COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72562 CITY OF SHAKER HEIGHTS : : : Plaintiff-appellee : ACCELERATED DOCKET : : -vs- : JOURNAL ENTRY : AND ALI M. AL-GURESHI : OPINION : : PER CURIAM Defendant-appellant : : : : DATE OF ANNOUNCEMENT : APRIL 16, 1998 OF DECISION CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. 97-CRB-02141 JUDGMENT Affirmed. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Gary R. Williams, Prosecutor Cornelius J. O'Sullivan, Esq . City of Shaker Heights 815 Superior Avenue, Suite 2100 Lisa M. Gale, Esq. Cleveland, Ohio 44114 Assistant Prosecutors City of Shaker Heights 3400 Lee Road Shaker Heights, Ohio 44120 PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc. App.R. 25, the record from the -2- Shaker Heights Municipal court and the briefs of counsel. Ali M. Al-Gureshi, defendant-appellant, appeals from his conviction in the Shaker Heights Municipal Court, Case No. 97-CRB-02141, of the offense of domestic violence in violation of Shaker Heights Codified Ordinances 737.14. Defendant-appellant assigns two errors for this court's review. On February 16, 1997, the Shaker Heights Police Department responded to a domestic violence call at 12910 Fairhill Road, Apartment #58 at approximately 3:30 a.m. Upon arrival, Officer Michael Matsik encountered Kelly Gordon, the alleged victim, at the apartment building entrance. Officer Matsik described Ms. Gordon as physically upset and emotionally distraught. (T. 10). Ms. Gordon informed Officer Matsik that defendant-appellant had physically assaulted her and threw a lit cigarette at her. (T. 11,12). Officer Matsik, Officer Donald Becker and Officer Mark Sarna observed what appeared to be new injuries to Ms. Gordon's face. (T. 14, 16, 23, 26). As a result, defendant appellant was arrested and charged with domestic violence. A motion for a temporary protection order was then requested by Ms. Gordon. On February 17, 1997, the trial court granted the motion for a temporary protection order. On the day of the hearing, defendant-appellant allegedly presented an affidavit to the state in which Kelley Gordon allegedly maintained that her injuries were not caused by defendant-appellant. The state chose to proceed with the prosecution based upon the statements of the police officers on the -3- scene. (See the state's motion and brief in opposition to defendant's motion for a new trial, filed March 31, 1997). On February 18, 1997 defendant-appellant entered a plea of not guilty to the charge of domestic violence. Trial was scheduled for March 3, 1997. On February 22, 1997, defendant-appellant's counsel filed a motion for continuance of trial which was denied by the trial court. Trial, proceeded as scheduled on March 3, 1997; although subpoenaed, Ms. Gordon, the alleged victim, failed to appear or to testify at trial. The state's case consisted of the testimony of Officer Matsik, Officer Becker and Officer Sarna. Based upon the excited utterance exception to the hearsay rule, see Evid.R. 803 (2), the trial court allowed the officers' testimony regarding statements made by Ms. Gordon on the night in question, over defense objection. (T. 42) During its case-in-chief, defense counsel attempted to introduce a sworn statement of Ms. Gordon in which she retracted her allegations against defendant-appellant and contradicted police testimony. The trial court refused to allow the defense statement into evidence, finding: THE COURT: We can state for the record that, to your knowledge, you proffered a document that statements were retracted, but without her here, we're not going to be able to I'm not going to permit that document to come in. (T. 35). Based upon the evidence presented, the trial court found defendant- appellant guilty of the offense of domestic violence. On March 18, 1997, defendant-appellant filed a motion for a new trial pursuant -4- to Crim.R. 33 based upon newly discovered evidence. Defendant- appellant premised his motion on an affidavit from the alleged victim, Ms. Kelly Gordon, in which she stated that her injuries were not caused by defendant-appellant, but rather, were self- inflicted as a result of a bout with severe bipolar manic depression. The motion was denied by the trial court on April 16, 1997. On May 5, 1997, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. Defendant appellant's first assignment of error states: Appellant was denied his right to confront witnesses against him as guaranteed by Sixth Amendment to U.S. Constitution and Article I, Section 10 of the Ohio Constitution. Defendant-appellant maintains, through his first assignment of error, that the trial court improperly admitted into evidence the police testimony relating to the alleged statements of Ms. Kelley Gordon on February 16, 1997. Specifically, defendant-appellant argues that the police statements constitute inadmissible hearsay with none of the traditional indicia of reliability required for admission. It is defendant-appellant's