[Cite as State v. Beauford, 2011-Ohio-5379.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

THE STATE OF OHIO,

        Plaintiff-Appellee,

v.

DAMIEN D. BEAUFORD,

        Defendant-Appellant.

JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.

Case No. 11CA6

OPINION

CHARACTER OF PROCEEDING:                       Appeal from the Richland County Court of
                                               Common Pleas Court, Case No.
                                               10-CR-497D

JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                         October 6, 2011

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JAMES J. MAYER, JR.                            DALE M. MUSILLI
PROSECUTING ATTORNEY                           105 Sturgs Avenue
RICHLAND COUNTY, OHIO                          Mansfield, Ohio 44903

BY: JILL M. COCHRAN
Assistant Richland County Prosecutor
38 South Park Street
Mansfield, Ohio 44902
Hoffman, J.


         {¶ 1} Defendant-appellant Damien D. Beauford appeals his conviction and

sentence entered by the Richland County Court of Common Pleas, on one count of

domestic violence, following a jury trial. Plaintiff-appellee is the State of Ohio.

                             STATEMENT OF THE CASE AND FACTS

         {¶ 2} On August 6, 2010, the Richland County Grand Jury indicted Appellant on

one count of domestic violence, in violation of R.C. 2919.25(A), a felony of the third

degree. The trial court scheduled the matter for jury trial on December 9, 2010.

         {¶ 3} Prior to trial, the State filed a motion in limine, seeking to prevent

Appellant from presenting testimony regarding the fact Sarah Lybarger, the victim, was

on probation as the result of a misdemeanor offense she committed against Appellant.

The State also sought to exclude the testimony of Lybarger’s probation officer. The trial

court conducted a hearing on the motion on the morning of trial. At that time, Appellant

made an oral motion to exclude the 9-1-1 calls surrounding the incident. The trial court

ruled testimony revealing Lybarger was on probation, and one of the conditions of her

probation was she was to have no contact with Appellant, was admissible. The trial

court found the testimony of Lybarger’s probation officer to be not relevant.1 The trial

court ruled the 9-1-1 calls were admissible under Evid. R. 803(1), present sense

impression.

         {¶ 4} Sarah Lybarger testified she and Appellant have a three-year old daughter

together (hereinafter referred to as “A”). They lived together for a brief time between

September, 2008, and February or March, 2009. Lybarger acknowledged she was on

1
    Appellant proffered the probation officer’s testimony at the start of his case.
probation. She explained she had been convicted of aggravated menacing in 2008, or

2009, following an incident with Appellant. As a result of the conviction, a no contact

order was issued, prohibiting Lybarger from having contact with Appellant, and

Appellant from having contact with Lybarger.

      {¶ 5} Lybarger testified on June 22, 2010, she awoke to repeated calls on her

phone from a restricted number. When she recognized one of the telephone numbers

as belonging to Appellant’s father, she answered. Appellant was on the other end of the

line. He informed her he was leaving for Indianapolis for a week and wanted to see A.

Lybarger agreed to meet Appellant at Liberty Park.

      {¶ 6} Upon their arrival at the park, Lybarger and A exited their vehicle.

Appellant exited his vehicle, gave a small item to A, and then started yelling at Lybarger

about her dating other men. Appellant grabbed Lybarger’s cell phone out of her hand.

He placed one hand on her neck, and with his free hand, scrolled Lybarger’s phone.

Appellant called a number and asked the individual who answered, “Are you f---ing my

baby mom? Are you dating my baby mom?” Lybarger was able to break away from

Appellant’s grasp. She grabbed her phone and started to run to the other side of the

park. Appellant caught Lybarger, picked her up by the neck, and slammed her on the

ground. Lybarger blacked out momentarily. She suffered injuries to her shoulder and

the back of her head.

      {¶ 7} When Lybarger came to, she noticed Appellant had moved his vehicle and

was sitting inside it with A. Lybarger approached a black woman who was using a cell

phone. Lybarger determined from the context of the woman’s conversation, she was on

the phone with 9-1-1, and provided the woman with her name. On cross-examination,
Lybarger stated she had been released from probation in June, 2009, as she had

planned on joining the National Guard. She did not believe she would be in violation of

the no contact order if she saw Appellant on the day of the incident. Following the

incident, Lybarger was returned to probation because she decided not to join the

National Guard.

       {¶ 8} Lawanda Jefferson, a 9-1-1 operator, testified she was on the 7:00 a.m. to

3:00 p.m. shift on July 22, 2010. The State played the recordings of three 9-1-1 calls

received that day. Jefferson identified her own voice as well as the voices of two other

dispatchers on duty during her shift.     Jefferson answered the first call. The caller

informed her of a fight between a boyfriend and girlfriend at Liberty Park, during which

the man slammed the woman to the ground. The caller stated a two-year old child was

involved. The caller provided Jefferson with a description of the man and his vehicle.

       {¶ 9} At approximately the same time, Jefferson’s partner, Suzanne Meister,

answered a second 9-1-1 call. The second caller informed the dispatcher a man and a

woman were having a fight at Liberty Park, and the man slammed the woman to the

ground then took the woman’s daughter. The second caller asked Lybarger for her

name, and the caller provided the information to the dispatcher. Mark Abrams, a

dispatcher who was also on duty on July 22, 2010, also answered a 9-1-1 call from

Appellant. Appellant advised Abrams he was at Liberty Park and had a no contact order

with Lybarger. Appellant indicated Lybarger was also at the park with their daughter.

When Lybarger tried to pull the child away from him, Appellant pushed her away and

she fell on the ground. Appellant stated he was just trying to leave the park.
       {¶ 10} After hearing all the evidence and deliberating, the jury found Appellant

guilty as charged. The trial court sentenced Appellant to a term of incarceration of three

years on the domestic violence conviction, and a term of incarceration of 18 months on

a probation violation for failing to maintain good behavior and failing to abide by the no

contact order with Lybarger. The trial court ordered the sentences be served

consecutively.

       {¶ 11} It is from these convictions and sentence Appellant appeals, raising the

following assignments of error:

       {¶ 12} “I. THE TRIAL COURT ERRED IN PERMITTING EVIDENCE OF THE

CONTENTS OF THE 911 CALLS CONCERNING THE JULY 10, 2010 INCIDENT.

(PRESENT SENSE IMPRESSION AND “NOT TESTIMONIAL” BUT BOTH OF THEM

USED THAT WAY BY PROCSECUTOR.                    IF NOT, THEN NOT RELEVANT TO

CHARGES, BECAUSE “NOT USED TO PROVE THE FACTS ASSERTED.” [SIC]

       {¶ 13} “II. THE TRIAL COURT ERRED IN FAILING TO PERMIT APPELLANT

TO IMPEACH THE ALLEGED VICTIM BY ELICITING EVIDENCE OF MOTIVE UNDER

EVID. R. 616(A).”

                                                 I

       {¶ 14} In his first assignment of error, Appellant maintains the trial court erred in

permitting the recordings of the 9-1-1 calls received on July 22, 2010, to be played for

the jury.   Specifically, Appellant asserts the statements contained in the calls were

testimonial, and the trial court’s admission of the evidence violated his right to confront

witnesses against him as reasoned in Crawford v. Washington (2004), 541 U.S. 36, 124

S.Ct. 1354, 158 L.Ed.2d 177.        Alternatively, Appellant argues the statements are
hearsay and should not have been admitted as present sense impressions because the

callers were unidentifiable.

       {¶ 15} Appellant did not raise the Crawford argument before the trial court. As

such, we review this portion of the assignment of error under a plain error analysis.

       {¶ 16} “Plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.” Notice of plain error is to

be taken with the utmost caution, under exceptional circumstances and only to prevent

a manifest miscarriage of justice. State v. Cooperrider (1983), 4 Ohio St.3d 226, 448

N.E.2d 452. An alleged error does not constitute plain error unless, but for the error, the

outcome of the trial clearly would have been otherwise. State v. Stojetz, 84 Ohio St.3d

452, 455, 705 N.E.2d 329, 1999–Ohio–464.

       {¶ 17} The Sixth Amendment to the United States Constitution provides: “In all

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

witnesses against him * * *.” The right of confrontation requires, whenever possible,

testimony and cross-examination to occur at trial. State v. Allen, 10th Dist. No. 82556,

2004-Ohio-3111, at ¶ 17.

       {¶ 18} In Crawford v. Washington, supra, the United States Supreme Court held

the Confrontation Clause encompasses “testimonial” as opposed to nontestimonial

evidence. Although the Court did not define “testimonial,” the Court discussed three

possible definitions of that term, which include: (1) ex parte in-court testimony or its

functional equivalent, such as affidavits and prior testimony that the defendant was

unable to cross-examine, or pretrial statements that declarants would reasonably be

expected to be used in a prosecution; (2) extra-judicial statements contained in formal
testimonial materials such as depositions, prior testimony, or confessions; and (3)

statements made under circumstances that would lead an objective witness to believe

the statement would be available for use at a later trial. Id. at 51-52.

       {¶ 19} In Davis v. Washington (2006), 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d

224, the United States Supreme Court further considered the meaning of the term

“testimonial.” The Court found the Confrontation Clause applies only to testimonial

hearsay and not to statements made “to enable police assistance to meet an ongoing

emergency.” Id. at 2277. In Davis, the victim had made a 911 emergency call, and in the

course of that call incriminated the defendant. The Supreme Court, in affirming the

lower court's admission of the statements, held:

       {¶ 20} “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. 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 prosecution.” Id. at 2273-2274.

       {¶ 21} Appellant contends Davis is distinguishable from the matter sub judice

because the individual placing the 9-1-1 call in Davis was the actual victim while the

individuals placing the 9-1-1 calls herein were anonymous witnesses. We disagree.

       {¶ 22} In the case of 9-1-1 calls, the Davis Court reasoned, the declarants are

generally “speaking about events as they [are] actually happening * * *.” (Emphasis sic.)

Id. at 2276. 9-1-1 callers are typically facing ongoing emergencies. Id. Under these

exigent circumstances, the callers are not testifying as witnesses, and their statements
do not qualify as testimonial in nature. The callers in this case were seeking help for the

victim and her daughter against a perceived physical threat. We find the fact the callers

were not the victims of a crime does not, in and of itself, change the nature of their

statements from nontestimonial to testimonial.

      {¶ 23} The statements made by the individuals calling 9-1-1 did not constitute

testimonial evidence which violated Appellant’s confrontation rights because the primary

purpose of the calls was to seek police assistance or aid during an ongoing emergency.

      {¶ 24} Accordingly, we find no error, plain or otherwise, in the trial court’s

admission of the 9-1-1 calls.

      {¶ 25} Appellant further maintains the trial court erred in admitting the 9-1-1 calls

under the present sense impression exception to the hearsay rule because the

witnesses were unidentifiable. First, under Evid. R. 803 the availability of the declarant

is not dispositive of the admissibility of present sense impressions exceptions to the

hearsay rule. Further, Appellant’s assertion a witness must be identifiable even if

unavailable is belied by the Rules of Evidence. The 1980 Staff Notes to Evid. R. 804

expressly state, “Under Rule 804(A)(5) if a witness cannot be compelled to appear or if

his residence or existence is unknown, he is unavailable.” Identity is not a requirement.

      {¶ 26} Appellant’s first assignment of error is overruled.

                                                 II

      {¶ 27} In his second assignment of error, Appellant maintains the trial court erred

in limiting his impeachment of Lybarger by evidence of motive.

      {¶ 28} “The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court.” State v. Sage (2009), 122 Ohio St.3d 297, ¶ 24. “The term
‘abuse of discretion’ connotes more than an error of law or of judgment; it implies that

the trial court's attitude was unreasonable, arbitrary, or unconscionable.” State v. Adams

(1980), 62 Ohio St.2d 151, 157 (Citations omitted).

       {¶ 29} Appellant attempted to elicit evidence from Lybarger’s probation officer to

show Lybarger had a motive for fabricating her testimony because she was fearful of

being arrested herself. The trial court excluded the evidence as not relevant.

       {¶ 30} Evid. R. 616 provides, in pertinent part:

       {¶ 31} “In addition to other methods, a witness may be impeached by any of the

following methods:

       {¶ 32} “(A) Bias

       {¶ 33} “Bias, prejudice, interest, or any motive to misrepresent may be shown to

impeach the witness either by examination of the witness or by extrinsic evidence.”

       {¶ 34} Lybarger herself testified she had been placed on probation as the result

of an aggravated menacing conviction involving Appellant. Lybarger also detailed her

understanding of her probation status at the time of the offense. The proffered testimony

of Angela Lindsey, Lybarger’s probation officer, was consistent with Lybarger’s

testimony and would have been largely cumulative. Accordingly, we find the trial court

did not abuse its discretion in limiting Appellant’s further attempts to impeach Lybarger.

       {¶ 35} Appellant’s second assignment of error is overruled.

       {¶ 36} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur
s/ William B. Hoffman
HON. WILLIAM B. HOFFMAN


s/ W. Scott Gwin
HON. W. SCOTT GWIN


s/ Patricia A. Delaney
HON. PATRICIA A. DELANEY
          IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                       FIFTH APPELLATE DISTRICT


THE STATE OF OHIO,                        :
                                          :
      Plaintiff-Appellee,                 :
                                          :
v.                                        :        JUDGMENT ENTRY
                                          :
DAMIEN D. BEAUFORD,                       :
                                          :
      Defendant-Appellant.                :        Case No. 11CA6


      For the reasons stated in our accompanying Opinion, the judgment of the

Richland County Court of Common Pleas is affirmed. Costs to Appellant




                                          s/ William B. Hoffman
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin
                                          HON. W. SCOTT GWIN


                                          s/ Patricia A. Delaney
                                          HON. PATRICIA A. DELANEY
