[Cite as State v. Beasley, 2019-Ohio-1901.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   Appellate Case No. 28016
                                                    :
 v.                                                 :   Trial Court Case No. 2016-CRB-321W
                                                    :
 TIMOTHY BEASLEY                                    :   (Criminal Appeal from
                                                    :   Municipal Court)
          Defendant-Appellant                       :
                                                    :

                                               ...........

                                              OPINION

                              Rendered on the 17th day of May, 2019.

                                               ...........

RONALD C. LEWIS, Atty. Reg. No. 0061980, 101 N. Detroit Street, Xenia, OH 45385
    Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409
    Attorney for Defendant-Appellant

                                              .............

DONOVAN, J.
                                                                                            -2-


       {¶ 1} This matter is before the Court on Timothy Beasley’s May 30, 2018 Notice

of Appeal. Beasley appeals from his conviction in the Municipal Court of Montgomery

County following a bench trial. The municipal court found Beasley guilty of unlawful

restraint, in violation of R.C. 2905.03(A), a misdemeanor of the third degree; domestic

violence, in violation of R.C. 2919.25(A), a misdemeanor of the first degree; endangering

children, in violation of R.C. 2919.22(A), a misdemeanor of the first degree; and

obstructing official business, in violation of R.C. 2921.31, a misdemeanor of the second

degree.   On the offenses of domestic violence and endangering children, the court

imposed 180 days in jail, a fine of $100 (suspended), and court costs; the jail sentences

were to be served concurrently. On the offenses of unlawful restraint and obstructing

official business, the court imposed court costs only.

       {¶ 2} The offenses occurred on December 27, 2015. Beasley was charged by

way of four complaints on March 11, 2016. He entered pleas of not guilty to all charges

and was tried on June 22, 2016.

       {¶ 3} Officer Nicholas Millner of the Trotwood Police Department testified that, on

December 27, 2015, he responded to an address on Natchez Avenue on a report of

domestic violence; the “call log” in his cruiser indicated that the 911 call about the incident

had been made by a small child. He stated that, upon arrival, he knocked loudly on the

front door of the home but got no response. Millner testified that he “peeked in” the front

door window and “could barely see a shadow of someone in the house walking around.”

Millner stated that, in “a nice tone,” he advised the occupant of the house that “it’s

Trotwood Police,” and “Please come to the door.” After failing to get a response, Millner

called for backup. Millner stated that, while waiting for help to arrive, he walked around
                                                                                        -3-


the house knocking on windows, with no response.

      {¶ 4} Millner testified that Officer Matthew Hogan and Sergeant Brandon Holbrook

arrived and that Holbrook took charge of the scene. Millner stated that, when the officers

eventually made entry into the home, Beasley “was walking down the hallway with a small

child out in front of him” and, as Beasley did so, “an adult female came running past him.”

Millner testified that the officers repeatedly ordered Beasley to put the child down.

Millner stated that he had his Taser pointed at Beasley, and that Beasley was ultimately

arrested and taken to jail. Millner testified that, when he asked Beasley why he refused

to answer the door, Beasley said, “because he thought he had warrants.”

      {¶ 5} On cross-examination, Millner testified that it was dark when he arrived at

the home, there were no lights around the home, and he “could briefly see a shadow * * *

of an adult possibly, maybe walking around” inside the home. Millner testified that the

“door was kicked down” to gain entry into the home. Millner stated that the child Beasley

held was “a little baby.” He stated that Beasley moved slowly, and that he ultimately put

the child in the child’s bed. On redirect examination, Millner stated that he was outside

the home constantly knocking and yelling for the occupants to come to the door for 10 to

15 minutes before officers gained entry to the home.

      {¶ 6} Officer Matthew Hogan testified “dispatch informed us [they] heard

screaming and yelling in the background” on the 911 call, and the caller reported that

“mom and dad are arguing with each other.” Hogan stated that he responded to the

home with Sergeant Holbrook, and that he went to the rear of the home for security

purposes in case someone tried to flee. Hogan stated that he identified myself in the

back of the house and observed someone in the back room. “There was someone laying
                                                                                       -4-


on a bed. I could see a male in a lighter colored t-shirt walking around. Nothing in his

hands but * * * his fists were balled up.”       Hogan could hear Sergeant Holbrook

announcing himself at the front door, and Hogan stated that the occupants of the house

“knew [the police] were there.” Hogan testified that “at least 20 minutes” elapsed while

Holbrook tried to make contact with the occupants, during which time Officers White and

Buddo also arrived, and that “finally the decision was made to go inside.” Hogan testified

that, after Beasley was secured, he and Millner escorted Beasley to a cruiser. On cross-

examination, Hogan stated that “there were lights on in the house coming from the hallway

and I could see someone in the room as illuminated by the hallway” light.