position that the trial court compounded its error by improperly excluding from evidence the purported affidavit of Ms. Kelley Gordon in which she maintained that her injuries were not caused by defendant- appellant, but rather, were self-inflicted as a result of a mental illness identified as bipolar manic depression. Ms. Gordon maintained further that her only motivation for accusing defendant- appellant was to have him leave the apartment that night. It is -5- defendant-appellant's position that, by allowing the police officers' testimony regarding Ms. Gordon's statements and excluding Ms. Gordon's affidavit, the trial court effectively denied defendant-appellant the right to confront witnesses against him pursuant to the confrontation clause of the Sixth Amendment to the United States Constitution. As defendant-appellant correctly states, the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio constitution both guarantee all criminal defendants the right to confront the witnesses against them. The Confrontation Clause provides a constitutional safeguard which ensures that a criminal defendant will not be convicted of a crime based upon the charges of unseen, unknown and unchallengable witnesses. Lee v. Illinois (1986), 476 U.S. 530, 540, 106 S.Ct. 2056, 2062, 90 L. Ed. 2d 514, 525; State v. Gilliam (1994), 70 Ohio St.3d 17, 19; State v. Dixon (March 13, 1997), Cuyahoga App. No. 68338, unreported. In Ohio v. Roberts (1980), 448 U.S. 56, the Supreme Court determined that, since the Confrontation Clause and the hearsay rules are designed to protect similar interests, 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 since such statements bear the requisite indicia of reliability . Id. at 66; City of Lakewood v. Reese (March 20, 1997), Cuyahoga App. No. 70193, unreported at 2. Evid. R. 803 provides: -6- Rule 803. Hearsay Exceptions; Availability of Declarent Immaterial. The following are not excluded by the hearsay rule, even though the declarent is available as a witness: * * * (2) Excited Utterance. A statement relating to a startling event or condition made while the declarent was under the stress of excitement caused by the event or condition. In State v. Taylor (1993), 66 Ohio St.3d 295, 300, the Ohio Supreme Court cited the syllabus of Potter v. Baker (1955), 162 Ohio St. 488, which set forth a four-part test for determining the admissibility of an excited utterance. The court stated: 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 contempo- raneous 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 statement 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). See, also, Reese, supra. In the case sub judice, Officer Matsik testified that when he arrived on the scene, he found Ms. Gordon physically distraught, -7- breathing erratically and crying. Officer Matsik also noticed a red mark under Ms. Gordon's right eye. At this time, Ms. Gordon maintained that she had been physically assaulted by defendant- appellant. Similarly, Officer Becker testified that Ms. Gordon appeared to be very excited, scared and crying when he arrived on the scene. Officer Becker and Officer Sarna also testified as to the appearance of a reddish, swollen injury to Ms. Gordon's face. (T. 23, 26). Based upon this court's review of the officers' testimony in this case, it is apparent that the trial court made a reasonable determinationthat the police officers' statements were admissible as an excited utterance exception to the hearsay rule pursuant to Evid. R. 803 (2) and the four-part test enunciated by the Supreme Court in Potter and followed by this court in Reese. See, also, State v. Justice (1994), 92 Ohio App.3d 740, 746. In addition, the trial court's refusal to allow the purported affidavit of the victim into evidence was not improper given the victim's intentional failure to appear as a witness in spite of a subpoena requiring her attendance at trial. Also, the affidavit in question constituted inadmissible hearsay, the admission of which would have precluded appellee from questioning Ms. Gordon on the allegations and recantation contained therein. Fay Gardens Mobile Home Park v. Newman (1983), 14 Ohio App.3d 144, 470 N.E. 2d 164; Morrison v. Grima (Nov. 8, 1996), Trumbull App. No. 95-T-5346, unreported; Evid.R. 802. -8- Defendant-appellant's first assignment of error is not well taken. Defendant-appellant's second assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION FOR A NEW TRIAL. Defendant-appellant argues, through his second and final assignment of error, that the trial court improperly denied his motion for a new trial pursuant to Crim. R. 33(B). Specifically, defendant-appellant maintains that the affidavit of the alleged victim, Ms. Kelley Gordon, fully contradicts the evidence offered by the prosecution in that she maintains that her injuries were self-inflicted as a result of bipolar manic depression for which she had stopped taking her medication on the night