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Date: 05-24-2020
Case Style:
STATE OF OHIO v. TERRANCE DASHAWN CRAIG
Case Number: 18 MA 0102
Judge: BEFORE:
Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges.
Court: IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
Plaintiff's Attorney: Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant
Prosecuting Attorney
Defendant's Attorney:
Need help finding a lawyer for representation for appealing the judgment convicting him of two counts of felonious assault, a firearm specification, and tampering with evidence in Ohio?
Call 918-582-6422. It's Free
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On October 30, 2017 at 7:42 a.m., Sydney Williams called 911 to report that
Dawon Brigham was shot while he sat in his vehicle in front of the Austintown Walmart
store. She said an unknown male approached the vehicle, shot the victim, and fled in a
burgundy Chrysler 200. (St.Ex. 69).
{¶3} Video surveillance footage from the store that morning (which may be a
minute behind the time on the 911 system) showed the shooting and surrounding events.
On the morning of the shooting: the driver of a newer maroon Chrysler 200 arrived at the
parking lot at 7:35 a.m. and backed into a parking space; four minutes later, he pulled
forward at an angle, reversed through two spaces, and parked again; more than a minute
later, he pulled forward and reversed back to his space; and then, he pulled through a
spot, quickly turned into a lane heading toward the store, and began driving past the front
of the store.
{¶4} In the meantime, other store cameras showed: Dawon Brigham pulled his
white Cadillac into a parking space one spot away from the front doors of the store at
7:38; while Dawon remained in the vehicle, Sydney exited from his passenger door and
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entered the store at 7:39; she returned at 7:41 with a bag in her hand; instead of entering
the vehicle, she circled it; and at 7:42, the maroon Chrysler swerved down an aisle and
parked at an angle blocking the front of the white Cadillac.
{¶5} The driver of the maroon Chrysler exited the vehicle, and approached the
driver’s side of the white Cadillac from the front. The driver of the Chrysler was a black
male wearing a tan jacket, a red shirt, and dark jeans. He pointed a gun at Dawon’s
closed driver-side window while Dawon drove the Cadillac in reverse; at this point on the
video, the driver’s window appears to break (showing when the shot was fired). One 9mm
shell casing was found in the parking lot near this area. As the Cadillac fled, the shooter
crouched behind a car. When he stood and started back toward his maroon Chrysler,
Sydney appeared to be looking at him from across the hood of the car he hid behind. The
shooter then drove the maroon Chrysler from the scene. Dawon drove his Cadillac in a
circle to flee the shooter and then ran into the store for help, while Sydney called 911.
{¶6} A law enforcement officer, who was on his way to the police station and who
was also an emergency room technician, arrived immediately. He saw the white Cadillac
was in front of the building with the driver’s door open and a broken window, and he found
the victim inside the store. (Tr. 269, 281). He said the bullet entered Dawon’s upper
abdomen (left of center) and a large bulge on the right side of the torso indicated the path
of the bullet and where it stopped inside his body. (Tr. 270, 542); (St.Ex. 61). Dawon
repeatedly declared that he was going to die while holding his side in pain. (Tr. 269, 271).
{¶7} Detective Yacavone was at the nearby Austintown Police Department and
arrived at the scene within three to five minutes of the dispatch. (Tr. 325, 334). He too
noticed that Dawon appeared to be in excruciating pain. The detective testified that
Dawon said he was shot by Sydney’s male friend and Sydney added that the shooter was
her ex-boyfriend, Dashawn Craig. (Tr. 289-291, 346).
{¶8} Due to chaos at the store, the detective found it necessary to remove
Sydney from the scene as the ambulance transported Dawon; the detective asked if
Sydney would accompany him to the nearby police station, estimating he left five minutes
after arriving. (Tr. 287-289, 292). At the police station, Sydney reiterated that Dashawn
Craig was the shooter and the driver of the maroon Chrysler 200. She provided further
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details of her arrival at the store and the shooting (confirmed by the store’s exterior and
interior surveillance footage).
{¶9} Another officer researching a database for “Dashawn Craig” found the name
“Terrance Dashawn Craig” (Appellant herein). (Tr. 347). The photograph attached to
Appellant’s official record was presented to Sydney at the police station, and she
confirmed his identity. (Tr. 348). Detective Yacavone thereafter drove Sydney to the
hospital to visit Dawon, but he was in surgery at the time. (Tr. 350).
{¶10} Sydney provided consent to search her phone. Detective Solic, who
performed the phone search, discovered that an iCloud account for “TerranceCraig” had
previously logged-in to iTunes from Sydney’s phone. (Tr. 429, 433). A state agent
provided Appellant’s phone number to the detective so he could extract the texts to
Sydney from Appellant. The agent testified that Appellant told him this was his phone
number a week before the shooting. (Tr. 405). After the shooting, Appellant spoke to
Detective Solic from that phone number. (Tr. 458).
{¶11} The detective extracted the following messages sent to Sydney from
Appellant’s phone in the half hour before the shooting: “Oh and it’s some hitters Omm
watch they might come in there to get watch”; “You think shit a game you brushed a bunch
of ppl the wrong way”; “I never killed nobody”; and “So it don’t matter tell them what you
want you lying cause I gave you a disease.” Five hours after the shooting, the following
messages were sent during a ten-minute span to Sydney from Appellant’s phone: “You
playing crazy”; “But I’m gone win in the end cause you foul”; “Keep playing you go down
with me”; “Bet have it yo way I’m done with you omm it’s fuck you now you choose sides”;
“Fuck you I mean that dude you playing sooooooo foul”; “You was on his side when he
got hit wasn’t you now you on his side in the hospital smdh now I’m just out here on the
run”; “Thought I was cold”; “Bitch you the coldest”; “Fuck that we need money to fight des
bitches”; and “It’s this side and that side period.” (Tr. 448-454); (St.Ex. 68B).
{¶12} Within two hours of the shooting, the Youngstown Fire Department was
dispatched to a fully engulfed vehicle fire near an abandoned section of streets. The
vehicle was a maroon 2015 Chrysler 200 displaying Ohio license plate number HGE
7815. (Tr. 486-487); (St.Ex. 73, 79). An arson investigator was asked to evaluate the
vehicle at 10:00 a.m., after it had been towed by a private towing company to a secure
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lot. (Tr. 494). He concluded the fire began in the passenger compartment and was set
purposely. (Tr. 497, 499). There was a gas can in the backseat area of the vehicle. (Tr.
507). An Austintown police officer searched the inside of the vehicle for evidence related
to the shooting and found burnt pieces of clothing on the driver’s seat, including tan
canvas that appeared to be from the neck and chest area of a jacket and denim that
appeared maroon and black. (Tr. 505-507); (St. Ex. 91-92, 110-11). He also recovered
a belt buckle and red t-shirt material in connection with the vehicle fire.
{¶13} A Youngstown police officer testified that he responded to a call on October
27, 2017 (three days before the shooting). He took a report from Sydney Williams, who
was very upset and crying. She reported that Terrance Craig was driving a maroon
Chrysler 200 with Ohio license plate number HGE 7815. (Tr. 554-555).
{¶14} On the morning of November 3, 2017 (four days after the shooting), a
Youngstown police officer was dispatched to an apartment where he found Sydney
Williams bleeding from an injury. (Tr. 514). There was a large amount of blood on her
shirt and on the carpet. (Tr. 516). She did not want to speak to the officer. She was
transported to the emergency room by ambulance. The medic observed a laceration on
Sydney’s forehead which appeared recent. (Tr. 526). Over objection, the medic testified
that on the way to the hospital, Sydney said her boyfriend struck her in the head with a
gun. (Tr. 529-530).
{¶15} A nurse practitioner who treated Sydney in the emergency room testified
about a laceration on Sydney’s upper forehead and a circular burn on her arm; Sydney
declined the offer to suture her head wound. (Tr. 533-536). After an overruled objection,
the nurse practitioner testified that Sydney reported sustaining her injuries when her exboyfriend hit her with a gun and his fist. (Tr. 534).
{¶16} A jailhouse informant testified that he was friends with Appellant for at least
five years and was in jail while Appellant was being held there in this case. He asked
Appellant why he would engage in a shooting in broad daylight at Walmart. According to
Appellant’s friend, Appellant disclosed that he shot the man for “fucking with his girl” and
he “caught the dude slipping out there” so he “upped the burner and hit him” while the
victim was sitting in his car. (Tr. 228-229, 231, 249, 251, 257). He defined “burner” as
street slang for a gun. (Tr. 231). This witness said Appellant indicated “anybody going
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to get that with fucking with him like that.” (Tr. 249). He also said Appellant admitted that
he beat up his girlfriend because “the dude was fucking his girl.” (Tr. 229-230, 257).
{¶17} Appellant was convicted by a jury of the counts set forth in the indictment:
(1) felonious assault for shooting Dawon Brigham on October 30, 2017, plus a firearm
specification; (2) felonious assault for injuring Sydney Williams on November 3, 2017; and
(3) tampering with evidence for the vehicle fire on October 30, 2017. He was sentenced
to three years for the firearm specification, six years for each felonious assault,
consecutive to each other but concurrent to three years for tampering with evidence, for
a total of fifteen years. Appellant appealed from the August 28, 2018 sentencing entry.
EXCITED UTTERANCE (COUNT 1)
{¶18} Appellant sets forth five assignments of error, the first of which contends:
“AS TO THE FELONIOUS ASSAULT OF DAWON BRIGHAM, THE
STATEMENTS OF MS. WILLIAMS TO DETECTIVE YACAVONE DID NOT QUALIFY AS
AN ‘EXCITED UTTERANCE,’ AND WERE THEREFORE ADMITTED IN ERROR
DEPRIVING APPELLANT OF A FAIR TRIAL.”
{¶19} Sydney Williams was subpoenaed to testify. When she failed to appear on
the first day of trial, a material witness warrant was issued, but she could not be located
during trial. When the detective was asked what Sydney told him after they left the store,
the defense objected. The court conducted an admissibility hearing on the excited
utterance hearsay exception. (Tr. 293). The detective said he arrived three to five
minutes after the dispatch, he was at the store for five to ten minutes, and it took three to
five minutes to return to the station with Sydney. (Tr. 286, 291, 325, 334).1 He brought
Sydney to the nearby police station because the scene was chaotic.
{¶20} The detective described Sydney’s demeanor as “obviously still under a lot
of stress ***, very excited, very – I don’t’ know -- almost like a nervous giddy, very
excitable still *** very stressful giddy. It’s hard to explain. She was very chattery, very
talkative, very excited *** very emotional.” (Tr. 290-291). She was shaking (but not
uncontrollably), cried on and off, was breathing heavy while keeping up a “constant
1 The surveillance video shows Dawon ran into the store after the shooting at 7:43 and Sydney left the store
with the detective at 7:53, after Dawon was taken away on a stretcher. (St.Ex. 3).
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chatter,” and “was obviously affected by a stressful situation.” (Tr. 293-295). She voiced
that she needed to get to the hospital. (Tr. 295). Although she calmed “a little bit” when
they arrived at the police station, she was “still very stressed from the situation.” (Tr. 296).
The detective opined that Sydney’s demeanor during the interview at the police station
was more excitable than he sees in a typical interview and was not representative of her
regular demeanor, as experienced in later encounters with her. (Tr. 295, 313).
{¶21} The detective recorded the interview with Sydney, and the trial court
watched this video to make a determination on Sydney’s demeanor. (Tr. 328). The trial
court concluded the statements made to the detective qualified as excited utterances.
The state did not seek to play the recording for the jury but elicited the following testimony
from the detective about what Sydney told him: she stayed at a motel with Dawon the
prior night; he drove her to the store that morning because she was scheduled to work
there at 8:00 a.m.; she entered the store with money he gave her to buy food; she returned
to the parking lot and gave Dawon his change; and she circled the car because she was
concerned about her ex-boyfriend, Dashawn Craig, who drove up in the maroon Chrysler
200 and shot the victim. (Tr. 335-338). The detective testified that she confirmed the
person she referred to as Dashawn Craig was the person in a photograph the police
obtained from the records attached to Appellant Terrance Dashawn Craig. (Tr. 346-348)
{¶22} Appellant contends the trial court abused its discretion in admitting Sydney’s
hearsay statements because they did not qualify under the excited utterance exception.
He argues Sydney’s identification of the shooter as “Dashawn Craig” instead of “Terrance
Dashawn Craig” showed that the nature of her statement was reflective, rather than
unreflective, and too much time had passed within which she calmed down prior to the
interview at the station.
{¶23} On the issue of time, the trial court cited a case where the Supreme Court
upheld the admission of an excited utterance when a detective recorded a victim’s
statement 30 to 45 minutes after a stabbing incident while the victim was in the hospital
in pain. See State v. Huertas, 51 Ohio St.3d 22, 31, 553 N.E.2d 1058 (1990). The trial
court also pointed out the admission of a statement under the excited utterance exception
is not precluded merely because the declarant responded to questions if the questioning:
(1) is not coercive nor leading, (2) facilitates the declarant's expression of what is already
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the natural focus of her thoughts, and (3) does not destroy the domination of the nervous
excitement over the declarant's reflective faculties. See State v. Wallace, 37 Ohio St.3d
87, 93, 524 N.E.2d 466 (1988). After watching the interview, the trial court found Sydney
spoke about the incident without questioning by the detective, she spoke very rapidly,
and she was emotional and nervous, which prevailed over any reflective thoughts on the
incident. (Tr. 329-330).
{¶24} Pursuant to Evid.R. 803(2), an excited utterance is not excluded by the
hearsay rule even if the declarant is available as a witness. An excited utterance is
defined by the rule as: “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). A four-part test for an excited utterance has been employed: (1) the
event was startling enough to produce nervous excitement in the declarant sufficient to
still reflective faculties and make the statement an unreflective, spontaneous, and sincere
expression of actual impressions; (2) the statement, even if not strictly contemporaneous
with the event, was made before there was time for the nervous excitement to lose its
domination over the declarant’s reflective faculties so that domination continued to be
sufficient to make her statements the unreflective and sincere expression of her actual
impressions; (3) the statement related to the startling event or surrounding circumstances;
and (4) the declarant had the opportunity to observe personally the matters asserted in
his statement. State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶
166.
{¶25} Here, Appellant does not contest the third and fourth prongs of this test,
conceding the statement related to the startling event and the declarant had a clear
opportunity to personally observe the matters asserted (as confirmed by video).
Appellant’s main focus is the second prong, but he also contests the first prong of the
test. However, the shooting of the declarant’s friend was an event startling enough to
produce a nervous excitement in the declarant sufficient to make her statement an
unreflective and sincere expression.
{¶26} The detective’s testimony clearly showed Sydney was in an excited state at
the scene and on the way to the police station. Minutes before she left the store, she
witnessed her ex-boyfriend drive up to her location and shoot her friend while she stood
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a few feet away. The scene was chaotic. Her friend was in major pain with a bullet in his
abdomen and was repeatedly declaring his belief that he was going to die. She left with
the detective and chattered away in an excited, stressed-out manner, voicing that she
needed to be at the hospital instead of the police station.