      {¶ 7} Officer Matthew Buddo testified that, when he responded to the Natchez

Avenue address, the officers already present were knocking on the door and announcing

themselves as “Trotwood Police.” Holbrook advised Buddo that the officers “had to

check on the welfare of everybody inside” and might “have to force entry.”         Buddo

testified that the officers “rotated after a couple chances to get in the front door. And

then it went to me and the door came open after about three kicks.”

      {¶ 8} Buddo stated that he and Millner entered the home first, and that his weapon

was “at high ready.” He stated that he observed Beasley “at the very end of the hallway

holding a baby directly in front of him.” Beasley was 20 to 25 feet away from Buddo and

“standing at the doorway of the bedroom at the end of the hallway facing the front of the

house.”   Buddo testified that he repeatedly ordered Beasley to put the child down;

Beasley was “screaming,” but Buddo could not make out what he was saying. Buddo

stated that Beasley eventually walked toward him and said something about placing the

child in the pack-n-play, which Beasley did. Buddo testified that Beasley was holding the
                                                                                         -5-


child “under the arms tightly against his body” and “directly in front of his person.” Buddo

testified that Beasley was detained after he put the child down. On cross- examination,

Buddo testified that the period of time between when officers entered the home and when

Beasley was detained “wasn’t significant.”

       {¶ 9} Officer Eric White of the Trotwood Police Department testified that his

cruiser was “either last or second to the last car at the scene.” Upon arrival, he went to

the front door and prepared to assist in the forced entry, which other officers had already

decided to do. White testified that, once inside, he observed Beasley holding the baby

“in front of his body as a shield”; Beasley began “slowly walking toward the officers” while

carrying the child in front of him, and asking questions like, “what’s going on or what, you

know, what’s this about?” White testified that the officers instructed Beasley to put the

baby down and come toward them, and that there was nothing preventing Beasley from

putting the child down before he reached the officers.

       {¶ 10} White testified that a woman, Andrea, and several additional children were

present in the home; Andrea came from behind Beasley, “moving rather quickly” toward

the officers, and Officer Hogan took “control of her” and set her on the couch. According

to White, the photographs identified as State’s Exhibit 3 depicted Andrea’s neck at that

time, and the following exchange occurred:

       Q [BY PROSECUTOR]. And why did you photograph her neck?

       A [BY WHITE]. It appeared that she had injuries to her neck. You got the

       red markings on the right side of her neck, which we figured was going to

       be consistent with a possible assault that may have taken place.

       Q. * * * And are those injuries fresh injuries?
                                                                                       -6-


      A. Yes, they appeared to be.

             [DEFENSE COUNSEL]: Objection.

             THE COURT: Overruled.

      BY [PROSECUTOR]:

      Q. And did you have a conversation with her about that?

      A. Yes, I did.

      Q. And what did she tell you?

             [DEFENSE COUNSEL]: Objection.

             THE COURT: Grounds?

             [DEFENSE COUNSEL]: Hearsay.

             THE COURT: Response?

             [PROSECUTOR]: She’s reporting injuries of a crime at this point.

             THE COURT: Okay, I’ll allow it.

             MR. WHITE: She said that - - that she and the Defendant had a - -

      had a verbal altercation where they ended up pushing each other and that

      she believed that she sustained the injuries while she was being pushed by

      the Defendant.

             BY [PROSECUTOR]:

      Q. * * * Now, you’re interviewing her.

             Did you do anything else with regard to Mr. Beasley at that point?

      A. I interviewed her after Mr. Beasley was already in custody.

      {¶ 11} On cross-examination, White testified that Andrea did not provide a written

statement. White testified that, after the officers gave several commands to put the child
                                                                                          -7-


down, Beasley said he “was going to put him in the crib.” According to White, it “took

him longer than I thought [it] would.” White testified that there was “a risk to the child in

that he was holding it in front of him,” and it would have been “preferable” that Beasley

“put the child down right away.”

       {¶ 12} The following exchange occurred:

              Q [DEFENSE COUNSEL]. * * * And [Andrea] thought she had a

       warrant?

              A [WHITE]. There was a mention of one of the two thinking that the

       other had a warrant * * *

              Q. And [in your] report itself you said that [Andrea] said she had a

       warrant - - thought she had a warrant?

              A. She may have said that she thought she had a warrant. She

       did not.

              Q. Okay.

              A. But then she later said that Mr. Beasley wouldn’t let her answer

       the door.

              Q. Did Mr. Beasley have a warrant?

              A. No, he didn’t.

       {¶ 13} Finally, Sergeant Brandon Holbrook testified for the State. He stated that

he was called out on a “9-1-1 call initially placed by what dispatch described as a young

male voice on the telephone,” and that person reported that Timothy Beasley was

“beating up his mother.” Holbrook testified that Officer Millner had called him personally

and asked him to respond to the scene. Holbrook stated that he and Hogan left the
                                                                                           -8-


police department at the same time to respond, and that Millner was the only one at the

scene when they arrived. Holbrook stated that Millner indicated that he “had heard

something inside or seen some motion inside that led him to believe that there were

subjects inside that were not coming to the door.”

       {¶ 14} Holbrook testified that he performed “kind of a check around the house” to

see if there were any windows that the officers could peer into, because “oftentimes

someone will be held against their will to * * * prevent being found * * * in hopes that we’re

going to go away.” Holbrook testified that he observed someone move the blinds in the

southwest corner of the house, but that he could not ascertain if the person was a child

or an adult, male or female.

       {¶ 15} Holbrook testified that he returned to the front door and, in looking through

the window he observed a male figure with a “stockier build” at the end of the hallway.

Holbrook stated that the subject was “pacing” back and forth, and that his “hands were in

a fist-type motion or manner * * * at least part of the time” that he was pacing. Holbrook

testified that the officers’ commands “were very, very, loud,” and that they stated several

times that they were not leaving until they made contact with someone in the house.

Holbrook called for more backup and planned to enter the home. Holbrook testified that,

upon entry, officers were in the living room of the home and each of them had “either a

firearm or a less lethal option,” such as a Taser, “drawn and at the ready[,] pointed down

the hallway in the event that a potential suspect, armed suspect was to come down the

hallway.”

       {¶ 16} Holbrook testified that he observed Beasley holding the baby and that the

baby “was not being cradled.” He stated that the baby was “facing outward towards the
                                                                                          -9-


officers.” He testified over objection that the baby “would’ve been a barricade between

the officers and that subject more like a shield type situation in case the officers tried to

deploy a [T]aser * * * .” Holbrook stated that the fact that the child was being held “as a

shield” and that the person was not obeying the officers commands affected their

response to the situation.     According to Holbrook, 30-45 seconds elapsed before

Beasley began to move, and he was “in no hurry”; Beasley continued to hold the baby in

front of him as he moved slowly down the hallway. Holbrook interpreted this behavior as

Beasley’s trying to avoid contact with the officers and to avoid being taken into custody.

       {¶ 17} Holbrook testified that he did not know Beasley or his relationship to the

baby, how many other people were in the home, or whether there were weapons to which

Beasley might be able to gain access. “[A]t that point everybody in the house in my

opinion is in some sort of danger because this person is clearly not listening to us. He’s

not doing what the officers are telling him to.” Holbrook testified that there was no reason

that Beasley could not have placed the child on the floor at any time. Beasley eventually

placed the child in a crib or pack-n-play in the living room where the officers were

assembled, and then he was detained.

       {¶ 18} Holbrook further testified that, while Beasley was proceeding down the

hallway, an adult female emerged “from the same bedroom” that Beasley had been in

and out of while officers were looking in the house; she passed Beasley and “was listening

to commands” and “doing what she was told to do.” He learned that the adult female

was the baby’s mother, and he observed injuries on her neck. Holbrook stated that he

also found three juvenile females and two juvenile males in the home.

       {¶ 19} On cross-examination, the following exchange occurred:
                                                                                           -10-


              Q [DEFENSE COUNSEL]. * * * You initially said when you went out

       there you thought that someone might have been held against their will,

       correct?

              A [HOLBROOK]. Yes, sir.

              Q. That wasn’t the case though was it?

              A. It could’ve been.

              Q. * * * No one was held against their will were they?

              A. If you’re asking me if the child that was being drug down the

       hallway * * * being held like this, * * * I would not say that was of the child’s

       best interest.

              I would say that the other kids based on * * * the actions of the * * *

       individual moving back and forth between the bedroom[s].             They were

       children. I believe those children were instructed not to answer the door or

       not to move.

       {¶ 20} At the conclusion of the State’s evidence, Beasley moved for an acquittal,

and the court denied the motion.

