[Cite as State v. Jones, 2013-Ohio-654.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




STATE OF OHIO,                                   :

        Plaintiff-Appellee,                      :      CASE NO. CA2012-04-077

                                                 :              OPINION
    - vs -                                                       2/25/2013
                                                 :

RICHARD J. JONES,                                :

        Defendant-Appellant.                     :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                           Case No. CR2011-1722



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Scott A. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Richard Jones, appeals his conviction and sentence in

the Butler County Court of Common Pleas for aggravated murder.

        {¶ 2} In May 2011, Richard Jones, Jr. moved in with his 72-year-old father, Richard

Jones, Sr. (Richard), in order to help him recover from a recent stroke and surgery. Jones

and his father had a tumultuous relationship, and the two frequently argued. On October 1,

2011, the two had another argument, with Richard accusing Jones of littering the yard with
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beer cans while "partying" with friends. The two men continued their argument at the local

Rally's drive-through restaurant, where they had gone to get food. Richard told Jones that he

was no longer welcome in the home they shared, or in his life. Jones got out of his father's

car and began walking back toward the house he shared with this father, but ultimately went

to the house of an aunt who lived nearby.

       {¶ 3} At approximately 3:00 p.m., Richard called police to report the argument, and

asked an officer to come to his home. While Jones was at his aunt's house, he called his

father, and learned that Richard had called police and an officer was at the house listening to

Richard's complaints regarding the argument and regarding Jones.

       {¶ 4} During the phone conversation with his father, Jones asked to speak to the

officer, Elizabeth Stewart. Jones asked Officer Stewart if he could come to the house in

order to retrieve his personal property. Officer Stewart permitted Jones to come to the house

in order to retrieve his belongings, and stayed there until he did so. After retrieving his

belongings, Jones went to a bar and consumed alcohol, then later purchased beer and went

to a local park where he continued to consume alcohol.

       {¶ 5} While Jones was intoxicated, he made several phone calls to Richard, and to

police dispatch regarding his assertion that Richard threatened to kill him during the 3:00

phone call before Jones spoke with Officer Stewart. Unbeknownst to Jones, the phone calls

were recorded, even when Jones was placed on a hold. During the hold, Jones can be

heard saying, "I'm gonna kill him * * * I will kill my father because I can, the prick * * * He's a

dead man * * * I'm gonna kill him * * * He needs to die * * * We'd all be better off * * *." Jones

also called Richard several times directly, and threatened his life. Richard then called police

dispatch, and over the course of multiple calls that night, indicated that Jones threatened his

life. Richard expressed his fear that Jones was going to kill him, and asked officers to check

on his house periodically throughout the night. Officer Stewart later returned to the house
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around 9:30 p.m. regarding the additional string of threatening phone calls between Jones

and Richard; however, Jones did not appear at the house, and she left after speaking with

Richard.

       {¶ 6} Sometime after 10:30 p.m., Jones returned to the house he shared with

Richard in order to retrieve a piece of mail related to his Social Security Disability benefits.

Jones did not see his father's car in the drive, and later stated that he assumed that his father

was not there. Jones was unable to unlock the back door, and instead, kicked it in in order to

gain access to the house. Once inside, Jones discovered that Richard was in the house. At

10:39 p.m., a call was placed to 911 from inside the house. The call lasted only seconds,

during which a scuffle is heard before the call ends.

       {¶ 7} According to Jones' rendition of the events once he kicked in the door, Richard

came at him with a knife and Jones pushed him out of the way using a straight-arm push to

Richard's head. Jones then went upstairs to retrieve his mail. Jones stated that once he was

upstairs, he got something to drink and sat on the couch. At that point, Richard came at

Jones with a knife in one hand and a fireplace poker in the other, and the two engaged in an

altercation. During the altercation, Jones hit his father in the head, strangled him, stabbed

him in the neck with the knife Richard supposedly wielded against Jones, and also kicked

Richard in the chest/neck/head area. Jones stated that he remembers only pulling the knife

from Richard's neck, and that he must have placed the bloody knife in the kitchen sink and

washed his hands after killing his father.

       {¶ 8} Twenty-two minutes after the brief 911 call, police dispatch sent officers to

Richard's home. At 11:00 p.m., Officer Andrew Kaylor arrived at Richard's house and noticed

movement inside the house. Officer Kaylor knocked on the door, but did not receive an

answer. Officer Kaylor's backup, Officer Shelley Meehan, saw Jones coming to the back

door near the garage, and called Officer Kaylor to the back to investigate. The officers saw
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that Jones had blood on his chin. When the officers asked Jones whose blood was on his

face, Jones told them that he "got into it" with his father and that Richard was likely dying

inside the home.