{¶27} Notably, the detective testified that the statement he obtained from Sydney
at the police station was “the same statement” that she gave at the scene. (Tr. 316). In
discussions with Sydney at the scene and again minutes later at the police station, she
identified the shooter as Dashawn Craig, her ex-boyfriend. (Tr. 346). This was the
incriminating portion of her statement, and her reiteration of this information at the police
station was repetitive. The fact that she identified the shooter (her ex-boyfriend) as
“Dashawn Craig” instead of “Terrance Dashawn Craig” at the scene and again the police
station does not demonstrate she did not suffer a nervous excitement sufficient to make
her statement unreflective.
{¶28} Furthermore, as to the issue of time passed since the shooting, the
statement need not be “strictly contemporaneous with its exciting cause * * *.” Jones,
135 Ohio St.3d 10 at ¶ 166 (finding an excited utterance where “[l]ess than an hour had
elapsed” between the defendant’s confession to his wife that he killed a woman and his
wife’s utterance to the person who testified about what the defendant’s wife told him).
“There is no per se amount of time after which a statement can no longer be considered
to be an excited utterance. * * * The passage of time between the statement and the
event is relevant but not dispositive * * *.” Id. at ¶ 168.
{¶29} Sydney’s statement at the police station was taken approximately 20
minutes after the shooting, but this was only 5 to 10 minutes after she left the scene. At
the scene, the stressful after-math of the event was still occurring as emergency
personnel were arriving; Dawon Brigham’s condition was being evaluated, and he was
yelling in pain that he was dying. We note the declarant did not appear at the location of
the police station and present herself to police to make a statement; she was transported
from the scene to the station (3 to 5 minutes away) at the detective’s request. She wanted
to go straight to the hospital to ascertain the victim’s condition, and the detective said he
would drive her there after taking her statement.
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{¶30} Although the detective acknowledged Sydney started to calm down at the
station, he testified that she was still under the stress of the situation. The trial court could
use its discretion to believe this testimony. Plus, the trial court watched the video of the
interview and could use its own observations to assist in judging her demeanor at the
pertinent time. Moreover, the trial court could believe and give weight to the detective’s
testimony that the demeanor exhibited by Sydney during that interview was much different
than her regular demeanor as he learned from his later experiences with her, i.e., she
exhibited an excitable demeanor for her personally. The fact that he learned about her
normal demeanor from later encounters does not diminish from his observation.
{¶31} We conclude the trial court did not abuse its discretion in finding the
challenged statement made by Sydney to the detective was an excited utterance. This
assignment of error is overruled.
CONFRONTATION CLAUSE (COUNT 1)
{¶32} Appellant’s second assignment of error examines the constitutional
admissibility of the excited utterances analyzed above, arguing:
“AS TO THE FELONIOUS ASSAULT OF DAWON BRIGHAM, APPELLANT WAS
DENIED A FAIR TRIAL BY THE COURT ALLOWING IN NUMEROUS HEARSAY
STATEMENTS FROM WILLIAMS WHICH RAN AFOUL HIS RIGHT TO CONFRONT HIS
ACCUSERS AS CONTAINED IN THE SIXTH AND FOURTEENTH AMENDMENTS.”
{¶33} Appellant contends Sydney’s statements to the detective were admitted in
violation of the confrontation clause because her statements were testimonial (as
opposed to nontestimonial). In arguing the statements at issue were testimonial, he says
they were the product of a formal police interrogation, the circumstances did not
objectively indicate there was an ongoing emergency merely because the suspect was
still at large, and the primary purpose of the interrogation was to establish past events
relevant to the future criminal prosecution of the shooter.
{¶34} The federal confrontation clause in the Sixth Amendment to the United
States Constitution applies to federal and state prosecutions. Crawford v. Washington,
541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Testimonial statements of a
witness who did not appear at trial are not admissible under the confrontation clause
(unless the defendant had a prior opportunity for cross-examination and the witness was
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Case No. 18 MA 0102
later unavailable to testify). Crawford v. Washington, 541 U.S. 36, 53-54, 59, 124 S.Ct.
1354, 158 L.Ed.2d 177 (2004) (the primary object of the confrontation clause is to bar
testimonial hearsay). In Crawford, the defendant’s wife was Mirandized and questioned
by police at the police station after the defendant was arrested for stabbing a man; she
was later unavailable to testify, and the state sought to introduce her statement
suggesting her husband did not act in self-defense. The Supreme Court found her
statement was testimonial and barred by the confrontation clause. Appellant adds
emphasis to the Crawford Court’s statement: “testimonial * * * applies at a minimum to
prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to
police interrogations.” Id. at 68.
{¶35} Thereafter, the Court clarified that a statement is testimonial if the
circumstances objectively indicate there is no ongoing emergency and the primary
purpose of the interrogation is to establish past events potentially relevant to later criminal
prosecution. Hammon v. Indiana, 547 U.S. 813, 822, 26 S.Ct. 2266, 165 L.Ed.2d 224
(2006). The Court excluded as testimonial the statements of a domestic violence victim
made to police and memorialized in an affidavit at the scene while police were questioning
her and her husband at their house. Id.
{¶36} In a case decided within the same opinion (Davis v. Washington), the Court
admitted as nontestimonial a victim’s statements to a 911 operator during and shortly
after her boyfriend's violent attack. Id. The Court declared that a statement can be
labeled non-testimonial even if it was made in the course of a police interrogation if the
circumstances objectively indicate the primary purpose of the interrogation was to enable
police to assist in meeting an ongoing emergency. Id.
{¶37} If it objectively appears the primary purpose of an interrogation was to
respond to an ongoing emergency, then the purpose of the interrogation is not to create
a record for trial and does not fall within the scope of the confrontation clause. Michigan
v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). The rationale “is
not unlike that justifying the excited utterance exception in hearsay law.” Id. at 361.
“[W]hen a statement is not procured with a primary purpose of creating an out-of-court
substitute for trial testimony * * *, the admissibility of a statement is the concern of state
and federal rules of evidence, not the Confrontation Clause.” Id. at 358-359.
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{¶38} In Bryant, the Court found statements made to police by a victim about the
shooter were not testimonial as the circumstances of the interaction between the victim
and the police objectively indicated that the primary purpose of the interrogation was to
enable police to assist in meeting an ongoing emergency. Id. at 359. The ongoing
emergency may extend “beyond an initial victim to a potential threat to the responding
police and the public at large.” Id. Still, this does not mean an emergency is ongoing “for
the entire time the perpetrator of a violent crime is on the loose." Id. at 365. Moreover,
“a conversation which begins as an interrogation to determine the need for emergency
assistance” can “evolve into testimonial statements” if: a declarant provides police with
information that makes clear that what appeared to be an emergency is not or is no longer
an emergency or that what appeared to be a public threat is actually a private dispute; if
a perpetrator is disarmed, surrenders, or is apprehended; or if the perpetrator flees and
is unlikely to pose a threat to the public. Id. It is for the trial court in the first instance to
determine when any transition from nontestimonial to testimonial occurred. See id.
{¶39} The existence or non-existence of an ongoing emergency, although among
the most important considerations, is one factor in determining the primary purpose of an
interrogation, and “there may be other circumstances, aside from ongoing emergencies,
when a statement is not procured with a primary purpose of creating an out-of-court
substitute for trial testimony.” Bryant, 562 U.S. at 358, 361, 366, 374. Other factors to
consider may be whether the interrogation occurred “at or near the scene” and “the
informality of the situation and the interrogation.” Id. at 360, 366, 377 (a formal
interrogation at a police station, as in Crawford, is more likely to provoke testimonial
statements, than less formal questioning). In objectively viewing the totality of the
circumstances on whether a statement is testimonial (i.e., whether the primary purpose
of the conversation was to create an out-of-court substitute for trial), the Court also
considers “standard rules of hearsay, designed to identify some statements as reliable *
* *.” Id. at 358-359. The relevant inquiry is not the actual purpose of the individuals
involved in the encounter, but is the purpose a reasonable participant would have
possessed. Id. at 360.
{¶40} After reiterating its main holdings from Crawford to Bryant, the United States
Supreme Court in Clark advised that this did not mean the confrontation clause bars every
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statement that satisfies the primary purpose test: “We have recognized that the
Confrontation Clause does not prohibit the introduction of out-of-court statements that
would have been admissible in a criminal case at the time of the founding. * * * Thus, the
primary purpose test is a necessary, but not always sufficient, condition for the exclusion
of out-of-court statements under the Confrontation Clause.” Ohio v. Clark, __ U.S. __,
135 S.Ct. 2173, 2180-2181, 192 L.Ed.2d 306 (2015) (citing examples involving forfeiture
by wrongdoing and dying declaration).
{¶41} Rather than address the admissibility of Sydney’s statement to the
detective, the state responds that even assuming arguendo there was an error in allowing
the detective to testify about what Sydney told him at the police station, admission of the
statement obtained at the police station was harmless beyond a reasonable doubt. See
State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 192 (even
assuming there was confrontation-clause violation, admission of the evidence was
harmless beyond a reasonable doubt where there was no reasonable possibility the
improperly admitted evidence contributed to the conviction). Appellant’s friend already
testified that Appellant admitted he committed the shooting at Walmart due to the victim’s
interaction with Appellant’s girlfriend. The surveillance video showed the shooter drove
a maroon Chrysler 200, which was confirmed by the 911 call. There was evidence that
Appellant drove a maroon Chrysler 200, including evidence showing the license plate
number of the maroon Chrysler 200 driven by Appellant three days before the shooting
was the same license plate number as the maroon Chrysler 200 found burning (along
with clothing matching that worn by the shooter) less than two hours after the shooting.
{¶42} The state additionally emphasizes the texts from Appellant’s phone to
Sydney after the shooting: complaining she was with the victim at the scene and at the
hospital; stating she must choose sides; noting he was on the run without denying he was
the shooter; and threatening she would go down with him. Before the shooting, she
received a text from Appellant’s phone threatening he had “hitters” on his mind and “watch
they might come in there to get watch”; a detective testified “hitters” was street lingo for
“[p]eople that would come kill you.” (Tr. 454). The state also points to Detective Solic’s
testimony on cross-examination suggesting that it was his opinion that Appellant was the
shooter seen on the surveillance footage. (Tr. 459).
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{¶43} Furthermore, Detective Yacavone testified that Sydney’s statement at the
police station identifying her ex-boyfriend, Dashawn Craig, as the shooter was a
reiteration of her statement at the scene. (Tr. 346). The detective was only at the scene
for five minutes, racing there from the nearby police station. An ongoing emergency was
occurring in the minutes after the shooting where the scene at the store was chaotic, the
shooting victim was yelling that he was going to die, and his friend (who was steps away
from the shooting as it occurred) was speaking to law enforcement who had just arrived
on scene. The stability of the state of affairs at the scene was as yet unknown. The
shooter had not been apprehended, and his immediate fleeing from the scene in a motor
vehicle mere minutes before represented an emergency situation and a danger to the
public.
{¶44} The circumstances objectively indicated the primary purpose of the
statement at the scene was to enable police to assist in an ongoing emergency, and thus,
Sydney’s statement naming Dashawn Craig, her ex-boyfriend, as the shooter was nontestimonial. See Hammon, 547 U.S. at 822 (defining non-testimonial). The detective’s
testimony that she repeated this at the police station would not be prejudicial (even
assuming the emergency was not still ongoing at the police station). She also provided
background information and identified a photograph at the police station. Nevertheless,
under the totality of the circumstances in this case, there was still an ongoing emergency
at the police station when Sydney spoke to the detective.
{¶45} “[W]hether an emergency exists and is ongoing is a highly contextdependent inquiry.” Bryant, __ U.S.__, 131 S.Ct. at 1158 (ongoing emergency where the
victim suffered a gunshot wound and the police did not know the identity or location of
shooter). “[T]he duration and scope of an emergency may depend in part on the type of
weapon employed.” Id. “An assessment of whether an emergency that threatens the
police and public is ongoing cannot narrowly focus on whether the threat solely to the first
victim has been neutralized because the threat to the first responders and public may
continue.” Id. (“Domestic violence cases like Davis and Hammon often have a narrower
zone of potential victims than cases involving threats to public safety.”). “Statements to
police officers responding to an emergency situation are generally considered
nontestimonial precisely because the declarant is usually acting—under great emotional
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duress—to secure protection or medical care.” State v. Beasley, 153 Ohio St.3d 497,
2018-Ohio-493, 108 N.E.3d 1028 (non-testimonial statements to officer who arrived 15
minutes after the 911 call).
{¶46} Here, the weapon was a firearm. This was a public shooting occurring at
7:42 a.m. in the part of a store parking lot which was right by the front door while store
patrons were walking nearby through the lot. The victim was shot through a closed
vehicle window and told police he never met the shooter. The suspect was in the process
of fleeing by vehicle, but his location was unknown in the minutes after the shooting and
while Sydney was at the police station. This was not comparable to completed domestic
dispute with the parties isolated from each other by police. (We also note the ex-girlfriend
of the shooter appeared to be under continued threat as confirmed by text messages.)
{¶47} Although the interview after leaving the scene was in a formal setting, which
is one factor in assessing the primary purpose of the interrogation, the police station was
only three to five minutes from the scene of the shooting. The detective, who arrived at
the scene within minutes and stayed only five minutes, transported her there because the
scene was chaotic. Other officers remained at the scene. The shooting victim was being
rushed to the hospital with a bullet lodged in his abdomen, and Sydney was requesting
to be transported to the hospital; instead, the detective first drove her to the nearby police
station as part of enabling the Austintown police to respond to the ongoing emergency of
a fleeing maroon Chrysler 200, such as knowing what name and photograph to place in
the all-points bulletin being broadcast around the area along with the vehicle description.
{¶48} The objective circumstances placed on the record indicate a reasonable
person would believe there was still a need to ascertain if there was a public threat
involved in the perpetrator’s flight when the interview commenced 20 minutes after the
shooting. Regardless, as mentioned above, her statement that her ex-boyfriend
Dashawn Craig was the shooter was already admissible as it was previously given in the
midst of a clear emergency situation with a primary purpose of assisting the evaluation of
the emergency rather than provide an out-of-court substitute for trial. Additional
background information on the victim was not prejudicial.
{¶49} As to Sydney’s identification of a photograph of Appellant as her exboyfriend (whom she previously identified as the shooter and called “Dashawn Craig”),
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we do not have the video of the interview to ascertain the timing (or evolution of the
situation from emergency to testimonial) as it was not played to the jury. It was viewed
by the trial court in making the admissibility determination. In any event, there was other
overwhelming evidence connecting Appellant “Terrance Dashawn Craig” to the
“Dashawn Craig” Sydney said was her ex-boyfriend and the shooter, including: the report
to police three days before the shooting attributing a license plate number to Appellant;
that license plate number matched the license plate of the car burned less than two hours
after the shooting; the burned car was the same make, model, color, and newness as the
car used by the shooter in the video; the car contained burned clothing matching that
worn by the shooter; Terrance Craig’s iCloud account had been used on Sydney’s phone;
Appellant provided his phone number to a state agent a week before the shooting; his
number texted Sydney in a threatening and incriminating manner a half hour before the
shooting and hours after the shooting; and the testimony of Appellant’s friend that while
Appellant was incarcerated on the current offenses, he admitted to the daytime Walmart
shooting and disclosed his motive was the victim’s relationship with his girlfriend.
{¶50} In sum, we conclude there was an ongoing emergency while the detective
was at Walmart listening to Sydney to ascertain the parameters of the emergency and
how to respond rather than for the primary purpose of establishing facts for the
prosecution. The portion of Sydney’s statement made at the scene did not become
prejudicial testimony when it was reiterated at the nearby police station mere minutes
later, and the emergency had not yet ended when they arrived at the police station. Even
if the emergency situation devolved at some point, the additions to her earlier statement
were not prejudicial and there was not a reasonable possibility that her identification of a
photograph attached to Appellant’s official records contributed to his conviction where
other overwhelming evidence showed Appellant Terrance Dashawn Craig was the person
Sydney called Dashawn Craig, her ex-boyfriend and the shooter of Dawon. This
assignment of error is overruled.
CONFRONTATION CLAUSE (COUNT 2)
{¶51} Appellant’s third and fourth assignments of error both discuss statements
by a medic and a nurse practitioner relevant to the November 3, 2017 felonious assault
on Sydney. First, we address Appellant’s fourth assignment of error, which contends:
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“AS TO THE FELONIOUS ASSAULT OF SYDNEY WILLIAMS, APPELLANT WAS
DENIED A FAIR TRIAL BY THE COURT ALLOWING IN NUMEROUS HEARSAY
STATEMENTS FROM WILLIAMS WHICH RAN AFOUL HIS RIGHT TO CONFRONT HIS
ACCUSERS AS CONTAINED IN THE SIXTH AND FOURTEENTH AMENDMENTS.”
{¶52} Appellant asserts a violation of the confrontation clause (and the hearsay
rules) as to the following evidence: (1) the medic testified that, while evaluating and
treating Sydney in the ambulance on the way to the hospital, Sydney explained her head
wound by saying she was struck in the head with a gun by her boyfriend; and (2) the
nurse practitioner testified that, while evaluating and treating Sydney’s injuries in the
emergency room, Sydney explained that her ex-boyfriend hit her with a gun and his fists.
Appellant argues these medical providers should not have been permitted to testify as to
whom the patient said assaulted her. He refers back to the law in the second assignment
of error on testimonial statements being barred under the confrontation clause. He then
applies the objective witness test employed in the Ohio Supreme Court’s Stahl case and
concludes an objective witness would reasonably believe the declarations during medical
treatment would be available for use at a later trial.
{¶53} Because the line of cases from Crawford to Bryant involved statements to
law enforcement officers, the United States Supreme Court declined to decide whether
the same confrontation clause analysis applied to statements made to individuals other
than law enforcement officers until directly faced with the issue in Ohio v. Clark, __ U.S.
__, 135 S.Ct. 2173, 2180, 192 L.Ed.2d 306 (2015). Prior thereto, the Ohio Supreme Court
adopted the objective-witness test for evaluating statements made to someone other than
law enforcement personnel, holding they are testimonial when an objective witness would
reasonably believe the questioning served primarily a prosecutorial purpose. State v.
Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 36 (citing a definition listed
in Crawford as an example of what an amicus brief proposed for the definition of
testimonial statements).
{¶54} In Stahl, the Ohio Supreme Court concluded that a rape victim’s response
to questions by a medical professional in a special sexual assault unit, including the
perpetrator’s identity, were made primarily for a medical purpose and were
nontestimonial. Id. at ¶ 46 (even though the nurse’s unit had a purpose to assist law
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enforcement and collect evidence for prosecution, the victim filed a report at the police
station before appearing at the hospital, and a police officer remained in the room while
the medical professional interviewed the victim). The Court pointed out the victim could
have reasonably assumed that identifying the person who attacked her to a medical
professional would serve a medical purpose, such as to structure a plan for her safe
release. Id.
{¶55} In Arnold, the Ohio Supreme Court held: “Statements made for medical
diagnosis and treatment are nontestimonial.” State v. Arnold, 126 Ohio St.3d 290, 2010-
Ohio-2742, 933 N.E.2d 775, ¶ 41. The Court then found the victim’s statements that
Arnold performed various sexual acts on her were nontestimonial as they were for
medical diagnosis and treatment, while the victim’s extraneous statements (her
description of his boxer shorts and his locking a door) were not for medical treatment. Id.
(finding the nurse’s forensic interview had a dual function of medical treatment and
investigator for law enforcement, essentially separating the answers according to the
primary purpose of medical or evidentiary).
{¶56} Subsequently in the Clark case, a trial court admitted a three-year-old’s
statement, wherein he named the person who injured him, to his preschool teachers who
questioned him after noticing his injuries. The Ohio Supreme Court found a confrontation
violation, but the United States Supreme Court reversed, finding no violation. Clark, __
U.S. __, 135 S.Ct. 2173. We note here that the confrontation clause in Section 10, Article
I of the Ohio Constitution provides no greater confrontation right than the Sixth
Amendment; the state and federal confrontation clauses are therefore co-extensive.
Arnold, 126 Ohio St.3d 290 at ¶ 12.
{¶57} After observing that it had not yet specified the test applicable when a
statement is made to someone other than law enforcement, the United States Supreme
Court then applied the primary purpose test to a statement to persons other than law
enforcement, while observing that these statements “are much less likely to be testimonial
than statements to law enforcement officers.” Clark, __ U.S. __, 135 S.Ct. at 2180-2181
(rejecting the request to hold the confrontation clause did not apply to statements to nonlaw enforcement because “at least some statements to individuals who are not law
enforcement officers could conceivably raise confrontation concerns”). Courts were
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instructed to “evaluate challenged statements in context, and part of that context is the
questioner's identity. * * * Statements made to someone who is not principally charged
with uncovering and prosecuting criminal behavior are significantly less likely to be
testimonial than statements given to law enforcement officers.” Id. at 2182 (“the
relationship between a student and his teacher is very different from that between a citizen
and the police”).
{¶58} In evaluating the totality of the circumstances, the Clark Court found: the
questioning occurred in an informal setting immediately after the injuries were noticed;
the situation qualified as an ongoing emergency as teachers would want to protect the
child and possibly other children; the questions and answers were primarily aimed at
identifying and ending the threat; a young child could rarely intend a statement to be used
as a substitute for trial testimony; there was strong evidence these types of statements
were admissible at common law; and Ohio’s mandatory reporting requirements do not
mean the teacher’s mission was primarily to gather evidence for a prosecution (just as
police responding to an ongoing emergency may not have this primary purpose). Id. at
2181-2183.
{¶59} The Clark Court concluded the victim’s statements were not testimonial and
thus not admitted in violation of the confrontation clause as there was “no indication that
the primary purpose of the conversation was to gather evidence for [the defendant’s]
prosecution” and as the statements “clearly were not made with the primary purpose of
creating evidence for Clark's prosecution.” Id. at 2181, 2183. “Because neither the child
nor his teachers had the primary purpose of assisting in Clark's prosecution, the child's
statements do not implicate the Confrontation Clause and therefore were admissible at
trial.” Id. at 2177.
{¶60} Here, there appeared to be an emergency where the victim of a second
felonious assault was found. The responding police officer described the victim as being
covered in blood. The medic arrived in an ambulance and treated the victim while
transporting her to the emergency room where she was presented to a nurse practitioner
who offered to suture the head wound. From the perspective of the speaker and the
listener, Sydney’s description of how she obtained her injuries and the mechanism
causing the injury was relevant to medical diagnosis. As for the object causing the
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Case No. 18 MA 0102
injuries, a person who was hit in the head with a gun may have a risk of concussion and
fractures, whereas a person suffering a wound that was caused by a knife may not have
these same risks; likewise, tetanus may be a concern depending on the weapon.2
{¶61} As for the portion of the statement identifying the perpetrator, identity can
be relevant to medical personnel providing medical treatment. The medical provider may
decide to refer the patient and formulate different treatment plans based on the assailant’s
identity. For instance, the medical provider may refer a patients suffering abuse to a
hospital social worker for a particular form of assistance. Or, the medical provider may
refer or release certain patients directly to an abused women’s shelter for transportation
from the hospital and housing. See Stahl, 111 Ohio St.3d 186 at ¶ 46. The victim’s
psychological state can also be of medical concern, and a referral or recommendation
may depend on many facts including the identity of the perpetrator. See State v. Triplett,
7th Dist. Mahoning No. 17 MA 0128, 2018-Ohio-5405, ¶ 95-97.
{¶62} If we applied the objective witness test requested by Appellant, we would
conclude an objective witness being treated as a patient in the ambulance on the way to
the hospital and then in the emergency room would not reasonably anticipate that her
statement identifying her assailant as her ex-boyfriend would be used at a later trial under
the circumstances herein. In Stahl, the adult victim’s statement was not testimonial even
though the nurse worked in a special unit tasked with gathering evidence and a police
officer was present for the examination. Here, there was no indication the emergency
room nurse practitioner had any involvement in a special forensic unit or that she was
performing a medical examination with forensic components; nor was the medic treating
a patient in an ambulance charged with uncovering crimes or gathering evidence. They
were charged with responding to the emergency medical case placed before them.
“Statements made to someone who is not principally charged with uncovering and
prosecuting criminal behavior are significantly less likely to be testimonial than statements
given to law enforcement officers.” Clark, 135 S.Ct. at 2182.
{¶63} Appellant recognizes that statements about assaults to family and friends
are typically nontestimonial. See, e.g., State v. Peeples, 7th Dist. Mahoning No. 07 MA
2 Being hit in the head with a gun by an angry boyfriend during a beating may suggest a higher concussion
risk than being hit by a friend who was non-aggressively waving an object around.
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Case No. 18 MA 0102
212, 2009-Ohio-1198, ¶ 29-30. However, he says statements to friends and family are
made in confidence and thus distinguishable from the statements here. Yet, statements
to medical personnel are typically thought to be made in confidence as well. The
relationship between the victim of a beating and the medical professional rendering
medical treatment (especially in the private setting of an ambulance rushing to the
hospital or an examination room in the emergency department after arriving by
ambulance) is different from the relationship between a citizen and a police officer. See
Clark, 135 S.Ct. at 2182.
{¶64} After stating, “only testimonial statements are excluded by the Confrontation
Clause,” the United States Supreme Court observed: “Statements to friends and
neighbors about abuse and intimidation and statements to physicians in the course of
receiving treatment would be excluded, if at all, only by hearsay rules.” Giles v. California,
554 U.S. 353, 376, 128 S.Ct. 2678, 2692–93, 171 L.Ed.2d 488 (2008). See also
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312, 129 S.Ct. 2527, 174 L.Ed.2d 314
(2009) (“medical reports created for treatment purposes, which would not be testimonial
under our decision today”). The intent of an objective declarant is considered under the
primary purpose applied by the United States Supreme Court in Clark, along with the
questioner’s intent and other considerations.
{¶65} Under the totality of the circumstances, there is no indication the medical
personnel here had a primary purpose of investigating a crime or gathering evidence for
future prosecution, and there is no indication the assault victim made the statement with
a primary purpose of creating evidence for Appellant’s prosecution. See Clark, 135 S.Ct.
at 2181, 2183. The confrontation clause argument related to the second count of
felonious assault is overruled.
HEARSAY EXCEPTION (COUNT 2)
{¶66} Appellant argues that even if we do not find a confrontation clause violation
in the prior assignment of error, the testimony of the medic and the nurse practitioner (on
the patient’s disclosure of who caused her injury) was inadmissible as hearsay. His third
of assignment of error provides:
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Case No. 18 MA 0102
“AS TO THE FELONIOUS ASSAULT OF SYDNEY WILLIAMS, APPELLANT WAS
DENIED A FAIR TRIAL BY THE COURT ALLOWING A NUMBER OF HEARSAY
STATEMENTS, WITHOUT AN EXCEPTION, TO BE TOLD TO THE JURY.”
{¶67} Where a non-testimonial statement is admitted, the confrontation clause
does not apply and the matter is left to the application of state rules of evidence such as
hearsay rules. Michigan v. Bryant, 562 U.S. 344, 358-359, 131 S.Ct. 1143, 179 L.Ed.2d
93 (2011). Appellant argues the state hearsay rules precluded the ambulance medic and
the emergency room nurse practitioner from testifying as to whom Sydney said assaulted
her. He contends the statements were not excited utterances under Evid.R. 803(2) as a
substantial time elapsed. He then contends the identity of who caused the injury was not
admissible under the hearsay exception in Evid.R. 803(4) as it was not relevant to medical
diagnosis or treatment.
{¶68} The trial court has broad discretion to determine whether a declaration
should be admissible as a hearsay exception. State v. Dever, 64 Ohio St.3d 401, 410,
596 N.E.2d 436 (1992). The victim’s statement to the medic could reasonably be
considered an excited utterance. We discussed the excited utterance exception under
the first assignment of error, where we set forth the four-part test. See State v. Jones,
135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 166. Clearly, there was an event
startling enough to produce a nervous excitement in the declarant; her statement related
to the event; and she personally experienced the event.
{¶69} As to whether the statement was made while under the stress of excitement,
the event causing the injury was recent as the blood on the carpet was wet and the
victim’s injury appeared fresh. Before the medical witnesses testified, a police officer
testified that he observed a large amount of blood on the victim’s shirt and on the ground
which appeared wet; the victim was disheveled and covered in blood. (Tr. 516, 519-520).
She appeared scared and intimidated and would not speak to the police while she awaited
the ambulance holding a towel to her bleeding head. (Tr. 516). The ambulance arrived
ten minutes after the officer was dispatched to the apartment. The victim was visibly
upset, excited, crying, and yelling. (Tr. 527). Although the victim “calmed down a little
bit” once she left the scene in the ambulance, she was still upset. (Tr. 528). A victim
need not still be crying to be under nervous excitement from a stressful event.
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Case No. 18 MA 0102
{¶70} While the medic was evaluating the victim’s recent forehead injury and her
medical condition on the way to the hospital in the ambulance, the victim said her
boyfriend hit her in the head with a gun. (Tr. 526, 529-531). Contrary to Appellant’s
contention, there is no indication a substantial amount of time passed between the event
and the ambulance ride. It was not unreasonable for the trial court to conclude that when
the victim told the medic how she sustained her injury, she was still under the stress of
excitement from suffering an injury by being hit in the forehead with a gun.
{¶71} As to the nurse practitioner, she evaluated the victim in the emergency room
approximately 30 minutes after the police officer arrived at the scene. (Tr. 513, 529);
(St.Ex. 103). She confirmed the forehead laceration was fresh. The victim informed the
nurse practitioner that she sustained her injuries when her ex-boyfriend hit her with a gun
and a fist. (Tr. 534). She told the victim sutures were warranted, but the victim declined
the procedure. (Tr. 533, 535). The nurse practitioner was not asked about whether the
victim was stressed or excited at that time. The state may have been relying on the
hearsay exception in Evid.R. 803(4).
{¶72} Pursuant to Evid.R. 803(4): “Statements made for purposes of medical
diagnosis or treatment and describing medical history, or past or present symptoms, pain,
or sensations, or the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment.” The Ohio Supreme Court has
allowed the admission of statements to a medical provider about sexual acts and
identifying the perpetrator of the sexual abuse as pertinent to both diagnosis and
treatment of a child. See State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d
944; Dever, 64 Ohio St.3d 401. Although involving young children, the Court suggested
an adult may have more motivation to be truthful at a medical examination than a child
(and thus set forth additional considerations for evaluating a child’s statement to a medical
provider including leading questions, age, and motive). See Muttart, 116 Ohio St.3d 5 at
¶ 48-49 (noting the trial court has discretion to admit testimony on statements during a
medical examination after considering the circumstances surrounding a child-victim's
statement); Dever, 64 Ohio St.3d at 414 (“a child's statement identifying his or her abuser
should be treated the same as any other statement which is made for the purposes set
forth in Evid.R. 803(4)”).
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Case No. 18 MA 0102
{¶73} Later, the Ohio Supreme Court found the identity of the assailant of an adult
victim was provided for the purpose of medical diagnosis and treatment. The medical
functions relevant to this type of identity information can include structuring a safe release
plan, assessing risks, or checking for diseases. See Stahl, 111 Ohio St.3d 186 at ¶ 46
(referring to the release plan). We note that Stahl was a rape case with an adult victim
where a release plan may not have been implemented once it was disclosed that the
identity of the assailant was the former boss of the victim’s boyfriend. This may suggest
that the test of whether it was reasonably pertinent to diagnosis or treatment does not
mean reasonably pertinent in hindsight.
{¶74} As discussed in the prior confrontation clause assignment, a release plan
may include the medical provider’s decision to arrange transportation by and lodging at a
battered women’s shelter (or to refer the victim to the hospital social worker or other
personnel).3 Identity can also be relevant to screenings for suicide risk or readmission
risk which can affect the formulation of proper medical treatment, including the giving of
medical advice to the patient. Similarly, the relevancy of identity to the medical functions
of diagnosis and treatment can also include psychological referrals. See State v. Triplett,
7th Dist. Mahoning No. 17 MA 0128, 2018-Ohio-5405, ¶ 95-97. See also United States
v. Joe, 8 F.3d 1488, 1494-1495 (10th Cir.1993) (diagnosing and formulating
recommendations for emotional and psychological injuries can depend on the identity of
the abuser; the physician generally must know who the abuser was to render proper
treatment which may differ if the abuser is a member of the victim's household).
{¶75} Although the Supreme Court in Stahl analyzed the question (of identification
for medical diagnosis and treatment) under confrontation clause principles, the Court has
applied Stahl to a case reviewing a hearsay exception argument under Evid.R. 803(4).
After citing Stahl and Evid.R. 803(4), the Supreme Court recently held: “information [the
victim] provided [to the nurse] about ‘the identity of the perpetrator, the age of the
perpetrator, the type of abuse alleged, and the time frame of the abuse’ were all for
3 The medical records made by the nurse practitioner show the “Plan” she formulated included “Discharge
to women’s shelter” (and states the patient did not feel safe going where her significant other may locate
her). This portion of the records is in the file but was redacted from the medical record provided to the jury
as an exhibit. (Tr. 633); (St.Ex. 103). The evidence a trial court relies on in ruling on a hearsay exception
need not be presented in testimony to the jury.
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Case No. 18 MA 0102
medical diagnosis.” (Emphasis added.) State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio9423, 108 N.E.3d 1, ¶ 3, 139, 142-143 (where a seventeen-year-old victim was raped
after going to a bar with a man she recently met and gave information to a nurse who was
trained to evaluate sexual assault victims), quoting State v. Arnold, 126 Ohio St.3d 290,
2010-Ohio-2742, 933 N.E.2d 775, ¶ 32 (a confrontation clause case concerned with a
forensic interview with a dual purpose).
{¶76} We also note the Supreme Court in Stahl affirmed a Ninth District case
which not only found no confrontation clause violation but also overruled the defendant’s
argument on the medical treatment hearsay exception. The Ninth District said it “has
consistently held that a description of the encounter and even identification of the
perpetrator are within the exception, as statements made for purposes of diagnosis or
treatment.” State v. Stahl, 9th Dist. Summit No. 22261, 2005-Ohio-1137, ¶ 15 (adult
victim). More recently, other courts also made this holding in adult victim cases. See
State v. Magwood, 8th Dist. Cuyahoga No. 105885, 2018-Ohio-1634, ¶ 40 (“courts have
consistently found that a description of the encounter and identification of the perpetrator
are within [the] scope of statements for medical treatment and diagnosis”); State v. Ridley,
6th Dist. Lucas No. L-10-1314, 2013-Ohio-1268, ¶ 52 (and as emphasized by the state in
the case at bar, the victim merely told the nurse her “boyfriend” caused the injuries).
{¶77} We conclude the trial court could reasonably find the victim’s statement to
the nurse practitioner during the emergency room visit (explaining that her head wound
occurred when her boyfriend hit her in the head with a gun) was made for the purpose of
medical diagnosis or treatment and was reasonably pertinent to diagnosis or treatment.
The victim’s motive in making the brief statement to medical attendants appeared
consistent with that of a patient seeking treatment, and it was reasonable for medical
personnel to rely on the information in diagnosis or treatment.
{¶78} Finally, we note the victim’s statement that her boyfriend caused the injury
was already admitted when the medic was permitted to testify to the statement as an
excited utterance, and, Appellant’s friend testified that Appellant admitted his girlfriend’s
relationship with the shooting victim was the reason he shot the victim and beat up his
girlfriend.
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Case No. 18 MA 0102
TAMPERING WITH EVIDENCE (COUNT 3)
{¶79} Appellant’s fifth assignment of error provides:
“THE CONVICTION FOR TAMPERING WITH EVIDENCE WAS BASED ON
INSUFFICIENT EVIDENCE AND/OR AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AS THE STATE FAILED TO PROVE THAT APPELLANT STARTED THE
FIRE, OR THAT ANYTHING OF VALUE TO THE INVESTIGATION WAS DESTROYED
THEREIN.”
{¶80} Whether the evidence is legally sufficient to sustain a conviction is a
question of law dealing with adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). An evaluation of witness credibility is not involved in a sufficiency
review as the question is whether the evidence is sufficient if believed. State v.
Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79, 82; State v.
Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). In other words, sufficiency
involves the state's burden of production rather than its burden of persuasion. Thompkins,
78 Ohio St.3d at 390 (Cook, J., concurring).
{¶81} A conviction cannot be reversed on the grounds of insufficient evidence
unless the reviewing court determines, after viewing the evidence in favor of the
prosecution, that no rational juror could have found the elements of the offense proven
beyond a reasonable doubt. State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916
(1998). Rational inferences to be drawn from the evidence are also evaluated in the light
most favorable to the state. See State v. Filiaggi, 86 Ohio St.3d 230, 247, 714 N.E.2d 867
(1999). Even erroneously admitted evidence can be considered to determine whether
the sufficient evidence supports the guilty verdict. State v. Brewer, 121 Ohio St.3d 202,
2009-Ohio-593, 903 N.E.2d 284, ¶ 16-20; Lockhart v. Nelson, 488 U.S. 33, 35, 38, 40-
42, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). This is because a defendant cannot be retried
if the evidence was insufficient, but the remedy for erroneously admitting prejudicial
evidence is a new trial with exclusion of the evidence. See id.
{¶82} Appellant was convicted of tampering with evidence under R.C.
2921.12(A)(1), which provides the following elements: “No person, knowing that an
official proceeding or investigation is in progress, or is about to be or likely to be instituted,
shall do any of the following: (1) Alter, destroy, conceal, or remove any record, document,
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Case No. 18 MA 0102
or thing, with purpose to impair its value or availability as evidence in such proceeding or
investigation * * *.”
{¶83} Appellant argues that the only evidence on the tampering with evidence
charge was that someone purposely caused his vehicle to be destroyed by a fire. He
states there was no evidence presented to show: he was the person who set the fire; he
acted with the purpose of impairing the value or availability of evidence; or what evidence
was destroyed, altered, or concealed.
{¶84} As Appellant concedes, there was evidence that his car was purposely set
on fire. An arson investigator testified to his conclusion that the fire was purposely set
and the fire started in the passenger compartment. (Tr. 497, 499). The car was in a
desolate area near abandoned streets. A gas can was found in the backseat area of the
vehicle. (Tr. 507). The state showed the official investigation was in progress in
Austintown before and during the time the car was burned in Youngstown. The vehicle
fire was still in engulfed in flames when the fire department arrived, which occurred within
two hours of the shooting. (Tr. 483-484, 494). The jury could view for themselves that
the shooter was the driver of a maroon Chrysler 200 of a newer year, such as the 2015
Chrysler 200 burned soon after the shooting.
{¶85} Contrary to Appellant’s suggestion, it is part of the investigation of the
shooting for the state to find the car that a shooter used to: arrive at the scene of a
shooting, block a victim’s vehicle, alight from in order to shoot the victim, and flee with
after the shooting. In addition, other evidence valuable to the investigation was
discovered in the vehicle after the fire. Burnt clothing pieces were found while
investigating the vehicle fire, and this evidence matched the clothing the shooter was
wearing as seen in the video surveillance footage. An officer combing through the interior
of the burnt vehicle after the fire found burnt pieces of clothing on the driver’s seat,
including tan canvas that appeared to be from the neck and chest area of a jacket and
denim that appeared dark maroon and black (and a belt buckle). (Tr. 505-507). Red tshirt material was also recovered. The jury viewed the recovered burnt clothing remnants
which were admitted as exhibits (along with photographs of the clothing when it was
recovered). (St. Ex. 109-112). The jury also watched the video surveillance footage of
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the shooting which was admitted into evidence and which allowed them to view the
clothing worn by the shooter.
{¶86} This was all evidence of value to the investigation, which was altered by the
fire. The state need not prove the evidence no longer had value after the burning but had
to show he altered, destroyed, concealed, or removed the evidence “with purpose to
impair its value or availability as evidence in such proceeding or investigation.” R.C.
2921.12(A)(1). (Also, a reasonable person would conclude the value of the evidence was
in fact impaired by the burning as the shooter’s complete, unburned outfit would have
been valuable to the investigation and to the prosecution but was lost as a result of the
burning {as was the ability to test for gunshot residue}.)
{¶87} The burned car was the same make and model and had the same license
plate number as the car Appellant was driving three days before the shooting. (Tr. 487,
554-555); (St.Ex. 73). Evidence was presented that Appellant was the Walmart shooter.
To prove identity of the person who started the vehicle fire, the state need not present
video footage of or an eye witness to the commencement of the fire in order to prove that
the person using it before and during a shooting he committed was the person who burned
the vehicle. Circumstantial evidence inherently possesses the same probative value as
direct evidence. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). “A
conviction can be sustained based on circumstantial evidence alone.” State v. Franklin,
62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991).
{¶88} Appellant’s association with the vehicle, the evidence connecting the
vehicle with the shooting, the location of the shooting in a parking lot of a major store with
video cameras, and the evidence inside the vehicle all point toward motive and identity in
the vehicle fire. The circumstantial evidence suggests the shooter removed his clothing
and burnt them with the vehicle. Because a defendant's intent dwells in his mind, the
surrounding facts, circumstances, and resulting inferences are all used to demonstrate
intent. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). Viewing all of
the evidence and rational inferences in the light most favorable to the prosecution, a
rational juror could find that Appellant, “knowing that an official proceeding or investigation
is in progress, or is about to be or likely to be instituted,” did “[a]lter, destroy, conceal, or
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remove any record, document, or thing, with purpose to impair its value or availability as
evidence in such proceeding or investigation” as prohibited by R.C. 2921.12(A)(1).
{¶89} Moreover, the jury’s decision to convict Appellant of tampering with
evidence was not contrary to the manifest weight of the evidence as he argues under the
same assignment of error as his sufficiency argument. Weight of the evidence concerns
“the inclination of the greater amount of credible evidence, offered in a trial, to support
one side of the issue rather than the other”; it deals with the persuasive effect of the
evidence in inducing belief and is not a question of mathematics. Thompkins, 78 Ohio
St.3d at 387. A weight of the evidence review considers whether the state met its burden
of persuasion, as opposed to the burden of production involved in a sufficiency review.
See id. at 390 (Cook, J., concurring).
{¶90} When a defendant claims a conviction is contrary to the manifest weight of
the evidence, the appellate court is to review the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of witnesses, and determine whether,
in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such
a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220,
citing Thompkins, 78 Ohio St.3d at 387. The appellate court’s discretionary power to
grant a new trial on these grounds can be exercised only in the exceptional case where
the evidence weighs heavily against the conviction. Id.
{¶91} The weight to be given the evidence is primarily for the trier of the facts.
State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the
syllabus. The trier of fact occupies the best position from which to weigh the evidence
and judge the witnesses' credibility by observing their gestures, voice inflections, and
demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273
(1984). Additionally, in a case tried by a jury, only a unanimous appellate court can
reverse on the ground that the verdict was against the manifest weight of the evidence.
Thompkins, 78 Ohio St.3d at 389, citing Ohio Constitution, Article IV, Section 3(B)(3).
The power of the court of appeals to sit as the “thirteenth juror” is limited in order to
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preserve the jury's role with respect to issues surrounding the credibility of witnesses and
the weight of the evidence. Thompkins, 78 Ohio St.3d at 387, 389.
{¶92} It was not incredible to believe Appellant set the vehicle on fire after the
shooting with a purpose to conceal objects related to or used in the shooting whose
discovery by police would have assisted their investigation. When more than one
competing interpretation of the evidence is available and the one chosen by the jury is
not unbelievable, we do not choose which theory we believe is more credible and impose
our view over that of the jury. State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125
(7th Dist.1999). Reviewing the entire record, weighing the evidence and all reasonable
inferences, considering the credibility of witnesses, and determining whether, in resolving
conflicts in the evidence, we do not find the jury clearly lost its way in convicting Appellant
of tampering with evidence. There is no indication the jury created a manifest miscarriage
of justice or lost its way in weighing the evidence and concluding that Appellant set fire to
the vehicle, knowing an investigation was starting (on a shooting), with purpose to alter
or destroy something (the clothes and car used by the shooter during the shooting) so as
to impair its value or availability as evidence in the investigation. This assignment of error
is overruled.
Outcome: The trial court’s judgment is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: