[Cite as State v. Knecht, 2015-Ohio-4316.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             WARREN COUNTY




STATE OF OHIO,                                     :
                                                         CASE NO. CA2015-04-037
          Plaintiff-Appellee,                      :
                                                               OPINION
                                                   :           10/19/2015
    - vs -
                                                   :

TERRY T. KNECHT,                                   :

          Defendant-Appellant.                     :



                    CRIMINAL APPEAL FROM WARREN COUNTY COURT
                                Case No. 2014CRB00876



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Droder & Miller Co., L.P.A., Jeffrey T. Kenney, 125 West Central Parkway, Cincinnati, Ohio
45202, for defendant-appellant



          S. POWELL, P.J.

          {¶ 1} Defendant-appellant, Terry T. Knecht, appeals from his conviction in the

Warren County Court for one count of domestic violence. For the reasons outlined below, we

affirm.

          {¶ 2} On October 7, 2014, a complaint was filed in the Warren County Court charging

Knecht with one count of domestic violence in violation of R.C. 2919.25(A), a first-degree
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misdemeanor. According to the complaint, the charges stemmed from allegations that

Knecht head-butted his wife, D.K., thereby causing her to suffer a black eye during an

argument at their shared business located in Hamilton Township. The trial court then issued

a domestic violence temporary protection order against Knecht naming his wife, D.K., as the

lone protected person.

       {¶ 3} Approximately three weeks later, on October 28, 2014, the trial court modified

its domestic violence protection order to allow Knecht to return to the couples' shared

residence located in Morrow after learning D.K. had moved out of the home and had rented

an apartment. The domestic violence temporary protection order was then modified for a

second time on November 25, 2014 to allow Knecht and D.K. to enter into counseling. It is

undisputed that during this time, D.K. had filed a complaint for divorce only to have withdrawn

it shortly thereafter.

       {¶ 4} On December 16, 2014, D.K. voluntarily appeared before the trial court without

counsel and requested the trial court terminate or modify the domestic violence temporary

protection order against her husband. In support of this motion, D.K. informed the trial court

that some of the statements she made to police regarding the alleged domestic violence

incident were untrue and that she should be punished. The trial court then scheduled the

matter for a hearing and advised D.K. to retain a lawyer. However, two weeks later, on

December 29, 2014, D.K., now represented by counsel, filed a notice with the trial court

withdrawing her motion to terminate or modify the trial court's domestic violence temporary

protection order. The matter was then scheduled for a bench trial on February 27, 2015.

       {¶ 5} Although issuing several subpoenas to her and to her attorney, it is undisputed

that D.K. did not appear at trial. Rather, Sergeant Terry Viel of the Hamilton Township Police

Department testified that on the evening of October 6, 2014, he and a now former

probationary officer were dispatched to the Hamilton Township business after D.K. called 9-
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1-1 to report a claim of domestic violence. Once they arrived, Sergeant Viel made contact

with D.K., the alleged victim. According to Sergeant Viel, D.K. was "irate, crying, upset,

emotionally upset," a reaction that he testified was typical for domestic violence victims.

Sergeant Viel then testified that he observed "two marks on [D.K.'s] head, one being on the

left side right at her left eye, and then another mark on the opposite side on the right side."

Pictures depicting D.K.'s facial injuries were subsequently identified and admitted into

evidence.   Sergeant Viel then testified, over an objection alleging a violation of the

Confrontation Clause as found in the Sixth Amendment to the United States Constitution,

that D.K. informed him that "her husband had -- they had got into an argument and then he

assaulted her."

       {¶ 6} Officer Richard Smith of the Hamilton Township Police Department also

testified at trial. Officer Smith testified that he too was dispatched to the Hamilton Township

business where he observed D.K. "crying, very upset, emotional, distraught." Similar to

Sergeant Viel's testimony, Officer Smith also testified that he noticed D.K. "had on her right

side, and then the left side she had two injuries on each side of her face." Officer Smith

further testified, again over objection alleging a violation of the Confrontation Clause, that

D.K. informed him that her husband, Knecht, had "shoved her on the couch and then he

head-butted her and that's how she received the injuries." It is undisputed that D.K. did not

request any medical treatment for her facial injuries that evening.

       {¶ 7} Continuing, Officer Smith then testified that approximately 30 minutes after

making contact with D.K., he and the now former probationary officer went to the couple's

nearby Morrow residence to speak with Knecht. The distance between the couple's Hamilton

Township business and their Morrow residence is approximately six miles. Once there,

Officer Smith made contact with Knecht and noticed that Knecht had a bruise on his

forehead. Pictures depicting Knecht's bruised forehead were also identified and admitted

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into evidence. Officer Smith then testified that he asked Knecht to explain why his wife was

injured, to which Knecht responded that "she must have done it herself." Officer Smith

further testified that Knecht claimed the bruise to his forehead was the result of him crushing

beer cans on his head during a night out with friends that weekend. However, when asked to

describe the bruise on Knecht's forehead, Officer Smith testified "[i]t looked fresh to me"

because an older bruise "would be much darker or colors would be darker than that."

       {¶ 8} In his defense, Knecht testified that he and his wife had a brief argument

sometime around 12:30 p.m. on October 6, 2014 while the pair was working at their Hamilton

Township business. According to Knecht, D.K. was upset that he had left for the weekend to

hang out with friends, "acting a fool that weekend" by "drinking and having fun," instead of

being home with their daughter. Knecht also claimed they were discussing a "difference of

opinion" on whether to purchase an additional piece of property for the business. Knecht

then testified that after their discussion concluded at approximately 1:30 p.m., he left with

their daughter and went home, neither seeing nor speaking to his wife the rest of the day.

When asked if he ever physically assaulted or threatened D.K. that day, Knecht testified,

"[n]o. Absolutely not, no." Knecht's father also testified that he did not observe any injuries

to D.K. when he stopped by the Hamilton Township business shortly after 3:00 p.m. that day.

       {¶ 9} In addition to this testimony, Knecht also testified that the bruise on his

forehead was from him crushing beer cans on his forehead that weekend. As Knecht

testified, he did this "[p]robably two or three, four times." Knecht's friend, however, testified

that he only saw Knecht attempt to crush a beer can on his forehead once. In addition, when

asked if Knecht was successful in his attempt to crush the beer can, the friend testified "[n]ot

too much." The friend also testified that he did not notice any injury to Knecht's forehead

after his unsuccessful attempt to crush the beer can. The parties then rested and the trial

court took the matter under advisement.

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       {¶ 10} On March 2, 2015, the trial court issued a decision finding Knecht guilty as

charged. In reaching this decision, the trial court stated, in pertinent part:

               This Court finds that [D.K.'s] initial statements to Sergeant Viel
               and Officer Smith, when upon their arrival was asked how she
               received the visible injuries to her head, are nontestimonial
               statements, and are exceptions to the hearsay rule under the
               excited utterance exception.

       {¶ 11} Several weeks after the trial court issued its decision, on March 25, 2015, D.K.

filed an affidavit with the trial court, which provided, in its entirety, the following:

               1. On October 6th, 2014 I called the police at approximately
               6:00pm to report and incident that occurred at approximately
               12:00 noon that same day.

               2. There were no other incidents with my Husband that day,
               other than the one that occurred at 12:00pm.

               3. Shortly after 1:00pm on October 6th, 2014, my Husband left
               with my daughter and I did not see him the rest of the day.

               4. I worked the rest of the day and then called the police.

               5. As I stated to the victim advocate and to the prosecutor both
               personally and through counsel, and in open court on December
               16, 2014, I do not believe my husband assaulted me or
               committed domestic violence against me on October 6, 2014,
               that I did not have continuing fear for my safety, and that I
               request the charges against him be dismissed.

               6. I still believe what is stated in paragraph 5, and I still I request
               that the charges against him be dismissed.

       {¶ 12} The next day, March 26, 2015, Knecht filed a motion for a new trial based on

D.K.'s affidavit. One week later, on March 31, 2015, the trial court held a hearing on Knecht's

motion for a new trial, which the trial court ultimately denied. In so holding, the trial court

determined that D.K.'s "affidavit does not necessarily say it did not happen. What it states

specifically is, I do not believe my husband assaulted me or committed domestic violence

against me on that date."

       {¶ 13} Nevertheless, even after denying Knecht's motion, the trial court allowed D.K. to
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make a lengthy statement prior to sentencing her husband, wherein she provided a detailed

account of her purported abusive childhood, diagnosed mental disorders, several recent

episodes of erratic behavior, as well as difficulties with her marriage. In addition, in an

attempt to explain the documented injuries to her face, D.K. claimed she had been working

all day when she "passed out" and woke up on the floor with "a hurt hip and bruises on my

face." To this, D.K. stated she "thought this was an opportunity that [she] could take

advantage of. I had bumps and bruises on my face, and he had marks on his forehead. I

rationalized that I had nothing to lose."

       {¶ 14} Continuing, D.K. claimed she "told the police things that [were] not true to gain

leverage in a divorce." D.K. also claimed she was upset when Sergeant Viel and Officer

Smith arrived due to a "horrible previous encounter" with Officer Smith, who she alleged had

been caught "sneaking around our house" and seeing her "inside the house undressed"

when investigating a previous noise complaint on the property. Concluding, D.K. stated "my

husband did not abuse me, and my husband did not hurt me."

       {¶ 15} After D.K. entered her statement, the trial court sentenced Knecht to 30 days in

jail, with 25 of those days suspended, and one year of probation. The trial court then stayed

his sentence pending appeal. Approximately one week later, on April 6, 2015, D.K. filed

another affidavit with the trial court that mirrored the statement she had provided to the trial

court at the March 31, 2015 hearing. Ten days later, on April 16, 2015, Knecht filed a motion

requesting the trial court to reconsider its decision denying his motion for a new trial based on

D.K.'s newly filed affidavit. The trial court denied Knecht's motion that same day.

       {¶ 16} Knecht now appeals from his conviction, raising two assignments of error for

review.

       {¶ 17} Assignment of Error No. 1:

       {¶ 18} THE TRIAL COURT ERRED IN CONVICTING THE DEFENDANT-APPELLANT
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BASED ENTIRELY UPON THE POLICE OFFICERS' INADMISSIBLE HEARSAY

TESTIMONY IN VIOLATION OF THE CONFRONTATION CLAUSE OF THE SIXTH

AMENDMENT TO THE UNITED STATES CONSTITUTION.

       {¶ 19} In his first assignment of error, Knecht argues the trial court erred by admitting

inadmissible hearsay testimony in violation of the Confrontation Clause as found in the Sixth

Amendment to the United States Constitution. We disagree.

       {¶ 20} Generally, a trial court's ruling as to the admissibility of evidence will not be

reversed absent an abuse of discretion. State v. Sage, 31 Ohio St.3d 173 (1987), paragraph

two of the syllabus. However, we review a claim that a criminal defendant's rights have been

violated under the Confrontation Clause de novo. State v. Doby, 12th Dist. Butler No.

CA2013-05-084, 2014-Ohio-2471, ¶ 31, citing State v. Bryant, 12th Dist. Warren No.

CA2007-02-0241, 2008-Ohio-3078, ¶ 48. De novo review means "'that we apply the same

standards as the trial court.'" State v. Chavez-Juarez, 185 Ohio App.3d 189, 2009-Ohio-

6130, ¶ 44 (2d Dist.), quoting GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 2007-

Ohio-2722, ¶ 16 (2d Dist.).

       {¶ 21} The Confrontation Clause as found in the Sixth Amendment to the United

States Constitution preserves the right of a criminal defendant "to be confronted with the

witnesses against him." To that end, the Confrontation Clause bars the admission of

"testimonial hearsay" unless the declarant is unavailable and the accused had a prior

opportunity to cross-examine the declarant. State v. Primo, 12th Dist. Butler No. CA2004-09-

237, 2005-Ohio-3903, ¶ 12, citing Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354

(2004). The key issue, therefore, is what constitutes a testimonial statement for "'[i]t 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, 135 Ohio St.3d 137, 2012-Ohio-6208, ¶ 33, quoting Davis v. Washington, 547
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U.S. 813, 821, 126 S.Ct. 2266 (2006).

       {¶ 22} The United States Supreme Court found testimonial statements existed where

there was no ongoing emergency and the statements resulted from a police interrogation

whose "'primary purpose [was] to establish or prove past events potentially relevant to later

criminal prosecution.'" State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, ¶ 17, quoting

Davis, 547 U.S. at 822. However, as the Supreme Court further explained, "the existence vel

non of an ongoing emergency is not the touchstone of the testimonial inquiry." (Emphasis

sic.) Michigan v. Bryant, 562 U.S. 344, 374, 131 S.Ct. 1143 (2011). Rather, in making this

"primary purpose" determination, courts must consider "all of the relevant circumstances." Id.

at 369. In other words, "whether an ongoing emergency exists is simply one factor – albeit

an important factor – that informs the ultimate inquiry regarding the 'primary purpose' of an

interrogation." Id. at 366.

       {¶ 23} Another factor to be considered in determining the "primary purpose" of an

interrogation is the formality of the situation. Ohio v. Clark, __ U.S. __, 135 S.Ct. 2173, 2180

(2015), citing Bryant, 562 U.S. at 377.        For instance, while a "formal station-house

interrogation" is more likely to provoke testimonial statements, "less formal questioning is

less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the

accused." Id., citing Bryant, 562 U.S. at 366, 377. The standard rules of hearsay, designed

to identify some statements as reliable, are also relevant when determining whether a

statement is testimonial. Id., citing Bryant, 562 U.S. at 358-359. The same is true regarding

"[t]he statements and actions of both the declarant and interrogators" for this "provide[s]

objective evidence of the primary purpose of the interrogation." Bryant, 562 U.S. at 367.

Thus, in the end, "the question is whether, in light of all the circumstances, viewed

objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court

substitute for trial testimony.'" Clark, quoting Bryant, 562 U.S. at 358. "Where no such
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primary purpose exists, the admissibility of a statement is the concern of state and federal

rules of evidence, not the Confrontation Clause." Id., quoting Bryant, 562 U.S. at 359.

       {¶ 24} After a thorough review of the record, we find D.K.'s statements to Sergeant

Viel and Officer Smith were non-testimonial as the primary purpose in questioning D.K. was

not to create an out-of-court substitute for trial testimony. Rather, as Sergeant Viel's and

Officer Smith's testimony reveals, the questioning was conducted in response to D.K.'s 9-1-1

call reporting that she had been a victim of domestic violence. Once Sergeant Viel and

Officer Smith arrived at the scene, they discovered D.K. visibly shaken and in a very

emotional state with two clear injuries to her head. Specifically, as Sergeant Viel testified,

D.K. was "irate, crying, upset, emotionally upset," a reaction that he testified was typical for

domestic violence victims. Officer Smith also testified that he observed D.K. "crying, very

upset, emotional, distraught." Both Sergeant Viel and Officer Smith then testified that D.K.

informed them that it was her husband, Knecht, who had caused the injuries to her head.

       {¶ 25} Unlike a formal station-house interrogation, this situation provided for a much

more informal questioning process. In addition, because Knecht had not been arrested or

even identified as a suspect when Sergeant Viel and Officer Smith first arrived at the scene,

this indicates the presence of an ongoing emergency. As the Supreme Court has stated, an

emergency "does not last only for the time between when the assailant pulls the trigger and

the bullet hits the victim." Bryant, 562 U.S. at 373. Moreover, the fact that D.K. was

distressed, very upset and crying lends itself to a conclusion that her statements were non-

testimonial. Therefore, under these circumstances, D.K.'s statements to police indicating her

husband had caused her facial injuries were nontestimonial as the primary purpose in the

questioning was not to create an out-of-court substitute for trial testimony, but to assist D.K.

and identify the person who had caused her harm. Accordingly, because we find D.K.'s

statements were non-testimonial, the admissibility of D.K.'s statements would be governed by
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the rules of evidence, and not by the Confrontation Clause.

       {¶ 26} As noted above, the trial court found D.K.'s statements to Sergeant Viel and

Officer Smith were admissible under the excited utterance exception to the hearsay rule as

found in Evid.R. 803(2). Pursuant to that 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." A hearsay statement is admissible as an excited

utterance if: "(1) there was an event startling enough to produce a nervous excitement in the

declarant; (2) the statement was made while under the stress of excitement caused by the

event; (3) the statement related to the startling event; and (4) the declarant must have had an

opportunity to personally observe the startling event." State v. Worth, 10th Dist. Franklin No.

10AP1125, 2012-Ohio-666, ¶ 22, citing State v. Taylor, 66 Ohio St.3d 295, 300-301 (1993).

       {¶ 27} In analyzing whether a statement is an excited utterance, "'[t]he 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.'" State v. Nixon, 12th

Dist. Warren No. CA2011-11-116, 2012-Ohio-1292, ¶ 13, quoting State v. Humphries, 79

Ohio App.3d 589, 598 (12th Dist.1992). Whether a hearsay statement is admissible as an

excited utterance is reviewed under an abuse of discretion standard. State v. Henry, 12th

Dist. Clermont Nos. CA2013-12-095 and CA2013-12-097, 2014-Ohio-4624, ¶ 55.

       {¶ 28} As previously stated, once Sergeant Viel and Officer Smith arrived at the scene,

they discovered D.K. visibly shaken and in a very emotional state with two clear injuries to

her head. Again, as Sergeant Viel testified, D.K. was "irate, crying, upset, emotionally upset,"

a reaction that he testified is typical for domestic violence victims. Officer Smith also testified

that he observed D.K. "crying, very upset, emotional, distraught."                  Under these

circumstances, the trial court did not abuse its discretion in admitting D.K.'s statements to

Sergeant Viel and Officer Smith under the excited utterance exception to the hearsay rule as
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found in Evid.R. 803(2). E.g., Nixon, 2012-Ohio-1292 at ¶ 14 (statements made to police

officer were admissible as excited utterance where victim was shaken and scared when she

spoke with police officer shortly after the officer arrived at the scene); Cleveland v. Williams,

8th Dist. Cuyahoga No. 101588, 2015-Ohio-1739, ¶ 13 (statements were admissible as

excited utterance where victim was "visibly upset and crying; her face was swollen; and she

had bruises on her face, as well as on her neck when she made the statements to the police

officers"). Therefore, because the trial court did not err by admitting D.K.'s statements made

to Sergeant Viel and Officer Smith, Knecht's first assignment of is without merit and

overruled.

       {¶ 29} Assignment of Error No. 2:

       {¶ 30} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S

MOTION FOR NEW TRIAL.

       {¶ 31} In his second assignment of error, Knecht argues the trial court erred by

denying his motion for a new trial based on D.K.'s two affidavits and the statement she made

to the trial court prior to sentencing, all of which he claims constitutes "new evidence" entitling

him to a new trial. We disagree.

       {¶ 32} Pursuant to Crim.R. 33(A)(6), a new trial may be granted on the motion of the

defendant "[w]hen new evidence material to the defense is discovered which the defendant

could not with reasonable diligence have discovered and produced at the trial." In order to

prevail on a motion for a new trial based upon newly discovered evidence, the defendant

must establish the evidence (1) discloses a strong probability that it will change the result if a

new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the

exercise of due diligence have been discovered before the trial, (4) is material to the issues,

(5) is not merely cumulative to former evidence, and (6) does not merely impeach or

contradict the former evidence. State v. Zielinski, 12th Dist. Warren No. CA2014-05-069,
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2014-Ohio-5318, ¶ 15, citing State v. Petro, 148 Ohio St. 505 (1947), syllabus.

       {¶ 33} "Crim.R. 33 motions for a new trial are not to be granted lightly." State v.

Thornton, 12th Dist. Clermont No. CA2012-09-063, 2013-Ohio-2394, ¶ 21, citing City of

Toledo v. Stuart, 11 Ohio App.3d 292, 293 (6th Dist.1983). "The decision 'to grant or deny a

motion for a new trial on the basis of newly discovered evidence is within the sound

discretion of the trial court and, absent an abuse of discretion, that decision will not be

disturbed.'" State v. Stojetz, 12th Dist. Madison No. CA2009-06-013, 2010-Ohio-2544, ¶ 68,

quoting State v. Hawkins, 66 Ohio St.3d 339, 350 (1993). An abuse of discretion implies that

the court's decision was unreasonable, arbitrary, or unconscionable, and not merely an error

of law or judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.

       {¶ 34} Here, after a thorough review of the record, we are not convinced this alleged

"new evidence" would have had any impact on the trial court's guilt finding. Once again, after

arriving at the scene, Sergeant Viel and Officer Smith discovered D.K. visibly shaken and in a

very emotional state with two clear injuries to her head. Specifically, Sergeant Viel testified

that D.K. was "irate, crying, upset, emotionally upset," a reaction that he testified is typical for

domestic violence victims. Officer Smith also testified that he observed D.K. "crying, very

upset, emotional, distraught." Both Sergeant Viel and Officer Smith then testified that D.K.

informed them that it was her husband, Knecht, who had caused the injuries to her head.

Although D.K. now claims this was merely an act to gain leverage in a divorce, nothing about

this alleged "new evidence" negates Sergeant Viel or Officer Smith's testimony.

       {¶ 35} Moreover, it is well-established that a trial court may weigh the credibility of the

affidavits submitted in support of a motion for a new trial to determine whether to accept the

statements in the affidavit as true. State v. Rodriguez, 12th Dist. Butler No. CA2008-07-162,

2009-Ohio-4460, ¶ 76, citing State v. Beavers, 166 Ohio App.3d 605, 2006-Ohio-1128, ¶ 20-

21 (2d Dist.). In this case, however, the trial court also had the opportunity to weigh D.K.'s
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credibility first hand; namely, on December 16, 2014 when D.K. informed the trial court that

some of the statements she made to police regarding the alleged domestic violence incident

were untrue and that she should be punished, and again on March 31, 2015 when D.K.

provided a lengthy statement to the trial court prior to sentencing during which time she

claimed her injuries occurred after she "passed out" and woke up on the floor with "a hurt hip

and bruises on my face." In turn, not only do we find this alleged "new evidence" merely

contradicts the former evidence presented at trial, by denying Knecht's motion for a new trial,

the trial court clearly found D.K.'s explanation regarding the cause of her injures lacked

credibility. We find no error in the trial court's decision. Therefore, Knecht's second

assignment of error is likewise without merit and overruled.

       {¶ 36} Judgment affirmed.


       RINGLAND and HENDRICKSON, JJ., concur.




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