         {¶ 9} Officers Kaylor detained Jones while Officer Meehan went inside the home.

There, he found Richard dead in the living room. Officers located a shoe print on the door,

saw that the door frame was splintered, and located a broken hinge on the floor, all indicating

that Jones kicked in the door. Officers then noticed that the same shoe print was imprinted

with blood on Richard's shirt on the upper left hand side of his chest and near his face.

Jones was arrested and given his Miranda rights, and gave a 90-minute confession at the

police station.

         {¶ 10} The autopsy revealed that three types of injuries led to Richard's death, blunt

force trauma to the face and jaw, manual strangulation, and stab wounds to the neck. While

any or all of the injuries could have caused death, the corner concluded that the most likely

chain of events started with Jones striking Richard in the face, strangling him, stabbing him in

the neck, and then stomping on Richard's chest/head/neck area when Richard was near

death.

         {¶ 11} Jones was arrested and charged with aggravated murder, with the state

alleging that Jones performed the murder with prior calculation and design. Jones pled not

guilty, and later changed his plea to not-guilty by reason of insanity. The trial court ordered

an evaluation of Jones' legal sanity and competency to stand trial. Jones was found

competent to stand trial, and he withdrew his insanity plea and re-entered his not guilty plea.

The matter proceeded to a three-day jury trial. While Jones did not deny that he killed his

father, he asserted that he had not done so with any prior calculation and design. However,

the jury found Jones guilty of aggravated murder, and the trial court sentenced him to 25

years to life in prison. Jones now appeals his conviction and sentence raising the following
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assignments of error. For ease of discussion, we will combine some assignments for

analysis purposes.

        {¶ 12} Assignment of Error No. 1:

        {¶ 13} THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION FOR

AGGRAVATED MURDER.

        {¶ 14} Assignment of Error No. 2:

        {¶ 15} THE GUILTY VERDICT FOR AGGRAVATED MURDER WAS CONTRARY TO

THE MANIFEST WEIGHT OF THE EVIDENCE.

        {¶ 16} Jones argues in his first and second assignments of error that his conviction is

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

        {¶ 17} Manifest weight and sufficiency of the evidence are quantitatively and

qualitatively different legal concepts. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate

court examines the evidence in order to determine whether such evidence, if believed, would

support a conviction. State v. Wilson, 12th Dist. No. CA2006-01-007, 2007-Ohio-2298. "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. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus, superseded on other grounds.

        {¶ 18} While the test for sufficiency requires an appellate court to determine whether

the state has met its burden of production at trial, a manifest weight challenge examines the

inclination of the greater amount of credible evidence, offered at a trial, to support one side of

the issue rather than the other. Wilson, 2007-Ohio-2298.

              In determining whether a conviction is against the manifest
              weight of the evidence, the court, reviewing the entire record,
              weighs the evidence and all reasonable inferences, considers
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              the credibility of the witnesses and determines 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. Cummings, 12th Dist. No. CA2006-09-224, 2007-Ohio-4970, ¶ 12.

        {¶ 19} While appellate review includes the responsibility to consider the credibility of

witnesses and weight given to the evidence, "these issues are primarily matters for the trier of

fact to decide since the trier of fact is in the best position to judge the credibility of the

witnesses and the weight to be given the evidence." State v. Walker, 12th Dist. No. CA2006-

04-085, 2007-Ohio-911, ¶ 26. Therefore, an appellate court will overturn a conviction due to

the manifest weight of the evidence only in extraordinary circumstances to correct a manifest

miscarriage of justice, and only when the evidence presented at trial weighs heavily in favor

of acquittal. Thompkins, 78 Ohio St.3d at 387.

        {¶ 20} "Because sufficiency is required to take a case to the jury, a finding that a

conviction is supported by the weight of the evidence must necessarily include a finding of

sufficiency. Thus, a determination that a conviction is supported by the weight of the

evidence will also be dispositive of the issue of sufficiency." Wilson, 2007-Ohio-2298 at ¶ 35,

citing State v. Lombardi, 9th Dist. No. 22435, 2005-Ohio-4942, fn. 4.

        {¶ 21} Jones was charged with and convicted of aggravated murder in violation of R.C.

2903.01(A), which provides, "no person shall purposely, and with prior calculation and

design, cause the death of another or the unlawful termination of another's pregnancy."

According to R.C. 2901.22(A), "a person acts purposely when it is his specific intention to

cause a certain result * * *."

        {¶ 22} "There is no bright-line test to determine whether prior calculation and design

are present, and 'each case must be decided on a case-by-case basis.'" State v. Adams,

12th Dist. No. CA2009-11-293, 2011-Ohio-536, ¶ 23 quoting State v. Braden, 98 Ohio St.3d

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354, 2003-Ohio-1325, ¶ 61.

