Village of Mayfield v. Cuccarese, 2008 Ohio 1812 (Ohio App. 4/17/2008)

Decision Date17 April 2008
Docket NumberNo. 89594.,89594.
Citation2008 Ohio 1812
PartiesVillage of Mayfield, Ohio, Plaintiff-Appellee v. Terry L. Cuccarese, Defendant-Appellant.
CourtOhio Court of Appeals

Nicholas J. Schepis, 6181 Mayfield Road, Suite 302, Mayfield Heights, Ohio 44124-3238, Attorney for Appellant.

Vincent A. Feudo, Michael E. Cicero, Nicola, Gudbranson & Cooper, LLC, 1400 Republic Building, 25 West Prospect Avenue, Cleveland, Ohio 44115-1000, Attorneys for Appellee.

BEFORE: Kilbane, J., Sweeney, A.J., and Dyke, J.

Page 3

JOURNAL ENTRY AND OPINION

MARY EILEEN KILBANE, J.:

{¶ 1} Defendant-appellant, Terry L. Cuccarese (Cuccarese), appeals from the judgment of the Lyndhurst Municipal Court finding him guilty of domestic violence. For the following reasons, we reverse and remand.

{¶ 2} On March 25, 2006, Mayfield Village police officer Stephen M. LaBuda (LaBuda) filed a complaint against Cuccarese alleging one count of domestic violence against his wife, Cynthia A. Cuccarese (Cynthia), in violation of Mayfield Village Ordinance (MVO) 537.14(a).

{¶ 3} On March 27, 2006, the trial court proceeded to arraignment, set bond, and granted LaBuda's motion for a temporary protection order on behalf of Cynthia Cuccarese.

{¶ 4} On September 20, 2006, the case proceeded to a jury trial. On September 22, 2006, the jury found Cuccarese guilty of domestic violence and guilty of disorderly conduct. The trial court set a sentencing hearing for September 26, 2006.

{¶ 5} On September 26, 2006, the trial court determined that it required a presentence investigation report for sentencing purposes and continued sentencing to November 2, 2006.

{¶ 6} On October 4, 2006, Cuccarese filed a Crim.R. 29 motion for acquittal and a motion for a new trial; both were denied by the court on October 31, 2006.

Page 4

{¶ 7} On November 2, 2006, the trial court determined that it did not have Cuccarese's presentence investigation report because Cuccarese failed to appear for its completion. The trial court again continued Cuccarese's sentencing hearing until a presentence investigation report was completed.

{¶ 8} Once the presentence investigation report was completed, the court set a hearing for December 21, 2006. However, at the hearing, the court noted that Cuccarese had filed a notice of appeal on November 30, 2006, and thus the trial court determined that it lacked jurisdiction to sentence him. On January 12, 2007, Cuccarese's appeal was dismissed for lack of a final appealable order. State v. Cuccarese (Jan. 12, 2007), Cuyahoga App. No. 89114. Upon notice thereof, the court reset Cuccarese's sentencing hearing.

{¶ 9} On February 15, 2007, the trial court proceeded to sentencing. The trial court nolled Cuccarese's conviction for disorderly conduct. The court thereafter sentenced Cuccarese to 180 days of imprisonment and imposed a $1000 fine, but suspended his sentence pursuant to the following: that no similar circumstances occur; conditions of probation are followed; payment of $500 of the imposed fine ($500 suspended); one year of community control sanctions to include either anger management or family counseling and periodic progress reports; Cuccarese to pay jail costs; and lastly, the trial court dissolved the temporary protection order.

{¶ 10} The facts giving rise to the instant case occurred on March 24, 2006, at 871 Worton Park Drive, Mayfield Village, Ohio, the home of Cuccarese and Cynthia.

Page 5

On the night in question, Cuccarese and Cynthia stayed home to watch a movie while their daughter, Carla Cuccarese ("Carla") stayed at a friend's house. A disagreement ensued over financial matters.

{¶ 11} After the disagreement, Cynthia called Carla to come home and pick her up. After Carla picked Cynthia up however, Cynthia realized she left important medication at home. Cynthia flagged down a Highland Heights police officer near I-271 and Wilson Mills Road and asked for assistance in retrieving her medication. The Highland Heights officer directed her to a nearby gas station so that a Mayfield Village officer could assist Cynthia. Cynthia and Carla proceeded to the Mayfield Village police station where Cynthia and Carla explained to the officers what had transpired and that Cynthia needed her medication. Cynthia also informed the police that her husband had guns in the home.

{¶ 12} Mayfield Village police officers went to the Worton Park Drive home but the house was locked, all lights were out, and no one came to the door. Carla, escorted by three or four officers, returned to the Worton Park Drive home. Upon arrival, Carla unlocked the door with her key and the officers entered. The officers found that the lightbulbs had been removed from all the light fixtures on the first floor. The officers proceeded toward the staircase with their flashlights and found Cuccarese at the top of the stairs. The officers followed Cuccarese into the master bedroom where they found a handgun, loaded and cocked, underneath a pillow on the bed. The officers arrested Cuccarese for domestic violence without incident.

Page 6

{¶ 13} Cuccarese appealed and asserted sixteen assignments of error for our review. In the interest of judicial economy, we address these assignments of error out of order.

ASSIGNMENT OF ERROR NUMBER FOUR

"The Trial Court erred in admitting hearsay testimony, in violation of the Ohio Rules of Evidence."

{¶ 14} Cuccarese argues that alleged statements made by Cynthia, and testified to by every witness, is hearsay and not admissible under the excited utterance exception to the hearsay rule. We agree.

{¶ 15} We review the admission and exclusion of evidence upon an abuse of discretion standard. State v. Finnerty (1989), 45 Ohio St.3d 104. "The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217.

{¶ 16} "`Hearsay' is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). However,

"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." Evid.R. 803(2).

Page 7

{¶ 17} As such, excited utterances are not the result of reflective thought, but rather, they are reactive thought. State v. Taylor (1993), 66 Ohio St.3d 295. The Supreme Court of Ohio provided a four-part test to determine the admissibility of excited utterances:

"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 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." Potter v. Baker (1955), 162 Ohio St. 488, at paragraph two of the syllabus. The trial court admitted Cynthia's statements as testified to by Officer Argie, Officer Deardon, Officer LaBuda, and Carla as excited utterances under Evid.R. 803(2).

{¶ 18} Carla testified that all she knew of the incident is what her mother told her. (Sept. 21, 2006, Tr. at 33.) Carla was not present during the incident in question. Carla's written statement reveals no more than what Cynthia told her when she wrote: "Apparently he pushed her away into a wall." (Emphasis added.) Carla testified that Cynthia sounded "normal" over the phone. (Sept. 21, 2006, Tr.

Page 8

at 5.) Carla also testified that when she picked up Cynthia, she "looked fine." (Sept. 21, 2006, Tr. at 7.)

{¶ 19} Officer Deardon, who Cynthia flagged down for assistance in retrieving her medicine, testified that Cynthia was holding her face, crying, and very upset. (Sept. 21, 2006, Tr. at 118.) Cynthia asked Officer Deardon for assistance in retrieving her medication from home. (Sept. 21, 2006, Tr. at 151.) Cynthia's interaction with Officer Deardon occurred at least forty-five minutes after Cynthia had left her home. Officer Argie's hearsay testimony revealed the following: "Mrs. Cuccarese, the mother, who was in the altercation, further explained what happened. She stated how she wanted us to go get her medication that was back at the home ***." (Sept. 20, 2006, Tr. at 229). Officer Argie described Cynthia as trembling and crying, that her face was red and puffy, and that she appeared intoxicated. (Sept. 20, 2006, Tr. at 227.)

{¶ 20} Officer LaBuda testified that Cynthia told him that her husband assaulted her and "smacked her around and she wanted to get her medication and she was afraid to go back to the house and wanted to know if we would escort her back there." (Sept. 21, 2006, Tr. at156-158.) "She told me that her husband became upset, they had been fighting about money, he's been...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT