[Cite as State v. McDaniel, 2011-Ohio-6326.]




         IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                :C.A. CASE NO. 24423

vs.                                                :   T.C. CASE NO. 10CRB9666

CHARLES A. MC DANIEL, JR.                          :   (Criminal Appeal from
                                                        Municipal Court)
        Defendant-Appellant                        :

                                               .........

                                               OPINION

                           Rendered on the 9th day of December, 2011.

                                               .........

John J. Danish, City Attorney; Stephanie L. Cook, Chief Prosecutor; Troy B. Daniels,
Asst. Pros. Attorney, Atty. Reg. No. 0084957, 335 W. Third Street, Rm. 372, Dayton, OH
45402
       Attorneys for Plaintiff-Appellee

Timothy L. Carlin, Atty. Reg. No. 0085457, 765 Troy Street, Dayton, OH 45404
      Attorney for Defendant-Appellant

                                               .........

GRADY, P.J.:

        {¶ 1} On September 19, 2010, two neighbors of Defendant, Charles McDaniel,

called 911 to report a domestic disturbance at Defendant’s residence at 208 Huron Avenue in

Dayton. The callers reported that a seven year old girl who was sitting inside a Buick parked

in front of Defendant’s home was very upset and crying and had said that her dad had killed
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her mom. The callers also reported that they could see a bald, African-American male

wearing a tank top who was pacing back and forth inside the home, like he was crazy.

       {¶ 2} Several officers were dispatched to Defendant’s home on a domestic violence

call involving a possible shooting. Three officers went to the front of the home and three

went to the back. One of the officers spoke to the girl sitting in the Buick. The girl said that

her mom and dad were inside fighting and that she was afraid for her life. As officers

approached the front door they saw Defendant inside the home pacing back and forth. He

had a metal cylindrical object in his hand, similar to a pipe or the barrel of a shotgun.

       {¶ 3} When Defendant noticed the officers approach he moved to the back of the

house, out of view. Defendant tried to exit out the back door but was confronted by Officer

Clinger, who ordered him to the ground. Defendant instead went back inside the home and

shut the door. Meanwhile, three officers had entered the home via the front door because

they feared there might be an injured victim inside. When Defendant re-entered and went to

the front of the home, he was taken into custody by the officers.

       {¶ 4} As Defendant was being removed from the home, Lamonica Smithson

emerged from a back bedroom. She was crying hysterically, out of breath, and had difficulty

speaking. Smithson was topless except for a shirt she held over her chest. Smithson stated

that Defendant had tried to kill her and that she was afraid for her life. Smithson had scratch

marks on her chest, neck, back and face. She was bleeding from the back of her head, had a

lump on the left side of her head, and she complained of an injury to her leg. Photographs

taken a few days later show severe bruising to Smithson’s forearms, right thigh, and back.

       {¶ 5} The officers observed shattered glass strewn about the inside of the home and
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items that were thrown to the floor. A metal pipe was found near the back door through

which Defendant had tried to exit. Defendant was arrested for domestic violence. While

being escorted to a police cruiser, Defendant asked officers if they could work something out

so he didn’t have to go to jail.

          {¶ 6} Defendant was charged by complaint in Dayton Municipal Court with domestic

violence, R.C. 2919.25(A), and assault, R.C. 2903.13(A). On November 3, 2010, the case

proceeded to a bench trial. The trial court found Defendant guilty of both charges. The trial

court merged the offenses and sentenced Defendant only on the domestic violence charge to

one hundred and eighty days in jail, with one hundred and eighteen days suspended and credit

given for two days, leaving a balance of sixty days to serve. Defendant was also placed on

community control for two years and fined one thousand dollars, with six hundred dollars

being suspended. The trial court stayed execution of Defendant’s sentence pending this

appeal.

          {¶ 7} Defendant timely appealed to this court from his conviction and sentence.

Defendant’s appellate counsel filed an Anders brief, Anders v. California (1967), 386 U.S.

738, 87 S.Ct. 1396, 19 L.Ed.2D 493, stating that he could find no meritorious issues for

appellate review.     We notified Defendant of his appellate counsel’s representations and

afforded him ample time to file a pro se brief. None has been received. This case is now

before us for our independent review of the record. Penson v. Ohio (1988), 488 U.S. 75, 109

S.Ct. 346, 102 L.Ed.2d 300.

          {¶ 8} Defendant’s appellate counsel has identified two possible issues for appeal, the

first of which is:
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         {¶ 9} “APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

AND THUS DEPRIVED OF HIS RIGHT TO DUE PROCESS UNDER BOTH THE OHIO

AND UNITED STATES CONSTITUTION.”

         {¶ 10} Counsel’s performance will not be deemed ineffective unless and until

counsel’s performance is proved to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel’s performance. Strickland v.

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To show that a defendant

has been prejudiced by counsel’s deficient performance, the defendant must affirmatively

demonstrate to a reasonable probability that were it not for counsel’s errors, the result of the

trial would have been different. Id.; State v. Bradley (1989), 42 Ohio St.3d 136.

         {¶ 11} Defendant fails to identify any conduct on the part of his trial counsel that he

claims constituted deficient performance, much less that resulted in prejudice to Defendant as

defined by Strickland v. Washington. Accordingly, this assignment of error lacks arguable

merit.

         {¶ 12} Defendant’s second possible issue for appeal is:

         {¶ 13} “THE TRIAL COURT ERRED BY PERMITTING HEARSAY TESTIMONY

AGAINST THE DEFENDANT DENYING THE DEFENDANT HIS SIXTH AMENDMENT

RIGHT TO CONFRONT WITNESSES AGAINST HIM.”

         {¶ 14} 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). 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:
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       {¶ 15} “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.”

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

       {¶ 17} “(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.” Jackson; State v. Duncan (1978), 53 Ohio St.2d 215.

       {¶ 18} 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 (1987), 31 Ohio St.3d 173.

       {¶ 19} “‘Abuse of discretion’ has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19

OBR 123, 126, 482 N.E.2d 1248, 1252. 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
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unconscionable or arbitrary.

        {¶ 20} “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 (1990), 50 Ohio St.3d 157, 161.

        {¶ 21} Defendant first claims that recordings of the 911 calls made by his two

neighbors, which were played in court at the trial, constitute inadmissible hearsay. We

disagree. Both of these callers describe a little girl crying, sitting inside a Buick parked in

front of Defendant’s home, and a bald, African-American male, wearing a tank top, walking

around inside the house like he is crazy. Accordingly, these statements by the callers to the

911 dispatcher were admissible under Evid.R. 803(2) as excited utterances. We further note

that the trial court refused to consider the statements made by the little girl in the car, as

related by the callers.

        {¶ 22} As to the further issue of whether the statements made by the two callers to the

911 dispatcher were “testimonial” in nature and therefore violated Defendant’s Sixth

Amendment confrontation rights, in Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct.

1354, 158 L.Ed.2d 177, 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 (2006), 547 U.S. 813, 126 S.Ct. 2266, 165

L.Ed.2d 224, the United States Supreme Court provided the following definition of
                                                                                            7

“testimonial” statements:

       {¶ 23} “[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.” Syllabus.

       {¶ 24} Typically, 911 calls made to report an ongoing emergency that requires police

assistance to resolve that emergency are not “testimonial” in nature and therefore the

Confrontation Clause does not apply. Davis v. Washington; State v. Byrd, 160 Ohio App.3d

538, 2005-Ohio-1902 at ¶17-21; State v. Mills, Montgomery App. No. 21146,

2005-Ohio-2128 at ¶39.       The 911 calls made by Defendant’s two neighbors are not

testimonial in nature. Those calls were not the product of any police interrogation, and the

callers called in to report an ongoing domestic disturbance involving a possible shooting that

required police assistance to resolve that emergency.       Those kinds of 911 calls are not

testimonial and the Confrontation Clause does not apply.

       {¶ 25} Defendant additionally complains that the statements made by the victim,

Smithson, to police officers upon first seeing them after they entered the home and took

Defendant into custody, that Defendant had just tried to kill her and she was afraid for her

life, which statements were related by the officers at trial, are also inadmissible hearsay.

Again, we disagree.     Moments after police entered the home and took Defendant into

custody, Smithson emerged from a back bedroom.             Upon first seeing the officers she
                                                                                            8

immediately stated that Defendant had just tried to kill her and she was afraid for her life.

These statement fell within the excited utterance exception to the hearsay rule.

         {¶ 26} Smithson had just been the victim of domestic violence moments earlier, a

startling event. Smithson’s hair was disheveled, she was crying hysterically, short of breath,

and partially nude. 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

entered the home. Smithson exhibited numerous visible injuries. Clearly, she was still

under the stress of excitement caused by the startling domestic violence event. Smithson’s

statements related to the domestic violence event, and as the victim of the domestic violence,

she had personally observed the violent attack. Accordingly, Smithson’s statements were

admissible as excited utterances. Jackson.

         {¶ 27} With respect to whether the admission of Smithson’s statements to police

violated Defendant’s confrontation rights, we note that the officers were responding to an

ongoing emergency at the time Smithson made her statements. Smithson’s primary purpose

was to obtain assistance from the officers in resolving that emergency because Defendant was

still on the scene. Smithson’s statements were not the product of any police questioning.

Under those circumstances, Smithson’s statements were not testimonial and Confrontation

Clause does not apply. State v. Williams, Lucas App. No. L-08-1371, 2009-Ohio-6967 at

¶58.

         {¶ 28} The trial court did not abuse its discretion in admitting the 911 calls or

Smithson’s initial statements to police at the scene. This assignment of error lacks arguable

merit.
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       {¶ 29} In addition to reviewing the possible issues for appeal raised by Defendant’s

appellate counsel, we have conducted an independent review of the trial court’s proceedings

and have found no error having arguable merit. Accordingly, Defendant’s appeal is without

merit and the judgment of the trial court will be affirmed.




DONOVAN, J., And HALL, J., concur.




Copies mailed to:

Troy B. Daniels, Esq.
Timothy L. Carlin, Esq.
Charles A. McDaniel, Jr.
Hon. James Ruppert, Visiting Judge
