[Cite as State v. Stage, 2012-Ohio-3300.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                       C.A. No.        11CA0077-M

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
SCOTT E. STAGE                                      COURT OF COMMON PLEAS
                                                    COUNTY OF MEDINA, OHIO
        Appellant                                   CASE No.   10-CR-0583

                                  DECISION AND JOURNAL ENTRY

Dated: July 23, 2012



        DICKINSON, Judge.

                                            INTRODUCTION

        {¶1}     Steven Keresztesi Jr. went to meet some representatives of the Hells Angels to

discuss his motorcycle club’s desire to wear its club insignia while riding motorcycles in

northeast Ohio. He testified that one of the Hells Angels members, Scott Stage, punched him,

then struck him over the head with something metal, causing a cut that required stiches and left a

permanent indentation on his forehead. A jury convicted Mr. Stage of felonious assault, and he

has appealed. This Court affirms because the conviction was supported by sufficient evidence

and was not against the manifest weight of the evidence, Mr. Stage was not prejudiced by the

admission of a 911 recording, and his lawyer was not ineffective.

                                            BACKGROUND

        {¶2}     On September 3, 2010, Mr. Keresztesi made arrangements to meet with some

representatives of the Hells Angels of Cleveland at the Rockne’s restaurant on State Route 18 at
                                                2


Interstate 71. He called his friend Victor Latori and asked him to meet him at Rockne’s as well.

Mr. Keresztesi testified that he did not know who to expect at the meeting, but that someone

from the Hells Angels was going to be there to discuss whether members of the Coffin Cheaters

would be permitted to display their insignia while riding motorcycles in the northeast Ohio area.

Mr. Keresztesi testified that the members of the Coffin Cheaters Motorcycle Club had not

publically worn the group’s insignia for many years. According to Mr. Keresztesi, when his club

started wearing the insignia again in the summer of 2010, he received several calls from

unnamed people warning him that he must discuss the issue with the Hells Angels.               Mr.

Keresztesi testified that, as he understood the rules of motorcycle clubs in this area, other clubs

cannot display a club insignia without paying a fee to the local Hells Angels. Mr. Keresztesi

agreed to meet with representatives of the Hells Angels to explain that the Coffin Cheaters were

not the type of motorcycle club that should have to pay the fee.

       {¶3}    Although Mr. Keresztesi and Mr. Latori are members of the Coffin Cheaters

Motorcycle Club, they both drove cars to Rockne’s that evening. Mr. Keresztesi testified that he

and Mr. Latori approached three men standing in an adjacent parking lot near three Harley

Davidson motorcycles. According to Mr. Keresztesi, as he approached, he realized that he had

met two of the men before.       Scott Stage and Justin Seliskar both shook hands with Mr.

Keresztesi, and he introduced them to Mr. Latori. Mr. Keresztesi did not know the third biker,

and that man did not join the conversation.

       {¶4}    According to Mr. Keresztesi, he began explaining to Mr. Stage that the Coffin

Cheaters are not like other motorcycle clubs because its members are just old men riding with

their kids in Medina, Wayne, and Holmes Counties. Mr. Stage then asked Mr. Keresztesi a

question and, while Mr. Keresztesi was looking away, Mr. Stage “sucker punched” him in the
                                                 3


eye. Mr. Keresztesi said that he “rocked back and forth” and covered his eyes with his hands.

When he moved his hands, he saw Mr. Stage reach into his jacket and pull something out. Mr.

Stage then slammed the object into the top of Mr. Keresztesi’s head as Mr. Keresztesi tried to

turn away. Mr. Keresztesi was not sure what the object was, but he thought it was made of

metal. Mr. Keresztesi testified that “[i]t thumped” “like hitting the side of a big garbage can.”

He said that Mr. Stage told him that if he caught him displaying the Coffin Cheaters patch he

would kill him. Then Mr. Stage and the other bikers drove away, and Mr. Keresztesi and Mr.

Latori went back to their cars and called 911.

                                         SUFFICIENCY

       {¶5}    Mr. Stage’s first assignment of error is that there was insufficient evidence to find

him guilty of felonious assault because Mr. Keresztesi did not suffer serious physical harm.

Whether a conviction is supported by sufficient evidence is a question of law that this Court

reviews de novo. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997); State v. West, 9th Dist.

No. 04CA008554, 2005–Ohio–990, ¶ 33. We must determine whether, viewing the evidence in

a light most favorable to the prosecution, it could have convinced the average finder of fact of his

guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, paragraph two of the

syllabus (1991).

       {¶6}    Under Section 2903.11(A)(1) of the Ohio Revised Code, “[n]o person shall

knowingly . . . [c]ause serious physical harm to another . . . .” “Serious physical harm” is

defined as “[a]ny physical harm that involves some permanent disfigurement or that involves

some temporary, serious disfigurement” or “[a]ny physical harm that involves acute pain of such

duration as to result in substantial suffering or that involves any degree of prolonged or

intractable pain.” R.C. 2901.01(A)(5)(d), (e).
                                                4


       {¶7}    Francisco Ortiz, the physician’s assistant who treated Mr. Keresztesi at the

hospital on the night of the incident, testified that Mr. Keresztesi arrived by ambulance and

presented with bruising and swelling on his right cheek and a three-centimeter laceration on his

forehead. Mr. Ortiz closed the laceration with 11 stiches and ordered a head CT, but Mr.

Keresztesi refused the test. Mr. Keresztesi testified that his right eye had swelled shut after the

incident and when it opened again, he had a “floater” in his vision “like a big snowflake.” He

also testified that the injury still caused him headaches at the time of trial and the cut to his

forehead left a permanent indentation, which he showed to the jury. As there was evidence of

“some permanent disfigurement,” there was sufficient evidence to support a conviction for

felonious assault. R.C. 2901.01(A)(5)(d). Mr. Stage’s first assignment of error is overruled.

                          MANIFEST WEIGHT OF THE EVIDENCE

       {¶8}    Mr. Stage’s fourth assignment of error is that his conviction is against the

manifest weight of the evidence. If a defendant argues that his conviction is against the manifest

weight of the evidence, this Court “must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses and determine whether, in resolving

conflicts in the evidence, the trier of fact 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.

Otten, 33 Ohio App. 3d 339, 340 (9th Dist. 1986).

       {¶9}    Mr. Stage has argued that the jury could not have reasonably believed that Mr.

Keresztesi suffered a prolonged and intractable injury as a result of this incident. In relation to

this assignment of error, he has made no mention of whether the jury could have reasonably

believed that Mr. Keresztesi suffered any permanent disfigurement.
                                                  5


       {¶10} Mr. Keresztesi testified that he had a “floater” in his eye that was caused by the

punch, but later testified that such a thing could be caused by his age. He also testified that he

suffers from headaches as a result of the incident with Mr. Stage. Mr. Stage has pointed out that

no doctor testified about the injury or any lasting effects of it, Mr. Keresztesi refused to submit to

the CT scan ordered by the physician’s assistant on the day of the incident, and he did not

produce any receipts or other evidence of additional treatment. His argument is essentially that

the only evidence of serious physical harm came from Mr. Keresztesi, whose testimony was

“fraught with inconsistencies” about the background of the meeting at Rockne’s and the history

of some animosity between him and the Hells Angels of Cleveland. Mr. Keresztesi’s testimony

was not “fraught with inconsistencies” and there was objective evidence of some permanent

disfigurement. This is not the rare case in which the jury has clearly lost its way and created a

manifest miscarriage of justice requiring a new trial. The jury did not lose its way in determining

that Mr. Stage knowingly caused serious physical harm to Mr. Keresztesi. Mr. Stage’s fourth

assignment of error is overruled.

                                      THE 911 RECORDING

       {¶11} Mr. Stage’s second assignment of error is that the trial court incorrectly admitted

a recording of a call Mr. Latori placed to a 911 operator following the alleged attack. The trial

court determined the recording was admissible under the excited utterance exception to the

hearsay rule. Mr. Stage has argued that the content of the 911 recording was not an excited

utterance under Rule 803(2) of the Ohio Rules of Evidence because it was the result of reflective

thought and, because Mr. Latori did not testify at trial, it contained testimonial statements in

violation of Crawford v. Washington, 541 U.S. 36 (2004).
                                                6


       {¶12} “‘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). Under Evidence Rule 802, hearsay is generally inadmissible unless it falls within a

recognized exception. Under Evidence Rule 803(2), 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.” Exited utterances “are not excluded by the

hearsay rule, even though the declarant is available as a witness.” Evid. R. 803.

       {¶13} Mr. Stage’s argument is not clear, but seems to be limited to challenging the

amount of time that passed between the startling event and the contested statements. Although

he has argued that the recorded statements cannot be admissible as excited utterances because

they were the result of reflective thought, he has not pointed to any evidence in the record

indicating how much time passed between the alleged attack and the 911 call. The evidence

suggests, however, that Mr. Latori placed the call within moments of the incident. During the

call, he asked for an ambulance and explained that they were trying to put pressure on the

wound, but they were having trouble controlling the bleeding from his friend’s head. Given the

caller’s tone of voice and the statements about not being able to stop the bleeding, the evidence

supports the trial court’s finding that the recorded statements were made while Mr. Latori was

still in a state of nervous excitement created by observing a startling event. To the extent that

Mr. Stage’s second assignment of error addresses hearsay, it is overruled.

       {¶14} Mr. Stage has also challenged the admission of the 911 recording based on the

fact that Mr. Latori did not testify at trial. The Confrontation Clause prohibits out-of-court

testimonial statements “unless [the witness] was unavailable to testify, and the defendant had had

a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 54 (2004). In
                                                7


Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court described testimonial versus non-

testimonial statements. The Court held that “[s]tatements are nontestimonial when made in the

course of police interrogation under circumstances objectively indicating that the primary

purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They

are testimonial when the circumstances objectively indicate that there is no such ongoing

emergency, and that the primary purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution.” Id. at 822. In Davis, the Supreme Court

wrote that “the initial interrogation conducted in connection with a 911 call, is ordinarily not

designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current

circumstances requiring police assistance.” Id. at 827.

       {¶15} More recently, in Michigan v. Bryant, ___ U.S. ___, 131 S. Ct. 1143, 1156

(2011), the Supreme Court explained that, “when a court must determine whether the

Confrontation Clause bars the admission of a statement at trial, it should determine the ‘primary

purpose of the interrogation’ by objectively evaluating the statements and actions of the parties

to the encounter, in light of the circumstances in which the interrogation occurs.” Id. at 1162.

The Court also explained that “the existence and duration of an emergency depend on the type

and scope of danger posed to the victim, the police, and the public.” Id.

       {¶16} Mr. Stage has broadly challenged the entire recording rather than objecting to the

admission of certain statements he believes are testimonial. An objective review of the recording

indicates that the primary purpose of the call was to address an ongoing emergency. Mr. Latori

asked the dispatcher to send an ambulance because they had been attacked by Hells Angels and

needed help. He explained that his friend had a significant wound to his head and that they could

not stop the bleeding.
                                                 8


         {¶17} The statements are non-testimonial as the circumstances indicate they were aimed

at helping the dispatcher address an ongoing medical emergency. As the call continued, the

dispatcher asked additional questions about the attackers. Mr. Latori told her that there were

three of them, he did not know who they were, they had left the scene, and he did not know

which direction they went.        These questions and responses were objectively aimed at

determining whether the physical threat continued for these victims, the police, or the public at

large.    Therefore, Mr. Latori’s statements are non-testimonial and do not violate the

Confrontation Clause. Mr. Stage’s second assignment of error is overruled.

                          INEFFECTIVE ASSISTANCE OF COUNSEL

         {¶18} Mr. Stage’s third assignment of error is that his lawyer was ineffective for failing

to object to an improper question by the prosecutor. To establish that his lawyer was ineffective,

Mr. Stage “must show (1) deficient performance by counsel, i.e., performance falling below an

objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability

that, but for counsel’s errors, the proceeding’s result would have been different.” State v. Hale,

119 Ohio St. 3d 118, 2008–Ohio–3426, ¶ 204 (citing Strickland v. Washington, 466 U.S. 668,

687–88, 694 (1984); State v. Bradley, 42 Ohio St. 3d 136, paragraph two of the syllabus (1989)).

“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. “An error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Id. at 691.

         {¶19} Mr. Ortiz testified that, while he was treating Mr. Keresztesi on the night of the

incident, Mr. Keresztesi told him that the gash in his head was caused by someone hitting him

with a metal object. The State asked Mr. Ortiz whether he believed what Mr. Keresztesi told
                                                  9


him, and Mr. Ortiz answered affirmatively. Mr. Stage’s lawyer did not object to the question

about whether Mr. Ortiz believed Mr. Keresztesi. Mr. Stage has argued that he was deprived of

the effective assistance of counsel because of his lawyer’s failure to object to that question. He

has argued that allowing Mr. Ortiz to vouch for Mr. Keresztesi’s credibility encouraged the jury

to believe Mr. Keresztesi’s other testimony about the permanence of his injuries.

       {¶20} Mr. Keresztesi’s credibility on that point was bolstered because he was not the

only witness who testified that his attacker used some kind of weapon. Brian Kenney, an

eyewitness who did not know any of the men involved in the altercation, testified that he saw one

of the bikers repeatedly striking Mr. Keresztesi. He testified that he heard someone yell “[d]on’t

fly that shit” then saw one of the bikers “[come] up from behind one of the men and hit him in

the head repeatedly with something.” Although he could not see what was in the biker’s hand,

Mr. Kenney testified that “it looked like he had something in his hand and the way that he was

swinging his fist at the person, it looked like he had something in his hand that was hitting

someone.” Mr. Kenney then demonstrated the swinging motion for the jury. Holly Hofstetter, a

woman who was with Mr. Kenney, also testified. Although she did not see a weapon, she

testified that she saw the man hit Mr. Keresztesi and that it did not sound like a normal punch,

but instead made a very loud sound when it struck his head. There is nothing in the record to

suggest that the result of Mr. Stage’s trial would have been different if the jury had not heard Mr.

Ortiz testify that he believed his patient’s statement about the cause of his head wound. Mr.

Stage’s third assignment of error is overruled.

                                         CONCLUSION

       {¶21} Mr. Stage’s first and fourth assignments of error are overruled because his

conviction is supported by sufficient evidence and is not against the manifest weight of the
                                                10


evidence.   His second assignment of error is overruled because the trial court properly

determined that the recording of Mr. Latori’s 911 call was admissible under the excited utterance

exception to the hearsay rule and it contained no testimonial statements. His third assignment of

error is overruled because his lawyer was not ineffective. The judgment of the Medina County

Common Pleas Court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT


WHITMORE, P. J.
MOORE, J.
CONCUR.
                                        11



APPEARANCES:

DAVID L. DOUGHTEN, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
Attorney, for Appellee.