              Where evidence adduced at trial reveals the presence of
              sufficient time and opportunity for the planning of an act of
              homicide to constitute prior calculation, and the circumstances
              surrounding the homicide show a scheme designed to implement
              the calculated decision to kill, a finding by the trier of fact of prior
              calculation and design is justified.

Braden at ¶ 61, quoting State v. Cotton, 56 Ohio St.2d 8 (1978), paragraph three of the

syllabus.

        {¶ 23} Some factors to be considered in determining the existence of prior calculation

and design include:

              (1) whether the accused and victim knew each other, and, if so,
              whether their relationship was strained, (2) whether the accused
              gave thought or preparation to choosing a murder weapon or
              murder site, and (3) whether the act was drawn out as opposed
              to being an almost instantaneous eruption of events. A finding
              that these circumstances existed supports the conclusion that
              the crimes were committed with prior calculation and design.

Braden at ¶ 62, citing State v. Taylor, 78 Ohio St.3d 15, 19 (1997).

        {¶ 24} During trial, the jury heard evidence that Jones killed his father with prior

calculation and design. The state presented evidence that reveals the presence of sufficient

time and opportunity for the planning of the murder.             The state introduced recorded

telephone calls from Jones and Richard which demonstrated that hours before the homicide,

Jones was already planning on killing his father. The recorded phone calls indicated that

Jones, himself, stated, "I'm gonna kill him," "I will kill my father because I can, the prick," and

"He's a dead man." Jones can also be heard stating that Richard was "a dead man" and that

"he needs to die. We'd all be better off * * *." Richard's phone calls to police also indicate

that Jones called Richard multiple times in order to threaten his life, and to express Jones'

intention to kill Richard. The threats were so real to Richard that he asked police to check on

his house during the night, in fear for his life. These statements made hours before the


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incident indicate that Jones was planning his father's death hours before the murder actually

occurred.

         {¶ 25} The jury also heard evidence that the circumstances surrounding the homicide

show a scheme designed to implement Jones' calculated decision to kill Richard. The state

presented evidence that Jones kicked in the door to Richard's house and entered the home.

Once inside, he straight-armed and pushed Richard, and then engaged in several actions

that led to Richard's death. The coroner testified that Richard died from a combination of

injuries including blunt force trauma, manual strangulation, and stab wounds to the neck.

The jury heard evidence that Jones struck Richard in the head and that he then began

strangling his father. Jones then stabbed Richard in the neck twice, and then kicked
                                                        1
Richard's chest/neck/face area with this foot.

         {¶ 26} The coroner also testified that Richard was still alive for "a while" after the initial

attack began, as evidenced by the presence of blood in his heart and fluid in his lungs. The

coroner indicated that the likely chain of events started with Jones striking Richard on the

face, then strangling him. When Richard was near death, but still alive, Jones stabbed him

and kicked him in the chest and face area.

         {¶ 27} The distinct actions that led to Richard's death required separate thought

processes on Jones' part to first violently hit Richard in the head, then strangle him, then stab

him, then stomp on his chest, neck and face. In between each action, Jones took additional

time to contemplate his next move and decide upon the next deadly action in order to carry

out his calculated plan to kill his father. Simply stated, this was not a "spur-of-the-moment

accidental" death. See State v. Goodwin, 84 Ohio St.3d 331, 344 (1999) (finding prior




1. Richard's jaw was fractured, and the jaw bone penetrated into the oral cavity and through the skin so that his
jaw bone was sticking into his mouth. The corner concluded that there was "considerable force applied to his
jaw," and indicated that it was possible the force was consistent with being "stomped" on.
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calculation and design because the murder was not a "spur-of-the-moment accidental" death

where a robber pointed his gun at a store cashier and then decided to pull the trigger once

the cashier's hands were above his head).

         {¶ 28} Moreover, we find that the factors listed by the Ohio Supreme Court in Braden

as being indicative of prior calculation and design are also met. First, Jones and Richard

obviously knew each other, and their relationship was heavily strained. Jones presented

evidence at trial that Richard was an abusive father who had a history of violence toward

family members. The jury also heard evidence that Richard continually berated Jones for

Jones' alcohol consumption, especially on the day of the murder. The record also contains a

plethora of evidence that Jones carried an on-going and deep-seeded anger toward his
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father, and that Richard demonstrated equal contempt for his son.

         {¶ 29} Secondly, the record indicates that Jones gave thought and preparation to

choosing a murder weapon and murder site. The jury heard evidence that Jones waited until

nearly 11:00 p.m. to force entry in the house. He then hit his father, manually strangled his

father, and then used a knife to stab Richard in the neck.

