COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70193 CITY OF LAKEWOOD : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION SHAWN REESE : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Lakewood Municipal Court Case No. 95-B-979 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: SARA J. FAGNILLI Law Director CITY OF LAKEWOOD KEVIN M. SPELLACY, Prosecutor SEAN F. KELLEHER, Assistant 12650 Detroit Avenue Lakewood, Ohio 44107 For Defendant-Appellant: EDWARD A. HEFFERNAN LOUIS J. CARLOZZI 668 Euclid Avenue, Suite 535 Cleveland, Ohio 44114 - 3 - O'DONNELL, J.: Shawn Reese appeals his conviction for domestic violence entered by the Lakewood Municipal Court following a bench trial. The record reveals that in the early morning hours of September 21, 1995, Lakewood police officers Raymond Fuerst and Richard Busi investigated a report of a female who had been assaulted at 1500 Spring Garden Avenue in Lakewood, Ohio. Upon arrival, they identified Tammy Roth who had blood coming from her nose and around her head and described her as upset and crying. The record further reflects that after they calmed her down, she indicated that her live-in boyfriend, Shawn Reese, had assaulted her. Upon further investigation, the officers located Reese in the back yard of the home, advised him of his rights, and arrested him for domestic violence. Reese explained to the officers that he and Roth had a verbal argument, that she slapped him and as a result, he punched her. Detective James Sacco, assigned to follow-up investigation on the case, spoke with Reese the next morning, advised him of his rights, and took an oral statement from him in which Reese again explained that the previous night when he and Roth returned to their residence after being at a bar, an argument ensued during which Roth slapped him and he then slapped and punched her. - 4 - At trial, the court heard the matter sitting without a jury. Officers Fuerst and Busi testified for the city as Tammy Roth did not appear for trial. The police officers testified over defense objections to the statements allegedly made to them by Roth on the night of the incident that Shawn Reese, her live-in boyfriend had assaulted her. Further, Detective Sacco testified to Reese's statement that he had slapped and punched Roth. The defense presented no evidence. The trial court found Shawn Reese guilty of domestic violence and entered judgment from which Reese now appeals and assigns four errors for our review. Appellant's first assignment of error states: I. THE TRIAL COURT VIOLATED THE DEFENDANT'S CONSTI- TUTIONAL RIGHT TO CONFRONT WITNESSES WHEN THE TRIAL COURT ADMITTED HEARSAY TESTIMONY REGARDING STATEMENTS MADE BY THE ALLEGED VICTIM, WHO DID NOT TESTIFY AT THE TRIAL. Citing the confrontation clause of the United States Constitution, which specifies that, "the accused shall enjoy the right *** to be confronted with the witnesses against him," appellant complains that because Tammy Roth never testified at trial, he could not challenge the testimony of Officers Fuerst and Busi as to what she told them nor could he challenge her veracity or her reputation for veracity. - 5 - The City of Lakewood argues however, that the trial court did not violate Reese's right to confront the witness against him because agents of the city, and not Roth, signed the complaint against Reese and he had a full opportunity to confront those witnesses. The issue for us to determine is whether the trial court violated Reese's Sixth Amendment right to confront the witness against him when it allowed two police officers to testify to statements made by the victim, Tammy Roth, who did not testify at trial. The Supreme Court of the United States in Ohio v. Roberts (1980), 448 U.S. 56, determined that since the Confrontation Clause and the hearsay rules are designed to protect similar values, the former is not violated by the admission of hearsay statements made by a third party, who does not testify at trial, if the statements fall within a firmly rooted hearsay exception because such statements bear the requisite "indicia of reliability." Id. at 66. In State v. Billings (1995), 103 Ohio App.3d 343, our court determined that permitting an officer to relate at trial statements made by a third party, who did not testify at trial, relevant to an admission made by the defendant, did not violate the defendant's right to confront the witness against him. Here, the statements Roth made to Officers Fuerst and Roth constitute excited utterances as discussed infra, and therefore - 6 - fall within a firmly rooted exception to the hearsay rule. As a result, the trial court did not violate the Confrontation Clause by allowing the officers to testify to Roth's statement. Further, since agents of the City of Lakewood, and not Roth, signed the criminal complaint against Reese in this case, the city and not Roth, became the complaining witness. Given the fact that agents of the city, Officers Fuerst and Busi and Detective Sacco, testified at trial, Reese enjoyed his right to confront the witness against him. Accordingly, we conclude that the trial court did not violate Reese's fundamental right to confront the witness against him in this case and therefore, appellant's first assignment