Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 14 CR 1120
Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County
Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting
Defendant-Appellant: Atty. Rhys B. Cartwright-Jones.
JUDGES: Hon. Carol Ann Robb, Hon. Cheryl L. Waite, Hon. Mary
Defendant-Appellant Maurice Conyer appeals from his finding
of guilt and sentence entered in Mahoning County Common Pleas
Court for two counts of felonious assault and firearm
specifications. Three issues are raised in this appeal. The
first issue is whether the trial court erred in allowing the
admission of the 911 call from an unidentified witness. The
second issue is whether the trial court erred in denying
defense counsel's motion to continue based on the need to
investigate the anonymous 911 call. The third issue is
whether the trial court erred when it did not merge the two
felonious assault convictions. For the reasons expressed
below, none of these arguments have merit. The convictions
of the Facts and Case
On July 21, 2014 Sharron Winphrie and her cousin Shayla Blair
were visiting another cousin at 118 Hilton Avenue. Tr. 172,
192. Appellant was also there. Tr. 174-175, 193. Winphrie was
driving her boyfriend's car and backed into the driveway
behind Appellant's car. Tr. 175, 181, 192, 193. A verbal
altercation ensued between Winphrie and Appellant. Tr.
175-176, 185-186, 194-195. Winphrie and Blair got into
Winphrie's car and moved it so Appellant could leave the
gathering. Tr. 186, 195. As Appellant was driving his red
Chevy Impala past Winphrie's car, he allegedly shot four
or five rounds at the vehicle. Tr. 176, 181, 186, 195-196,
Winphrie and Blair then drove to Winphrie's house. Tr.
177, 201. She called her boyfriend and then the police. Tr.
177, 201. In their interview with the police, Winphrie and
Blair stated Appellant shot at Winphrie's car and
Appellant was driving a car with the license plate number
REECE01. Tr. 143, 184, 193, 201. The police investigated the
license plate number and discovered Appellant owned a red
Chevy Impala with that license plate number. Tr. 143.
A 911 call from an anonymous witness also confirmed the
shooting. State's Exhibit 1. The caller stated shots were
"just fired" at 118 Hilton Avenue. State's
Exhibit 1. The caller indicated the shots came from a red
Impala with the license plate number REECE01. State's
Exhibit 1. When asked if he wanted police to come to the
scene, he stated no and indicated he was only calling to
report the incident. State's Exhibit 1.
As a result of the shooting and investigation, Appellant was
indicted on two counts of felonious assault in violation of
R.C. 2903.11(A)(2)(D) with attendant firearm specifications,
R.C. 2941.145(A). The indictment listed Shayla Blair and
Sharron Winphrie as victims of the felonious assaults.
During the discovery process both the state and defense
requested a copy of the anonymous 911 call. Tr. 106. It was
not given to the state until the day before trial. Tr. 106.
The state notified defense counsel and the defense received a
copy of the 911 call that same day. Tr. 106.
On the day of trial, defense counsel moved to exclude the
recording of the 911 call. In the alternative, it asked for
the court to grant a continuance so the defense could
investigate the call.
The trial court denied the request to exclude the tape, but
indicated it would grant a continuance. However, Appellant
opposed the continuance and indicated he wanted to proceed
with the trial. He made this choice after being advised the
recording would be admitted into evidence and played for the
jury. The trial court then denied the motion for continuance.
After hearing the evidence, the jury found Appellant guilty
of the indicted charges. The case proceeded immediately to
sentencing. The trial court sentenced Appellant to an
aggregate 13-year sentence. He received 5 years for each
felonious assault conviction to run consecutive to each
other. The trial court merged the firearm specifications
convictions and sentenced Appellant to one 3-year mandatory
sentence. Pursuant to law, the 3-year firearm sentence was
required to be served prior to and consecutive to the other
sentences. 2/4/16 J.E.
Appellant timely appeals the jury's guilty verdict and
Assignment of Error
trial court erred in allowing in 911 audio without a
foundation establishing an unavailable witness and a prior
opportunity to cross-examination."
Appellant asserts the trial court erred when it allowed the
911 audio from an anonymous caller to be played for the jury.
He contends the statements made by the caller were
testimonial hearsay and were inadmissible under the
Confrontation Clause. In his opinion, the statements could
not constitute an ongoing emergency because the caller was
speaking in the past tense, in a calm voice, and the caller
indicated he did not need the police to come to the scene.
The state disagrees and contends the 911 call was
non-testimonial because it was made in response to an ongoing
The Sixth Amendment's Confrontation Clause provides:
"In all criminal prosecutions, the accused shall enjoy
the right * * * to be confronted with the witnesses against
him." The clause prohibits the admission of testimonial
statements of a non-testifying witness unless he was
unavailable to testify and the defendant had a prior
opportunity for cross-examination. Crawford v.
Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354 (2004)
(victim's recorded statement to police was testimonial).
The testimonial character of a statement separates it from
other hearsay which is not subject to the Confrontation
Clause. Davis v. Washington, 547 U.S. 813, 821-822,
126 S.Ct. 2266 (2006) (The 911 call during a domestic dispute
was not testimonial due to an on-going emergency. However,
victim's statement after being separated from husband and
questioned by police was testimonial due to the primary
purpose of proving past events relevant to later criminal
Davis held that 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. at 814. The Court specifically stated: "A
911 call, on the other hand, and at least the initial
interrogation conducted in connection with a 911 call, is
ordinarily not designed primarily to 'establish] or
prov[e]' some past fact, but to describe current
circumstances requiring police assistance." Id.
at 827. Statements made in response to questioning by a 911
operator are nontestimonial where the "primary
purpose" of the statements is to obtain assistance in an
emergency. State v. McGee, 1st Dist. No. C-150496,
2016-Ohio-7510, ¶ 16, citing State v. Siler,
116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, ¶
24-25, and Davis at 822.
Following Davis, the United States Supreme Court
further explained what constitutes an ongoing emergency.
Michigan v. Bryant,562 U.S. 344, 359, 131 S.Ct.
1143 (2011). The Bryant Court stated the
'ongoing emergency' "extends beyond an initial
victim to a potential threat to the responding police and the
public at large." Id. "[W]hether an
emergency exists and is ongoing is a highly ...