[Cite as State v. King, 2013-Ohio-1694.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :        C.A. CASE NO.    25151

v.                                                 :        T.C. NO.   12CRB1413

MATTHEW KING                                       :        (Criminal appeal from
                                                              Municipal Court)
        Defendant-Appellant                        :

                                                   :

                                           ..........

                                           OPINION

                         Rendered on the    26th   day of     April     , 2013.

                                           ..........

ANDREW D. SEXTON, Atty. Reg. No. 0070892, Assistant City Prosecutor, 335 W. Third
Street, Room 372, Dayton, Ohio 45402
        Attorney for Plaintiff-Appellee

TINA M. MCFALL, Atty. Reg. No. 0082586, Assistant Public Defender, 117 S. Main
Street, Suite 400, Dayton, Ohio 45422
        Attorney for Defendant-Appellant

                                           ..........

DONOVAN, J.

        {¶ 1}     Defendant-appellant Matthew King appeals his conviction and sentence for
                                                                                             2

one count of assault, in violation of R.C. 2903.13(A), a misdemeanor of the first degree.

King filed a timely notice of appeal with this Court on April 10, 2012.

       {¶ 2}    The incident which forms the basis for the instant appeal occurred on the

morning of March 2, 2012, at approximately 8:41 a.m. when Dayton Police Officer Scott M.

Carico was dispatched to 626 Pritz Avenue in Dayton, Ohio, on a report of a female and

male fighting in an alleyway. Officer Lyn C. Dunkin was also dispatched to the same

address. Officers Carico and Dunkin arrived at the scene simultaneously approximately five

minutes after receiving the dispatch.

       {¶ 3}    Upon arriving in the alleyway located behind the residence, Officer Carico

made contact with a female, later identified as Dreama Allen, who he initially described as

“physically upset” and “crying.” Officer Carico testified that before he said anything to

Allen, she stated, “He choked me.” Officer Carico asked her who choked her, and she

responded, “My boyfriend.” Allen then informed Officer Carico that her boyfriend’s name

was Matthew. Officer Carico testified that while he spoke to Allen, he observed that she

had bloody abrasions on her elbow, blood on her pants and shoe, and red marks on her neck.



       {¶ 4}    Officer   Carico    testified   that   approximately      one   minute   later,

defendant-appellant King appeared in the backyard of either 624 or 626 Pritz Avenue.

Officer Carico further testified that he approached King and asked him what had just

occurred in the alley. All King would said was that Allen had called the “f*** police.”

King never admitted to Officer Carico that he had struck or choked Allen. Officer Dunkin

testified that Allen informed him that she and King “stayed together” but did not specify for
                                                                                             3

how long. Based on Allen’s statements and her injuries, Officer Carico arrested King and

took him into custody.

       {¶ 5}    King was subsequently charged by complaint with one count of domestic

violence, in violation of R.C. 2919.25(A)(1), a misdemeanor of the first degree, and one

count of assault, in violation of R.C. 2903.13(A), a misdemeanor of the first degree. At his

arraignment, King pled not guilty to both counts.

       {¶ 6}    The matter was tried to the bench on March 13, 2012. Although the State

sent her a subpoena, Allen failed to appear and testify at trial. The trial court found King

not guilty of domestic violence and guilty of assault.            Following a pre-sentence

investigation, the trial court sentenced King to 180 days in jail, suspended ninety days of his

sentence, gave him credit for twenty-days already served, and ordered him to serve the

balance thereof forthwith.

       {¶ 7}    It is from this judgment that King now appeals.

       {¶ 8}    King’s sole assignment of error is as follows:

       {¶ 9}    “THE     TRIAL COURT ERRED WHEN IT ADMITTED OVER

OBJECTION DREAMA ALLEN’S TESTIMONIAL OUT-OF-COURT STATEMENTS

VIOLATING THE DEFENDANT’S RIGHT TO CONFRONTATION UNDER THE

SIXTH AMENDMENT OF THE U.S. CONSTITUTION.”

       {¶ 10} In his sole assignment, King contends that the trial court erred by permitting

Officer Carico to testify, over defense counsel’s objection, regarding Allen’s initial,

unsolicited statement, “He choked me,” that she made when the police first arrived.

Specifically, King argues that his Sixth Amendment right to confront any witnesses against
                                                                                             4

him was violated when Officer Carrico testified regarding statements made by Allen.

          {¶ 11} The decision of a trial court to admit or exclude evidence rests within the

sound discretion of the court and will not be disturbed on appeal absent a showing of an

abuse of discretion. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987).

          {¶ 12} “Abuse of discretion” has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482

N.E.2d 1248, 1252 (1985). It is to be expected that most instances of abuse of discretion will

result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.

          {¶ 13} A decision is unreasonable if there is no sound reasoning process that would

support that decision. It is not enough that the reviewing court, were it deciding the issue de

novo, would not have found that reasoning process to be persuasive, perhaps in view of

countervailing reasoning processes that would support a contrary result. AAAA Enterprises,

Inc. v. River Place Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990).

          {¶ 14} Regarding whether the statements made by Allen to Officer Carico were

“testimonial” in nature and therefore violated Defendant’s Sixth Amendment confrontation

rights, in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),

the United States Supreme Court held that a “testimonial” statement from a witness who

does not appear at trial is inadmissible against the accused unless the witness is unavailable

to testify and the defendant had a prior opportunity to cross-examine the witness. In a later

case, Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the
                                                                                            5

United States Supreme Court provided the following definition of “testimonial” and

“non-testimonial” statements:

       [S]tatements are nontestimonial when made in the course of police

       interrogation under circumstances objectively indicating that the primary

       purpose of 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 criminal prosecution.

       {¶ 15} With respect to whether the admission of Allen’s statements to police

violated King’s confrontation rights, we note that Officers Carico and Dunkin were

responding to an ongoing emergency at the time Allen made her statements.              Allen’s

primary purpose was to obtain assistance from the officers in resolving that emergency

because King was still on the scene. Allen’s initial statement that King had choked her was

not the product of any police questioning. Under those circumstances, Allen’s statement

was not testimonial and the Confrontation Clause does not apply. State v. McDaniel, 2d Dist.

Montgomery No. 24423, 2011-Ohio-6326, at ¶ 27; State v. Williams, 6th Dist. Lucas No.

L-08-1371, 2009-Ohio-6967, at ¶58.

       {¶ 16} Although not addressed by appellant in his brief, we further find that the

statements made by Allen were excited utterances, and therefore, not inadmissible hearsay.

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).
                                                                                         6

Hearsay is generally not admissible, subject to several exceptions. Evid.R. 802, 803. One

such exception is an excited utterance under Evid.R. 803(2), which provides:

       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.

       {¶ 17} In order for a statement to qualify as an excited utterance, one must

establish:

       (a) that there was some occurrence startling enough to produce a nervous

       excitement in the declarant, which was sufficient to still [her] reflective

       faculties and thereby make [her] statements and declarations the unreflective

       and sincere expression of [her] actual impressions and beliefs, and thus

       render [her] statement or declaration spontaneous and unreflective, (b) that

       the statement or declaration, even if not strictly contemporaneous with its

       exciting cause, was made before there had been time for such nervous

       excitement to lose a domination over [her] reflective faculties, so that such

       domination continued to remain sufficient to make [her] statements and

       declaration the unreflective and sincere expression of [her] actual impressions

       and beliefs, (c) that the statement or declaration related to such startling

       occurrence or the circumstances of such startling occurrence, and (d) that the

       declarant had an opportunity to observe personally the matters asserted in her

       statement or declaration. State v. Duncan, 53 Ohio St.2d 215, 373 N.E.2d

       1234 (1978).
[Cite as State v. King, 2013-Ohio-1694.]
        {¶ 18} Upon first seeing Officers Carico and Dunkin, Allen immediately stated that

King had just choked her. Allen had just been the victim of an assault moments earlier, a

startling event. According to Officer Carico, Allen was crying and upset. Less than five

minutes had elapsed since police were dispatched to the home on a report of domestic

violence, and less than a minute had elapsed since police made contact with Allen. Allen

exhibited numerous visible injuries, to wit: bloody abrasions on her elbow, and red marks on

her neck. Officer Carico also observed blood on her pants and on her shoe. Clearly, Allen

was still under the stress of excitement caused by the startling violent event. Allen’s

statements related to the assault by King. Additionally, as the victim of the assault, Allen

personally observed the violent attack.         Accordingly, Allen’s statements were also

admissible as excited utterances. Thus, the trial court did not abuse its discretion when it

admitted Allen’s initial statements to police at the scene.

        {¶ 19} King’s sole assignment of error is overruled.

        {¶ 20} King’s sole assignment of error having been overruled, the judgment of the

trial court is affirmed.

                                           ..........

FROELICH, J. and WELBAUM, J., concur.

Copies mailed to:

Andrew D. Sexton
Tina M. McFall
Hon. Christopher D. Roberts