       {¶ 21} Beasley testified in his own defense. He stated that, on December 27,

2015, he did not reside at the Natchez address but was “over there quite a lot” to visit his

son with Andrea. Beasley stated that his son was about six months old on December

27, 2015. On that date, Beasley stated that he brought his daughters to Andrea’s house,

and that her children were there too. He testified that “it was just a regular chill day. We

was just having family time enjoying our Christmas.” He stated that he, Andrea, and their

baby were “laying in the bed * * * and the door got kicked in.” He stated that he did not
                                                                                          -11-


know why the police were there, and that he “instantly” grabbed his son, because the bed

was “about four feet off the floor” and he did not want his son to fall off. Beasley testified

that the police started telling me to “drop the baby. Drop the baby like it was a gun or

something.” Beasley stated that he told the officers that he was “about to put [the baby]

in his bed,” because he “wasn’t about to just put [his] son on the floor when his bed is

right there.”

       {¶ 22} On cross-examination, Beasley denied that Andrea had showed officers

injuries on her neck and had alleged that he caused them. He stated that neither of them

knew “why the police was even there.” He stated that he did not hear the police until

after they had started kicking the door, when they were “hollering and screaming outside.”

Beasley testified that he and Andrea had had a verbal argument earlier in the day.

       {¶ 23} On November 2, 2016, the trial court found Beasley guilty of domestic

violence, endangering children, obstructing official business, and unlawful restraint. The

court ordered a presentence investigation.

       {¶ 24} Sentencing occurred on May 1, 2018.1 At that time, counsel for Beasley

moved for a stay of execution. The following exchange occurred:

                [DEFENSE COUNSEL]: * * * My understanding is the complaining

       witness didn’t appear for the trial. He has questioned about whether or not

       the evidence was sufficient for the conviction on the domestic violence and

       unlawful restraint.

                THE COURT: We’re not here for that today.



1
  The unusual delay between the trial and sentencing was attributable to Beasley’s failure
to appear for sentencing, whereupon a warrant was issued for his arrest.
                                                                                          -12-


                [DEFENSE COUNSEL]: Right. Well, but I’m saying these are - -

       these are the issues that bring me to the request for the stay of execution

       of sentence.

       {¶ 25} Counsel also filed a written motion for a stay in the trial court. The court

denied the stay, noting that “[t]his case has been around since 2015. He’s been at large

for some period of time, did not cooperate with the presentence investigation, and has a

violent felony history.” As stated above, the trial court sentenced Beasley to 180 days in

jail, a fine of $100 (suspended), and court costs on the offenses of domestic violence and

endangering children; the jail sentences were to be served concurrently. It imposed court

costs only on the offenses of unlawful restraint and obstructing official business.

       {¶ 26} Beasley raises two assignment of error on appeal. We note that the State

did not file a responsive brief but rather “respectfully asked the Court to base its decision

on the trial court’s record and the brief” filed by Beasley. Beasley’s first assignment of

error is as follows:

                THE TRIAL COURT VIOLATED BEASLEY’S CONSTITUTIONAL

       RIGHT TO CONFRONTATION BY ALLOWING OFFICERS TO GIVE

       HEARSAY TESTIMONY ABOUT WHAT THE ALLEGED VICTIM HAD

       TOLD THEM.

       {¶ 27}    In his first assignment of error, Beasley asserts that his convictions for

domestic violence and unlawful restraint should be reversed because he did not have the

opportunity to confront his accuser, Andrea; instead, her claims were presented through

hearsay. He directs our attention to State v. Byrd, 160 Ohio App.3d 538, 2005-Ohio-

1902, 828 N.E.2d 133 (2d Dist.). He argues as follows:
                                                                                          -13-


              Here, Beasley (like Byrd) was convicted off the testimony of an officer

       who relayed what Andrea * * * had told him, to wit: the injuries were caused

       by an altercation with Beasley and Beasley did not let her answer the door

       when police arrived. These statements were made to Officer White at the

       house shortly after Beasley was arrested. Beasley did not have a chance

       to cross-examine Andrea regarding her statements. A reasonable person

       would anticipate that these statements would be used against him in an

       investigation and prosecution. As a result, Beasley’s constitutional right to

       confrontation was denied and he was prejudiced by it.

       {¶ 28} 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). Hearsay is generally not admissible, except as provided by the

U.S. or Ohio Constitutions, by statute or court rule. Evid.R. 802. We review a trial court's

evidentiary rulings for an abuse of discretion, provided an objection is made at trial. State

v. Cunningham, 2d Dist. Clark No. 11CA 0032, 2012-Ohio-2333, ¶ 22.

       {¶ 29} We have previously noted:

              The Sixth Amendment's Confrontation Clause provides, “In all

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

       with the witnesses against him.” “The United States Supreme Court has

       held that the right to confrontation is violated when an out-of-court statement

       that is testimonial in nature is admitted into evidence without the

       defendant[’]s having had the opportunity to cross-examine the declarant.

       Crawford [v. Washington], 541 U .S. 36, 68.” State v. Syx, 190 Ohio App.3d
                                                                                     -14-

845, 2010-Ohio-5880, 944 N.E.2d 722, ¶ 23 (2d Dist.). The Crawford court

stated that “the core class of testimonial statements includes statements

‘that were made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use

at a later trial.’ Id. at 52.” Syx at ¶ 23.

       “Despite the importance of this right, a violation of the Confrontation

Clause can be harmless if ‘it is clear beyond reasonable doubt that the

admission of these hearsay statements did not prejudice’ the defendant.”

Matter of Umoh, 2d Dist. Montgomery No. 16912, 1998 WL 737983 (Oct.

23, 1998). The factors to be considered in determining if error is harmless

include “ ‘the importance of the witness' testimony in the prosecution's case,

whether the testimony was cumulative, the presence or absence of

evidence corroborating or contradicting the testimony of the witness on

material points, the extent of cross-examination otherwise permitted, and,

of course, the overall strength of the prosecution's case.’ (Citation omitted).”

Id.

       In Crawford, the defendant's wife, exercising her marital privilege, did

not testify at his trial. Id., 541 U.S. 36. Before trial, however, the defendant's

wife described the stabbing her husband was charged with in a tape-

recorded statement to police. Id. The recorded statement conflicted with the

defendant's claim that the stabbing was self-defense. Id. The defendant

argued that his wife's statement was not only inadmissible hearsay, but also

violated his Sixth Amendment right of confrontation. Id. The district court
                                                                                         -15-


      determined that the statement, though hearsay, was reliable and

      trustworthy, and allowed it into evidence. Id. The defendant was

      subsequently convicted. Id.

             On appeal, the U.S. Supreme Court analyzed the reliability of the

      wife's testimonial hearsay statement under the Confrontation Clause. The

      Crawford court concluded that “where testimonial statements are at issue,

      the only indicium of reliability sufficient to satisfy constitutional demands is

      the one the Constitution actually prescribes: confrontation.” Id. at 68-69.

      Thus, the Crawford court found that because the wife's taped statement was

      testimonial, its admission during the defendant's trial violated his

      constitutional right to confrontation. Id.

State v. Ali, 2d Dist. Clark No. 2014 CA 59, 2015-Ohio-1472, ¶ 14-17.

      {¶ 30} In Byrd, 160 Ohio App.3d 538, 2005-Ohio-1902, 828 N.E.2d 133, this Court

held that the incriminating statements made by Donald Byrd’s girlfriend to police during

their investigation of the scene of an assault were testimonial in nature and should not

have been admitted. Id. at ¶ 24. This Court concluded that Byrd was “entirely correct in

asserting that a reasonable person would anticipate that the alleged statements made by

[the girlfriend] would be used against him in an investigation and prosecution. In allowing

[the officer] to testify as to those statements, Byrd was denied the right to face his

accusers.” Id.

      {¶ 31} Regarding the domestic violence offense, Beasley’s counsel objected to

White’s testimony regarding his “conversation” with Andrea about her injuries having been

caused by Beasley. As in Byrd, we conclude that Andrea’s statements to White were
                                                                                          -16-


testimonial in nature, and the trial court abused its discretion in overruling Beasley’s

objection thereto. We conclude, however, that the admission of this testimony did not

prejudice Beasley, given the additional, admissible evidence of domestic violence against

him, as discussed below in our analysis of Beasley’s second assignment of error.

       {¶ 32} Regarding the unlawful restraint offense, Beasley directs our attention to

White’s cross-examination by counsel for Beasley as set forth above, in the course of

which White volunteered, while no question was pending, that Andrea “later said that Mr.

Beasley wouldn’t let her answer the door.” The proper mechanism to challenge such

unsolicited testimony is an objection thereto or a motion to strike, and not a Confrontation

Clause argument on appeal.

       {¶ 33} Furthermore, we presume that the trial court only considered appropriate

evidence, since it is well-settled that in a bench trial, “ ‘a judge is presumed to consider

only the relevant, material and competent evidence in arriving at a judgment, unless the

contrary affirmatively appears from the record.’ State v. Eubank, 60 Ohio St.2d 183, 187,

398 N.E.2d 567 (1979), citing State v. White, 15 Ohio St.2d 146, 151, 239 N.E.2d 65

(1968).” State v. Allen, 2d Dist. Montgomery No. 27750, 2018-Ohio-3393, ¶ 20. As with

Beasley’s domestic violence conviction, we will further analyze Beasley’s unlawful

restraint conviction in our analysis of his second assignment of error.

       {¶ 34} In the absence of prejudice as to Beasley’s domestic violence conviction,

and presuming the trial court only considered material and competent evidence in finding

Beasley guilty of unlawful restraint, Beasley’s first assignment of error is overruled.

       {¶ 35} Beasley’s second assignment or error is as follows:

              BEASLEY’S CONVICTIONS WERE AGAINST THE MANIFEST
                                                                                          -17-


       WEIGHT OF THE EVIDENCE AND NOT SUPPORTED BY SUFFICIENT

       EVIDENCE.

       {¶ 36} According to Beasley, “[r]eviewing the record as a whole, the evidence

weighs heavily against a conviction, and the trial court lost its way in choosing to believe

the State’s witnesses.” Beasley asserts that, beyond White’s “hearsay evidence there

was no evidence presented to support either the domestic violence or unlawful restraint

verdicts” and that, even with the hearsay testimony, the unlawful restraint verdict was

unsupported and against the manifest weight of the evidence, because there was no

evidence that Beasley restrained Andrea’s liberty.

       {¶ 37} Regarding his obstructing official business conviction, Beasley asserts that

he testified that he did not hear officers knock, and there was no testimony that officers

saw Beasley inside, that Beasley saw officers and ignored them, or that the officers said

anything other than “yelling their presence.” Beasley asserts that there was no testimony

that the officers announced “why they were there, what ‘duty’ they were trying to perform

or what their purpose was.”        Beasley asserts that, upon the officers’ entry, he was

observed “within seconds in the hallway with his child,” and that he made no furtive

movements and cooperated with police; he did not resist arrest. “There was no testimony

that Beasley purposefully prevented, obstructed, delayed, hampered or impeded the

officers[’] duties or entrance.”

       {¶ 38} Finally, regarding his conviction for endangering children, Beasley asserts

that, “faced with 5 officers in his dark house with three small children present,” he “likely

went into protection mode.” He points to the officers’ testimony that he “did not try to

avoid them and complied as he placed the child in a crib (albeit slowly).” According to
                                                                                         -18-


Beasley, “the alleged substantial risk to the health and safety of his son was officers with

guns trying to arrest” him, rather than his own behavior.        Beasley asserts that he

“struggles to see how [his] having hold of his child upon officer[s’] abrupt entry (kicking

the door down at night) was his creation of a substantial risk to his son.”

       {¶ 39} This Court has previously noted:

              A sufficiency of the evidence argument disputes whether the State

       has presented adequate evidence on each element of the offense to sustain

       the verdict as a matter of law. State v. Wilson, 2d Dist. Montgomery No.

       22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380,

       386, 678 N.E.2d 541 (1997). “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, 574 N.E.2d 492

       (1991), paragraph two of the syllabus.

              In contrast, an argument based on the weight of the evidence

       “challenges the believability of the evidence and asks which of the

       competing inferences suggested by the evidence is more believable or

       persuasive.” Wilson at ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328,

       2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“ ‘manifest weight of the evidence’

       refers to a greater amount of credible evidence and relates to persuasion”).

       When evaluating whether a conviction is against the manifest weight of the

       evidence, the appellate court must review the entire record, weigh the

       evidence and all reasonable inferences, consider witness credibility, and
                                                                                         -19-


       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.” Thompkins at 387,

       citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

       Dist.1983).

               Because the trier of fact sees and hears the witnesses at trial, we

       must defer to the factfinder's decisions whether, and to what extent, to credit

       the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery

       No. 16288, 1997 WL 476684 (Aug. 22, 1997). * * *. The fact that the

       evidence is subject to different interpretations does not render the

       conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

       judgment of conviction should be reversed as being against the manifest

       weight of the evidence only in exceptional circumstances. Martin at 175.

State v. Johnson, 2d Dist. Montgomery No. 26961, 2017-Ohio-5498, ¶ 14-16.

       {¶ 40} R.C. 2919.25(A) proscribes domestic violence as follows: “No person shall

knowingly cause or attempt to cause physical harm to a family or household member.”

Pursuant to R.C. 2919.25(F)(1)(b), a “family or household member” includes: “[t]he

natural parent of any child of whom the offender is the other natural parent.” “ ‘Physical

harm to persons’ means any injury, illness or other psychological impairment, regardless

of its gravity or duration.”

       {¶ 41} The record reflects that Beasley was specifically identified as Andrea’s

assailant. Holbrook testified that he responded to a “9-1-1 call initially placed by what

dispatch described as a young male voice on the telephone that stated that the person in
                                                                                       -20-

the residence by the name of Timothy Beasley was beating up his mother.” (Emphasis

added.) As this Court has noted:

             Evid.R. 803(1) permits the admission of a “present sense

      impression,” which is defined as “[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.” Similarly, Evid.R. 803(2) excludes an excited utterance

      from the hearsay rule. 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.”

             The excited utterance and present sense impression exceptions to

      the definition of hearsay reflect “an assumption that statements or

      perceptions that describe events uttered during or within a short time from

      the occurrence of the event are more trustworthy than statements not

      uttered at or near the time of the event.        Moreover, the key to the

      statement's trustworthiness is the spontaneity of the statement, either

      contemporaneous with the event or immediately thereafter. By making the

      statement at the time of the event or shortly thereafter, the minimal lapse of

      time between the event and statement reflects an insufficient period to

      reflect on the event perceived—a fact which obviously detracts from the

      statement's trustworthiness.” (Internal citations omitted.) State v. Crowley,

      2d Dist. Clark No.2009 CA 65, 2009-Ohio-6689, citing State v. Travis, 165

      Ohio App.3d 626, 2006-Ohio-787, 847 N.E.2d 1237, ¶ 35 (2d Dist.).
                                                                                          -21-


              In keeping with this rationale, 911 calls are usually admissible under

       the excited utterance or the present sense impression exception to the

       hearsay rule. Ratliff v. Brannum, 2d Dist. Greene No. 2008-CA-5, 2008-

       Ohio-6732, ¶ 132 (911 calls are admissible as excited utterances), citing

       State v. Williams, 2d Dist. Montgomery No. 20368, 2005-Ohio-213, at ¶ 17;

       State v. Jackson, 2d Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143,

       ¶ 15 (911 tape was properly admissible as a present sense impression);

       Crowley. “The controlling factor is whether the declaration was made under

       such circumstances as would reasonably show that it resulted from impulse

       rather than reason and reflection.” Crowley, citing State v. Humphries, 79

       Ohio App.3d 589, 598, 607 N.E.2d 921 (12th Dist.1992). Whether a

       statement is made in response to a question from the dispatcher is relevant,

       but not determinative.

State v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 10-12.

       {¶ 42} In the course of his testimony, Beasley testified that Andrea was his baby’s

mother;   accordingly,   she    was    Beasley’s   family   member     pursuant    to   R.C.

2919.25(F)(1)(b).   Further, the trial court could have reasonably concluded that the

child’s 9-1-1 call, about which Holbrook testified without any objection, resulted from

impulse and was spontaneous, and was therefore in the nature of an excited utterance

or present sense impression. In other words, the circumstances of the call indicated its

trustworthiness. Finally, White and Holbrook observed injuries to Andrea’s neck, which

White described as fresh and consistent with an assault. Construing this evidence in a

light most favorable to the prosecution, we conclude that a rational trier of fact could have
                                                                                           -22-


concluded that Beasley knowingly caused or attempted to cause physical harm to Andrea.

Having reviewed the entire record, we cannot conclude that the trial court created a

manifest miscarriage of justice such that Beasley’s domestic violence conviction must be

reversed and a new trial ordered. We find that Beasley’s domestic violence conviction

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

       {¶ 43} R.C. 2905.03(A) proscribes unlawful restraint as follows: “No person,

without privilege to do so, shall knowingly restrain another of the other person’s liberty.”

       {¶ 44} Beasley was observed by officers pacing between rooms with balled fists,

and Hogan opined that the occupants of the home were aware of the officers’ presence,

yet no one answered the door. Holbrook testified that, in his experience, “oftentimes

someone will be held against their will to * * * prevent being found * * * in hopes that we’re

going to go away.” Millner testified that when Beasley began walking down the hall with

the baby, Andrea “came running past him,” and White further testified that Andrea came

from behind Beasley “moving rather quickly” toward the officers. Holbrook testified that

Andrea emerged from the same bedroom as Beasley and that, as she passed him, she

was listening to the officers’ commands and “doing what she was told to do.” We

conclude that the officer’s testimony about Andrea’s compliant conduct in hurrying toward

them only upon their entry into the home supported an inference that, until that time,

Beasley has restrained her liberty to come to the door while the officers were outside.

As we previously noted, Andrea’s statement to Officer White about not being allowed to

answer the door was offered without objection during cross-examination.