         {¶ 30} Lastly and as previously discussed, the murder was drawn out as opposed to

being an almost instantaneous eruption of events. The coroner testified that Richard's death

was not instantaneous, and was instead, drawn out over a period of time, and based upon a

chain of events that included strangulation, stab wounds, and stomping.

         {¶ 31} It is readily apparent from these facts that sufficient time, reflection, and acts

were involved to establish that Jones purposely and with prior calculation and design, caused

the death of his father. Having found that Jones' conviction for aggravated murder is

supported by sufficient evidence and is not against the manifest weight of the evidence, his


2. The record contains evidence that Richard made several death threats to Jones in the past, and on at least
one occasion, ran over Jones with his car.
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first and second assignments of error are overruled.

          {¶ 32} Assignment of Error No. 3:

          {¶ 33} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND

ABUSED ITS DISCRETION IN DECLINING TO PROVIDE JURY INSTRUCTIONS, IN

VIOLATION OF HIS RIGHT TO A JURY TRIAL UNDER THE SIXTH AMENDMENT TO THE

UNITED STATES CONSTITUTION AND ARTICLE I, SECTION                            5 OF THE OHIO

CONSTITUTION.

          {¶ 34} Jones argues in his third assignment of error that the trial court erred in not

giving a jury instruction on the lesser included offense of murder, the inferior degree offense

of voluntary manslaughter, and the affirmative defense of self-defense.

          {¶ 35} We review the trial court's decision on requested jury instructions for an abuse

of discretion. State v. Gray, 12th Dist. No. CA2010-03-064, 2011-Ohio-666, ¶ 23. An abuse

of discretion connotes more than an error in law or judgment; it implies that the court's

attitude is unreasonable, arbitrary, or unconscionable. State v. Barnes, 94 Ohio St.3d 21, 23

(2002).

          {¶ 36} Regarding murder and voluntary manslaughter, "even though an offense may

be statutorily defined as a lesser included offense of another, a charge on the lesser included

offense is required only where the evidence presented at trial would reasonably support both

an acquittal on the crime charged and a conviction upon the lesser included offense." State

v. Taylor, 50 Ohio St.3d 24, 36 (1990), superseded by statute on other grounds. In making

this determination, the trial court must consider the evidence in a light most favorable to the

defendant. State v. Platt, 12th Dist. No. CA2011-08-146, 2012-Ohio-5240, ¶ 21.

          {¶ 37} When the "evidence presented at trial does not meet this test, a charge on the

lesser included (or inferior-degree) offense is not required." State v. Shane, 63 Ohio St.3d

630, 632 (1992). An instruction is not warranted simply because the defendant offers "some
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evidence" to establish the lesser included/inferior charge. Id.

       {¶ 38} Jones first requested an instruction on murder. According to R.C. 2903.02(A)

"no person shall purposely cause the death of another or the unlawful termination of

another's pregnancy." The difference between murder and aggravated murder is whether

there existed prior calculation and design. Therefore, an instruction on murder would have

been proper in this case only if the jury could reasonably have found that Jones purposely

killed Richard but did not do so with prior calculation and design.

       {¶ 39} Given our determination in Jones' first and second assignments of error that

Jones killed his father with prior calculation and design, we cannot say that the trial court

abused its discretion in denying Jones' request to instruct the jury on murder. The evidence

was clear that Jones demonstrated his intent to kill his father by making threats hours before

the killing, and that his actions on the night of the murder indicated prior calculation and

design by way of his forcing his way into the house, striking, strangling, stabbing, and

stomping his father to death. Therefore, we cannot say that the jury could have reasonably

found that Jones killed Richard, but did so without prior calculation and design.

       {¶ 40} Jones next requested a jury instruction on voluntary manslaughter. According

to R.C. 2903.03, "no person, while under the influence of sudden passion or in a sudden fit of

rage, either of which is brought on by serious provocation occasioned by the victim that is

reasonably sufficient to incite the person into using deadly force, shall knowingly cause the

death of another or the unlawful termination of another's pregnancy." According to the Ohio

Supreme Court,

              an objective standard must be applied to determine whether the
              alleged provocation is reasonably sufficient to bring on a sudden
              passion or fit of rage. That is, the provocation must be "sufficient
              to arouse the passions of an ordinary person beyond the power
              of his or her control." If this objective standard is met, the inquiry
              shifts to a subjective standard, to determine whether the
              defendant in the particular case "actually was under the influence
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               of sudden passion or in a sudden fit of rage."

State v. Mack, 82 Ohio St.3d 198, 201 (1998), quoting Shane at 634-635.