in question. Crim.R. 33(A) states in pertinent part: Rule 33. New Trial. (A) Grounds. A new trial may be granted on motion of the defendant for any of the following cases affecting materially his substantial rights: * * * (6) When new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at the trial. ***. As a general rule, a motion for a new trial is granted where the defendant shows that he was unavoidably prevented from discovering the evidence which is the basis of the motion during the course of the trial. State v. Gray (April 13, 1995), Cuyahoga App. No. 67574, unreported; State v. Pinkerman (1993), 88 Ohio App.3d 158, 623 N.E. 2d 643. The evidence must have been the type that would have produced a different result at trial. State v. -9- Edwards(Oct. 16, 1997), Cuyahoga App. No. 70985, unreported at 7. Similarly, the Ohio Supreme Court has held: To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong possibility that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence. State v. Petro (1947), 148 Ohio St. 505, 76 N.E. 2d 1140; State v. Kraly (1977), 56 Ohio App. 2d. 37. A motion for a new trial pursuant to Crim. R. 33(B) is left to the sound discretion of the trial court, and will not be reversed on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St. 3d 71, 564 N.E.2d 54, syllabus. An abuse of discretion connotes more than an error of law or judgment, it implies that the trial court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E. 2d 1140; Edwards, supra; City of Cleveland v. Mercurio (Aug. 28, 1997), Cuyahoga App. No. 72144, unreported at 6. In the case sub judice, a review of the alleged victim's affidavit attached to defendant-appellant's motion for a new trial demonstrates that it fails to constitute newly discovered evidence as contemplated under Crim. R. 33(A)(1)(6) and the Supreme Court guidelines for granting a motion for a new trial in a criminal case as set forth in Petro. Ms. Gordon's affidavit stated in pertinent part: -10- 5. On the night in question, Ali and I had argued because he had come home very late and had been drinking. I became upset at him and our argument escalated to the point where he ordered me out of the house. I refused to go and I ordered him out of the house. He refused and I threatened to call the police. He told me to do so, which I did. When the police arrived, I accused Ali of doing the things which lead [sic] to his arrest for domestic violence. Those accusations were and are false. I made them because I was very upset and wanted Ali out of the house. 6. When the police arrived, they observed that I had two bruises on my face. I accused Ali of hitting me and causing the bruises. Those accusations are false. The bruises were self-inflicted the day before the incident. 7. I have been diagnosed with bipolar manic depressive illness. I have been and should be on medication which evens out my mood swings. If I do not take my medication, I lose control of myself. I had not been taking my medication, lost control on the night in question, and falsely accused Ali of committing domestic violence. See affidavit of Ms. Kelley Gordon attached to defendant- appellant's motion for a new trial as defendant's Exhibit A. Clearly, Ms. Gordon's allegations regarding the self-inflicted nature of her injuries, her mental illness and the fact that she failed to take her prescribed medication on the night in question was information that could, in the exercise of due diligence, been discovered prior to trial. Ms. Gordon herself maintained that she had experienced problems with depression for which she had been taking medication before the underlying incident occurred and therefore prior to trial in this matter. Given the fact that Ms. Gordon and defendant-appellant had been living together since December 1996, and had known each other for approximately one year at the time of the incident, it would not have been difficult for -11- defendant-appellant to procure such information for his defense at trial. In addition, in light of the police officers' testimony regarding the apparent fresh nature of the injury (i.e. continued swelling and redness), it is doubtful that Ms. Gordon's recantation would actually alter the result of a new trial if the motion had been granted. Therefore, the trial court did not abuse its discretion in denying defendant-appellant's motion for a new trial based on newly discovered evidence. See State v. Pirman (1994), 94 Ohio App.3d 203. Defendant-appellant's second and final assignment of error is not well taken. Judgment of the trial court is affirmed. -12- It is ordered that appellee recover of appellant 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 Cuyahoga County Common Pleas 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. DIANE KARPINSKI, PRESIDING JUDGE LEO M. SPELLACY, JUDGE MICHAEL J. CORRIGAN, 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 journalization of this court's announcement of decision by the .