[Cite as State v. McMillon,
2025-Ohio-5304.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-24-085
Appellee Trial Court No. 2023 CR 0448
v.
Jason W. McMillion DECISION AND JUDGMENT
Appellant Decided: November 25, 2025
…
Paul A. Dobson, Wood County Prosecuting Attorney,
for appellee.
Jeffrey P. Nunnari, for appellant.
…
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Jason McMillion, appeals from the February 23, 2024 judgment
of the Wood County Court of Common Pleas convicting him of one count of domestic
violence. He argues that the trial court violated his Sixth Amendment right to confront
witnesses, and erroneously admitted hearsay statements the victim made, by admitting a
recording of the victim’s 911 call into evidence at trial. For the following reasons, we
affirm the trial court’s judgment.
II. Facts and Procedural Background
{¶ 2} On October 19, 2023, appellant was indicted on one count of domestic
violence in violation of R.C. 2919.25(A) and (D)(3), a fourth-degree felony. The charge
arose from events that occurred on September 3, 2023. That evening, the Wood County
Sheriff’s Office received a 911 call from the Knights Inn hotel in Rossford, Ohio. The
911 call, as appellant transcribed in his brief, consisted of the following conversation:
DISPATCH: Wood County 911; what’s your emergency? CALLER: Um, I need
someone here.
DISPATCH: Ok is it for a medical emergency or a police matter?
CALLER: Um, the second one.
DISPATCH: Ok; what room number are you in?
CALLER: Um, you’ll have to come to 243.
DISPATCH: Ok; are you at the Knights Inn?
CALLER: Yeah.
DISPATCH: Ok; and what’s going on?
CALLER: Mm.
DISPATCH: Are you able to talk right now?
CALLER: No.
DISPATCH: You’re not? Ok. I’m going to ask you yes or no questions; is it a domestic
violence situation?
CALLER: Yes.
DISPATCH: Is there a person there with you?
CALLER: Yes.
DISPATCH: Ok. Stay on the phone even if you can’t talk, ok? Just give me one second,
you’re not going to be able to hear me while I get help to room 243.
MALE VOICE IN THE BACKGROUND: If you wanna be a fuckin’ whore, but you
gotta – just fuckin’ leave. Why shouldn’t you just fuckin’ leave? ... Are you gone yet?...
Hello?
CALLER: Please don’t.
MALE VOICE IN THE BACKGROUND: Are you calling the cops on me?
DISPATCH: Ok; I’m going to ask you some yes or no questions still. Has it been
physical?
CALLER: Yeah.
DISPATCH: Do you need EMS?
CALLER: No.
DISPATCH: Does he have any weapons?
CALLER: Yeah. Knives.
DISPATCH: Um, ok. But just like I said, just answer yes or no. Um, when you say
weapons, is it a gun?
2.
CALLER: No.
DISPATCH: Knife?
CALLER: Yes.
DISPATCH: Has he used it?
CALLER: Who is it? Hold on, Kareem’s here, I gotta go.
[CALLER HANGS UP.]
{¶ 3} Two Rossford Police officers responded to the call and found appellant and
his wife, L.M., in adjoining rooms 241 and 243. The 911 dispatcher had previously
informed the officers that it was a potential domestic violence situation so the officers
separated appellant and L.M. upon their arrival. The officers observed that L.M.’s face
appeared swollen, bruised, and discolored. Appellant was arrested at the scene and
charged with domestic violence. Appellant was arraigned on October 30, 2023, and
entered a plea of not guilty.
Appellant’s Motion in Limine
{¶ 4} On February 1, 2024, appellant filed a motion in limine seeking to exclude
admission of the responding officers’ body camera footage at trial.1 On February 6,
2024, the state filed a notice of intent to introduce the 911 recording at trial. The trial
court held a hearing on appellant’s motion on February 7, 2024. At the outset of the
hearing, appellant made an oral motion in limine to also exclude admission of the 911
tape at trial, having been notified of the state’s intent after filing its written motion. In
response, the state indicated that the victim, L.M., could not be located for trial and that
they intended to proceed by introducing the 911 recording and the officers’ body camera
1
The trial court granted appellant’s motion in limine to exclude the officer’s body camera
footage. We reference that portion of appellant’s motion solely for context. The trial
court’s decision on that issue is not part of this appeal.
3.
footage, in addition to the officer’s testimony, to prove appellant’s guilt. Appellant
argued that presenting the 911 recording at trial, without the ability to cross-examine
L.M., violated his Sixth Amendment right to confront witnesses. He further argued that
any statements made on the 911 recording or the body camera footage constituted
inadmissible hearsay.
{¶ 5} Relevant to the present appeal, the trial court denied appellant’s motion as to
the 911 call. It found that L.M.’s statements were made during an ongoing emergency
and, therefore, were nontestimonial and not subject to the right of confrontation under the
Sixth Amendment. The court also held that the statements were admissible hearsay
statements as they satisfied both the excited utterance and present-sense impression
exceptions to the general exclusion of hearsay statements. The trial court’s order denying
appellant’s motion was journalized February 14, 2024.
{¶ 6} Appellant’s two-day jury trial commenced on February 21, 2024. As the
state anticipated, L.M. did not attend. The parties elicited the following testimony from
the two witnesses called during the state’s case-in-chief:2
Testimony of Corporal Juliann Flage
{¶ 7} At the time of trial, Julianne Flage served as a corporal with the Wood
County Sheriff’s Office. Flage testified that she had been working for the Sheriff’s Office
for over 18 years. In her role as a corporal, she served as a 911 dispatcher and supervised
five other dispatchers. She is not the dispatcher that took L.M.’s 911 call but confirmed
2
Testimony and evidence not relevant to this appeal has been omitted.
4.
that she had reviewed the recording prior to trial. The recording was then admitted into
evidence and played without objection from appellant.
{¶ 8} Flage next discussed her own experience taking 911 calls. She testified that
in those calls, she has heard crying, begging for help, and the sound of a physical
altercation. She noted that she did not hear any crying or sounds of a physical altercation
in her review of L.M.’s 911 call, a call that she described as “pretty flat.” However, she
testified that her training and years of experience allow her to recognize when callers are
telling the truth and that in her opinion, in response to appellant’s questioning during
cross-examination, that “[L.M.], was asking for help.” When asked why a dispatcher
may switch to using yes-or-no questioning, as occurred during L.M.’s call, she explained
that yes-or-no questioning is a method that dispatchers are trained to use to create a safe
environment when a caller is in a potentially violent situation.
Testimony of Officer Tyler Nagy
{¶ 9} At the time of trial, Officer Tyler Nagy, had served as an officer with the
Rossford Police Department for approximately one year. Immediately prior to that, he
had served as a police officer in North Baltimore, Ohio for four years, with a total overall
experience of 12 years as a police officer.
{¶ 10} Officer Nagy testified that he was present at the Knights Inn on the night
appellant was arrested. He stated that he and his partner were dispatched to the motel for
a potential domestic violence situation. As they approached appellant and L.M.’s room,
they observed that the door was open and they heard appellant and L.M. arguing inside
the room. Nagy and his partner entered and separated appellant and L.M. for questioning.
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He testified that while speaking with L.M., he “observed swelling above [her] right eye.”
He also observed “swelling below her right eye with discoloration, bruising … [and]
some swelling underneath her left eye.” Nagy’s partner then took pictures of L.M.’s face.
During his testimony, he identified the photographs his partner took of L.M. on the night
of the incident and confirmed that they accurately depicted his observations. The
photographs were admitted into evidence over appellant’s objection. Nagy then testified
that based on his years of experience and training, he believed that appellant’s injuries
were consistent with a domestic violence offense. Based on this conclusion, Officer
Nagy and his partner arrested appellant.
Appellant’s Crim.R. 29 Motion for Judgment of Acquittal
{¶ 11} The state rested its case-in-chief at the conclusion of Nagy’s testimony.
Appellant then made a motion for acquittal pursuant to Crim.R. 29. He argued that the
state failed to introduce sufficient evidence to show that he had knowingly assaulted
L.M., that an assault had even occurred, or that L.M. had suffered any physical harm. The
trial court denied appellant’s motion. Appellant subsequently rested his case-in-chief
without calling any witnesses or presenting any evidence. Appellant then renewed, and
the trial court again denied his motion for acquittal.
Verdict and Sentencing
{¶ 12} After the trial court denied appellant’s renewed motion, the parties
proceeded with closing arguments. The matter was then submitted to the jury. Following
its deliberations, the jury found appellant guilty of domestic violence in violation of R.C.
2919.25(A). At his sentencing on November 4, 2024, the trial court ordered appellant to
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serve a 12-month prison term. The trial court’s judgment was memorialized on
November 7, 2024.
III. Assignment of Error
{¶ 13} Appellant timely appealed the trial court’s judgment and assigns a single
error for our review:
The trial court erred to appellant’s prejudice by improperly admitting a
recording of a 911 call in violation of appellant’s right to confront
witnesses against him as guaranteed by the Sixth Amendment of the
United States Constitution and Article I, Section 10 of the Ohio
Constitution.
IV. Law & Analysis
{¶ 14} In his single assignment of error, appellant argues that the trial court erred
in admitting a recording of the 911 call into evidence at trial. Specifically, he argues that
the admission of the tape violated his Sixth Amendment right to confront witnesses
against him since L.M. was not available for cross-examination. Additionally, he argues
that the statements L.M. made on the recording constitute inadmissible hearsay. Before
addressing the merits of appellant’s arguments, we must clarify the correct standard of
review of his assigned error.
{¶ 15} Appellant argues this this court should apply a de novo standard of review
to both arguments under his assigned error, stating that this is the appropriate standard for
an alleged violation of his Sixth Amendment confrontation rights.3 Upon reviewing the
record, and as acknowledged by appellant, we note that he did not object to the admission
3
The state does not expressly advocate for a specific standard of review, arguing that any
error would be harmless in light of the evidence presented at trial.
7.
of 911 call at the time it was played at trial. Instead, appellant attempted to object to the
admission of the 911 recording at the conclusion of the state’s case-in-chief—that is, after
the recording had already been admitted into evidence and played for the jury.
{¶ 16} It is well-established that objections should be raised at a time “when such
error could have been avoided or corrected by the trial court.” State v. Bricker, 2022-
Ohio-3494, ¶ 26 (6th Dist.), citing State v. Carter, 89 Ohio St.3d 593 (2000). Indeed,
“[e]rrors complained of that are not accompanied by a contemporaneous objection or not
properly preserved by trial counsel are waived.” State v. Carswell,
2021-Ohio-3379, ¶ 70
(6th Dist.). Moreover, because the trial court’s order denying appellant’s motion in limine
expressly noted its ability to reconsider that ruling at trial, that denial is insufficient to
preserve the alleged error for this court’s review. Toledo v. Bryant-Bey,
2023-Ohio-4798
(6th Dist.) (holding that the denial of a pretrial motion in limine in which the trial court
states that it may reconsider the issue when raised at trial does not “definitely” rule on the
issue and, therefore, does not preserve the issue for appeal.) Consequently, because
appellant failed to contemporaneously object to the admission of the 911 recording at
trial, the alleged error was not preserved and he has waived all but plain error review. See
State v. Quarterman,
2024-Ohio-6095, ¶ 21 (9th Dist.) (Plain-error review applied where
defense counsel did not object to evidence at the time it was admitted but only objected
after the state rested its case).
{¶ 17} The plain-error standard requires an appellant to show “[1] that an error
occurred, [2] that the error was obvious, and [3] that there is a reasonable probability that
the error resulted in prejudice, meaning that the error affected the outcome.” State v.
8.
Wright, 2025-Ohio-3176, ¶ 17 (6th Dist.). “Plain error should be noticed only with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.”
Id. We find that each of appellant’s arguments under his single
assignment of error fail on the first element of our plain error review as he is unable to
show that the trial court committed any error in admitting the 911 recording.
a. Admission of the 911 call did not violate appellant’s Sixth Amendment Right
to Confrontation because the 911 call was placed during an ongoing emergency.
{¶ 18} Appellant argues that the trial court erred in admitting the 911 recording as
evidence at trial because it violated his right to confront witnesses under the Sixth
Amendment. The Confrontation Clause of the Sixth Amendment guarantees a defendant
the right to “be confronted with the witnesses against [them]” and “bars admission of
testimonial statements of a witness who did not appear at trial unless [the witness] was
unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” State v. Kamer, 2022-Ohio-2070, ¶ 164 (6th Dist.) (emphasis added).
{¶ 19} Whether the admission of a recording as evidence at trial violates the
Confrontation Clause depends on whether the recorded statements are testimonial or not.
State v. Costilla, 2024-Ohio-3221, ¶ 24 (6th Dist.) That is, the admission of a recording
containing testimonial statements without the opportunity for cross-examination violates
the Confrontation Clause; the admission of nontestimonial statements does not.
Id.
Statements are testimonial if the witness made them with the reasonable belief that they
will be used at a trial. In re D.K.,
2009-Ohio-6347, ¶ 20 (6th Dist.) Nontestimonial
statements are those a witness made to enable the police to assist during an ongoing
9.
emergency. State v. Williams,
2013-Ohio-726, ¶ 6 (6th Dist.). To determine whether a
statement is testimonial or nontestimonial, we use the “primary purpose” test, which
provides:
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. 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.
Costilla at ¶ 30.
{¶ 20} Therefore, whether statements are testimonial or nontestimonial depends on
whether they were made to seek assistance during an ongoing emergency. That
determination is “a highly context-dependent inquiry.” State v. Stevenson, 2023-Ohio-
4853, ¶ 62 (6th Dist.) citing Michigan v. Bryant, 562 U.S. 344, 363 (2011). While
deciding on whether evidence is testimonial or not, “a court must consider ‘the statements
and actions of both the declarant and interrogators.’” Id. Generally, “[a] 911 call to report
an ongoing emergency, with statements made contemporaneously with the emergency to
request police assistance, are not testimonial statements for Sixth Amendment purposes.”
Costilla at ¶ 35 (6th Dist.).
{¶ 21} Here, appellant argues that all of appellant’s statements on the 911 call
were testimonial because the call was not placed during an ongoing emergency and,
consequently, the statements contained in the phone call were made with the intent to
assist in his prosecution. Specifically, appellant points to L.M.’s “calm” demeanor during
the call as evidence there was no ongoing emergency. Additionally, appellant argues that
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no emergency could have existed because appellant did not physically stop L.M. from
leaving the hotel and, in fact, had told L.M. to leave. Having conducted our context-
dependent inquiry, we find appellant’s argument is without merit.
{¶ 22} L.M. began the 911 call with an ambiguous request for help when she said
“[u]m, I need someone here.” When the dispatcher asked her for more information, L.M.
gave brief, nondescriptive responses to these basic questions, prompting the operator to
ask if she was “able to talk right now.” L.M. indicated that she could not. As a result,
the dispatcher began asking yes or no questions to obtain the necessary information.
Through these questions, the dispatcher discerned that L.M. was calling in regard to a
domestic violence situation that included a physical confrontation and that the individual
causing the incident was still with her and had a knife.
{¶ 23} Based on this context, we find that L.M.’s statements were intended to
elicit assistance in relation to an ongoing emergency—that is, an ongoing and dangerous
domestic violence incident. L.M. and the dispatcher’s conversation did not go into any
significant detail that would suggest that L.M. was providing statements she reasonably
believed to be evidence that would later be used at trial. Bryant at 360 (“An objective
analysis of the circumstances of an encounter and the statements and actions of the
parties to it provides the most accurate assessment of the ‘primary purpose of the
interrogation.’”). L.M. simply called to seek assistance to avoid further violence.
{¶ 24} L.M.’s calm demeanor does not, as appellant argues, suggest that there was
not an ongoing emergency. Instead, it reflects her attempts to avoid escalating the
ongoing emergency. The danger of that escalation is apparent from appellant’s own
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statement on the recording when he directly asked L.M. if she was “calling the cops on
[him].” As Flage’s testimony suggests, remaining calm is a common tactic domestic
violence victims use to avoid drawing attention to the call.
{¶ 25} Put simply, our review of the circumstances shows that the statements L.M.
made during the 911 call related to her description of an ongoing emergency and were
made in order to elicit police assistance. As a result, they are nontestimonial and the trial
court did not violate appellant’s Sixth Amendment right to confrontation by admitting the
recording at trial.
b. L.M.’s statements on the 911 call were not inadmissible hearsay.
{¶ 26} Appellant next argues that even if we find that the 911 call was
nontestimonial, the statements made therein were inadmissible hearsay. “‘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." State v.
Scott, 2024-Ohio-5849, ¶ 60 (6th Dist.). Hearsay statements made during a 911 call are
generally admissible provided they satisfy either the excited utterance or present-sense
impression exceptions to the hearsay exclusion provided in Evid.R. 803. State v.
Santanella,
2020-Ohio-5041, ¶ 25 (6th Dist.).
{¶ 27} A present-sense impression is “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.” Evid. R.
803(1). An excited utterance 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
12.
condition.” Evid. R. 803(2). Both exceptions are related to “an assumption that
statements or perceptions that describe events uttered during or within a short time from
the occurrence of the event are more trustworthy than statements not uttered at or near the
time of the event.” State v. Thompson-Shabazz, 2017-Ohio-7434, ¶ 106 (2nd Dist.).
{¶ 28} In addressing appellant’s first argument, we already concluded that L.M.’s
911 call was placed during an ongoing emergency. During that call, L.M. told the
dispatcher that she needed police to come and described the reasons why she needed their
assistance. Accordingly, it was not an error for the trial court to find the statements made
by L.M., where she was describing the ongoing emergency as she was perceiving it,
satisfied the present-sense impression exception and were admissible. Further, L.M. had
answered the dispatcher affirmatively that her altercation with appellant had “been
physical,” and when the officers arrived at the motel, they saw bruising and swelling on
L.M.’s face. It is evident that L.M. was still under the stress of her situation when she
made the 911 call. As a result, it was not error for the trial court to find that these
statements satisfied the excited utterance exception. For these reasons, we find that the
trial court did not err in admitting appellant’s recorded statements at trial under either of
the applicable hearsay exceptions.
{¶ 29} In sum, we find that L.M.’s statements were nontestimonial and were
admissible at trial under the present-sense impression and excited utterance exceptions to
the prohibition against the admission of hearsay statements. As a result, the trial court
did not violate appellant’s rights under the confrontation clause or improperly admit
hearsay statements when it admitted the 911 recording at trial. Appellant, then, is unable
13.
to identify any error, let alone plain error, in the trial court’s admission of the 911
recording and we find his single assignment of error not well-taken.
V. Conclusion
{¶ 30} For the foregoing reasons, we find appellant’s single assignment of error
not well-taken and we affirm February 23, 2024 judgement of the Wood County Court of
Common Pleas.
{¶ 31} Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Charles E. Sulek, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
14.
