[Cite as State v. Cutshall, 2013-Ohio-3591.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Sheila G. Farmer, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : -vs- : : EDWARD A. CUTSHALL : Case No. 2012CA00235 : : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2012CA1236
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 19, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RENEE M. WATSON GEORGE URBAN Assistant Prosecuting Attorney 116 Cleveland Ave., NW, Suite 808 110 Central Plaza South, Suite 510 Canton, OH 44702 Canton, OH 44702-1413 Stark County, Case No. 2012CA00235 2
Baldwin, J.
{¶1} Appellant Edward A. Cutshall appeals a judgment of the Stark County
Common Pleas Court convicting him of one count of burglary in violation of R.C.
2911.12(A)(2) and sentencing him to five years incarceration. Appellee is the State of
Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On August 9, 2012, Brittany Buccini was home in her apartment with her
two-year-old daughter. Appellant knocked on the door, yelling that he wanted his
money back. Brittany pretended she was not home, and appellant left. Several days
earlier, appellant attended a small party at Brittany’s apartment. Appellant became
intoxicated at the party and had to be carried home to his apartment across the street,
where he lived with his friends Sarah Lyon and Jonah Fowler.
{¶3} Brittany called her friend Amanda Foster and told her about appellant’s
“visit.” The two met at the park with their children. Brittany returned home around 5:00
p.m. While she was making dinner, appellant began pounding on her door again.
Brittany ignored him, and he went away. Brittany was disturbed by appellant’s visit and
called her friend Amanda to come over with her boyfriend, Miguel Aguayo.
{¶4} Amanda and Miguel began playing cards with Brittany in Brittany’s
apartment. Appellant returned between 8:00 p.m. and 8:30 p.m. A shouting match
ensued between appellant and the occupants of Brittany’s apartment. Appellant ran up
the steps to Brittany’s apartment. Brittany, Amanda and Miguel ran inside and closed
the door. Appellant kicked the exterior door to the apartment completely off the frame.
Brittany and her friends ran into the living room and held the interior door shut. Stark County, Case No. 2012CA00235 3
Appellant continued to yell about missing money, and threatened to kill Brittany and
stab her daughter. Amanda called the police. Appellant ran outside and started
throwing rocks at the building.
{¶5} When Canton Police Officer Michael Rastetter arrived, a neighbor flagged
him down and told him a white male was throwing rocks at the building and yelling, and
had kicked in the door of Brittany’s apartment.
{¶6} Rastetter proceeded up the steps to Brittany’s apartment, where he noted
the exterior door had been broken off both hinges and the deadbolt, and was hanging
by a piece of wood. He found Brittany and her daughter in the living room, along with
Amanda and Miguel. Brittany was distraught and crying, and very nervous. She
jumped at any sound coming from outside. She told Rastetter that appellant kicked in
her exterior door and tried to gain access to the living room, but they held the interior
door shut. Brittany was hesitant to go with Rastetter to his cruiser to complete
paperwork, but reluctantly complied.
{¶7} While in the cruiser, Brittany thought she heard something in the back of
the apartment building. Rastetter went to check the noise to make Brittany feel better.
As he checked the backyard, Brittany started screaming, “He’s out here!” When
Rastetter returned, appellant was standing by the cruiser.
{¶8} Appellant was charged with one count of burglary. The case proceeded to
jury trial in the Stark County Common Pleas Court. At trial, Jonah Fowler testified that
although appellant kicked the door, he did not break the door open, and appellant
never entered the apartment. A neighbor also testified that appellant kicked the door
but it did not open, and he never entered the apartment. Stark County, Case No. 2012CA00235 4
{¶9} Appellant was convicted as charged and sentenced to five years
incarceration. He assigns two errors on appeal:
{¶10} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
ALLOWED TESTIMONY UNDER THE EXCITED UTTERANCE EXCEPTION TO
HEARSAY.
{¶11} “II. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
I.
{¶12} In his first assignment of error, appellant argues that the court erred in
allowing Officer Rastetter to testify as to what Brittany said when he arrived on the
scene. Appellant argues that the court erred in admitting her statements as excited
utterances when they were made in response to questioning, and sufficient time had
lapsed in order for her to have reflected on the events that transpired.
{¶13} The decision to admit or exclude evidence rests in the sound discretion of
the trial court. State v. Sage, 31 Ohio St. 3d 173, 510 N.E.2d 343 (1987), paragraph
two of the syllabus. An abuse of discretion connotes that the court’s decision was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d
217, 219, 450 N.E.2d 1140 (1983).
{¶14} Evid. R. 803(2) provides that an excited utterance is not excluded by the
hearsay rule. An excited utterance is defined by the rule 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.” Stark County, Case No. 2012CA00235 5
{¶15} In order to qualify as an excited utterance, there must be an occurrence
startling enough to produce a nervous excitement in the declarant, the statement must
be made before there was time for the nervous excitement to lose influence over the
declarant’s reflective faculties, the statement must be related to the startling
occurrence, and the declarant must have had an opportunity to personally observe the
matters asserted in her statement. State v. Duncan, 53 Ohio St. 2d 215, 373 N.E.2d
1234 (1978), at syllabus. Statements made in response to questioning may still be
admitted pursuant to the excited utterance exception to the hearsay rule if the
questioning is neither coercive nor leading, facilitates the declarant’s expression of
what is already the natural focus of the declarant’s thoughts, and does not destroy the
domination of the nervous excitement over the declarant’s reflective faculties. State v.