         {¶ 41} Therefore, before Jones was entitled to a jury instruction on voluntary

manslaughter, the trial court must have first determined that there was sufficient evidence to

establish that Jones acted with sudden passion or a sudden fit of rage brought on by serious

provocation from Richard that was reasonably sufficient to incite Jones into using deadly

force.

         {¶ 42} The facts deduced at trial negate the idea that Jones acted with sudden

passion or in a sudden fit of rage provoked by Richard. Instead, Jones made multiple

threatening phone calls hours before the murder, and the argument that led to the police

initially being called occurred approximately eight hours before the murder. Moreover, the

precipitating events that led to Jones' anger that day and night occurred over the course of

Jones' life, as Richard's abuse and berating behavior toward Jones began when Jones was a

child and continued throughout Jones' life.

         {¶ 43} While Richard may not have had a positive relationship with his son, there is no

indication in the record that he did anything in the moments before his death to provoke or

incite Jones into using deadly force. Any ill words spoken between father and son, whether

during their phone calls to one another on the night of the murder or during a life-long

abusive relationship, do not rise to the level of sufficient provocation where Jones had

sufficient time to "cool off" before, during, and after he walked to Richard's house that night.

See Mack at 201(finding that "past incidents or verbal threats do not satisfy the test for

reasonably sufficient provocation when there is sufficient time for cooling off").

         {¶ 44} Moreover, even if Richard did or said something to incite Jones upon Jones

entering the house, Jones had sufficient time to cool off before he killed his father. By his

own testimony, Jones stated that once he straight-armed Richard and knocked his father
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down, he went upstairs, got something to drink, and sat on the couch. This time period was

sufficient to allow Jones to reflect upon the moment and take an action other than killing

Richard. However, Jones chose to hit his father, then strangle him, then stab him, then kick

him. As the occurrences were not instantaneous, there were moments before and during the

violent assaults where Jones could have stopped and abandoned his attempt to kill his

father. However, Jones did not abandon that attempt, and instead, continued through three

different processes in order to obtain his ultimate goal: the death of his father. Based on the

evidence deduced at trial, Jones could not meet the objective or subjective standards set

forth by the Ohio Supreme Court, and a voluntary manslaughter instruction was not

warranted.

        {¶ 45} Regarding self-defense, the burden of going forward with evidence of self-

defense and the burden of proving self-defense by a preponderance of the evidence is upon

the accused. R.C. 2901.05(A); State v. Palmer, 80 Ohio St.3d 543, 563 (1997).

               To establish self-defense in a case where a defendant used
               deadly force, the defendant must prove: (1) he was not at fault in
               creating the situation giving rise to the affray; (2) he had a bona
               fide belief he was in imminent danger of death or great bodily
               harm and that his only means of escape from such danger was
               the use of deadly force; and (3) he did not violate any duty to
               retreat or avoid the danger.

Gray, 2011-Ohio-666 at ¶ 43, citing State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph

two of the syllabus. If a defendant fails to prove any one of these elements, he has failed to

demonstrate he acted in self-defense. State v. Voss, 12th Dist. No. CA2006-11-132, 2008-

Ohio-3889, ¶ 54.

        {¶ 46} The trial court did not abuse its discretion in refusing to give the jury an

instruction on self-defense. Instead, the evidence elicited at trial indicated that Jones was at

fault for creating the situation giving rise to the affray in that he purposefully went to Richard's

house that night. Although the door was locked from the inside, clearly indicating Richard's
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intention to keep Jones out of the house, Jones kicked in the door to gain access to the

house.

         {¶ 47} Nor did Jones have a bona fide belief that he was in imminent danger of death

or great body harm if he did not use deadly force against Richard. The record is clear that

Richard was a 72-year-old man who had recently returned home from a multi-month stay at

the hospital after surgery and a stroke. Richard's weight had dropped to 175 pounds by the

time of his death, whereas Jones stood 6'8" and weighed 260 pounds. Jones' own testimony

revealed that he had been able to straight-arm Richard with ease and knock Richard aside as

soon as Jones entered the house. Even if Richard had been holding a knife or fireplace

poker as indicated by Jones, pushing his father aside demonstrates that Jones was able to

easily overcome Richard without resorting to deadly force. The evidence also showed that

Jones was not in any fear for his life, as he went upstairs, got a drink, and sat on the couch

while Richard recovered from the downstairs push and joined Jones on the main level of the

house. Had Jones feared for his life, it would be reasonable to assume that he would call

police or flee the house rather than sitting on the couch with a beverage.

         {¶ 48} Jones failed to demonstrate that he acted in self-defense on the night he killed

his father, and the trial court did not abuse its discretion in not instructing the jury on self-

defense. Having found that Jones was not entitled to jury instructions on murder, voluntary

manslaughter, or self-defense, Jones' third assignment of error is overruled.

         {¶ 49} Assignment of Error No. 4:

         {¶ 50} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN THE

ADMISSION OF PREJUDICIAL HEARSAY EVIDENCE.

         {¶ 51} Assignment of Error No. 5:

         {¶ 52} APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL,

IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
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STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION,

WHICH DENIAL RESULTED IN PREJUDICE.

         {¶ 53} Jones argues in this fourth assignment of error that the trial court erred by

admitting inadmissible hearsay evidence during the trial, thereby violating his right to confront

the witnesses against him. Jones argues in his fifth assignment of error that his trial counsel

was ineffective for possibly failing to object to the admission of the hearsay evidence.

         {¶ 54} "It is well-established that the admission or exclusion of evidence rests within

the sound discretion of the trial court." State v. Gray, 12th Dist. No. CA2011-09-176, 2012-

Ohio-4769, ¶ 25, citing In re Bays, 12th Dist. No. CA2003-02-026, 2004-Ohio-915, ¶ 7.

Absent an abuse of discretion, an appellate court will not disturb a trial court's ruling as to the

admissibility of evidence. State v. Issa, 93 Ohio St.3d 49, 64 (2001).

         {¶ 55} According to Evid.R. 801(C), 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." Hearsay is not admissible unless it falls within one of the permissible

hearsay exceptions. Evid.R. 802. Evid.R. 803(1)-(23) sets forth hearsay exceptions, some

of which the trial court relied upon when admitting the evidence at trial.

         {¶ 56} Jones argues that the trial court erred by permitting the jury to listen to

recordings of Richard's calls to police on the day of the murder, as well as his own calls to

police because those calls include statements from employees of the police department

dispatch, all of which constituted hearsay. Jones' trial counsel raised pertinent objections to

the admission of such evidence, so that Jones did not waive this issue on appeal.

Accordingly, we will employ an abuse of discretion standard, and also overrule any argument

that Jones' trial counsel was deficient for having failed to preserve for appeal the hearsay

issue.

         {¶ 57} As previously stated, the state played several phone calls from both Richard
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and Jones discussing the threats that Jones made against his father. Specifically, the jury

heard calls from Richard in which he relayed his fear that Jones was going to kill him based

on Jones' threats throughout the day. In one call, recorded at 8:53 p.m., Richard told

dispatch that Jones had threatened his life several times that day, and "I'm scared to go to

sleep * * * I may not wake up." At several times, Richard asks police dispatch to hold while

he takes a call from Jones on the other line. Richard would then relay to dispatch that Jones

had just threatened to kill him again. For example, in one call recorded at 9:15 p.m., Richard

told dispatch, "he just called me and said I'm a dead man * * * he said he's on his way over to

kill me right now."

        {¶ 58} The trial court found, and we agree, that these calls fall under multiple

exceptions to the hearsay rule. Specifically, and according to Evid.R. 803,

              (1) Present sense impression. 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.

              (2) Excited utterance. 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.

              (3) Then existing, mental, emotional, or physical condition. A
              statement of the declarant's then existing state of mind, emotion,
              sensation, or physical condition (such as intent, plan, motive,
              design, mental feeling, pain, and bodily health), but not including
              a statement of memory or belief to prove the fact remembered or
              believed unless it relates to the execution, revocation,
              identification, or terms of declarant's will.

        {¶ 59} We find that the trial court properly admitted the phone calls as Richard's

present sense impressions, since his statements were describing or explaining an event or

condition made while Richard was either perceiving the event or condition, or immediately

thereafter. Richard first described the fight between himself and Jones in the first phone call

to police, including the fact that they had gone to Rally's for food and had argued over Jones'


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alcohol consumption. The first phone call occurred within minutes of the argument, and there

was no indication whatsoever that Richard's description and explanation lacked any

trustworthiness. The first call describing the argument would also be admissible as Richard's

then mental condition, as it described that Richard was fearful and feeling apprehension at

the time he made the phone call. See State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-4931

(permitting testimony that the victim was fearful and apprehensive where such testimony

referred to the present rather than the past).

       {¶ 60} The other phone calls regarding Richard's fear that Jones was going to kill him

would also qualify as present sense impressions because he was describing to police the

phone calls that occurred between himself and Jones. Richard and Jones would talk on the

phone, Jones would threaten to kill Richard, and Richard would immediately call police to

report the threat. In fact, some of Richard's statements were made to police with Jones on

the phone's other line. Richard's statements would also qualify as his then mental condition,

as the calls described his fear and apprehension that Jones was going to kill him.

       {¶ 61} We would also qualify Richard's calls relating Jones' threats as excited

utterances. Richard's calls to dispatch related to a startling event or condition, mainly the

death threats, made while Richard was under the stress caused by the death threats. "To be

admissible under Evid.R. 803(2) as an excited utterance, a statement must concern 'some

occurrence startling enough to produce a nervous excitement in the declarant '* * * and must

be made 'before there had been time for such nervous excitement to lose a domination over

his reflective faculties.'" State v. Huertas, 51 Ohio St.3d 22, 31 (1990), quoting Potter v.

Baker, 162 Ohio St. 488 (1955) paragraph two of the syllabus.

       {¶ 62} As previously stated, Richard's phone calls occurred momentarily after, or even

contemporaneous with, Jones' calls in which he threated to kill his father. This court has

listened to the phone calls and finds that Richard was under the stress caused by the death
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threats when he was speaking with dispatch. It is certainly reasonable that a 72-year-old

man would have been placed in a state of nervous excitement after hearing multiple death

threats from his son, especially given the fact that Richard believed the threats to be true as

evidenced by his request that police drive by his house throughout the night.

        {¶ 63} Jones also argues that the calls contained inadmissible evidence of alleged

prior bad acts. Specifically, Richard makes reference to Jones hitting him with a telephone

antenna days after he was released from the hospital, and refers to a time when Jones was

arrested. However, the very brief mention by Richard of these events during the phone calls

was not admitted by the state for the purpose of proving action in conformity therewith on a

particular occasion, as is contemplated within Evid.R. 404. Moreover, any reference to Jones

possibly hitting Richard, or having been arrested in the past, were harmless because

evidence of the toxic relationship between father and son permeated the trial, and any

reference to alleged prior bad acts did not lead to the jury's verdict where the evidence was

overwhelming that Jones committed the murder with prior calculation and design. State v.

Rose, 12th Dist. No. CA2011-11-214, 2012-Ohio-5607.

        {¶ 64} Jones next argues that the trial court erred in admitting his calls to the police,

during which he makes threats to Richard's life. During the phone calls, employees of police

dispatch can be heard telling Jones not to call dispatch again and to "sober up." However,

these statements by police dispatch employees are not hearsay because they were not being

offered to prove the truth of the matter, i.e., whether Jones was intoxicated during the hours

preceding Richard's death. Jones readily admitted to drinking alcohol that day, and the state

was not trying to prove that he was intoxicated when he made the phone calls to dispatch.

Therefore, the statements made by police dispatch employees were not hearsay within the

meaning of Evid.R. 801(C).

        {¶ 65} Jones also argues that his Sixth Amendment right to confront the witnesses
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against him was violated because the trial court admitted the recordings without his being

able to cross-examine Richard. During trial, and over Jones' vigorous objections, the trial

court admitted several of the phone calls, but also found a few tracks inadmissible based on

their testimonial nature. We find no abuse of discretion in the trial court's decision to admit

the phone calls as it did.

        {¶ 66} The Sixth Amendment to the United States Constitution preserves the right of a

criminal defendant "to be confronted with the witnesses against him." Therefore, the

Confrontation Clause bars "admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct.

1354 (2004). "The key issue is what constitutes a testimonial statement: 'It is the testimonial

character of the statement that separates it from other hearsay that, while subject to

traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.'"

State v. Hood, Slip Opinion No. 2012-Ohio-6208, ¶ 33, quoting Davis v. Washington, 547

U.S. 813, 821, 126 S.Ct. 2266 (2006).

        {¶ 67} The United States Supreme Court has not defined what constitutes a

"testimonial" statement, but it has given examples of "formulations" for testimonial statements

such as:

              all ex parte in-court testimony or its functional equivalent;
              extrajudicial statements contained in formalized testimonial
              materials (e.g., affidavits, depositions, prior testimony,
              confessions); and a class of statements that are made under
              circumstances which would lead an objective witness reasonably
              to believe that the statement would be available for use at a later
              trial.

        {¶ 68} State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, ¶ 60, citing Crawford at 51-

52. In determining whether statements implicate Confrontation Clause analysis, courts are to

view them objectively and should focus on the expectation of the declarant at the time of
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making the statement. State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, ¶ 22. "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." Michigan v. Bryant, __U.S. __, 131 S.Ct. 1143, 1162 (2011).

        {¶ 69} After reviewing the record, we find that Richard's statements during his phone

calls to police were not testimonial in nature. The statements were not made in the context

of in-court testimony or its equivalent. There is no suggestion that they were elicited as part

of a police investigation, offered in a sworn statement with intention of preserving the

statement for trial, or they were a pretext or façade for state action as is discussed by the

court in Muttart, 2007-Ohio-5267 at ¶ 61. Instead, Richard made the phone calls to elicit

police assistance to meet an ongoing emergency.

