from Tiffin-Fostoria Municipal Court Trial Court No. CRB
Alex Smith for Appellant.
Charles R. Hall, Jr. for Appellee.
Defendant-appellant, James D. Carter Jr.
("Carter"), appeals the March 28, 2017 judgment
entry of the Tiffin-Fostoria Municipal Court. For the reasons
that follow, we reverse and remand.
This case stems from events that took place on December 31,
2016. Carter traveled to the residence of Nina Williams
("Williams") in Fostoria, Ohio. Carter was
intoxicated when he arrived at Williams's residence, and
he eventually passed out on Williams's bed. He awoke to
find Williams gone, and he called Williams several times in
an effort to determine her location. During the course of
these calls, Carter threatened to burn down Williams's
residence. Shortly after the last of Carter's numerous
calls to Williams, a fire was reported at Williams's
residence. Later that same day, Williams spoke with law
enforcement about her dealings with Carter, including his
threats to set fire to her residence.
On January 17, 2017, Carter was charged with Count One of
aggravated menacing in violation of R.C. 2903.21(A), a
misdemeanor of the first degree. (Doc. No. 1). On February 7,
2017, Carter appeared for arraignment and pled not guilty to
the count in the complaint. (Doc. No. 3).
A bench trial took place on March 28, 2017. (Doc. No. 38).
That same day, the trial court found Carter guilty of the
sole count of the complaint. (Doc. No. 17). The trial court
sentenced Carter to 180 days in jail. (Id.). The
trial court filed its judgment entry of sentence on March 28,
Carter filed his notice of appeal on April 5, 2017. (Doc. No.
18). He brings three assignments of error for our review.
of Error No. I
Trial Court Erred When It Allowed Statements Of The Alleged
Victim, Who Was Not Present At Trial, In Violation Of The
Confrontation Clause Of The 6th And 14th Amendments To The
United States Constitution.
In his first assignment of error, Carter argues that the
trial court erred by admitting into evidence statements of
Williams despite the fact that Williams was not present at
the trial in violation of Carter's rights under the
Confrontation Clause of the 6th Amendment. Specifically,
Carter argues that the trial court erred when it allowed into
evidence the statements of Williams, who was not present at
the trial, having failed to appear despite a subpoena. Carter
argues that her failure to appear rendered him unable to
confront his accuser and to cross-examine her. Carter further
argues that the trial court erred by admitting into evidence
numerous hearsay statements that fall outside any exceptions
to the rule against hearsay.
The Sixth Amendment to the United States Constitution
provides that all criminal defendants have the right to be
confronted with the witnesses against them. State v.
Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, ¶ 172.
The admission of testimonial hearsay made by a declarant who
does not testify during a trial violates the Sixth Amendment
unless (1) the declarant is unavailable and (2) the defendant
had a prior opportunity to cross-examine the declarant.
Id. at ¶ 173, citing Crawford v.
Washington, 541 U.S. 36, 68, 124 S.Ct. 1354 (2004). In
evaluating whether a statement is testimonial for Sixth
Amendment purposes, we must apply the "primary-purpose
test, " examining the reasons for and purpose of the
record at issue and objectively evaluating the statements and
actions of the parties to the encounter. State v.
Maxwell, 139 Ohio St.3d 12, 22, 2014-Ohio-1019, ¶
49, citing Michigan v. Bryant, 562 U.S. 344,
359-360, 131 S.Ct. 1143 (2011) and Williams v.
Illinois, 567 U.S. 50, 82-84, 132 S.Ct. 2221 (2012). A
statement is less likely to be testimonial if it is given to
allow police to meet an "ongoing emergency"-a
circumstance that extends beyond the initial victim and is a
potential threat to the responding law enforcement and the
public at large." State v. Jones, 135 Ohio
St.3d 10, 37-38, 2012-Ohio-5677, ¶ 148-149, citing
Bryant at 359. The presence or absence of an ongoing
emergency is but one factor in the analysis of whether a
statement is testimonial. Id. at ¶ 153. Other
factors include the level of formality of the encounter, as
well as the specific statements and actions of both the
declarant and the interrogator. Id. at ¶
154-155, citing Bryant at 366-367. A witness is not
considered unavailable unless the State has made reasonable
good-faith efforts to ensure the witness's attendance at
trial, and the proponent of the evidence bears the burden of
demonstrating that such efforts have been made. State v.
Workman, 171 Ohio App.3d 89, 95, 2007-Ohio-1360, ¶
16. The issuance of a subpoena does not, standing alone,
constitute a reasonable good-faith effort to procure a
witness's attendance where other methods of doing so are
also available. Id. at ¶ 21, citing State
v. Keairns, 9 Ohio St.3d 228, 232 (1984).
"Hearsay" is "a statement, other than one made
by the declarant while testifying at a trial or hearing,
offered in evidence to prove the truth of the matter
asserted." Evid.R. 801(C). Hearsay is generally
inadmissible "except as otherwise provided by the
Constitution of the United States, by the Constitution of the
State of Ohio, by statute enacted by the General Assembly not
in conflict with a rule of the Supreme Court of Ohio, by
these rules, or by other rules prescribed by the Supreme
Court of Ohio." Evid.R. 802. The excited utterance
exception to the general prohibition against hearsay provides
that a hearsay statement is admissible if it is 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." Evid.R. 803(2). The Supreme
Court of Ohio articulated a four-part test to determine when
the excited utterance exception operates, holding that the
exception is applicable when (1) there was an occurrence
startling enough to create nervous excitement in the
declarant sufficient to dull his reflective faculties and
make his statements an unreflective and sincere expression of
his impressions and beliefs, (2) the statement or
declaration, even when not strictly contemporaneous with the
exciting event, was made before there was time for the
nervous excitement to lose its domination over the
declarant's reflective faculties so that such domination
continued and was sufficient to make the declarant's
statements and expressions unreflective and thus sincere
expressions of his actual impressions and beliefs, (3) the
statement or declaration related to the exciting event or the
circumstances thereof, and (4) the declarant had an
opportunity to observe personally the matters asserted in his
statement or declaration. State v. Taylor, 66 Ohio
St.3d 295, 300-301 (1993), citing Potter v. Baker,162 Ohio St. 488, 496 (1955). The Supreme Court of Ohio
elaborated on the second of those four criteria when it
explained that there is no per se length of time beyond which
a statement cannot be considered an ...