State v. Little

• Decision Date: 27 December 2016
• Docket Number: No. 1–16–29.,1–16–29.
• Citation: 78 N.E.3d 323,2016 Ohio 8398
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Larisco L. LITTLE, Defendant–Appellant.
• Court: Ohio Court of Appeals

78 N.E.3d 323

2016 Ohio 8398

STATE of Ohio, Plaintiff–Appellee,

v.Larisco L. LITTLE, Defendant–Appellant.

No. 1–16–29.

Court of Appeals of Ohio, Third District, Allen County.

Dec. 27, 2016.

Linda Gabriele, Lima, for Appellant.

Kenneth J. Sturgill, for Appellee.

OPINION

WILLAMOWSKI, J.

{¶ 1} Defendant-appellant Larisco Little ("Little") appeals the decision of the Allen County Court of Common Pleas finding the defendant guilty of one count of domestic violence in violation of R.C. 2919.25(A), (D)(4). On appeal, Little raises three assignments of error: 1) the trial court erred by admitting hearsay in violation of Little's right to confrontation; 2) the trial court erred by entering a verdict against the manifest weight of the evidence; 3) and the State committed a manifest miscarriage of justice in its closing argument. For the reasons set forth below, the judgment of the lower court is affirmed.

{¶ 2} On September 6, 2015, Shirley Jones ("Jones") was in her home when she heard a commotion outside her house. Tr. 80. She went to her door where she saw the two children of YJ and Little, her neighbors. Id. At trial, Jones testified that the children were crying and "asked [her] if [she] could call the police because their mom was bleeding and their dad was fighting their mom." Tr. 81. In response, she called 9–1–1 and reported a domestic disturbance. Tr. 82. The recording of this 9–1–1 call was later admitted into evidence and captured Jones saying, "The kids just ran over here wanting me to call. They said their dad's over there beating on their mama." Ex. 8. Patrolman Matt Boss ("Boss") responded to this report of domestic violence in progress. Tr. 51, 53. Boss later testified that approximately ten to fifteen minutes transpired between receiving the call and reaching the reported address. Tr. 53.

{¶ 3} After Boss arrived on the scene, he approached YJ, who was standing outside of her home. At trial, Boss testified that YJ looked "defeated" and "in pain." Tr. 52. He observed signs of a struggle: YJ had a cut on her arm, blood on her neck and hands, and a laceration on the back

of her head. Tr. 52, 55. Boss then asked YJ what had happened. Tr. 56. Boss testified at trial that YJ told him "[t]hat Larisco Little grabbed her by her hair and slammed her head into a glass dining room table." Id. Boss then called for medical assistance and began searching for Little. Tr. 57. YJ permitted the police to clear her house, but Little was not inside. Id. Boss began searching the vicinity and found Little wandering roughly one block away from YJ's home. Id. Boss then arrested Little. Doc. 1.

{¶ 4} Later that day, Little called his mother from jail on a recorded line. Tr. 121. In this conversation, Little said, "She kept on pushing my buttons, mama." Ex. 9. He then said, "I pushed her, and she hit the table, mama. That—that was a mistake." Id. On September 8, 2015, Little was charged with domestic violence under R.C. 2919.25(A). On April 21, 2016, Detective Kent Miller served a subpoena on YJ that ordered her to appear before the court as a witness on May 3, 2016. Tr. 29. However, YJ did not appear for the trial. Tr. 30. The prosecution proceeded by calling Boss to testify and asked Boss what YJ told him during their initial encounter. Tr. 56. The defense objected to the admission of this evidence as hearsay. Id. The court, however, overruled the objection, finding the statement was nontestimonial and admissible as "either an excited utterance or a statement to Patrolman Boss for purposes of the emergency treatment of her." Tr. 111–112.

{¶ 5} The State then called Jones, YJ's neighbor, to testify. Tr. 79. During her testimony, the defense objected when Jones began stating what the children told her. Tr. 80. The court, however, overruled the objection and admitted the statements of the children. Id. Several times in his closing argument, the prosecutor referenced Jones's earlier testimony regarding what the children had said at Jones's house and related the children as saying, "Help, help, my daddy's beating up my mommy and she's bleeding; call 9–1–1." Tr. 209, 211. In the closing argument, the prosecutor also referenced records of Little's two prior convictions, which were admitted into evidence to prove an element of the charged crime. Tr. 227. Ex. 6, 7. See R.C. 2919.25(D)(4). The jury found Little guilty of domestic violence, and Little was sentenced on June 13, 2016. Doc. 71.

