[Cite as State v. Russell, 2025-Ohio-5311.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, Case No. 25 CAA 02 0019
Plaintiff - Appellee Opinion And Judgment Entry
-vs- Appeal from the Delaware County Court of Common Pleas, Case No. 24 CR I 03 0317 BENJAMIN J. RUSSELL, Judgment: Affirmed Defendant - Appellant Date of Judgment Entry: November 24, 2025
BEFORE: Craig R. Baldwin; William B. Hoffman; Robert G. Montgomery, Judges
APPEARANCES: MELISSA A. SCHIFFEL, Prosecuting Attorney, KATHERYN L. MUNGER, Assistant Prosecuting Attorney, for Plaintiff-Appellee; WILLIAM T. CRAMER, for Defendant-Appellant.
Baldwin, P.J.
{¶1} The appellant, Benjamin Russell, appeals his conviction on one count of
domestic violence following a jury trial. Appellee is the State of Ohio. For the reasons that
follow, we affirm the decision of the trial court.
STATEMENT OF FACTS AND THE CASE
{¶2} The appellant was charged on or about June 3, 2024, with domestic
violence arising from an incident that occurred on June 2, 2024. He was indicted on June
13, 2024, on one count of domestic violence in violation of R.C. 2919.25(A) and (D)(4), a
felony of the third degree. The appellant pleaded not guilty. {¶3} The matter proceeded to a jury trial on February 11 and 12, 2025. Prior to
voir dire, the trial court addressed a Motion in Limine that had been filed by the appellant
on February 10, 2025, in which the appellant argued that out of court statements made
by the victim, R.H., should be excluded because their admission violated the
Confrontation Clause and constituted hearsay. The appellant’s Motion in Limine did not
address out of court statements made by the 911 caller, who was the appellant’s brother.
The trial court, after hearing the arguments presented by both parties and watching the
law enforcement officers’ bodycam footage, determined that the statements were
admissible, stating:
THE COURT: I don’t. There are a number of exceptions under hearsay.
When the medics come, there are statements for the purpose of medical
diagnosis and treatment.
Prior to that, she is crying, emotional. It’s pretty plain, so it’s certainly
excited utterance. I think, when she’s describing her injuries, I think it is
existing physical condition; hearsay. It’s not testimonial. It’s not - - she’s not
making those statements for the purpose of a criminal investigation.
I think there’s even an emergent situation and she’s, frankly, even
reluctant to make statements. I mean, she does not want to identify herself
or answer questions and so that’s, in my mind, clearly not an intention to
create evidence for - - it’s actually the opposite; she’s trying not to create
evidence, or at least that’s the effect.1
1 The trial court did, however, exclude a portion of the bodycam footage in which the officer stated “you are the victim of a crime” when he first began speaking with R.H. The matter proceeded to trial, during which the following evidence was presented.
{¶4} On June 2, 2024, at or around 5:00 a.m., Sergeant Thomas Donoghue of
the Delaware City Police Department responded to a call regarding “a fight with people
bleeding.” The location was a house that had been divided into apartments, with a small
parking area in the back. Officer Gregory Bates arrived around the same time as Sergeant
Donoghue. The officers met with the 911 caller, who was the appellant's brother. The
apartment at issue was at the back of the house on the second floor.
{¶5} The appellant objected during trial to the admission of the recording of the
911 call and the statements made by his brother, which the appellant argued were
hearsay. However, the trial court determined that the present sense impression exception
to the hearsay rule applied, and allowed their admission. A recording of the 911 call was
played for the jury. During the call, the appellant’s brother told the operator that they
needed a squad at the apartment, that the appellant and his girlfriend were fighting, that
the fight was physical and there was blood, they both had injuries, and that officers
needed to get over there because they were going to hurt each other. Near the end of the
911 call, the appellant’s brother stated that the appellant had a spinal injury, but just got
up and started “smacking the shit out of her and everything else.”
{¶6} Sergeant Donoghue testified that the appellant’s brother told Donoghue that
he was renting one of the apartments, and that R.H. was the appellant’s girlfriend. The
appellant’s brother described what he saw for the officers at the scene, and Sergeant
Donoghue testified that it was consistent with what R.H. subsequently said while being
treated by paramedics. {¶7} Sergeant Donoghue noticed a vehicle parked behind the house at an odd
angle; he shined his flashlight into the vehicle and saw R.H., who appeared to be crying
and upset, in the back seat. Sergeant Donoghue had her crack the door so they could
talk. R.H. had a cut above her eye that was bleeding heavily down her face which she
was trying to clean. She also had blood in her mouth and some type of an injury to her
arm. R.H. was reluctant to say what had happened. However, she eventually spoke with
the paramedics as they tended to her injuries, and told them how she was injured,
including that she was struck by a fist. As R.H. was being placed on a gurney to be loaded
into the ambulance, she stated: “I did nothing to him. Damn monster hit me with a frickin
walker.” R.H.’s interactions with paramedics were captured on Donoghue’s body camera,
the video of which was played for the jury.
{¶8} Officer Bates testified that the appellant’s brother told the officers that the
appellant had a spinal cord injury, but nonetheless stood up to assault R.H. Officer Bates’
body camera video was played for the jury, during which the appellant’s brother can be
heard saying that the appellant had a spinal cord injury “but somehow he got up and beat
the shit out of this girl.” The appellant’s brother was also heard on the video stating that
he witnessed the appellant hit R.H.
{¶9} After another officer arrived to assist, Officer Bates and the other officer
entered the apartment and found the appellant lying on a bed at the back of the apartment.
A walker was on the floor just outside the bedroom. The appellant said he was in bed and
could not move, stating that he had a broken back, neck, spine, and hips; that he had to
be carried upstairs; and, that his medical paperwork was in a bag in the front room. The
appellant’s knuckle appeared to have blood on it. {¶10} Based upon the information provided by the appellant’s brother, and the
statements made by R.H. to paramedics, Officer Bates placed the appellant under arrest.
The appellant appeared to have some serious medical issues, so paramedics were called
to assist. The appellant was noncompliant with the paramedics, and they eventually had
to ask officers to handcuff the appellant so they could transport him to the hospital.
{¶11} Tyler McCoy, an Intensive Supervision Officer with Delaware County Adult
Probation, testified that he had been supervising the appellant since August of 2023.
McCoy testified that he had conversations with the appellant, and learned that the
appellant was living with someone. During a home visit in October of 2023, a woman was
present whom the appellant introduced to McCoy as his girlfriend. In November of 2023,
the appellant told McCoy that his girlfriend had moved in with him. Finally, McCoy testified
that in February of 2024 he saw the appellant with his girlfriend walking down an alley
and stopped them for a conversation. McCoy identified R.H. as the appellant’s girlfriend.
{¶12} Forensic nurse Jennifer Coffindaffer testified that she spoke with R.H. at the
hospital regarding her injuries, noting that R.H. was tearful, upset, anxious about what
was happening, and just wanted to go back home to Chicago. R.H told Coffindaffer that
the appellant walked over to her and would not let her get her purse; he hit her with his
fists when she walked to the living room, and hit her with his walker. Coffindaffer identified
some of R.H.’s injuries, including the bruising around her eye; abrasions down her face;
redness in her hairline; redness and bruising to her lip; bruises and abrasions on her
arms; and, a broken fingernail and blood on a finger. Coffindaffer testified that R.H. was
able to relate the injuries to specific actions by the appellant; for example, that the appellant hit R.H.’s left arm with the walker. R.H. did not have a safe place to go upon
discharge from the hospital, and wanted to go back to Chicago where she had family.
{¶13} The parties stipulated that the appellant had two prior convictions, one for
domestic battery in Cook County, Illinois, which is substantially similar to domestic
violence in Ohio; and, a second for aggravated assault against a household or family
member in Delaware County, Ohio.
{¶14} The jury found the appellant guilty as charged, and the trial court set the
matter for sentencing. At the sentencing hearing, the trial court addressed unrelated
community control violations in case number 23CRI060342, terminated community
control, and imposed the reserved sentence of 18 months on that case. In the instant
case, the court imposed a consecutive prison term of 36 months, with a mandatory term
of post release control of one to three years. The court imposed costs, but not fines. All
of the appellant’s jail credits were applied to the community control violation.
{¶15} The appellant filed a timely appeal in which he sets forth the following three
assignments of error:
{¶16} “I. APPELLANT’S CONFRONTATION RIGHTS UNDER THE STATE AND
FEDERAL CONSTITUTIONS WERE VIOLATED BY THE ADMISSION OF
TESTIMONIAL HEARSAY FROM THE ONLY TWO EYEWITNESSES.”
{¶17} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING
HEARSAY EVIDENCE FROM THE ONLY TWO EYEWITNESSES, NEITHER OF WHOM
WAS CALLED TO TESTIFY ON BEHALF OF THE PROSECUTION.”
{¶18} “III. THE AGGREGATE IMPACT OF ADMITTING ALL THE
ACCUSATIONS VIA HEARSAY WAS TO DEPRIVE APPELLANT OF A FAIR TRIAL IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE
PROCESS, AND TO CAUSE UNFAIR PREJUDICE IN VIOLATION OF EVID.R. 403(A).”
ASSIGNMENT OF ERROR NO. I
{¶19} The appellant argues in his first assignment of error that the trial court’s
decision to allow the admission of statements made by R.H. and his brother, the 911
caller, violated his right to confront witnesses against him. We disagree.
Standard Of Review
{¶20} The Ohio Supreme Court discussed the standard of review of an alleged
Confrontation Clause violation, the Confrontation Clause, hearsay, and the admissibility
of a victim’s statements through bodycam footage in State v. Smith, 2024-Ohio-5745:
We consider whether the admission at Smith's criminal trial of B.B.’s
statements made to the EMTs and to Officer Soucek as captured on Officer
Soucek's body-camera video violated Smith's rights under the
Confrontation Clause of the Sixth Amendment to the United States
Constitution. We review this question of law de novo. See State v.
McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 172.
Analysis
{¶21} In Smith, the victim of domestic violence spoke with both law enforcement
officers and EMTs. The Court stated:
The Sixth Amendment provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right ... to be confronted with the witnesses
against him.” In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004), the United States Supreme Court explained that the key question for determining whether a Confrontation Clause violation has
occurred is whether an out-of-court statement is “testimonial.” Id. at 59, 68,
124 S.Ct. 1354. If a statement is testimonial, its admission into evidence will
violate the defendant's right to confrontation if the defendant does not have
an opportunity to cross-examine the declarant. Id. at 53-56, 124 S.Ct. 1354.
To determine whether a statement is testimonial, courts must look to
post-Crawford decisions to ascertain whether the statement bears indicia of
certain factors that would make it testimonial. “Statements are
nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency.”
Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224
(2006). 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 primary purpose of a
testimonial statement is to create an out-of-court substitute for trial
testimony. Ohio v. Clark, 576 U.S. 237, 245, 135 S.Ct. 2173, 192 L.Ed.2d
306 (2015). That primary purpose must be measured objectively by the trial
court, accounting for the perspectives of the interrogator and the declarant.
Michigan v. Bryant, 562 U.S. 344, 367-368, 131 S.Ct. 1143, 179 L.Ed.2d 93
(2011). Id. at ¶32-34. The Smith Court found that the victim’s statements made to EMTs were not
testimonial in nature, but rather, were made for the purpose of receiving medical
treatment, and therefore were admissible. So, too, were R.H.’s statements herein made
to paramedics who were treating her for her injuries. The bodycam footage clearly shows
R.H. responding to questions from the paramedics who were treating her for her injuries,
and not to questions from law enforcement officers. Her interactions with paramedics
were simply caught on the officer’s bodycam. R.H.’s statements were not testimonial, and
therefore their admission did not violate the Confrontation Clause.
{¶22} The appellant argued in his Motion in Limine that the Confrontation Clause
precluded the admissibility of statements made by R.H.; he did not argue in his Motion
that the Confrontation Clause precluded statements made by his brother. Instead, the
appellant objected to the admissibility of his brother’s statements during trial on hearsay
grounds. Thus, the appellant has waived all but plain error with regard to whether the
Confrontation Clause applied to preclude the admission of statements made by his
brother.
{¶23} Plain error was defined by the Ohio Supreme Court as follows:
. . . Plain error is an obvious defect in the trial proceeding that affects
substantial rights. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240
(2002). The alleged error must have “substantially affected the outcome of
the trial,” Slagle at 605, 605 N.E.2d 916, such that “but for the error, the
outcome of the trial clearly would have been otherwise,” State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978) paragraph two of the syllabus; accord State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶
137.
State v. Cepec, 2016-Ohio-8076, ¶ 67. The statements made by the appellant’s brother
were not testimonial, and therefore not subject to the confrontation clause, as they were
made for the primary purpose of enabling responding law enforcement officers to meet
an ongoing emergency. Further, there is no evidence that exclusion of the brother’s
statements would have substantially affected the outcome of the trial, nor that, but for the
alleged error, the outcome of the trial would have been otherwise, particularly in light of
the admission of statements made by R.H. to the paramedics.
{¶24} The court in State v. Jackson, 2023-Ohio-2193 (3rd Dist.), motion for
delayed appeal granted, 2023-Ohio-4200, and appeal not allowed, 2024-Ohio-555,
addressed a similar Confrontation Clause issue, stating:
Similar to his hearsay challenge, Jackson failed to raise the
Confrontation Clause issue before the trial court. As a result, he waived all
but plain error on appeal. Nevertheless, based on our review of the record,
we conclude that it was not error, let alone plain error, for the trial court to
admit Snyder's out-of-court statements even though Snyder did not testify
at trial. Importantly, Jackson failed to demonstrate that the primary purpose
of any of Snyder's statements made to law enforcement to which he objects
was to create an out-of-court substitute for trial testimony. Likewise,
Jackson failed to demonstrate Snyder would have reasonably believed that
his statements to Nees would be available for later use at trial. In this case, we conclude that Snyder's statements to law
enforcement—including Snyder's statements to the bystander and to his
sister that were conveyed to law enforcement—are nontestimonial under
the primary-purpose test. Decisively, those statements are nontestimonial
because they were made during an ongoing emergency. Indeed,
“[s]tatements to police officers responding to an emergency situation are
generally considered nontestimonial precisely because the declarant is
usually acting—under great emotional duress—to secure protection or
medical care.” Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d
1028, at ¶ 183. Critically, “[a]n ongoing emergency does not necessarily end
when the police arrive.” Little at ¶ 18.
Id. at ¶¶ 58-59. In this case the brother’s statements - that a squad was needed at the
apartment, that the appellant and his girlfriend [R.H.] were fighting, that the fight was
physical and there was blood, they both had injuries, and that officers needed to get over
there because they were going to hurt each other - were made to the 911 operator to get
help during an emergency situation, and his statements to law enforcement officers on
scene were made during the ongoing emergency. The admission of said statements was
not error, let alone plain error.
{¶25} Based upon the above, we find the appellant’s assignment of error number
one to be without merit, and overrule the same.
ASSIGNMENT OF ERROR NO. II
{¶26} The appellant submits in his second assignment of error that the trial court
abused its discretion when it allowed the admission of statements made by R.H. and the appellant’s brother, who was the 911 caller, arguing that said statements constituted
inadmissible hearsay. We disagree.
{¶27} “Ordinarily, 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 County, 58 Ohio St.3d 269,
271 (1991). The appellate court must limit its review of the trial court's admission or
exclusion of evidence to whether the trial court abused its discretion. Id. The abuse of
discretion standard is more than an error of judgment; it implies the court ruled arbitrarily,
unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
{¶28} “‘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 in the statement.” Evid.R. 801(C). Hearsay is inadmissible unless it falls under
an exception to the rule. Evid.R. 802.
{¶29} Evid.R. 803 addresses exceptions to the hearsay rule, and provides in
pertinent part:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining
an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of
trustworthiness.
(2) 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.
(3) Then Existing, Mental, Emotional, or Physical Condition. A
statement of the declarant's then existing state of mind, emotion, sensation,
or physical condition (such as intent, plan, motive, design, mental feeling,
pain, and bodily health), but not including a statement of memory or belief
to prove the fact remembered or believed unless it relates to the execution,
revocation, identification, or terms of declarant's will.
(4) Statements for Purposes of Medical Diagnosis or Treatment.
Statements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external
source thereof insofar as reasonably pertinent to diagnosis or treatment.
The bodycam footage of R.H.’s statements regarding her injuries and how she got them
establishes that she was responding to questions from paramedics regarding her injuries.
Her statements to paramedics, in which she described her symptoms, pain, and
sensations, were made for the purposes of medical diagnosis and treatment. The trial
court did not err when it found that the statements made by R.H. were not precluded by
the hearsay rule. {¶30} In addition, the trial court correctly found that the excited utterance
exception to the hearsay rule applied to statements made by R.H. As set forth by the court
in State v. Scarl, 2003-Ohio-3493 (11th Dist.):
When deciding whether a statement qualifies as an excited
utterance, a court should consider the following: “(a) the lapse of time
between the event and the declaration; (b) the mental and physical
condition of the declarant; (c) the nature of the statement; and (d) the
influence of intervening circumstances.” Shelton at ¶ 25. See, also, State v.
Humphries (1992), 79 Ohio App.3d 589, 598, 607 N.E.2d 921. That being
said, the timing of the statement is not the controlling factor. State v. Ashford
(Feb. 16, 2001), 11th Dist. No. 99–T–0015, 2001 WL 137595, at 5. See,
also, Taylor at 303, 612 N.E.2d 316 (observing that “the passage of time
between the statement and the event is relevant but not dispositive of the
question”). Rather, “[t]he central requirements are that the statement must
be made while the declarant is still under the stress of the event and the
statement may not be a result of reflective thought.” (Emphasis sic.) Taylor
at 303, 612 N.E.2d 316.
Moreover, declarations given in response to questioning can be
admissible as excited utterances provided that certain safe guards are met.
Stated differently, “[t]he admission of a declaration as an excited utterance
is not precluded by questioning which: (1) is neither coercive nor leading,
(2) facilitates the declarant's expression of what is already the natural focus
of the declarant's thoughts, and (3) does not destroy the domination of the nervous excitement over the declarant's reflective faculties.” State v.
Wallace (1988), 37 Ohio St.3d 87, 524 N.E.2d 466, paragraph two of the
syllabus. See, also, State v. Patterson (May 22, 1998), 11th Dist. No. 96–
T–5439, 1998 WL 310737, at 11.
Id. at ¶¶ 59-60. R.H. was sitting in the back seat of a parked car at the rear of the
residence, having run outside in the dark in the rain in her socks to get away from the
appellant’s violent actions. The lapse of time between her injuries and when officers found
her in the back seat was minimal. When officers found her, she was bleeding, in pain,
and scared. Her statements to law enforcement officers were minimal, as she appeared
hesitant to speak with them. Her statements regarding the injuries she sustained, and
how, were made to paramedics. There is no evidence that any intervening circumstances
influenced R.H.’s statements, nor were any of the officer’s questions coercive or
misleading. R.H.’s nervous excitement regarding the events leading up to her injuries
was not extinguished by the officer’s questions. Indeed, her focus was on answering the
questions from paramedics, which was captured on the officers’ bodycam. Even if the
medical treatment exception did not apply, which it does, the statements made by R.H.
also constitute excited utterances and, therefore, are not precluded from admission by
the hearsay rule.
{¶31} Furthermore, the statements made by the appellant’s brother were also
properly admitted. The trial court relied on the present sense impression exception to the
hearsay rule, which provides that a statement describing or explaining an event or
condition made while the declarant was perceiving the event or condition, or immediately
thereafter unless circumstances indicate lack of trustworthiness, is not excluded by the hearsay rule regardless of the declarant’s availability. Evid.R. 803(1). The appellant’s
brother made statements to the 911 operator regarding an emergency requiring police
and EMT response; and, to responding officers whose primary purpose was to enable
law enforcement to assist in what was, at that time, an ongoing emergency. As such, the
statements were not inadmissible hearsay, and the trial court correctly found them to be
admissible.
{¶32} Accordingly, we find the appellant’s assignment of error number two to be
without merit, and overrule the same.
ASSIGNMENT OF ERROR NO. III
{¶33} The appellant argues in his third assignment of error that the “aggregate
impact of admitting all the accusations via hearsay was to deprive appellant of a fair trial
in violation of his State and Federal Constitutional rights to due process, and to cause
unfair prejudice in violation of Evid.R. 403(a).” We disagree.
{¶34} The appellant argues in his final assignment of error that he was denied a
fair trial due to the aggregate number of errors committed by the trial court. Aggregate, or
cumulative error was discussed by the Ohio Supreme Court in State v. Powell, 2012-
Ohio-2577:
State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),
paragraph two of the syllabus, recognized the doctrine of cumulative error.
Under this doctrine, a conviction will be reversed when the cumulative effect
of errors in a trial deprives a defendant of a fair trial even though each of
the numerous instances of trial-court error does not individually constitute
cause for reversal. Id. at 196–197, 509 N.E.2d 1256. See also State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 132;
Garner, 74 Ohio St.3d at 64, 656 N.E.2d 623.
The doctrine of cumulative error is not applicable in the present case.
Powell received a fair trial. Moreover, none of the errors committed in this
case, when considered either individually or cumulatively, resulted in
prejudicial error. As previously discussed in other propositions of law,
overwhelming evidence was introduced that established Powell's guilt.
Thus, we reject proposition XXIII.
Id. at ¶¶ 223-224. The appellant argues that the aggregate impact of “admitting all the
accusations via hearsay” deprived him of a fair trial. However, the alleged cumulative
errors are those raised in appellant’s assignments of error numbers one and two. Having
found the appellant's contentions to be without merit in each addressed error, we similarly
conclude that their cumulative effect did not deny the appellant a fair trial. Accordingly,
we find the appellant’s third assignment of error to be without merit.
CONCLUSION
{¶35} Based upon the foregoing, we find appellant’s assignments of error
numbers one, two, and three to be without merit, and they are therefore overruled. The
decision of the Delaware County Court of Common Pleas is hereby affirmed. {¶36} Costs to appellant.
By: Baldwin, P.J.
Hoffman, J. and
Montgomery, J. concur.