[Cite as State v. Davis, 2016-Ohio-694.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102726



                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                       CHARLIE DAVIS
                                                       DEFENDANT-APPELLANT




                                JUDGMENT:
                       REVERSED; CONVICTION VACATED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-591362-A

        BEFORE:           Stewart, P.J., Boyle, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: February 25, 2016
ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street, 2nd Floor
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Brad S. Meyer
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

      {¶1} The court, sitting without a jury, found defendant-appellant Charlie Davis

guilty of domestic violence for an incident where he pulled the victim’s hair weave and

threw it to the ground. The two assignments of error raised in this appeal are that there

was insufficient evidence to prove the physical harm element of domestic violence, and

the domestic violence conviction is against the manifest weight of the evidence because

the court failed to give adequate consideration to the claim that Davis acted in

self-defense. We find the evidence insufficient to establish the offense of domestic

violence, so we vacate the conviction.

      {¶2} Davis’s second assigned error argues that the state did not offer sufficient

evidence to prove the offense of domestic violence. He maintains that he did nothing

more than momentarily pull the victim’s hair weave in order to have her release her grip

from his sore hand, and that act alone was insufficient to establish the physical harm

element of the offense.

      {¶3} The Due Process Clause of the Fourteenth Amendment “protects a defendant

in a criminal case against conviction ‘except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he is charged.’” Jackson v.

Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), quoting In re

Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).          The relevant

question when reviewing a claim that the state failed to present sufficient evidence of
guilt “is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Id. This is a highly deferential standard of review because

“it is the responsibility of the [trier of fact] — not the court — to decide what conclusions

should be drawn from evidence admitted at trial.” Cavazos v. Smith, 565 U.S. ___, 132

S.Ct. 2, 3, 181 L.Ed.2d 311 (2011).

       {¶4} The state charged Davis with committing domestic violence in violation of

R.C. 2919.25(A). That section states that no person shall “knowingly cause or attempt to

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

       {¶5} The victim testified that she and Davis had a nine-year “on and off”

relationship that produced four children. On the morning of the day when the incident

between the two occurred, the victim barred Davis from the house they shared. She did

this because she believed his association with certain individuals placed her children at

risk — she learned from a neighbor that her house was the subject of a drive-by shooting

just days earlier.

       {¶6} Davis returned later in the day to retrieve some clothing.           The victim

permitted Davis into the house to retrieve his identification card, but they began arguing

over his insistence that he be allowed to stay. The two were on the staircase leading to

their second floor apartment when the victim became aware that Davis was holding her

driver’s license. This caused a scuffle and the victim conceded that she grabbed Davis’s

right hand — a hand that had recently been injured. The victim stated this resulted in
Davis “yanking my hair.” Tr. 95. The victim testified that she wore a hair weave and

that “[h]e ended up breaking my hair loose and loosening my tracks up.” Tr. 97. Davis

left the house. The victim then heard Davis breaking her car window (the basis for a

criminal damaging count that is not a subject of this appeal). By her own admission, she

was perspiring heavily, causing her hair weave to loosen: “I ended up pulling my tracks

out waiting for the police to come. I was so mad.” Tr. 98. The victim threw her hair

extensions onto the driveway.

       {¶7} The victim made a 911 call, and a police officer who responded to the scene

discovered what he described as the victim’s “wig” on the driveway. He testified that he

did not see any injuries on the victim. Tr. 75. It was uncontradicted that the victim

made no complaints of suffering any injury nor did she receive medical treatment.

       {¶8} When announcing its verdict on the domestic violence count, the court noted

that the victim had serious credibility issues. The victim admitted that when she called

911, she falsely reported that Davis was in possession of a .357 Magnum firearm, had put

the gun in her mouth and threatened to kill her, and later fired three shots at the house.

She claimed that she made these allegations with the hope that the police would arrest

Davis for his own safety because some people to whom he owed money were “looking

for him.” When the responding police officer asked the victim about the gun, the victim

doubled-down on her lie, saying that Davis had shot at a “beam” of the house. The

police officer testified that he could find no evidence that Davis had a gun, much less that
he fired it as claimed by the victim. There were no bullet casings or obvious points of

impact to be found anywhere on the scene.

       {¶9} The victim had other credibility issues. For example, she testified that while

Davis was in jail awaiting trial, they discussed whether she should claim that she was

under the influence of PCP when she called the police as a means of excusing her false

police report. Davis rejected that idea because he feared that children’s services might

take custody of their children. The couple also discussed that the victim would tell the

police that Davis had only used a BB gun. When asked whether she and Davis were

“working together,” the victim said:

       [Davis] was trying to help me. He know that I lied cuz I put him in jail
       before on false lies. He just didn’t want me to get in trouble for me lying
       so it wasn’t like we trying to come up with nothing. It was just like he just
       don’t want to see me in trouble.

The victim explained that on a prior occasion she made a false accusation against Davis,

but went before the grand jury and told it that she lied and gave a false police statement.

       {¶10} The court stated that it found the victim’s version of events “incredible” and

“questionable.” It stated:

       [The victim] testified both on direct examination and on cross-examination
       that her hair and weave were pulled. She did testify that she pulled the rest
       of it out, that she was sweating. She did say that the defendant had
       grabbed her hair, pulled on her tracks, that she saw him break out the car
       windows. She made a motion when she testified to that, and when she was
       on the stand, I saw her using both of her hands as she described how the
       defendant did throw a brick in the back window. There’s no testimony as to
       which hand would be the defendant’s dominant hand and certainly there’s
       no testimony that the defendant was disabled by virtue of having — it’s
       been referred to as a bad hand and in fact, there is testimony that the weave
      was pulled, that the weave was grabbed and corroborating testimony about
      the weave that made [the police officer] find it on the sidewalk.

      I did not find it to be credible * * * [the assistant prosecuting attorney] said
      it’s difficult to parse this out by the trier of fact, who can believe some of
      the testimony and not all, can disbelieve all, and here, I did not believe that
      with everything that was going on that two days after an incident where [the
      victim] says her house is being shot at because people said the defendant
      owed her money, that she staged this event two days later and put her weave
      on the sidewalk to make sure that the defendant would be arrested. I find
      that to be incredible. I do find the fact that the weave was on the sidewalk
      — I’m sorry — on the driveway, found by [the police officer] after hearing
      from [the victim] that her hair was pulled, her tracks were pulled by the
      defendant, and that they were tussling to be more than simply the word of a
      woman whose credibility at times is questionable.

(Emphasis added.)

      {¶11} The court’s remarks show that it considered the act constituting domestic

violence to be the removal of the victim’s hair extensions as evidenced by their presence

on the driveway — a fact, the court states, is corroborated by the police officer. Viewing

the evidence most favorably to the state shows that the victim, not Davis, removed the

hair extensions and threw them on the driveway. There was no evidence at all that Davis

pulled out the hair extensions and threw them on the ground.

      {¶12} The court rejected the victim’s version of events because it did not find her

credible. Noting that the trier of fact is free to disbelieve some, but not all, of the

victim’s testimony, the court rejected the victim’s testimony that she removed the hair

extensions and concluded that Davis must have pulled out the hair extensions.

      {¶13} The court could very reasonably find that the victim’s testimony was not

credible given that she had purposely lied on another occasion to have Davis incarcerated.
 But having found the victim not credible, the court could not assume an alternative

factual scenario where Davis pulled out the hair extensions — there was no testimony of

any kind to support that conclusion. It is a bedrock principle of law that the trier of fact

decide cases “solely on the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217, 102

S.Ct. 940, 71 L.Ed.2d 78 (1982). This was not a case where there was competing

evidence — the victim’s testimony stood alone. If the court did not believe the victim,

there was no other evidence presented upon which it could find Davis guilty of domestic

violence.

       {¶14} Any assertion that a recording of the victim’s 911 call to the police

constituted evidence of domestic violence would be misplaced because the court found

that the victim lied in making the 911 call. In that call, the victim reported that Davis

had fired a handgun three times and threatened to kill her. When ruling on Davis’s

Crim.R. 29(A) motion for judgment of acquittal on counts of felonious assault (with a

corresponding firearm specification) and having a weapon under disability, the court

noted that the police officer who arrived on the scene found no shell casings or any other

evidence to verify the 911 report that Davis discharged a firearm. The absence of

corroborating evidence relating to the discharge of a firearm coupled with the victim’s

own recantation of her allegations against Davis led the court to state:

       The testimony on the stand from [the victim] was that there was no gun. I
       understand, and certainly it was clear that what [the victim] said on the
       stand is different than what [the victim] said in a 911 call to the police.
       We also heard from [the victim] that she said she lied to cover a lie to cover

       a lie. She is, and I don’t mean this disrespectfully, an admitted liar, but if a

       trier of fact finds that a witness has willfully lied in their testimony, and I do

       believe she’s untruthful and she established that she is, I could disbelieve all

       her testimony and here, I believe that when there’s uncontroverted parts of

       her testimony because of her lack of credibility, it is too much of a leap for

       the trier of fact, for any trier of fact, to conclude that a firearm was involved

       here.

       {¶15} With the court having specifically rejected the victim’s allegation that Davis

used a firearm during the altercation, the 911 recording provides no independent evidence

of domestic violence sufficient to overcome the victim’s recantation of her accusations

against Davis. And while the victim did state during the 911 call that Davis had yanked

her hair and loosened a track of her weave, she testified at trial that he did so on the stairs

inside the house because she had grabbed his sore hand and that she pulled the hair

extensions from her head and threw them on the driveway. With the court finding that

the presence of the hair weave outside on the driveway constituted proof of domestic

violence, what happened on the stairs inside the house played no part in the court’s ruling.

 The 911 recording thus provides no evidence in support of the conviction.

       {¶16} The state argues that even without evidence that Davis caused physical

harm, the court’s verdict was justified because he knowingly attempted to cause physical

harm by pulling on her hair extensions.
       {¶17} Although the state offered as an alternative basis for conviction that Davis’s

actions could be viewed as an attempt to cause physical harm under R.C. 2919.25(A), the

court’s remarks when announcing its verdict show that it did not find Davis guilty of an

attempt to cause physical harm. The court’s emphasis on the hair extensions being found

on the driveway were a clear indication that it based its verdict on the physical harm

Davis allegedly caused when pulling the hair extensions out.1 With the court having

clearly articulated the basis for its verdict as one resting on Davis causing physical harm,

and at the same time not having made any finding with respect to whether Davis

attempted to cause physical harm to the victim while inside the house, we cannot find that

the evidence supported a guilty finding on an attempt to commit physical harm. We

sustain the second assignment of error and vacate Davis’s conviction for domestic

violence under Count 1 of the indictment. The first assignment of error is moot. See

App.R. 12(A)(1)(c).

       {¶18} Judgment reversed. Conviction vacated.

       It is ordered that appellant recover of said 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 common

pleas court to carry this judgment into execution.


         For this same reason, that part of the 911 recording in which the victim reported that Davis
       1


pulled her hair is not additional evidence to support the court’s verdict. The victim testified that the
act described in the 911 call occurred inside the house when Davis “yanked” her hair and loosened a
track that held her hair weave. The court did not base its verdict on this act, but on the hair weave
found outside on the driveway.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, PRESIDING JUDGE

SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
OPINION);
MARY J. BOYLE, J., DISSENTS (WITH SEPARATE OPINION)


SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:

       {¶19} I concur in judgment only with the lead opinion, but I must write separately

to clarify the status of the evidence cited by the dissent. The state never introduced the

911 tapes or the victim’s written statement to police as substantive evidence of guilt in

this case. During her direct examination, the victim testified to lying to the responding

officers about the firearm in order to hasten their response. Tr. 99:16-18. In response,

and irrespective of the impropriety of the state impeaching its own witness through

hearsay, the state played the 911 tapes. After this exchange, the state attempted to

refresh the witness’s recollection with statements in her written statement to police

officers. That statement was neither admitted into evidence as a recorded recollection,

nor was it even used to refresh the victim’s memory. Tr. 195-196. In response to seeing

the report, the victim stated that her memory was not at issue — she just lied in the report.

 Tr. 105:5-7.
       {¶20} As it pertains to the 911 tapes, extrinsic evidence of a prior inconsistent

statement is only admissible if, in pertinent part, the statement is offered solely for the

purposes of impeaching the witness, i.e., not as substantive evidence of guilt. Evid.R.

613(B). On a sufficiency of the evidence standard of review, this court cannot rely on

evidence pertaining to the credibility of the witnesses. State v. Julian, 129 Ohio App.3d

828, 836, 719 N.E.2d 96, 101 (1st Dist.1998) (noting that prior inconsistent statements

being used to impeach a witness are not substantive evidence of the crime itself).

       {¶21} The state did not attempt to introduce the prior statements by establishing a

foundation for an exception to the hearsay rule, either by demonstrating the applicability

of Evid.R. 803(3) (excited utterance) or 803(5) (recorded recollection), or by establishing

the statements were not hearsay pursuant to Evid.R. 801(D)(1). Further, we cannot

affirm the conviction in this appeal, based on the theory that the excited utterance

exception could have applied. The defense was not afforded the opportunity at trial to

oppose the state’s foundation for the introduction of the 911 tapes as substantive evidence

of guilt. Because the state introduced the 911 tapes as impeachment evidence only, the

defense had no reason to oppose its admission into evidence at the end of trial. That

does not convert the impeachment evidence into substantive evidence for the purposes of

a sufficiency of the evidence challenge.

       {¶22} The dissent also asserted that the lead opinion sua sponte raised an argument

about the trial court engaging in an “alternative factual scenario” to reach its ultimate

decision that was not briefed or argued by the parties. I find the verbiage “alternative
factual scenario” in the lead opinion irrelevant to the disposition. The issue here is about

the sufficiency of the evidence. If anything, the phrase “alternative factual scenario”

goes to the heart of the sufficiency argument raised and briefed in this case. The reality

is the trial court simply assumed facts that were not in the record, as outlined in paragraph

15 of the dissent. As Davis specifically argued on appeal, there was no evidence that

pulling the hair extensions was an attempt to cause or caused physical harm to the victim

in this case, an essential element to the domestic violence crime. The state had an

opportunity to address Davis’s argument. Thus, even if the rationale espoused in the lead

opinion were the majority opinion of this panel, no violation of State v. Tate, 140 Ohio

St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888 occurred.

       {¶23} The victim recanted. The investigating officer and detective, the only other

witnesses, were unable to provide sufficient circumstantial evidence to support a

conviction.   In this particular case, there was no other evidence to consider that

demonstrated Davis’s guilt; and I, therefore, concur in judgment only.



MARY J. BOYLE, J., DISSENTING:

       {¶24} I respectfully dissent. Although the victim recanted her prior statements at

trial, saying she lied in her 911 call and when the 911 operator called her back, and that

she lied in her statement to police officers at the scene and in her statement to detectives a

few days later, it is my view that there was sufficient evidence to find beyond a
reasonable doubt that Davis knowingly caused or attempted to cause physical harm to the

victim in this case.

       {¶25} In his sufficiency argument, Davis only argues that the state failed to

present sufficient evidence of the physical-harm element of R.C. 2919.25(A).              He

contends that his actions did not establish an attempt to cause physical harm “as to their

duration” or “as to their severity.” Specifically, Davis argues that the evidence only

showed that he “grabbed [the victim’s] hair long enough for her to release” her grasp on

him. He further argues that the evidence only established that he “attempted to grab [the

victim’s] fake hair,” what he claims was “essentially” just a “wig.” He maintains that

there was no allegation that he “pulled out [the victim’s] real hair.”

       {¶26} I disagree with Davis regarding what the state is required to prove under

R.C. 2919.25(A). There is no requirement under R.C. 2919.25(A) that “physical harm”

be of any certain duration or severity. In fact, an offender does not even have to cause

injury to his victim to be guilty of domestic violence. Cleveland v. Amoroso, 8th Dist.

Cuyahoga No. 100983, 2015-Ohio-95, ¶ 31, citing State v. Roberson, 5th Dist. Stark No.

2012CA00215, 2013-Ohio-3449, ¶ 18. “‘A defendant may be found guilty of domestic

violence even if the victim sustains only minor injuries, or sustains no injury at all.’” Id.,

citing State v. Blonski, 125 Ohio App.3d 103, 114, 707 N.E.2d 1168 (9th Dist.1997).

Any harm is sufficient. Id.

       {¶27} Moreover, I wholeheartedly disagree with Davis’s account of what occurred.

 The victim testified that she had just gotten her “weave” done, which she explained
meant that she just had hair extensions “glued in.” The victim’s “weave” was not just a

“wig.” Thus, Davis’s actions were more akin to pulling the victim’s “real hair,” rather

than pulling “just a wig.” And the evidence showed that Davis pulled the victim’s

“glued in” extensions hard enough that it loosened “her tracks.”            That is sufficient

evidence to establish “physical harm” under R.C. 2919.25(A).

       {¶28} Accordingly, based upon Davis’s only sufficiency arguments on appeal, I

would overrule them and affirm the judgment of the trial court.

       {¶29} The lead opinion, however, vacates Davis’s domestic violence conviction

after finding that the trial court wrongly “assume[d] an alternative factual scenario.” I

disagree for several reasons. First, Davis did not argue this point. Davis only argued

that the state failed to present sufficient evidence of physical harm under R.C.

2919.25(A). Thus, the lead opinion improperly raises this issue sua sponte. The Ohio

Supreme Court has made it clear that “[a]ppellate courts should not decide cases on the

basis of a new, unbriefed issue without ‘giv[ing] the parties notice of its intention and an

opportunity to brief the issue.’” See State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667,

19 N.E.3d 888, ¶ 24, quoting State v. 1981 Dodge Ram Van, 36 Ohio St.3d 168, 170, 522

N.E.2d 524 (1988) (reversing this court in part because although the defendant had

challenged the sufficiency of the evidence in his direct appeal, he did not do so on the

basis for which we reversed). It is my view that if the lead opinion wishes to reverse

Davis’s conviction on this issue, it should first give the parties an opportunity to brief it.
       {¶30} I further disagree with the lead opinion that the trial court “assumed an

alternative factual scenario.” It is my view that the lead opinion has misconstrued what

the trial court actually found and concluded.             A review of the evidence and what

occurred at trial is necessary.

       {¶31} When the victim called 911, the victim was in a highly excited state; she was

yelling and crying, and telling the operator to “hurry.” The victim repeatedly told the

operator that Davis just shot at her. The victim told the 911 operator that Davis shot at

her three times. The victim further stated, “please hurry up, he’s going to kill me.”

When the 911 operator called the victim back, which was before police officers had

arrived, the victim told the operator that she and Davis had gotten into a fight, and that

Davis pulled her hair and put a gun in her mouth while he dragged her, and then told her

that he was going to kill her. The victim further stated that the gun that Davis used

during the incident was a “357 long barrel” gun.

       {¶32} Officer Ken Kirk responded to the victim’s home. When he arrived, he

said that he saw a car in the driveway that had “broken out windows.” He further saw “a

weave in the driveway on the ground.” When he first saw the victim, Officer Kirk said

that she was “upset” and “hysterical.” Officer Kirk attempted to testify as to what the

victim told him when he arrived at the scene, but the trial court repeatedly sustained

Davis’s objections and would not permit Officer Kirk to discuss what the victim said

when he arrived.2


           It is my view that the trial court erred in doing so.   The officers arrived soon after the
       2
       {¶33} The victim, however, testified on cross-examination as to what she actually

told police officers when they arrived. The victim testified that she told police officers

that Davis dragged her down the stairs, punched her in the face, put a gun in her mouth,

and said that he was going to shoot her. The victim further testified that she told police

that Davis then “beat her some more,” and that she ran to get away from him. When she

ran away from him, he shot at her.

       {¶34} At trial, the state played a jailhouse call from Davis to the victim during the

victim’s testimony. In the call, Davis and the victim discuss what the victim could say in

court. At one point during the call, the victim stated that she was just going to say “that

the gun was a BB gun.” Davis got angry at her and said, “man, don’t tell them that shit.”

 He further stated, “don’t tell there was a BB gun, * * * tell them you were drunk or

something.”     At that point, the victim stated, “I’ll tell them that I was on PCP or

something.”

       {¶35} The Ohio Supreme Court has held that when reviewing a challenge to the

sufficiency of the evidence, an appellate court cannot “ignore the record”; it must look at


victim called 911. Officer Kirk said the victim was “upset” and “hysterical” when he arrived.
Thus, what the victim orally told Officer Kirk should have come in under the excited-utterance
exception to the hearsay rule. See Amoroso, 8th Dist. Cuyahoga No. 100983, 2015-Ohio-95
(although the victim did not have visible injuries when police arrived, the victim was “very upset,”
and “crying,” saying that “her husband grabbed her by the wrist and slammed her into a wall” and
that “her husband then punched her in the throat”; we held that the victim’s statements to the officer
were admissible under the excited-utterance exception to the hearsay rule); State v. Sanchez, 8th Dist.
Cuyahoga Nos. 93569 and 93570, 2010-Ohio-6153 (victim’s statements to police officer identifying
her boyfriend as the person who caused her injuries were admitted as excited utterances when the
evidence established that when the officer arrived, the victim was upset and crying, and “waving her
hands, yelling, just carrying on in an upset manner”).
“all of the evidence” submitted at trial before vacating a defendant’s conviction. Tate,

140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, at ¶ 1, citing Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶36} The lead opinion concludes that there was not sufficient evidence to convict

Davis because the trial court, as the trier of fact, “rejected the victim’s testimony that she

removed the hair extensions and concluded that Davis must have pulled out the hair

extensions.” The lead opinion further concludes that when the trial court “found the

victim not credible, the [trial] court could not assume an alternative factual scenario

where Davis pulled out the hair extensions.”

       {¶37} I disagree with the lead opinion’s interpretation of the trial court’s findings.

I do not agree that the trial court wrongly “assumed an alternative factual scenario.” In

paragraph 10 of the lead opinion, the lead opinion quotes the trial court’s findings,

emphasizing where it believes the trial court “assumed an alternative factual scenario”:

       I do find the fact that the weave was on * * * the driveway, found by [the
       police officer] after hearing from [the victim] that her hair was pulled, her
       tracks were pulled by the defendant, and that they were tussling to be more
       than simply the word of a woman whose credibility at times is questionable.

(Emphasis is in the lead opinion.)

       {¶38} It is my view, when reading this finding made by the trial court, that the

trial court simply found that Davis pulled the victim’s hair — not that Davis pulled the

victim’s “tracks” all the way out and threw them on the driveway. There is nothing in

the trial court’s findings that indicates it rejected the victim’s testimony that she was the

one who actually removed her hair weave (or “tracks”) and threw it (or “them”) on the
driveway — after Davis pulled her hair, loosening the tracks. The trial court was simply

noting that it believed the victim (at least as to this part) that Davis pulled her hair — hard

enough to loosen her “tracks” that were glued to her own hair — and then she pulled the

extensions out the rest of the way and threw them on the driveway. The trial court

further indicated that the fact that the police officer found the weave in the driveway

corroborated the fact that Davis and the victim tussled and that Davis pulled the victim’s

hair.

        {¶39} I also disagree with the lead opinion that “[a]ny assertion that a recording of

the victim’s 911 call to the police constituted evidence of domestic violence would be

misplaced because the court found that the victim lied in making the 911 call.” In ruling

on Davis’s Crim.R. 29 motion, however, the trial court explicitly found that the victim

lied in the 911 call about Davis having the gun. But the court never stated that it found

the victim’s entire 911 call to be untrustworthy.

        {¶40} I further disagree with the lead opinion that the 911 call (and the victim’s

statements to the 911 operator that Davis “yanked her hair and loosened a track of her

weave”) does not corroborate the victim’s testimony that Davis pulled the victim’s hair

such that he loosened her “tracks.” The lead opinion acknowledges what the victim told

the 911 operator, but then finds that because the victim testified at trial that Davis pulled

her hair “on the stairs inside the house,” and the trial court found domestic violence based

upon “the presence of the hair weave outside on the driveway,” that “what happened on

the stairs inside the house played no part in the court’s ruling.” Again, the lead opinion
is misconstruing what the trial court actually found. What happened on the stairs inside

the house is entirely relevant — because that is where the act of domestic violence

occurred, not in the driveway. The trial court never found that Davis “yanked” the

victim’s hair in the driveway. Nor did the trial court find that Davis pulled the victim’s

weave all the way out and threw it in the driveway. The victim testified that she pulled

her weave all the way off after Davis broke her car window and left; that is when she

threw it in the driveway. She was mad when she saw her car window, so she pulled the

weave out and threw it on the driveway. Thus, I disagree with the lead opinion’s

conclusion that “what happened on the stairs inside the house” played no part in the trial

court’s ruling.

       {¶41} It is also my view that the trial court’s finding — that Davis and the victim

“tussled” and that Davis pulled the victim’s hair (hard enough to loosen her “glued in”

extensions or weave) — supported a finding of domestic violence under either provision

of R.C. 2919.25(A) (i.e., that Davis “knowingly caused or attempted to cause physical

harm” to the victim). Thus, I disagree with the lead opinion’s conclusion in paragraph

17 and footnote one. Again, it is my view that the lead opinion has misconstrued the trial

court’s findings of fact (and is not viewing the evidence in a light most favorable to the

prosecution — which is what we are required to do in a sufficiency analysis).

       {¶42} Accordingly, I would overrule Davis’s second assignment of error and

conclude that the state presented sufficient evidence under R.C. 2929.19(A) that Davis
knowingly caused or attempted to cause physical harm to the victim, who was a family or

household member.

       {¶43} I also want to briefly respond to the concurring in judgment only (“CJO”)

opinion. I agree that the state did not introduce the victim’s written statement to police

into evidence (but the victim did testify as to what she told police). I disagree, however,

with the CJO opinion that the state only introduced the 911 recordings as impeachment

evidence.    It is my view that the state entered the 911 recordings into evidence as

substantive evidence of Davis’s guilt. Not only did it do so, it argued as much during

Davis’s Crim.R. 29 motion for acquittal.

       {¶44} When the victim was testifying, the state played the 911 calls in court.

Notably, Davis did not object to the state playing the recordings for any reason, nor did

Davis object to the recordings being admitted at the close of the state’s case. Further,

during Davis’s Crim.R. 29 arguments to the court, the state argued that the 911 calls were

substantive evidence that Davis had a gun and used it to threaten and shoot at the victim.

In his response, Davis did not argue that the 911 recordings were not substantive

evidence.

       {¶45} In this case, the victim’s statements to the 911 operator were admissible as

substantive evidence under Evid.R. 803(2), which sets forth the excited-utterance

exception to the hearsay rule.3 This court has held that “[p]recedent overwhelmingly


         I also disagree with the CJO opinion that the state did not set forth the proper foundation for
       3


the 911 call to be admitted as an excited utterance. It is my view that the state established: (1) the
existence of a startling event, (2) the victim-declarant possessed first-hand knowledge, (3) the
supports the conclusion that 911 calls are admissible either as excited utterances or

present sense impressions.”        State v. Davidson, 8th Dist. Cuyahoga No. 91224,

2009-Ohio-2125, ¶ 14, citing State v. Rose, 8th Dist. Cuyahoga No. 89457,

2008-Ohio-1262; see also State v. Banks, 10th Dist. Franklin No. 03AP-1286,

2004-Ohio-6522;      State   v.   Jackson,    2d    Dist.   Champaign      No.    2004-CA-24,

2005-Ohio-6143; State v. Newell, 5th Dist. Stark No. 2004CA00264, 2005-Ohio-2848;

and State v. McNeal, 3d Dist. Allen No. 1-01-158, 2002-Ohio-2981. Thus, the trial

court, as the factfinder, could most certainly consider the 911 recordings as substantive

evidence of Davis’s guilt.

       {¶46} In this case, it is clear that the victim was recanting her original statements

regarding domestic violence at trial. The victim and Davis had been in a relationship for

ten years. He was the father of her four children, and provided support and income to

her. Unfortunately, it is all too common that victims recant their statements by the time

of trial in domestic violence cases. Indeed, the victim in this case had signed a “no

prosecution” form in other cases against Davis after initially reporting that he had abused

her. Here, there was certainly sufficient evidence to find that Davis committed domestic

violence beyond a reasonable doubt based upon the 911 call, her statements to police, and

her weave that was observed on the ground by Officer Kirk (corroborating that the two


victim-declarant was most definitely under the stress and excitement of the event, and (4) the
victim-declarant’s statements related to the startling event. See State v. Boles, 190 Ohio App.3d
431, 2010-Ohio-5503, 942 N.E.2d 417, ¶ 34 (6th Dist.), citing State v. Duncan, 53 Ohio St.2d 215,
373 N.E.2d 1234 (1978).
“tussled” and Davis pulled the victim’s hair hard enough to loosen her glued “tracks,”

which she subsequently pulled out and threw in the driveway).

      {¶47} Accordingly, I respectfully dissent.