{¶ 6} On appeal, Little raises three assignments of error.

First Assignment of Error

The trial court erred in admitting hearsay statements in violation of the defendant-appellant's right to confrontation.

Second Assignment of Error

The verdict of the trial court was against the manifest weight of the evidence since the State of Ohio failed to prove each and every element of the crime of domestic violence beyond a reasonable doubt.

Third Assignment of Error

The closing argument by the State of Ohio created a manifest miscarriage of justice violating the defendant-appellant's right to a fair trial.

First Assignment of Error

{¶ 7} In his first assignment of error, Little challenges the admission of hearsay into evidence in violation of his right to confrontation. While the wording of this assignment of error primarily addresses the alleged violation of Little's right to confrontation, the arguments in Little's brief also question the admissibility of these hearsay statements. For this reason, we will first consider whether the admission of the hearsay statements was proper under the rules of evidence. State v. Dever, 64 Ohio St.3d 401, 415, 596 N.E.2d 436 (1992).¹ We will then consider whether the admission of these statements violated Little's rights under the Confrontation Clause. Id.

Admission of Hearsay Statements

{¶ 8} " ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). Hearsay is typically inadmissible unless the statement falls into a hearsay exception. Evid.R. 802. "An appellate court's review of the admission of evidence is limited to a determination as to whether the trial court abused its discretion." State v. Hawkey, 2016-Ohio-1292, 62 N.E.3d 721, ¶ 63, quoting Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). "An abuse of discretion has been described as an unreasonable, arbitrary or unconscionable decision." State v. Harris, 3d Dist. Hancock No. 5–99–14, 1999 WL 797159 (Sept. 30, 1999), citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

The Testimony of Patrolman Matt Boss

{¶ 9} The first statement Little challenges was made by YJ to Boss. At trial, Boss testified that YJ told him "[t]hat Larisco Little grabbed her by her hair and slammed her head into a glass dining room table." Tr. 56. This statement appears to have been admitted as a nontestimonial, excited utterance. Tr. 112. Excited utterances are an exception to the general rule excluding hearsay statements "because excited utterances are the product of reactive rather than reflective thinking and, thus, are believed [to be] inherently reliable." State v. Ducey, 10th Dist. Franklin No. 03AP–944, 2004-Ohio-3833, 2004 WL 1607310, ¶ 17, citing State v. Taylor, 66 Ohio St.3d 295, 612 N.E.2d 316 (1993). This exception covers "statement[s] 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).

{¶ 10} A statement falls within the excited utterance exception and has, therefore, indicia of reliability when

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 declarant's 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 the statement or declaration related to such startling occurrence or the circumstances of such startling occurrence, and (d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration.

Hawkey at ¶ 63, quoting Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955).

{¶ 11} When evaluating statements under this test, "[t]here is no per se amount of time after which a statement can no longer be considered to be an excited utterance." Taylor at 303, 612 N.E.2d 316. Rather, "each case must be decided on its own circumstances." State v. Duncan, 53 Ohio St.2d 215, 219, 373 N.E.2d 1234 (1978). "The central requirements are that the statement must be made while the declarant is still under the stress of the event and the statement may not be a result of reflective thought." Taylor at 303, 612 N.E.2d 316. Further, excited utterances can be made in response to

questioning which: (1) is neither coercive nor leading, (2) facilitates the declarant's expression of what is already the natural focus of the declarant's thoughts, (3) and does not destroy the domination of the nervous excitement over the declarant's reflective facilities.

State v. Tebelman, 3d Dist. Putnam No. 12–09–01, 2010-Ohio-481, 2010 WL 529496, ¶ 31, quoting State v. Wallace, 37 Ohio St.3d 87, 93, 524 N.E.2d 466 (1988).

{¶ 12} Here, the statement YJ made to Boss meets the four elements of an excited utterance. First, YJ did endure a startling experience. When Boss approached YJ, she had just emerged from a verbal and physical altercation. She had...