[Cite as State v. Carter, 2017-Ohio-7443.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 13-17-10

        v.

JAMES D. CARTER, JR.,                                   OPINION

        DEFENDANT-APPELLANT.




                     Appeal from Tiffin-Fostoria Municipal Court
                            Trial Court No. CRB 1700074

                       Judgment Reversed and Cause Remanded

                           Date of Decision: September 5, 2017




APPEARANCES:

        W. Alex Smith for Appellant

        Charles R. Hall, Jr. for Appellee
Case No. 13-17-10



PRESTON, P.J.

       {¶1} Defendant-appellant, James D. Carter Jr. (“Carter”), appeals the March

28, 2017 judgment entry of the Tiffin-Fostoria Municipal Court. For the reasons

that follow, we reverse and remand.

       {¶2} This case stems from events that took place on December 31, 2016.

Carter traveled to the residence of Nina Williams (“Williams”) in Fostoria, Ohio.

Carter was intoxicated when he arrived at Williams’s residence, and he eventually

passed out on Williams’s bed. He awoke to find Williams gone, and he called

Williams several times in an effort to determine her location. During the course of

these calls, Carter threatened to burn down Williams’s residence. Shortly after the

last of Carter’s numerous calls to Williams, a fire was reported at Williams’s

residence. Later that same day, Williams spoke with law enforcement about her

dealings with Carter, including his threats to set fire to her residence.

       {¶3} On January 17, 2017, Carter was charged with Count One of aggravated

menacing in violation of R.C. 2903.21(A), a misdemeanor of the first degree. (Doc.

No. 1). On February 7, 2017, Carter appeared for arraignment and pled not guilty

to the count in the complaint. (Doc. No. 3).

       {¶4} A bench trial took place on March 28, 2017. (Doc. No. 38). That same

day, the trial court found Carter guilty of the sole count of the complaint. (Doc. No.



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17). The trial court sentenced Carter to 180 days in jail. (Id.). The trial court filed

its judgment entry of sentence on March 28, 2017. (Id.).

       {¶5} Carter filed his notice of appeal on April 5, 2017. (Doc. No. 18). He

brings three assignments of error for our review.

                            Assignment of Error No. I

       The Trial Court Erred When It Allowed Statements Of The
       Alleged Victim, Who Was Not Present At Trial, In Violation Of
       The Confrontation Clause Of The 6th And 14th Amendments To
       The United States Constitution.

       {¶6} In his first assignment of error, Carter argues that the trial court erred

by admitting into evidence statements of Williams despite the fact that Williams

was not present at the trial in violation of Carter’s rights under the Confrontation

Clause of the 6th Amendment. Specifically, Carter argues that the trial court erred

when it allowed into evidence the statements of Williams, who was not present at

the trial, having failed to appear despite a subpoena. Carter argues that her failure

to appear rendered him unable to confront his accuser and to cross-examine her.

Carter further argues that the trial court erred by admitting into evidence numerous

hearsay statements that fall outside any exceptions to the rule against hearsay.

       {¶7} The Sixth Amendment to the United States Constitution provides that

all criminal defendants have the right to be confronted with the witnesses against

them. State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, ¶ 172. The admission

of testimonial hearsay made by a declarant who does not testify during a trial

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violates the Sixth Amendment unless (1) the declarant is unavailable and (2) the

defendant had a prior opportunity to cross-examine the declarant. Id. at ¶ 173, citing

Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354 (2004). In evaluating

whether a statement is testimonial for Sixth Amendment purposes, we must apply

the “primary-purpose test,” examining the reasons for and purpose of the record at

issue and objectively evaluating the statements and actions of the parties to the

encounter. State v. Maxwell, 139 Ohio St.3d 12, 22, 2014-Ohio-1019, ¶ 49, citing

Michigan v. Bryant, 562 U.S. 344, 359-360, 131 S.Ct. 1143 (2011) and Williams v.

Illinois, 567 U.S. 50, 82-84, 132 S.Ct. 2221 (2012). A statement is less likely to be

testimonial if it is given to allow police to meet an “ongoing emergency”—a

circumstance that extends beyond the initial victim and is a potential threat to the

responding law enforcement and the public at large.” State v. Jones, 135 Ohio St.3d

10, 37-38, 2012-Ohio-5677, ¶ 148-149, citing Bryant at 359. The presence or

absence of an ongoing emergency is but one factor in the analysis of whether a

statement is testimonial. Id. at ¶ 153. Other factors include the level of formality

of the encounter, as well as the specific statements and actions of both the declarant

and the interrogator. Id. at ¶ 154-155, citing Bryant at 366-367. A witness is not

considered unavailable unless the State has made reasonable good-faith efforts to

ensure the witness’s attendance at trial, and the proponent of the evidence bears the

burden of demonstrating that such efforts have been made. State v. Workman, 171


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Ohio App.3d 89, 95, 2007-Ohio-1360, ¶ 16. The issuance of a subpoena does not,

standing alone, constitute a reasonable good-faith effort to procure a witness’s

attendance where other methods of doing so are also available. Id. at ¶ 21, citing

State v. Keairns, 9 Ohio St.3d 228, 232 (1984).

       {¶8} “Hearsay” is “a statement, other than one made by the declarant while

testifying at a trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). Hearsay is generally inadmissible “except as otherwise

provided by the Constitution of the United States, by the Constitution of the State

of Ohio, by statute enacted by the General Assembly not in conflict with a rule of

the Supreme Court of Ohio, by these rules, or by other rules prescribed by the

Supreme Court of Ohio.” Evid.R. 802. The excited utterance exception to the

general prohibition against hearsay provides that a hearsay statement is admissible

if it 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.” Evid.R.

803(2). The Supreme Court of Ohio articulated a four-part test to determine when

the excited utterance exception operates, holding that the exception is applicable

when (1) there was an occurrence startling enough to create nervous excitement in

the declarant sufficient to dull his reflective faculties and make his statements an

unreflective and sincere expression of his impressions and beliefs, (2) the statement

or declaration, even when not strictly contemporaneous with the exciting event, was


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made before there was time for the nervous excitement to lose its domination over

the declarant’s reflective faculties so that such domination continued and was

sufficient to make the declarant’s statements and expressions unreflective and thus

sincere expressions of his actual impressions and beliefs, (3) the statement or

declaration related to the exciting event or the circumstances thereof, and (4) the

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

statement or declaration. State v. Taylor, 66 Ohio St.3d 295, 300-301 (1993), citing

Potter v. Baker, 162 Ohio St. 488, 496 (1955). The Supreme Court of Ohio

elaborated on the second of those four criteria when it explained that there is no per

se length of time beyond which a statement cannot be considered an excited

utterance; however, the statement must be made while the declarant is still under

the stress of the event such that the statement is not the result of reflective thought.

State v. Wilson, 4th Dist. Scioto No. 13CA3542, 2015-Ohio-2016, ¶ 89, citing Jones

at ¶ 168, citing Taylor at 303. The passage of time between the event and the

statement is relevant but not dispositive of whether the exception applies, and each

case must be decided on its own circumstances. Id., citing id.

       {¶9} 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.” State v. Tibbetts, 92 Ohio St.3d 146, 159 (2001), citing

Evid.R. 803(1). The spontaneity of the statement is essential to its trustworthiness


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because the minimal lapse of time between a particular event and the statement in

question gives the declarant less time to reflect on the event so recently perceived.

State v. Little, 3d Dist. Allen No. 1-16-29, 2016-Ohio-8398, ¶ 14, citing State v.

Upshaw, 3d Dist. Logan, 8-02-46, 2003-Ohio-5756, ¶ 7.              Though temporal

proximity is essential to a present sense impression analysis, there is no bright-line

rule as to what period of elapsed time precludes a statement from being admissible

as a present sense impression. State v. May, 3d Dist. Logan No. 8-11-19, 2012-

Ohio-5128, ¶ 42.

       {¶10} Decisions regarding whether to admit evidence rest within the sound

discretion of the trial court, and those decisions will not be disturbed on appeal

absent an abuse of discretion. State v. Kelley, 3d Dist. Putnam No. 12-2000-15,

2001WL 211408 (March 5, 2001), citing Wyant v. Marble, 135 Ohio App.3d 559,

563 (1st Dist.1999). An “abuse of discretion” connotes more than an error in

judgment; it implies that a court’s attitude is unreasonable, arbitrary, or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980). However, “[t]his

court reviews de novo the question of whether a defendant’s constitutional rights

under the Confrontation Clause have been violated.” State v. Dial, 3d Dist. Allen

No. 1-13-11, 2013-Ohio-3980, ¶ 11, quoting State v. Diggle, 3d Dist. Auglaize No.

2-11-19, 2012-Ohio-1583, ¶ 21.




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       {¶11} At the bench trial on this matter, the State called Frank Reitmeier

(“Reitmeier”), an investigator employed by the State Fire Marshal’s Office. (March

28, 2017 Tr. at 10). On direct examination, Reitmeier testified that he was called to

Fostoria, Ohio on December 31, 2016 to investigate a fire. (Id. at 12). Reitmeier

testified that, when he arrived at the scene of the fire, he saw a trailer that had been

“extensively damaged” by fire such that, based on Reitmeier’s training and

experience, the trailer was a total loss. (Id. at 13-14). Reitmeier further testified

that his records indicate that the fire was reported at 10:49 a.m. (Id. at 15).

Reitmeier averred that he spoke with Williams on December 31, 2016 at 3:20 p.m.

(Id. at 14-15). Reitmeier testified that, when he spoke with Williams, she was

“distraught,” “emotional,” and “upset” about the fire and the circumstances

surrounding it. (Id. at 16). Reitmeier testified that Williams informed him that

Carter had appeared at her home at 7 a.m. and was intoxicated, argumentative, and

upset. (Id. at 19). Reitmeier then testified that Williams told him that Carter

attempted to have sexual intercourse with her, which she resisted, soon after which

Carter passed out on Williams’s bed. (Id.). Reitmeier next testified that Williams

averred Carter remained asleep for some time and that, at approximately 9:30 a.m.,

Williams departed her residence and began to walk toward her mother’s residence.

(Id.). Reitmeier testified that Williams informed him that Carter was angry when

he awoke to find Williams gone from the residence and that Carter called Williams


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to inform Williams that, if she did not return, he would burn down her trailer. (Id.

at 20, 21).

       {¶12} In addition to the hearsay testimony described above, Reitmeier

further testified that, based on Williams’s memory, as well as his own observation

of Williams’s phone, Williams received ten calls from Carter between 10:12 a.m.

and 10:37 a.m. (Id. at 20). Rietmeier asserted that, to his knowledge, no one other

than Carter was in the vicinity of the trailer at the time of the numerous phone calls.

(Id. at 24). He testified that the fire at Williams’s residence was reported at 10:49

a.m. (Id. at 22).

       {¶13} We conclude that the trial court abused its discretion in admitting the

hearsay statements described above. The trial court did not make specific findings

regarding which exception—excited utterance or present sense impression—it

found permitted the admission of the hearsay at issue in this case. (See March 28,

2017 Tr. at 16-18). However, the present sense impression exception is inapplicable

here. See State v. Little, 3d Dist. Allen No. 1-16-29, 2016-Ohio-8398, ¶ 14, citing

State v. Upshaw, 3d Dist. Logan, 8-02-46, 2003-Ohio-5756, ¶ 7 (noting that the key

to the admissibility of a statement as present sense impression is that the statement

was made contemporaneously with an event or immediately thereafter). Put simply,

there is nothing in the record that demonstrates the degree of temporal proximity

between the statements Williams relayed to Reitmeier and the time that Williams


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perceived those statements. The record reveals only that Carter made the statements

at issue between 10:12 a.m. and 10:37 a.m. and that Williams spoke with Reitmeier

for the first time at 3:20 pm. (March 28, 2017 Tr. at 14-15, 20). The trial court

could not reasonably find that the present sense impression exception to be

applicable in the absence of any knowledge regarding when Williams perceived the

statements she related to Reitmeier. Little at ¶ 14, quoting Upshaw at ¶ 7.

       {¶14} Under similar circumstances in State v. Smith, the Ninth District Court

of Appeals held that the present sense impression exception was not applicable

where the record was unclear as to the amount of time that elapsed between the

event in question and the statements sought to be admitted. State v. Smith, 9th Dist.

Lorain No. 99CA007399, 2000 WL 1675052, *7.

       {¶15} The excited utterance exception is also inapplicable here. State v.

Taylor, 66 Ohio St.3d 295, 303 (1993). The mere fact that a declarant is in a state

of distress does not meet the standard for admissibility as an excited utterance

because such a showing, by itself, does not demonstrate that the declarant’s

statements were close enough in time to the exciting event that they were not the

product of reflective thought. Id. As there is no indication in the record regarding

the period of time that elapsed between the exciting event and Williams’s statements

to Reitmeier, the requirements of the excited utterance exception are not met here.

Id.


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       {¶16} Other appellate courts have reached the same conclusion under similar

circumstances. In State v. Stover, the Ninth District Court of Appeals held that the

excited utterance exception to the hearsay rule was not applicable where, despite the

declarant’s obvious distress, evidence in the record did not reveal the amount of

time that elapsed between an exciting event and the statements that the State sought

to admit. State v. Stover, 9th Dist. Wayne No. 13CA0035, 2014-Ohio-2572, ¶ 12-

16. In State v. Sims, the Twelfth District Court of Appeals held that a declarant’s

statement was not excited utterance despite the fact that the declarant was upset

while making the statement because, despite the declarant’s distress, enough time

passed after the exciting event that the statement became the product of reflective

thought. State v. Sims, 12th Dist. Butler No. CA 2007-11-300, 2009-Ohio-550, ¶

15, citing State v. Butcher, 170 Ohio App.3d 52, 2007-Ohio-118, ¶ 34 (11th Dist.).

The Eleventh District Court of Appeals held likewise in State v. Scarl when it

concluded that the trial court abused its discretion in admitting hearsay statements

as excited utterance where, despite the fact that the declarant was upset at the time

she made the statements at issue, other evidence showed that the time elapsed since

the exciting event was sufficient to allow the declarant to recover her reflective

faculties. State v. Scarl, 11th Dist. Portage No. 2002-P-0091, 2003-Ohio-3493, ¶

63.   The Tenth District Court of Appeals also emphasized that a declarant’s

distraught emotional state does not, without more, give rise to an excited utterance


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when it found that a declarant’s statement did not qualify where, despite being

“upset” and “hyper,” the declarant had regained her reflective faculties prior to

making the statements at issue. State v. Myers, 10th Dist. Franklin No. 98AP-1448,

1999 WL 771009, *8 (Sept. 30, 1999).

       {¶17} We emphasize that there may be facts in this case under which the

excited utterance and present sense impression exceptions to the hearsay rule could

apply. We hold simply the record before us does not reveal, for purposes of the

present sense impression exception, how much time elapsed between when

Williams perceived the statements at issue and when she relayed them to Reitmeier.

Likewise, for purposes of the excited utterance exception, the record does not reveal

how much time elapsed between Williams’s discovery that her residence was on

fire and the time at which she relayed the statements at issue to Reitmeier. In both

cases, the missing details are essential to determine whether the exceptions are

applicable, and the trial court could not reasonably find the exceptions applicable in

the absence of those details.

       {¶18} Based on the reasoning above, we conclude that the trial court abused

its discretion in admitting Williams’s statements specifically under the excited

utterance and present sense impression exceptions to the rule against hearsay. In

light of our decision to sustain Carter’s first assignment of error as to hearsay,




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Carter’s argument as to the Confrontation Clause is rendered moot, and we decline

to address it. App.R. 12(A)(1)(c).

       {¶19} As to hearsay, Carter’s first assignment of error is sustained.

                           Assignment of Error No. II

       The Trial Court Erred By Convicting Mr. Carter Of Aggravated
       Menacing Against The Manifest Weight Of The Evidence[,] And
       The State Failed To Introduce Sufficient Evidence To Support
       The Conviction.

                           Assignment Of Error No. III

       The Trial Court Erred When It Forced The Defendant To
       Represent Himself With[out] A Proper On The Record[sic]
       Waiver Of Counsel.

       {¶20} In his second assignment of error, Carter argues that his conviction is

against the manifest weight of the evidence and is based on insufficient evidence.

In his third assignment of error, Carter argues that the trial court erred in forcing

him to represent himself at trial in the absence of a proper, on-the-record waiver of

his right to counsel.

       {¶21} In light of our decision to sustain Carter’s first assignment of error as

it relates to hearsay, Carter’s second and third assignments of error are rendered

moot, and we decline to address them. App.R. 12(A)(1)(c).

       {¶22} Having found error prejudicial to the appellant herein in the particulars

assigned and argued in his first assignment of error, we reverse the judgment of the



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trial court and remand for a new trial or other further proceedings consistent with

this opinion.

                                                          Judgment Reversed and
                                                               Cause Remanded

ZIMMERMAN, J., concurs.

SHAW, J, concurs in Judgment Only.

/jlr




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