[Cite as State v. Butts, 2012-Ohio-571.]



                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      HOCKING COUNTY

STATE OF OHIO,                                    :      Case No. 11CA22
                                                  :
        Plaintiff-Appellee,                       :
                                                  :      DECISION AND
        v.                                        :      JUDGMENT ENTRY
                                                  :
THOMAS R. BUTTS,                                  :
                                                  :
                                                  :      RELEASED 02/07/12

     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Benjamin E. Fickel, Logan, Ohio, for appellant.

Robert L. Lilley, Law Director, Logan, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     Thomas Butts appeals his conviction for domestic violence claiming that

the trial court violated his Sixth Amendment right of confrontation by admitting out-of-

court statements made by the victim. Because there was no ongoing emergency and

the victim’s statements were made as part of an investigation into past criminal conduct,

the hearsay statements were testimonial evidence. And because the declarant was

never subject to cross-examination, we agree that Butts’ constitutional rights were

violated. Thus, we reverse his conviction.

                                           I. FACTS

        {¶2}     After suffering a seizure, Thomas Butts was hospitalized. Following a

telephone call with his girlfriend, Kendra Cain, he left the hospital without being

discharged and went to her house where an incident between the two occurred. As a
Hocking App. 11CA22                                                                         2

result, Butts was charged with domestic violence and his case proceeded to a bench

trial.

         {¶3}   The record shows that Cain was subpoenaed by the prosecution;

however, she did not appear at trial. So, the state called Officer Mingus as its only

witness. Mingus testified that on the date in question the Logan Police Department

received a complaint that a man was walking down the street in a hospital gown.

Before the officers could respond to that call, they received a second phone call

indicating that a female was locked in a bedroom and a male was trying to force his way

into the room. Mingus stated that he and another officer responded to the calls. When

he arrived at the scene he found Butts sitting on the couch to his left and Cain was

standing to his right. He stated that they were separated by the other officer but were

still “bickering back and forth.” Mingus indicated that Butts had EKG pads on his chest

and also had marks on his face. He testified that Butts told him that he and his girlfriend

had a misunderstanding.

         {¶4}   Mingus also testified that he spoke with Cain. He testified that Cain was

“extremely upset” at Butts “saying that he was threatening her.” The defense objected

to Mingus’ testimony as hearsay. The trial court overruled the objection, finding that the

statement was an excited utterance. Mingus stated that it took him a “few minutes” to

arrive at the scene and he began speaking with Cain immediately upon his arrival. He

testified that she was “upset, agitated, angry, [and] scared.” Again over the defense’s

hearsay objection, Mingus testified that Cain told him that Butts called her demanding

that she come to the hospital. When she refused, she said he left the hospital and

came to her house. Mingus further testified that Cain told him after Butts arrived, “he

said he was going to beat her to a pulp and he was going to send his son to apparently
Hocking App. 11CA22                                                                        3

to take care of business.” Again Butts noted his objection. Then, the state asked

Mingus based on his training and experience, if he believed this statement caused Cain

to fear for her physical safety. He responded, “it certainly appeared that way.” Mingus

also stated that Butts denied “he did anything wrong.”

      {¶5}   The trial court found Butts guilty of domestic violence in violation of the

City of Logan Codified Ordinance 135.16(C) and sentenced him to thirty days in jail,

with fifteen days suspended. This appeal followed.

                            II. ASSIGNMENTS OF ERROR

      {¶6}   Butts presents five assignments of error for our review:

      {¶7}   1. “THE TRIAL COURT COMMITTED REVERSABLE [SIC] ERROR AND

ABUSED ITS DISCRETION WHEN IT ADMITTED THE HEARSAY STATEMENTS OF

THE ALLEGED VICTIM UNDER THE EXCITED UTTERANCE EXCEPTION (EVID.R.

803(2)) TO THE RULE AGAINST HEARSAY (EVID.R. 802).”

      {¶8}   2. “THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS UNDER

THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND SECTION

10, ARTICLE I, OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT

ADMITTED HEARSAY EVIDENCE MADE BY A DECLARANT WHO WAS NOT

AVAILABLE FOR CROSS-EXAMINATION.”

      {¶9}   3. “THE TRIAL COURT COMMITTED REVERSABLE [SIC] ERROR TO

THE PREJUDICE OF THE APPELLANT WHEN IT RENDERED A DECISION BASED

UPON INSUFFICIENT EVIDENCE.”

      {¶10} 4. “THE TRIAL COURT COMMITTED REVERSABLE [SIC] ERROR TO

THE PREJUDICE OF THE APPELLANT WHEN IT RENDERED A DECISION

CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.”
Hocking App. 11CA22                                                                         4

       {¶11} 5. “THE CUMULATIVE EFFECT OF ERRORS IN THE TRIAL COURT

DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.”

                III. SIXTH AMENDMENT RIGHT TO CONFRONTATION

                                    A. Legal Standard

       {¶12} Because it is dispositive, we proceed with an analysis of Butts’ second

assignment of error, which raises a constitutional challenge to his conviction.

Challenges concerning the scope and effect of constitutional protections, such as the

Sixth Amendment, involve issues of law. See State v. Knauff, 4th Dist. No. 10CA900,

2011-Ohio-2725, at ¶48. Accordingly, we apply a de novo standard of review to alleged

violations of a criminal defendant’s Sixth Amendment right to confrontation. State v.

Osman, 4th Dist. No. 09CA36, 2011-Ohio-4626, at ¶78.

       {¶13} “The Sixth Amendment’s Confrontation Clause provides that, ‘[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.’ * * * [T]his bedrock procedural guarantee applies to both federal

and state prosecutions.” Crawford v. Washington (2004), 541 U.S. 36, 42, 124 S.Ct.

1354, 158 L.Ed.2d 177. “Section 10, Article I [of the Ohio Constitution] provides no

greater right of confrontation than the Sixth Amendment * * * .” State v. Self (1990), 56

Ohio St.3d 73, 79, 564 N.E.2d 446. Thus, we will frame our review of Butts’ argument

in terms of the federal constitutional right of confrontation. See Knauff, supra.

       {¶14} In Crawford, the United States Supreme Court held that testimonial out-of-

court statements violate a defendant’s rights under the Confrontation Clause unless the

witness is unavailable and the defendant had a prior opportunity to cross-examine the

witness. Crawford, supra, 541 U.S. at 68. Although the Court failed to comprehensively

define testimonial hearsay, it indicated that statements made under circumstances that
Hocking App. 11CA22                                                                            5

would lead an objective witness to reasonably believe they would be available for use at

a later trial, including interrogations by law enforcement, fall squarely within that class.

Id. at 52-53.

       {¶15} Subsequently in Davis v. Washington, (2006), 547 U.S. 813, 822, 126

S.Ct. 2266, 165 L.Ed.2d 224, the Court considered which police “interrogations” are

considered testimonial. The Court held that statements made during the course of

police interrogations are nontestimonial “under circumstances objectively indicating that

the primary purpose of the interrogation is to enable police assistance to meet an

ongoing emergency.” Id. at 822. Conversely, statements “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. The Court clarified that “[w]hen we said in

Crawford * * * that ‘interrogations by law enforcement officers fall squarely within [the]

class’ of testimonial hearsay, we had immediately in mind * * * interrogations solely

directed at establishing the facts of a past crime, in order to identify (or provide evidence

to convict) the perpetrator. The product of such interrogation, whether reduced to a

writing signed by the declarant or embedded in the memory * * * of the interrogating

officer, is testimonial.” Id. at 826.

       {¶16} The facts of Davis revealed the victim called 911 during a domestic

dispute with her boyfriend. When the police arrived at the victim’s residence, her

boyfriend had already left and was later charged with violating a domestic no-contact

order. At trial, the victim did not appear to testify; therefore, to prove Davis caused her

injuries, the prosecution played the victim’s taped 911 phone call.
Hocking App. 11CA22                                                                        6

          {¶17} Distinguishing the case from Crawford, the Court found the victim called

911 during an ongoing emergency, and the 911 operator’s primary purpose for

questioning her was to allow for police assistance. Furthermore, the victim described

the events to the 911 operator as they happened, rather than simply as an explanation

of past events. The testimonial statements in Crawford, however, involved police

interrogation focused on past events that no longer involved an ongoing emergency.

For these reasons the Davis Court found that that the victim’s statements to the 911

operator were nontestimonial and thus did not violate the defendant’s confrontation

rights.

          {¶18} The facts of Hammon v. Indiana, 547 U.S. 813, 126 S.Ct. 2266, 165

L.Ed.2d 224, are similar to our case. In Hammon, which was decided in conjunction

with Davis, the police responded to a report of a domestic dispute at the victim’s home

where they observed evidence of a physical argument. After separate questioning, the

victim admitted that her husband hit her. At trial, the wife did not testify against her

husband; however, the responding officer testified and repeated the statements she

made to him concerning the incident.

          {¶19} The Hammon Court concluded that the wife’s statements were testimonial

because it was clear from the circumstances that her interrogation was part of an

investigation into possibly criminal conduct. Id. at 829. Further, there was no

emergency in progress, she told the police when they arrived that things were fine, and

the officer questioning her was seeking to determine not what was happening but what

had happened. Id. The Court concluded that when objectively viewed, the sole

purpose of the investigation was to investigate a possible crime. Id.
Hocking App. 11CA22                                                                        7

       {¶20} In our case, Butts argues that the trial court violated his right to

confrontation by allowing Officer Mingus to repeat what Cain told him. Because there

was no ongoing emergency during the police interrogation, he alleges her statements

were testimonial and subject to the Confrontation Clause. And, because Cain was

never subject to cross-examination, he contends that his Sixth Amendment right to

confrontation was violated. The state concedes that by admitting out-of-court

statements that were not subject to cross-examination, the trial court violated Butts’

Sixth Amendment rights. We agree.

       {¶21} The record shows Cain made her statements during a police interrogation.

Officer Mingus testified that he responded to Cain’s residence after the police

department received a phone call indicating that she was locked in the bedroom and a

man was trying to force his way in. However, when Mingus arrived at the home a few

minutes after the call, Butts and Cain were separated and she was no longer locked in

the bedroom. Thus, it is clear from the record that at the time of questioning Cain was

no longer in immediate danger. Moreover, Mingus explained that during his questioning

Cain described past events to him concerning the incident with Butts. Therefore, we

conclude that Cain’s statements made to Officer Mingus were testimonial because there

was no longer an ongoing emergency and the purpose of the interrogation was primarily

to establish past events that could be relevant to later criminal prosecution. As a result,

the trial court erred by allowing Mingus to repeat Cain’s statements at trial when Butts

did not have the opportunity to cross-examine her.

                                       B. Plain Error

       {¶22} A review of the record shows that Butts objected to Mingus’ testimony at

trial on the basis of hearsay only. Because Butts did not object to Mingus’ testimony on
Hocking App. 11CA22                                                                          8

the specific ground that he raises here on appeal, i.e. a violation of his constitutional

right to confrontation, we must determine whether admission of the testimony amounted

to plain error. See State v. Richardson, 4th Dist. No. 08CA3022, 2009-Ohio-923, at

¶14, 17.

       {¶23} For plain error to exist there must be a plain or obvious error that affects

“substantial rights,” which has been interpreted to mean but for the error, the outcome of

the trial clearly would have been otherwise. State v. Rinehart, 4th Dist. No. 07CA2983,

2008-Ohio-5770, at ¶18. “The defendant must demonstrate error on the record before

we will find plain error.” Id. In addition, we take notice of plain error “with the utmost

caution, under exceptional circumstances, and only to prevent a manifest miscarriage of

justice.” Id. Courts should notice plain error “only if the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.” (Internal quotation marks

omitted.) Id. After reviewing the record, it is obvious that the admission of hearsay

affected both the fairness and the outcome of the trial.

       {¶24} Butts was convicted of domestic violence in violation of Logan Codified

Ordinance 135.16(C), which states “[n]o person, by threat of force, shall knowingly

cause a family or household member to believe that the offender will cause imminent

physical harm to the family or household member.” Officer Mingus was the only witness

called by the state at Butts’ trial. He admitted that he arrived after the incident between

Cain and Butts had ended and did not witness him threaten her. Mingus could not

cross-examine his accuser because she failed to testify and he had no prior opportunity

to confront her as the Sixth Amendment demands. Without Mingus’ testimony

concerning Cain’s out-of-court statements, there was no evidence offered by the state

to support his conviction for domestic violence.
Hocking App. 11CA22                                                                    9

                                   IV. CONCLUSION

      {¶25} We conclude that allowing the testimony of Officer Mingus concerning

Cain’s statements seriously affected the fairness of the judicial proceeding and

constituted plain error. Therefore, we sustain Butts’ second assignment of error and

reverse his conviction. Butts’ remaining assignments of errors are rendered moot. See

App.R. 12(A)(1)(c).

                                                               JUDGMENT REVERSED.
Hocking App. 11CA22                                                                         10

                                    JUDGMENT ENTRY


    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Hocking
County Municipal Court carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, P.J. & Kline, J.: Concur in Judgment and Opinion.



                                            For the Court



                                            BY: ________________________
                                                William H. Harsha, Judge



                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
