRI. This court found

that:

        “[t]he record reflects that Roddy and Raspberry both observed the CRI walk up the
        driveway, where he spoke briefly with Turner, who indicated a dark object in his
        waistband. The detectives saw the CRI suddenly back away; he returned to Roddy’s car
        in ‘less than a minute,’ and, in answer to Roddy’s question, ‘did you get anything,’ the
        CRI ‘immediately’ answered negatively, adding, ‘he pulled a gun on me and told me to
        get the f— out of there, so I came right back to you.’

        {¶ 22} “Based upon the circumstances thus presented, this court cannot find the trial

court abused its discretion in admitting this testimony.    The CRI could not have expected his

statement to be used as evidence at trial, and the lack of time between the event and the CRI’s

statement indicates its trustworthiness. State v. Travis, 165 Ohio App.3d 626, 2006-Ohio-787,

847 N.E.2d 1237.” Turner at ¶38-39.

        {¶ 23} In accordance with this court’s disposition on this same issue, we find the CRI’s

statement was not made in anticipation of trial and is, therefore, not testimonial in nature. Thus,

there is no Crawford violation, and the trial court did not abuse its discretion by allowing Det.

Roddy to testify regarding the CRI’s statement.5

        {¶ 24} Accordingly, Bulger’s second assignment of error is overruled.



         Bulger’s counsel raised at oral argument the application of Michigan v. Bryant (2011), ___
        5


U.S. ____, 131 S.Ct. 1143, 179 L.Ed.2d 93, for the proposition that there was no ongoing emergency
to allow the CRI’s statement. We find the Bryant case distinguishable because the instant case is not
being viewed as an emergency to which police responded.
                                               8

       Judgment affirmed.

       It is ordered that appellee recover of 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 conviction 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.


       ______________________________________________
       COLLEEN CONWAY COONEY, JUDGE

     MARY EILEEN KILBANE, A.J., CONCURS;
     SEAN C. GALLAGHER, J., CONCURS WITH SEPARATE CONCURRING OPINION
ATTACHED.

       SEAN C. GALLAGHER, J., CONCURRING:

       {¶ 25} I concur in the judgment and analysis of the majority based on our decision in

State v. Turner, Cuyahoga App. No. 94617, 2010-Ohio-6475. I write separately to briefly

address matters raised by Bulger’s counsel at oral argument in this case not referenced by the

majority.

       {¶ 26} First off, I believe this case could have been resolved and affirmed independently

of the statement made by the CRI. In my view, the police conduct fell within the acceptable

parameters of the Fourth Amendment, independent of the CRI’s statement.        Simply put, the

admisssion of the CRI’s statement was unnecessary to sustain a conviction in this case.
                                               9

Nevertheless, the “pesky” admission of this statement and the legacy of confrontation analysis

under Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177; Davis v.

Washington (2006), 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224; Melendez-Diaz v.

Massachusetts (2009), 557 U.S. ____, 129 S.Ct. 2527, 174 L.Ed.2d 314; and Michigan v. Bryant

(2011), 562 U.S. ____, ____, 131 S.Ct. 1143, 179 L.Ed.2d 93, is what is really driving

appellant’s concerns in this case.

        {¶ 27} Appellant’s counsel is concerned that this case will stand for the proposition that

the “reliability” of so-called nontestimonial statements will begin to rule the day over the

preferred standard of “confrontation” outlined under Crawford.      It is a legitimate concern, but

one not likely to be resolved by an intermediate appellate court.   I would not read the majority

opinion here to mean that the facts in this case are analogous to Michigan v. Bryant, and suggest

the mere presence of a gun will always mean an “emergency” exists or is “ongoing.” The facts

here are quite different.

        {¶ 28} In Bryant, the police responded to a call and questioned the victim prior to his

death in an effort to address the ongoing emergency of having a “soon to be dead” body lying in

the street. In our case, the question asked by Officer Roddy of the CRI was not designed to

meet an ongoing emergency.       In our case, the CRI responded negatively to Roddy’s question

“did you get anything?” The CRI then added, “he pulled a gun on me and told me to get the f—

out of there, so I came right back to you.” One might argue that this statement created an

emergency situation, but it is not analogous to the situation in Bryant where the offender fled the

scene and his whereabouts were unknown.              In this instance, Bulger was under police

observation and was quickly apprehended. While the primary purpose of Roddy’s question
                                                 10

might not have been to meet an ongoing emergency, that does not make it testimonial and thus

inadmissible under Crawford. Like it or not, the statement must be analyzed under the totality

of the circumstances, and it certainly falls within the class of statements referenced as present

sense impressions as outlined by the majority.