Wallace, 37 Ohio St. 3d 87, 93, 524 N.E.2d 466, 472 (1988).
{¶16} The officer arrived on the scene shortly after the incident between Brittany
and appellant. The officer testified that Brittany was distraught and crying, and very
nervous. She jumped at any sound coming from outside. The officer’s question to
Brittany was “what made her so upset or something along those lines.” Tr. Vol. 1 page
147. The question was not coercive nor was it leading. Further, Brittany remained
upset even after making the statements to the officer. She was afraid to go to the
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[Cite as State v. Cutshall, 2013-Ohio-3591.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Sheila G. Farmer, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : -vs- : : EDWARD A. CUTSHALL : Case No. 2012CA00235 : : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2012CA1236
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 19, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RENEE M. WATSON GEORGE URBAN Assistant Prosecuting Attorney 116 Cleveland Ave., NW, Suite 808 110 Central Plaza South, Suite 510 Canton, OH 44702 Canton, OH 44702-1413 Stark County, Case No. 2012CA00235 2
Baldwin, J.
{¶1} Appellant Edward A. Cutshall appeals a judgment of the Stark County
Common Pleas Court convicting him of one count of burglary in violation of R.C.
2911.12(A)(2) and sentencing him to five years incarceration. Appellee is the State of
Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On August 9, 2012, Brittany Buccini was home in her apartment with her
two-year-old daughter. Appellant knocked on the door, yelling that he wanted his
money back. Brittany pretended she was not home, and appellant left. Several days
earlier, appellant attended a small party at Brittany’s apartment. Appellant became
intoxicated at the party and had to be carried home to his apartment across the street,
where he lived with his friends Sarah Lyon and Jonah Fowler.
{¶3} Brittany called her friend Amanda Foster and told her about appellant’s
“visit.” The two met at the park with their children. Brittany returned home around 5:00
p.m. While she was making dinner, appellant began pounding on her door again.
Brittany ignored him, and he went away. Brittany was disturbed by appellant’s visit and
called her friend Amanda to come over with her boyfriend, Miguel Aguayo.
{¶4} Amanda and Miguel began playing cards with Brittany in Brittany’s
apartment. Appellant returned between 8:00 p.m. and 8:30 p.m. A shouting match
ensued between appellant and the occupants of Brittany’s apartment. Appellant ran up
the steps to Brittany’s apartment. Brittany, Amanda and Miguel ran inside and closed
the door. Appellant kicked the exterior door to the apartment completely off the frame.
Brittany and her friends ran into the living room and held the interior door shut. Stark County, Case No. 2012CA00235 3
Appellant continued to yell about missing money, and threatened to kill Brittany and
stab her daughter. Amanda called the police. Appellant ran outside and started
throwing rocks at the building.
{¶5} When Canton Police Officer Michael Rastetter arrived, a neighbor flagged
him down and told him a white male was throwing rocks at the building and yelling, and
had kicked in the door of Brittany’s apartment.
{¶6} Rastetter proceeded up the steps to Brittany’s apartment, where he noted
the exterior door had been broken off both hinges and the deadbolt, and was hanging
by a piece of wood. He found Brittany and her daughter in the living room, along with
Amanda and Miguel. Brittany was distraught and crying, and very nervous. She
jumped at any sound coming from outside. She told Rastetter that appellant kicked in
her exterior door and tried to gain access to the living room, but they held the interior
door shut. Brittany was hesitant to go with Rastetter to his cruiser to complete
paperwork, but reluctantly complied.
{¶7} While in the cruiser, Brittany thought she heard something in the back of
the apartment building. Rastetter went to check the noise to make Brittany feel better.
As he checked the backyard, Brittany started screaming, “He’s out here!” When
Rastetter returned, appellant was standing by the cruiser.
{¶8} Appellant was charged with one count of burglary. The case proceeded to
jury trial in the Stark County Common Pleas Court. At trial, Jonah Fowler testified that
although appellant kicked the door, he did not break the door open, and appellant
never entered the apartment. A neighbor also testified that appellant kicked the door
but it did not open, and he never entered the apartment. Stark County, Case No. 2012CA00235 4
{¶9} Appellant was convicted as charged and sentenced to five years
incarceration. He assigns two errors on appeal:
{¶10} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
ALLOWED TESTIMONY UNDER THE EXCITED UTTERANCE EXCEPTION TO
HEARSAY.
{¶11} “II. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
I.
{¶12} In his first assignment of error, appellant argues that the court erred in
allowing Officer Rastetter to testify as to what Brittany said when he arrived on the
scene. Appellant argues that the court erred in admitting her statements as excited
utterances when they were made in response to questioning, and sufficient time had
lapsed in order for her to have reflected on the events that transpired.
{¶13} The decision to admit or exclude evidence rests in the sound discretion of
the trial court. State v. Sage, 31 Ohio St. 3d 173, 510 N.E.2d 343 (1987), paragraph
two of the syllabus. An abuse of discretion connotes that the court’s decision was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d
217, 219, 450 N.E.2d 1140 (1983).
{¶14} Evid. R. 803(2) provides that an excited utterance is not excluded by the
hearsay rule. An excited utterance is defined by the rule 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.” Stark County, Case No. 2012CA00235 5
{¶15} In order to qualify as an excited utterance, there must be an occurrence
startling enough to produce a nervous excitement in the declarant, the statement must
be made before there was time for the nervous excitement to lose influence over the
declarant’s reflective faculties, the statement must be related to the startling
occurrence, and the declarant must have had an opportunity to personally observe the
matters asserted in her statement. State v. Duncan, 53 Ohio St. 2d 215, 373 N.E.2d
1234 (1978), at syllabus. Statements made in response to questioning may still be
admitted pursuant to the excited utterance exception to the hearsay rule if the
questioning is neither coercive nor leading, facilitates the declarant’s expression of
what is already the natural focus of the declarant’s thoughts, and does not destroy the
domination of the nervous excitement over the declarant’s reflective faculties. State v.
Wallace, 37 Ohio St. 3d 87, 93, 524 N.E.2d 466, 472 (1988).
{¶16} The officer arrived on the scene shortly after the incident between Brittany
and appellant. The officer testified that Brittany was distraught and crying, and very
nervous. She jumped at any sound coming from outside. The officer’s question to
Brittany was “what made her so upset or something along those lines.” Tr. Vol. 1 page
147. The question was not coercive nor was it leading. Further, Brittany remained
upset even after making the statements to the officer. She was afraid to go to the
police cruiser to fill out paperwork, and asked the officer to check out a suspicious
noise behind the apartment. The trial court did not abuse its discretion in admitting Stark County, Case No. 2012CA00235 6
Brittany’s statement to Officer Rastetter as an excited utterance. 1
{¶17} The first assignment of error is overruled.
II.
{¶18} In his second assignment of error, appellant argues that the judgment of
conviction is against the manifest weight and sufficiency of the evidence. Specifically
he argues that he did not trespass with the purpose to commit the offense of assault;
he merely kicked the door out of frustration.
{¶19} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387,
1997–Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1983).
{¶20} An appellate court's function when reviewing the sufficiency of the
evidence is to determine whether, after viewing the evidence in a light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492, paragraph two of the syllabus (1991).
1 Although properly admitted as an excited utterance, a hearsay statement may still be inadmissible as a violation of the Confrontation Clause if the statement is testimonial in nature. See State v. Siler, 164 Ohio App. 3d 680, 2005-Ohio-6591, 843 N.E.2d 863. However, we need not reach this issue in the instant case because the declarant testified at trial. When the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints on the use of his prior testimonial statements. Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Stark County, Case No. 2012CA00235 7
{¶21} Appellant was convicted of burglary in violation of R.C. 2911.12(A)(2):
{¶22} “(A) No person, by force, stealth, or deception, shall do any of the
following:
{¶23} (2) Trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure that is a permanent or temporary
habitation of any person when any person other than an accomplice of the offender is
present or likely to be present, with purpose to commit in the habitation any criminal
offense.”
{¶24} The trial court instructed the jury that to find appellant guilty, they had to
find that appellant had purpose to commit the crime of assault, defined as knowingly
causing or attempting to cause physical harm to another. Tr. Vol. 3, p. 24.
{¶25} Appellant argues that he kicked the door, but it did not open. Officer
Rastetter testified that when he arrived, the door had been kicked off its hinges and
was hanging on by a little bit of wood. Miguel Aguayo, Amanda Foster and Brittany
Buccini all testified that appellant kicked the exterior door off its frame and then
attempted to come through the living room door. They managed to hold the interior
door closed while calling the police to keep appellant form entering the living room.
{¶26} Further, Brittany testified that appellant threatened to harm her and her
daughter. While other witnesses did not hear this threat, appellant’s actions in forcibly
kicking through the exterior door and attempting to break through the interior door
support the jury’s conclusion that he intended to assault someone upon gaining entry
to the apartment. Stark County, Case No. 2012CA00235 8
{¶27} The jury’s verdict is not against the manifest weight or sufficiency of the
evidence. The second assignment of error is overruled.
{¶28} The judgment of the Stark County Common Pleas Court is affirmed.
Costs are assessed to appellant.
By: Baldwin, J.
Farmer, P.J. and
Wise, J. concur.
HON. CRAIG R. BALDWIN
HON. SHEILA G. FARMER
HON. JOHN W. WISE
CRB/rad [Cite as State v. Cutshall, 2013-Ohio-3591.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff -Appellee : : -vs- : JUDGMENT ENTRY : EDWARD A. CUTSHALL : : Defendant - Appellant : CASE NO. 2012CA00235
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs
assessed to appellant.