[Cite as State v. Myers, 2020-Ohio-6792.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 19AP0045
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE JACOB MYERS WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO Appellant CASE No. 2019 CR-B 0753
DECISION AND JOURNAL ENTRY
Dated: December 21, 2020
SCHAFER, Judge.
{¶1} Defendant-Appellant, Jacob Myers, appeals his conviction for assault in the Wayne
County Municipal Court. This Court affirms.
I.
{¶2} On May 30, 2019, at 1:40 p.m., Sergeant Kolek of the Wooster Police Department
was dispatched to an address on East South Street for a possible domestic violence situation or
assault in progress. After arriving at the location, Sergeant Kolek spoke to the victim and a witness
who described the incident and indicated that the assailant had left the area. Both the victim and
the witness told Sergeant Kolek that Myers had assaulted the victim after she told Myers she no
longer wanted to see him romantically. Based on his investigation, including his physical
observations of the victim, his observations of the location around where the incident occurred,
and what the victim and the witness told him, Sergeant Kolek determined Myers should be placed
under arrest. 2
{¶3} Myers was arrested by another officer shortly thereafter and charged with domestic
violence in violation of R.C. 2919.25(A), a first-degree misdemeanor; assault in violation of R.C.
2903.13(A), a first-degree misdemeanor; unlawful restraint in violation of R.C 2905.03(A), a third-
degree misdemeanor; and disorderly conduct in violation of R.C. 2917.11(A)(1), a minor
misdemeanor. Myers entered a plea of not guilty and the matter proceeded through the pretrial
process.
{¶4} The matter eventually proceeded to a jury trial, where Sergeant Kolek was the only
witness to testify. During trial, Myers’ counsel objected to Sergeant Kolek’s testimony regarding
what the victim told him during his investigation, asserting that the statements were hearsay and
violated Myers’ right to confront his accuser. The trial court overruled the objections. Following
deliberations, the jury found Myers guilty of assault. The jury further found Myers not guilty of
domestic violence and unlawful restraint. The trial court dismissed the disorderly conduct charge
after granting a Crim.R. 29 motion.1 The trial court thereafter accepted the verdicts of the jury,
found Myers guilty of assault, and sentenced him according to law.
{¶5} Myers filed this timely appeal, raising one assignment of error for our review.
II.
Assignment of Error
The trial court committed error by admitting testimonial hearsay in violation of Myers’ Sixth Amendment Right to confront his accuser.
1 A review of the trial transcript shows that Myers’ trial counsel requested the trial court to rule on his Crim.R. 29 motion. The basis for the motion is not a part of the record. In response, the trial judge stated that the court “made a decision on that appropriately off the record,” but did not indicate the basis for the motion nor how the court ruled. Nonetheless, the trial court’s journal entry filed July 25, 2019, states that the disorderly conduct charge was dismissed following a Crim.R. 29 motion. 3
{¶6} In his sole assignment of error, Myers contends that the trial court abused its
discretion when it allowed Sergeant Kolek to testify regarding statements made by the victim
pursuant to the exited utterance exception to the rule against hearsay. Myers does not point to any
specific statements made by the victim, and instead appears to argue that none of the victim’s
statements were admissible. Myers also contends that the admission of Sergeant Kolek’s
testimony regarding the victim’s statements violated his constitutional right to confront his
accuser. Again, he does not point to any specific statement, and instead appears to argue that none
of the victim’s statements were admissible.
{¶7} Initially, we note that “[t]he question of whether statements are admissible under
the Rules of Evidence and the question of whether they are admissible under the Confrontation
Clause are separate inquiries.” State v. Henning, 9th Dist. Summit No. 29128, 2019-Ohio-2200,
¶ 17, citing State v. Miller, 9th Dist. Lorain No. 14CA010556, 2016-Ohio-4993, ¶ 9.
“‘[T]estimony may be admissible under the Confrontation Clause yet inadmissible under the rules
of evidence, and vice versa, [so a] declarant’s statements must fall within the constitutional
requirements and the rules of evidence to be admissible.’” (Emphasis sic.) Miller at ¶ 11, quoting
State v. Nevins, 171 Ohio App.3d 97, 2007-Ohio-1511, ¶ 36 (2d Dist.). Consequently, we consider
Myer’s evidentiary and Confrontation Clause challenges to the admission of the victim’s
statements separately.
Hearsay
{¶8} We review admissibility determinations made pursuant to the Rules of Evidence
for an abuse of discretion. Henning at ¶ 17. An abuse of discretion connotes more than an error
of law; it implies a court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). 4
{¶9} Hearsay is defined 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.”
Evid.R. 801(C). Hearsay statements are inadmissible except as otherwise provided in the Ohio
Rules of Evidence or other relevant constitutional or statutory provision. Evid.R. 802. Pursuant
to Evid.R. 803(2), an excited utterance, defined 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[,]” is an exception to the general rule. This is because the trustworthiness of an excited
utterance—a declaration of what the declarant actually believes to be true—derives from the lack
of opportunity to fabricate, not the moral character of the declarant. State v. Wallace, 37 Ohio
St.3d 87, 95 (1988). To be admissible, the statement “must concern ‘some occurrence startling
enough to produce a nervous excitement in the declarant,’ which occurrence the declarant had an
opportunity to observe, and must be made ‘before there had been time for such nervous excitement
to lose a domination over his reflective faculties.” State v. Huertas, 51 Ohio St.3d 22, 31 (1990),
quoting Potter v. Baker, 162 Ohio St. 488 (1955), paragraph two of the syllabus.
{¶10} In this case, the trial court determined that the victim’s statements regarding what
occurred during the May 30, 2019 incident to Sergeant Kolek constituted excited utterances based
on the “foundation * * * laid” in his testimony. Sergeant Kolek testified that he believed he arrived
on scene within two to three minutes of the incident occurring. He stated that the 911 call reporting
the incident was received at 1:40 p.m., that he was dispatched to the scene at 1:41 p.m., and that
he arrived at the scene within two minutes of being dispatched. Regarding the victim’s demeanor,
Sergeant Kolek testified she appeared “visibly upset, fidgety,” and that she was “talking really
fast” and “unable to complete a thought.” Sergeant Kolek also observed the victim’s ear to be 5
actively bleeding, that she had red marks on her body, and that the back of her clothing was
“soaking wet.”
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[Cite as State v. Myers, 2020-Ohio-6792.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 19AP0045
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE JACOB MYERS WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO Appellant CASE No. 2019 CR-B 0753
DECISION AND JOURNAL ENTRY
Dated: December 21, 2020
SCHAFER, Judge.
{¶1} Defendant-Appellant, Jacob Myers, appeals his conviction for assault in the Wayne
County Municipal Court. This Court affirms.
I.
{¶2} On May 30, 2019, at 1:40 p.m., Sergeant Kolek of the Wooster Police Department
was dispatched to an address on East South Street for a possible domestic violence situation or
assault in progress. After arriving at the location, Sergeant Kolek spoke to the victim and a witness
who described the incident and indicated that the assailant had left the area. Both the victim and
the witness told Sergeant Kolek that Myers had assaulted the victim after she told Myers she no
longer wanted to see him romantically. Based on his investigation, including his physical
observations of the victim, his observations of the location around where the incident occurred,
and what the victim and the witness told him, Sergeant Kolek determined Myers should be placed
under arrest. 2
{¶3} Myers was arrested by another officer shortly thereafter and charged with domestic
violence in violation of R.C. 2919.25(A), a first-degree misdemeanor; assault in violation of R.C.
2903.13(A), a first-degree misdemeanor; unlawful restraint in violation of R.C 2905.03(A), a third-
degree misdemeanor; and disorderly conduct in violation of R.C. 2917.11(A)(1), a minor
misdemeanor. Myers entered a plea of not guilty and the matter proceeded through the pretrial
process.
{¶4} The matter eventually proceeded to a jury trial, where Sergeant Kolek was the only
witness to testify. During trial, Myers’ counsel objected to Sergeant Kolek’s testimony regarding
what the victim told him during his investigation, asserting that the statements were hearsay and
violated Myers’ right to confront his accuser. The trial court overruled the objections. Following
deliberations, the jury found Myers guilty of assault. The jury further found Myers not guilty of
domestic violence and unlawful restraint. The trial court dismissed the disorderly conduct charge
after granting a Crim.R. 29 motion.1 The trial court thereafter accepted the verdicts of the jury,
found Myers guilty of assault, and sentenced him according to law.
{¶5} Myers filed this timely appeal, raising one assignment of error for our review.
II.
Assignment of Error
The trial court committed error by admitting testimonial hearsay in violation of Myers’ Sixth Amendment Right to confront his accuser.
1 A review of the trial transcript shows that Myers’ trial counsel requested the trial court to rule on his Crim.R. 29 motion. The basis for the motion is not a part of the record. In response, the trial judge stated that the court “made a decision on that appropriately off the record,” but did not indicate the basis for the motion nor how the court ruled. Nonetheless, the trial court’s journal entry filed July 25, 2019, states that the disorderly conduct charge was dismissed following a Crim.R. 29 motion. 3
{¶6} In his sole assignment of error, Myers contends that the trial court abused its
discretion when it allowed Sergeant Kolek to testify regarding statements made by the victim
pursuant to the exited utterance exception to the rule against hearsay. Myers does not point to any
specific statements made by the victim, and instead appears to argue that none of the victim’s
statements were admissible. Myers also contends that the admission of Sergeant Kolek’s
testimony regarding the victim’s statements violated his constitutional right to confront his
accuser. Again, he does not point to any specific statement, and instead appears to argue that none
of the victim’s statements were admissible.
{¶7} Initially, we note that “[t]he question of whether statements are admissible under
the Rules of Evidence and the question of whether they are admissible under the Confrontation
Clause are separate inquiries.” State v. Henning, 9th Dist. Summit No. 29128, 2019-Ohio-2200,
¶ 17, citing State v. Miller, 9th Dist. Lorain No. 14CA010556, 2016-Ohio-4993, ¶ 9.
“‘[T]estimony may be admissible under the Confrontation Clause yet inadmissible under the rules
of evidence, and vice versa, [so a] declarant’s statements must fall within the constitutional
requirements and the rules of evidence to be admissible.’” (Emphasis sic.) Miller at ¶ 11, quoting
State v. Nevins, 171 Ohio App.3d 97, 2007-Ohio-1511, ¶ 36 (2d Dist.). Consequently, we consider
Myer’s evidentiary and Confrontation Clause challenges to the admission of the victim’s
statements separately.
Hearsay
{¶8} We review admissibility determinations made pursuant to the Rules of Evidence
for an abuse of discretion. Henning at ¶ 17. An abuse of discretion connotes more than an error
of law; it implies a court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). 4
{¶9} Hearsay is defined 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.”
Evid.R. 801(C). Hearsay statements are inadmissible except as otherwise provided in the Ohio
Rules of Evidence or other relevant constitutional or statutory provision. Evid.R. 802. Pursuant
to Evid.R. 803(2), an excited utterance, defined 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[,]” is an exception to the general rule. This is because the trustworthiness of an excited
utterance—a declaration of what the declarant actually believes to be true—derives from the lack
of opportunity to fabricate, not the moral character of the declarant. State v. Wallace, 37 Ohio
St.3d 87, 95 (1988). To be admissible, the statement “must concern ‘some occurrence startling
enough to produce a nervous excitement in the declarant,’ which occurrence the declarant had an
opportunity to observe, and must be made ‘before there had been time for such nervous excitement
to lose a domination over his reflective faculties.” State v. Huertas, 51 Ohio St.3d 22, 31 (1990),
quoting Potter v. Baker, 162 Ohio St. 488 (1955), paragraph two of the syllabus.
{¶10} In this case, the trial court determined that the victim’s statements regarding what
occurred during the May 30, 2019 incident to Sergeant Kolek constituted excited utterances based
on the “foundation * * * laid” in his testimony. Sergeant Kolek testified that he believed he arrived
on scene within two to three minutes of the incident occurring. He stated that the 911 call reporting
the incident was received at 1:40 p.m., that he was dispatched to the scene at 1:41 p.m., and that
he arrived at the scene within two minutes of being dispatched. Regarding the victim’s demeanor,
Sergeant Kolek testified she appeared “visibly upset, fidgety,” and that she was “talking really
fast” and “unable to complete a thought.” Sergeant Kolek also observed the victim’s ear to be 5
actively bleeding, that she had red marks on her body, and that the back of her clothing was
“soaking wet.”
{¶11} On appeal, Myers does not point to any specific statements made by Sergeant Kolek
in the trial transcript regarding the victim’s statements to him as being inadmissible hearsay. See
App.R. 16(A)(7). Because Myers has not pointed to any specific statement made by the victim,
we cannot say that he has demonstrated that the trial court erred and abused its discretion by
determining the victim’s statements constituted excited utterances. Sergeant Kolek stated he
arrived to the scene of the incident within minutes of the assault and the victim was visibly upset.
Additionally, Sergeant Kolek observed that the victim still had red marks on her body, that her ear
was still bleeding, and that the backside of her clothing was still soaking wet. Based on this
testimony, the trial court could have reasonably determined that some or all of the victim’s
statements were not the result of reflective thought. See Huertas at 31. Though Myers states “[i]t
is unclear which statements were made by [the victim] under ‘excited state’ and which statements
were made under reflective thought[,]” if an argument exists that some of the victim’s statements
were made after reflective thought, it is not this Court’s duty to develop that argument on Myers’
behalf. Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998).
Confrontation Clause
{¶12} We review admissibility determinations made over a Confrontation Clause
objection de novo, giving no deference to the trial court’s legal determinations. Henning, 2019-
Ohio-2200, at ¶ 17.
{¶13} The Confrontation Clause guarantees a criminal defendant the right “to be
confronted with the witnesses against him.” Sixth Amendment to the United States Constitution.
This right under the federal Constitution is applicable to the States pursuant to the Fourteenth 6
Amendment. See Pointer v. Texas, 380 U.S. 400, 403 (1965). An individual’s confrontation right,
however, “is not absolute and ‘does not necessarily prohibit the admission of hearsay statements
against a criminal defendant.’” State v. Madrigal, 87 Ohio St.3d 378, 385 (2000), quoting Idaho
v. Wright, 497 U.S. 805, 813 (1990). Rather, the Confrontation Clause only bars the admission of
“testimonial” hearsay statements. Crawford v. Washington, 541 U.S. 36, 68 (2004). An out-of-
court statement is testimonial when “in light of all the circumstances, viewed objectively, the
‘primary purpose’ of the conversation [giving rise to the statement] was to ‘create an out-of-court
substitute for trial testimony.’” Ohio v. Clark, 135 S.Ct. 2173, 2180 (2015), quoting Michigan v.
Bryant, 562 U.S. 344, 358 (2011). “In determining whether a statement is testimonial for
Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time
of making the statement; the intent of the questioner is relevant only if it could affect a reasonable
declarant’s expectations.” State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, paragraph two the
syllabus.
{¶14} Whether a statement made during police questioning is testimonial in nature
depends on the circumstances surrounding the interrogation. See Davis v. Washington, 547 U.S.
813, 821-822. The United States Supreme Court stated in Davis:
Statements 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.
Id. at 822. Domestic violence cases often have a narrower zone of potential victims than cases
involving threats to public safety, however, “[a]n assessment of whether an emergency that
threatens the police and public is ongoing cannot narrowly focus on whether the threat solely to
the first victim has been neutralized because the threat to the first responders and public may 7
continue.” Bryant, 562 U.S. at 363. Additionally, though not determinative of the issue, the
“standard rules of hearsay, designed to identify some statements as reliable, will be relevant” when
determining an interrogation’s primary purpose. Id., at 358-359.
{¶15} On appeal, Myers does not point to any specific statements made by Sergeant Kolek
in the trial transcript regarding the victim’s statements to him as being testimonial. See App.R.
16(A)(7). Consequently, we cannot say that he has demonstrated that the trial court erred by
determining the victim’s statements were not testimonial in nature. Viewed objectively, the
totality of the circumstances involving the victim’s statements to Sergeant Kolek demonstrate that
the primary purpose of the questioning was to address an ongoing emergency and determine the
current situation. Sergeant Kolek testified he was dispatched to the scene due to a report of a
“domestic or assault in progress” and arrived within two minutes of being dispatched. Sergeant
Kolek elicited the victim’s statements immediately upon arriving on the scene and observed the
victim to be visibly upset, bleeding, and wearing clothing that was soaking wet and dirty. See
Bryant at 366 (the informality of an encounter between a victim and the police is a factor to
consider). Although the victim told Sergeant Kolek that the perpetrator had fled, it appears from
Sergeant Kolek’s testimony that Myers may have been detained by another officer at some point
during her statements to Sergeant Kolek. Regardless, Myers was not in custody and Sergeant
Kolek had not made the determination to have Myers placed under arrest as the alleged perpetrator
until after observing the victim and eliciting her statements.
{¶16} Because at least some of the victim’s statements were elicited during an on-going
emergency, they were not testimonial in nature and do not implicate the Confrontation Clause.
Though we recognize that police questioning that begins as an interrogation to enable police to
assist in an ongoing emergency may evolve into a more formal interrogation to establish or prove 8
past events relevant to a later criminal prosecution, see Davis, 547 U.S. at 828, Myers does not
argue that such a situation occurred in this case. Again, if such an argument exists, it is not this
Court’s duty to root it out. Cardone, 1998 WL 224934, at *8.
{¶17} Myers’ assignment of error is overruled.
III.
{¶18} Myers’ sole assignment of error is overruled.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER FOR THE COURT 9
HENSAL, P. J. TEODOSIO, J. CONCUR.
APPEARANCES:
WESLEY A. JOHNSTON, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting Attorney, for Appellee.