        {¶ 70} The United States Supreme Court has held that, "statements 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." Davis v. Washington, 547 U.S. 813, 822, 126 S.

Ct. 2266 (2006). In so holding, the court reasoned that a call to police reporting an

emergency situation "is ordinarily not designed primarily to 'establish or prove' some past

fact, but to describe current circumstances requiring police assistance. * * * No 'witness'

goes into court to proclaim an emergency and seek help." Id. at 827-828.

        {¶ 71} The Court further explained this reasoning in Michigan v. Bryant, 131 S.Ct. at

1157:

              As our recent Confrontation Clause cases have explained, the
              existence of an "ongoing emergency" at the time of an encounter
              between an individual and the police is among the most
              important circumstances informing the "primary purpose" of an
              interrogation. The existence of an ongoing emergency is relevant
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              to determining the primary purpose of the interrogation because
              an emergency focuses the participants on something other than
              "prov[ing] past events potentially relevant to later criminal
              prosecution." Rather, it focuses them on "end[ing] a threatening
              situation." Implicit in Davis is the idea that because the prospect
              of fabrication in statements given for the primary purpose of
              resolving that emergency is presumably significantly diminished,
              the Confrontation Clause does not require such statements to be
              subject to the crucible of cross-examination.

              This logic is not unlike that justifying the excited utterance
              exception in hearsay law. Statements "relating to a startling
              event or condition made while the declarant was under the stress
              of excitement caused by the event or condition," are considered
              reliable because the declarant, in the excitement, presumably
              cannot form a falsehood. * * * An ongoing emergency has a
              similar effect of focusing an individual's attention on responding
              to the emergency.

(Internal citations and footnote omitted.)

        {¶ 72} The record is clear that Richard made his phone calls in an effort to secure

police assistance because of his bona fide belief that Jones was going to kill him. While

Jones argues that the calls were not seeking emergency assistance because there was not

an emergency in progress and there was no immediate threat, we disagree. Each time

Richard called police, it was either immediately after or, sometimes during, the time that

Jones was threatening his life.

        {¶ 73} During the first call, Richard stated his desire to have police come to his house

because of the argument that had occurred at Rally's, and because of his fear of Jones.

Richard specifically asked that Jones not be arrested because he feared that Jones would

come to his house during the middle of the night and vandalize his car. Richard also stated

that Jones, "right now he's walking this way," and that "he's on his way walking toward my

house." During the second call, Richard stated that he was calling again "because my son is

threatening to kill me" and that "my son's been calling me up threatening me * * * what should

I do about that?" The third call was deemed not admissible. The fourth call was made after


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Jones called and threatened Richard's life again. Richard asked police to drive by his house

during the night, and also stated that he was "scared to go to sleep" because of Jones

statement that he "may not wake up," which Richard told police he believed was a threat on

his life. Richard specifically stated that he called police because of his fear and that "I don't

know what else to do." In the fifth call, Richard tells dispatch that Jones "just called" and told

Richard that he was a "dead man." Richard then described Jones to dispatch and stated that

Jones was "on foot" walking around, so that police could be looking for Jones and stop him

before he harmed Richard. Richard also stated, "he's keeping me from going to sleep"

because of the threats and his fear that he would not live through the night. In the sixth call,

Richard told police dispatch that Jones had called again, and "I think I can tell you where he

might be at," indicating where Jones was known to stay. The seventh, and final call,

contained no words, only sounds of the scuffle.

        {¶ 74} In each of the first six calls, Richard is asking the police for help and protection

and providing them with information regarding Jones' threats so that police could respond

accordingly. Richard was not trying to prove past events potentially relevant to a later

criminal prosecution of Jones, but was focusing his statements on ending the threatening

situation of Jones' death threats. In fact, Richard specifically asked police not to arrest Jones

because he feared Jones' retribution. Therefore, it is abundantly clear that Richard was not

anticipating that his statement would be used to support any future criminal prosecution of

Jones, but rather was seeking police help to ensure his safety throughout the night.

        {¶ 75} As previously mentioned, the trial court listened to the phone calls and

determined that the admissible calls were non-testimonial in nature, whereas the portions of

the calls that relayed details not necessary to help with the ongoing emergency were

testimonial in nature and therefore inadmissible. The trial court's analysis was well-reasoned

and comports with the precedent set forth by the United States and Ohio Supreme Courts

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regarding proper Confrontation Clause jurisprudence.

       {¶ 76} Having found that the trial court did not abuse its discretion in admitting the

evidence, and that Jones did not receive ineffective assistance of counsel, Jones' fourth and

fifth assignments of error are overruled.

       {¶ 77} Judgment affirmed.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




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