COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70670 : CITY OF CLEVELAND : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : SCOTT MAREK : : Defendant-Appellant : : DATE OF ANNOUNCEMENT FEBRUARY 6, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court Case No. 95 CRB 034877 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: GEORGE A. PACE, ESQ. PATRICK A. D'ANGELO, ESQ. First Assistant City Prosecutor Marshall & D'Angelo 8th Floor Justice Center 113 St. Clair Building 1200 Ontario Street #440 Cleveland, Ohio 44113 Cleveland, Ohio 44114 -2- PATRICIA ANN BLACKMON, J.: Defendant-appellant, Scott Marek, appeals a decision by the trial court convicting him of assault and sentencing him accordingly. Marek assigns the following three errors for our review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN ADMITTING THE TESTIMONY OF MS. QUINN'S SISTERS UNDER THE "EXCITED UTTERANCE" EXCEPTION TO THE HEARSAY RULE. II. THE GUILTY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. III. PROSECUTORIAL MISCONDUCT DENIED DEFENDANT- APPELLANT A FAIR TRIAL. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. Kathleen Quinn and Scott Marek, her live-in boyfriend, went out for the evening with friends. Quinn's two children, thirteen year old Arley and eleven year old Megan, remained at home in the couple's apartment. Arley had been suspended from school for fighting. He was told to remain in his room and instructed not to watch television or listen to the radio. When Quinn and Marek returned to the apartment with their friends, they heard music coming from Arley's bedroom. As Quinn argued with Arley about playing the radio, Marek entered the bedroom. Thereafter, Marek hit Arley in the face with his open hand. Arley was taken to the hospital and found to have suffered a -3- handprint-shaped bruise on his face. The outline of a fingernail was visible on the bruised area. Marek was charged with assault. At trial, Marek and Quinn testified that Arley was standing face-to-face with Quinn and yelling at her when Marek entered the room. Marek stated he attempted to separate the two, when he felt Arley's hands on him. Marek swung around in an effort to get Arley's hands away. As he did so, he claimed Arley was accidently hit in the face. Quinn initially told the police that Marek "went off." She later testified and corroborated Marek's testimony that the hitting was an accident. She further testified the statement she made to police was untrue. She explained she made the story up because of her fear that she would lose custody of her son to her ex-husband. The jury found Marek guilty of assault. He was sentenced to one hundred eighty days in jail and a $200 fine. The court suspended one hundred seventy days of the jail time. Marek was order to serve three days at the Cleveland House of Corrections followed by seven days of house arrest. He was also given two years active probation which was to include a domestic violence assessment. The execution of the sentence was stayed pending this appeal. In his first assignment of error, Marek argues the trial court erred in admitting testimony from Quinn's sisters, Patricia Barany and Betty Lanton. Patricia Barany testified that, on the night of the incident, Quinn told her "Sammy's hurt. Scott hit him." Marek objected to this testimony as hearsay, but the trial court -4- overruled his objection on the grounds that it was an "excited utterance," an exception to the hearsay rule. Evid.R. 803(2) sets forth an exception to the inadmissibility of hearsay testimony for statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The Staff Note to Evid.R. 803(2) provides as follows: It is a statement or act incidental to a main fact and explanatory of it, provided it is so connected with the transaction as a whole that the utterance or act is regarded as an expression of the circumstances under which it was made rather than the narrative result of thought. To qualify as an excited utterance consideration must be given to (a) the lapse of time between the event and the declaration, (b) the mental and physical condition of the declarant, (c) the nature of the statement and (d) the influence of intervening circumstances. Staff Note to Evid.R. 803(2). There is no absolute time limit within which a statement must be made in order to be an excited utterance. However, the declarant must still be under the stress of the event and the statement must not result from reflective thought. State v. Taylor (1993), 66 Ohio St.3d 295. According to Barany, Quinn called her and asked if she would meet Quinn at the hospital. Q: What was the first thing she said to you? A: She said, "Sammy's hurt. Scott hit him." Q: Let me stop you there. Who is Sammy? A: My nephew, Arley. -5- Q: So you also call him Sammy? A: Yeah, we call him Sammy. Q: Okay, go ahead. A: She said, "You have to help me. Please come, Patty, please come." *** Q: What tone did she use? A: I would call her hysterical. (Tr. 109) According to Barany's testimony, Quinn was still at her apartment when the call was made and the ambulance had not arrived to take Arley to the hospital. Barany testified the call was received at around 10:00 p.m. Hospital records show Arley was admitted at 10:10 p.m. Quinn admitted calling Barany but claimed she made the call after reaching the hospital. (Tr. 220) She denied being hysterical but admitted being distressed and upset. Barany testified after she got to the hospital, Quinn told her that Marek "went off" and hit Arley. Based on this evidence, the trial court could conclude Quinn, the declarant, was still under the stress of the event. Therefore, her statement was an excited utterance. Marek also challenges the admission of testimony by Quinn's other sister, Betty Lanton. Lanton testified Quinn told her she didn't want to go home for fear that Marek would be there. According to Lanton, Quinn was crying and shaking when she made the statement. Marek says this testimony did not fall within the -6- excited utterance exception to the hearsay rule. Our review of the evidence reveals the statement was made close to the time of the event. Quinn was upset at the time she made the statement. The wording of the statement indicated that Quinn was afraid of Marek. Also, the statement was made before Marek had an opportunity to speak to Quinn about the incident. We conclude the statements of both sisters fit the criteria for admission as excited utterances and constitute exceptions to the hearsay rule. Marek's first assignment of error is overruled. In his second assignment of error, Marek argues his conviction was against the manifest weight of the evidence. Marek was charged with assault. In order to convict Marek, the state had to prove that he knowingly caused or attempted to cause physical harm to Arley or that he recklessly caused him serious physical harm. The photographs showed obvious hand-shaped bruises on Arley's face and body. Arley testified Marek hit him eight or nine times in the face and chest with an open hand. Marek admitted to hitting Arley, although he claimed it was an accident. He also admitted he was angry at the time he hit Arley. After reviewing the evidence and the testimony presented, we conclude the jury did not lose its way and create a manifest miscarriage of justice, which would warrant a new trial. See State v. Martin (1983), 20 Ohio App.3d 172, 175. The jury, as fact-finder, concluded Marek intentionally assaulted Arley. Marek's second assignment of error is overruled. In his third assignment of error, Marek argues prosecutorial misconduct denied him a fair trial. When evaluating prosecutorial -7- misconduct, we must consider "(1) the nature of the remarks; (2) whether an objection was made by opposing counsel; (3) whether corrective instructions were given; and (4) the strength of the evidence against the defendant." State v. Mann (1993), 93 Ohio App.3d 301, 312. Here, Marek argues the prosecutor improperly commented that he was a police officer. We believe this comment to be proper argument. Marek admitted to being a police officer, and it was not improper for the prosecutor to comment upon his training and experience. The trial court properly instructed the jury in the state's burden of proof and instructed them that a police officer's testimony should not be judged any differently than that of any other witness. In addition, as discussed above, the state presented very strong evidence of Marek's guilt. Under the circumstances, we conclude the prosecutor's comments did not deprive Marek of a fair trial. Consequently, they do not constitute reversible error. See Smith v. Phillips (1982), 455 U.S. 209, 220; State v. Apanovitch (1987), 33 Ohio St.3d 19, 24. Marek's third assignment of error is overruled Judgment affirmed. -8- 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 Cleveland 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. JAMES D. SWEENEY, P.J., and DAVID T. MATIA, J., CONCUR. PATRICIA ANN BLACKMON JUDGE 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 .