[Cite as State v. Butts, 2012-Ohio-571.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
STATE OF OHIO, : Case No. 11CA22 : Plaintiff-Appellee, : : DECISION AND v. : JUDGMENT ENTRY : THOMAS R. BUTTS, : : : RELEASED 02/07/12
Defendant-Appellant. : ______________________________________________________________________ APPEARANCES:
Benjamin E. Fickel, Logan, Ohio, for appellant.
Robert L. Lilley, Law Director, Logan, Ohio, for appellee. ______________________________________________________________________ Harsha, J.
{¶1} Thomas Butts appeals his conviction for domestic violence claiming that
the trial court violated his Sixth Amendment right of confrontation by admitting out-of-
court statements made by the victim. Because there was no ongoing emergency and
the victim’s statements were made as part of an investigation into past criminal conduct,
the hearsay statements were testimonial evidence. And because the declarant was
never subject to cross-examination, we agree that Butts’ constitutional rights were
violated. Thus, we reverse his conviction.
I. FACTS
{¶2} After suffering a seizure, Thomas Butts was hospitalized. Following a
telephone call with his girlfriend, Kendra Cain, he left the hospital without being
discharged and went to her house where an incident between the two occurred. As a Hocking App. 11CA22 2
result, Butts was charged with domestic violence and his case proceeded to a bench
trial.
{¶3} The record shows that Cain was subpoenaed by the prosecution;
however, she did not appear at trial. So, the state called Officer Mingus as its only
witness. Mingus testified that on the date in question the Logan Police Department
received a complaint that a man was walking down the street in a hospital gown.
Before the officers could respond to that call, they received a second phone call
indicating that a female was locked in a bedroom and a male was trying to force his way
into the room. Mingus stated that he and another officer responded to the calls. When
he arrived at the scene he found Butts sitting on the couch to his left and Cain was
standing to his right. He stated that they were separated by the other officer but were
still “bickering back and forth.” Mingus indicated that Butts had EKG pads on his chest
and also had marks on his face. He testified that Butts told him that he and his girlfriend
had a misunderstanding.
{¶4} Mingus also testified that he spoke with Cain. He testified that Cain was
“extremely upset” at Butts “saying that he was threatening her.” The defense objected
to Mingus’ testimony as hearsay. The trial court overruled the objection, finding that the
statement was an excited utterance. Mingus stated that it took him a “few minutes” to
arrive at the scene and he began speaking with Cain immediately upon his arrival. He
testified that she was “upset, agitated, angry, [and] scared.” Again over the defense’s
hearsay objection, Mingus testified that Cain told him that Butts called her demanding
that she come to the hospital. When she refused, she said he left the hospital and
came to her house. Mingus further testified that Cain told him after Butts arrived, “he
said he was going to beat her to a pulp and he was going to send his son to apparently Hocking App. 11CA22 3
to take care of business.” Again Butts noted his objection. Then, the state asked
Mingus based on his training and experience, if he believed this statement caused Cain
to fear for her physical safety. He responded, “it certainly appeared that way.” Mingus
also stated that Butts denied “he did anything wrong.”
{¶5} The trial court found Butts guilty of domestic violence in violation of the
City of Logan Codified Ordinance 135.16(C) and sentenced him to thirty days in jail,
with fifteen days suspended. This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶6} Butts presents five assignments of error for our review:
{¶7} 1. “THE TRIAL COURT COMMITTED REVERSABLE [SIC] ERROR AND
ABUSED ITS DISCRETION WHEN IT ADMITTED THE HEARSAY STATEMENTS OF
THE ALLEGED VICTIM UNDER THE EXCITED UTTERANCE EXCEPTION (EVID.R.
803(2)) TO THE RULE AGAINST HEARSAY (EVID.R. 802).”
{¶8} 2. “THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS UNDER
THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND SECTION
10, ARTICLE I, OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT
ADMITTED HEARSAY EVIDENCE MADE BY A DECLARANT WHO WAS NOT
AVAILABLE FOR CROSS-EXAMINATION.”
{¶9} 3. “THE TRIAL COURT COMMITTED REVERSABLE [SIC] ERROR TO
THE PREJUDICE OF THE APPELLANT WHEN IT RENDERED A DECISION BASED
UPON INSUFFICIENT EVIDENCE.”
{¶10} 4. “THE TRIAL COURT COMMITTED REVERSABLE [SIC] ERROR TO
THE PREJUDICE OF THE APPELLANT WHEN IT RENDERED A DECISION
CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.” Hocking App. 11CA22 4
{¶11} 5. “THE CUMULATIVE EFFECT OF ERRORS IN THE TRIAL COURT
DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.”
III. SIXTH AMENDMENT RIGHT TO CONFRONTATION
A. Legal Standard
{¶12} Because it is dispositive, we proceed with an analysis of Butts’ second
assignment of error, which raises a constitutional challenge to his conviction.
Challenges concerning the scope and effect of constitutional protections, such as the
Sixth Amendment, involve issues of law. See State v. Knauff, 4th Dist. No. 10CA900,
2011-Ohio-2725, at ¶48. Accordingly, we apply a de novo standard of review to alleged
violations of a criminal defendant’s Sixth Amendment right to confrontation. State v.
Osman, 4th Dist. No. 09CA36, 2011-Ohio-4626, at ¶78.
{¶13} “The Sixth Amendment’s Confrontation Clause provides that, ‘[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.’ * * * [T]his bedrock procedural guarantee applies to both federal
and state prosecutions.” Crawford v. Washington (2004), 541 U.S. 36, 42, 124 S.Ct.
1354, 158 L.Ed.2d 177. “Section 10, Article I [of the Ohio Constitution] provides no
greater right of confrontation than the Sixth Amendment * * * .” State v. Self (1990), 56
Ohio St.3d 73, 79, 564 N.E.2d 446. Thus, we will frame our review of Butts’ argument
in terms of the federal constitutional right of confrontation. See Knauff, supra.
{¶14} In Crawford, the United States Supreme Court held that testimonial out-of-
court statements violate a defendant’s rights under the Confrontation Clause unless the
witness is unavailable and the defendant had a prior opportunity to cross-examine the
witness. Crawford, supra, 541 U.S. at 68. Although the Court failed to comprehensively
define testimonial hearsay, it indicated that statements made under circumstances that Hocking App. 11CA22 5
would lead an objective witness to reasonably believe they would be available for use at
a later trial, including interrogations by law enforcement, fall squarely within that class.
Id. at 52-53.
{¶15} Subsequently in Davis v. Washington, (2006), 547 U.S. 813, 822, 126
S.Ct. 2266, 165 L.Ed.2d 224, the Court considered which police “interrogations” are
considered testimonial.
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[Cite as State v. Butts, 2012-Ohio-571.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY
STATE OF OHIO, : Case No. 11CA22 : Plaintiff-Appellee, : : DECISION AND v. : JUDGMENT ENTRY : THOMAS R. BUTTS, : : : RELEASED 02/07/12
Defendant-Appellant. : ______________________________________________________________________ APPEARANCES:
Benjamin E. Fickel, Logan, Ohio, for appellant.
Robert L. Lilley, Law Director, Logan, Ohio, for appellee. ______________________________________________________________________ Harsha, J.
{¶1} Thomas Butts appeals his conviction for domestic violence claiming that
the trial court violated his Sixth Amendment right of confrontation by admitting out-of-
court statements made by the victim. Because there was no ongoing emergency and
the victim’s statements were made as part of an investigation into past criminal conduct,
the hearsay statements were testimonial evidence. And because the declarant was
never subject to cross-examination, we agree that Butts’ constitutional rights were
violated. Thus, we reverse his conviction.
I. FACTS
{¶2} After suffering a seizure, Thomas Butts was hospitalized. Following a
telephone call with his girlfriend, Kendra Cain, he left the hospital without being
discharged and went to her house where an incident between the two occurred. As a Hocking App. 11CA22 2
result, Butts was charged with domestic violence and his case proceeded to a bench
trial.
{¶3} The record shows that Cain was subpoenaed by the prosecution;
however, she did not appear at trial. So, the state called Officer Mingus as its only
witness. Mingus testified that on the date in question the Logan Police Department
received a complaint that a man was walking down the street in a hospital gown.
Before the officers could respond to that call, they received a second phone call
indicating that a female was locked in a bedroom and a male was trying to force his way
into the room. Mingus stated that he and another officer responded to the calls. When
he arrived at the scene he found Butts sitting on the couch to his left and Cain was
standing to his right. He stated that they were separated by the other officer but were
still “bickering back and forth.” Mingus indicated that Butts had EKG pads on his chest
and also had marks on his face. He testified that Butts told him that he and his girlfriend
had a misunderstanding.
{¶4} Mingus also testified that he spoke with Cain. He testified that Cain was
“extremely upset” at Butts “saying that he was threatening her.” The defense objected
to Mingus’ testimony as hearsay. The trial court overruled the objection, finding that the
statement was an excited utterance. Mingus stated that it took him a “few minutes” to
arrive at the scene and he began speaking with Cain immediately upon his arrival. He
testified that she was “upset, agitated, angry, [and] scared.” Again over the defense’s
hearsay objection, Mingus testified that Cain told him that Butts called her demanding
that she come to the hospital. When she refused, she said he left the hospital and
came to her house. Mingus further testified that Cain told him after Butts arrived, “he
said he was going to beat her to a pulp and he was going to send his son to apparently Hocking App. 11CA22 3
to take care of business.” Again Butts noted his objection. Then, the state asked
Mingus based on his training and experience, if he believed this statement caused Cain
to fear for her physical safety. He responded, “it certainly appeared that way.” Mingus
also stated that Butts denied “he did anything wrong.”
{¶5} The trial court found Butts guilty of domestic violence in violation of the
City of Logan Codified Ordinance 135.16(C) and sentenced him to thirty days in jail,
with fifteen days suspended. This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶6} Butts presents five assignments of error for our review:
{¶7} 1. “THE TRIAL COURT COMMITTED REVERSABLE [SIC] ERROR AND
ABUSED ITS DISCRETION WHEN IT ADMITTED THE HEARSAY STATEMENTS OF
THE ALLEGED VICTIM UNDER THE EXCITED UTTERANCE EXCEPTION (EVID.R.
803(2)) TO THE RULE AGAINST HEARSAY (EVID.R. 802).”
{¶8} 2. “THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS UNDER
THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND SECTION
10, ARTICLE I, OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT
ADMITTED HEARSAY EVIDENCE MADE BY A DECLARANT WHO WAS NOT
AVAILABLE FOR CROSS-EXAMINATION.”
{¶9} 3. “THE TRIAL COURT COMMITTED REVERSABLE [SIC] ERROR TO
THE PREJUDICE OF THE APPELLANT WHEN IT RENDERED A DECISION BASED
UPON INSUFFICIENT EVIDENCE.”
{¶10} 4. “THE TRIAL COURT COMMITTED REVERSABLE [SIC] ERROR TO
THE PREJUDICE OF THE APPELLANT WHEN IT RENDERED A DECISION
CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.” Hocking App. 11CA22 4
{¶11} 5. “THE CUMULATIVE EFFECT OF ERRORS IN THE TRIAL COURT
DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.”
III. SIXTH AMENDMENT RIGHT TO CONFRONTATION
A. Legal Standard
{¶12} Because it is dispositive, we proceed with an analysis of Butts’ second
assignment of error, which raises a constitutional challenge to his conviction.
Challenges concerning the scope and effect of constitutional protections, such as the
Sixth Amendment, involve issues of law. See State v. Knauff, 4th Dist. No. 10CA900,
2011-Ohio-2725, at ¶48. Accordingly, we apply a de novo standard of review to alleged
violations of a criminal defendant’s Sixth Amendment right to confrontation. State v.
Osman, 4th Dist. No. 09CA36, 2011-Ohio-4626, at ¶78.
{¶13} “The Sixth Amendment’s Confrontation Clause provides that, ‘[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.’ * * * [T]his bedrock procedural guarantee applies to both federal
and state prosecutions.” Crawford v. Washington (2004), 541 U.S. 36, 42, 124 S.Ct.
1354, 158 L.Ed.2d 177. “Section 10, Article I [of the Ohio Constitution] provides no
greater right of confrontation than the Sixth Amendment * * * .” State v. Self (1990), 56
Ohio St.3d 73, 79, 564 N.E.2d 446. Thus, we will frame our review of Butts’ argument
in terms of the federal constitutional right of confrontation. See Knauff, supra.
{¶14} In Crawford, the United States Supreme Court held that testimonial out-of-
court statements violate a defendant’s rights under the Confrontation Clause unless the
witness is unavailable and the defendant had a prior opportunity to cross-examine the
witness. Crawford, supra, 541 U.S. at 68. Although the Court failed to comprehensively
define testimonial hearsay, it indicated that statements made under circumstances that Hocking App. 11CA22 5
would lead an objective witness to reasonably believe they would be available for use at
a later trial, including interrogations by law enforcement, fall squarely within that class.
Id. at 52-53.
{¶15} Subsequently in Davis v. Washington, (2006), 547 U.S. 813, 822, 126
S.Ct. 2266, 165 L.Ed.2d 224, the Court considered which police “interrogations” are
considered testimonial. The Court held that statements made during the course of
police interrogations are nontestimonial “under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police assistance to meet an
ongoing emergency.” Id. at 822. Conversely, statements “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.” Id. The Court clarified that “[w]hen we said in
Crawford * * * that ‘interrogations by law enforcement officers fall squarely within [the]
class’ of testimonial hearsay, we had immediately in mind * * * interrogations solely
directed at establishing the facts of a past crime, in order to identify (or provide evidence
to convict) the perpetrator. The product of such interrogation, whether reduced to a
writing signed by the declarant or embedded in the memory * * * of the interrogating
officer, is testimonial.” Id. at 826.
{¶16} The facts of Davis revealed the victim called 911 during a domestic
dispute with her boyfriend. When the police arrived at the victim’s residence, her
boyfriend had already left and was later charged with violating a domestic no-contact
order. At trial, the victim did not appear to testify; therefore, to prove Davis caused her
injuries, the prosecution played the victim’s taped 911 phone call. Hocking App. 11CA22 6
{¶17} Distinguishing the case from Crawford, the Court found the victim called
911 during an ongoing emergency, and the 911 operator’s primary purpose for
questioning her was to allow for police assistance. Furthermore, the victim described
the events to the 911 operator as they happened, rather than simply as an explanation
of past events. The testimonial statements in Crawford, however, involved police
interrogation focused on past events that no longer involved an ongoing emergency.
For these reasons the Davis Court found that that the victim’s statements to the 911
operator were nontestimonial and thus did not violate the defendant’s confrontation
rights.
{¶18} The facts of Hammon v. Indiana, 547 U.S. 813, 126 S.Ct. 2266, 165
L.Ed.2d 224, are similar to our case. In Hammon, which was decided in conjunction
with Davis, the police responded to a report of a domestic dispute at the victim’s home
where they observed evidence of a physical argument. After separate questioning, the
victim admitted that her husband hit her. At trial, the wife did not testify against her
husband; however, the responding officer testified and repeated the statements she
made to him concerning the incident.
{¶19} The Hammon Court concluded that the wife’s statements were testimonial
because it was clear from the circumstances that her interrogation was part of an
investigation into possibly criminal conduct. Id. at 829. Further, there was no
emergency in progress, she told the police when they arrived that things were fine, and
the officer questioning her was seeking to determine not what was happening but what
had happened. Id. The Court concluded that when objectively viewed, the sole
purpose of the investigation was to investigate a possible crime. Id. Hocking App. 11CA22 7
{¶20} In our case, Butts argues that the trial court violated his right to
confrontation by allowing Officer Mingus to repeat what Cain told him. Because there
was no ongoing emergency during the police interrogation, he alleges her statements
were testimonial and subject to the Confrontation Clause. And, because Cain was
never subject to cross-examination, he contends that his Sixth Amendment right to
confrontation was violated. The state concedes that by admitting out-of-court
statements that were not subject to cross-examination, the trial court violated Butts’
Sixth Amendment rights. We agree.
{¶21} The record shows Cain made her statements during a police interrogation.
Officer Mingus testified that he responded to Cain’s residence after the police
department received a phone call indicating that she was locked in the bedroom and a
man was trying to force his way in. However, when Mingus arrived at the home a few
minutes after the call, Butts and Cain were separated and she was no longer locked in
the bedroom. Thus, it is clear from the record that at the time of questioning Cain was
no longer in immediate danger. Moreover, Mingus explained that during his questioning
Cain described past events to him concerning the incident with Butts. Therefore, we
conclude that Cain’s statements made to Officer Mingus were testimonial because there
was no longer an ongoing emergency and the purpose of the interrogation was primarily
to establish past events that could be relevant to later criminal prosecution. As a result,
the trial court erred by allowing Mingus to repeat Cain’s statements at trial when Butts
did not have the opportunity to cross-examine her.
B. Plain Error
{¶22} A review of the record shows that Butts objected to Mingus’ testimony at
trial on the basis of hearsay only. Because Butts did not object to Mingus’ testimony on Hocking App. 11CA22 8
the specific ground that he raises here on appeal, i.e. a violation of his constitutional
right to confrontation, we must determine whether admission of the testimony amounted
to plain error. See State v. Richardson, 4th Dist. No. 08CA3022, 2009-Ohio-923, at
¶14, 17.
{¶23} For plain error to exist there must be a plain or obvious error that affects
“substantial rights,” which has been interpreted to mean but for the error, the outcome of
the trial clearly would have been otherwise. State v. Rinehart, 4th Dist. No. 07CA2983,
2008-Ohio-5770, at ¶18. “The defendant must demonstrate error on the record before
we will find plain error.” Id. In addition, we take notice of plain error “with the utmost
caution, under exceptional circumstances, and only to prevent a manifest miscarriage of
justice.” Id. Courts should notice plain error “only if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” (Internal quotation marks
omitted.) Id. After reviewing the record, it is obvious that the admission of hearsay
affected both the fairness and the outcome of the trial.
{¶24} Butts was convicted of domestic violence in violation of Logan Codified
Ordinance 135.16(C), which states “[n]o person, by threat of force, shall knowingly
cause a family or household member to believe that the offender will cause imminent
physical harm to the family or household member.” Officer Mingus was the only witness
called by the state at Butts’ trial. He admitted that he arrived after the incident between
Cain and Butts had ended and did not witness him threaten her. Mingus could not
cross-examine his accuser because she failed to testify and he had no prior opportunity
to confront her as the Sixth Amendment demands. Without Mingus’ testimony
concerning Cain’s out-of-court statements, there was no evidence offered by the state
to support his conviction for domestic violence. Hocking App. 11CA22 9
IV. CONCLUSION
{¶25} We conclude that allowing the testimony of Officer Mingus concerning
Cain’s statements seriously affected the fairness of the judicial proceeding and
constituted plain error. Therefore, we sustain Butts’ second assignment of error and
reverse his conviction. Butts’ remaining assignments of errors are rendered moot. See
App.R. 12(A)(1)(c).
JUDGMENT REVERSED. Hocking App. 11CA22 10
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking County Municipal Court carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J. & Kline, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________ William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.