       {¶ 45} Construing the evidence in a light most favorable to the prosecution, we

conclude that a rational trier of fact could have found the essential elements of unlawful
                                                                                         -23-


restraint proven beyond a reasonable doubt. Further, having reviewed the entire record,

we cannot conclude that the trial court created a manifest miscarriage of justice such that

a new trial must be ordered on the offense of unlawful restraint.          In other words,

Beasley’s conviction for unlawful restraint was supported by sufficient evidence and was

not against the manifest weight of the evidence.

       {¶ 46} R.C. 2921.31(A) proscribes obstructing official business as follows: “No

person, without privilege to do so and with purpose to prevent, obstruct, or delay the

performance by a public official of any authorized act within the public official’s official

capacity, shall do any act that hampers or impedes a public official in the performance of

the public official’s lawful duties.”

       {¶ 47} As noted above, the officers herein responded to a report of domestic

violence that was made by a small child. Millner testified that he knocked loudly on the

front door and identified himself as a police officer. He stated that he observed the shadow

of someone inside walking around, and after getting no response, he walked around the

home knocking on windows. He stated that, in total, he was outside yelling for the

occupants to come to the door for 10 or 15 minutes. Hogan stated that he could hear

Holbrook announcing himself at the front door from behind the home. Holbrook testified

that “our commands were very, very loud.” Beasley told Millner that he did not answer

the door because he “thought he had warrants,” supporting Hogan’s conclusion that

Beasley was aware of the officers’ presence and commands and ignored them.

       {¶ 48} Beasley testified that he was at home “having family time enjoying our

Christmas” when the police came through the door, and that he and Andrea did not “know

why the police was even there.” Beasley testified that he did not hear the police until he
                                                                                          -24-


heard “kicks on the door.”

       {¶ 49} The trial judge clearly credited the officers’ testimony that loud, repeated

attempts, all around the house, were made to make contact with Beasley, who refused to

come to the door as ordered. We defer to the factfinders’ assessment of credibility.

Viewing the evidence in a light most favorable to the State, we conclude that any rational

trier of fact could have found the essential elements of obstructing official business proven

beyond a reasonable doubt. We further conclude that the trial court did not lose its way

or create a manifest miscarriage of justice, and that Beasley’s conviction for obstructing

official business was supported by sufficient evidence and was not against the manifest

weight of the evidence.

       {¶ 50} Finally, R.C. 2919.22(A) proscribes endangering children as follows:

              No person, who is the parent, guardian, custodian, person having

       custody or control, or person in loco parentis of a child under eighteen years

       of age or a mentally or physically handicapped child under twenty-one years

       of age, shall create a substantial risk to the health or safety of the child, by

       violating a duty of care, protection, or support. * * *

       {¶ 51} Officers Millner, Buddo, and White testified that Beasley was repeatedly

ordered to put his son down and refused to do so until he reached the living room.

Holbrook testified that there was no reason the child could not have been placed on the

floor in the hallway. Beasley did not cradle his child but instead held the baby in front of

him, facing the officers, while slowing walking in their direction while their weapons and

Taser were at “high ready.” White testified that Beasley held the child “in front of his

body as a shield,” and that “there’s a risk to the child in that he was holding it in front of
                                                                                          -25-


him” in what was ostensibly a dangerous situation. Holbrook testified that the baby

“would’ve been a barricade between the officers and that subject[,] more like a shield type

situation in case the officers tried to deploy a [T]aser.” Holbrook further testified that he

was concerned that weapons might be present and accessible to Beasley and that

Beasley might use the child “to get to a certain location to obtain another weapon.”

       {¶ 52} The trial judge clearly discredited Beasley’s testimony that he acted to

protect his child. Viewing the evidence in a light most favorable to the State, we conclude

that a rational factfinder could have concluded that Beasley violated a duty of care which

created a substantial risk to his child’s safety by approaching armed officers who had

weapons at the ready instead of complying with their repeated demands to put his baby

down. We further conclude that the trial court did not create a manifest injustice in

convicting Beasley of violating R.C. 2919.22(A). Beasley’s conviction for endangering

children was supported by sufficient evidence and was not against the manifest weight of

the evidence.

       {¶ 53} For the foregoing reasons, Beasley’s second assignment of error is

overruled.

       {¶ 54} The judgment of the trial court is affirmed.



                                      .............



FROELICH, J., and TUCKER, J., concur.
                         -26-




Copies sent to:

Ronald C. Lewis
Lucas W. Wilder
Hon. James D. Piergies
