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State v. Conyer

Court of Appeals of Ohio, Seventh District, Mahoning

August 28, 2017


         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 14 CR 1120

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney.

          For Defendant-Appellant: Atty. Rhys B. Cartwright-Jones.

          JUDGES: Hon. Carol Ann Robb, Hon. Cheryl L. Waite, Hon. Mary DeGenaro.


          ROBB, P.J.

         {¶1} 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 are affirmed.

         Statement of the Facts and Case

         {¶2} 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, 197.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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. 10/30/14 Indictment.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} Appellant timely appeals the jury's guilty verdict and the sentences.

         First Assignment of Error

         "The trial court erred in allowing in 911 audio without a foundation establishing an unavailable witness and a prior opportunity to cross-examination."

         {¶11} 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.

         {¶12} The state disagrees and contends the 911 call was non-testimonial because it was made in response to an ongoing emergency.

         {¶13} 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 prosecution.).

         {¶14} 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.

         {¶15} 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 ...

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