[Cite as State v. Akers, 2021-Ohio-2562.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 20 CAC 08 0033 JEFFREY AKERS
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Municipal Court, Case No. 20CRB00192
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: July 26, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
AMELIA BEAN-DEFLUMER TYLER W. DUNHAM Delaware City Prosecutor 98 N. Union Street 70 North Union Street Delaware, Ohio 43015 Delaware, Ohio 43015 Delaware County, Case No. 20 CAC 08 0033 2
Hoffman, P.J. {¶1} Defendant-appellant Jeffrey Akers appeals the judgment entered by the
Delaware Municipal Court convicting him of domestic violence (R.C. 2919.25), assault
(R.C. 2903.13) and disorderly conduct (R.C. 2917.11) and sentencing him to 180 days
incarceration with 150 days suspended. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 24, 2020, Delaware police dispatch received a 911 call from an
unknown caller. The caller did not speak, and the only audio noted by dispatch was
“heavy breathing.” When dispatch received no response after trying to redial the number,
officers were dispatched to the location of the call.
{¶3} Officer Dylan Griffin was dispatched to the area of 783 Liberty Road,
Delaware, to investigate. Although unsure exactly how much time had passed between
the time he received the call and his arrival at the residence, he speculated it could have
been as long as forty-five minutes, although probably not a full hour. Tr. 94. He knocked
on the door of 783 Liberty Road, and no one answered. He knocked on the door of the
apartment next door, and the occupants advised him no one from the apartment had
dialed 911.
{¶4} Officer Griffin returned to 783 Liberty Road to further investigate. Officer
Chris Bates arrived on the scene. The front door to 783 Liberty Road was locked, but
lights were on inside. Through vertical blinds at the back door, the officers observed a
highchair tipped over and food thrown around the kitchen. It appeared to the officers a
struggle had taken place in the apartment. Delaware County, Case No. 20 CAC 08 0033 3
{¶5} The officers found the back door unlocked, and so they entered and
announced their presence. The officers searched the first floor and found no one present.
The victim emerged at the top of the stairs to the second floor, clutching her young child.
The victim was crying, her upper lip was bleeding, and her lips were swollen. She asked
the officers, “Is he still here?” Tr. 78. The victim did not identify the person she was
referring to as “he.”
{¶6} The victim came downstairs to speak with police. Throughout the interview,
she was crying and complained of pain, but was conscious, alert, able to think things
through, and her statements to police made sense to them. Before the police arrived, the
victim had called Appellant’s mother, and during the interview Appellant’s father arrived
at the home looking for him. The victim would not identify Appellant by name, but
indicated she got into an argument with the man she was living with and he banged her
head against the wall. She told police her assailant was the father of the child, but when
asked specifically by Officer Griffin if Appellant was the person who hit her, the victim did
not answer, and only stared at the officer. Police were able to ascertain Appellant’s
identity through the name of the child and through Appellant’s father when he arrived at
the apartment.
{¶7} Appellant was charged with domestic violence, assault, and disorderly
conduct. The case proceeded to jury trial in the Delaware Municipal Court. The victim
did not testify at trial. However, her statements concerning the events of January 24,
2020, were admitted through the testimony of Officers Griffin and Bates. Appellant
objected at the time of such testimony on the basis of hearsay. The trial court overruled
his objections, finding the statements the victim made to the officers admissible as an Delaware County, Case No. 20 CAC 08 0033 4
excited utterance pursuant to Evid. R. 803(2). At the close of evidence, Appellant
objected to the admission of the victim’s statements to police on the basis of hearsay and
the Confrontation Clause of the Sixth Amendment to the United States Constitution. The
trial court noted Appellant did not object based on Confrontation Clause during trial, but
nonetheless allowed Appellant to make the objection. The trial court overruled
Appellant’s Confrontation Clause objection on the basis the officers were responding to
an ongoing emergency.
{¶8} Following trial, the jury found Appellant guilty of domestic violence and
assault, and the court found Appellant guilty of disorderly conduct, a minor misdemeanor.
The trial court sentenced Appellant to 180 days in the Delaware County Jail with 150 days
suspended. It is from the August 25, 2020 judgment of the Delaware Municipal Court
Appellant prosecutes his appeal, assigning as error:
I. THE TRIAL COURT ERRED TO THE DEFENDANT’S
PREJUDICE BY ALLOWING IMPERMISSIBLE HEARSAY TO BE
ADMITTED AT TRIAL BY MISAPPLYING THE EXCITED UTTERANCE
EXCEPTION, IN VIOLATION OF THE OHIO RULES OF EVIDENCE.
II. THE TRIAL COURT ERRED BY REPEATEDLY ALLOWING THE
INVESTIGATING OFFICERS TO ADMIT TESTIMONIAL HEARSAY
STATEMENTS OF THE ALLEGED VICTIM, WHO WAS NOT PRESENT
AT TRIAL, IN VIOLATION OF THE RIGHT OF CONFRONTATION
CONTAINED IN THE SIXTH AMENDMENT OF THE UNITED STATES Delaware County, Case No. 20 CAC 08 0033 5
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION.
I.
{¶9} In his first assignment of error, Appellant argues the trial court erred in
admitting the statements the victim made to Officers Griffin and Bates under the excited
utterance exception to the hearsay rule.
{¶10} “A trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with the
rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d
1056 (1991). An abuse of discretion is more than a mere error in judgment; it is a
“perversity of will, passion, prejudice, partiality, or moral delinquency.” Pons v. Ohio State
Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993).
{¶11} Evid. R. 803(2) provides an excited utterance is not excluded pursuant to
the hearsay rule, and defines “excited utterance” as, “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.” A statement which is otherwise considered hearsay may be
admissible as an excited utterance when the following four criteria are met: “(1) a startling
event, (2) a statement relating to that event, (3) a statement made by a declarant with
firsthand knowledge, and (4) a statement made while the declarant was under the stress
of the excitement caused by the event.” State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-
4347, 54 N.E.3d 80, ¶ 123. Delaware County, Case No. 20 CAC 08 0033 6
{¶12} Appellant argues the victim’s question, “Is he still here?”, as well as the
remainder of her statements to the police, are hearsay statements which do not qualify
as an excited utterance. Hearsay is defined by Evid. R. 801 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.” The victim’s question as to whether “he” is still
here is not a statement offered to prove the truth of the matter asserted, and therefore is
not hearsay.
{¶13} As to the remainder of the statements the victim made to the police
concerning Appellant’s actions on the day in question, we find the trial court did not err in
finding the statements admissible under the excited utterance exception. Appellant
argues the trial court erred by not inquiring as to whether the victim’s “reflective faculties”
had been compromised, citing State v. Duncan, 53 Ohio St. 2d 215, 373 N.E.2d 1234
(1978). In Duncan, the Ohio Supreme Court set forth the four-part test for an excited
utterance as follows:
Testimony as to a statement or declaration may be admissible under
an exception to the hearsay rule for spontaneous exclamations where the
trial judge reasonably finds (a) that there was some occurrence startling
enough to produce a nervous excitement in the declarant, which was
sufficient to still his reflective faculties and thereby make his statements and
declarations the unreflective and sincere expression of his actual
impressions and beliefs, and thus render his statement or declarations
spontaneous and unreflective, (b) that the statement or declaration, even if Delaware County, Case No. 20 CAC 08 0033 7
not strictly contemporaneous with its exciting cause, was made before there
had been time for such nervous excitement to lose a domination over his
reflective faculties, so that such domination continued to remain sufficient
to make his statements and declarations the unreflective and sincere
expression of his 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 his statement or declaration.
{¶14} Id. at syllabus 1.
{¶15} While Duncan has not been expressly overruled, we note the Ohio Supreme
Court has replaced the language of the Duncan test with the simplified language set forth
in Dean, supra.
{¶16} We find the trial court did not abuse its discretion in finding the victim’s
statements were made while she was still under the stress of the startling event in the
instant case. The officers described her as frightened, crying, shaking, and nervous. She
had visible injuries to her face, and her nervous behavior continued throughout her
interaction with police. We find the trial court did not abuse its discretion in admitting the
statements made by the victim under the excited utterance exception to the hearsay rule.
{¶17} The first assignment of error is overruled.
II.
{¶18} In his second assignment of error, Appellant argues the admission of the
victim’s statements made in the police interview violated his rights under the Delaware County, Case No. 20 CAC 08 0033 8
Confrontation Clause of the Sixth Amendment to the United States Constitution and
Article I, Section 10 of the Ohio Constitution.
{¶19} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004), the United States Supreme Court concluded the Sixth Amendment prohibits the
introduction of testimonial statements by a nontestifying witness, unless the witness is
“unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” Id. at 54. Applying that definition to the facts in Crawford, the court held
statements by a witness during police questioning at the station house were testimonial
and thus could not be admitted. Id.
{¶20} In Davis v. Washington and Hammon v. Indiana, 547 U.S. 813, 126 S.Ct.
2266, 165 L.Ed.2d 224 (2006), which the U.S. Supreme Court decided together, the court
concluded statements are not testimonial if the primary purpose of the interrogation by
law enforcement was to enable police to respond to an ongoing emergency. Statements
are testimonial when the circumstances objectively indicate there is no such ongoing
emergency, and the primary purpose of the interrogation is to establish past events which
are potentially relevant to later criminal prosecution. Id. at 822.
{¶21} The Supreme Court further expounded on the primary purpose test in
Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). In Bryant,
shortly before dying from his gunshot wounds, the victim made statements to police
concerning the shooting and identifying the shooter. Police encountered the victim laying
on the ground of a gas station parking lot. The armed shooter remained at large. In finding
the victim's statements to the police to be non-testimonial, the court explained the
existence of an “ongoing emergency” at the time of the encounter is among the most Delaware County, Case No. 20 CAC 08 0033 9
important circumstances informing the interrogation's “primary purpose.” Id. at 361.
Whether an emergency exists and is ongoing is a highly context-dependent inquiry. Id. at
363. An assessment of whether an emergency threatening the police and public is
ongoing cannot narrowly focus on whether the threat to the first victim has been
neutralized because the threat to the first responders and public may continue. Id. An
emergency's duration and scope may depend in part on the type of weapon involved. Id.
at 364.
{¶22} A victim's medical condition is also important to the primary purpose inquiry
to the extent it sheds light on the victim's ability to have any purpose at all in responding
to police questions and on the likelihood any such purpose would be testimonial. Id. at
364–365. The victim's condition also provides an important context for first responders to
judge the existence and magnitude of a continuing threat to the victim, themselves, and
the public. Id. at 365. An emergency does not necessarily last the entire time a perpetrator
is on the loose, but trial courts can determine in the first instance when an interrogation
transitions from non-testimonial to testimonial. Id.
{¶23} Finally, another factor to consider pursuant to the “primary purpose” test is
the encounter's informality. Id. at 366. Formality suggests the absence of an emergency,
but informality does not necessarily indicate the presence of an emergency or the lack of
testimonial intent. Id. However, the court distinguished the facts in Bryant, where the
questioning occurred in an exposed public area, before emergency medical services
arrived, and in a disorganized fashion, from the formal station-house interrogation in
Crawford. Id. In addition to the circumstances in which an encounter occurs, the
statements and actions of both the declarant and interrogators provide objective evidence Delaware County, Case No. 20 CAC 08 0033 10
of the primary purpose of the interrogation. Id. at 367. Police officers in our society
function as both first responders and criminal investigators and their dual responsibilities
may mean they act with different motives simultaneously or in quick succession. Id. at
368. Similarly, victims are also likely to have mixed motives when making statements to
the police. Id. During an ongoing emergency, a victim is most likely to want the threat to
her and to other potential victims to end, which does not necessarily mean the victim
wants or envisions prosecution of the assailant. Id. A victim may want the attacker to
be incapacitated temporarily or rehabilitated. Id. Alternatively, a severely injured victim
may have no purpose at all in answering questions posed, and may provide answers
which are simply reflexive. Id. at 368-69. The victim's injuries might be so debilitating as
to prevent her from thinking sufficiently clearly to understand the purpose of her
statements to police. Id.
{¶24} We find the facts of the instant case distinguishable from Bryant. The victim
in the instant case was not questioned while lying injured in a public parking lot, but was
in her own apartment, which had been searched by police. While Appellant’s
whereabouts were unknown, there was no apparent concern he had a weapon such as
a gun which would present a potential danger to the public and to first responders on the
scene. Although the victim displayed visible injuries, she was not so debilitated as to
cause her answers to be simply reflexive in nature. Police testified she was conscious,
alert, and able to think things through, and her statements to the officers made sense.
Further, the circumstances of the interview reflect the police had moved from their
purpose as first responders in this case – locating the victim, evaluating her injuries, and
securing the scene – to their purpose of criminal investigation before the interview began. Delaware County, Case No. 20 CAC 08 0033 11
Although the interview did not have the same formality as a police station interview,
Officer Griffin testified the victim would not name Appellant as the assailant even when
specifically asked if Appellant was the person who hit her. He testified on redirect the
victim did not want to get Appellant in trouble, and did not want to participate in the
investigation. This testimony indicates the victim believed the interview was investigatory
in nature at this point.
{¶25} The State relies on this Court’s decision in State v. Brown, 5th Dist. Stark
No. 2018CA00120, 2019-Ohio-3486, in which we found an ongoing emergency existed
in a domestic violence situation. In Brown, the victim called 911 to report she was
assaulted by the defendant, her live-in boyfriend. Canton police were on the scene within
three minutes. Officers found the victim sitting on the front steps of a multi-unit building,
holding a towel to her eye. An officer testified he could see the “substantial” injury to the
victim’s eye as he exited his cruiser, twenty feet away from where she was sitting. She
told officers she had been living with the defendant since she was released from jail a
short time before. On this night, the defendant became angry and struck her once in the
face with a closed fist, knocking her to the ground. Officers observed blood running down
the victim’s face and requested medics to the scene because she was obviously seriously
injured. A paramedic who responded testified the victim had traumatic physical injuries to
her face which required immediate medical attention. The left side of her face was
severely bruised and swollen. Her left eye was swollen almost completely shut, and the
eyeball itself was injured and bleeding. She had a 1-centimeter laceration to her eyebrow.
Her nose and jaw were also swollen and her left pupil was dilated. The victim had an
“alert & oriented” score of three, indicating she was somewhat dazed. Delaware County, Case No. 20 CAC 08 0033 12
{¶26} The victim spoke to police at the scene and provided the defendant’s name
and the number of the apartment he was in. Officers knocked on the door but no one
answered. The victim told them that if the door was locked, he was definitely inside.
Officers also noted they were on the scene within three minutes and had every reason to
believe the defendant was still inside. Officers forced entry into the apartment and found
the defendant lying in bed with no one else present. Police awakened the defendant,
Mirandized and arrested him.
{¶27} In finding the statements the victim made to police to be non-testimonial in
nature due to an ongoing emergency, this Court held:
In this case, we find Doe's statements to police were nontestimonial
under the primary purpose test. When Ptl. Jones arrived at the apartment
building, his primary purpose was to determine how to address an ongoing
emergency from his standpoint as a first responder. See Bryant, supra, at
1160. Jones sought information from Doe to obtain appropriate medical
assistance for her injuries, to determine whether the threat of immediate
danger had subsided, and to identify and locate the assailant. See, State v.
Little, 3rd Dist. No. 1-16-29, 2016-Ohio-8398, 78 N.E.3d 323, ¶ 21. Further,
this interview was informal, taking place at the location where Jones first
encountered Doe and indicating Jones perceived this situation as an
ongoing emergency. Little, id.; see also, State v. Knecht, 12th Dist. Warren
No. CA2015–04–037, 2015-Ohio-4316, ¶ 25. Delaware County, Case No. 20 CAC 08 0033 13
The ongoing emergency continued because police did not know if
appellant was present in the apartment or if the area was secure. Id., citing
Cleveland v. Williams, 8th Dist. Cuyahoga No. 101588, 2015-Ohio-1739,
2015 WL 2165564; State v. Sanchez, 8th Dist. Nos. 93569 and 93570,
2010-Ohio-6153, 2010 WL 5235932.
Doe's statements were made “with the primary purpose of enabling
the police to ‘meet an ongoing emergency,’ i.e., to apprehend the person
involved.” Colon at ¶ 23. Doe was also injured and in need of medical
attention. Upon our review of the circumstances from Doe's perspective,
“we find it unlikely that she or any reasonable person in this situation would
perceive this interaction with law enforcement as being primarily a means
for police to collect statements for later use at trial.” Little, supra, 2016-Ohio-
8398 at ¶ 22.
We find that Doe's statements to police arose during an informal
interview to procure the basic information police needed to proceed
responsibly. Id. Jones obtained the statements to serve as the basis for
further, responsive police action; the statements were not obtained for the
primary purpose of documenting past events for later prosecution. Id., citing
Colon at ¶ 20 and Merritt at ¶ 13.
{¶28} Brown, supra, at ¶¶ 45-48.
{¶29} We find the instant case distinguishable from Brown in several key ways.
In Brown, the victim was severely injured, in need of immediate medical attention, and Delaware County, Case No. 20 CAC 08 0033 14
somewhat dazed. In the instant case, the victim’s injuries were visible but not debilitating.
Further, while the officers found the victim in this case to be distraught, they did not
describe her as “dazed.” Officer Griffin testified she was alert and able to think things
through, she did not want to get Appellant in trouble, and she did not want to participate
in the investigation. While the officers in Brown encountered the victim outside and
received the information concerning the defendant’s whereabouts inside the apartment
building before they had secured the scene, in the instant case, the victim’s statements
to police did not occur until after they had searched the apartment to determine who was
present. The Appellant was not in the apartment. In Brown, the police arrived on the
scene in three minutes, whereas in the case sub judice, possibly as long as forty-five
minutes elapsed from the 911 call until police arrived on the scene. In contrast to Brown,
the victim’s statements to police concerning the events of the evening did not provide
information police needed to proceed responsibly; police had already searched the
apartment, and the threat posed by Appellant had ended prior to the statements made by
the victim. The victim’s reluctance to name Appellant in the instant case, even when
specifically asked if Appellant was the assailant, is further indication she saw the nature
and purpose of the interview as investigative in nature. We find the statements obtained
by the police in the instant case were obtained for the primary purpose of documenting
past events for later prosecution, rather than to respond to an ongoing emergency, and
the admission of the statements violated Appellant’s rights under the Confrontation
Clause.
{¶30} The second assignment of error is sustained. Delaware County, Case No. 20 CAC 08 0033 15
{¶31} The judgment of the Delaware County Municipal Court is reversed. This
case is remanded to that court for further proceedings according to law, consistent with
this opinion.
By: Hoffman, P.J. Wise, Earle, J., concurs and Delaney, J., dissents in part; concurs in part Delaware County, Case No. 20 CAC 08 0033 16
Delaney, J., concurring in part and dissenting in part, {¶32} Upon review of the trial transcript, I would find any statements by the victim
to be non-testimonial. The totality of circumstances indicate the roles of Officers Griffin
and Bates were as first responders when they questioned and elicited responses from
the victim in this case. The interview was commenced within minutes of the on-scene
arrival of the officers to a domestic violence situation and the injured victim was
questioned informally (while holding her infant), in her disarrayed home, and the
whereabouts of the perpetrator unknown. They observed visible injuries (bleeding lip and
swollen jaw) and described her demeanor as fearful, crying, and nervous. The police
officers needed to determine if she needed medical attention, who the assailant was,
his whereabouts, and if he was still an active threat to the victim, the officers, or the
public. As the majority correctly ruled, the standard for admitting her statements as
excited utterances was established by the prosecution. The statements were sufficiently
reliable under a well-established hearsay exception. Furthermore, there does not
appear to be any indicia of solemnity to qualify them as testimonial. In responding
to a domestic violence situation, the police need to make initial inquiries to determine
who and what they are dealing with to protect the victim, themselves and the public.
Objectively, the officers’ role as first responders could still be seen as their primary
function. The primary purpose was not to create an out-of-court substitute for
testimony. I would therefore conclude the testimony was not presented in violation of
the Confrontation Clause. Delaware County, Case No. 20 CAC 08 0033 17
{¶33} For those reasons, I respectfully concur, in part, and dissent, in part.
{¶34} I would overrule both assignments of errors and affirm the judgment
of the trial court.