of error is not well taken. Appellant's second assignment of error is as follows: II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT ADMITTED THE HEARSAY TESTIMONY OF THE INVESTIGATING OFFICERS REGARDING THE STATEMENT MADE TO THEM BY THE VICTIM CONCERNING THE CAUSE OF HER INJURIES. Reese further asserts that the trial court improperly admitted Roth's hearsay statement that Reese, her live-in boyfriend, punched her because it does not fall within the excited utterance exception to the hearsay evidence rule in that Roth had calmed down before making that statement. - 7 - The City of Lakewood submits on the other hand that the trial court did not err because Roth's statement constitutes an excited utterance and is, therefore, an exception to the hearsay evidence rule. The issue for our determination is whether the trial court erred in permitting the officers to testify to what Roth told them when they arrived on the scene the night of the incident. We begin by examining Evidence Rule 801(C) which defines hearsay as a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. In this case, the testimony of Officers Fuerst and Busi as to what Roth told them when they investigated the incident on the evening of September 21, 1995, constituted hearsay, and pursuant to Evidence Rule 802 is not admissible except as otherwise provided by the Constitution, statutes, or the rules of evidence. Here, the matter for our consideration is whether Evidence Rule 803 permits the introduction of the officers' testimony into evidence. Specifically, Evidence Rule 803 states: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: *** (2) Excited utterance. 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. - 8 - In State v. Taylor (1993), 66 Ohio St.3d 295 at 300, the court recently cited the syllabus of Potter v. Baker (1955), 162 Ohio St. 488, regarding a four-part test used to determine the admissibility of an excited utterance. Such testimony as to a statement or declaration may be admissible under an exception to the hearsay rule for spontaneous exclamations where the trial judge 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 declarations the unreflective and sincere expression of his actual impressions and beliefs, (c) that statement or declaration related to such startling occurrence or circumstances of such startling occurrence, and (d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration. (Emphasis sic.) Id. at paragraph two of the syllabus approved and followed in State v. Duncan [1978], 53 Ohio St.2d 215, 7 O.O.3d 380, 373 N.E.2d 1234, paragraph one of the syllabus). At issue on this appeal is the second requirement that the statement be made while the declarant is still under the stress of the startling event. "There is no per se amount of time after which a statement can no longer be considered to be an excited utterance. The central requirements are that the statement must be made while - 9 - the declarant is still under the stress of the event and the statement may not be a result of reflective thought." (Emphasis in original.) Taylor, supra, at 303. "An appellate court should sustain a trial court's ruling on the admissibility of a spontaneous exclamation as an exception to the hearsay rule when the trial court's findings of fact, as reflected in its ruling on the admissibility of the declaration at issue, were reasonable. (Citations omitted.)" State v. Justice (1994), 92 Ohio App.3d 740, 746. As the court further stated in Potter v. Baker, supra, at 499: *** There may be instances in which a decision to reject such a declaration will appear to a reviewing court almost as reasonable as a decision to admit it; and vice versa. We certainly do not believe that the decision of the trial judge in such an instance should be disturbed. *** In other words, we believe that the decision of the trial judge, in determining whether or not a declaration should be admissible under the spontaneous exclamations exception to the hearsay rule, should be sustained where such decision appears to be a reasonable one, even though the reviewing court, if sitting as a trial court, would have made a different decision. (Citations omitted.) In the case sub judice, Officer Fuerst testified that when he and Officer Busi arrived at the scene at 1500 Spring Garden Avenue a couple of minutes after being dispatched, they found the victim, Roth, still bleeding, very upset, and crying. And, although Officer Fuerst testified that, "After we calmed her down she indicated that her live-in boyfriend, Shawn Reese, had - 10 - assaulted her this evening," (Tr. 8), he also testified that he took the statement while she was crying. Further, Officer Busi testified that when they saw Roth, she was crying, bleeding from her nose, various parts of her face, and had blood all over her hands and on her clothing and that she was visibly shaken. He further testified that, "She just immediately came out and said that her live-in boyfriend, Shawn Reese***beat her up." (Tr. 26). Based upon our review of the record in this case, we conclude that the trial court made a reasonable determination that Roth's statement would be admissible as an excited utterance in accordance with the Evidence Rule 803(2) exception to the hearsay evidence rule. Accordingly, appellant's second assignment of error is overruled. Appellant's third assignment of error states: III. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE DEFENDANT'S STATEMENT IN THE ABSENCE OF EVIDENCE ESTABLISHING THE CORPUS DELICTI. Reese asserts that since the city failed to introduce evidence to establish the corpus delicti of the crime of domestic violence, in that the city did not demonstrate that a "family or household member" harmed Roth under the meaning of the statute, - 11 - the trial court improperly admitted Reese's statement that he punched Roth during an argument. The City of Lakewood maintains that it established the corpus delicti of the crime of domestic violence based upon the testimony of the officers that Roth stated her live-in boyfriend, Reese, punched her and, thus, the trial court properly admitted his confession relevant to the same. This assignment of error raises the issue of whether the trial court properly allowed Reese's statements relevant to Roth into evidence. The Ohio Supreme Court in the first paragraph of its syllabus in State v. Edwards (1976), 49 Ohio St.2d 31 stated: 1a. The corpus delicti of a crime is the body or substance of the crime, included in which are usually two elements: (1) the act and (2) the criminal agency of the act. b. There must be some evidence in addition to a confession tending to establish the corpus delicti, before such confession is admissible. c. The quantum or weight of such additional or extraneous evidence is not of itself required to be equal to proof beyond a reasonable doubt, nor even enough to make a prima facie case. See State v. Maranda, 94 Ohio St. 364. The material elements of domestic violence are defined in Lakewood Codified Ordinance 537.14 and are as follows: (1) No person shall knowingly cause or attempt to cause physical harm to a family or household member. *** (4) As used in this section***: - 12 - A. "Family or household member" means any of the following, who is residing or has resided with the offender: 1. A spouse, a person living as a spouse, or a former spouse of the offender; *** B. "Person living as a spouse" means a person who is living or has 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 one year prior to the date of the alleged commission of the act in question. The record reflects that before the court admitted testimony about the statements made by Reese concerning his involvement in the incident, Officers Fuerst and Busi had testified that Roth had told them her live-in boyfriend Shawn Reese assaulted her. This testimony established that Reese caused physical harm to "a household member," Roth, within the meaning of that term in the ordinance. Therefore, since the city met the corpus delicti requirement regarding the crime of domestic violence, the trial court did not err in admitting Reese's statement that he punched Roth during an argument. Accordingly, this assignment of error is overruled. Appellant's fourth assignment of error is as follows: IV. THE TRIAL COURT COMMITTED PLAIN ERROR BY CONVICTING DEFENDANT ON THE CHARGE OF DOMESTIC VIOLENCE SINCE THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUSTAIN A CONVICTION ON THIS CHARGE. Reese argues here that, in the absence of Roth's statement to police officers and his own statement, the state failed to - 13 - present sufficient evidence to sustain the trial court's verdict on the charge of domestic violence. The city submits however that if the court excluded both Roth's and appellant's statements the city proved the elements of domestic violence beyond a reasonable doubt. The issue presented here is whether the city presented sufficient evidence to support the verdict of guilty returned by the trial court. In State v. Jenks (1991), 61 Ohio St.3d 259, the Supreme Court of Ohio stated, at paragraph two of the syllabus: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilty beyond a reasonable doubt. 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. The record in this case reveals Officers Fuerst and Busi both testified at trial that when they arrived at 1500 Spring Garden on September 21, 1995, they found Roth alone, crying, and visibly shaken, with blood flowing from her nose and around her head. Both officers testified that Roth told them her live-in boyfriend, Reese, punched her. Further, both officers and Detective Sacco testified that Reese admitted that he had punched Roth during an argument. - 14 - We have previously determined that the trial court properly admitted Roth's statements into evidence as an exception to the hearsay evidence rule. Hence, the trial court properly considered this evidence at trial which established the element of household member which the city needed to prove in its case in chief. After reviewing of this evidence, in a light most favorable to the prosecution, we conclude that the city presented sufficient evidence to sustain the trial court's finding of guilty in this case. Accordingly, appellant's fourth assignment of error is overruled. Judgment affirmed. - 15 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Lakewood Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J., and ROCCO, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .