[Cite as Cleveland v. Greear, 2020-Ohio-29.]


                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

CITY OF CLEVELAND,                                   :

                 Plaintiff-Appellee,                 :
                                                              No. 108190
                 v.                                  :

KENNETH GREEAR,                                      :

                 Defendant-Appellant.                :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: VACATED AND REMANDED
                 RELEASED AND JOURNALIZED: January 9, 2020


                      Criminal Appeal from the Cleveland Municipal Court
                                   Case No. 18CRB011420


                                               Appearances:

                 Barbara A. Langhenry, Cleveland Director of Law, and
                 Karrie D. Howard, Sharon Ross, Marco A. Tanudra and
                 Christopher Enoch, Assistant Prosecuting Attorneys, for
                 appellee.

                 Web Norman Law, Inc., L.L.C., and William Norman, for
                 appellant.


FRANK D. CELEBREZZE, JR., J.:

                Defendant-appellant, Kenneth Greear (“appellant”), brings the instant

appeal challenging his conviction for domestic violence. Specifically, appellant

argues that his conviction for domestic violence was based on insufficient evidence
and was against the manifest weight of the evidence, and that the trial court erred in

admitting hearsay statements. After a thorough review of the record and law, this

court vacates appellant’s conviction and sentence, and remands for further

proceedings consistent with this opinion.

                        I. Factual and Procedural History

            On July 14, 2018, appellant was charged in a two-count complaint in

Cleveland Municipal Court with one count of domestic violence in violation of R.C.

2919.25(A), a first-degree misdemeanor, and one count of unlawful restraint in

violation of R.C. 2905.03(A), a third-degree misdemeanor. These offenses were

alleged to have occurred on July 12, 2018, and were the result of an alleged physical

altercation between appellant and his girlfriend, W.V. As of July 12, appellant and

W.V. were dating and lived together in Cleveland in appellant’s home. On, July 14,

2018, appellant pled not guilty to the complaint and a temporary protection order

was issued against appellant.

            On July 12, 2018, appellant and W.V. were at a grocery store when they

engaged in a verbal argument as to the whereabouts of appellant’s lighter. As a

result of the argument, W.V. left the grocery store and returned home. Appellant

then returned home sometime after W.V. left the grocery store. Back at the home,

appellant again confronted W.V. as to the whereabouts of the lighter. Appellant then

became upset and allegedly physically assaulted W.V. Appellant pushed W.V. to the

ground and kicked her in the face. Appellant then pressed his whole body weight
down on W.V.’s face as she lay on the ground. As a result, W.V. suffered a bruised

and bloodied lip.

             Approximately one hour after the alleged assault, W.V. called 911 and

requested police assistance. W.V. stated to the 911 operator “my boyfriend accused

me of taking a lighter and he choked me and kicked me in my face.” W.V. further

stated that “I can’t talk right because my lip is popped up.” Sometime after W.V.

placed the 911 call, Cleveland police officers responded to the home and spoke with

W.V. Appellant had left the home prior to officers responding. Police officer body

camera captured W.V.’s encounter with responding officers. In the body camera

footage, W.V. stated to the responding officers that appellant was “kicking on my

head” and appellant “put all his weight on my head, stomping on my head, my lip

was pouring blood.”

            On July 19, 2018, at the first scheduled pretrial, W.V. appeared and

requested that the trial court terminate the temporary protection order. The trial

court granted W.V.’s request, and the temporary protection order was terminated.

The matter then proceeded to a bench trial on November 14, 2018.

             Plaintiff-appellee, the city of Cleveland (“city”), presented one witness,

W.V., in its case-in-chief. Appellant presented no witnesses. The trial court found

appellant guilty of domestic violence, but not guilty of unlawful restraint. The trial

court ordered a presentence investigation report and continued the matter for

sentencing to December 5, 2018.
             On November 29, 2018, appellant filed a “motion for acquittal or

alternatively a motion for a new trial” and a “motion for leave to file a brief in support

of out of time motion.” On December 4, 2018, appellant filed a brief in support of

his motion for acquittal or motion for a new trial. On December 5, 2018, the trial

court continued the matter to January 3, 2019, to allow the city time to respond to

appellant’s motions.

             On December 5, 2018, appellant was apprehended on an arrest

warrant. The arrest warrant was issued regarding an unrelated matter in the state

of Michigan. The trial court held a hearing on December 21, 2018, related to the

extradition to Michigan, and at that time, appellant’s counsel orally withdrew his

motion for acquittal or motion for a new trial.

             On January 3, 2019, the trial court held a sentencing hearing and

sentenced appellant to 180 days jail with 160 days being suspended. The trial court

placed appellant on community control sanctions for a period of one year and

ordered him to complete a Domestic Intervention Education Training program.

              Appellant filed the instant appeal on February 6, 2019. He assigns

three errors for our review:

      I. The [city] failed to offer sufficient proof to allow a reasonable fact-
      finder to find [appellant] guilty beyond a reasonable doubt.

      II. The manifest weight of the evidence did not support a conviction for
      domestic violence.

      III. The trial court erred in admitting out-of-court statements to 911
      operator and police.
We address appellant’s third assignment of error first because we find it dispositive

of the instant appeal.

                                II. Law and Analysis

             In appellant’s third assignment of error, he argues that the trial court

erred in admitting the victim’s statements in the 911 call and in the body camera

video. Appellant argues that the victim’s statements were inadmissible hearsay.

              In the instant case, the city presented W.V. as the only witness at trial.

At the beginning of W.V.’s direct testimony, the prosecutor asked W.V. various

preliminary questions to which W.V. testified that she was engaged to appellant and

had been living with him for over a year. The prosecutor then asked W.V. “[d]o you

remember calling 911 [on July 12, 2018]?” W.V. responded “[y]eah.” (Tr. 47.) The

prosecutor then sought to play the 911 tape and the following exchange occurred:

      [PROSECUTOR]: Okay. For the record, [city’s] [e]xhibit [t]wo.

      THE COURT: Okay.

      [APPELLANT’S COUNSEL]: Your [h]onor, I would object to the
      playing of this 911 tape. Your [h]onor, first of all and I’d imagine that
      they would try to get it in under some sort of excited utterance. [W.V.]
      specifically stated on the tape that the — that [appellant] had left the
      scene; there was no continuing emergency.

      Additionally your [h]onor, we believe that once [W.V.] testifies, this
      would act to kind of impeach her testimony based on her prior
      inconsistent statement which my colleague can’t do because he called
      [W.V.] to the stand. So your [h]onor we would ask that the tape not be
      played.

      THE COURT: All right.
      [PROSECUTOR]: Well, your [h]onor, the victim’s testifying I think it’s
      making an argument about confrontation. It’s a 911 call made by the
      victim on the date of the incident.

      THE COURT: All right. You can play the tape. Motion to not play the
      tape is denied.

(Tr. 47-48.) The tape was then played in open court. The prosecutor then asked

W.V. the following questions while playing the 911 tape:

      [PROSECUTOR]: Do you recognize your voice on the 911 call?

      THE COURT: Is that your voice, ma’am?

      [W.V.]: Yeah.

      [PROSECUTOR]: Okay. So far as you can hear, is that a true and
      accurate reflection of the 911 call that you made that day?

      [W.V.]: Yes.

(Tr. 49.)

             Later on in W.V.’s testimony, the prosecutor sought to play the police

officer’s body camera and appellant’s counsel renewed his objection.

      [PROSECUTOR]: And did the police respond to the residence?

      [W.V.]: Yes.

      [PROSECUTOR]: Okay. Do you remember them talking to you?

      [W.V.]: Vaguely; I don’t know.

      [PROSECUTOR]: If I showed you footage of them talking to you,
      would that kind of help you out? Would you be able to recognize it?

      [W.V.]: I mean they were asking me if I was staying there.

      [PROSECUTOR]: Okay.

      [W.V.]: Or if I was moving — leaving the premises.
       [PROSECUTOR]: Okay.

       [PROSECUTOR]: I’ll play [p]laintiff’s [e]xhibit two, your [h]onor.

       [APPELLANT’S COUNSEL]: Same objection, your [h]onor.

       THE COURT: So noted.

       [APPELLANT’S COUNSEL]: Trying to let this evidence serve against
       her testimony.

       THE COURT: Okay overruled.

The prosecutor then played a body camera video of one of the police officers who

responded to the scene on July 12, 2018. The prosecutor then asked W.V. the

following questions:

       [PROSECUTOR]: For the record [W.V.], do you recognize yourself in
       the body camera?

       [W.V.]: Yeah.

       [PROSECUTOR]: Does it truly and accurately reflect from what you
       remember from that day when the police responded? “Yes” or “no.”

       [W.V.]: Yes.

(Tr. 54-55.)

               At trial, appellant’s counsel objected to the playing of the 911 call and

the body camera video based upon hearsay and improper impeachment grounds.

However, now on appeal, appellant argues that the 911 tape and body camera video

were not properly authenticated because neither the police officer nor the 911

operator testified at trial.

               In our review of the record, we note that appellant did not object on

authentication grounds at trial. An appellant cannot present arguments for the first
time on appeal, therefore, we find that appellant has waived any argument related

to the 911 call or body camera video authentication. Revilo Tyluka, L.L.C. v. Simon

Roofing & Sheet Metal Corp., 2011-Ohio-1922, 952 N.E.2d 1181, ¶ 23-26 (8th Dist.).

Notwithstanding the fact that appellant has waived any argument related to

authentication, we find that the prosecutor properly authenticated the 911 call and

the body camera video.

                                  A. Authentication

              Pursuant to Evid.R. 901(A), a party must establish the authentication

or identification of evidence prior to that evidence being admissible. Evid.R. 901(A)

provides in pertinent part, “[t]he requirement of authentication or identification as

a condition precedent to admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent claims.”

      By way of illustration, Evid.R. 901(B) provides that evidence may be
      properly authenticated by “testimony of witness with knowledge” that
      “a matter is what it is claimed to be.” Further, the authentication
      requirement of Evid.R. 901(A) is a low threshold that does not require
      conclusive proof of authenticity, but only sufficient foundation
      evidence for the trier of fact to conclude that the evidence is what its
      proponent claims it to be. State v. Toudle, 8th Dist. Cuyahoga No.
      98609, 2013-Ohio-1548, ¶ 21, citing Yasinow v. Yasinow, 8th Dist.
      Cuyahoga No. 86467, 2006-Ohio-1355, ¶ 81.

State v. Maust, 8th Dist. Cuyahoga No. 103182, 2016-Ohio-3171, ¶ 24. This court

reviews a trial court’s ruling on the adequacy of authentication for an abuse of

discretion. State v. Bowling, 8th Dist. Cuyahoga No. 93052, 2010-Ohio-3595, ¶ 33,

citing State v. Easter, 75 Ohio App.3d 22, 26-27, 598 N.E.2d 845 (4th Dist.1991).
             Considering the low threshold of authentication, we find that W.V.’s

testimony properly authenticated the 911 tape and the body camera video. W.V. had

knowledge that the 911 tape and the body camera video were what each recording

claimed to be. In addition, W.V. testified and affirmed that both the 911 tape and

the body camera video introduced were an accurate representation of what

happened on that particular day. Accordingly, we find the city satisfied Evid.R.

901(A), and we find no merit to appellant’s argument that the city failed to properly

authenticate the 911 tape and the body camera video.

                                  B. Admissibility

              Having found that the city properly authenticated the 911 tape and the

body camera video, we turn next to whether or not the 911 tape and body camera

video were properly admitted as evidence. At trial, appellant objected to the playing

of the 911 tape and body camera video, and argued W.V.’s statements within the

recordings would be inadmissible hearsay statements and improper impeachment

testimony.

              The admission of evidence is within the trial court’s sound discretion.

State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). A trial court will have

abused its discretion when its decision is contrary to law, unreasonable, not

supported by the evidence, or grossly unsound. State v. Taylor, 8th Dist. Cuyahoga

No. 98107, 2012-Ohio-5421, ¶ 22, citing State v. Boles, 187 Ohio App.3d 345, 2010-

Ohio-278, 932 N.E.2d 345, ¶ 16-18 (2d Dist.). In addition, the trial court’s abuse of

its discretion must have materially prejudiced the defendant. State v. Lowe, 69 Ohio
St.3d 527, 532, 634 N.E.2d 616 (1994), citing State v. Maurer, 15 Ohio St.3d 239,

265, 473 N.E.2d 768 (1984).

               In the instant case, prior to playing the 911 tape or the body camera

video, W.V. did not testify as to any events regarding the July 12, 2018 incident as it

pertained to the charges of domestic violence and unlawful restraint.             The

prosecutor simply asked W.V. if she called 911 on the night in question, to which

W.V. responded that she did. Then, the prosecutor played the 911 call for the trial

court. The prosecutor then confronted W.V. with various photos of her lip and leg.

These photos were taken by responding officers. Then the prosecutor asked W.V. if

the police responded to her house on July 12, 2018, and if she remembered speaking

to the officers. W.V. stated that police responded to her home and that she “vaguely”

remembered speaking with officers. Then the prosecutor played the body camera

video for the trial court.

               However, at no point did the prosecutor ask W.V. what happened the

night of July 12, 2018, as it pertained to the charges of domestic violence and

unlawful restraint. The only question posed to W.V. by the prosecutor regarding the

domestic violence or unlawful restraint charges was the following exchange:

       [PROSECUTOR]: Okay. But how did you get your injuries?

       [W.V.]: I went to stand up on the bed and probably trying to crack him
       with the [video game controller] and then I fell. I don’t remember.

(Tr. 58-59.)

               In appellant’s third assignment of error, he argues that the trial court

erred in admitting W.V.’s statements within the 911 call and the body camera video
because her statements were inadmissible hearsay. Furthermore, and although

offered within appellant’s first assignment of error, appellant also argues that W.V.’s

statements were not properly admitted as prior inconsistent statements.

              Hearsay is defined as “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). Pursuant to Evid.R. 802, hearsay is

inadmissible unless it falls within an exception provided by the rules of evidence.

State v. Wright, 8th Dist. Cuyahoga No. 100803, 2014-Ohio-5424.

              The city argues that W.V.’s statements in the 911 call and the body

camera video were nonetheless admissible under the excited utterance and present

sense impression exceptions.       Pursuant to Evid.R. 803(1), a present sense

impression is 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.” Pursuant to Evid.R. 803(2),

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 city argues that W.V.’s statements fall under the present sense

impression exception. More specifically, the city argues that W.V. “volunteered the

statements recorded on the body camera videos as she relived the event in her mind,

in close proximity to when the event actually occurred.”
              In support of its argument in this regard, the city directs this court’s

attention to State v. Jordan, 8th Dist. Cuyahoga No. 70783, 1997 Ohio App. LEXIS

5107 (Nov. 13, 1997), and State v. Essa, 149 Ohio App.3d 208, 2011-Ohio-2513, 955

N.E.2d 429 (8th Dist.). In Jordan, this court noted that a child’s statement qualified

as a present sense impression because the statement was spontaneous and

unsolicited. Jordan at 16. The child stated to various witnesses that he had

previously observed Jordan place tape over the baby victim’s mouth to stop the baby

from crying. The child did not testify at trial. This court found that the child’s

statement qualified as a present sense impression because the child uttered the

statement to various witnesses in conjunction with the child’s realization that the

baby had stopped breathing. Id.

              In Essa, this court found that a murder victim’s statement to her

friend just moments before the victim’s death qualified as a present sense

impression. At trial, the friend testified that she spoke to the victim on the phone,

and the victim indicated that she believed a pill given to her by Essa was causing her

present nausea symptoms. Essa at ¶ 127. This court noted that the victim personally

observed Essa give her a pill, then personally experienced nausea, all of which she

recounted to her friend as it was happening in real time. Id.

              We find that the instant case is distinguishable from Jordan and Essa.

First, the city does not present any actual statements W.V. made either in the 911

call or the body camera video that W.V. had previously made when she was

observing the alleged assault. However, in our review of both the 911 call and the
body camera video, W.V. does not provide any of her own statements that she had

previously made when she was observing the alleged assault. In the 911 call and the

body camera video, W.V. was simply describing to the 911 operator and to the

responding officers what events she had previously observed. In this way, within

the 911 call and body camera video, W.V. does not provide a statement that

described or explained an event or condition made while she was perceiving the

event or condition. As such, we find that W.V.’s statements made within the 911 call

and body camera video do not fall under the present sense impression exception.

              W.V.’s statements within the 911 call and body camera video also do

not qualify under the excited utterance exception. A statement may be found to fall

under the excited utterance exception even if that statement is not made

contemporaneously with the startling event. State v. Shutes, 8th Dist. Cuyahoga No.

105694, 2018-Ohio-2188, ¶ 37, citing State v. Duncan, 53 Ohio St.2d 215, 219, 373

N.E.2d 1234 (1978). Indeed, “[t]here is no per se length of time after which a

statement may no longer be considered to be an excited utterance.” Id., citing State

v. Taylor, 66 Ohio St.3d 295, 303, 612 N.E.2d 316 (1993). The essential components

of an excited utterance is that “the statement must be made while the declarant is

under the stress of the event, and the statement may not be a result of reflective

thought.” Id., citing Taylor at 303.

              In the 911 call, W.V. states that appellant had left the residence and

that the alleged assault had occurred an hour before she called 911. In the 911 call,

W.V.’s tone appears calm and collected. Further, there is nothing within the record
to suggest that W.V. is under the stress of excitement cause by the alleged assault.

Based on these facts, we find that W.V.’s statements within the 911 call are the result

of reflective thought and do not qualify as excited utterances.

              Likewise, in the body camera video, it is also clear that W.V. is not

under the stress of excitement caused by the alleged assault. As best we can

determine from the record, responding officers arrived at appellant’s home a few

hours after W.V. made the 911 call. There is nothing to suggest that W.V. was at all

under the stress of excitement of the alleged assault when she was speaking to the

responding officers. The city did not present any other witnesses, namely the

responding police officers, to suggest that W.V. appeared to be under the stress of

excitement of the alleged assault. As such, we also find that W.V.’s statements on

the body camera video are the result of further reflective thought and do not qualify

as excited utterances.

              To the extent that appellant also argues that the prosecutor did not

properly impeach W.V., we agree. Pursuant to Evid.R. 607, “[t]he credibility of a

witness may be attacked by any party except that the credibility of a witness may be

attacked by the party calling the witness by means of a prior inconsistent statement

only upon a showing of surprise and affirmative damage.”

              We note that the city did not call W.V. as a hostile witness pursuant to

Evid.R. 611. “Evid.R. 611 allows a party to call a hostile witness, an adverse party, or

a witness identified with an adverse party and examine the witness with the use of

leading questions on direct examination.” In re K.S., 8th Dist. Cuyahoga No. 97343,
2012-Ohio-2388, ¶ 16. We further note that the trial court, either at the city’s or

appellant’s counsel’s suggestion, did not call W.V. as a court witness as permitted by

Evid.R. 614.

               Although a party may attack the credibility of a witness by means of a

prior inconsistent statement pursuant to Evid.R. 607, there must be a statement

made at trial in which to attack. In this regard, a witness must first testify to a

matter, and then if a witness did not testify accordingly or as anticipated, counsel

may then attempt to impeach a witness with a prior inconsistent statement.

Applying this standard to the testimony in the instant case, at the point in time in

which the prosecutor played the 911 tape and the body camera video, W.V. had not

testified as to the events surrounding the alleged assault. Therefore, there existed

no testimony from W.V. regarding the incident with which the prosecutor could

have attempted to impeach W.V. As such, the 911 call and the body camera video

were not proper impeachment evidence pursuant to Evid.R. 607.

               Furthermore, because W.V. was the city’s witness, the city was

required to show surprise and affirmative damage in order to impeach W.V. with a

prior inconsistent statement under Evid.R. 607. Had the prosecutor asked W.V.

about the incident, and had W.V. in some way denied any wrongdoing by appellant,

then the prosecutor could have attempted to impeach W.V. with a prior inconsistent

statement if the prosecutor was able to show surprise and affirmative damage.

               Based upon our analysis in this regard, the trial court abused its

discretion in admitting W.V.’s statements in the 911 tape and the body camera video
because these statements do not fall under the present sense impression or excited

utterance exceptions, and were not properly admitted as prior inconsistent

statements.

              We appreciate that this matter was tried to the bench, and therefore

we presume, unless affirmatively shown otherwise, that the court only considered

all the testimony for proper purposes. State v. Wingfield, 8th Dist. Cuyahoga No.

107196, 2019-Ohio-1644, ¶ 38, citing State v. Colegrove, 8th Dist. Cuyahoga No.

102173, 2015-Ohio-3476, ¶ 22. However, the procedure in which the evidence was

presented compels us to find that W.V.’s statements were not admissible under a

hearsay exception. As such, we are also compelled based on the record before us to

find that the trial court abused its discretion in admitting the 911 call and the body

camera video as evidence.

              Accordingly, appellant’s third assignment of error is sustained.

              Because appellant’s third assignment of error is sustained and is

dispositive of the instant appeal, we decline to address appellant’s first and second

assignments of error.

               Judgment vacated.       Matter remanded for further proceedings

consistent with this opinion.

      It is ordered that appellant recover of appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

Cleveland Municipal Court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

RAYMOND C. HEADEN, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY
