[Cite as State v. Jack,
2024-Ohio-5594.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2024-CA-27
:
v. : Trial Court Case No. 24CRB00044
:
JERRY S. JACK : (Criminal Appeal from Municipal Court)
:
Appellant :
:
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OPINION
Rendered on November 27, 2024
...........
NICOLE K. DIETZ, Attorney for Appellant
DANIELLE E. SOLLARS, Attorney for Appellee
.............
LEWIS, J.
{¶ 1} Defendant-Appellant Jerry S. Jack appeals from a judgment of the Xenia
Municipal Court convicting him of domestic violence following a bench trial. For the
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following reasons, we will reverse the judgment in part and remand the cause for the
limited purpose of resentencing Jack after calculating the appropriate amount of jail-time
credit that should be awarded to him. We will affirm the judgment in all other respects.
I. Facts and Course of Proceedings
{¶ 2} On January 16, 2024, Jack received a citation for one count of domestic
violence, a first-degree misdemeanor in violation of R.C. 2919.25, and one count of
assault, a first-degree misdemeanor in violation of R.C. 2903.13. According to the
narrative supplement issued with the citation, police officers had been dispatched to an
apartment on Cincinnati Ave in Xenia for a domestic violence incident. When officers
arrived, they “found that Jack had struck his live in girlfriend on her right cheek bone.
The victim had a small injury on her cheek and eye area. The victim filled out a witness
statement about the incident.”
{¶ 3} A trial was scheduled for February 2, 2024. The victim failed to appear for
the trial on that date and it was rescheduled. On March 6, 2024, the State moved to
revoke Jack’s bond based on an alleged violation of a condition of his bond. According
to the State, despite being ordered to not have any contact with the victim, Jack had
contacted her several times on March 6, 2024, and was “recorded instructing [the victim]
to contract amnesia for purposes of the bench trial.”
{¶ 4} The bench trial was rescheduled to March 13, 2024. Xenia Police Officer
Cody Fout testified first at the trial. Id. at 6-17. He had been a certified peace officer
since 2021. On January 16, 2024, he was dispatched to Cincinnati Avenue in Xenia in
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response to a call from a female who stated that her boyfriend had assaulted her. When
he arrived at the address around 3 a.m., Jack was sitting in the living room, and the victim
was on the bed in the bedroom. According to Officer Fout, the victim “was frantic and
she was speaking very quickly when talking to me.” Id. at 7. Officer Fout testified that
his body camera recorded his conversation with the victim. The State introduced the
body camera footage at the trial, and Officer Fout confirmed that it was true and accurate
footage taken from his body camera. Jack objected to the introduction of the body
camera video, arguing that it was hearsay and did not fit within the present sense
impression or excited utterance exceptions to the rule against hearsay. The trial court
overruled the objection.
{¶ 5} At one point on the body camera video, Officer Fout asked the victim to stop
because “[s]he was speaking frantically and I wanted to be able to understand her clearly.”
Id. at 10. Officer Fout also testified that the victim “informed me that she woke up to
[Jack] choking her, which is common language that people use in exchange for
strangulation. And I asked her if he said anything, and she said that he went and laid
back down on the couch. And later on when I was speaking with her, she did give the
excuse that he sleepwalks is what she said.” Id. at 11. While watching the replay of the
body camera footage, counsel for the State asked Officer Fout whether he knew why the
victim was fidgeting with her phone. Officer Fout explained that “[s]he seemed shaky.
Like I said, she was frantic. She kept alluding to a recording that I was trying to get her
to pull up.” Id. at 11-12. Officer Fout had the victim complete a witness statement based
on her statements that she had been assaulted earlier in the night and then subsequently
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strangled. Based on the victim’s statement and visible injury under the victim’s eye, the
police charged Jack with domestic violence. Officer Fout noted that Officer Harding took
photos of the victim’s injury. Officer Fout testified that he had been to that residence two
or three times in the previous year and the victim and Jack cohabitated there.
{¶ 6} On cross-examination, Officer Fout testified that he did not see any signs of
petechial hemorrhaging in the victim’s eyes. He also did not notice any marks around
her neck. He noted that the victim told him that she had had one or two beers within the
previous 6-8 hours. Officer Fout acknowledged that speaking frantically also could be a
sign of the use of drugs or alcohol.
{¶ 7} Xenia Police Officer Everett Harding testified next. Id. at 18-26. He had
been a certified peace officer for almost five years. On the early morning of January 16,
2024, he was dispatched to an address on Cincinnati Avenue related to a domestic
violence incident. He was present when pictures were taken of the upper part of the
victim’s cheek, where she said Jack had struck her with the bottom of her cell phone.
Both he and Officer Fout interviewed the victim. Officer Harding described the victim’s
emotional demeanor as follows:
She was what I believe to be pretty frantic. I let Officer Fout do a lot
of the questioning. She was - - her voice was really raspy. She was very
- - it was very hard for me to understand her. I have difficulty hearing, so I
let him ask a lot of the questions but she seemed real frantic. Like I said, I
couldn’t really understand what she was saying but she was talking really
fast and seemed pretty emotional about it.
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Id. at 22.
{¶ 8} On cross-examination, Officer Harding noted that the January 16, 2024
photograph of the victim showed a scratch and a little bit of redness. He did not
personally observe any redness around the victim’s throat. Officer Harding agreed that
the victim indicated that the injury to her cheek had occurred “a number of hours” before
she had called the police. Id. at 26.
{¶ 9} The victim testified next. Id. at 27-47. She stated that she had been living
with Jack on Cincinnati Avenue since July 2023. She agreed that she had called 911
and that the voice on the 911 call was hers. The victim thought Jack had choked her
while she was sleeping. She explained at trial that she had been on new medication the
night she called 911 and that she was having nightmares. She was visually impaired
from a previous, traumatic brain injury. The victim conceded that she had claimed that
Jack had choked her but did not recall stating that he had hit her until she was shown the
body camera recording from the night of the incident.
{¶ 10} On cross-examination, the victim explained that she took anxiety pills and
antidepressants. In January 2024, her physician switched her to new pills. She had
some nightmares of someone hovering over her after Jack was sent to jail, so she
believed she may have imagined Jack choking her rather than it actually having
happened. According to the victim, Jack told her that he did not try to choke her but
instead was shaking her to get a cigarette from her. The victim stated that she really
loves Jack. She had a couple of beers on the night she called the police. She also was
having a “bad eye day.”
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{¶ 11} After the victim testified, Jack moved pursuant to Crim.R. 29 for a dismissal
of the case. The trial court overruled the motion. Jack then testified last at the trial.
Trial Tr. 51-58. He stated that he did not hit or choke the victim on January 16, 2024.
The victim had consumed four 25-ounce beers from 2 p.m. until 1 a.m. She also was
taking Remeron that night, which Jack characterized as a “psych med.” On cross-
examination, Jack testified that the victim was not taking several medications that night.
He agreed that it was his voice on a January 26, 2024 phone call with the victim and that
the victim did not mention in that phone call that she had dreamed of the domestic
violence as a result of her medication. Jack stated on that phone call that he had shaken
her to wake her up to get a cigarette from her. He believed the victim actually thought
domestic violence had occurred that night but “she had a traumatic brain injury
unfortunately. It’s not her fault that things aren’t as they appear. She’s a special needs
person.” Id. at 57.
{¶ 12} The trial court found Jack guilty of domestic violence and not guilty of
assault. On April 2, 2024, the trial court held a sentencing hearing. After reading the
presentence investigation report and listening to the arguments of the parties and a
statement by Jack, the trial court ordered the following sentence: “So it will be a two
hundred and fifty dollar fine plus costs. Hundred and eighty days in jail; give you credit
for time served; suspend thirty. We’re adjourned.” Sentencing Tr. 7. On that same
day, the trial court issued a judgment entry that reflected this sentence. Jack filed a
timely notice of appeal.
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II. The Trial Court Committed Plain Error by Not Specifying the Total Number of Days
of Jail-Time Credit
{¶ 13} Jack’s first assignment of error states:
THE TRIAL COURT ERRED BY FAILING TO NOTIFY THE
APPELLANT OF THE TOTAL NUMBER OF DAYS OF JAIL-TIME CREDIT
TO WHICH HE WAS ENTITLED TO PURSUANT TO R.C.
2929.19(B)(2)(g)(i).
{¶ 14} Jack argues that the trial court erred by failing to identify the total number
of days of jail-time credit to which he was entitled. According to Jack, “ ‘[w]here, for
whatever reason, a defendant remains in jail prior to his trial, he must be given credit on
the sentence ultimately imposed for all periods of actual confinement on that charge.’ ”
Appellant’s Brief, p. 8, quoting State v. Russell, 2015-Ohio-3373, ¶ 37 (2d Dist.). Jack
cites R.C. 2929.19(B)(2)(g)(i) in support of his argument.
{¶ 15} The State responds that Jack’s reliance on R.C. 2929.19(B)(2)(g)(i) is
misplaced. According to the State, “a plain reading of section R.C. 2929.19 indicates
that this section is controlling only for felony convictions. As Appellant was convicted of
a misdemeanor violation of Domestic Violence, R.C. § 2929.19 does not apply, and
Appellant’s First Assignment of Error is moot.” Appellee’s Brief, p. 4-5.
{¶ 16} The State is correct that R.C. 2929.19(B)(2)(g)(i) does not control Jack’s
jail-time credit. However, that does not end our analysis. “Whether a defendant is
convicted of a felony or a misdemeanor offense, under Ohio law, both are afforded jail-
time credit for time served.” Bratenahl v. Eldridge, 2021-Ohio-1083, ¶ 9 (8th Dist.). The
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concept of jail-time credit “is codified in R.C. 2967.191 for offenders sentenced to prison,
and in R.C. 2949.08 for offenders sentenced to jail.” State v. Smiley, 2013-Ohio-4495,
¶ 8 (8th Dist.), citing State v. Hargrove,
2013-Ohio-1860, ¶ 6 (1st Dist.). “Both statutes
require a sentence to be reduced by the total number of days an offender was confined
‘for any reason arising out of the offense’ for which the offender was convicted and
sentenced.”
Id., citing R.C. 2967.191 and 2949.08(C)(1).
{¶ 17} Specific to this appeal, under R.C. 2949.08, when a trial court sentences a
person convicted of a misdemeanor to a jail term, it is required to “specify the total number
of days, if any, that the person was confined for any reason arising out of the offense for
which the person was convicted and sentenced” so that the person's sentence is
appropriately reduced. R.C. 2949.08(B), (C). The statute's terms are mandatory.
{¶ 18} A review of the record reveals that Jack neither filed a motion with the trial
court requesting the calculation of jail-time credit nor objected to the trial court’s failure to
calculate and award any credit. Therefore, we review the trial court's failure to award
jail-time credit for plain error. State v. Williams, 2018-Ohio-1297, ¶ 10 (8th Dist.), citing
State v. McClellan,
2011-Ohio-4557, ¶ 39 (7th Dist.). Since the provisions of R.C.
2949.08 are mandatory, the trial court's failure to properly calculate jail-time credit and
include it in the body of the judgment entry constitutes plain error. Id. at ¶ 14, citing State
v. Miller,
2005-Ohio-1300, ¶ 10 (8th Dist.).
{¶ 19} The record is clear that the trial court did not specify the number of days
that Jack was confined for any reason arising out of the domestic violence offense.
Therefore, on remand, the trial court must calculate the number of days of jail-time credit
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to which Jack is entitled and resentence him accordingly.
{¶ 20} The first assignment of error is sustained.
III. The Trial Court Did Not Err by Overruling Jack’s Crim.R. 29 Motion
{¶ 21} Jack’s second assignment of error states:
THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S
MOTION FOR ACQUITTAL (CRIM.R. 29) WHERE THE STATE FAILED
TO PRESENT SUFFICIENT EVIDENCE TO PROVE EACH ELEMENT OF
R.C. 2929.25(A).
{¶ 22} “Crim. R. 29(A) states that a court shall order an entry of judgment of
acquittal if the evidence is insufficient to sustain a conviction for the charged offense.”
State v. White, 2014-Ohio-1446, ¶ 9 (2d Dist.). “ ‘Reviewing the denial of a Crim. R. 29
motion therefore requires an appellate court to use the same standard as is used to review
a sufficiency of the evidence claim.’ ”
Id., quoting State v. Witcher,
2007-Ohio-3960, ¶ 20
(6th Dist.).
{¶ 23} In reviewing a challenge to the sufficiency of evidence, we determine
whether the evidence, if believed, would convince the average mind of the defendant's
guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus. “The relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.”
Id., citing Jackson v. Virginia,
443 U.S. 307 (1979). Our review is not to determine “whether the state's evidence is to
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be believed, but whether, if believed, the evidence against a defendant would support a
conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook, J., concurring).
{¶ 24} Jack contends that there was not sufficient evidence to support his
conviction for domestic violence. According to Jack, the victim’s “sworn testimony at trial
was in direct conflict with what she told arriving officers at the scene. During trial, [the
victim] denied that [Jack] was doing anything to cause her harm and instead testified that
[Jack] was simply attempting to shake her awake to ask for a cigarette. . . . [Jack’s]
own testimony aligns itself with [the victim’s] testimony as well.” Appellant’s Brief, p. 9.
{¶ 25} The State responds that the evidence of record was sufficient to prove that
Jack “knowingly caused physical harm to a family or household member.” Appellee’s
Brief, p. 5, quoting R.C. 2919.25(A). The State contends that the victim’s testimony
established that she and Jack had been residing together for at least six months at the
time of the January 2024 incident. Further, the victim told Officer Fout and Officer
Harding that she woke up to Jack choking her, which led her to call 911. According to
the State, Officer Fout corroborated the statements made by the victim and noticed a
visible injury under the victim’s eye, and Officer Harding took photos of the injured area.
Based on this evidence, the State argues it provided sufficient evidence to convict Jack
of domestic violence despite the victim’s “apparent change in statements.” Id. at 6.
{¶ 26} The offense of domestic violence is proscribed by R.C. 2919.25, which
provides in pertinent part as follows: “(A) No person shall knowingly cause or attempt to
cause physical harm to a family or household member.” A “family or household member”
includes “a person living as a spouse,” which is defined as “a person who is living or has
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lived with the offender in a common law marital relationship, who otherwise is cohabiting
with the offender, or who otherwise has cohabited with the offender within five years prior
to the date of the alleged commission of the act in question.” R.C. 2919.25(F)(1)(a)(i)
and (2). “The burden of establishing cohabitation is not substantial.” State v. Woullard,
2004-Ohio-3395, ¶ 73 (2d Dist.), citing State v. Young,
1998 WL 801498 (2d Dist. Nov.
20, 1998).
{¶ 27} There was sufficient evidence to prove that the victim was a family or
household member. The victim testified that she had been living with Jack for five or six
months immediately before the January 2024 incident. When asked whether she relied
on Jack to help her with the things she has to take care of on a day-to-day basis, the
victim stated that “I rely on him being my partner.” Trial Tr. 39. The victim also testified
that “I really love JJ, Jerry Jack.” Id. at 42. Jack testified that he lived with the victim in
the apartment on Cincinnati Avenue in Xenia. Further, Officer Fout testified that he had
been dispatched to the victim’s residence two or three times in the previous year and the
victim and Jack were cohabitating.
{¶ 28} The evidence provided by the State was also sufficient to prove that Jack
had knowingly caused or attempted to cause physical harm to the victim. State’s Exhibit
3 was photo evidence obtained the night of the alleged incident that showed a scratch
and redness under the victim’s right eye where Jack had hit her with her phone. In
addition, the victim’s statements to the police officers on the night of the incident and the
statements she made in the two recorded phone calls with the 911 operator supported
the domestic violence conviction.
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{¶ 29} Despite this evidence, Jack argues that the victim’s recanting of her
previous statements to the police required the trial court to grant his Crim.R. 29 motion.
The sole authority he cites in support of his position is State v. Attaway, 111 Ohio App.3d
488 (1st Dist. 1996). In Attaway, an officer was dispatched to a residence where he saw
a woman with Attaway. The woman was crying, obviously intoxicated, and had a swollen
and bloody lip with scratches on her neck. She informed the officer that Attaway had
punched, kicked, stomped, and choked her. At trial, the woman recanted the statements
she made to the arresting officer and testified that her injuries were sustained while she
was on a drinking binge and became involved in an altercation with another woman on
the street. “[The woman] further testified under cross-examination that she had lied to
the officer and implicated Attaway because he was trying to get her off the street and
away from alcohol.”
Id. at 489. The trial court overruled Attaway’s Crim.R. 29 motion
and found him guilty of domestic violence.
{¶ 30} On appeal, the First District noted that “the record is bereft of any extrinsic
corroborating evidence from which to conclude that [the victim’s] statement to the
arresting officer was more credible than her recantation under oath.” Id. at 491. The
court concluded:
Concededly, the conflict between the testimony of the arresting
officer and Attaway concerning whether he attributed the assault to a third
person at the time of his arrest afforded the trial court some basis to discredit
his testimony. Even so, however, the only evidence arrayed against him
consisted of the recanted, uncorroborated testimony of the state's
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prosecuting witness. His alleged statement at the time of his arrest to the
effect that “this happens all the time” can just as readily be interpreted as
referring to [the victim’s] alcoholism as to an admission of guilt.
In sum, we hold that the credibility of [the victim’s] first statement,
which is otherwise uncorroborated and completely contradicted by her
sworn testimony at trial, is so inherently suspect that the statement is
insufficient as a matter of law to establish Attaway's guilt beyond a
reasonable doubt.
Id.
{¶ 31} In State v. Pallai, 2008-Ohio-6635 (7th Dist.), the Seventh District criticized
the Attaway decision. According to the court, “Attaway was a holding limited to the
specific facts of the case, and further limited in subsequent cases within that district.”
Pallai at ¶ 21, citing State v. Pettit,
1999 WL 12759 (1st Dist. Jan. 15, 1999). Further,
the Pallai court noted that “the opinion in Attaway predated the Ohio Supreme Court
opinion of Thompkins, which solidified the distinction between sufficiency and manifest
weight analyses. Attaway appears to be one of those cases that mixes the two analyses,
as did many Ohio decisions prior to the clarification in the Thompkins decision.” Id. at
¶ 22, citing Thompkins,
78 Ohio St.3d 380. Finally, the Seventh District stated that
“although this court would be loath to confuse coincidence with causation, we cannot help
but note that the First District has not cited or relied upon Attaway in any of its cases since
its holding in Pet[t]it.”
Id.
{¶ 32} We agree with the Seventh District and the First District’s decision in Pettit
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that the Attaway decision should be limited to the specific facts before it. Unlike the facts
in Attaway, the record before us does not establish that the victim’s statements to the
police were inherently suspect or that she had a clear motive to make up a story that Jack
hit her and choked her. While the victim speculated at trial that she may have imagined
or dreamed the choking incident due to the number of different medications she was
taking at the time of the domestic violence incident, Jack’s own testimony contradicted
the victim’s testimony that she was taking multiple medications at that time. Further,
even if we were to conclude there was not sufficient evidence to prove the choking
happened because it might have been something the victim had dreamed rather than
actually experienced, this would not explain away the victim’s statements to the police
and to the 911 operator that Jack had hit her in the face. Also, unlike in Attaway, the
victim’s statement in this case that Jack struck her was corroborated by the photographic
evidence and testimony by the police officer. Finally, we must acknowledge that:
it is not uncommon for the complaining witness to change her story,
“forget” details, or recant for any one of a variety reasons including threats
of reprisal or genuine reconciliation. . . . It is, therefore, the purpose of
the domestic violence statute to impose criminal sanctions upon assaultive
behavior even though the relationship between the couple may be marked
by cyclical periods of fighting and harmony.
State v. Bell, 2015-Ohio-3817, ¶ 50 (3d Dist.), quoting State v. Smith,
2003-Ohio-5461,
¶ 11 (3d Dist.).
{¶ 33} Overall, the evidence submitted at trial, when viewed in a light most
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favorable to the prosecution, could lead a rational trier of fact to find the essential
elements of the crime of domestic violence had been proven beyond a reasonable doubt.
Therefore, the trial court did not err in overruling Jack’s Crim.R. 29 motion.
{¶ 34} The second assignment of error is overruled.
IV. The Trial Court Did Not Abuse Its Discretion by Admitting into Evidence the Video
from the Police Officer’s Body Camera
{¶ 35} Jack’s third assignment of error states:
THE TRIAL COURT ERRED BY ALLOWING STATEMENTS FROM
THE OFFICER FOUT’S BODY CAM TO BE PLAYED AS IT WAS
INADMISSIBLE HEARSAY THAT DID NOT FALL UNDER ANY HEARSAY
EXCEPTION PURSUANT TO OHIO EVID. R. 803.
{¶ 36} “A trial court has broad discretion in the admission of evidence.” State v.
Edmonds, 139 Ohio App.3d 298, 300 (2d Dist. 2000), citing State v. Robb,
88 Ohio St.3d
59, 68 (2000). “Decisions regarding the admission or exclusion of evidence will not be
disturbed absent an abuse of that discretion.” State v. Graham,
58 Ohio St.2d 350, 352
(1979). “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,
arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp.,
50 Ohio St.3d 157, 161 (1990), citing Huffman v. Hair Surgeon,
Inc.,
19 Ohio St.3d 83, 87 (1985).
{¶ 37} “ ‘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
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asserted in the statement.” Evid.R. 801(C). Hearsay is not admissible unless an
exception applies. Evid.R. 802. “The excited-utterance exception to the hearsay rule
provides that a statement is not excluded by the hearsay rule even though the declarant
is available as a witness if the statement relates to a startling event or condition while the
declarant was under the stress of excitement caused by the event or condition.” State
v. Harr, 2004-Ohio-5771, ¶ 121 (2d Dist.), citing Evid.R. 803(2). “The exception derives
its guaranty of trustworthiness from the fact the declarant is under such a state of
emotional shock that his reflective processes have been stilled. Therefore, statements
made under these circumstances are not likely to be fabricated.”
Id., citing 2 McCormick,
Evidence, § 272 (5th Ed. 1999).
{¶ 38} The Ohio Supreme Court has set forth a four-part test to determine whether
or not a statement falls within the excited-utterance exception. The Court stated that
such testimony may be admissible where the trial court reasonably finds:
(a) that there was some occurrence startling enough to produce a
nervous excitement in the declarant, which was sufficient to still his
reflective faculties and thereby make his statements and declarations the
unreflective and sincere expression of his actual impressions and beliefs,
and thus render his statement or declaration spontaneous and unreflective,
(b) that the statement or declaration, even if not strictly contemporaneous
with its exciting cause, was made before there had been time for such
nervous excitement to lose a domination over his reflective faculties, so that
such domination continued to remain sufficient to make his statements and
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declarations the unreflective and sincere expression of his actual
impressions and beliefs, (c) that the statement or declaration related to such
startling occurrence or the circumstances of such startling occurrence, and
(d) that the declarant had an opportunity to observe personally the matters
asserted in his statement or declaration.
Potter v. Baker, 162 Ohio St. 488 (1955), paragraph two of the syllabus.
{¶ 39} Jack challenges on appeal whether the State proved the second part of this
four-part test. Jack argues that the State did not prove that the victim’s statements in the
body camera footage were made while she was still under the stress of excitement
caused by the domestic violence incident. According to Jack:
By the time Officers arrived at the scene, approximately an hour after
the call was made, [Jack] was sitting in the living room by himself while [the
victim] was in a separate room of the house and clearly some time had
passed since the alleged crime had taken place. Both parties had time to
themselves, and the testimony of the officers that [the victim] was talking
quickly and frantically when they entered the bedroom is not enough to
satisfy the second pre-requisite for an excited utterance.
Appellant’s Brief, p. 11. Jack also argues that the victim’s statements did not fall under
the present sense exception to the rule against hearsay because “none of the statements
[the victim] is making on the body cam are either during or right after the alleged
altercation.” Id.
{¶ 40} The State responds that “the statement made by the victim occurred while
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she was still under the stress of the events of the night.” Appellee’s Brief, p. 7. In
support of this argument, the State cites the testimony of Officer Fout, who described the
victim as frantic, speaking quickly, shaky, and unable to perform basic motor functions.
Further, the State points to the testimony of Officer Harding that the victim was talking
really fast and seemed pretty emotional about the incident. According to the State,
“under the circumstances presented at trial, the statement made by [the] victim could
reasonably be construed to have occurred while the victim was still under the stress of
the events of the night, and the Trial Court did not abuse its discretion in admitting the
statement into the record.” Id.
{¶ 41} Based on our review of the record and relevant caselaw, we conclude the
trial court did not abuse its discretion when it found that the video from the police officer’s
body camera fit within the excited utterance exception in Evid.R. 803(2). Officers Fout
and Harding testified about the frantic and emotional demeanor of the victim while she
described to them the events from earlier that night. The statements to the police officers
about the alleged choking occurred shortly after the incident happened and she made the
911 call. Those statements clearly fit within the excited-utterance exception. The more
difficult question is whether the victim’s statements about being hit in the cheek were
excited utterances. As the victim noted in the body camera footage, Jack had hit her in
the cheek anywhere between two and five hours before she spoke with the police officers.
The analysis is further complicated by the fact that the victim fell asleep at some point
between the time Jack hit her and when she called 911.
{¶ 42} Although the passage of time between the event and the declaration is
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relevant, “[t]here is no per se amount of time after which a statement can no longer be
considered to be an excited utterance.” State v. Taylor, 66 Ohio St.3d 295, 303 (1993).
In fact, to be an excited utterance, the statement need not be strictly contemporaneous
with the startling event. State v. Duncan,
53 Ohio St.2d 215 (1978), paragraph one of
the syllabus. “ ‘[E]ach case must be decided on its own circumstances, since it is
patently futile to attempt to formulate an inelastic rule delimiting the time limits within which
an oral utterance must be made in order that it be termed a spontaneous exclamation.’ ”
Taylor at 303, quoting
Duncan at 219-220. Thus, the relevant inquiry is whether the
declarant is still under the stress of the event or whether the statement was the result of
reflective thought.
Duncan at 219-220.
{¶ 43} The testimony of Officers Fout and Harding established that the victim was
“emotional,” “frantic,” and “shaky.” There is nothing in the record that would indicate the
victim engaged in reflective thought in the interim between the commission of the crime
and when she called 911 and spoke with the officers. See Duncan at 221-222. Further,
“[a] period of unconsciousness, even an extended period, does not necessarily destroy
the effect of a startling event upon the mind of the declarant for the purpose of satisfying
the excited-utterance exception to the hearsay rule.” State v. Wallace,
37 Ohio St.3d 87
(1988), paragraph one of the syllabus. According to the victim’s statements, she fell
asleep at some point after Jack hit her in the face. She then awoke to Jack with his
hands on her throat, which at least initially made her think Jack was choking her. At the
time the police officers spoke with her, it was clear that she was still nervous and excited
as a direct result of her belief that Jack had hit her and attempted to choke her. Based
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on the specific record before us, including the police officers’ testimony about the victim’s
demeanor when they arrived and spoke with her and the video evidence showing a frantic
and emotional victim, we cannot conclude that the trial court abused its discretion in
allowing the admission of the body camera footage.
{¶ 44} The third assignment of error is overruled.
V. Conclusion
{¶ 45} Having sustained Jack’s first assignment of error, we will reverse the
judgment in part and remand the cause for the limited purpose of resentencing Jack after
calculating the appropriate amount of jail-time credit that should be awarded to him. We
will affirm the judgment of the trial court in all other respects.
.............
EPLEY, P.J. and HUFFMAN, J., concur.
